Luck of the Irish? Not in These Findings of No Discrimination

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By Deborah J. Hopkins, March 11, 2024

Just about every week, FELTG instructors talk to supervisors who are concerned about, and even afraid of, EEO complaints being filed against them. We tell them that while the fear is real, the majority of EEO complaints result in a finding of no discrimination. The fear of a complaint should not stop a supervisor from doing her job.

As part of our EEOC Law Week training (which next begins March 18, so hurry and register!), we discuss intentional discrimination claims and the types of events – sometimes referred to as discrete acts – that could form the basis of a claim. This may include:

  • Discipline or proposed discipline
  • Changes to duties
  • Denial of leave requests
  • Selections
  • Promotions
  • Reassignments
  • Details
  • Workload changes
  • Performance ratings
  • Denials of telework, training, or other work privileges

This is not an exhaustive list, and sometimes complainants file based on actions outside of this scope. As I recently conducted a search for cases involving facts around St. Patrick’s Day, I came across a case involving an intentional discrimination claim: Brady v. USPS, EEOC Appeal No. 01A55711 (Feb. 14, 2006).

The complainant, a distribution window clerk in Key West, FL, requested to be allowed to wear an Irish scally cap at work on St. Patrick’s Day. His supervisor denied the request (after all, USPS employees have a uniform code), so the complainant filed an EEO complaint alleging discrimination based on his national origin (Irish).

The agency filed a motion to dismiss, arguing the complainant was not aggrieved and failed to state a claim under 29 C.F.R. § 1614.107(a)(1).  The administrative judge (AJ) agreed with the agency, explaining that the complainant did not suffer any harm when he was not permitted to wear a scally cap in the workplace.

The complainant appealed the dismissal to the EEOC, and according to the case:

The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049, 1994 EEOPUB LEXIS 3552 (April 21, 1994).

The Commission finds that complainant failed to show how the alleged incident resulted in a harm or … loss regarding a term, condition or privilege of his employment. The alleged event does not render complainant an “aggrieved” employee. Accordingly, the agency’s final decision implementing the AJ’s dismissal of the complaint for failure to state a claim is AFFIRMED.

Id. at 3-4.

Here are a couple of other cases involving St. Patrick’s Day facts:

  • The complainant alleged discrimination based on race and reprisal when the agency denied his request for admin leave to march in a St. Patrick’s Day parade when coworkers were granted two hours of admin leave to march in a Black History Month parade. Stevens v. USPS, EEOC App. No. 01892854 (Aug. 1, 1989)
  • The complainant, a probationer, alleged discrimination based on national origin (Irish-American) when he was terminated on St. Patrick’s Day. Fanning v. Treasury, EEOC App. No. 01943136 (June 20, 1995).

Many will file, and few will prevail. That’s not to detract from the reality that discrimination occurs, and it can ruin the lives of its victims. But in most cases, allegations remain merely that – allegations with no finding of discrimination. Hopkins@FELTG.com

Good News: We Answer Your Questions About Misconduct Investigations

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By Ann Boehm, March 11, 2024

If you have ever taken an investigations course taught by me, you have likely heard me say that investigations training is my favorite class. I know I shouldn’t have favorite classes, but I have a good reason for this favoritism. In my humble opinion, a good investigation is the foundation for effective discipline in the Federal government.

Many of our customers understand the value of a good investigation, and we get a lot of interesting questions on the topic. This month, I want to answer some commonly asked questions about misconduct investigations.

Who should conduct misconduct investigations? Employee Relations Specialists? IG investigators? Supervisors? A special cadre?

This answer is surprisingly simple. Anyone properly trained in Federal misconduct investigations should conduct misconduct investigations. It really does not matter where the individual works, but the proper training matters. It is up to agency policy and practice to determine who handles investigations.

Should investigators provide recommendations to disciplinary officials?

This is also an agency policy call, but I think there is great value in having investigators serve solely as evidence gatherers – not fact finders. The best investigators are impartial and unbiased. As I typically advise, investigators should allow themselves to be surprised throughout the investigation. Recommendations do not take away the impartiality, but it does move the investigator into more of a fact-finding role.

Is there a recommended order for interviewing employees involved in an alleged misconduct case?

The preferred order for interviewing witnesses is accuser, witnesses, accused. It’s best to have as much information as possible before interviewing the accused.

In harassment investigations, can we keep the name of the alleged victim confidential?

Fortunately, the EEOC itself has guidance on this question:

An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.

A conflict between an employee’s desire for confidentiality and the employer’s duty to investigate may arise if an employee informs a supervisor about alleged harassment but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment. One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line which employees can use to discuss questions or concerns about harassment on an anonymous basis.

As an investigator, how do you determine if the evidence will meet the “preponderance of the evidence” burden of proof?

Preponderance of the evidence is “more likely than not”— in other words, 51% of the evidence supports a finding of misconduct. As evidence gatherers, investigators should keep the burden of proof in mind and strive to investigate thoroughly. To do so, you need to understand the substance of the misconduct – what rule(s) the employee allegedly broke. You also need to work hard to find corroborating, and sometimes, conflicting evidence. The great part about being an impartial evidence gatherer is that ultimately, you do not have to decide if the burden of proof is met. But it would be best if you did your darndest to interview witnesses with knowledge of the matter and gather any documentation or other evidence you can find to help the eventual fact finders determine whether the burden of proof was met.

I know agencies have an obligation (from EEOC and Supreme Court guidance) to promptly investigate harassment allegations based upon protected status under the anti-discrimination laws. Does that apply even if the alleged harassment is not connected to the employee’s protected status?

A prompt investigation is the best investigation, period. Why is that? Memories fade quickly. In any misconduct situation, agencies want the most accurate version of what actually happened. The sooner investigators interview witnesses and gather other evidence, the better. Plus, most agency anti-harassment policies have very tight timelines related to investigations, so be sure you know your policy in advance of the investigation.

These questions may just be the tip of the iceberg. Let me know if you have more! We here at FELTG are here to help. And that’s Good News! Boehm@FELTG.com

[Editor’s note: Join FELTG April 30 – May 2 for Conducting Effective Harassment Investigations.]

Use These Tips to Improve Your Douglas Factor Analysis

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By Dan Gephart, March 11, 2024

With the constant changes in Federal employment law over the last several years, it’s sometimes easy to forget not only how useful the Douglas factors are when determining a reasonable penalty for employee misconduct, but also how long we’ve had these factors.

The Douglas factors turn 43 next month. The same day the decision in Douglas v. VA, 5 MSPB 313 (1981) was published, many Americans were turning (literally and physically) their television sets to CBS to watch brand new episodes of Dukes of Hazzard and Dallas.

Considering a large portion of the Federal workplace couldn’t tell Boss Hogg from Rosco or venture a guess at who shot J.R., let’s just say it’s been a while. To help keep your Douglas skills and knowledge sharp, consider these few tips.

1 – Make sure you’re spending a reasonable amount of time and effort on your Douglas analysis. How much is reasonable? In her upcoming (April 24) class Do You Really Know How to Use the Douglas Factors?, FELTG Instructor Ann Boehm suggests: “Usually, half of the effort that goes into defending a misconduct removal should be devoted to the agency’s Douglas Factor analysis.”

The safest way to handle the Douglas Factor analysis is to complete a Douglas Factor Worksheet, attach that worksheet to the proposal notice, and then in the body of the proposal notice, include a sentence 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.”

This has been standard FELTG advice for a long time now. As FELTG President Deborah J. Hopkins once wrote on the topic: “We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.”

2 – Use the Merit Systems Protection Board’s example. The MSPB rarely independently evaluates the Douglas penalty assessment factors. Instead, the Board generally sticks to evaluating the agency’s evaluation of the factors. Even if the Board members might not fully agree with the penalty, MSPB must defer to the agency’s decision as long as the agency proves its charge(s) and shows the penalty was “within the bounds” of reasonableness.

But then came Purifoy v. VA, CH-0752-14-0185-M-1 (2022)(NP). You probably noticed the parenthesized “NP” at the end of the case citation. Yes, this is a nonprecedential decision. But it is, also, to use Deb’s word — consequential.

Why the lofty word choice for a non-precedential decision?

Purifoy is, we think, the first time the current Board independently assessed the Douglas factors on its own. Read the case and think about the Board’s reasoning. You will be in much better shape to defend the agency’s penalty selection for years into the future.

3 – Consider both aggravating and mitigating Douglas factors and include them in the proposal notice. Some will tell you that only aggravating factors belong in the proposal notice. After all, while most all adverse actions have some mitigating factors, it’s usually the aggravating factors that control the outcome, and only aggravating factors are required at the proposal stage.

However, former FELTG President and founder Bill Wiley had this to say about that: “Do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. The employee should have the opportunity to know this stuff so she can respond and defend herself completely.”

Join us April 15-19 for MSPB Law Week, where you can get the most effective guidance and up-to-date information via an engaging week of training focusing on the legal requirements and best practices for penalties and much more. Gephart@FELTG.com

 

 

 

Agency Clarifies a Vague Standard During PIP

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By Deborah J. Hopkins, March 11, 2024

We get a lot of questions about how a supervisor can effectively address unacceptable performance when an employee’s performance standards are written in a vague or subjective manner. In fact, vague standards are probably one of the top reasons why supervisors don’t address performance issues with employees more often.

The good news, which we share in all of our performance classes, is that a vaguely written standard in itself does not preclude an agency from addressing unacceptable performance in real time.

Let’s look at a recent MSPB case involving a travel office financial management specialist at NASA, Atkinson v. NASA, AT-0432-20-0510-I-1 (Feb. 7, 2024)(NP). The appellant’s primary duty was to monitor the Travel Request Mailbox (TRM), which was an electronic mailbox that received requests for travel authorizations and travel expense reimbursements. The agency had provided the appellant with Travel Request Mailbox Instructions (TRMI), which was “a detailed set of instructions for monitoring the TRM, and included classifying emails in the TRM inbox, forwarding emails to designated personnel, and documenting the status of travel-related requests.” Id. at 2.

The appellant’s performance plan included a critical element titled “Process Civil Service Travel” (critical element 2) and her performance standard required her to, among other things, “produce accurate work with ‘no significant errors.”’ Id. at 3. Below is a summary of the events in the case:

  • In October 2016, the supervisor informed the appellant she was not meeting expectations in critical element 2 due to the significant number of errors she was making in monitoring the TRM.
  • In May 2017, after deeming the appellant’s performance unacceptable for [critical] element 2 in her first performance appraisal, the supervisor placed the appellant on a 60-day performance improvement plan (PIP). The PIP informed the appellant that she was required to demonstrate acceptable performance in critical element 2 by the end of the PIP period by, among other things, “correctly address[ing] all emails in the [TRM] according to the TRMI.”
  • The agency provided the appellant, who was deaf, with a video ASL translation of the TRMI before the PIP and full-time assistance of interpreters prior to and throughout the PIP. The appellant’s supervisor and the travel office lead met with the appellant regularly during the PIP to discuss her performance, including her continuing errors.

Id.

At the conclusion of the PIP, the appellant was still not performing at an acceptable level. The proposed removal identified over 180 errors she made during the PIP. The deciding official upheld the removal. The appellant filed an appeal to MSPB, challenging the removal in part by claiming that her performance standards were invalid – a claim that, if proven, would render the removal inappropriate.

The appellant argued the requirement that her work contain “no significant errors” was overly subjective, and what constituted a “significant” error was never defined. Id. at 5. The Board disagreed, relying on the hearing testimony from both the travel office lead and the appellant’s supervisor, who said that “significant errors” are “those which impacted the processing of travel-related requests,” and they shared multiple examples of these types of errors with the appellant. Id. In addition, the appellant received detailed feedback about her performance deficiencies before and during the PIP, so the word “significant” was given appropriate context and was not overly vague or subjective.

If performance standards are written vaguely or subjectively, the agency may clarify the expectations by fleshing out the standard or giving examples of performance, during the PIP itself. To learn how to do this, join us for MSPB Law Week, April 15-19. Hopkins@FELTG.com

When Sexual Harassment Turns Into a Workers’ Comp Claim

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By Frank Ferreri, March 11, 2024

If you read our pre-Valentine’s Day piece on sexual harassment, you are aware the wrong kinds of advances can lead to EEO headaches. But did you know sexual harassment may also lead to a compensable injury under the Federal Employees’ Compensation Act (FECA), which covers emotional conditions causally related to compensable factors of an employee’s Federal employment?

However, as the following cases show, while a claim is easy to file, it can be difficult for claimants to prevail.

Under Employees’ Compensation Appeals Board (ECAB or the Board) cases, such as Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004), an employee can establish she sustained an emotional condition in the performance of duty by submitting all of the following:

  1. Factual evidence identifying and supporting employment factors or incidents alleged to have caused or contributed to her condition.
  2. Rationalized medical evidence establishing that she has an emotional or psychiatric disorder.
  3. Rationalized medical opinion evidence establishing that the identified compensable employment factors are causally related to her emotional condition.

“Rationalized medical opinion evidence” refers to medical evidence that includes a physician’s rationalized opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors and must be based on a complete factual and medical background of the claimant, be one of reasonable medical certainty, and be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by appellant.

To understand what the ECAB analyzes in claims related to alleged sexual harassment, consider the following decisions.

Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004)

A postal clerk alleged she sustained an emotional condition causally related to harassment in the form of a supervisor sitting on a ledge in front of her and propping his leg up. The supervisor allegedly stood “very close” or walked up behind her. The clerk also alleged the postmaster discussed one of the clerk’s personal relationships. According to the clerk, these actions caused her stress and aggravation of a preexisting condition, which was an internal carotid artery aneurysm.

ECAB’s ruling: The clerk failed to implicate any compensable factors of her employment in the development of her alleged emotional conditions. There was no evidence that anyone heard the conversation about the clerk’s personal relationship, and when the supervisor learned his ledge-sitting and following made the clerk uncomfortable, he ceased the behavior. ECAB concluded the clerk did not establish compensable factors of employment caused her emotional condition.

Donahue and Department of the Army, No. 01-1006 (ECAB Jan. 9, 2002)

A supply technician alleged a supervisor would on an “almost daily” basis “grab and slap her buttocks and make sexual innuendoes with regard to having sex.” This went on, according to the technician, from 1993 until 1997. This supervisor on one occasion came to the technician’s house at 11 p.m. on the pretext of asking about her husband, who was in the hospital, and made sexual advances that amounted to a sexual assault.

ECAB’s ruling: The technician did not bring enough evidence to the table to support her claim. Although the technician alleged she was subjected to sexual harassment, she continued to work at her job and made no allegations regarding sexual harassment until she filed her claim in August 1998 — nearly five years after the alleged sexual assault occurred. ECAB dismissed the case, finding the technician did not meet her burden of proof in establishing that she sustained an emotional condition in the performance of duty.

Lofti and Department of Health & Human Services, Health Care Financing Administration, No. 95-2756 (ECAB Sept. 19, 1997)

A health insurance specialist alleged she sustained anxiety, chest pains, heart palpitations, insomnia, pneumonia, myalgia, indigestion, laryngitis, and headaches due to sexual harassment by a coworker. According to the specialist, the coworker sent her cards and letters for a year, made lewd remarks, and would visit her cubicle in a tearful and angry state. The specialist also alleged there were “physical incidents in which he forcibly tried to kiss” her.

ECAB’s ruling: The Office of Workers’ Compensation Programs, which ruled against the employee, erred in finding that harassment by coworkers can only be considered a compensable employment factor if the employing establishment is aware of such harassment and fails to intervene. On the contrary, ECAB found evidence that the specialist sustained an emotional condition and several physical ailments due to sexual harassment by a coworker. In particular, the specialist presented evidence that included a detailed factual statement and corroborating statements from the employing establishment demonstrating that the described incidents occurred as alleged. As a result, ECAB sent the case back to OWCP.

An important lesson comes out of the Lofti case: Unlike in the Title VII context, whether or not a sexual harassment charge turns into a compensable workers’ compensation claim does not depend on whether the agency took appropriate steps in response to the harassment. Instead, it depends on whether the employee suffered an injury that was causally related to her job.

So, what can agencies do? A good place to start is stressing as much as possible that sexual harassment has no place in the Federal workplace. Even if it seems like “just a joke,” the job is no place for that kind of humor, which can literally cause an injury. Info@FELTG.com