The Good News: You Don’t Have to Over-Santos Santos!

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By Ann Boehm, November 13, 2023

Time, once again, to talk about Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021) – the universally disliked Federal Circuit case that changed 40 years of MSPB case precedent. Because of Santos, agencies must provi de substantial evidence of unacceptable performance before implementing a performance improvement plan (PIP).

Among the problems with Santos is the fact that the Federal Circuit did not say anything about how agencies are to show substantial evidence of unacceptable performance that occurred before the PIP began. Nothing. Nada. The MSPB has not really done much to help with this conundrum either.

FELTG founder Bill Wiley wrote a great article in April about how agencies should proceed post-Santos. Providing what he described as “admittedly legally conservative FELTG advice to Federal employment law practitioners,” Bill provided these steps to follow:

  1. Make sure the employee has been given performance standards (with critical elements identified) and has had at least a couple of months to get used to them.
  2. Collect evidence of mistakes the employee has made recently that demonstrate he is performing unacceptably under at least one of his critical elements.
  3. Incorporate reference to these mistakes in the PIP initiation memo. The supervisor should retain evidence of the mistakes but does not have to provide that evidence to the employee at this time. However, if you want to give this list to the employee, we recommend attaching it to the end of the PIP initiation so as not to start off on a negative and put the employee on the defensive.

Simple enough, right? So why am I revisiting the Santos requirement just a few months later? Because agencies are overcomplicating things! During a recent training event, a frustrated supervisor explained that agency counsel wanted to conduct a pre-PIP before instituting a PIP, because counsel was afraid of Santos. Arghhh.

Please do not overcomplicate things, my friends! Stick with logic. Stick to simple. There’s no case law from the MSPB or Federal Circuit indicating a pre-PIP is necessary to satisfy Santos.

Even with Santos, I still believe that the performance removal process can be the easiest way to remove a problem employee. But not if agencies go to illogical extremes because of risk aversion.

With Santos, you just have to provide some evidence of poor performance before you initiate the PIP. And only substantial evidence of that poor performance. Try Bill’s “admittedly legally conservative” way. It’s what we teach here at FELTG.

And if you believe us, here’s the Good News – you don’t have to over-Santos Santos! Boehm@FELTG.com

It’s a Bumper-to-Bumper Ride When Determining Hostile Environment

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By Ann Boehm, October 16, 2023

While teaching a recent class about hostile work environment, a participant asked me if an offensive bumper sticker on a co-worker’s car could create a hostile work environment.

Hmmmm. Interesting question.

Let’s work through this, shall we?

First, what is a hostile work environment? To establish a hostile work environment, an employee has to show that: “(1) he belongs to the statutorily protected class; (2) he was subjected to unwelcome conduct related to his membership in that class; (3) the harassment complained of was based on [the protected status]; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer.” Xavier P. v. Patrick R. Donahue, Postmaster General, EEOC Appeal No. 0120132144 (Nov. 1, 2013).

[Editor’s note: Hostile work environment is one of the challenging topics that will be covered during Advanced EEO: Navigating Complex Issues on Nov. 15-16 from 1-4:30 pm ET each day. Register now for one or both days of training.]

Next, is a picture or symbol something that can create a hostile work environment? According to the above-cited Xavier P. case, the answer to that question is most certainly, “yes.”  What created the HWE in that case? “Caucasian employees in [the employee’s] work area wore t-shirts featuring the Confederate flag several times a month, and management took no action despite receiving complaints about it.” Id. The union president informed the postmaster that some employees found the t-shirts offensive and asked management to take action to prohibit the t-shirts in the workplace. The postmaster had a subordinate supervisor tell employees “not to wear revealing clothing or clothing with ‘political’ messages.” Id.  The employees “were never instructed not to wear or display images of the Confederate flag.” Id.

The EEOC concluded the t-shirts subjected the employee to unlawful racial harassment. It also found the agency liable for not taking appropriate corrective action to stop the harassment.  If wearing a Confederate flag t-shirt in the workplace constitutes racial harassment, could that carry over into the parking lot? I think so, but I did not find much guidance in case law on bumper stickers. I did find one EEOC “bumper sticker” case. Lockwood v. John E. Potter, Postmaster General, EEOC Appeal No. 0120101633 (2010). The employee did not claim HWE, only discrimination based on race and sex after seeing a bumper sticker in the office trash can that said, “When All Else Fails Blame The White Male.”

The bumper sticker was removed from the trash can, and it eventually was placed on the complainant’s personal vehicle – but not while the car was parked on agency property. (Can we all agree that the facts of this case are just plain weird? Who puts a bumper sticker, particularly one that could be offensive, on someone else’s personal vehicle?)  The EEOC found no discrimination because the complainant “failed to show how the alleged incidents resulted in a personal harm or loss regarding a term, condition, or privilege of his employment.” Id.

So, what about an offensive bumper sticker on a personal vehicle parked on agency property? Sorry to do this. I have to give a lawyerly answer here.  It depends. The EEOC told us that a Confederate flag in the workplace was racial harassment. Logically, that could cross over into an agency parking lot. Things that could impact on creating a hostile work environment: location of the parking lot (do people have to pass the car?; is it a small parking lot with few cars or large parking garage with many floors?); whether certain employees have assigned parking spaces (the union president or senior officials – knowing who is displaying the bumper sticker could make a difference); and the particular symbol on the bumper sticker (Confederate flag; sexually suggestive pictures or phrases).  Would a bumper sticker of a skeleton hand extending a middle finger create a hostile work environment? (Yep, I drove onto a government facility behind that one.) Offensive, perhaps. Hostile work environment, probably not. Hard to say that one is tied to any particular protected status. What’s an agency to do?  Employees have a right not to be subjected to a hostile work environment. Offensive symbols or pictures can create a hostile work environment.

There is the potential for a bumper sticker to create a hostile work environment. It all comes down to a fair analysis of the totality of the circumstances in light of the legal standard.  The big takeaway from all of this – take a complaint about an offensive bumper sticker seriously.  Instead of telling you that’s Good News, like I usually do with this article, I’m just going to say: Good luck out there! Boehm@FELTG.com

The Good News: The PWFA Is Good for Employees and Easy for Agencies

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By Ann Boehm, September 11, 2023

Have you heard about the newest anti-discrimination law? On Dec. 29, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) into law. It’s the first new anti-discrimination statute since 2008. It went into effect on June 27, 2023.

What is it exactly? The PWFA recognizes that there are gaps in the Federal legal protections for workers affected by pregnancy, childbirth, or related medical conditions, even though they may have certain rights under existing civil rights laws (gaps in Title VII, the Pregnancy Discrimination Act, ADA, and FMLA). 42 U.S.C. § 2000gg. The PWFA allows workers with uncomplicated pregnancies to seek accommodations, recognizing that even uncomplicated pregnancies may create limitations for workers.

[Editor’s note: Join us on Nov. 14 for Up to the Minute: The Latest Changes to Reasonable Accommodation for Pregnancy, Disability, and Religion.]

Agencies violate the PWFA if they do not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless the agency can demonstrate that the accommodation would impose an undue hardship on the agency’s operation. Sounds a lot like reasonable accommodation under the Americans with Disabilities Act, right?

Yes! That’s precisely the goal of the PWFA. It acknowledges that a pregnancy without complications is not a disability under the ADA, but any pregnancy still might require some reasonable accommodation. And let’s be honest here. Unless your employee is an elephant (elephants have the longest gestation period of any mammal), it’s usually a short-term accommodation.

What would be examples of the PWFA reasonable accommodations? Schedule changes; telework; parking spaces closer to the entrance; light duty; additional breaks, especially in more physically taxing positions; modifying the work environment; removing a marginal function such as climbing ladders or moving boxes; modifying uniforms or equipment; and adjusting exams or policies that require physical exertion.

Of course, there could be more options. It’s an interactive process – just like the ADA.

Truth be told, most agencies are probably already doing these things for pregnant employees. The EEOC has long held that an employee temporarily unable to perform the functions of her job because of a pregnancy-related condition must be treated in the same manner as other employees similar in their ability or inability to work. This new law should not require substantial adjustment in how the government does business.

As I often say with any request for a reasonable accommodation – treat the employee requesting it like a human being. The agency’s mission must be accomplished, but supervisors should figure out a way to accommodate a pregnant employee’s needs for the limited time the accommodations are needed. It’s always been a good idea. And now it’s the law. For so many reasons, that’s Good News. Boehm@FELTG.com

Good News: Hostile Work Environment is Harder to Prove Than You Think

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By Ann Boehm August 14, 2023

A “hostile work environment” as a form of discrimination has been prohibited since the 1980s.  The Equal Employment Commission’s guidance and regulations on what constitutes sexual harassment, from the 1980s through now, describe illegal harassment as conduct that creates an “intimidating, hostile, or offensive working environment.” 29 C.F.R. 1604.11(a)(3). The EEOC’s guidance on harassment based upon any of the protected statuses (race, color, religion, sex, national origin, age, disability, or genetic information) uses similar descriptive terms—to be unlawful, the conduct would be considered “intimidating, hostile, or abusive.” https://www.eeoc.gov/harassment

Although “intimidating,” “offensive,” and “abusive” are used along with “hostile” to describe illegal harassment, the phrase that has stuck in the lexicon as prohibited harassment is “hostile work environment.” Yes, folks, we talk about an “HWE,” not an “IWE” or “OWE” or “AWE.” Unfortunately, I think the word “hostile” lends itself to being misinterpreted by many, many employees.

The Merriam-Webster online dictionary defines “hostile” as “of or relating to an enemy; marked by malevolence; having or showing unfriendly feelings; openly opposed or resisting; not hospitable.” Employees focus on the word “hostile” and think any slight in the workplace is a hostile work environment.

Based upon the dictionary definition of “hostile,” that makes sense. But this definition is very different from what is considered a “hostile work environment” under the EEO laws.

EEO practitioners know that to establish a discriminatory “hostile work environment,” an employee first must show physical or verbal conduct. Second, that conduct must be unwelcome and based upon the employee’s protected status. Third, the conduct must be so severe or pervasive as to alter the terms, conditions, or privileges of employment.

Employees know that they are protected from a “hostile work environment” under the EEO laws, but they often stop with the word “hostile” and fail to understand the requirements of what is legally a “hostile work environment.” Being asked to do an assignment the employee does not like is not a “hostile work environment.” A supervisor failing to say good morning is not a “hostile work environment.” Being given a low performance rating based upon legitimate performance concerns is not a “hostile work environment.”

[Editor’s note: Hostile work environment will be covered along with numerous other EEO issues during EEOC Law Week Sept. 25-29. Register now.]

I could go on and on. The perception among too many employees is that any perceived wrong by a supervisor is a “hostile work environment.”

Don’t get me wrong. Illegal harassment still happens far too often, and it is not acceptable. I just feel that the frivolous or non-meritorious complaints get in the way of the legitimate ones.

Employees have the right to complain about perceived discrimination. But it is unfortunate that they do not understand what an EEO hostile work environment is. Would it be a better world if we used “offensive work environment” instead of “hostile?” Perhaps. We are stuck with “hostile,” though.

How do we fix this? First thing – educate. Training can help. If an employee starts the EEO process, EEO counselors can educate them on what must be proven in a hostile work environment case. Mediators, judges, and counsel involved in the EEO process can all educate too.

Education may not rid us of wrong-intentioned hostile work environment complaints, but it may help. For those complaints that are not resolved, agencies need to have the fortitude to litigate the hostile work environment cases and ensure the legal requirements of a discriminatory hostile work environment are properly analyzed. What an employee perceives is “hostile” is not necessarily illegal harassment.

As I learned from an EEOC judge years ago, employees prevail on EEO complaints at a pretty low rate. But in 100 percent of the cases, the employee is upset about something. We are stuck with the word “hostile.” But what legally constitutes a “hostile work environment” is more than just a supervisor showing unfriendly feelings. Agencies can prevail in those cases. And that’s Good News. Boehm@FELTG.com

The Good News: Fed Circuit Offers Reminder to Charge Carefully

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By Ann Boehm, July 18, 2023

An agency lost a removal case before the Federal Circuit this month. In Williams v. Federal Bureau of Prisons, an arbitrator sustained the employee’s removal, but the Federal Circuit vacated and remanded the arbitrator’s decision because the arbitrator failed to properly analyze the Douglas factors. Williams, Case No. 2022-1575 (Fed. Cir. July 6, 2023).

If you just read that quick summary of Williams, the decision seems to be pro-employee and bad news for agencies. But here’s the thing: The decision is completely consistent with years of MSPB and Federal Circuit precedent. And the lesson agencies should learn from it is – charge carefully, or have your penalty at the mercy of arbitrators, administrative judges, the MSPB, and the Federal Circuit.

To make sure our good friends of FELTG don’t face a similar situation, let’s review what happened in Williams.

Ms. Williams started work as correctional officer at the Federal Correctional Complex in Beaumont, Texas (FCC-Beaumont) on March 4, 2018. Before that, in January 2016, she met Alex Hayes. They were engaged in July 2018, and had a child together in September 2018.

So, what’s the big deal here? Turns out Mr. Hayes had been in Bureau of Prisons (BOP) custody in his past – from June 2005 to July 2013 – and on supervised release until July 15, 2018. He even spent some time at FCC-Beaumont. The problem for Ms. Williams was the BOP Standards of Employee Conduct prohibit employees from becoming involved with inmates or former inmates, and if they do engage in such improper conduct, they must report it in writing to the BOP. Former inmate, as defined by BOP, means less than one year has elapsed since release from BOP custody or supervised release. Mr. Hayes fit into this category until July 2019.

BOP was ahead of Ms. Williams in knowing about Mr. Hayes’s former inmate status. In May 2019, they placed her on administrative reassignment, and Internal Affairs investigated her improper contact with a former inmate and failure to report the contact. Ms. Williams knew Mr. Hayes had been incarcerated but did not know about his BOP past until she heard rumors. She questioned Mr. Hayes. On June 3, 2019, she learned he had been in Federal custody. She reported this to BOP the next day.

[Quick aside here. It just seems to me if you are engaged and have a child with someone, some of your conversations might get into, “Hey, where have you lived in the past?” “Ever been in Beaumont before?” “Any chance you have ever been in Federal prison — for 8 years or so?”]

The Internal Affairs investigation, which ended in July 2019, found Williams had engaged in improper conduct with a former inmate and failed to timely report the contact. On Feb. 5, 2020, the BOP issued a notice of proposed removal based on two charges: (1) improper contact with a former inmate; and (2) failure to timely report. The final decision removing Ms. Williams was issued on April 22, 2021.

Ms. Williams challenged her removal before an arbitrator. The arbitrator sustained the charge on improper contact but did not sustain the charge on failure to report. In not sustaining the failure to report charge, the arbitrator explained that Ms. Williams immediately reported the contact as soon as she found out about Mr. Hayes’s past.

I’m sure you astute FELTG readers know, as the Federal Circuit reminded us in Williams, “when an arbitrator sustains fewer than all the agency’s charges, the arbitrator ‘may mitigate to the maximum reasonable penalty’ for the sustained charges unless the agency has indicated it desires a lesser penalty be imposed on fewer charges. Williams at 4 (citing Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999)). The BOP had not indicated it desired a penalty less than removal if only one charge was sustained, so the arbitrator should have independently analyzed the Douglas factors to determine a reasonable penalty for the one sustained charge. [Learn more on this subject. Purchase a recording of FELTG’s 60-minute training The Role of the Douglas Factors in Arbitration.]

The arbitrator did not do this, even though he indicated it would be just and fair to change the removal to a long suspension. He also failed to independently analyze the Douglas factors and deferred to the deciding official’s Douglas analysis. Because the arbitrator misunderstood and misapplied the law, the court vacated the removal and remanded for the arbitrator to independently analyze the relevant Douglas factors to determine the maximum reasonable penalty. What can agencies take away from this case?

  • Charge properly. Remember that you must prove a charge by preponderance of the evidence, or 51 percent.
  • If you think there is a chance any of your charges may fail, the Douglas factor penalty analysis should mention an alternative penalty in that situation.
  • Remember that arbitrators often have very little experience with the Federal disciplinary process. Advocates should do their part to educate them.

Williams is not a new case that is averse to agencies. It is simply a good reminder of how things work in discipline. And that’s Good News! Boehm@FELTG.com

The Good News: Words and Attitude Matter — and Can Justify Removal

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By Ann Boehm, June 14, 2023

Frequently, folks in FELTG training classes ask how to handle an employee who is rude, or angry, or disruptive, or makes inappropriate comments, or writes inappropriate emails. Often, these folks mention complaints from other staff members or supervisors about the employee’s behavior. And for some reason, they often fear taking action against the employee for the disruptive behavior.

A FELTG trainee’s recent inquiry about an employee’s disruptive behavior prompted me to look at Merit Systems Protection Board (MSPB) cases to see whether the Board thinks these types of matters merit discipline and even removal. Lo and behold, the Board does!

In one case, the agency removed an employee based upon 18 (!!) specifications of conduct unbecoming a Federal manager. Hornsby v. FHFA, DC-0752015-0576-I-2 (April 28, 2022) (NP).

One of the 18 specifications involved an incident that occurred during a meeting with a colleague. The employee held up an email from another employee and said he found it to be “’[expletive] offensive.’” Id. at 8. The colleague wanted to leave the meeting based upon the employee’s use of the expletive. Although the Administrative Judge did not think the single use of the expletive was conduct unbecoming, the Board disagreed. Id.

The Board sustained the specification, noting that it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.” Id. at 9 (emphasis added). The Board cited two cases sustaining removal for such behavior. Id. [Side note:  Those are good cases to review if you have an employee who is rude, discourteous, disrespectful, or using abusive language. They are Holland v. DoD, 83 MSPR 317 (1999), and Wilson v. DOJ, 68 MSPR 303 (1995).]

The Board ended up sustaining only five of the 18 specifications, including the use of the expletive. It also sustained the specification about the employee revealing the name of an EEO complainant to those without a need to know; one where the employee put his hands over the mouth of a colleague to stop him from speaking in a meeting (who does that in the workplace!?); one where he intimidated agency attorneys by suggesting that if they did not edit a memo to his liking, the memo could be a “’career ender’”;  and one where he asked the Human Resources Director to intervene to make his supervisor give him a higher performance rating (that one included an email directing the intervention and threatened legal action). Id. at 9-14. These actions were all enough for the Board to reinstate the removal that had been reversed by the Administrative Judge. Id. at 23-27.

Other inappropriate conduct to take very seriously is anything threatening harm to others — especially in today’s violence-filled environment. In Barker v. Department of the Army, DC-0752-15-1056-I-1 (May 22, 2023) (NP), the employee said, “‘They are pushing me over the edge. You think they would be concerned about that with all these shootings.’” The agency removed him based on charges of conduct unbecoming a Federal employee and lack of candor. Id.

Even though the Board sustained only the conduct unbecoming charge, it still found the penalty of removal to be reasonable. Id. at 11-14. Factors that supported the reasonableness of removal included the employee’s past 14-day suspension for threatening to kill his supervisor (which, in my opinion, should have been a removal), and because the employee’s comment was made soon after a shooting at a nearby Fort. Id. at 13-14.

As human beings, we know what constitutes inappropriate workplace behavior, yet I fear agencies tolerate it more than they should. Take the allegations seriously and investigate. Then see what the Board has said about similar misconduct. And always, always, always take threats seriously.

We have plenty of good employees in the Federal government. Don’t subject them to rude, angry, inappropriate, and threatening behavior by the bad ones. The Board says you should be able to remove the bad ones for such conduct. That’s Good News! Boehm@FELTG.com

The Good News: Reassignment May Be the Best Thing for Everyone

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By Ann Boehm, May 16, 2023

Our FELTG classes on performance and misconduct emphasize that before supervisors take action against a problem employee, they try everything else first.

Reassignment is one of the suggested things to try.

I worked in the Federal government long enough to realize that, too often, reassignment means “dump the bad employees over there.” That’s not a good solution to a problem employee situation. But there can be reassignments that benefit the supervisor, the employee, and the agency! The key is being creative and flexible enough to figure out whether the right reassignment exists.

In my own career, I had bosses I liked more, and bosses I liked less than others. Sometimes, my personality did not mesh with the supervisor – and that’s OK. Recognizing personality differences, and the impact they have on workplace interactions, is a good thing. One thing I believe in strongly is that there is no way to change someone’s personality – yours or the employee’s. Finding a supervisor whose personality meshes better with the employee may turn a bad employee to a good one – or at least a better one.

Another thing that can impact on an employee’s job satisfaction is organizational change. It could be a change in leadership, mission focus, work schedule – you name it. I used to joke that any time I said I loved my job, something would change to make me dislike it. Agencies are constantly changing.

When I found myself in an unhappy workplace situation, I took it upon myself to seek out details or other reassignment options in the agency. During my career, those efforts worked well for me.

Not all employees will have the confidence to seek out their own reassignments, even when they are miserable in a job. Sometimes, it is because they fear they will be labeled as a complainer. Sometimes, it is because they do not like change. But if a supervisor encourages that change, it may result in the colloquial “win-win” situation.

How does one go about suggesting a reassignment without it seeming like an attack on an employee? Often it starts with a conversation asking the employee if they are content with their position. That can morph into questions about whether they have thought about any other jobs within the agency that interest them. And with the information gathered, the supervisor can start to explore options.

Agencies typically have many vacancies. The old saying, “Better the devil you know than the devil you don’t,” has some truth to it. Hiring someone brand new can be a roll of the dice — could be great, or, yikes, even worse. There may be a good fit for an existing employee somewhere else, and it may not require too much effort to find it.

Also, a reassignment does not have to be permanent. A temporary detail is a good way to find out if the employee will be happy in the new position, and if the receiving supervisor is happy with the new employee.

If you are dealing with a problem employee, do a thoughtful analysis of the root cause of the issues. Think about reassignment as a possibility. It may be the best thing for everyone. And that’s Good News! Boehm@FELTG.com

The Good News: Here’s the Secret to Handling Problem Employees

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By Ann Boehm, April 17, 2023

As a FELTG instructor, I regularly hear comments from class participants. Supervisors often tell me they are frustrated by what they perceive as lack of support from the Human Resources (HR) professionals. But HR professionals often tell me that they aren’t psychic, and they cannot help supervisors who do not reach out to them and seek their help in dealing with a problem employee.

What we have here is a communication problem. Effective communication requires both talking and listening. And at its core, in the Federal personnel world, effective communication requires the supervisors and the HR professionals to listen and hear with the common goal of taking care of the agency’s mission by taking care of problem employees.

How do we improve the communication between managers and HR?

Let’s start with the talking. Supervisors need to reach out to HR when they first start realizing they have a problem employee.

Don’t delay – odds are that the problem is not going to go away. Allowing the situation to fester just leads to frustration, and even may complicate the process for handling the problem employee.

In addition, supervisors need to explain not just the issues with the employee, but how it impacts the supervisor’s job, their employees’ ability to perform their jobs, and – here’s that word again – MISSION. Supervisors, you cannot expect HR professionals to understand your workplace. They support people in very diverse areas of the agency. You need to educate them about the practical impact of the problem employee’s actions. And fundamentally, you need to ask them to help you.

Let’s now turn to listening. HR professionals, please listen to the supervisors and try your level best not to respond with, “You can’t do that.” You need to appreciate that when the supervisor comes to you, they are frustrated with the employee. You need to focus on how you can help them.

It’s highly likely that the supervisor will not understand the intricacies of discipline or performance in the Federal government, and their initial instincts may be a wee bit off base.

But HR professionals need to work with them to get them to a place of comporting with the law and still taking action to take care of the problem. Instead of “You can’t do that,” think about what steps can be taken to get on the path to successfully handling the problem employee. It’s your turn to educate them.

This sounds very simple, right? And in practice it should be. So, let’s review:

1) Supervisors, reach out to HR as soon as you realize you are having problems with the employee. Educate them on not just the employees’ problems, but the impact on your workplace.

2) HR professionals, use your skills to help the supervisor get on the right path to properly handling the problem employee. Appreciate the supervisor’s frustration and think creatively about the best way forward.

3) Supervisors and HR professionals, realize that the ultimate goal is to ensure the agency’s mission is fulfilled.

I know I’m an eternal optimist, but I truly believe that better communication is an easy way to handle problem employees.

And that’s Good News. Boehm@FELTG.com

Good News: Prompt Harassment Investigation Can Limit Liability

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By Ann Boehm, March 13, 2023

I frequently get asked, “Should the agency conduct a harassment misconduct investigation even if there is a pending EEO complaint filed by the alleged victim?” The answer is a resounding “YES!”

I should be surprised by this question, but I am not. I worked in agencies reluctant to investigate a harassment allegation for fear it could adversely impact on an EEO matter if the investigation uncovered harassment. The problem with that thinking is it does not comport with how liability is determined in a hostile work environment harassment case.

Let’s review some U.S. Supreme Court case law on harassment. In the landmark sexual harassment case Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Court explained that an employer can avoid liability for sexual harassment by a supervisor if the alleged harassing actions did not occur, the alleged acts were not “unwelcome,” the alleged harassment was not so “severe or pervasive” that it altered the alleged victim’s terms and conditions of employment, the employer took immediate and appropriate corrective action once it learned about the alleged harassment, and there was no basis for liability under agency principles. Id. at 67; see also Dollie T. v. Perdue, Sec’y of Agriculture, EEOC Appeal No. 2019003298 (Sept. 21, 2020).

In 1998, the Supreme Court provided more guidance on employer liability in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). These decisions explained that an employer is always liable for harassment that results in a tangible employment action. A tangible employment action harassment case arises when a supervisor undertakes, recommends, or threatens a tangible employment action based on a subordinate’s response to unwelcome sexual demands. Examples include a failure to hire or promote; undesirable reassignment; disciplinary action; or any decision causing a significant change in benefits.

If, however, there is no tangible employment action and the allegation involves a hostile work environment, employer liability is not a certainty. An employer can avoid or limit liability in a hostile work environment case by showing it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that the complainant unreasonably failed to take advantage of “any preventive or corrective opportunities provide by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 745.

What does an agency need to do to exercise reasonable care to prevent and promptly correct any harassing behavior? Along with having a policy that provides an avenue for employees to complain about harassment without fear of retaliation, the agency must have “a complaint process that provides a prompt, thorough and impartial investigation” and “assurance that the employer will take immediate an appropriate corrective action when it determined harassment has occurred.” Dollie T., EEOC Appeal No. 2019003298, at 14.

Simple, right? Promptly investigate a hostile work environment allegation and you are on the way to avoiding agency liability, even if the EEO process reveals there was indeed a hostile work environment. Of course, if the misconduct investigation also uncovers a hostile work environment, corrective action – typically removing the offending employee(s) from the workplace and often disciplining them – must also occur for the agency to avoid liability.

One more important aspect of this liability avoidance centers on the word “prompt.” The EEOC takes that word very seriously. In the Dollie T. case, the agency took three months to initiate the investigation. The EEOC said “[t]he Agency simply took too long and did not address this matter in a sufficiently prompt manner.” Id., at 15.

Ouch!

In my many years of government experience, getting something done in the government in three months is quick as lightning. Not so in the hostile work environment world. Prompt means really prompt!

What is really prompt? The agency avoided liability in Thornton v. Mike Johans, Secretary of Agriculture by implementing its process for addressing reported harassment “the day it was reported,” and initiating an investigation that resulted in a report being issued 54 days after the agency learned about the alleged hostile work environment. EEOC Appeal No. 01A60388 (Sept. 28, 2006).

Investigating promptly and taking effective corrective action can result in no liability for the agency. Completing an investigation in 54 days is prompt enough. Waiting three months to start an investigation is too long.

So, do you now understand my answer to the oft-asked question? Yes, you should investigate an allegation of hostile work environment regardless of whether an EEO Complaint is pending. And you need to commence it as soon as you learn about the allegation. You can avoid agency liability! You can ensure you have a workplace free of harassment. And that’s all Good News! Boehm@FELTG.com

Check out FELTG’s upcoming training Conducting Effective Harassment Investigations, April 25-27, 2023, on Zoom.

The Good News: Two FLRA Members Can Still Issue Decisions

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By Ann Boehm, February 14, 2023

On Jan. 3, 2023, FLRA Chairman Ernest DuBester’s term ended. This means the FLRA currently has only two members: now-Chairman Susan Tsui Grundmann, Democrat, and Member Colleen Duffy Kiko, Republican. With two members, the FLRA has a quorum that can continue to issue decisions. But will that happen with two members from different political parties? Several things indicate the answer to that question is, “yes.”

Let’s start by looking at what has happened since Jan. 3, 2023. The FLRA has issued six decisions since that date. That indicates that these two members, from different political parties, can indeed agree and issue decisions.

There is also historical information that suggests the FLRA will continue to issue decisions, even with two members from different political parties. From May 2000 to November 2000, Democrat Don Wasserman and Republican Dale Cabaniss were the FLRA’s members. They issued 100 decisions during that time. That means they agreed 100 times.

From August 1995 to February 1996, Democrat Phyllis Segal and Republican Tony Armendariz were the FLRA’s members. They issued 67 decisions during that time. That means they agreed 67 times.

Weird, isn’t it? People from different political parties can actually agree on something.

The FLRA has been around since 1978. Throughout its existence, we have seen that Republican members can be a little more pro-agency, and Democratic members can be a little more pro-union. But there are limitations on how those tendencies impact on FLRA member decisions.

For one thing, the FLRA members are charged with interpreting the very detailed Federal Service Labor-Management Relations Statute. It says what it says.

In addition, the FLRA members have guidance from 44 years of FLRA case law interpreting that same statute. There are also 40-plus years of decisions from the U.S. Courts of Appeals and U.S. Supreme Court interpreting that statute.

So, what does this all mean? Chairman Grundmann and Member Kiko are likely to issue a lot of decisions while they serve together. If they disagree, there is no quorum, and no decision will issue. History suggests we will not see that occur often. And that’s Good News. Boehm@FELTG.com