Kalpana Kotagal, the most recent addition to the Equal Employment Opportunity Commission, has vast experience in DEIA issues, including co-authoring the Oscar ceremony-famous “Inclusion Rider.” Learn more.
By Dan Gephart, March 11, 2024
With the constant changes in Federal employment law over the last several years, it’s sometimes easy to forget not only how useful the Douglas factors are when determining a reasonable penalty for employee misconduct, but also how long we’ve had these factors.
The Douglas factors turn 43 next month. The same day the decision in Douglas v. VA, 5 MSPB 313 (1981) was published, many Americans were turning (literally and physically) their television sets to CBS to watch brand new episodes of Dukes of Hazzard and Dallas.
Considering a large portion of the Federal workplace couldn’t tell Boss Hogg from Rosco or venture a guess at who shot J.R., let’s just say it’s been a while. To help keep your Douglas skills and knowledge sharp, consider these few tips.
1 – Make sure you’re spending a reasonable amount of time and effort on your Douglas analysis. How much is reasonable? In her upcoming (April 24) class Do You Really Know How to Use the Douglas Factors?, FELTG Instructor Ann Boehm suggests: “Usually, half of the effort that goes into defending a misconduct removal should be devoted to the agency’s Douglas Factor analysis.”
The safest way to handle the Douglas Factor analysis is to complete a Douglas Factor Worksheet, attach that worksheet to the proposal notice, and then in the body of the proposal notice, include a sentence that says this: “In selecting a penalty, I relied on the assessment of the relevant penalty selection factors as described in the attached Douglas Factor Worksheet.”
This has been standard FELTG advice for a long time now. As FELTG President Deborah J. Hopkins once wrote on the topic: “We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.”
2 – Use the Merit Systems Protection Board’s example. The MSPB rarely independently evaluates the Douglas penalty assessment factors. Instead, the Board generally sticks to evaluating the agency’s evaluation of the factors. Even if the Board members might not fully agree with the penalty, MSPB must defer to the agency’s decision as long as the agency proves its charge(s) and shows the penalty was “within the bounds” of reasonableness.
But then came Purifoy v. VA, CH-0752-14-0185-M-1 (2022)(NP). You probably noticed the parenthesized “NP” at the end of the case citation. Yes, this is a nonprecedential decision. But it is, also, to use Deb’s word — consequential.
Why the lofty word choice for a non-precedential decision?
Purifoy is, we think, the first time the current Board independently assessed the Douglas factors on its own. Read the case and think about the Board’s reasoning. You will be in much better shape to defend the agency’s penalty selection for years into the future.
3 – Consider both aggravating and mitigating Douglas factors and include them in the proposal notice. Some will tell you that only aggravating factors belong in the proposal notice. After all, while most all adverse actions have some mitigating factors, it’s usually the aggravating factors that control the outcome, and only aggravating factors are required at the proposal stage.
However, former FELTG President and founder Bill Wiley had this to say about that: “Do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. The employee should have the opportunity to know this stuff so she can respond and defend herself completely.”
Join us April 15-19 for MSPB Law Week, where you can get the most effective guidance and up-to-date information via an engaging week of training focusing on the legal requirements and best practices for penalties and much more. Gephart@FELTG.com
Comments can be, at the very least, disrespectful, disillusioned, and highly uneducated. In this case, they showed a complete misunderstanding of the agency mission and a mistrust of government, in general. Read more.
By Dan Gephart, February 20, 2024
If it feels like a dangerous time for Feds, that’s because it is. Attorney General Merrick Garland warned earlier this year about a “deeply disturbing spike” in threats against Federal workers.
A few weeks after Garland’s announcement, the unimaginable happened. A 32-year-old man killed and decapitated his father in their Bucks County, Pa. home. The man then posted a 14-minute YouTube video in which he held up his father’s decapitated head and called him a traitor. Why, according to the son, was the father a traitor? Because he was a Federal employee. The man then urged others to commit similarly violent acts against government officials. Police recovered a USB device that allegedly contained pictures of Federal buildings and instructions on how to make an explosive device.
Meanwhile, it’s election season when the discourse about Federal employees often turns ugly. This year, the rancor is uglier. It’s also quite dangerous. It was this election season, after all, when a major presidential candidate, who has since dropped out, promised, if elected, to “start slitting throats” in the Federal workplace.
We don’t want to be alarmist, but we do want to ensure your agency is as prepared as possible if violence shows up at the office, whether it’s caused by a current or former employee, a family member of an employee, a customer, or someone unknown to the agency.
FELTG instructor Shana Palmieri provides the following guidance (and much more) during her Assessing Risk and Taking Action: Threats and Violence in the Federal Workplace training (next held on April 3.) [Editor’s note: To have Shana teach this class directly to your agency, contact Info@FELTG.com.]
You should have a set of policies and procedures in place, and they should be accessible to all employees. Those policies and procedures need to include:
- How the agency handles any incident of threatening or inappropriate behavior.
- The process for reporting the behavior (incident reporting).
- How the agency handles each type of violence.
- Training that will be provided to staff.
- The assessment protocol once an incident report has been submitted.
- Who is responsible for the assessment process.
- Who is responsible for the development of the management plan.
- How staff will be notified of the management plan if there is a potential risk.
You should also have a prevention strategy that includes:
- An effective incident reporting process. This process should encourage employees to submit concerns.
- A relationship with local law enforcement. Does your agency receive reports from local law enforcement of potential risks within the community?
- Effective protection. Physical security alarm systems, security staff, building access, sign-in processes for the general public.
- An effective automated warning system.
Another key component of prevention strategy is take all threats of violence seriously. And take immediate action when those threats come from current employees. Remember, a threat of violence is misconduct. Work your way through the Douglas factors, of course, and determine whether the threats warrant a suspension or removal.
There are numerous cases where removal for threats have been upheld – even as a first offense. In Robinson v. USPS, 30 M.S.P.R. 678 (1986), the MSPB found an employee’s verbal threat to a supervisor warranted removal despite the employee’s lack of prior discipline and four years of service. Per the Board: Such behavior affects the agency’s obligation to maintain a safe workplace for its employees, thus impinging upon the efficiency of the service.
The Federal Circuit echoed those thoughts in 2010 and reiterated them more recently in Jolly v. Department of the Army, No. 2017-1919 (Fed. Cir. Sept. 11, 2017):
“Where an employee makes ‘threats … against her supervisor [that are] unprofessional and inappropriate, and . . . they adversely affect the work atmosphere,’ the penalty of removal is ‘within the permissible range of reasonableness.’” Gephart@FELTG.com
Board Chairman/Chief Executive Officer Vincent Logan is a member of the Osage (Tribal) Nation and the agency’s first openly LGBTQ+ Board Chairman and CEO. Here’s why he has made DEIA a priority.
By Dan Gephart, January 17, 2024
Over the last several years, agencies have paid more particular attention to harassment, including the non-EEO kind. This has led to a greater general awareness of hostile work environment. Unfortunately, while more people are aware of HWE, there are way too many who don’t understand exactly what it is.
Much of the misunderstanding is on the part of employees who define the term “hostile” way too broadly, Ann Boehm wrote late last year. However, those who should know better are not immune to confusion when it comes to recognizing and addressing an actionable hostile work environment.
Most EEO and HR professionals can recognize verbal and physical behavior that is unwelcome, and most can discern if the conduct was based on the employee’s protected status. But confusion rears it head when discussion turns to the third part of the elements of proof – determining if the conduct was sufficiently severe or pervasive to alter the terms, conditions, and privileges of employment.
There is no simple rule or guideline for determining hostile work environment, as it often depends on the unique circumstances of each case. Here are five points to help you make the appropriate determination.
- Remember that it’s severe or pervasive – not and.
- This means a single incident, if severe enough, can create a hostile work environment.
- The EEOC found sufficient evidence to support a finding that a manager came up to the complainant while she was at her workstation, grabbed her around the waist, and kissed her on the neck. Trina C. v. USPS, App. No. 0120142617 (2016).
- A male coworker pushed the complainant’s hair back and stuck his tongue in her ear. Hayes v. USPS, No. 01954703 (1999).
- On the flip side, a single incident that is not severe would not be an HWE. Here’s an example from a Supreme Court case:
An employee met with her male supervisor and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.” The supervisor read the comment aloud, looked at the employee and stated, “I don’t know what that means.” The male employee then said, “Well, I’ll tell you later,” and both men chuckled. The Supreme Court ruled: “Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in employment terms and conditions.” Clark County School District v. Breeden, 532 U.S. 268 (2001).
- However, non-severe conduct could create a hostile work environment if it is frequent or pervasive. Some of the actions in Gillespie v. McHugh, App. No. 0120080758 (2012), are not severe alone, but when viewed together, it’s another story. Over time, the supervisor:
- Told the complaint that she was not an expert on regulatory matters and that the districts didn’t come to her for advice.
- Gave the complainant a lower performance rating than she had received previously, and one lower than all other attorneys in her group.
- Told the complainant she was not qualified to be on the Chief Counsel’s Management Partners’ Group.
- Told the complainant she didn’t know how to brief people.
- Sent an email to a Regulatory Appeals Officer apologizing for inadvertently sending out a draft for others to review, while blaming the complainant for the mistake.
- Chastised the complainant for not volunteering to work on a project.
- Acted in a hostile and demeaning manner towards the complainant during a meeting.
- Accused the complainant of being condescending, rude and in violation of her oversight responsibility.
- Intentionally refused to select the complainant to represent the Office of Counsel at weekly meetings.
- Blocked an on-the-spot award that a district wanted to give the complainant.
- And much more.
On their own, some of the bullets above appear to be standard supervisory actions. And as we know from the numerous emails we’ve received (and the article Deb wrote last year), some overly sensitive employees are confusing basic supervisory functions with harassment.
In Gillespie, however, the pervasiveness of the evidence along with witness statements led to the EEOC overturning its administrative judge’s ruling that sided with the agency.
“It was a very nasty tone,” a co-worker testified about one of the meetings. “That’s what made me feel sick … And since [the complainant] is a good coworker and team player and has always been helpful, I was thinking, well, how can I reiterate to [the supervisor] that [the complainant] did everything she was supposed to do for my team . . . and make sure [the supervisor] understood that.”
In Gillespie, the EEOC not only overturned the AJ’s decision, but it also found the agency liable. While it directed the agency to secure training for the supervisor, the EEOC also strongly recommended discipline.
- When making determinations about a hostile work environment, always consider the following:
- Frequency and duration of conduct
- Vulnerability of the victim
- Makeup of the workforce
- Relative positions of the perpetrator and harassed employee
If you’re looking for more guidance on hostile work environments, join us on Feb. 20 for the two-hour virtual training Navigating Complex Hostile Work Environment Harassment Cases. Gephart@FELTG.com
Welcome to another year-end News Flash, where we reveal the two most popular FELTG newsletter stories (based on the number of reads and forwards) for each month of 2023. Let’s dive in.
By Dan Gephart, December 4, 2023
There is one particular holiday taking place this month that seems especially apt for the current state of labor-management relations in the American workplace. Of course, I’m talking about Festivus, the holiday famously celebrated with the “airing of the grievances.”
Yes, Festivus is a real holiday. It’s been on this Earth as long as your venerable FELTG Training Director. It was created by writer/Readers Digest editor Daniel O’Keefe in the 1960s. Thirty years later, his sitcom-writing son Dan wrote the holiday into an episode of Seinfeld, and suddenly there was Festivus for the rest of us.
Back to those grievances. They are responsible for a lot of the work you do and, in turn, a lot of our training. Here’s a little secret more people should know: Most disputes in the Federal workplace, whether they start out as grievances, EEO complaints, or disciplinary appeals, settle before they ever get to a hearing.
Settlement seems at odds with the nature of grievances, which immediately put individuals into separate camps (parties), as well as the nature of Festivus, where celebrants wrestle after complaining about how much they disappointed each other. Yet, settling makes sense. A lot of sense.
It allows the aggrieved to return to work in a positive manner, helping productivity, teamwork, and morale. The flip side is having a case drag on, leaving an unpleasant pallor over the work unit. And there’s a financial benefit to settlement, too. Direct costs of formal complaints and litigation include investigation fees, deposition/copies, meeting rooms, travel expenses, damages, back pay, and attorney fees.
You can’t control whether the other party wants to settle. But with all the benefits of settlement, there is little incentive to not try. Here are some things to consider, whether or not you celebrate December 23 around an unadorned aluminum pole.
- Suggesting settlement does not mean that there is a flaw in your case. The settlement has no direct tie to liability or admissions of wrongdoing. It’s simply the most efficient and effective way to handle a dispute and allows you to get back to focusing on your agency’s mission.
- When you’re ready to discuss settlement, consider the physical environment, as Michael Wolf, director of the Federal Labor Relations Authority’s CADRO Unit, told us earlier this year.
- The location should be reasonably available and accessible.
- Cost should not be a factor in whether a party is adequately represented.
- The space should not create a perception of favoritism or bias.
- The need to work outside of “normal” business hours might be a factor.
- No party should feel unfairly disadvantaged by the physical environment, and it should be compatible with the mediator’s style, methods, and skillset.
- Be open to ideas. In fact, brainstorm settlement ideas with the other party. Give yourself and the other party space to develop unique and different solutions, focusing on those that provide mutual gain.
- Be careful to avoid these barriers to settlement success:
- Solving their problem is their If you’re concerned only about your own interest, you will not be successful in finding an effective settlement.
- Premature judgment. Don’t dismiss ideas out of hand. Explore and see where you can take them.
- Searching for a single answer. Don’t be afraid to widen the options for a solution.
- Assuming a “fixed pie.” You’re looking for a solution that works for all parties. It isn’t time to be measuring who gets more or less.
- Before you draft a settlement agreement, think through what you want to accomplish, by asking yourself these questions:
- What are the basic “terms of the deal”?
- How do I best ensure the performance of the terms?
- How do I protect the agency if the other side fails in the performance of the terms?
- Remember: Clean record settlements are back on the table. Executive Order 14003 revoked a previous EO that banned clean record agreements. You don’t have to do clean record settlements, but be aware that it is an option.
- If you’re going to write a settlement agreement, remember that it must be enforceable – and signed by someone who has the authority to enforce it. For useful guidance, register for Drafting Enforceable and Legally Sufficient Settlement Agreements on April 10.
In you follow these considerations and end up with an effective settlement, you have every right to declare it a Festivus miracle. But like all Festivus miracles, it’s easy to explain: You took the most direct and cost-efficient path to an effective and productive workplace. Settling a workplace dispute is a Festivus-worthy “feat of strength.”
Regardless of which holidays you celebrate – or don’t celebrate — I hope you have a joyous and restful end to the year. Gephart@FELTG.com
By Dan Gephart, November 13, 2023
I used to be skeptical when people talked about generational differences in the workplace. I thought it was an over-generalization. I’ve since gained an appreciation for the data and how it can improve everything from performance feedback to workplace logistics.
The American workplace is going through a generational shift. Millennials (born 1980-1994) are now the largest generational workgroup, followed closely by Gen X (1965-1979) and Baby Boomers (1946-1964). In the Federal workplace, Gen X still holds an edge, but the percentage of Millennials continues to grow. Understanding the differences between these groups is as important as ever.
Oh, and look out: Gen Z (1995-2009) is expected to make up more than a quarter of the overall workplace within two years.
But that’s not all. An understanding of generational differences is important to address the following workplace situations.
- Remember that “OK, Boomer” slam? Do you still joke about everybody-gets-a-trophy Millennials? Luckily, the rancor of a few years ago has died down. Unfortunately, a lot of inter-generational mistrust continues to exist in the workplace.
- Major workplace change (offices to cubicles, cubicles to open spaces, open spaces to remote work) has often been mired in generational conflict. Understanding generational needs will help your agency in its current transition to a permanent hybrid workforce.
- The Biden Administration continues to stress DEIA (diversity, equity, inclusion, and accessibility). Age and experience are key diversity factors.
- And, finally, there’s the performance As a group, Federal supervisors have gotten better at performance feedback. But too many supervisors still struggle.
There is no one way to provide employee feedback. It depends on the relationship between the employee and the rater, according to FELTG Instructor Susan Schneider. [Editor’s note: Susan presents Successfully Leading a Multi-generational Team on March 12. Register now.] She offered this overview:
- “Generally, Gen Zs prefer feedback delivered in a variety of ways,” Susan said. “Gen Zs, like Boomers, prefer direct and actionable feedback. Ideally, the feedback is tailored to their individual needs.”
- Millennials prefer timely, specific, continuous feedback given in a collaborative and supportive way.
- Gen Xers prefer regular direct and honest feedback. “For both Gen Xers and Gen Zs, keeping their individual needs and goals in mind is the best approach,” she said.
- Boomers are geared to formal feedback sessions like most Federal organizations’ annual or half-yearly sessions. Specific and actionable feedback is ideal.
Those differences are well-researched, with the general conclusion that Millennials need “frequent, VERY frequent, feedback.” Should supervisors really consider a person’s generation before sharing feedback?
“Perhaps, as a start,” Susan said. “Management starts with communication. Well, management IS communication. So, yes, communicate differently if personally and organizationally possible.”
Susan has taken a particular interest in the fast-growing Gen Z.
“Gen Zs flourish in diverse workplaces,” she said. “They are practical, and, of course, digitally fluent. Gen Zs want a culturally competent manager, stability, competitive wages, and mentorship. Their communication style is face-to-face and video chats with friends.
“When I think about our Gen Zs onboarding during COVID, I’m concerned. How can their co-workers, including managers, provide (or simulate) face-to-face communication? I have anecdotal evidence; a mentor/protégée pair told me they met in person outside during COVID.”
Back to my original skepticism of the topic. I asked Susan how she’d respond to someone saying generational differences are over-generalizations or worse stereotypes.
“Generation is one way to understand peoples’ life experiences and what makes each of us who we are,” Susan told me. “Aspects of a person, such as life stage (such as becoming a parent) or military service, first-generation college, living abroad, first language learned, or where we grew up are all within us. Learn about people and accept that human beings are formed by many influences. Respect personal boundaries, and don’t accept your first impression as fact.”
“Diversity of thought is a huge asset for an organization.” Gephart@FELTG.com
OPM Deputy Director Rob Shriver took time to talk with FELTG this month about the proposed rule that could make it very difficult for future administrations to revive Schedule F. Read more.
