Ask FELTG: I work for a fairly small agency. Is it a problem if the same supervisor acts as both the Proposing and Deciding Official in a disciplinary action?

March 20, 2023

You might be surprised by this, but the answer is no – it’s not a problem or issue as long as the employee is given due process:

1. Proposal notice with charge(s), penalty, and the material relied upon in making the proposal;

2. An opportunity to respond orally and in writing, with a representative if desired; and

3. An impartial decision.

If the PO and DO are the same person, there’s no due process issue if that supervisor can credibly testify they kept an open mind and did not make a final determination about discipline until after the employee’s response.

This is a foundational principle going back to early Board case law, which states the “law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.” DeSarno v. Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985).

One quick note: In a Chapter 43 performance-based action, the law requires the DO to be a management official at a higher level than the PO. 5 USC § 4303(b)(1)(D)(2).

Join FELTG for MSPB Law Week March 27-31 (next week!) for more on this topic.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What’s the Best Way to Calculate Non-pecuniary Compensatory Damages in an EEO Case?

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February 28, 2023

Thanks for the question. The best way to determine appropriate compensatory damages in cases where agencies are found liable for discrimination, harassment, reprisal, or a failure to accommodate is to look at the harm the employee endured. It’s difficult to put a dollar value on non-tangible things like anxiety, fear, loss of sleep, and the like, so researching cases where the facts are similar will help you determine what amount of damages the Commission would consider appropriate.

According to instructor Bob Woods, “EEOC has provided that an award should reflect the nature and severity of the harm to the complainant and the duration or expected duration of the harm. They have specifically stated that they will attempt to make awards that are consistent with awards in similar cases.”

In addition, we’ve done training on the topic and a recording of the recent webinar Damages and Remedies in Federal Sector EEO Cases is available in the FELTG store. Or, join us during EEOC Law Week March 13-17 for a live discussion on this topic and more.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles Accommodation Request for Inability to Commute

January 24, 2023

Here’s a question that recently came into FELTG’s mailroom:

In granting or denying a reasonable accommodation request for telework, does it make any difference if the employee’s only disability-related problem is his commute to work? Hypothetically, he does not have any problem performing his job once he gets to work.

And our reply:

Thanks for your email; we get various versions of this question quite a lot (see a recent Ask FELTG about accommodating an individual with telework because the Metro station near his home was closed). In recent years, EEOC has given us clear guidance on the topic.

To be entitled to 100 percent telework as a reasonable accommodation, the employee must show:

1. Their disability makes it impossible for them to get to the physical work site, and

2. The essential functions of their position can be performed from home.

Here are a couple of cases to get you started:

Lavern B v. HUD, EEOC No. 0720130029 (2015): EEOC “precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act.” This doesn’t mean the employee will always be granted telework, but this means the agency is obligated to go through the reasonable accommodation process with the employee who is requesting telework or an alternate work location because the commute exacerbates his medical condition. In this case, EEOC found that commuting to work is a major life activity. Because of the complainant’s spinal condition, the agency was required to consider accommodating his physical inability to commute the longer distance to the office.

Doria R. v. NSF, EEOC Appeal No. 0120152916 (2017): “[P]roviding disabled employees with the reasonable accommodations [sic] of telecommuting is consistent with the Rehabilitation Act’s goal of assuring ‘equality of opportunity, full participation, independent living, and economic self-sufficiency’ for individuals with disabilities.” In this case, the employee had cancer that metastasized to her bones. Driving or riding in a car was deemed by her physician to be too dangerous because of the condition of her skeleton, and the agency erred by not considering her request for 100 percent telework.

We’ll be tackling this topic in more detail on Feb. 16 during the two-hour class Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. We hope you’ll join us!

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: How Exactly Did Union Rep Cross Line Into Misconduct?

January 9, 2023

An item in our weekly email generated the following question:

You mentioned in one of your recent newsletters that an FLRA decision illustrated union activity “that very clearly crossed the line.” As our relationship with the union here is standoffish in its best moments, I’d like to know what exactly the union did to cross that line so that a union rep could be disciplined.

Dear loyal FELTG reader,

First, thank you for subscribing to our weekly email and monthly newsletter.

What you read was a teaser, enticing you to register for Ann Boehm’s two-hour training session Drawing the Line: Union Representation or Misconduct on Jan. 19 at 1 pm ET. In that training session, Ann will discuss every angle of this topic, from determining what kinds of union activity are protected to how to discipline disruptive behavior that is not protected. And she’ll discuss the arbitrator and, eventually, FLRA decision in Bremerton Metal Trades Council, 73 FLRA 90 (2022).

So, you want to know: What did the union rep do in Bremerton that warranted discipline?

Well, the union rep, according to statements obtained by the agency, used the following words to describe colleagues — ’r—ard,’ ‘stupid,’ ‘slow,’ ‘f—king p—sy,’ ‘f—king idiot,’ and ‘god d—n r—ard.’ The rep created a toxic and uncomfortable work environment. The rep’s behavior was so bad, it caused a chief steward to experience three panic attacks over a one-month period, with the last one landing him in the hospital.

The arbitrator sided with the agency’s decision to discipline the rep for her “confrontational and bullying” behavior because the conduct was “flagrant or otherwise outside the bounds of protected activity.” The arbitrator also noted that the bullying behavior was for the grievant’s own benefit, and it was not provoked. The FLRA concurred.

For more about this case, read Ann’s Good News column from last August and join her on Jan. 19.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What do OPM’s new regulations say about clean record agreements?

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December 14, 2022

OPM’s new regulations on 5 CFR parts 432 and 752, which went into effect Dec. 12, 2022, removed the 2020 regulations’ prohibition on clean record agreements. Agencies are once again free to use clean record settlements. This was probably the most contested portion of the 2020 regulations, which had incorporated President Trump’s E.O. 13839 prohibitions on clean record settlements.

OPM explains that clean record agreements “should be an option for agencies to resolve informal and formal complaints when the agency deems it is in the best interests of effective and efficient management to achieve the agency’s mission,” and that clean record agreements provide agencies with an important tool and flexibility, consistent with the policies of President Biden’s E.O. 14003, Protecting the Federal Workforce.

OPM identified some of the disadvantages to prohibiting clean record agreements:

  • Reduced likelihood of parties reaching a mutually agreeable resolution of informal or formal complaints
  • Increase of costly litigation and arbitration
  • Crowding of the dockets of third-party investigators, mediators, and adjudicators
  • Cases languishing impact the agency’s credibility, supervisor morale, and efficient execution of the agency’s mission

OPM’s rescission does not take a position on whether any particular case should be settled, as it acknowledges that settlements, which through lessening a penalty or permitting resignation, may in certain circumstances:

  • Lessen the risk of outright reversal with its high costs without benefit, or
  • May adversely affect governmental interests.

Agencies are still required to be truthful to Federal investigators in connection with background investigations, and may not agree to withhold information about an individual’s departure from the agency. In addition, the requirement for agencies to be truthful applies also to suitability determinations and other inquiries related to vetting for personnel security.

The rescission of clean record restrictions applies to

  • 432.108 (performance-based actions)
  • 752.104 (discipline for whistleblower retaliation)
  • 752.203 (short suspensions)
  • 752.407 (appealable actions)
  • 752.607 (SES adverse actions)

If you missed our recent webinar Implementing New OPM Regs for More Effective Disciplinary and Performance Actions, the recording is available in the FELTG store. Info@FELTG.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: If Metro is Closed, Is Telework a Reasonable Accommodation?

October 31, 2022

We recently received the following question: If a Metro station is closed for construction, does our agency have to accommodate a disabled employee who usually takes the Metro to work by granting temporary telework?

Thanks for the question. As in every reasonable accommodation case, the agency should follow the framework we teach in our classes, which mirrors the requirements of the law:

  1. Does the individual have a disability?
  2. Are they a qualified individual?
  3. Did they request accommodation?
  4. Did the agency engage in the interactive process?
  5. If there is a feasible accommodation, will it impose an undue hardship on agency operations?

There’s a fairly recent case in which this exact issue came up, Orlando O. v. USPS, EEOC Appeal No. 2020003910 (Dec. 7, 2021).

The complainant suffered from ulcerative colitis, which required him to be able to access a restroom with minimal notice. He took the subway to work every day, but the subway line he used would be closed for four months and the shuttle service that replaced the subway service did not provide restroom accommodations. The agency denied the telework request. It ordered the complainant to either report to the workplace or take sick leave. Because he was unable to come into work, he used 456 hours of sick leave, and reported back to work the day the subway re-opened. The EEOC found improper unnecessary delay of RA and that the agency failed to show granting telework would have caused an undue hardship.

We have no doubt your agency is dealing with other new, untested RA challenges. Join FELTG for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency November 17 for a lively discussion on how to address these challenges legally and efficiently.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Can Comments About Church Attendance State a Viable Claim of Hostile Work Environment Harassment?

October 10, 2022

Stating a claim is much easier than proving hostile work environment harassment. As we teach in EEOC Law Week, in order to prove a hostile work environment, the complainant must show she was subjected to unwelcome conduct, based on a protected EEO category (such as religion), and that the conduct was so severe or pervasive it altered the terms, conditions and privileges of employment to create a hostile or abusive work environment.

The best way to answer your question is to look at a case involving this very topic, Ricky S. v. USPS, EEOC Appeal No. 2019005078 (Sept. 30, 2019). In this case, the complainant alleged:

(1) The postmaster yelled and accused him of requesting medical (FMLA) leave to miss work on Sundays in order to really go to church;

(2) The postmaster threatened to send Postal Inspectors to his church to verify his presence in the services;

(3) The complainant was given a pre-disciplinary interview during which the postmaster yelled at him and accused him of missing work to go to church, and warned him that he could get fired for doing so; and

(4) The postmaster commented about the complainant on the work floor in front of co-workers, “I will work him so much that he won’t be able to pray!”

The agency initially did not accept the complaint, but the EEOC remanded and ordered the agency to accept the claim because, when viewing all of the complainant’s allegations together and assuming they occurred as alleged, the complainant stated a viable claim that the agency was required to investigate.

Remember, stating a claim doesn’t mean that hostile work harassment has been proven, it just means the agency must conduct an investigation – the next step in the EEO process. For more on this timely topic, join FELTG tomorrow (October 12) for a 60-minute session on The Latest in Religious Harassment and Discrimination Cases.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Is It OK to Screen Test Unvaccinated Employees Attending an Agency-wide Meeting?

September 6, 2022

As concern about the virus has waned, some agencies have started to allow employees to travel. And that serves as the backbone of this question.

Here are the details: A number of agency employees from several locations are gathering for an onsite meeting. Those attending are a mix of people with different vaccination histories. The question: Before the meeting, can those who are unvaccinated be screen tested to see if they’re carrying the virus?

The easy answer is no. Last month, the Biden Administration did an about face and instructed agencies to stop all COVID-19 testing aimed at unvaccinated employees.

This was a big change. The war against COVID has shifted, and unvaccinated employees will no longer be treated differently from those who have received the vaccine. Screen testing is on the way out, except, as recently updated Safer Federal Workforce Task Force guidance states, at “those [facilities] identified by agencies for high-risk settings.”

This begs another question. Could the meeting be a high-risk setting? And could our Ask FELTG reader use that designation to screen test unvaccinated attendees?

Well, maybe, and no.

You may think your meeting is high risk, but it’s not your decision to make. The recent guidance states whether a situation is high risk is determined following consultation with the agency COVID-19 Coordination Team, including the agency Office of General Counsel, and the Safer Federal Workforce Task Force.

And even if your meeting is deemed to be high risk, you still can’t limit testing to unvaccinated attendees. Per the Safer Federal Workforce Task Force:

When an agency has established a serial screening testing program for agency-identified high-risk settings, an agency should enroll all employees working in that setting (which could be a facility, multiple facilities, or certain roles, functions, or settings within those facilities), regardless of vaccination status. When serial screening testing is implemented, agencies must not differentiate among individuals on the basis of their vaccination status, pursuant to Executive Order 13991 and consistent with CDC guidance.

Stay with FELTG for latest guidance and join us for EEOC Law Week September 19-23, where COVID-related challenges will be one of many important topics discussed.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles Two Questions About Reasonable Accommodation

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Q: An employee claims to have a family member with an underlying medical condition that makes him susceptible to severe COVID. May the agency ask for medical documentation about the family member’s condition, if that’s why the employee is seeking telework as a reasonable accommodation?

A: If the employee does not have a disability, then any step toward granting telework, including requesting medical documentation, is not part of the reasonable accommodation process because only qualified employees (or applicants) with disabilities are entitled to RA. See Key-Scott v. USPS, EEOC Appeal No. 0120100193 (2012).

You’ll need to check your agency’s policy for guidance about what is required to allow telework flexibilities for employees who live with individuals with underlying health conditions.

Q: If the agency grants telework as a provisional accommodation and it’s clear the accommodation is not working, how does the agency change the accommodation if the medical documentation states that telework is the recommended accommodation?

A: If the medical documentation recommends telework, the agency is not bound to provide telework if there is another affective accommodation that allows the employee to perform their job within their medical restrictions. If an accommodation is not working, then it is not an effective reasonable accommodation.

In a case where medical documentation recommends telework, at the outset the agency should request additional medical information related to the functional limitations the employee has, so that the agency can determine if an accommodation other than telework is appropriate.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Can Discipline Be Used as a ‘Prior’ to Aggravate the Penalty?

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A FELTG reader shared the following hypothetical scenario:

An employee is issued a decision to suspend dated July 1. The dates of the suspension stated in the decision are August 3-7.  If any misconduct that happens between July 1 and August 7, can that be considered as a “prior” offense in a future disciplinary action? 

Also, how are paper suspensions implicated in this type of scenario?

And FELTG’s answer:

Discipline may not be relied upon as a prior until it has been fully served. In the example above, the discipline is not a considered a prior until after the suspension ends on August 7, regardless of the dates the proposal or decision letter are issued. See Fowler v. USPS, 77 MSPR 8 (1997), which discusses this concept in detail.

If the action is a paper suspension, where an employee is “suspended” on days they weren’t scheduled to work, then it doesn’t count as a suspension UNLESS the agency has an agreement with the employee (in writing), or a union contract says, that the paper suspension carries the weight of an X-day suspension for the purposes of discipline.  Otherwise, the law at 5 USC 7501.2 requires a loss of pay in order for an action to meet the definition of a suspension.

Good luck, and remember to always check the calendar when relying on past discipline.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.