Was Employee Being Honest With Her Agency? Not Even Remotely

, ,

By Dan Gephart, October 16, 2023

Sen. Joni Ernst is clearly not a fan of remote work. She recently accused Federal teleworkers of “fraud.” Dig beyond the headline and you’ll see many of Ernst’s claims were based on outdated reports. But she may have been onto something when she asked how many Feds were still getting location-based pay and Washington, D.C., wages while teleworking from elsewhere.

We now know of at least one remote worker whose actions fit that description. And while those actions were not outright fraudulent, they did show a lack of candor, according to a recent initial decision by a Merit Systems Protection Board administrative judge (AJ).  In Atterole v. VA, PH-0714-23-0184-I-1 (Sept. 7, 2023)(ID), the Veterans Benefits Administration removed the appellant for failure to follow the agency’s telework policy and lack of candor.

The appellant’s duty station was Baltimore. In the early days of the pandemic, she (like most of her Federal colleagues) was granted 100 percent telework. In December 2020, citing the deaths of her mother and brother-in-law, she requested to work from Port Charlotte, Fla. She said she’d work in Florida from Jan. 4 through March 4, 2021, and return sooner if needed.

The VA Telework policy did not require employees to change their duty station when they are working outside of their geographic region for fewer than six months and their absence is related to medical or other personal reasons. However, the employee was still working and living in Florida seven months later.

She failed to provide a Baltimore address to leadership and didn’t update her telework agreement – violations of agency policy.

Meanwhile, the VBA, concerned about allegations that employees were living in states other than their duty station of record and improperly receiving locality pay, appointed an investigatory board. And the employee’s sworn testimony before that board made matters worse.

At first, the appellant invoked her Fifth Amendment right, then stated that she had “permission to be in a different state but that’s all I’m going to say on the matter.” She also told investigators that “there was no expiration, [that she was] waiting on stuff to handle some personal matters …,” before testifying that other people on the staff were working from different locations than their geographical region. When asked to identify those people, she admitted that she knew of no one else beyond herself.

The AJ noted that while lack of candor doesn’t require intent to deceive, an “element of deception must be demonstrated,” and, in this case, the appellant knowingly gave “evasive and incomplete answers … with the intent to mislead the agency.”

The employee countered that the agency failed to reasonably accommodate her disability and retaliated against her for that activity. Her request to work from home 100 percent of the time was denied. However, the agency granted her numerous accommodations including a light above her desk, a space heater, stand-up desk, ergonomic chair, designated parking space and, in the event her office temperature couldn’t be regulated, the option to work from home temporarily. When the pandemic hit, she was granted 100 percent telework.

The AJ found the employee’s “vague assertions” failed to show by a preponderance of evidence that the EEO activity was either a motivating factor in or a but-for cause of her removal. The AJ concluded that the deciding official properly considered the relevant Douglas factors and found removal to be an appropriate and reasonable penalty. Gephart@FELTG.com

Expect More Religious Advocacy, Accommodation Requests

,

In recent years, employees have been more open about their faith in the workplace, much of this trend fueled by a number of religious-themed Supreme Court decisions. We’re taking a deeper look.

Read more

Confidentially Speaking: Be Very Careful With All Medical Information

, ,

By Dan Gephart, September 11, 2023

The overworn idiom about the road to a certain scorching and undesirable place (no, I’m not talking my former state of residence, Florida) being “paved with good intentions” applies to the Rehabilitation Act. Just replace the H, the E, and both hockey sticks with an even spookier term — compensatory damages.

In Complainant v. GSA, EEOC Appeal No. 0120083575 (2009), that amounted to $3,000.

The lesson of Complainant v. GSA is this: When it comes to medical records or any information about an employee’s medical condition, you must remember the information is confidential. It should not be shared except in limited prescribed circumstances – and good intentions is not one of those circumstances.

The employee, who had multiple disabilities, had moved between jobs while working for the agency over a decade. When one job ended due to lack of work, the employee was transferred to a warehouse facility. Instead of reporting to the new workplace location, she applied for the agency’s voluntary leave program.

Her application contained a certification from her doctor stating that she suffered from “panic disorder without agoraphobia, adjustment disorder unspecified, and occupational problems.” The application also noted that the complainant had a negative sick leave balance of 231.7 hours and had used 240 hours of advanced sick leave.

The employee’s request for voluntary leave was approved.

Everyone is happy. Great solution. End of story, right? Umm, not so fast.

While soliciting voluntary leave donations for the employee, her supervisor emailed coworkers and happened to mention the employee suffered from PTSD/anxiety disorder “with” agoraphobia.

As a result, the employee experienced a drastic increase in insomnia, anxiety, stress, major depression, emotional distress, shame, loss of self-esteem, and radical weight fluctuations. It’s more powerful in her own words:

I was at least able to hide my mental conditions before my diagnosis was publicly released. After my diagnosis was released, I suffered nausea and pain in my stomach for several weeks. My head hurt me constantly. I was too depressed and ashamed to leave my home unless it was for something that was absolutely necessary such as to buy food or other necessities. I tried to hide when I was in public for fear of running into someone that saw the email. The subject e-mail was even forwarded outside of the agency.

There was not a widespread email in Becki P. v. Dep’t of Transportation, EEOC No. 0720180004 (2018). Nor was there any mention of a specific disability. Yet, the results were similar.

A supervisor had a heated discussion with an employee. After the employee left, the supervisor tried to explain the employee’s behavior to a contract employee who had witnessed it. The supervisor told the contractor the employee is “on medication.”

This, FELTG Nation, is a per se violation of the Rehabilitation Act.

Once again, the disclosure caused distress for the employee with a disability. In the employee’s words:

It became known around the office that I was on mental medication and my symptoms-psychological and physical-worsened. I felt greatly embarrassed and I was deprived of my dignity. I felt even greater distress and sadness, fell into a deeper depression, and became more withdrawn.

The AJ awarded the employee $1,000. Upon review, the commission determined an award of $2,000 was more consistent with awards in similar cases.

It’s important to note that there were multiple claims in each of these cases, and yet the only finding of discrimination in both was for the inappropriate disclosure of medical information.

Join us next week (Sept. 18-22) for Absence, Leave Abuse & Medical Issues Week where leave, medical records, confidentiality, and more will be discussed. Click here for the day-by-day description and register here for one day, all five days, or anything in between. Gephart@FELTG.com

Reasonable Accommodation Requests: Have You ID’d the Essential Job Functions?

,

An agency should not make a decision on a reasonable accommodation request until it determines whether the employee is “qualified,” and that step can’t be completed until the agency has identified the essential functions of the job at issue. Read more.

Read more

What Should be Expected When Employees are Expecting

, ,

By Dan Gephart, August 14, 2023

The Equal Employment Opportunity Commission published its Notice of Proposed Rulemaking to implement the Pregnant Workers Fairness Act last week. Members of the public wishing to comment now have approximately 55 days to do so.

The Pregnant Workers Fairness Act (PWFA) has generally flown under the radar. If you haven’t yet paid attention, now might be the time. The EEOC is already accepting charges under PWFA, which requires employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

Does the act create a new EEO category? How do pregnancy protections under the PWFA differ from those under Title VII and the Americans with Disabilities Act? What are the common effective accommodations for pregnant employees? If you want answers to these questions, register now for FELTG Instructor and Attorney at Law Katherine Atkinson’s upcoming two-hour virtual training class Everything You Need to Know About the Pregnant Workers Fairness Act on Sept. 14.

In the meantime, here are a few points to remember:

  1. Do not tie an individual’s job performance or pay to their history of pregnancy. This seems kind of obvious now, right? But back in 2008, an air traffic controller was denied a pay increase for the previous performance year. How do we know her maternity was the reason? Well, her manager said the quiet part out loud. “Just keep doing what you’re doing and I’ll see what I can do for you next year,” the manager said, “unless you plan on taking maternity leave again. You don’t have something you need to tell me, do you?” Complainant v. Fox, EEOC App. No. 0120122370 (Oct. 24, 2014)
  2. It’s not your role to “protect” a pregnant employee. A desk officer was selected for a new position, which was contingent on her completing a two-week training session. Per the agency, which cited “team camaraderie,” the training needed to be completed during one two-week stretch. As it got closer to the training, the agency made the decision to not allow the employee to attend the training because her due date fell “within the final two weeks.” The employee requested accommodations that would allow her to attend the training. The agency admitted that the employee’s pregnancy played a role in its decision, and that supervisors were concerned about her driving and taking the stairs. Well-meaning discrimination is still illegal discrimination. Roxane C. v. DoD, EEOC App. No. 0120142863 (Jul. 19, 2016)
  1. Treat individuals who are pregnant (or have pregnancy-related conditions) the same as others on the basis of their ability or inability to work. A letter carrier on a one-year appointment had an excellent attendance record, until her high-risk pregnancy forced her to miss work due to pre-natal appointments and medical incapacitation. According to the letter carrier, one supervisor told her she should have an abortion unless she wanted to be fired.

The letter carrier was not reappointed after her term expired. The agency cited her attendance issues as a reason. She was the only transitional employee not reappointed because of attendance. Others were not reappointed because of poor work performance or instances of bad driving. Meanwhile, an employee who similarly experienced attendance difficulties because of a foot injury was reappointed.  The EEOC ordered the agency to immediately reinstate the letter carrier, and provide her with appropriate back pay, benefits, and seniority. Robertson v. USPS, EEOC App. No. 01956011 (Jan. 5, 1998).

  1. Know all of the applicable laws. The cases detailed above were violations of Title VII, which protects employees from discrimination based on pregnancy, childbirth, and related medical conditions. The PWFA requires employers to provide reasonable accommodation, just as the Americans With Disabilities Act does for employees with disabilities. While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be. There is also the Family and Medical Leave Act, which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and the new PUMP Act, enforced by the Department of Labor, which broadens workplace protections for employees to express breast milk at work. Gephart@FELTG.com

 

First-time Caller, Long-time Loss of Confidence and Trust

, ,

By Dan Gephart, July 18, 2023

Sometimes, a Federal employee’s misconduct is so far beyond the pale that it’s impossible to ever again trust that employee. That was certainly the case for a certain IRS contact representative/Howard Stern devotee. Sorry, I meant to say former IRS contact representative. (I don’t know the status of the ex-employee’s Stern fandom).

The employee arrived at work and called the Howard Stern radio show on his personal cellphone. He was put on hold. When the employee’s 8 am shift started, he began handling incoming phone calls from taxpayers on his work phone.

Two hours later, the Stern show took him off hold. The employee didn’t realize this and continued his conversation with a taxpayer, which was now being broadcast live. He unknowingly shared the taxpayers’ personally identifiable information, including her phone number and the amount of back taxes she owed, to thousands of Sirius XM listeners.

Howard Stern shouted the employee’s name to get his attention. The employee then put the taxpayer on hold to talk to Howard Stern, where he “gleefully” identified himself as a Federal employee.

It’s no surprise that the agency removed the employee, nor that the MSPB upheld that removal earlier this year, citing the effect of the employee’s misconduct on his supervisors’ confidence, while questioning his potential for rehabilitation. Forsyth v. Treasury, NY-0752-16-0246-I-1 (Mar. 15, 2023)(NP). Regarding the latter, the employee was directed to make a post-incident call to the Howard Stern show to ask them to not rebroadcast the telephone exchange, which the employee did, while also requesting a tour of the show’s broadcast studio.

A few months back, Ann Boehm extolled the value of Douglas Factor Five in her monthly Good News column. Douglas Factor 5 is consideration of “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.”

FEMA similarly lost confidence in a Senior Executive Service employee who misused her position to help a friend gain employment at FEMA. The SESer also provided her friend with personally identifiable information of FEMA employees. Clark v. Department of Homeland Security, DC-0752-13-0661-I-1 (Feb. 21, 2023)(NP).

The employee, who worked in the agency’s Chief Component Human Capital Office, pointed to a positive evaluation she received after the incident to argue that her supervisor had not lost confidence in her. The Board held, however, that “the penalty judgment belongs to the agency, not to an appellant’s supervisor … in the absence of an agency’s failure to consider the relevant Douglas factors adequately, a supervisor’s opinions are insufficient to overcome the agency’s judgment concerning the appropriateness of the agency-imposed penalty.”

How much confidence would you have in an employee who “golfed during official duty hours on at least 205 days for which he claimed no annual leave on his official timesheets.” In Sheiman v. Department of Treasury, MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP),  the Board agreed removal was the right penalty, stating that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision.”

The MSPB decisions in this article have been issued within the last couple of years. For guidance on increasing the chances that your removals match the Board’s view on penalty assessment, register for Charges and Penalties Under the New MSPB on August 1. This half-day session is part of FELTG’s weeklong Federal Workplace 2023: Accountability, Challenges, and Trends event. Gephart@FELTG.com

Get Up Federal Workplaces: Make DEIA (and B) Training Your Jam!

, ,

By Dan Gephart, June 14, 2023

Several years ago, Verna Myers, VP of Inclusion Strategy at Netflix, explained the focus of her job by telling attendees at a Cleveland Bar event: “Diversity is being invited to the party, but inclusion is being asked to dance.”

Several years later, Myers’ quote still pops up regularly on LinkedIn and Facebook, and during D&I-related presentations.

We should give Myers at least partial credit for dispelling the confusion around what inclusion means. Inclusion is no longer such a seemingly abstract concept, and no longer diversity’s “and one.” It is one of the four pillars of President Biden’s Executive Order on Diversity, Equity, Inclusion and Accessibility (DEIA).

FELTG has done numerous DEIA training sessions for agencies since the President signed EO 14035 in June 2021, and we cover every letter in that acronym. Sometimes, per agency request, we’ll add another letter to make it DEIAB training. Where the heck did that “B” come from and what does it stand for?

FELTG Nation, meet “belonging.” You may already know it, as belonging is among the buzziest  of HR words these days. Belonging is tied closely with psychological safety, a concept we discussed earlier this year, and one that J. Bruce Stewart defined as the “ability of a person to feel safe in speaking up at work or in the community, especially if that person has a different perspective or viewpoint.” [Editor’s note: Join Bruce on Aug. 2 for The Race Ahead: Breaking the Cycle of Racial Bias by Rewiring the American Mind.]

Some of you may not value an employee’s comfort in speaking up. I can hear you now: “Implement something that’s going to make people feel more comfortable about complaining even more? No way!” To those skeptics, I’d say you’re doing that whole baby and the bath water thing. Yes, some employees in a psychologically safe workplace will feel the need to complain about everything. But, as we all know, those employees are very capable of complaining regardless of the psychological safety of the environment.

When employees feel they belong, they don’t fear punishment for mistakes and feel comfortable enough to take risks and share creative ideas. This is the kind of workplace environment that leads to improved engagement, heightened morale, and increased FEVS scores. Oh, and fewer EEO complaints. Would you rather have an employee tell you that something “felt like a microaggression” and allow you to appropriately address it? Or would you rather hear about it later from the Office of Federal Operations?

There are several ways you, as a supervisor, can create a sense of belonging. Ask for feedback about your management of a meeting. Encourage collaboration instead of competition and replace blame with curiosity.

FELTG Instructor Katherine Atkinson will address belonging as part of her Addressing Bias and Microaggressions to Advance Agency DEIA on June 29 from 1-3 pm ET and in Setting the Bar: Advancing Diversity, Equity, Inclusion, and Accessibility for FY ’24 on Sept. 26 from 1-4:30 pm ET.

[Editor’s note: You can bring either of these classes to your agency virtually. Just contact us at info@FELTG.com. For more on bias and microaggressions, check out Advanced EEO: Navigating Complex Issues July 12-13.]

If you’re looking for a pithy saying to encapsulate what belonging means, we can build onto Myers’ quote, as Indeed Executive LaFawn Davis did on the company’s website.

“Diversity is being invited to the party, but inclusion is being asked to dance,” Davis wrote. “I love that quote — and I’d like to adapt it by adding that belonging is knowing all the songs. Knowing all the songs goes beyond simply being invited to the party; you feel like you belong there. And you can’t help but dance; it’s your jam!”

Gephart@FELTG.com

And Now a Word With … OFO Director Carlton Hadden

,

It can be quite easily argued that Carlton Hadden is the face of the Equal Employment Opportunity Commission’s Federal business. He recently took time to answer our questions. Learn more.

Read more

Don’t Become a Meme: Know What Is a Protected EEO Activity

, ,

By Dan Gephart, May 16, 2023

Record scratch.

Freeze frame.

“Yep, that’s me. You’re probably wondering how I got here.”

I often think of this movie-cliche-turned-meme when I read or hear about EEO reprisal. I picture a supervisor, sitting in an EEOC-ordered training, explaining how an employee made claims about discrimination that had no basis, and were eventually dismissed. However, in a huff of frustration or anger, that supervisor said or did something rash that cost his agency and landed him in the training.

The EEOC defines reprisal, aka retaliation, as “treating employees badly because they complained about discrimination on the job, filed a discrimination charge or complaint, or participated in any manner in an employment discrimination proceeding.”

It’s human nature. A knee-jerk reaction. Someone has accused you either directly or indirectly of a violation of the law and, in the moment, you say or do something that is influenced by your emotional state. It’s no wonder reprisal claims make up such a big bulk of EEOC’s case load. And what we’ve seen trip up many supervisors is that you don’t have to be directly accused of discrimination for reprisal to be found. The employee doesn’t even have to file a complaint before the reprisal claim arises. Remember that definition in the previous paragraph and consider the key words: “or participated in any manner in an employment discrimination proceeding.”

The complainant in Green v. Secretary of Navy, EEOC Appeal No. 01964701 (1997) alleged he was subjected to discrimination in retaliation for prior EEO activity, naming the following incidents:

  • He was forced to assume duties and responsibilities without commensurate pay and adequate personnel.
  • He was forced to work in an unsafe environment.
  • The agency failed to remit documentation to him.
  • He was forced to work under “management personnel who commit waste, fraud and abuse.”
  • The agency threatened to eliminate his position.

The agency dismissed this portion of the appellant’s complaint for failure to state a claim. Basically, the agency’s response was: What EEO activity? Before this all went down, the employee had notified the agency of his intention to testify on behalf of other employees alleging discrimination. But he never actually testified.

Doesn’t matter, the EEOC ruled: Simply notifying the agency of his intention to provide testimony on behalf of other employees alleging discrimination was participation in protected EEO activity.

On a related note, a seminal case in this area is the Supreme Court decision Thompson v. Northern American Stainless, LP, 131 S. Ct. (2011). In Thompson, it wasn’t the employee who participated in an EEO activity – but the employee’s fiancée. Previous courts, including the District Court in this case,  had ruled that retaliation was limited to “persons who had personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation.”

The Supreme Court decided differently: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

So, add close relationship/association with individuals who file complaints as close enough to constitute protected activity. Just how close should that association be? Well, we don’t really know that. In Thompson, the Supreme Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.”

What other activities are protected? Here are some activities that are a little more obvious, yet still too-often overlooked:

  • Contacting an EEO counselor.
  • Filing a formal EEO complaint, even if it’s a frivolous complaint.
  • Testifying at an investigation or hearing.
  • Representing a complainant.
  • Providing documents to a complainant.
  • Requesting a reasonable accommodation.

Look at all the different activities that are protected. It’s no wonder there are so many successful reprisal claims. If you want to avoid the being a meme, think before you talk, only take actions based on legitimate business reasons, and, oh yes, join Bob Woods this Thursday (May 18) at 1 pm ET for Avoid the Pitfalls of EEO Reprisal. (Register now.) Gephart@FELTG.com

Forecast Calls for Category 1-3 Harassment: What Will You Do?

, ,

By Dan Gephart, April 17, 2023

It’s no secret the current administration wants the Federal workplace to be more inclusive. A key to achieving that goal is rooting out harassment. This is not a new concern. Several years ago, agencies started their own anti-harassment units, which don’t fall always under the auspices of its EEO Office. These anti-harassment teams are charged with limiting harassment of all types – even those that don’t result in legitimate claims of discrimination.

For years now, the EEOC has been emphasizing the need to address the broader range of harassment, noting time and again that without an exhaustive anti-harassment policy, agencies cannot be model EEO employers. You’d be hard-pressed to find an agency today that doesn’t have some type of anti-harassment policy.

Yet too many people still think harassment is solely an EEO issue. Not us here at FELTG. If you’ve attended any of our courses that address harassment, you’ve heard FELTG President Deborah Hopkins and other instructors say quite clearly: Harassment is misconduct. It must be addressed, whether it has led to an EEO complaint or not.

And whether alleged harassment goes through the EEO process or not, an investigation will likely be required. FELTG offers numerous opportunities to improve your investigations skillset over the next few months, beginning with the three-day virtual program Conducting Effective Harassment Investigations April 25-27. Workplace Investigations Week will be held August 14-18, and the two-hour training Misconduct Investigations: Get Them Right From the Start takes place on July 25. Also, be on the lookout for the official announcement soon of Bad Detective: The Mistakes That Hamper Agency Investigations with special guest presenter Roslyn Brown. That session will take place on Aug. 4, as part of FELTG’s annual Federal Workplace: Accountability, Challenges, and Trends event.

Let’s look at different categories of workplace harassment. The actual steps you need to take after each type of harassment are different. Regardless, take all harassment claims seriously and act promptly.

Category 1 – EEO harassment. An allegation has been made that someone has engaged in harassing behavior due to the complaining employee’s protected category. (To recap: Those protected categories are sex, race, color, national origin, religion, genetic information, disability, age, participation in protected activity). Could this be a legitimate complaint of EEO discrimination? It very well may be, but at this point, it’s still too early to tell. The person alleging harassment has 45 days to make contact with an EEO counselor. But you will need to investigate right away, whether they contact a counselor or not.

Category 2 – Actionable EEO harassment. Once the formal complaint is filed and the EEO office accepts the claim, the agency is on the clock. It’s time for a prompt, thorough investigation to determine the facts: was there unwelcome conduct, based on a protected category, so severe or pervasive it created a hostile, intimidating or abuse work environment?

Category 3 – Non-EEO harassment. Is it just me or does it just seem like bullies are pouring out of the woodwork lately? Mocking an individual’s work habits. Giving co-workers unflattering and unwanted nicknames. Pestering a peer repeatedly with requests to go on a date. Sometimes it’s hard to fathom the sheer gall of these bullies.

That’s not to say that these actions never meet the elements of proof for EEO harassment. They may. But smart bullies (there are a few) seem to know how to stop short of those requirements. Yet just because these actions may not lead to a legitimate EEO complaint doesn’t mean they should be overlooked.

Other examples of non-EEO actions to keep an eye on are conduct that is unprofessional, threatening, intimidating, violent, and disturbing.

Category 4 – Not harassment. The final category covers actions that are not harassment, despite what employees say. Several agency officials have told us of an increase in complaints lodged against supervisors for actions that are, quite frankly, what you’d expect a supervisor to do.

  • Assign work.
  • Set deadlines.
  • Create a work schedule.
  • Assess performance or providing feedback.
  • Manage work groups.
  • Set a dress code.

Just because an employee disagrees with his supervisor’s management style does not make a case of harassment. If the actions listed above are “exercised in a reasonable and professional manner,” they are not harassment. The same goes for any other actions supervisors have the right to take based on 5 USC 301-302. Deb Hopkins’ article from a few months ago addressed these faux claims.

Here’s the takeaway: Do whatever you can to prevent harassing conduct in the workplace. If you do that, harassment won’t happen, right? No, of course harassment is still going to happen from time to time. And when it does, know your options and responsibilities to correct the conduct before it happens again.

Also, it sure wouldn’t hurt to get to know your agency’s anti-harassment policy a little better. Gephart@FELTG.com