EEO Reprisal is (Unfortunately) Alive and Well

, , ,

By Deborah J. Hopkins, November 15, 2022

Reprisal, or retaliation, is alleged in about half of all EEO complaints. It is the most common basis of discrimination in findings against agencies. Let’s look at a few situations where the EEOC has issued findings of EEO reprisal: reassignment, discipline, and retaliatory harassment.

Reassignment

An agency is permitted to reassign an employee for any legitimate, business-based reason, such as employee performance or agency business needs. But reassigning an employee that management views as a problem because of her EEO activity is not permitted under the law.

A Federal Bureau of Prisons medical officer complained about harassment “in the form of harsh supervision, denial of adequate staff assistance, daily intimidation, differential treatment, inappropriate schedule changes, and desecration of her religious practices.” According to the Commission, management reprised against the complainant when they told her she was “the problem” and “the one causing all of the drama” and that “problems always surround her.”  The AJ also found the complainant was subjected to reprisal when management reassigned her to a different work location. Gwendolyn G. v. BOP, EEOC Appeal No. 2021001396 (Oct. 18, 2021).

Disciplinary action

An agency is permitted to discipline an employee for misconduct as long as there is a nexus between the misconduct and the efficiency of the service, and provided the discipline is not motivated by that employee’s protected category or activity.

A program analyst filed an EEO complaint against two supervisors alleging hostile work environment harassment on Aug. 12, 2016. On Aug. 29, the supervisor reprimanded the complainant for discourteous behavior that occurred between the complainant and her supervisor on Aug. 10. The supervisor never put the reprimand in the complainant’s eOPF despite her statement she intended to do so.

The EEOC found a causal connection between the complainant’s protected activity and the agency’s disciplinary action because of the “close temporal proximity” between the two events. The AJ concluded, and the EEOC agreed, the reprimand was issued for the purpose of chilling the complainant’s EEO activity. Karolyn E. v. HHS, EEOC Appeal No. 2021003151 (Oct. 19, 2021).

Retaliatory harassment

Creating a hostile work environment because a complainant engaged in protected activity also violates the EEO statutes.A supervisory criminal investigator claimed retaliatory harassment when he was warned he “better be careful” and that if he continued to file EEO complaints “they will come after him.” An agency management official also confirmed that she informed the complainant about the comments and management’s attempts to legally “stop” his EEO activity. On top of that, another management official stated he believed the complainant’s EEO complaints were “ridiculous.” Also, agency management failed to timely approve or acknowledge the complainant’s leave requests, denied his telework request, and issued him a counseling memorandum without following the agency’s discipline policy. The EEOC found this conduct was motivated by the complainant’s protected activity and constituted unlawful retaliatory harassment. Terrance A. v. Treasury, EEOC Appeal No. 2020002047 (Sept. 13, 2021), request for reconsideration denied, EEOC Request No. 2022000139 (Feb. 9, 2022).

Reprisal is something easily avoided if you have the proper training and awareness. We’ll be teaching EEO counselors how to identify potential reprisal during our Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training Jan. 23-26, 2023. Hopkins@FELTG.com

‘Government Careers are Retirement Schemes for the Incompetent’

, , ,

By William Wiley, October 18, 2022

Oh, did you like that one?

Well, how about this: “Federal employment is basically welfare with an attendance requirement, but not a very strict one.”

Are you offended yet?

No?

Well you just might be if you read any more of the hundred or so comments relative to a recent media piece on the cable network MSN, entitled Afraid of Being Fired? Consider Working a ‘Forever Job’ with the Federal Government.

If you read the article in its entirety, you probably won’t find anything new. It’s a word salad of labor/employment terms, put together to gain the attention of readers who are predisposed to have a negative view of Federal civil servants. Take several labor/employment terms, throw them together in a scary way and voila! you have an article that makes people angry. And anger gets clicks. One of the saddest realities of life is that a lot of people would rather read something that gets them angry or reinforces a predisposition that they already hold rather than read something that might provide new information to consider.

This human tendency is nothing unusual. I remember a psychological study from the 1970s that looked at the viewing habits of people the weeks after they had bought a new car. Most people tended to pay closer attention to and view ads for longer if they were advertisements for the make of automobile that they had just bought even though they had already committed to that brand. They weren’t looking for new information for a future purchase. Rather, they were looking for confirmation that the make of car they had just bought was as cool as they thought it was. Psychologists call this tendency “confirmation bias,” a term you might have picked up on in your undergrad “Introduction to Psychology” course (if you hadn’t still been recovering from your party-full weekend).

Although reinforcement of a previously held belief isn’t a bad thing in itself, there is a dark side if you think about it. When someone spends time reading things that they agree with, they may forgo spending additional time to read something else with which they do not agree that could be helpful. If you bought a new Ford and then read car ads only about Fords, you might neglect to read that article that provides evidence that a Toyota is a better long-term investment. That would be helpful information for you the next time you buy a car.

With this background in human behavior, how should those of us who believe that the Federal civil service is an honorable, hard-working, and honest calling respond when someone confronts us with this kind of misinformed nonsense? Well, being experts at firing bad people from government, and with a touch of background in psychology, we here at FELTG humbly suggest the following:

  1. As a society we want it to be harder to fire a civil servant than a typical employee in the private sector. That’s to protect us citizens from a government composed of partisans interested mainly in their personal philosophy. Try out this thought experiment: If you are a conservative, do you really want a government filled with a bunch of socialist liberals giving away our tax dollars to dangerous undocumented immigrants? Or, if you are a liberal, do you really want a government filled with a bunch of fascists giving away our tax dollars to fat-cat billionaire polluters? If we did not have extra protections for career civil servants, every time we changed from a liberal to conservative White House, we could expect a significant change from one biased civil service to another biased civil service. The extra protections provided by law to Federal employees is intended to keep that sort of patronage from happening.
  2. Career civil servants have already proven themselves to be above average employees, theoretically among the best and the brightest. First, they have won a merit-based competition for their jobs. Then, they have survived probationary periods (during which they can be summarily dismissed) that are much longer than probationary periods in the private sector: one, two, and sometimes of even three years in length. After surviving these hurdles, a claim that they can no longer do a good job should receive scrutiny. They have proven themselves to warrant continued employment. There should be proof when it is claimed that they do not.
  3. These extra-protections that career civil servants have by law are not really that onerous for an employing agency IF the agency knows what it is doing. Here is all that it takes to fire a bad government employee:
    • The supervisor has to tell the employee what to do. That can be done by giving the employee performance standards or work instructions. There’s no particular form this notification must take. It can be as simple as an email or even oral direction. It would be hard to argue that an agency should be able to fire an employee for not doing something that the supervisor never said had to be done.
    • If the employee makes a mistake and does not do what the supervisor says needs to be done, the supervisor has to tell the employee about the mistake and usually has to give the employee the chance to behave correctly. This can be done through the initiation of either progressive discipline or a performance improvement plan. Unless the employee’s mistakes are causing significant harm, sometimes this might take two warnings. But hardly ever any more than that. Yes, this is more than is required in the private sector where an employee can be fired for a first offense of coming to work five minutes late. But given the goal of our society of having a neutral, non-political civil service, this extra step should not be a big deal.
    • If the employee continues to make mistakes, the supervisor has to give the employee written notice of what has been done wrong and allow the employee to offer a defense or explanation. Once the supervisor issues this notice, the employee must be paid for another 30 days, although there is no mandate that the supervisor keep the employee in the workplace to make even more mistakes. When the law was passed to require this 30-day paid notice period, one of the sponsors of the bill said that 30 days of salary would act as a type of severance pay, allowing the individual some time to find another job. You and I may not think such largess is warranted, but we still would need to concede that these last couple of pay checks are not a significant bar to firing the employee.

That’s it. The employee is now off the government payroll and once more a private citizen. There are a few exceptions and twists to the above, e.g., sometimes the supervisor needs to give the employee only 7 days of a paid notice period instead of 30, or maybe the harm caused by the employee is so significant that there is no need to give the employee a second chance. However, in most situations, not much different from the above is required from one case to the next.

Once the employee is fired, the agency may have to produce evidence that the removal was justified. And for Federal civil servants, “justified” means that it is either probable or possible that the individual really was a bad employee. These are significantly lower burdens of proof than the oft-cited “beyond a reasonable doubt” proof burden required in criminal cases. If a supervisor cannot come up with either preponderant or substantial evidence of bad employee performance or conduct, then the protections against unfair treatment for Federal employees do their job and the employee is entitled to be restored to the government payroll.

In 1883, Emma Lazarus wrote: “Give me your tired, your poor, your huddled masses yearning to breathe free.” In recognition of the 44th anniversary this October of the Civil Service Reform Act of 1978, the law that defined these civil service protections above and made it relatively easy to fire a bad government employee, with apologies to Ms. Lazarus, I would say, “Give me your incompetent, your lazy, your no-good civil servants who think they are on welfare in a forever job.” Using the procedures in the CSRA, a FELTG-trained practitioner can take it from there.

So, if I’m so darned smart, why don’t I do that for you? Hey, I’m retired! Ain’t nobody got time for that. Wiley@FELTG.com

Employees Can Be AWOL Even if at Work or Working Elsewhere

, , ,

By Dan Gephart, September 12, 2022

Only six percent of American workers who have been teleworking since the pandemic began want to return to the physical workplace, according to a recent poll.

You know that there are more than a handful of people at your agency who feel the same way. What if one of those employees just never came back to the physical workplace and just kept working from home. What would you do?

Let me spell it out for you.

A-W-O-L.

But they’re still working, you say. Yes, but are they working in the location where they were told to report? No? Well then it looks like you have a clear-cut case of Absence Without Leave.

As FELTG President Deb Hopkins pointed out during the recent training session What You Think You Know About AWOL is Probably Wrong, there are foundational MSPB cases going back to the 1980s on AWOL. The newly quorumed MSPB has already decided AWOL cases. And there are so many AWOL cases in between that you should have little problem finding one with a similar fact pattern to yours. As Deb said during the training, “a lot of employees have gone AWOL over the last 40 years.”

Are you still hesitant to charge AWOL for an employee who works remotely despite orders to return to the physical workspace?  Well, the MSPB has ruled that an employee doesn’t even need to be “absent from the work site to be found AWOL.” Buchanan v. Dep’t. of Energy, 247 F.3d 1333 (2001).

There are several examples of this, including the employee successfully charged with AWOL for conducting personal business while on duty (Mitchell v. DoD, 22 MSPR 271 (1984)) and the employee removed via AWOL for sleeping on the job. Golden v. USPS, 60 MSPR 268, 273 (1994).

And then you have Mr. Lewis. The Bureau of Engraving and Printing employee, still seemingly dismayed by a change of shifts two years previously, refused to obey his supervisor’s order. He was told that he only should return to work only if he was “willing and able to report for duty.”

Lewis took his supervisor’s directive to mean that he was on “approved leave,” and could take his time to determine if he wanted to continue working. The agency disagreed with his assessment and charged him with AWOL. The MSPB agreed with the agency. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

If you missed Deb’s recent session, join us for Feds Gone AWOL: Understanding the Charge and Applying it Correctly, which will be held on October 6 from 1-2 pm ET, and get yourself up to speed on this important charge. Gephart@FELTG.com

EEOC Case Illustrates the Ugliness of Harassment Based on Disability

, , ,

By Deborah Hopkins, September 12, 2022

Members of the FELTG Nation are likely familiar with EEO cases where agencies fail to accommodate a complainant’s disability, but there’s another ugly side of disability discrimination that sometimes arises – hostile work environment harassment based on the complainant’s disability. We saw this in a fairly recent EEOC case, Damon Q. v. DOD, EEOC Appeal No. 2020003388 (Aug. 9, 2021).

Imagine you have a visible physical disability, and a high-level supervisor mimics your disability and the way you do your job in front of a room full of your co-workers. This exact thing – and more – happened to a supply technician at DLA, a left-hand amputee who, among other things, alleged:

  • During a safety re-enactment meeting in front of the workgroup, the Director mimicked the complainant’s physical disability by “put[ting] his arm up with his elbow bent” and demonstrating the way the complainant performed the task, which humiliated and embarrassed him.
  • After the meeting, the complainant approached the Director to talk to him about his conduct during the meeting, and the Director responded in an intimidating manner.
  • While walking away from the Director because of his intimidating response and mannerisms, the Director walked behind Complainant talking aggressively about his physical disability.
  • A few weeks later the complainant received an email from the safety representative stating that the complainant chose not to come to the regularly scheduled meeting because he did not want to participate in management meetings. This was a misrepresentation of his request to not be required to interact with the Director who had mimicked his disability.

EEOC looked at the facts of this case and disagreed with the AJ, who granted summary judgment for the agency. Interestingly, though, the Commission said the material facts were not in dispute and summary judgment was appropriate – for the complainant. The Commission found the agency created a hostile work environment because the unwelcome conduct based on the complainant’s disability was sufficiently severe or pervasive:

“…[W]e note that in evaluating whether the conduct is severe or pervasive enough to create a hostile work environment, the harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. (citation omitted). In this case, we note that Complainant attested that he felt threatened, embarrassed, and humiliated by the Director’s impersonation of him with his impairment during the safety reenactment. Complainant maintained, moreover, that the Director was also aggressive towards him after he complained to the Director that the mimicking of his disability was offensive towards him. We note that employees observed that Complainant and the Director engaged in a “heated” conversation after the reenactment, and a Material Handler attested that he observed the Director getting closer and closer to Complainant to the point of Complainant putting his arm up between the two of them. As noted above, the Director did not dispute that he demonstrated the crate inspection as if he had no left hand to show that Complainant was not properly performing the task…

According to Complainant, he was so humiliated by the Director’s mimicking of his disability in criticizing his performance in front of employees that he communicated to the Deputy Director, among others, that he no longer wished to attend meetings wherein the Director would be present. Rather than immediately addressing Complainant’s request and concerns of a hostile work environment, the Agency generated CAC meeting minutes noting that Complainant did not want to attend the meeting because he did not want to meet with management. Complainant further received emails wherein he was accused of having a conflict with management. Complainant believed that the meeting minutes and the emails cast him in a negative light, as he only wanted to be away from the Director and did not have a conflict with management as a whole. Upon review, we determine that a reasonable person in Complainant’s circumstances would find that management’s actions were severe enough to create a hostile work environment based on disability… (Damon Q., above, p. 8-9).

The EEOC found the agency liable because the actions were committed by a director and the agency did not take prompt, effective corrective action. When handling disability cases, be careful not to stop at reasonable accommodation, but also be aware that harassment isn’t part of the equation. We’ll discuss in more detail during the virtual event EEOC Law Week, September 19-23.  Hopkins@FELTG.com

Confidentially Speaking: Legitimate Reason Needed to Request Medical Info

, , ,

By Michael Rhoads, September 12, 2022

Think of a personal secret you’ve been keeping.  Now imagine that, as part of an investigation, you must divulge that secret. You assume that the investigators will keep the secret confidential, only to find out that personal secret has been published for all to see online. This might sound like a plot line to a teenage drama, but revealing confidential information happens, intentionally and unintentionally, during investigations.

As part of Section 501 of the Rehabilitation Act of 1973, an employee’s medical information should be treated as confidential. Agencies often find themselves on the losing side when an employee’s medical information is disclosed, no matter the intent of the disclosure. A few recent EEO cases illustrate just how costly it can be when agencies improperly disclose or improperly request medical information.

Augustine V. v. U.S. Postal Serv., EEOC Appeal No. 2020001847 (Aug. 16, 2021)

The EEOC increased the amount of non-pecuniary damages from $25,000 to $70,000. The complainant, a city carrier at the United States Postal Service, had his medical information displayed publicly on the agency form used to request overtime or auxiliary assistance. The manager instructed the complainant to put his medical information on the form. Also, the complainant was not given a reasonable accommodation for his medical condition. The agency gave him a light-duty assignment, but the work he was given was completed in a few hours each day, and not over a full day’s work. The complainant was forced to use sick leave to make up the balance of the day.

The agency had not complied with orders from the EEOC in a previous case, which affected the outcome of this case. In the previous case brought by the complainant in 2017, the EEOC found the agency failed to make a good faith effort to accommodate and granted him compensatory damages. The agency opined that it had accommodated the complainant sufficiently in 2017. In this subsequent case, however, the EEOC disagreed with the agency over the accommodation.

The EEOC found the agency’s accommodation to be insufficient and increased the non-pecuniary damages from $25,000 to $70,000.

The EEOC wanted the agency to conduct a supplemental investigation to determine the compensatory damages, which it did not.  Also, the agency failed to train and discipline the management official responsible for the disclosure of the complainant’s medical information. A timelier compliance with the EEOC’s orders, and especially a timelier accommodation, might have saved the agency from the increase in non-pecuniary damages.

Salvatore K. v. Dep’t of Justice, EEOC Appeal No. 0120182095 (Jun. 23, 2021)

A contract company working with the US Marshals Service terminated a court security officer (CSO). The CSO is contracted to provide “security to the federal court and its judicial officers, witnesses, defendants, and attorneys.” The contract company is obligated to have their CSOs “… undergo and pass an annual examination …”  The complainant was diagnosed with borderline Type II diabetes in 2005.

During the annual examination in August 2013, a doctor cleared the complainant for duty as “medically qualified.”  A few months later, a second doctor reviewed the report and issued a medical review form to the complainant requesting ten different types of medical data from the complainant’s hemoglobin measures to a complete history of his medications. The first doctor responded to the second doctor’s medical review form by declaring the complainant medically fit for duty. The second doctor wasn’t satisfied with that response and issued a follow-up medical review form requesting an additional eleven different types of medical data.

The complainant did not comply with one of the initial requests to test his blood sugar four times a day from his fingers since it would interfere with his ability to hold a gun. In June 2014, the complainant’s district supervisor asked if he had any additional information to submit to the agency. The complainant declined to offer any further medical data. Six days later, he was terminated from his CSO position for failing to provide all documentation to determine his medical qualification.

In March 2015, the complainant filed an EEO complaint on the basis of disability, claiming the agency “subjected him to harassing, excessive, and unduly burdensome medical assessments and to requests for documentation.” The AJ issued a decision without a hearing in favor of the agency. On appeal, the EEOC reversed the AJ’s decision and found in favor of the complainant.

The EEOC found the agency did not prove its case for a few reasons. The complainant was able to perform his duties and was not a direct threat to himself or others.  The agency relied upon too broad of a series of generalized medical requests and not an individualized assessment of the complainant or any observations of his work performance.

The EEOC also took the guidance from the American College of Occupational and Environmental Medicine (ACOEM) to task. The ACOEM’s guidance violated the Rehabilitation Act by relying on generalized stereotypes rather than individualized assessments, which is required by the Rehabilitation Act.

The point of these two cases is clear: An employee’s medical information is confidential. There are legitimate, business-based reasons to request medical information. However, that information should be treated more like a game of Operation than Go Fish.

To learn more about how you and your agency can properly request medical records from an employee, join FELTG for Absence, Leave Abuse & Medical Issues Week, September 26-30 from 12:30-4:30 pm ET each day.

Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com

This Isn’t Harassment: Supervision, Not Hostile Work Environment

, , ,

By Deborah Hopkins, August 16, 2022

One of the topics we’ve been discussing in recent FELTG classes is “other harassment,” that is, harassment that’s not based on protected EEO categories. And one of the most common questions we’re asked is this: At what point a supervisor crosses the line from effectively supervising employees to creating a hostile work environment?

Hostile work environment harassment is a term of art in the EEO world, and requires a complainant to

prove three things:

  1. They were subjected to unwelcome conduct,
  2. The conduct was based on their protected EEO category, and
  3. The conduct was so severe or pervasive that it altered the terms, conditions, and privileges of employment.

The below supervisory actions, if exercised in a reasonable manner, are NOT harassment:

  • Assigning work
  • Setting deadlines
  • Creating a work or telework schedule
  • Assessing performance or providing feedback
  • Managing work groups
  • Setting a dress code
  • Disagreement on management style or decisions

The list is not exhaustive. The statute that gives supervisors this authority is 5 USC 301-302, which says the head of an executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business … and to delegate to subordinate officials the authority vested in him … by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency.

Harassment is easy to allege, but not easy to prove. Let’s look at a couple of recent cases.

Case 1

The employee alleged harassment and reprisal when his supervisor avoided him or walked away from him on multiple occasions, and he claimed that his supervisor often responded to his questions by stating he did not know the answer and failed to provide him adequate guidance. He also claimed his chain of command treated him in a “hostile manner” when his supervisor “yelled” at him that he needed to fix something, and when his supervisor “grabbed [his] arm to pull [him] into a room” and “yelled” at him about reporting improper patient care. In addition, he claimed that the chief of staff “yelled at him, accused him of ‘making up our service data,’ and told him to ‘shut up’ during a meeting.

The MSPB, which had jurisdiction over this case because it was an IRA appeal, said that while these actions were indicative of an “unpleasant and unsupportive work environment,” they did not violate the law. Skarada v. VA, 2022 MSPB 17 (Jun. 22, 2022).

Case 2

In a recent case before the EEOC, a complainant alleged multiple incidents of harassment based on race, color, sex, age, and reprisal. Among the incidents she identified:

  • She received a Letter of Warning (we at FELTG recommend you NEVER issue these)
  • She was told that the Letter of Warning was serious and could lead to future disciplinary actions
  • Her access to work-related databases was revoked
  • A supervisor went through her desk to look for documents
  • A supervisor broke a souvenir that was on her desk
  • She did not receive assistance from upper-level management after she informed them her supervisor was targeting her
  • She was eventually removed

In response to the allegations of harassment the agency provided legitimate reasons for its actions, including that the complainant had engaged in 198 specifications of misconduct, including violations of the Privacy Act and Rules of Conduct of Maintenance of Personnel Records, as well as “unauthorized use of non-public information, intentional failure to observe any written regulation or order prescribed by competent authority, and violating the Rules of Behavior.” Also, the complainant did not respond to any of the charged misconduct.

EEOC said, “The image which emerges from considering the totality of the record is that there were conflicts and tensions in the workplace that left Complainant feeling aggrieved. However, the statutes under the Commission’s jurisdiction do not protect an employee against all adverse treatment … Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Here, the preponderance of the evidence does not establish that any of the disputed actions were motivated in any way by discriminatory.”  Kandi M. v. SSS, EEOC Appeal No. 2021002424 (Apr. 18, 2022)

Want to know more about Other Harassment? Join FELTG for the Federal Workplace 2022 virtual event the last week of August for a session on that very topic. Hopkins@FELTG.com

The Good News: New MSPB’s Recent Whistleblower Decision Makes a Lot of Sense

, , ,

By Ann Boehm, July 18, 2022

The new, fully constituted three-member MSPB (HOORAY!) sure surprised the heck out of me with its recent decision in Skarada v. Department of Veterans Affairs, 2022 MSPB 17 (2022). Skarada filed an Individual Right of Action appeal claiming whistleblower retaliation, and he lost the appeal. Although he made a protected disclosure, he did not demonstrate by good ol’ “preponderant evidence” that he suffered a “covered personnel action.”

The MSPB tends to interpret “covered personnel action” quite broadly, but not in this case. In the decision, the MSPB reminds us that the employee has the burden to show a “significant change” in duties, responsibilities, or working conditions. Id. “[O]nly agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities, and are likely to have a chilling effect on whistleblowing . . . will be found to constitute a covered personnel action.” Id.

So, what, pray tell, did Skarada think was reprisal? He said his chain of command removed some of his previous duties and responsibilities. He was told to stop attending certain meetings and was excluded from the interview and hiring process for two new hires – not enough to be a significant change in his duties or responsibilities, according to the MSPB.

He also claimed his chain of command subjected him to a hostile work environment. (We see that allegation a whole heck of a lot!) The alleged offenses: “his supervisor avoided him or walked away from him on multiple occasions, often responded to his questions by stating he did not know the answer and failed to provide him adequate guidance.” Id.

In addition, he claimed his chain of command treated him in a “hostile manner.” His supervisor “yelled” at him that he needed to fix something. His supervisor “’grabbed [his] arm to pull [him] into a room’” and “yelled” at him about reporting improper patient care; and the Chief of Staff “yelled at him, accused him of ‘making up our service data,’ and told him to ‘shut up’ during a meeting. Id. Lots of “yelling,” eh?

He claimed the meeting exclusions were also part of the hostile work environment. Plus, apparently the agency “convened investigations against him.” Id.

But was any of this harassment? Not according to the MSPB. Skarada failed to show that the agency’s actions “constituted harassment to such a degree that his working conditions were significantly and practically impacted.” Id.

In my humble opinion, the way the MSPB explains these allegedly harassing working conditions is good for the Republic: “[h]is chain of command may have been unresponsive to his requests or untimely in providing guidance, but such deficiencies do not amount to harassment.” Id. (emphasis added). Also, three incidents of “yelling” were “spread out over the course of a year and, while unprofessional, were not sufficiently severe or pervasive to significantly impact the appellant’s working conditions.” Id. (emphasis added).

The investigations were only “inconvenient” and did not result in any action against Skarada. The “remaining allegations represent mere disagreements over workplace policy.” Id. (emphasis added). Even though the MSPB acknowledged that he may have had an “unpleasant and unsupportive work environment,” he did not demonstrate a “significant change in his working conditions” under the Whistleblower Protection Act.

There you have it, my friends. Being unhappy at work does not equate to a hostile work environment. I don’t recommend supervisors yell at and grab their employees, but this case shows that a hostile work environment, at least in the whistleblower context, is much more than an unpleasant work environment. And that’s Good News. Boehm@FELTG.com

Editor’s Note: Register now for the 60-minute webinar The Why, When, and How of Whistleblower Law Under the New MSPB on September 8.

She/Her/Hers, He/Him/His, They/Them/Theirs: Pronouns in 2022

, , ,

By Deborah Hopkins, July 18, 2022

There are many polarizing topics (abortion, gun control, COVID-19 vaccines, political affiliation) in this country. We’re going to address another topic that generates feelings almost as strongly in certain circles: pronoun use and gender identity.

Last month, the EEOC introduced a gender marker option X for non-binary individuals who wish to file complaints. The State Department allows gender X on passports and travel documents, and some agencies are considering requiring all employees to identify their preferred pronouns in their email signatures.

Pronouns are an important piece of the gender identity equation, including within the context of the workplace. Refusal to use an employee’s preferred pronoun, or name, has been problematic for agencies in recent years, not just from a liability perspective but because of the impact of the harassment on the complainants.

As more employees share their pronouns in email signatures, on social media, and in participant lists on Zoom sessions, it’s worth a review of the law on this topic.

Pronouns fall under the sex discrimination umbrella of Title VII workplace protections, within the sexual orientation and gender identity (SOGI) category, and violations of pronoun or name use could result in illegal discrimination or harassment. Complainant v. USPS, EEOC Appeal No. 0120122376 (February 19, 2013), request for reconsideration denied, EEOC Request No. 0520130241 (Jan.10, 2014). EEOC recently addressed a specific question in a Q & A document:

Q: Could use of pronouns or names that are inconsistent with an individual’s gender identity be considered harassment?

A: Yes, in certain circumstances. Unlawful harassment includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive. In its decision in Lusardi v. Dep’t of the Army [EEOC Appeal No. 0120133395 (Apr. 1, 2015)], the Commission explained that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment. [bold added]. EEOC’s Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity, Q. 11. [bold added]

While intentional misuse can violate the law, accidental misuse of a transgender employee’s preferred name and pronouns does not generally violate Title VII. EEOC’s Sexual Orientation and Gender Identity (SOGI) Discrimination. Take, for example, Colleen M. v. USDA, EEOC Appeal No. 120130552 (May 25, 2016). In this case, the supervisor referred to the complainant, a trans female, as “Eric” even though the complainant no longer used that name.

There was no evidence the supervisor used that name intentionally, and “when it was brought to [the supervisor’s] attention that he made an error, he went to the union and explained to them that there was no malicious intent, and he apologized to Complainant.” This one instance followed by a prompt apology, did not state a claim.

A number of cases can help determine the point when pronoun misuse becomes severe or pervasive and creates a hostile environment. It’s a topic your agency is sure to deal with more frequently as the Administration continues its advancement of Diversity, Equity, Inclusion, and Accessibility (DEIA) in the Federal workplace. Training is a vital component to getting this right, so please bring your entire agency (supervisors, employees, and contractors) and join me on August 2 from 1 – 2pm ET for the webinar Promoting Inclusion: Pronoun Use and Gender Identity in the Workplace. Hopkins@FELTG.com

Don’t Ignore the Reasonable Accommodation Framework: Basic Mistakes Can Cost Dearly

, ,

By Deborah Hopkins, June 27, 2022

The reasonable accommodation process is an entitlement that every Federal employee has a right to pursue, regardless of the job. A recent EEO case, which originated back in 2010, caught my attention.

The case involved 10 complainants who all suffered from a medical condition called pseudofolliculitis barbae (PFB). According to the case, PFB is a chronic bacterial skin disorder that’s caused by shaving facial hair. PFB causes pain, skin irritation, pustules, rashes, sores, bleeding, scarring, and infection. Medically, PFB requires abstinence from being clean-shaven, and predominantly affects African American males.

The complainants worked as police officers, within the Pentagon Force Protection Agency. PFPA police officers are required to wear protective clothing and sometimes use personal protective equipment (PPE), as the job includes defending themselves and others against possible exposure to explosives, chemicals, or other weapons of mass destruction.

In 2010, the agency issued a new regulation that impacted police officers:

Supervisors shall ensure that all emergency response personnel are able to safely wear the Level C [Chemical-Biological-Radiological-Nuclear (CBRN)] PPE Ensemble at any time: facial hair that comes between the sealing surface of the face piece and the face or that interferes with the valve function is prohibited. Emergency response personnel who have a condition that interferes with the face-to-face piece seal or valve function shall not be permitted to wear the Level C CBRN PPE Ensemble. [bold added]

Practically speaking, this new regulation required PFPA Police Officers to be clean shaven because the CBRN ensemble would not seal properly if facial hair was present. The complainants, who up until that point had been permitted to have facial hair a quarter inch in length to accommodate their PFB, were now threatened with reassignment or removal if they did not shave their facial hair. They separately filed EEO complaints, alleging discrimination on the bases of race (African American), color (Black), and disability (PFB).

After a complicated procedural history including EEOC ordering supplemental investigations into the qualification standards for the jobs (which included the need for PPE), EEOC found the standard on facial hair was appropriate because it was job-related and consistent with business necessity to have PPE that sealed properly.

However, the EEOC also found that the agency failed to meet its requirements to consider effective accommodations, namely alternative PPE that would work properly even in the presence of facial hair, because the complainants had all “passed their annual mask fit tests, and there was no evidence that they were unable to perform the essential functions of their position with the waiver or that any incident occurred where they were in danger or risked danger to others due to a respirator mask failure in an emergency situation.”

In this request for reconsideration, the EEOC held to its decision in the original appeal:

In sum, the Commission found the Agency failed to meet its burden of proving that there was no reasonable accommodation that would enable Complainants to meet the existing standard or an alternative approach that would still allow the PFPA Officers to perform the essential functions of their position. The decision concluded the Agency’s imposition of a blanket policy requiring all PFPA Officers to be clean-shaven regardless of their medical condition violated the Rehabilitation Act.

Cleveland C. et al. v. DOD, EEOC Request No. 2020003894 et al. (Apr. 4, 2022).

Now 12 years later, we finally have an outcome. The agency missed one of the basic pieces of the framework: Consider alternative accommodations that will still allow employees to perform essential functions within their medical restrictions. I can’t help but wonder what the damages will amount to in this case, given that 10 complainants were impacted for over a dozen years.

As employees are returning to the physical office and different workplace standards are being implemented in this post-pandemic world, agencies should remember that every reasonable accommodation request should be given an individualized assessment. This is but one of the many aspects of the process that we’ll be discussing in our upcoming Reasonable Accommodation in the Federal Workplace webinar series, which begins July 21. Hopkins@FELTG.com

That Time a Supervisor Was Harassed by His Employee for Being Gay – and the Agency Was Liable

, , ,

By Deborah Hopkins, May 16, 2022

Every now and then, a supervisor in one of my classes will ask if they have a right to file an EEO complaint alleging harassment by a subordinate employee. I’ll tell them yes, they do have that right. I also tell them handling the harassment as a conduct issue is a much quicker process that yields rapid results and allows the supervisor to avoid the EEO complaint process entirely, if they prefer not to file.

How so, you might wonder?

Well, a supervisor who believes a subordinate is harassing him must simply set a rule of conduct (for example, do not refer to me as a “f*g” or “f*ggot”), and then discipline the employee if she violates the rule. [Note: We are using asterisks so that your agency’s firewall won’t block you from receiving this message. We recommend NOT using asterisks in establishing rules of conduct, reports of investigation, disciplinary letters, or other official agency documents.]

A few days ago, I came across a fairly recent EEO decision where a supervisory health system specialist at an IHS medical facility alleged harassment based on sexual orientation. The harassment was coming from a subordinate. The agency FAD acknowledged unwelcome conduct but said the conduct was not sufficiently severe or pervasive, and the complainant failed to take advantage of a key corrective opportunity provided by the agency.

The complainant was the employee’s supervisor and he did not discipline the employee for the conduct. The complainant appealed the FAD to the EEOC.

The EEOC reversed the FAD and found the agency liable for hostile work environment harassment.

Here are relevant details from the case:

  • Over a 21-month period, the employee engaged in at least nine incidents of harassment based on the complainant’s sexual orientation, including multiple uses of the words “f*g” and “f*ggot.”
  • Seven of these incidents included comments made to other agency staff or directly to, or within earshot of, at least four agency management officials. Examples of the employee’s comments included:
    • “If they want to pay me for fighting with a f*g all day, then I guess that is what I will do.”
    • “I hate [Complainant], that f*cking f*ggot!’”
    • “I have the ear of the Area Director and I am going to report your f*ggot *ss and everyone in this clinic for everything that is going on in this clinic.”
  • The complainant’s immediate supervisor, the CEO, informed him that the employee had been making derogatory comments about the complainant’s sexual orientation directly to the CEO. When the complainant questioned whether the CEO had taken corrective action, the CEO said that she had admonished the employee, and referred the complainant to the EEO Complaint process for next steps. The CEO admitted she did not discipline the employee who engaged in the harassing conduct because “she did not feel that it would be appropriate to interject herself …” into the situation.
  • The complainant said that he made multiple attempts to discipline the employee, but that the discipline was returned to him. The agency did not present a rebuttal to this statement.

Taking these facts into consideration, the Commission found a hostile work environment based on sexual orientation. It attributed liability to the agency because management officials did not take prompt and effective action once they became aware of the employee’s conduct. The Commission said it was improper for the agency to place the onus on the complainant to discipline the employee or file an EEO complaint, and further stated:

We remind the Agency that the EEO process is not a substitute for the Agency’s internal process. Moreover, we find that the inadequate responses from Complainant’s chain of command likely emboldened [the employee] to continue harassing Complainant, diminished his authority as her supervisor, and heightened the severity of the alleged incidents. Debbra R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120161305 (Jul. 26, 2016) (finding that when harassment is repeated, a supervisor’s failure to respond to instances of alleged harassment heightens the severity of the alleged act). As such, we find that [the employee]’s actions unreasonably interfered with Complainant’s work environment and management officials failed to take prompt and effective action.

Foster B. v. IHS, EEOC Appeal No. 2019005682 (Apr. 12, 2021).

The case didn’t discuss anything about the returned discipline the complainant alleged, and I can’t help but wonder if that was a deciding factor in the Commission’s decision. One thing is for sure, a lesson learned from this case: Any agency management official who has knowledge of harassing conduct has an obligation to take prompt, effective corrective action – even if the harasser is not in that person’s chain of command. A failure to act can cause agency liability, and potentially immeasurable harm to the victim.

To learn about making the Federal workplace a welcome and inclusive environment, join us on June 9 for Promoting Diversity, Enforcing Protections for LGBTQ Employees. Hopkins@FELTG.com