The Golden Doodle Who Wouldn’t Nuzzle: A Service Dog, or Not?

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By Deborah Hopkins, April 20, 2021

While preparing the materials for an upcoming training session Ricky Rowe and I are presenting at FELTG’s annual Emerging Issues in Federal Employment Law virtual forum, I came across a case that I thought prudent to share – especially because, as return to work orders are issued in the coming months, agencies are likely to see an uptick in requests for service animals and emotional support animals in the workplace.

In a recent case at the Department of Veterans Affairs, the complainant suffered from PTSD, depression, anxiety, and panic attacks. Because of her medical conditions, she requested an accommodation to bring her trained service dog, a golden doodle, to work. She informed the agency that her dog was scent-trained to recognize chemical shifts in her body when she was escalating into anxiety or panic attacks. The dog was trained to alert and calm her before she reached the panic stage. The complainant explained to agency management that her dog might bark in the process of alerting her to her escalating symptoms, as that was the dog’s alert mechanism.

The agency approved accommodation for a 30-day trial. During a meeting shortly thereafter, the dog repeatedly barked and was disruptive for more than 30 minutes. Because of the disruption,  management began considering removing the interim accommodation, but did not take action.

The dog became even more disruptive in a subsequent meeting. According to agency management, the dog appeared impossible to handle. During the meeting, it continually barked, and jumped on the complainant multiple times, and she was unable to calm it down.

The complainant explained the dog’s behavior was an alert to her oncoming anxiety attacks. She said that the dog was trained to stand in front of her, put her paws on her shoulders and nuzzle her to calm her down. Agency management’s account of the events was that the dog was not nuzzling the complainant, but jumping on her and others in the workplace, and was uncontrollable.

As a result, the agency terminated the interim accommodation, stating that the dog was too disruptive and impossible to handle in the office. The agency invited the complainant to discuss alternative accommodations, including liberal use of leave when she was experiencing symptoms, but she maintained that other than having her service dog, there was no other useful accommodation.

The agency denied her request to keep the dog in the workplace, so she filed a complaint and the FAD found for the agency. On appeal, EEOC looked at the facts and said the agency was not obligated to allow the service dog in the workplace because the complainant “failed to provide evidence to adequately establish the need for the presence of her dog in order to assist her in performing [her] essential functions.”  EEOC also said they “cannot reasonably conclude that the Agency’s decision to terminate its trial approval constitutes an unlawful failure to accommodate.” Kathie N. v. VA, EEOC No. 2019003312 (Sep. 22, 2020).

So remember, if an employee wants to bring a service animal into the workplace, having a disability is not enough. The employee must establish the need for the specific use or presence of the service animal as accommodation, and that no other accommodation would be effective. For more on this, join us for the session Barking Up the Wrong Tree? Service and Therapy Animals in the Workspace, part of Emerging Issues in Federal Employment Law, April 28. Hopkins@FELTG.com

Being a Member of Protected Class Is Not a Free Pass to Harass Others

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By Meghan Droste, April 20, 2021

It’s hard to believe it’s been more than a year since I’ve been able to teach a class in person. I’m so grateful that we live in a time when technology makes it possible for us to continue teaching and learning in a virtual environment. Even in this past year of dramatic changes, there have been a few constants — my cat still demands treats regularly, the weather in New England remains unpredictable (I’ve received reports from friends that it is snowing there today, and yes, it’s mid-April as I write this), and many people still have questions and concerns about holding an employee accountable when there is the possibility the employee might file an EEO complaint.

I get the hesitation. Who wants to invite a complaint, and the time and effort it requires to respond to one, if there is a way to avoid it? That’s an understandable concern. But as a recent Commission decision reminds us, not holding an employee accountable can lead to consequences as well. In Zora T. v. Department of Justice, EEOC App. No. 0120171654 (Mar. 23, 2021), the complainant alleged that a coworker harassed her repeatedly based on her sex.  The harassment included following the complainant in what multiple employees perceived as a stalking manner, physically blocking the complainant from leaving a room, repeatedly invading the complainant’s personal space, and grabbing the complainant from behind and lifting her off the floor in a “bear hug.”  The agency verbally reprimanded the coworker and proposed a five-day suspension that it mitigated to one day. Despite this, the harassment continued. The complainant’s supervisor testified that management was afraid to discipline the coworker because she served as the LGBT Program Manager.

The case was before the Commission on an appeal from the administrative judge’s grant of summary judgment in the agency’s favor.  The Commission noted that summary judgment was not appropriate in part because there was a dispute of fact as to whether the agency took appropriate corrective action against the coworker. From the facts presented in the decision on the appeal, it seems clear that the agency’s actions were not sufficient to avoid liability, if for no other reason than that the harassment continued. While management may have been concerned that the coworker would have filed a complaint of sex discrimination if they took more severe disciplinary action, that concern does not change the agency’s obligations to the complainant. Regardless of whether the harasser might subsequently file a complaint, an agency still has an obligation to take prompt and effective corrective action when it learns of harassment.

Sometimes, despite your best efforts, employees will file EEO complaints. That’s their right and there is nothing inherently wrong with that. What is wrong is failing to act simply because you are concerned that a harasser will file a complaint if you hold her accountable. Droste@FELTG.com

Transition Talk: Be Honest and Positive, and Offer Training to Appointees

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By Dan Gephart, March 2, 2021

This is the final article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new Administration. See our previous articles in the series:

 

Ann Boehm experienced a number of presidential transitions during her 26-year Federal career. Her most recent transition was in 2017. Ann was working for the U.S. Marshals Service, where more than 90 presidentially appointed marshals were potentially entering on duty.

“During the 2017 transition, we decided to mandate a training course for the new U.S. Marshals,” Ann said. “The training included procurement, appropriations, and personnel law, as well as other things regarding the day-to-day running of the U.S. Marshals Service. The Marshals greatly appreciated the training. Presidential appointees are busy people, but agencies committed to providing them with effective training can ease the transition for everyone involved.”

DG: What is the best advice you have ever given — or would like to have given — to a presidential appointee?

AB: I think it is important for presidential appointees to listen to the career Federal employees. Sometimes the appointees undervalue the career feds. They also may be coming from the private sector or even state or local government, and they need to get assistance from the career employees on how procurement, appropriations, and personnel (from hiring to firing), among other things, all work in the Federal government.

DG: What is your advice for FELTG readers working with new presidential appointees?

AB: The most important thing to do when working with new presidential appointees is to maintain a positive attitude. Most human beings do not like change, and most presidential appointees come into an agency looking to change things. Career Federal employees can sometimes be overwhelmed by appointees coming in and wanting to alter the way the agency runs.

It’s important to understand the appointees’ motivation, and also to educate them if an idea is unlikely to succeed. In my experience, the appointees want to succeed, and a logical argument can go a long way toward helping them understand agency culture and what is likely to be the best way to further the agency’s mission.

DG: What is the most important skill necessary to survive and thrive in a new administration?

AB: I think the most important skills are flexibility and honesty. Do not be afraid of new ideas, but be prepared to explain when things are not working.

Ann will be one of the presenters at the upcoming MSPB Law Week, FLRA Law Week and the FELTG Forum 2021: Emerging Issues in Federal Employment Law. If you’re interested in bringing Ann Boehm to your agency for training, email Gephart@FELTG.com.

Does Saying ‘All Lives Matter’ Create a Hostile Work Environment?

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By Deborah Hopkins, February 10, 2021

Last summer, at the height of the Black Lives Matters protests, the U.S. Office of Special Counsel (OSC) issued guidance on whether Federal employees were permitted to display Black Lives Matter paraphernalia in the workplace. According to OSC, the phrase “Black Lives Matter” (BLM) has become a motto for protesters and organizations “seeking to raise awareness of, and respond to, issues associated with racism in the United States.” Because BLM is centered on issues, it is not considered political organization. Therefore, employees are not prohibited from wearing or displaying BLM merchandise in the workplace.

As with any movement, there are supporters and non-supporters of BLM. One of the catchphrases of opponents to BLM is “All Lives Matter.” Much has been written about how and why this phrase is offensive to Black individuals, even when the perpetrator claims to have non-racist intentions.

So let’s look at a hypothetical, coming to a workplace or Zoom meeting near you. Employee X comes to work wearing a BLM shirt. Employee Y, a co-worker, looks at the shirt and says to Employee X, “All Lives Matter.” Employee X contacts an EEO counselor and claims hostile work environment harassment based on race.

Which leads me to the obvious question: Can a statement such as “All Lives Matter” create a hostile work environment?

I know this is a divisive topic. I know I’m taking a risk even writing about it. There are a lot of strong feelings about BLM and ALM. But this stuff is happening, right now, maybe in your agency, and you need to be prepared to deal with it – the legal way.

Harassment can be a difficult subject to handle. When you find yourself faced with what appears to be a hot-button subject such as this, take a deep breath or two, and remember to always come back to the framework: 1) What are the elements of a hostile work environment, and 2) Is there agency liability?

Unwelcome Conduct

In a hostile work environment case, the first step of the analysis is to identify the conduct that is unwelcome in the workplace. Unwelcome conduct might be words, jokes, name-calling, use of epithets or slurs, threats, email forwards, touching or physical assaults. Conduct is also broad enough to include objects or pictures worn or posted in the workplace.

The primary focus in these cases is on whether the conduct was unwelcome to the victim, not on what the speaker’s intent was – though malicious intent can go to severity.

The question: Could a coworker uttering the phrase “All Lives Matter,” or wearing a shirt or posting a sign in their office with that slogan on it, be considered unwelcome conduct?

____ Yes

____ No

Based on Protected EEO Category

The next element to consider is whether the conduct was based on a protected EEO category: race, color, national origin, religion, gender, disability, age, genetic information, or reprisal.

The question: Is the statement “All Lives Matter” related to an EEO category?

____ Yes

____ No

If so, which category or categories?

____________________________________________________________________

Severe or Pervasive

When determining whether the conduct creates a hostile, intimidating, or abusive work environment, the severity and/or pervasiveness of the conduct must be considered. Some of the items to think through include:

  • Is the complainant offended by the conduct?
  • Would a reasonable person be offended by the conduct?
  • The frequency and duration of conduct
  • The egregiousness of the conduct
  • The vulnerability of the victim, considering factors such as age and mental capacity
  • The makeup of workforce — is the victim the only employee in the EEO category?
  • The social context
  • Whether the conduct is physically threatening or humiliating
  • Whether the conduct unreasonably interferes with an employee’s work performance
  • Relative positions of perpetrator and victim

The question: Is one utterance of “All Lives Matter” from one co-worker to another, severe or pervasive enough to alter the terms, conditions, or privileges of employment?

____ Yes

____ No

Does this change if the person making the statement is a supervisor?

____ Yes

____ No

Note: While most EEO case law says that a one-time instance of offensive conduct does not generally rise to the level of a hostile work environment, there are a number of cases where once was enough. Here are a few to get you started: Lashawna C. v. Department of Labor, EEOC Appeal No. 0720160020 (Feb. 10, 2017); Frank v. USPS, 2013 EEOC Appeal No. 120110223 (Jan. 31, 2013).

Agency Liability

The hypothetical above didn’t say anything about the agency’s response to the incident, so we don’t have enough information to discuss liability. That’s another article altogether. But I can tell you, these kinds of incidents have occurred and are likely to occur, and the agency has a responsibility to protect its employees from harassing conduct. If you see or hear anything like this, it’s critical to intervene immediately.

I don’t have a definitive answer about whether this one statement would create a hostile work environment. As of this morning, there isn’t an EEOC decision involving the term “All Lives Matter.” I have to think that’s because of timing. Perhaps those cases are making their way through the EEO process now because ALM wasn’t a thing until fairly recently. There are, however, a few cases where “Black Lives Matter” comes up as a search term. If you’re interested, here are a few citations: Emerson P. v. USDA, EEOC No. 2019001823 (Mar. 20, 2019); Sherman H. v. Reclamation, EEOC No. 2019002422 (May 7, 2019); Jaqueline L. v. DLA, EEOC No. 2019001449 (June 23, 2020).

If you’re free March 2-4, join FELTG for the virtual training class Conducting Effective Harassment Investigations, where we’ll give you lots more on this topic and more, in three half-day segments. Hopkins@FELTG.com

Is Whistleblowing Different Under a Biden Administration?

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By Deborah Hopkins, February 10, 2021

We have a new President in the White House, there’s something you may not have realized: He sees things differently than the last guy who occupied 1600 Pennsylvania Avenue. At FELTG we try not to wade into the merits of politics; our job is to take what the current administration says about employment law topics, and relay those to you within the existing framework of law and regulation, plus any relevant Executive Orders. That said, there are certain ways in which the politics of the party in control impact what we teach and how we teach it. Take whistleblowing, for example.

Federal employees who make protected disclosures about waste, fraud, or abuse in the government are considered whistleblowers, and the highest level of workplace protections of any employee group. Higher than veterans, people with disabilities, union officials, religious minorities, LGBTQ individuals, and more. The law says that whistleblowers may not be fired, disciplined, or otherwise mistreated because of their disclosures. If an agency takes an action against a whistleblower, it needs to provide clear and convincing evidence the action was not taken because the employee blew the whistle.

Under President Trump’s administration, there was a focus on firing leakers who shared inside information with the public. Firing a leaker is perfectly legal, unless of course the leaker is a whistleblower – in which case it’s against the law. So, over the last four years agencies concentrated on looking closely at the nature of the disclosure (the “leak”) to determine whether it rose to the level of protected whistleblower activity, or whether it was simply misconduct. If it was a close call, many agencies took the side of management and adopted the stance the disclosure was not protected, and handled the employee accordingly.

Today, we still have to look at the nature of the conduct to determine if it is protected activity, but under President Biden the philosophy about whistleblowers has shifted. Instead of viewing whistleblowers as leakers, the President (when a candidate and then as President-elect) has spoken about the need for employees to disclose waste, fraud, and abuse in the government – heck, he even hired a high-profile whistleblower to be part of his transition team. So now, if there’s a close call, perhaps we’ll see agencies take the side of assuming the disclosure was protected.

This Republican/Democrat dynamic is unsurprising. Republican administrations tend to be more pro-management and Democratic administrations tend to be more pro-employee. Members of both parties have talked publicly, and emphatically, about the importance of protecting whistleblowers – but traditionally hairs have been split when looking at what was disclosed and whether it was protected activity.

What does this mean for whistleblowing in 2021? You might expect, as political appointees are confirmed or placed in your agency, for the tone about whistleblowing to change. Perhaps you will be encouraged to settle existing reprisal complaints. Perhaps whistleblowers will be urged to come forward with disclosures. Perhaps Congress will pass a new law with more protections.

And perhaps not. Regardless of who is in the White House, whistleblower reprisal is going to occur – though our goal at FELTG is to educate the powers-that-be so that reprisal eventually stops altogether. That might be your job too, and now is a good time to check in with what you know, and what you might not know, about whistleblower protections. As timing would have it, Bob Woods will be covering the most important details in just 60 minutes during the February 25 webinar Why, How and When to Avoid Whistleblower Reprisal. We hope you’ll join us. It’s too important to miss.  Hopkins@FELTG.com.

The State of the Civil Service: The Whiplash is Real

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By Deborah Hopkins, January 25, 2021

For the last couple of Januaries, I have written an article on the state of the civil service. It provides a glimpse of where  we’ve been over the last year, and gives me a chance to point out the one or two significant changes we might be expecting.

This year, so many changes have taken place over just the last few days, the undertaking to summarize what’s happening is massive. But I’m up for the task if you have a few minutes to read it. Let’s look at what’s happening in the world of Federal employment law.

Federal Employee Morale

For decades, Federal employees have borne the brunt of public scrutiny. When one employee does something bad, somehow all 2 million-plus are unfairly painted as slackers who break rules and earn an easy paycheck on the taxpayers’ dime while not really doing any work. That is dead wrong, but such a perception deeply impacts morale.

Morale among employees has been even lower over the past few months as they have dealt with the physical and mental challenges of a global pandemic, a contested election, a riot at the Capitol, and tumultuous transition to a new administration.

Last week President Joseph R. Biden, Jr. put out a video where he directly addressed career civil servants, thanking them for their service and letting them know how important they are to a functioning government. “You’re running the show,” he said. The President’s words, combined with actions taken in his first few days, demonstrate that the Federal workforce is a priority.

Executive Orders

Just hours after being sworn in, President Biden signed two executive orders that directly impact Federal employees:

  • 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
  • 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

There’s a lot to unpack in these orders, including time-sensitive requirements for agencies, plus details on how the Supreme Court case Bostock v. Clayton County applies to the Federal government.

We’ll be sharing the most important takeaways and action items in the 60-minute webinar Changing Course: Understanding the Biden Executive Orders on Racial Equity, Gender Identity, and Sexual Orientation on February 9 at 1:00 pm eastern. Join us to be sure your agency is compliant with these new requirements.

But wait! Only two days later, President Biden issued an EO on Protecting the Federal Workforce. With seven sections and a signature, this EO revoked President Trump’s Executive Orders 13836, 13837, and 13839 – the famous EOs heard ’round the world that impacted labor relations official time, contract negotiation timelines, topics of bargaining, performance and disciplinary actions, clean record settlements, and more. And if that wasn’t enough, it also eradicated the Schedule F classification mandated by EO 13957.

You might have questions, such as:

  • What does this mean if your CBAs were already renegotiated?
  • Is progressive discipline going to be mandatory now?
  • Do PIPs have to be longer than 30 days?
  • What happens if your agency already sent Schedule F lists to OPM?

There’s a lot to figure out and not a lot of time to do it. We know you are incredibly busy, so leave it to FELTG to weed through all the details and provide you with the important information. Ann Boehm and I will present all the need-to-knows and action items in a 90-minute webinar Changing Course: Understanding the Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on February 9 at 2:30 pm eastern.

MSPB

In Democratic administrations, we tend to see MSPB Members who are more pro-employee; in Republican administrations the majority tends to be more pro-management (depending on how the vacancies fall, as these are seven-year fixed terms). Because all three positions are vacant, President Biden will almost certainly nominate two Democrats and one Republican to the MSPB.

But if you think this pro-union administration is going to take it easy on employees who misbehave, think again. During a virtual swearing-in ceremony on January 20, the President told several hundred political appointees: “I’m not joking when I say this: If you’re ever working with me and I hear you treat another with disrespect, talk down to someone, I promise you I will fire you on the spot. On the spot. No ifs, ands, or buts. Everybody is entitled to be treated with decency and with dignity.”

Following this logic, we can expect that agency leadership will also prioritize discipline for career employees who engage in disrespectful conduct, conduct unbecoming a federal employee, or similar charges. And if your disrespectful employees happen to be law enforcement officers, the standard is even higher. We’ll explain why on February 23 during the virtual training A Higher Standard: Disciplining Law Enforcement Officers for Misconduct.

We’re expecting nominees to be named soon, and if we’re really lucky we’ll start getting some decisions in time for MSPB Law Week, March 29 – April 2, so register soon and save your seat.

Whistleblowers

The incoming Board Members will have a lot of work to do. Almost 3,100 Petitions for Review are awaiting action, and somewhere around 700 of those deal with allegations of whistleblower reprisal. We can expect the Biden administration to make whistleblower cases a priority, as the President himself has spoken about the importance of employees coming forward with allegations of waste, fraud, and abuse. If you need to brush up on your whistleblower law (and really, who among us doesn’t?), FELTG Instructor Bob Woods will do that in just 60 minutes on February 25 during the webinar Why, How and When to Avoid Whistleblower Reprisal.

Inspector General Oversight

Expect a return to independence for Federal Inspectors General. Last May, then-candidate Biden told the Washington Post that he would never fire a Federal IG. In his words, IGs are “… designed to make government honest. To keep it honest.”

IGs will likely be busy with this shift in priorities – as happens with any change in administration – and it’s time to plan for the year ahead, now that those priorities are becoming more clear. Join us this Wednesday, January 27, at 12:30 pm eastern for the virtual training An OIG Guide to Annual Planning and Benchmarking for Best Practices.

EEOC

Here’s something interesting. The EEOC under the Biden administration will have a Republican majority (3-2) until July 2022. The five Commissioners have 5-year staggered terms, and Commissioners can only be removed for cause – they don’t serve at the pleasure of the President. President Biden made Commissioner Charlotte Burrows (D) the Chair on January 21, but this does not alter the timelines of the appointment terms.

Where will the Commission take us in the year ahead? Find out during EEOC Law Week, March 15-19.

FLRA

Friday morning, Federal labor relations was one way. Friday afternoon, the outlook was 180 degrees different. We’re working through EO 140XX . By our February 9 webinar, we’ll have a summary of what you need to do regarding contract provisions that met EO 13836 and 13837, guidance on permissive bargaining, official time, and more. And join us for FLRA Law Week May 10-14, where the entire world of Federal labor relations will be discussed in depth.

Closing Thoughts

I know this was a long read, so thanks for hanging with me. For more than 20 years, FELTG has done its best to be your source for the most accurate and current Federal employment law news and training, and this year is no different. These actions are so important, and have such an impact on you, that we would be remiss if we didn’t provide you with content and training opportunities on all of it.

Stay tuned. It’s going to be quite a year. Hopkins@FELTG.com