Law Enforcement Officer Bites His Wife During an ‘Altercation’

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By Deborah J. Hopkins, September 10, 2024

Quick facts:

  • A law enforcement officer was removed after the agency learned he bit his wife during an off-duty physical altercation at their home.
  • The appellant was not truthful when questioned about the altercation and claimed his wife bit herself.
  • The administrative judge (AJ) found a nexus between the conduct and the efficiency of the service but mitigated the penalty because the agency did not appropriately address several mitigating factors, and the MSPB upheld the AJ.

In my line of work, I never have to make anything up. And once again, the point is proven in a recent MSPB case, Bonojo v. DHS, NY-0752-20-0056-I-3 (Aug. 22, 2024)(NP). Here are the facts, some of which I had to find in the initial decision (ID), which was issued Mar. 31, 2021.

  • A GS-12 Deportation Officer at ICE had a physical altercation with his wife on a day he was not scheduled to work. However, he was wearing his service weapon at the time because he could be called in to work if necessary.
  • The physical struggle occurred after his wife learned he had received a text message from another woman, and she attempted to take his phone from him. The appellant threw his wife on the ground and bit her on the arm; she scratched his chest.
  • The appellant called the police, and both individuals were arrested for assault.
  • The appellant reported the arrest to the agency. He claimed, on multiple occasions, that his wife bit herself in an attempt to make him look like the aggressor.
  • The agency removed the appellant based on two charges: 1) conduct unbecoming a law enforcement officer (one specification, related to biting his wife) and (2) lack of candor (four specifications, related to inaccuracies in reporting his version of the altercation).

On appeal, the AJ affirmed both charges, including 3 of the 4 specifications on the lack of candor charge. She also found a nexus between the conduct and the efficiency of the service because, while charge 1 occurred off duty, “[t]he appellant’s biting his wife raises questions as to his temperament.” Initial Decision at 13. However, the AJ also found the deciding official did not give sufficient weight to certain mitigating factors:

  • The appellant’s wife was not seriously injured and did not need medical attention.
  • The appellant’s performance ratings were outstanding.
  • The appellant had over 10 years of discipline-free Federal service.

The AJ found the removal to be outside the bounds of reasonableness. However, the appellant was now Giglio-impaired. The AJ ordered the removal mitigated to a reassignment to the highest-graded non-LEO position in his commuting area.

If you are thinking, “But Deb, a reassignment on its own isn’t even discipline,” then you’d be absolutely right. If the agency reassigned the appellant to a non-LEO job at the same grade level, then there would not be any discipline in his record!

And that is despite the Board’s strong language on nexus: “Thus, when law enforcement officers engage in off-duty misconduct, it is a ‘serious breach of conduct and . . . [has] a significant effect on [the officer’s] reputation for honesty and integrity, thereby a significant effect upon the efficiency of the service,’” citing Austin v. Department of Justice, 11 M.S.P.R. 255, 259 (1982). NP Decision at 4. Furthermore:

 

As a trained law enforcement officer, it is reasonable to expect that the appellant not resort to such violence, and his failure to do so casts doubt upon his ability to perform his duties, which require him to have good judgment and strong decision-making skills in high stress, difficult situations … [A]s a result of his actions, the appellant was arrested, and his second line supervisor had to retrieve the appellant’s weapon and credentials from the local police station, thus involving agency officials in his off-duty conduct.

Therefore, we find that the appellant’s actions undermine his ability to perform his duties as a law enforcement officer and adversely impacted the mission of the agency, namely, the enforcement of laws. Thus, consistent with previous Board findings, we find that the appellant’s off-duty misconduct is antithetical to the appellant’s role as a law enforcement officer and, therefore, has a significant impact on the efficiency of the service. (internal citations omitted)

Id.

Rather than reinstate the penalty, however, the Board upheld the AJ’s order on reassignment.

Had the agency done a complete Douglas analysis, it’s quite possible the removal would have been upheld, but its failure to give consideration to the mitigating factors allowed the AJ to substitute her own judgment for that of the deciding official. Yikes. hopkins@feltg.com

Related training:

Take-it-or-leave-it Telework Offer Raises Accommodation Questions

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By Frank Ferreri, September 10, 2024

Quick facts:

  • An EPA economist had allergies that required him to be away from certain irritants.
  • The agency accommodated him until it moved a heavily perfumed coworker near him.
  • The agency’s offer of 100% telework or nothing led a Circuit Court to question the offer and the interactive process.

Last month, we told you a reasonable accommodation doesn’t mean the employee necessarily gets exactly what they want. Well, a case that came out in the meantime shows that the same holds true for the agency side. In Ali v. Regan, No. 22-5124 (D.C. Cir. Aug. 9, 2024), the D.C. Circuit Court of Appeals found the agency’s offer of telework or nothing as an accommodation left questions regarding the reasonableness of the offer and the sufficiency of the interactive process.

The fragranced coworker

An Environmental Protection Agency economist had severe allergies. The agency was aware and provided a workspace that accommodated the employee’s health needs.

Things changed, however, when the EPA placed a worker known for wearing heavy perfume in the cubicle next to the economist. When the economist asked for a private office or conference room to work in, the EPA offered a different cubicle, which the economist also found “very perfumy.”

The EPA requested and received medical information from the economist regarding his allergies. The agency offered the economist a take-it-or-leave-it accommodation of 100% telework, which the employee had not requested.

The economist asked the agency for other options and asked the coworker to stop wearing fragrances. Neither yielded a solution. Thus, he filed a Rehabilitation Act claim after an ALJ and the EEOC ruled in the EPA’s favor.

The District Court granted summary judgment in favor of the EPA as well, concluding the economist failed to act in good faith during the interactive process because he rejected telework without an explanation.

Rehabilitation Act requirements

The economist appealed to the D.C. Circuit Court of Appeals, which focused on the reasonableness of the accommodation offered.

The Rehab Act’s reasonable accommodation standards are the same as those applied under the Americans with Disabilities Act. Under the ADA, “reasonable accommodations” include making existing facilities usable by people with disabilities and may involve job restructuring, modified scheduling, and reassignment. The EEOC has specified that adjustments to the work environment may be necessary to provide a reasonable accommodation.

In its appendix to the ADA regulations, the EEOC advises that employers should:

  1. Analyze the particular job involved and determine its purpose and essential functions.
  2. Consult with the employee to ascertain the precise job-related limitations imposed by the employee’s disability and how those limitations could be overcome with a reasonable accommodation.
  3. In consultation with the employee to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position.
  4. Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
More questions

The D.C. Circuit reversed the District Court’s decision, finding it erred in concluding the economist caused a breakdown in the interactive process. According to the D.C. Circuit, it was up to a jury to decide the disputed material facts regarding the reasonableness of the EPA’s proposed final accommodation, which was offered without first meeting with the economist to discuss accommodation options.

The D.C. Circuit noted the economist provided all of the information that the agency requested of him, and that information is what the agency used to formulate its accommodation offer. The D.C. Circuit also found questions regarding whether the economist did, in fact, reject the EPA’s offer.

“The record does not indicate that [the] EPA spoke with [the economist] at all about an appropriate accommodation between the time it determined he qualified for one and its proffer of the 100% telework accommodation,” the D.C. Circuit wrote. “Instead, [the] EPA presented its offer as an apparent fait accompli, without ever discussing with [the economist] the effectiveness or reasonableness of 100% telework.”

The D.C. Circuit also pointed out that the economist tried to re-engage the agency in discussion about alternative accommodations, following up once a week for three weeks on his request for a private working space with no evidence that the EPA responded to any of the follow-ups other than an email stating “you have been offered a reasonable accommodation of 100% telework and have declined the offer.”

Was the offer reasonable?

The D.C. Circuit also found triable issues as to whether the all-or-nothing telework offer was reasonable, given evidence that the economist could “not print things” at home due to allergic reactions he experienced “to emissions from printers” and that he lacked an office space “set up.”

While telework is often a successful option, especially in a post-COVID world, the D.C. Circuit pointed out that assumptions can be risky, and some employees may not be suited for separation from the in-person environment.

“Offering a willing employee a remote-work option is very different from forcing remote work on an unwilling employee as the sole option for accommodating that employee’s disability,” the D.C. Circuit reasoned. “In the latter case, the factual record would have to justify the reasonableness of such forced segregation, such as by showing the absence of an integrative reasonable accommodation.”

The D.C. Circuit sent the decision back to the District Court.

A dissenting judge pointed out that, five years earlier, the economist worked at home temporarily as a reasonable accommodation. That experience, along with a lack of evidence on how working at home would hurt the economist’s career, supported the EPA’s position that telework was a reasonable accommodation.

As the court phrased it, requiring an employee who has successfully worked in the office for years to leave the workplace permanently as the sole means for accommodating a disability – without first discussing it with the employee or exploring integrative alternatives – risks running afoul of the Rehabilitation Act. It is still up to the employee to show the feasibility of some other option. However, just because telework is an excellent accommodation in many cases does not mean it will be reasonable in every case. info@feltg.com

Related training:

The Good News: Unions Make Sure You Do Your Job Correctly

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By Ann Boehm, September 10, 2024

Quick facts:

  • It’s the managers’ obligation to handle problem employees who negatively impact the agency’s mission.
  • Union representatives are obligated to ensure problem employees are treated fairly.
  • Learn the processes and take the right steps to handle problem employees.

What do managers, counsel, employee relations specialists, labor relations specialists, employees, and union representatives all have in common? All of them know who the toxic employees are. What’s different is how these folks deal with the toxic employees. Or is it really different?

I recently had the amazing opportunity to train union stewards. Throughout my career, I have spent much more time on the management side than on the union side. This was a tremendous chance for me to learn more about the union perspective.

Early in the training, I discovered the union stewards certainly know who the problem employees are. In fact, the problem employees are not necessarily any nicer to the union representatives than they are to managers.

But here’s the big difference between the managers and the union representatives: The managers have an obligation to the public, and part of that obligation is to handle problem employees who negatively impact the mission. The union representatives are obligated to ensure that even the problem employees are treated fairly and have all available opportunities to challenge management’s actions.

I came out of this experience thinking of the union representatives more like criminal defense attorneys. Most people wonder how criminal defense attorneys can represent an admitted murderer, for example. The common response from those attorneys is that everyone is entitled to their rights under the Constitution and criminal laws. If the police or prosecutors do something wrong to violate those rights, or if the prosecutors cannot prove the commission of a crime beyond a reasonable doubt, then that’s on them.

In the employment context, union representatives may know the employee is a problem and deserves discipline or a performance-based action, but they are going to do their level best to make sure management and agency reps do things correctly.

What’s the lesson to be learned here? No one wants problem employees dragging down the agency or co-workers. If the agency wants to take action, it needs to do things correctly. The union representatives are there to keep a check on the process. It’s their job.

So, agencies learn the processes and follow them. (We at FELTG are here to help!) Understand that the union representatives know who the problem employees are, but they have a job to do. Take the right steps to handle the problem employee. Everyone will benefit. And that’s Good News! boehm@feltg.com

Related training:

ALJ Rules Medical Inability to Perform Removal Was Fitting

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By Dan Gephart, September 10, 2024

Quick facts:

  • A Navy shipfitter was injured on the job. He broke several bones, had internal bleeding, and later developed PTSD.
  • Years later, the agency and employee went through a good faith interactive process to find a reasonable accommodation.
  • A Merit Systems Protection Board administrative law judge upheld the agency’s decision to remove the employee for medical inability to perform.

Some cases we review offer fact patterns that include outlandish, even ridiculous, behavior by an employee. Other cases reveal an agency blatantly failing to follow the basic tenets of the law.

Denny v. Navy, SF-0752-24-0291-I-1 (May 29, 2024)(ID) is neither of the above. This case involves an appellant whose injury made it impossible for him to perform his job and an agency that followed the right steps to address the situation. Unfortunately, it was not a win-win situation in the end. However, Denny allows us an opportunity to review how to handle the reasonable accommodation process and medical inability to perform removals.

It all started because of an improperly installed hatch on a ship. The appellant, a shipfitter on a temporary assignment in Japan, stepped onto the hatch, which collapsed inward. He fell, suffering internal bleeding and several broken and fractured bones. The spotter, a coworker who was with the appellant, had a panic attack and could not help. The appellant was lucky to live through this accident.

The appellant was initially treated in Japan. Upon return to the United States, he was diagnosed with a lumbar contusion, left hip contusion, right index finger avulsion fracture PIP joint, right great toe avulsion fracture based proximal phalanx, right wrist scaphoid fracture status post-ORIF, pulmonary contusion, and splenic subcapsular hematoma. After a psychological evaluation and counseling, the appellant was diagnosed with post-traumatic stress disorder resulting from his work injury, as well as major depressive disorder.

After his injury, the appellant continued to work as a shipfitter. Fast forward a few years: His supervisor was not happy with the appellant’s work and sought to have him removed. The appellant then submitted a request for reasonable accommodation, elaborating that cold weather made his hand pain and back pain worse and that he had psychological trauma.

Four reasonable accommodations were considered but dismissed. The first, moving the appellant away from the waterfront and getting him out of the cold, did not address the other physical limitations or psychological concerns. Second, making the appellant a training instructor, a role he took on while the accommodation process played out, would require a promotion, and the appellant was only capable of teaching 25 percent of the curriculum.

The appellant also requested telework or medical retirement as accommodations.

First off, early retirement is not an accommodation. (Ironically, being removed for medical inability to perform creates a presumption of entitlement to those benefits.) But more importantly, telework is not an option for the shipfitter position, which requires work on large pieces of metal on ships or in the shop. The agency attempted reassignment as an accommodation but couldn’t find a position where the appellant could perform the essential functions.

In order to receive an accommodation, the employee must be a qualified individual with a disability. The term is defined as someone who:

  • Has a disability;
  • Satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires; and
  • Can perform the essential functions of such position with or without reasonable accommodation.

After a thorough process, the agency could not find any reasonable accommodations that allowed the appellant to perform the essential functions of his job. So, the agency removed him based on a single charge of Medical Inability to Perform the Essential Functions of the Position with the following specification:

“Documentary evidence demonstrates that you have permanent physical limitations and psychological limitations of an unknown duration. Because of the nature of your limitations, you are not able to perform the essential functions of your position of record.”

When the MSPB sustains all of an agency’s charges, it will usually defer to the agency’s penalty determination, only reviewing it to determine if the agency considered all of the relevant factors.

Separation for medical inability to perform is an adverse action. However, it is non-disciplinary. So, the agency did not have to apply the Douglas factors. Shoffner v. DoI, 9 MSPR 265 (MSPB 1981).

The administrative law judge ruled:

In the circumstances, the agency’s decision to remove the appellant was reasonable. Based on the existing medical restrictions, the appellant is unable to perform the WG-08 Shipfitter position. The restrictions are described as permanent. The appellant raised questions about the severity of his limitations but did not procure any adjustment from a medical provider. The agency considered the appellant for reassignment, but that process was unsuccessful.

The ALJ addressed other issues in the decision, including the appellant’s claims of whistleblowing and EEO retaliation, and reminded the appellant that removal for physical inability to perform the essential functions of a position is prima facie entitlement to disability benefits, and directed him to the Office for Personnel Management. gephart@feltg.com

Related training:

 

 

And Now a Word With … Mika Cross

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By Dan Gephart, September 3, 2024

During the pandemic we learned that, yes, most employees can be trusted to perform their jobs when not physically present in the office. A Government Accountability Office report stated: “Telework generally appeared to positively affect productivity.”

Yet, many agencies, along with state and local governments, are pushing employees to return to the office. Meanwhile, many Federal supervisors have shared with us the challenges of managing a hybrid team.

Mika Cross, workplace transformation strategist at Strategy@Work, has been touting the benefits of remote work since long before the pandemic. And her passion has not wavered.

“Federal agencies have a unique opportunity to shape a more inclusive, flexible, and productive workplace,” she said. “One key area to focus on is embracing hybrid work models. By blending remote and in-office work, agencies can cater to diverse employee needs, enhancing work-life balance and overall job satisfaction while boosting productivity and better ways of working together.”

Adopting a hybrid model alone is not enough to transform a workplace. “Agencies should invest in initiatives that support employee well-being, such as mental health resources, flexible schedules, and wellness programs. Recognizing and addressing the unique challenges faced by remote workers can lead to a more engaged and productive workforce.”

We caught up with Cross for a brief conversation as she put the final touches on her Sept. 10 FELTG Virtual Training event Designing Inclusive, Healthy and Connected Workplaces Across a Distance.

DG: What is currently the biggest threat to employee wellbeing in the Federal workplace?

MC: In today’s digital workspace, effective collaboration is more crucial than ever, yet many organizations struggle with it. The shift to remote work has highlighted gaps in collaborative skills, making it essential to foster a culture of teamwork and communication, even virtually.

Meeting culture and poorly designed meetings can drain time and energy without yielding results, so streamlining meeting structures and focusing on clear outcomes is key to transforming productivity and helping to safeguard employee wellbeing.

High stress levels, increased workload and low morale are alarming. Data from the McChrystal Group show that 65 percent of government employees feel burnt out, compared to 44 percent in the private sector. Addressing these issues is vital for employee well-being as these issues affect physical well-being, work performance, productivity and attrition. An unsupportive environment can hinder productivity and inclusivity, making it crucial to create a safe and respectful workplace.

DG: You talk a lot about connectivity. How would you define it?

MC: Connectivity refers to the degree to which individuals, teams, and organizations are cohesively and positively linked, both internally and externally. It includes a variety of factors, such as effective and transparent communication, collaboration, and information flow. In the context of what I like to call “instrumental assistance” or … “helping each other out,” connectivity also involves cultivating a culture that enhances the ability to share knowledge, resources, and support effectively.

DG: How do you measure it?

MC: Measuring connectivity can be done through various methods. Network analysis examines relationships within a group or organization, using metrics like centrality, density, and bridging. Social network surveys assess the strength and frequency of interactions among individuals, asking questions like “How often do you seek help from colleagues?” or “Who do you turn to for advice or help when you need it?”

Employee surveys, listening sessions, pulse checks, and feedback mechanisms provide valuable insights into connectivity by capturing employees’ experiences and perceptions.

Tracking the effective use of collaboration tools, such as shared documents and chat platforms, also provides insights, with high usage indicating active collaboration. Connectivity often correlates with organizational performance, with metrics like project completion time, innovation, and employee satisfaction indirectly reflecting connectivity. Connection also enhances productivity, creativity, innovation, and overall well-being in the workplace.

DG: Some supervisors will tell you that it’s hard to create that connectivity when so many are working remotely. Can you provide an example of how to ensure connectivity within a hybrid team?

MC: Maintaining connectivity in a hybrid team can be challenging, but there are effective strategies to foster collaboration and engagement. One approach is to designate specific time slots for “virtual office hours.” During these hours, team members can connect with supervisors or colleagues for informal discussions, questions, or updates. Encouraging remote employees to participate actively in these sessions provides an opportunity for personalized interactions and builds stronger connections. Supervisors can use this time to address individual concerns, provide guidance, and offer recognition.

Another strategy is to invite staff to contribute questions, topics, or ideas related to the agenda before, during and after team meetings. Using collaboration tools or email to collect input ensures everyone has a voice. During the meeting, acknowledging those who contributed and discussing their ideas reinforces engagement and encourages ongoing participation. Keeping the door open for additional contributions beyond the meeting and encouraging continuous feedback from all team members is also crucial.

Incorporating optional team-building activities and fun sessions can enhance connectivity. Trivia sessions based on the organization’s mission or history, lunch and learns, virtual mentoring sessions, and team “watch parties” or learning events can all foster a sense of community and engagement.

For both in-person and virtual connection time, consider organizing hybrid events where some team members gather in person while others join virtually. Examples include hybrid team-building exercises, where in-person participants and remote colleagues collaborate on challenges or games. Hosting regular “coffee chats” or “mentoring sessions” where team members can join from anywhere helps ensure no one feels left out. Additionally, offering virtual and in-person events and engagement sessions, multiple times on different dates and time slots, allows everyone to participate in professional development opportunities regardless of where and when they work.

Proactive communication and intentional efforts to involve remote team members are essential for maintaining connectivity in a hybrid work environment. By providing various options for connection and ensuring inclusivity, organizations can create a cohesive and engaged team.

DG: What are some of the equity issues you’ve seen arise as the workplace went remote?

MC: Increased remote and hybrid work has brought several equity issues to light, particularly in the Federal government. One major concern is proximity bias, where employees who are physically closer to decision-makers tend to receive more attention, opportunities, and recognition. This can lead to an unequal distribution of resources and career advancement.

Another issue is recency bias, where supervisors may focus on recent performance or interactions, overlooking long-term contributions. This can affect performance evaluations, promotions, and rewards.

DG: Are there solutions for addressing those equity issues?

MC: It’s essential to establish transparent metrics for performance evaluation. Decisions should be based on objective data rather than subjective impressions, with regular reviews to ensure fairness. Encouraging structured feedback sessions between supervisors and remote employees can help discuss accomplishments, growth areas, and development opportunities, while addressing any biases that may arise.

Rotating leadership roles or project ownership among team members can ensure diverse perspectives and prevent the concentration of influence. During virtual meetings, it’s important to actively involve remote employees, using video conferencing to create a sense of presence and encouraging participation from all team members.

Recognizing that remote employees may have different time zones or family responsibilities, offering flexible schedules can accommodate diverse needs. Providing training that focuses on building inclusive cultures is also crucial and should be mandatory for all supervisors and team members. Promoting equity in remote work requires intentional efforts, ongoing assessment, and a commitment to fairness!

DG: Which groups would be hurt the most if the Federal workplace returned to pre-pandemic levels of remote work?

MC: The short answer? Most of us might if we moved back to a more inflexible work model.

If the Federal workplace returned to pre-pandemic levels of remote work, several groups would be significantly impacted. Younger generations, such as Millennials and Gen Z, who have become accustomed to the flexibility of hybrid and remote work, might struggle with work-life balance and overall well-being. Employees with disabilities would face reduced accessibility and increased barriers, as remote work offers them the necessary flexibility. Caregivers managing responsibilities for children or elderly parents would find it challenging to balance their roles without the flexibility remote work provides. Additionally, diverse communities could see a setback in diversity and inclusion efforts, as remote work has allowed for a broader talent pool beyond geographic limitations by tapping talent outside of headquarters and metropolitan office locations where there is generally a higher cost of living (which could also be a barrier to employment.)

From a generational perspective, Baby Boomers might prefer in-person interactions but still value flexibility. Gen X employees favor hybrid models that offer autonomy and adaptability. Millennials and Gen Z prioritize flexibility, purpose-driven work, and work-life integration, making them more resistant to a full return to the office. A focus on age-inclusive teams and training is key to prevent creating a divide or ineffective team performance.

Federal workplace trends show a mixed approach: While some agencies have reduced full-time remote work, emphasizing in-office presence, other Federal agencies continue to maintain hybrid models, recognizing the benefits of remote work. Recruitment and retention, especially in sectors like IT and healthcare, remain challenging, and remote work can help alleviate burnout and turnover.

In summary, a rigid return to pre-pandemic office norms could disproportionately affect younger generations, caregivers, and diverse communities who already experienced different challenges to employment and career advancement. Balancing flexibility, productivity, and well-being is crucial for the future of the Federal workplace.

DG: We keep hearing that remote work is a great recruitment tool. Is there any data to back that up?

MC: During the height of the pandemic when remote jobs were on the rise in the Federal government, interest in Federal positions as measured by the number of visits to USAjobs.gov, increased by nearly 3 percent. The Office of Personnel Management also cited increases in the diversity of applicants and an increase of applicants in certain remote positions as high as 25 percent more than those positions that do not offer remote or telework options.

Exploring the data on remote work as a recruitment tool, particularly for the Federal workforce, reveals some compelling trends. Reducing office space can save the taxpayers and agencies millions of dollars that can be invested in modernizing technology to deliver services to the citizens and invest in career development, skills enhancement, and modernization of the workforce. The data supports remote work as a powerful recruitment tool, offering flexibility, access to a broader talent pool, and cost-effective solutions for the Federal workforce. 

gephart@feltg.com

Related training:

Agency Blatantly Fails to Accommodate Breastfeeding Employee

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By Deborah J. Hopkins, August 19, 2024

Quick facts:

  • The EEOC ruled for the employee, after the agency failed to provide a legitimate, nondiscriminatory reason for denying the complainant access to a clean lactation facility.
  • The employee was told to go home so she could express milk, and was subsequently charged LWOP.
  • Since this complaint was filed, new laws have only strengthened protections for pregnant and lactating employees.

People around the country cheered at the end of 2022 when the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) went into effect, and they cheered last summer when the Pregnant Workers Fairness Act (PWFA) went into effect. These laws require employers – including Federal agencies – to, among other things:

  • Provide adequate break times and a private (non-bathroom) space for employees to express and store breastmilk during the workday, and
  • Accommodate the limitations of employees related to pregnancy, childbirth, and other related medical conditions – unless doing so would cause an undue hardship on the employer’s operations.

While these laws did not become effective until recently, certain workplace protections for pregnant and lactating employees have long existed in the Federal government: the Pregnancy Discrimination Act, which went into effect in 1973, as well as Title VII of the Civil Rights Act of 1964.

A fairly recent EEOC case explored an allegation of pregnancy-related discrimination against a USPS employee, before the PUMP Act and PWFA went into effect: Krysten D. v. USPS, EEOC App. No. 2021005238 (Feb. 8, 2023).

Here’s what happened: After the birth of the complainant’s first child, management designated her an office for use as a lactation room. For privacy, management covered the window with paper and provided a small refrigerator where the complainant could store the milk during the workday. After the birth of her second child, the complainant initially used the same office to express breastmilk approximately every two hours.

So far, so good.

And then things changed. At one point during a shift, the complainant went to the lactation room and found it was locked. She requested management unlock the door, but management told her the keys were not available. After nearly three hours, the complainant was told to go home because there was nowhere else for her to express milk, and her pain had “become unbearable.” Id at 2. Because of the distance from her workplace to home (over 30 minutes) and the short amount of time remaining in her shift, the complainant stayed home after she expressed the milk. Her manager then charged her 4 hours and 9 minutes of LWOP.

A few other relevant details:

  • A year prior to this event, the complainant informed the agency of her concerns about being able to access the lactation room.
  • If the room was left unlocked, coworkers used the room for non-lactation related activities (breaks, lunch, etc.) and left the room dirty, which forced the complainant to sanitize the room every time she needed to use it.
  • On one occasion, the complainant went to the lactation room to express milk and found three individuals inside attending a training on a TV, which was plugged into the only outlet.
  • If the room was locked when not in use, the key was possessed by only one person, who worked a different shift than the complainant.
  • The complainant requested a copy of the key so she could access the room during her shift. Management refused because it was a master key. The complainant then offered to pay for a new lock on the door and management refused.

As a result of all these events, the complainant filed a sex discrimination claim (pregnancy-related condition), alleging she was not provided with a proper place for lactation.

The law on this is clear: A complainant alleging that the denial of an accommodation for a pregnancy-related condition constituted disparate treatment sex discrimination may state a prima facie case by showing that:

  1. She belongs to the protected class;
  2. She sought accommodation;
  3. The agency did not accommodate her; and
  4. That the agency did accommodate others “similar in their ability or inability to work.”

Young v. UPS, 575 U.S. 206 (2015), req. for recon. denied, EEOC Request No. 2019002792 (Jun. 25, 2019).

The agency may justify its failure to accommodate if it can show a legitimate, nondiscriminatory reason for denying accommodation. Id. at 229. According to the McDonnell-Douglas framework, the complainant must demonstrate pretext in order to prevail in her claim.

In reviewing the case, the EEOC found the agency could not provide a legitimate, nondiscriminatory reason for denying the complainant access to a clean lactation facility. Therefore, the complainant proved her claim of discrimination. As is often the case, the decision was issued long after the harm occurred.

Fortunately, cases like these don’t come up too often. However, agencies should still take note, especially since pregnant and lactating employees now have even more protections than they did just a couple of years ago. hopkins@feltg.com

Related training:

A Successful Performance-Based Removal Under Chapter 75

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By Deborah J. Hopkins, August 12, 2024

Quick facts:  

  • Most executive branch agencies have the flexibility to remove employees who have performance failures under either Chapter 43 or Chapter 75 of the Civil Service Reform Act (CSRA).
  • If an agency has a policy that requires something beyond what the law requires, the agency must follow its own policy, or its action will be set aside.
  • If an agency meets the requirements of a traditional Performance Improvement Plan (PIP) without identifying the process as such, it can still show that the legal requirements for a performance-based action have been met.

We’ve long taught in our classes that performance-based removals under Chapter 43 were intended to be fast and easy under the CSRA. After all, the burden of proof is only substantial evidence, a “reasonable” opportunity to demonstrate acceptable performance should not exceed 30 days, and supervisors have broad discretion in assessing employees on subjective performance standards.

Over the years, though, some agencies have made it more difficult through self-imposed hurdles, such as:

  • Requiring a pre-PIP before implementing a PIP.
  • Negotiating a long PIP (90 or 120 days) into a union contract.
  • HR advisers telling supervisors (incorrectly) that they need much more evidence to implement a PIP than is actually legally required.

One of the approaches we at FELTG occasionally suggest is to handle a performance issue under the misconduct procedures in Chapter 75. This is a perfectly legal approach, and, in certain circumstances, it makes more sense than using the Chapter 43 procedures. See Lovshin v. Navy, 767 F.2d 826, 843 (Fed. Cir. 1985) (en banc).

A recent MSPB case involved an agency that removed an employee in exactly this manner. Gist v. DOD, DC-0752-18-0614-I-1 (Jun. 12, 2024)(NP). Here are some relevant facts:

  • The appellant, a GS-15 senior accountant, received his annual performance appraisal with a summary rating of “Not Met” because his performance was unacceptable on two critical elements: “Teamwork” and “Support of Mission.”
  • The agency proposed his removal under 5 U.S.C. Chapter 75 based on a charge of “Duty Performance at the ‘Not Met’ Level,” with a specification that said “the appellant ‘failed to create an overarching financial reconciliation [Standard Operating Procedure (SOP)] and to monitor reconciliation activity on a regular basis’ as he had been directed to do … and he ‘failed to effectively work well with others to get the job done.’” at 2.
  • He appealed his removal, claiming, among other things, that the assignment of the SOP was improper because he lacked the necessary background to complete it, that the assignment was vague and improper, and that he was given inconsistent instructions on how to actually complete the SOP.
  • The AJ and the Board disagreed with the appellant and found the agency’s assignment was proper, that the appellant was unnecessarily causing tensions within the team, and that the agency proved its charge.

The appellant also argued that because the agency claimed he had performance issues, he should have been given a PIP, and that “if the agency had followed the prescribed [PIP] procedures, he would have improved his performance, and the entire removal action would have been avoided.” Id. at 7.

Which brings up another interesting point. An agency is not required to give a PIP in order to remove an employee for unacceptable performance under Chapter 75 – unless it has a policy that says it must.

So, in effect the Board agreed with the appellant about the entitlement to a PIP period, relying on the following:

DOD Instruction No. 1400.25, § 3.9.b explicitly acknowledges that a performance-based action can be taken under either authority (Chapter 43 or 75), and it provides without differentiation that, if an employee’s performance declines to an unacceptable level, the supervisor must inform him of the deficiency and provide him assistance to help him improve his performance during an opportunity period to demonstrate acceptable performance. Although this is not normally required in a Chapter 75 performance-based action … the agency here has imposed this additional requirement on itself and is, therefore, bound to follow it… We find that the agency followed its requirements as stated in DOD Instruction No. 1400.25, § 3.9.b for taking a Chapter 75 performance-based action. (bold added, internal citations omitted)Id. at 8.

However, the Board also found that while the agency did not put the employee on an official PIP, it met its own policy requirement, because:

  • The supervisor informed the appellant of his performance deficiencies during his midyear performance evaluation, a full 4 months before the agency proposed the appellant’s removal;
  • The agency provided the appellant with ample time to bring his performance up to standards; and
  • The appellant’s supervisor met with him every other week about the SOP assignment, which satisfied the obligation to assist the appellant in improving his performance.

Because the agency afforded the appellant all the procedural protections that the DOD rule required for performance-based actions under chapter 75, the Board upheld the removal.

I discussed this case with FELTG founder Bill Wiley. I asked if he had any additional thoughts, and he shared the following:

Although the agency was successful in defending its removal of an unacceptably performing employee by using 752 procedures instead of 432 procedures, it gave itself two significant extra burdens. First, it had to defend the penalty selection of removal under Douglas. That means that it had to produce proof of the agency’s proper consideration of the Douglas Factors as well as proof of the facts alleged in the Douglas Factor analysis. Second, it had to do all this proving at the preponderant level (51%+ of the evidence) rather than at the substantial level (40%+) that is used for 432 removals. Yes, certain types of unacceptable performance situations are better addressed through use of the 752 procedures, e.g., a single act of highly harmful unacceptable performance. However, as a general rule, here at FELTG, we still recommend 432 procedures as a first and primary consideration when faced with a non-performer.

hopkins@feltg.com

The Good News: Reassignments Can Work for Everyone!

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By Ann Modlin Boehm, August 12, 2024

Quick facts:

  • Most people end up in a job they don’t like at some point in their careers.
  • Many of those people are afraid of change and typically choose to just stick it out in the unhappy job situation. This can sometimes lead to performance and attitude problems.
  • Reassigning an employee doesn’t have to mean dumping a problem on another manager.

Have you ever been in a job you do not like? I hope the answer is not, “Yes, my current one.” But it could be. If you have ever been in a bad job, you know it is not a fun situation.

Being in the wrong job makes for very long days. The work can be daunting and exhausting. Very often, your performance suffers.

During my career, I had a few jobs I really did not like. Sometimes, I did not like the duties of the job, and sometimes, I did not like my supervisor. (I wonder if any of my former supervisors are reading this and wondering if they fell into that last category.)

I am not afraid of change. When I was unhappy in a job, I started looking for a new one. I searched dutifully on USAJOBS for new opportunities. And sometimes, I searched for a detail or reassignment opportunity within my agency.

Those efforts worked for me, but many people are afraid of change. People who do not like change typically choose to stick it out in their unhappy job situation rather than look for another opportunity.

Supervisors know when an employee is performing poorly or when their bad attitude is creating toxicity in the workplace. What supervisors often miss in those situations is that the root cause of the performance and attitude problems is that the employee just does not like the job.

Too often, supervisors tend to believe this kind of employee will not succeed in any job. That belief may keep them from helping the employee find a reassignment within the agency. There is a fear that they will be dumping a problem on someone else, but that should not be a foregone conclusion.

During my Federal career, I observed several “problem” employees in one environment end up thriving in another environment. Very often, a supervisor with a different personality made all the difference. Or the employee found a job better suited to their skillset.

I encourage supervisors and advisors to think about a reassignment as an option for an unhappy employee. As a first step, it is a good idea to talk to the employee and find out if they like their job, and if not, what other agency jobs might interest them. Then, look around and ask around and see if there is a job opening within the agency.

To avoid dumping a problem, explore a detail. Make it clear to the employee and the receiving supervisor that if the detail is not a success, the employee will return to the original position. If the employee thrives, the reassignment can be permanent. If they fail, you now have an indication that this employee may just be a poor employee. And yes, then the original supervisor will have to deal with that situation.

If a reassignment works, you can go from an unhappy supervisor and unhappy employee to two happy supervisors and happy employee. And that’s Good News! boehm@feltg.com

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Accommodations: Reasonable Doesn’t Always Mean Preferred

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By Frank Ferreri, August 12, 2024

Quick facts:

  • An SEC attorney had dyslexia and ADHD, which affected her concentration and ability to read and write.
  • The attorney was provided with accommodations, but the agency denied the mode of training she preferred for some of those accommodations.
  • The court found the agency engaged in a good-faith interactive process for Rehabilitation Act

Those who have experience with the interactive process know an employee with a disability often is the best source for finding accommodations that will work best to ensure the employee can perform the essential functions of her job.

However, as Uygur v. Gensler, No. 24-975 (E.D. Pa. July 19, 2024) recently demonstrated, an agency doesn’t have to fulfill all of the employee’s requests to meet its Rehabilitation Act duties.

What happened in Uygur?

A longtime attorney with the U.S. Securities and Exchange Commission was diagnosed with dyslexia and attention deficit hyperactivity disorder, which impacted her concentration and ability to read and write. The SEC provided her with three computer training programs. The agency also assigned the human resources disability program officer to help the attorney install the programs and learn how to use them.

Within a couple of months, the attorney requested live, in-person training rather than the computer-based options. The attorney said she struggled with the SEC’s virtual training platform.

The agency had previously used a Philadelphia office to conduct in-person training on computer programs. The SEC denied the request because all Philadelphia-based employees, like the attorney, were participating in the training virtually.

The attorney submitted a letter from her physician explaining why in-person training was needed to address the attorney’s disabilities. The agency approved the attorney to attend an in-person conference in Washington, DC, which was the subject of a separate request. However, according to the attorney, the agency would not apply the letter to her request for in-person computer program training.

The attorney filed a complaint with the Equal Employment Opportunity Commission for disability discrimination and eventually was granted the right to file a civil action, which she did in the form of a Rehabilitation Act suit alleging a failure to accommodate.

To establish a failure to accommodate under the Rehabilitation Act, an employee must show:

  1. She had a disability, and the agency knew it;
  2. She requested an accommodation or assistance;
  3. The agency did not make a good-faith effort to assist; and
  4. She could have been reasonably accommodated.

In this case, only the third factor was at issue. That factor turned on whether the agency engaged in the interactive process. The court cited Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) to explain that the interactive process under the Rehabilitation Act “does not dictate that any particular concession must be made” by an agency. Instead, agencies are required to make a good-faith effort to seek accommodations.

The court found SEC made the requisite good-faith effort to follow Rehabilitation Act requirements by:

  1. Allowing the attorney to attend the DC conference in person;
  2. Providing the attorney with three assistive computer programs; and
  3. Facilitating training on the computer programs, “albeit virtually as opposed to in person.”

The court faulted the attorney for not presenting enough evidence of her failure to accommodate the claim.

“The complaint provides no detail on whether, or how, [the attorney] was left unable to enjoy the equal benefits and privileges of employment by receiving virtual rather than in-person training on the three assistive computer programs provided to her as an accommodation,” the court explained. “Nor does the complaint allege … how [the attorney’s] ability to work, or her status at the SEC, were negatively affected by a lack of in-person training.” Id. at 7-8.

In the court’s view, the attorney was “provided every accommodation she requested except for her preferred method of training on the assistive programs.” Id. At 9.

As a result, the court dismissed the employee’s Rehabilitation Act claim.

The Lesson

A good-faith interactive process is one that rests on the agency and employee working together toward the shared goal of creating the work environment under which the employee will be able to perform the essential functions of the job.  The Uygur court was satisfied with the agency’s efforts toward that goal because the agency delivered the “what” of the accommodations the attorney requested with only a slight deviation from the “how” of them.

It makes sense that an employee with attention-deficit challenges might do better in an in-person setting, but the Rehabilitation Act doesn’t require optimal accommodations, only reasonable ones. Although the court didn’t highlight it, it was probably also a plus that the agency didn’t rule out in-person training as categorically off-limits. Instead, it provided the employee with in-person options when appropriate and offered her the training needed to use the computer programs she requested. info@feltg.com

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It’s Time to Get HIP(AA) to the Hatch Act

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By Dan Gephart, August 12, 2024

Quick facts:

  • A Federal contractor with no authorization to do so traveled to a conference in Russia to offer the host nation a “peace mission” to Mars.
  • A Federal employee who ran for Senate said he didn’t violate the Hatch Act because he was “unaware” of it.
  • Special Counsel Hampton Dellinger announced two important updates to OSC enforcement of the Hatch Act.

Remember a few years ago when everybody seemed to be an expert on the Health Insurance Portability and Accountability Act? HIPAA (not HIPPA as those self-anointed authorities often wrote) is the Federal law that protects sensitive patient health information from being disclosed by medical providers without the patient’s knowledge or consent. Too many people seemed to be unaware of the extent of the law.

The most telling example was when a congresswoman was asked at a press conference in 2021 whether she received the COVID-19 vaccine. She replied that the reporter’s question was a “violation” of her HIPAA rights. Now more people know: Not only does HIPAA not prevent reporters from asking elected officials about their vaccination status; it also doesn’t prohibit workplaces from asking the same question.

I sometimes think of the Hatch Act as the HIPAA of election seasons. For a law that impacts so many Federal employees, a lot still fail to grasp its aim or restrictions.

Take for example, the contractor who received permission to virtually attend the Global Space Exploration Conference in Russia in 2021. Singh-Derewa v. NASA, DA-1221-23-0239-W-1 (May 21, 2024)(ID). The contractor attended in person and identified himself as a NASA employee. (Note: To reiterate, he was a contractor — not an employee of NASA, although he once was employed by NASA, nearly 20 years earlier.)

It turns out traveling without proper clearance is a serious violation of Department of State travel requirements. Following a review of the incident, the contractor was suspended, and later terminated. He was also rendered ineligible for rehire.

After attempting to work with another contractor in the same space center, he filed a complaint with the Office of Special Counsel, which included a Hatch Act component. If you’re scratching your head trying to figure out where the Hatch Act would come in, you’re not alone. Here are the details from the MSPB administrative judge’s decision.

[T]he appellant alleged NASA Administrator William Nelson violated the Act when he discouraged the appellant’s attendance at the 2021 GLEX Conference at which the appellant had planned to present a “peace mission” to Mars with Russia to prevent a “democrat war” with that country. Id. at 15, 21-24. The appellant further alleged Nelson had “collaborated with the Biden administration to prevent and discourage participation in ‘political activity’ that may prevent conflict and avert a potential nuclear war.”

As the OSC explained, and the AJ concurred, “even if the appellant’s allegations are true, they did not give rise to a Hatch Act violation because the alleged activity was not directed at the electoral success or failure of a political party.” Id. at 4.

Then there is the VA physician who ran for the Senate. OSC filed a Hatch Act complaint against the physician. His reply? “[B]ecause he was unaware that the Hatch Act prohibited his candidacy, he did not knowingly or willfully violate” it. Special Counsel v. Salekin, CB-1216-18-0004-T-1 (MSPB May 24, 2024).

The VA provided Hatch Act information in new employee orientation, maintained a Hatch Act FAQ page on its website, and sent Hatch Act emails to all employees in 2012 and 2014 – the year the physician tried to run for office. The physician did not open the 2012 email, asserting, “if I thought it was important to read, I would read [it].”

Ignorance, it seems, is no defense against a Hatch Act violation. It cost this want-to-be Senator a $1,000 fine and disbarment from Federal service for five years.

As we head into the election homestretch, it’s not the time to overlook the Hatch Act. You may not take it seriously, but OSC will.

In a recent op-ed piece for Politico, Special Counsel Hampton Dellinger put White House officials on notice that it was closing the “escape hatch.”  “[P]rior OSC statements that White House officials cannot face Hatch Act enforcement in the same way other federal civilian employees do are no longer in effect,” Dellinger wrote.

He also noted two important updates to OSC enforcement.

First, we will no longer automatically rule out bringing actions against former government employees. As the MSPB has advised: an “employee’s post-violation resignation does not eliminate the case or controversy between the employee and the Special Counsel concerning whether the employee violated the Hatch Act and, if so, what penalty is warranted.”

Second, the wearing or displaying of items in the workplace related to current political figures should be considered contrary to the Hatch Act regardless of whether it is before or after Election Day. Among the reasons for a blanket prohibition on such items while federal workers are on duty or in their office is the clear connection between political candidates and political parties. OSC has long advised that political party swag (T-shirts, hats, mugs) is banned year-round. It is logical and workable to apply the same rule to individual political figure paraphernalia, particularly items referencing presidential candidates who are, understandably, well-defined in the public’s mind as aligned with specific political parties.

Meanwhile, lawmakers are getting serious about the Hatch Act, too. The list of positions “further restricted” from partisan activity would grow under a new bill to include agency offices of inspectors general. The IGs would join the CIA, NSA, MSPB, OSC itself and more than a dozen other agencies that are held to more stringent standards than most Federal employees. gephart@feltg.com

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