Ask FELTG: If an employee is requesting leave without pay to cover an absence due to illness, can a supervisor and/or HR practitioner contact the medical provider to authenticate a medical certificate received from the employee? What if the employee was requesting sick leave? We just want to know whether the employee was seen by the medical provider on the date identified on the medical certificate.

June 25, 2019

The type of leave doesn’t really matter in this instance, whether it is LWOP or sick or FMLA. When you use the term “authenticate,” do you mean the questions to the health care provider would be something like: “Is this the document you signed?” or “Are these dates correct?” If so, then either a supervisor or HR staff member can do that.

There is actually case law on this issue regarding FMLA. The case is Probasco v. Air Force, No. 2010-3182 (Fed. Cir. 2011)) (unpublished). Probasco argued that the Air Force violated FMLA by contacting the physician’s assistant whose name was on the medical certificate received, where they learned that it was not that person’s signature. The Federal Circuit found no violation.

As long as you are not asking for disclosure of medical information or asking for an explanation of medical findings (such as why the employee needs to be out so long), you can verify signatures, dates, and ensure that explanations are accurate, etc. We suggest you do it in writing with a cover memo on top explaining that you are simply verifying the info and send it by fax to the health care provider. It’s safest to not use e-mail. Also, think twice before you do it by phone. If it is important enough to try to verify the information, the agency should want to see a written response.

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: If a federal employee goes to an EEO office wanting to initiate a complaint of discrimination for alleging hostile work environment and other things related to conditions of employment but can’t state a claim alleging discrimination under the applicable employment discrimination laws like Title VII, etc., can the employee file a complaint?

May 28, 2019

An employee can file an EEO complaint about anything he wants. There is no prohibition on that. The EEO Office, when looking at the allegations in the complaint, should then dismiss any part of the complaint, or the entire complaint itself, if there is no covered basis (under Title VII, Rehab Act, etc.) alleged.

For example, if I am claiming a hostile work environment because I am a Dallas Cowboys fan and my supervisor is a Philadelphia Eagles fan, I can file a complaint. However, the EEO office should dismiss it for failing to state a claim upon which relief could be granted. Or, if I am alleging that a “personality conflict” is the issue there is no basis for a discrimination complaint because I have not claimed the conflict is based on gender or religion, for example, that should be dismissed as well.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and are 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: Let’s say our agency fires an employee, but the MSPB AJ puts the employee back to work and orders back pay and attorney fees. The agency files a Petition for Review  and it stacks up with the other PFRs waiting for a quorum at the Board to make a decision. It’s stuck in PFR no-man’s land. Does the employee go back to work, or does she wait until the Board issues a decision? What happens with the back pay and attorney fees?

May 28, 2019

Let’s go with the premise: The agency fires the employee, and the AJ reverses that removal. If the agency then wants to PFR the AJ’s decision, it must put the employee back on the payroll as “interim relief” in order to have the Board accept the PFR. Some agencies put the employee back to work. Others keep them at home while they pay them. That is completely up to the agency.

However, there is no order for back pay or attorney fees during interim relief. That’s held in abeyance until a final decision on the PFR. Therefore, if the Board reverses the AJ and re-fires the employee (upholding the original removal), there’s nothing to pay back. The agency had the option of requiring the employee to report to work during interim relief in order to get paid. Therefore, if he was at work, he was earning his pay. No repayment necessary. If the agency does not put the employee back to work, and instead pays the employee to stay at home, then that’s on the agency, not the employee.

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: If an employee elects to file an MSPB appeal on his mixed case issue, can he also bring in that same issue up in a separate EEOC claim under the hostile work environment umbrella, i.e., not as a discrete act?

April 25, 2019

The employee only gets one bite at the apple. If the employee files an MSPB appeal on a removal and raises discrimination as an affirmative defense, then files an EEO complaint arguing hostile work environment in which the removal is one of the acts alleged, then EEOC will defer to the MSPB appeal process for the removal and consider the EEO hostile environment complaint without the removal being considered as one of the continuing incidents. Otherwise, the employee would get two reviews of his removal, and that’s just not going to happen because it doesn’t make sense.

It’s worth noting that in an MSPB appeal where discrimination has been raised as an affirmative defense, the employee can seek review of the MSPB’s findings of discrimination by the EEOC. This review only considers findings of discrimination and not findings based on civil service law. 5 USC 7702(b)(1). If the EEOC disagrees with the MSPB, it must immediately refer the matter back to MSPB and MSPB then has 30 days to consider the EEOC’s decision. 5 USC 7702(c). If there’s a disagreement, we’re headed to the Special Panel. We’ll tackle that topic another time!

Have a Question? Ask FELTG.

 

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

Ask FELTG: We would like to direct an employee to undergo a medical examination. In a recent class, you mentioned that there are three limited situations where an agency can direct an employee to undergo a medical evaluation. What are they?

April 2, 2019
As we discuss in our Absence, Leave Abuse & Medical Issues Week, OPM restricts an agency’s authority to order an employee to undergo a medical exam (they don’t call it a Fitness For Duty anymore) to just three situations:

 

1. Periodic screening due to hazardous work (e.g., x-ray techs get an annual bone scan);
2. Established physical standards (e.g., police officers have to run a mile in 9 minutes); or
3. There are physical requirements in the employee’s Position Description (e.g., must be able to lift 20 pounds).

 

You can find these at 5 CFR 339.104 and 5 CFR 339.302. Under the regulations an agency may offer a medical exam to an employee but cannot require the employee to go. And MSPB will whack us hard if we fire someone for refusing to undergo a medical exam ordered outside of these limited authorities. See Doe v. PBGC, 2012 MSPB 42. (Note: if the employee is receiving OWCP benefits, medical exams are also permitted. We’ll tackle that in a future Ask FELTG column.)

 

Have a Question? Ask FELTG.

 

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

Ask FELTG: If an employee has no sick leave on the books and requests a day of annual leave because he is incapacitated for duty, must the agency grant the annual leave request, or can the agency place the employee on LWOP?

March 16, 2019

If an employee is incapacitated for duty and has sick leave balance, the agency must grant the sick leave because it is an entitlement. A supervisor is not required to grant an annual leave request because there is no entitlement to that type of leave; however, the denial of an annual leave request must be reasonable and based on workplace needs. A supervisor who unilaterally puts an employee on LWOP without the employee’s approval has, if effect, suspended the employee without procedures. On appeal, the employee would be entitled to back pay for that period of time he was carried on LWOP without his consent. See Martin v. USPS, 2016 MSPB 16. But, if the supervisor mentions LWOP as an option and the employee says, “Fine, I’ll take LWOP” then that would likely be considered employee approval, and there would be no basis for an appeal.

 

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

 

Ask FELTG: Some agencies use the Douglas Factors Worksheet as a separate document from the proposal. Others prefer to list the full Douglas Factors WITHIN the body of the proposal letter. Do you have a recommendation and justification for a preferred process?

February 26, 2019

The safest way to handle the Douglas Factor analysis is to have the supervisor complete a Douglas Factor Worksheet, attach that worksheet to the proposal notice, then in the body of the proposal notice, include a paragraph that says this: “In selecting a penalty, I relied on the assessment of the relevant penalty selection factors as described in the attached Douglas Factor Worksheet.”

As for the alternatives, here’s why they are more risky than the above:

 

  • Using the Douglas Factor Worksheet as a separate document from the Proposal and embedding the language from the Worksheet in the Proposal. This is unnecessarily risk because it allows for the possibility of making an embedding mistake. For example: If the Douglas Factor Worksheet says that the conduct was “serious” and the embedded language says that the conduct was “very serious,” you’ve now created an inconsistency that you may have to deal with on appeal. Of course, if your copy-and-paste is perfect, you won’t have this problem. However, what we teach at FELTG is to avoid any unnecessary risks. As there is no benefit in embedding the language, and because of the possibility of making a mistake when doing so, we recommend not doing it this way.
  • Listing the Douglas Factor WITHIN the body of the Proposal letter and not using a separate Worksheet. If you have been to our seminars, you know that the Board requires agencies to provide EVERYTHING in a charge, but will forgive facts not proven in the Douglas Factor analysis. The better we can organize the Douglas Factor analysis the way that judges consider them, the more likely it is that the judge will agree with our penalty assessment. By using a worksheet laid out exactly the way judges think about them, and keeping the worksheet as a document separate from the charge, we avoid any confusion as to what we are saying.

 

There is nothing illegal about the two other ways you have seen this handled before. It’s just that the way we recommend it be done is less risky. Since there is no case law that suggests that our approach is weak, or that the two approaches you have seen are better, we strongly recommend going with the safest approach.

 

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

Ask FELTG: Can a supervisor discipline an employee for approved leave?

February 3, 2019
While in general a supervisor cannot discipline an employee for approved leave, there is an exception for excessive absence cases, when an employee has been on approved leave for a length of time but the leave is now causing a hardship on the agency. The foundational case is Cook v. Army, 18 MSPR 610 (1984), as it lays out the elements required for an excessive absence removal:

1.The employee was absent for reasons beyond their control;

2.The absences continued beyond a reasonable time;

3.The supervisor warned the employee that he would be removed if he did not report to work; and

4.The agency showed that the position needed to be filled on a regular, full-time basis.

Take a look also at Curtis v. USPS, 2009 MSPB 134 and Combs v. SSA, 91 MSPR 148 (2002) in which excessive absence removals were upheld. For a couple of cases that went the other way for agencies, try Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016) and New v. DVA, 99 MSPR 404 (2005). We cover this topic in detail in our Absence, Leave Abuse & Medical Issues Week, so join us for that if you need more!
The materials presented here and on this website are for informational purposes only and are not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.  Should you need legal advice, you should contact an attorney. 

Ask FELTG: Is it recommended or not recommended to have a Proposing Official complete the Douglas Factors analysis, in addition to the Deciding Official?

January 10, 2019
FELTG takes the stance that the Proposing Official do the Douglas analysis. This is not legal advice, but a more fulsome training explanation.
Back in 1981, the Douglas decision itself said that the Douglas factors should be included in the Proposal Letter, thereby requiring the proposing official to do a Douglas factor analysis. Here’s a direct quote from Douglas:

 

Moreover, aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …
The “advance notice” is what we call the proposal letter, so there it is in black and white. Occasionally, we run into a practitioner who wants to argue that only the “aggravating” Douglas factors have to be included in the Proposal Letter, not ALL of them. Well, that’s correct. But do I really want to get into a fight about whether a particular factor is aggravating or mitigating? For example, is an eight-year length of service aggravating or mitigating? The smartest thing to do is include all the Douglas factors in the proposal, thereby satisfying the mandate in Douglas without the risk of mistakenly calling something mitigating when a judge decides it was actually aggravating.

 

Due process requires that we notify the employee why his removal is being proposed (thereby allowing him to defend himself), then make the decision. That notice goes into the Proposal Letter, followed by a decision on the proposal in the Decision Letter. In 2009, the Board said that it was OK for the Decision Letter to contain penalty factors not in the Proposal Letter, reasoning that due process did not require prior notice of facts related to the penalty, only to the actual misconduct. Well, the Federal Circuit Court of Appeals thought that was stupid and reversed the Board, thereby ruling that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, 2010-3021 (Fed. Cir. 2011).

 

If you think about it, it just makes sense. The employee should be allowed to defend himself, to correct the record BEFORE a decision is made. If the Proposal Letter does not contain the Douglas factors, and the Deciding Official relies on an incorrect Douglas factor (e.g., mistakenly believing that the employee has poor performance or did not apologize for the misconduct), the employee has been denied the opportunity to defend himself.

 

Given that Douglas requires that the penalty factors be in the Proposal Letter, and that Ward prohibits the Deciding Official from considering any penalty factors not in the Proposal Letter, here’s the best practice that we now teach:
  • The Proposal Letter analyzes all 12 Douglas factors in great detail using an attached Douglas Factor Worksheet.
  • The employee responds and defends herself.
  • The Deciding Official considers only the proposal and the employee’s response in making his decision.
If the DO agrees with the Douglas factor analysis of the proposal, he says nothing extra about the penalty assessment. Instead, the decision letter says something like this: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” That way, he avoids a Ward mistake.

 

If he disagrees with the assessment of the Douglas factors in the Proposal, or wants to consider other penalty facts that were not in the proposal, the safest thing for him to do is to notify the employee of these extra ruminations, and allow her to respond. Otherwise, he runs a risk of a due process violation. He may get away with not taking this extra step, but we don’t believe in taking chances when we can avoid them. We are exceedingly careful, at least when it comes to defending a removal.

 

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