Allegations of workplace harassment often rise to the level of misconduct, regardless of whether there is a finding of a hostile work environment or a violation of an agency’s anti-harassment policy or Title VII. Read more.
By Deborah J. Hopkins, April 15, 2024
Buried in the trove of MSPB’s case inventory are hundreds of cases involving discipline of Federal employees. Maybe it’s because the Board members are working through an unprecedented backlog and are issuing cases at a dizzying pace but, regardless of the reason, I’ve noticed some highly disturbing conduct in recent cases.
The good news is the agencies employing these individuals are almost always taking the conduct seriously. Most have removed offending employees for egregious misconduct. Below are summaries of three cases dealing with removable sexual misconduct in the workplace.
The English Professor Whose Discussion Went Beyond Literature
Fleming v. Navy, PH-0752-18-0457-I-1 (Jan. 26, 2024)(NP)
The appellant was a tenured professor at the U.S. Naval Academy who taught a Rhetoric & Introduction to Literature class. The agency removed him for Conduct Unbecoming a Federal Employee with seven specifications because he:
- Referred to students as “right-wing extremists.”
- Made comments about and discussed anal sex, oral sex, and transgender surgery.
- Emailed partially clothed photos of himself to students after having been counseled that doing so was inappropriate and agreeing to refrain from doing so.
- Touched students without their approval.
- Referred to his own sexual experiences.
- Repeatedly mispronounced an Asian-American student’s name despite being corrected several times.
- Made demeaning, sexually related comments about a child and her mother because of how they were dressed.
Id. at 2-3.
The administrative judge (AJ) overturned the removal, (surprisingly) finding the agency did not prove any of the specifications, but the Board disagreed and reinstated the removal because all seven specifications of the conduct were unprofessional, and the deciding official’s penalty was within the bounds of reasonableness.
The FBI Agent Who Harassed Young Women
Ybarra v. DOJ, CH-0752-17-0422-I-2 (Mar. 21, 2024)
The appellant, a GS-13 special agent at the FBI, specialized in working cases involving crimes against children. The agency removed him for professional off-duty conduct after learning he made “persistent and inappropriate advances toward two female employees at two different stores … both of whom had separately complained to the local police about the appellant’s conduct.” Id. at ¶2. One of the employees was only 16 years old.
Although the conduct was off-duty, the AJ found the agency “established nexus because the appellant’s misconduct contravenes the agency’s primary mission to protect people…. [and] the appellant was specifically tasked with enforcing Federal statutes to protect children under the age of 18.” Id. at ¶8. She also found nexus because the conduct adversely affected his supervisors’ trust and confidence, as well as that of local law enforcement. The appellant argued his conduct did not establish nexus because it was “mere flirtation,” Id. at ¶9, but the AJ and the Board disagreed.
The Board upheld the removal, finding the penalty reasonable especially because only three months before the events in this case, local police warned the appellant about bothering a young cashier at a grocery store. In addition, the appellant had a previous 45-day suspension for making sexually inappropriate remarks to female colleagues. While the suspension had occurred 14 years earlier, it was still an aggravating factor given the similarity in the conduct.
The agency’s investigation revealed the appellant had engaged in additional misconduct, but it declined to charge him for the below instances, listed in ¶2:
- Failure to report police contact related to the two store employees,
- Lack of candor in the same incidents involving the two store employees,
- Making several unwanted sexual advances toward colleagues,
- Engaging in a profane outburst during firearms training,
- His role in a domestic disturbance between his son’s mother and a female neighbor with whom he was having a relationship, and
- Unauthorized use of an FBI database to obtain the telephone number of a former female investigation subject.
The Board held that while the agency “took an unusual approach to its disciplinary action … assessing each charge in isolation and proposing the appellant’s removal based solely on what it considered to be the most serious one,” the removal for the charged misconduct alone was still warranted. Id. at ¶15.
The Supervisor Who Had an Affair with a Married Subordinate
Riley v. USPS, DC-0752-16-0465-I-1 (Feb. 20, 2024)(NP)
The appellant, a postmaster, was removed for Improper Conduct after he admitted to having a sexual relationship with a subordinate, who was married at the time of the affair. His proposed removal notice also indicated he sent inappropriate text messages to, inappropriately touched, and/or pursued a sexual relationship with other female subordinates.
The appellant argued that the relationship with his married subordinate was consensual and personal and did not constitute improper conduct, because it did not result in favoritism or an unsafe work environment. The agency countered that favoritism was not an essential part of the charge and that the conduct was improper regardless of whether it was consensual, because of the appearance of impropriety or favoritism to other employees who learned of the affair.
Regarding his conduct with other employees, which included attempting to have sexual relationships with them, the Board also found improper:
- A text message the appellant sent to a subordinate, telling her that she was his favorite and that he would be on her “like a cheetah on a gazelle.” at 6.
- The appellant put his hand up a different subordinate’s shirt and unhooked her bra. at 7.
Agencies have long taken actions involving sexual misconduct seriously, and it’s a good thing because this type of conduct is one of the most effective ways to make a workplace unsafe and drive away good employees. The Board clearly sees things the same way. Hopkins@FELTG.com
By Deborah J. Hopkins, April 15, 2024
In this newsletter, we’ve talked about the “coming and going rule” and an agency’s responsibility in the workers’ comp arena. In previous newsletters, we’ve discussed the dangers of altering an existing accommodation.
On a related note, what happens when an agency changes an accommodation it provided to assist an employee with ambulatory issues accessing (coming to and going from) her workspace? Consider Malorie D. v. DOJ/DEA, App. No. 2019003000 (Sept. 15, 2020).
The complainant worked as GS-7 intelligence program support assistant. She requested a reasonable accommodation of a parking space that was close to the building and to the door nearest her workstation. She specifically asked to be assigned the only parking spot reserved for individuals with disabilities in her building’s west (supervisor’s) parking lot, because the parking area was on a flat surface and the closest lot to her office. The agency approved her request.
Thereafter, two other employees who had parking placards because of disabilities also requested reserved parking. The agency initially reserved two parking spaces in the south parking lot for these individuals. Just a few days later, agency management sent an email to all employees in the office that any individual “requesting reserved parking was required to use designated spots in the east parking lot; [and] that entry to the building would be through the secured entry point…” which was also known as the “front door.” Id. at 2.
The complainant informed the agency the change in her accommodation “was problematic because the handicap spaces in the east parking lot were farther from her office than the space in the west parking lot and that the front door was often not attended to by duty personnel, forcing her to walk a long distance to the north entrance of the building.” Id. In addition, the east parking lot was not flat. It had curbs and ramps that caused her to trip and fall.
During the precomplaint process, the agency supervisor who revoked the complainant’s existing accommodation informed the EEO counselor he was no longer able to provide the complainant with her original parking spot because he could not “be put in a position to decide which employee is more handicapped than another. Because of the problems associated with this particular handicap spot in the Supervisors [west] parking area, the handicap designation is being removed from the spot.” Id. at 3. The agency designated the complainant’s previous parking spot as reserved for the employee of the month.
The complainant filed a formal EEO complaint. After initially requesting a hearing, she withdrew the request. The agency issued a Final Agency Decision (FAD). The agency determined that after revoking the complainant’s parking spot in the west, it still provided her with a reasonable accommodation when it offered her designated parking in the east lot because the east lot was only “slightly further away from Complainant’s office than her previously assigned parking space in the west parking lot.” Id. at 4. In addition, because the complainant was only unable to access the building via the front door just five times in six months, “the infrequent lack of immediate access does not render the accommodation in the east parking lot unreasonable.” Id.
On appeal, the EEOC disagreed with the FAD. They found the agency failed to “engage in the interactive process prior to removing the accommodation it had provided her for nearly four years.” Id. at 7.
We’ve said it before and we’ll say it again: If an accommodation is working, the agency should not revoke it without, at a minimum, engaging in the interactive process to see if another effective accommodation is available. And because the agency did not do so, EEOC remanded the case for a compensatory damages assessment.
This summer we’re bringing back our always-popular Reasonable Accommodation series, with six 60-minute sessions, each targeted to a particular accommodation challenge. Or, bring an Agency Direct Reasonable Accommodation training to your workplace. Hopkins@FELTG.com
There is delicacy and strategy required when charging an appellant with misconduct that requires proof of intent. A recent case shows us how problematic this 6-letter word (i-n-t-e-n-t) can be when it’s put, or even implied, in the wrong place. Read more.
By Deborah J. Hopkins, March 11, 2024
Just about every week, FELTG instructors talk to supervisors who are concerned about, and even afraid of, EEO complaints being filed against them. We tell them that while the fear is real, the majority of EEO complaints result in a finding of no discrimination. The fear of a complaint should not stop a supervisor from doing her job.
As part of our EEOC Law Week training (which next begins March 18, so hurry and register!), we discuss intentional discrimination claims and the types of events – sometimes referred to as discrete acts – that could form the basis of a claim. This may include:
- Discipline or proposed discipline
- Changes to duties
- Denial of leave requests
- Selections
- Promotions
- Reassignments
- Details
- Workload changes
- Performance ratings
- Denials of telework, training, or other work privileges
This is not an exhaustive list, and sometimes complainants file based on actions outside of this scope. As I recently conducted a search for cases involving facts around St. Patrick’s Day, I came across a case involving an intentional discrimination claim: Brady v. USPS, EEOC Appeal No. 01A55711 (Feb. 14, 2006).
The complainant, a distribution window clerk in Key West, FL, requested to be allowed to wear an Irish scally cap at work on St. Patrick’s Day. His supervisor denied the request (after all, USPS employees have a uniform code), so the complainant filed an EEO complaint alleging discrimination based on his national origin (Irish).
The agency filed a motion to dismiss, arguing the complainant was not aggrieved and failed to state a claim under 29 C.F.R. § 1614.107(a)(1). The administrative judge (AJ) agreed with the agency, explaining that the complainant did not suffer any harm when he was not permitted to wear a scally cap in the workplace.
The complainant appealed the dismissal to the EEOC, and according to the case:
The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049, 1994 EEOPUB LEXIS 3552 (April 21, 1994).
The Commission finds that complainant failed to show how the alleged incident resulted in a harm or … loss regarding a term, condition or privilege of his employment. The alleged event does not render complainant an “aggrieved” employee. Accordingly, the agency’s final decision implementing the AJ’s dismissal of the complaint for failure to state a claim is AFFIRMED.
Id. at 3-4.
Here are a couple of other cases involving St. Patrick’s Day facts:
- The complainant alleged discrimination based on race and reprisal when the agency denied his request for admin leave to march in a St. Patrick’s Day parade when coworkers were granted two hours of admin leave to march in a Black History Month parade. Stevens v. USPS, EEOC App. No. 01892854 (Aug. 1, 1989)
- The complainant, a probationer, alleged discrimination based on national origin (Irish-American) when he was terminated on St. Patrick’s Day. Fanning v. Treasury, EEOC App. No. 01943136 (June 20, 1995).
Many will file, and few will prevail. That’s not to detract from the reality that discrimination occurs, and it can ruin the lives of its victims. But in most cases, allegations remain merely that – allegations with no finding of discrimination. Hopkins@FELTG.com
By Deborah J. Hopkins, March 11, 2024
We get a lot of questions about how a supervisor can effectively address unacceptable performance when an employee’s performance standards are written in a vague or subjective manner. In fact, vague standards are probably one of the top reasons why supervisors don’t address performance issues with employees more often.
The good news, which we share in all of our performance classes, is that a vaguely written standard in itself does not preclude an agency from addressing unacceptable performance in real time.
Let’s look at a recent MSPB case involving a travel office financial management specialist at NASA, Atkinson v. NASA, AT-0432-20-0510-I-1 (Feb. 7, 2024)(NP). The appellant’s primary duty was to monitor the Travel Request Mailbox (TRM), which was an electronic mailbox that received requests for travel authorizations and travel expense reimbursements. The agency had provided the appellant with Travel Request Mailbox Instructions (TRMI), which was “a detailed set of instructions for monitoring the TRM, and included classifying emails in the TRM inbox, forwarding emails to designated personnel, and documenting the status of travel-related requests.” Id. at 2.
The appellant’s performance plan included a critical element titled “Process Civil Service Travel” (critical element 2) and her performance standard required her to, among other things, “produce accurate work with ‘no significant errors.”’ Id. at 3. Below is a summary of the events in the case:
- In October 2016, the supervisor informed the appellant she was not meeting expectations in critical element 2 due to the significant number of errors she was making in monitoring the TRM.
- In May 2017, after deeming the appellant’s performance unacceptable for [critical] element 2 in her first performance appraisal, the supervisor placed the appellant on a 60-day performance improvement plan (PIP). The PIP informed the appellant that she was required to demonstrate acceptable performance in critical element 2 by the end of the PIP period by, among other things, “correctly address[ing] all emails in the [TRM] according to the TRMI.”
- The agency provided the appellant, who was deaf, with a video ASL translation of the TRMI before the PIP and full-time assistance of interpreters prior to and throughout the PIP. The appellant’s supervisor and the travel office lead met with the appellant regularly during the PIP to discuss her performance, including her continuing errors.
Id.
At the conclusion of the PIP, the appellant was still not performing at an acceptable level. The proposed removal identified over 180 errors she made during the PIP. The deciding official upheld the removal. The appellant filed an appeal to MSPB, challenging the removal in part by claiming that her performance standards were invalid – a claim that, if proven, would render the removal inappropriate.
The appellant argued the requirement that her work contain “no significant errors” was overly subjective, and what constituted a “significant” error was never defined. Id. at 5. The Board disagreed, relying on the hearing testimony from both the travel office lead and the appellant’s supervisor, who said that “significant errors” are “those which impacted the processing of travel-related requests,” and they shared multiple examples of these types of errors with the appellant. Id. In addition, the appellant received detailed feedback about her performance deficiencies before and during the PIP, so the word “significant” was given appropriate context and was not overly vague or subjective.
If performance standards are written vaguely or subjectively, the agency may clarify the expectations by fleshing out the standard or giving examples of performance, during the PIP itself. To learn how to do this, join us for MSPB Law Week, April 15-19. Hopkins@FELTG.com
By Deborah J. Hopkins, February 20, 2024
As I make my way through dozens of new nonprecedential (NP) MSPB cases, some grab more of my attention than others. And while NP cases don’t really tell us anything new about the law (See 5 C.F.R. § 1201.117(c)), sometimes they’re still worth discussing because of the case facts.
Along those lines, the MSPB upheld a recent National Park Service removal, in large part because of the appellant’s track record of receiving previous discipline: Stancil v. DOI, DC-0752-17-0153-I-1 (Jan. 30, 2024) (NP). On Nov. 21, 2016, the agency removed the appellant for failure to follow her supervisor’s instructions, citing three specifications:
- The appellant failed to attend a meeting scheduled for her return from a 14-day suspension on June 20, 2016.
- The appellant failed to attend a standing biweekly update meeting on June 21, 2016.
- The appellant failed to attend a webinar meeting on June 30, 2016, as ordered by her supervisor.
In justifying the removal, the agency relied on the fact that, among other factors, it had disciplined the appellant twice previously for the same type of misconduct:
- On Nov. 20, 2015, the appellant received a letter of reprimand for four instances of failing to follow her supervisor’s directions to attend meetings; and
- On June 5-18, 2016, the appellant served a 14-day suspension for five instances of failing to follow her supervisor’s instructions to attend meetings.
The appellant raised multiple affirmative defenses including whistleblower reprisal, however, the Board held the agency supplied clear and convincing evidence it would have removed the appellant even absent her protected activity. According to the Board:
We find that the deciding official’s principal motivation for removing the appellant was her unwillingness to change her behavior despite receiving progressive discipline. In particular, the deciding official testified that he had hoped the use of progressive discipline would change the appellant’s behavior and cause her to recognize that she needed to follow her supervisor’s directions to attend meetings. HT at 96 (testimony of the deciding official). He further testified that he thought that the appellant’s continued failure to follow her supervisor’s instructions was flagrant and that he felt there was no other choice but to remove her.
Id. at 16.
Progressive discipline is something we teach during MSPB Law Week (next held April 15-19) as a tool to (hopefully) correct an employee’s misconduct. If it doesn’t have its intended effect, it provides the agency with a solid basis to support a removal action.
Take a bow, NPS, for showing the FELTG world a textbook use of progressive discipline. Hopkins@FELTG.com
By Deborah J. Hopkins, February 20, 2024
When it comes to disability accommodation, there is no shortage of pitfalls to avoid. And there is one area we constantly hear about from FELTG readers, and that’s the topic of revisiting – or revoking – an employee’s existing reasonable accommodation, particularly when a new supervisor takes over.
One of the cases we discuss in detail in some of our trainings on revisiting existing accommodations (next offered as the 60-minute webinar Red Light, Green Light: Revisiting Existing Reasonable Accommodations on March 14) is Sandra A. v. Navy, EEOC App. No. 2021002131 (Sept. 16, 2021), request for recon. denied, EEOC Req. No. 2022000276 (Mar. 7, 2022).
In this case, the complainant, a technical editor, was granted an accommodation of full-time telework due to her irritable bowel syndrome (IBS). As a teleworker, she performed her job tasks successfully for several years. Working at home, according 
to the case, allowed the complainant to “have a low-stress environment with a consistent, regular schedule where [she] could have greater control over [her] IBS symptoms.” Id. at 3.
In the spring of 2018, a new supervisor took over and revoked all telework agreements in the complainant’s department. The complainant informed the new supervisor her telework was an accommodation for her disability and the telework revocation would require her to use leave to accommodate her medical restrictions.
The complainant renewed her formal request for telework and provided supporting medical documentation. She was denied. The agency instead granted the complainant “frequent and prolonged bathroom access as needed.” Id. at 4.
The complainant then explained if frequent and prolonged bathroom breaks were permitted, she would only be able to work 20 to 30 hours a week onsite, while she would be able to put in a full 40-hour week if she were allowed to telework.
The complainant’s medical documentation noted her condition often required an unpredictable and sudden need to use the restroom. Her “functional limitations have resulted in situations that are easy to take care of if working from home but can be difficult and misunderstood in a professional environment.” Id. at 5.
The documentation also noted that if the complainant was required to work onsite, she needed use of a private restroom. The agency instead provided access to a shared restroom.
Because her telework was revoked and she was not provided with a private restroom, the complainant was not able to come to the worksite. Because of this, she resigned approximately nine months after her telework was revoked.
Upon review of the appeal, the EEOC found the agency failed to provide a reasonable accommodation because the shared restroom was not effective. In addition, while the agency claimed the complainant’s position was not eligible for telework, the fact that the complainant had successfully worked from home for more than two years undermined the argument.
The EEOC also found the complainant’s resignation amounted to a constructive discharge because “a reasonable person in Complainant’s situation would have found the Agency’s actions intolerable.” Id. at 13.
Revisiting existing accommodations is sometimes necessary – but when an agency changes an accommodation that’s been working, it almost never ends well for anyone. Hopkins@FELTG.com
Singh provides a fairly narrow comparator analysis that employees generally be from the same work unit, work under the same supervisor, and engage in the same or similar offenses. Here’s our take on Singh v. USPS, 2022 MSPB 15 (May 31, 2022).
By Deborah J. Hopkins, January 17, 2024
With the start of another year, it’s time for our annual update on what’s happening in the Federal employment law agencies most relevant to FELTG readers. Let’s get right to it.
Merit Systems Protection Board
Isn’t it wonderful to have a functioning Board? Nearly every morning, I check to see what new cases have been issued. More often than not there’s something new to read. According to recent case processing data, the Board issued 2,176 decisions between March 2022 (when the quorum was restored) and Dec. 31, 2023. Of those, over 2,000 were part of the original 3,793 in the case inventory (what we at FELTG have commonly referred to as the backlog) the Board inherited following 5-plus years without a quorum.
Despite losing its third Member Tristan Leavitt, whose term expired in February 2023, the Board has been able to function with only two Member positions filled.
As of Jan. 1, the Board had 1,788 cases in its inventory still to be adjudicated. We’ll be covering the most relevant new cases during our upcoming MSPB Law Week in April.
As 2024 gets under way, we await a Senate vote on former Special Counsel Henry Kerner, who President Biden nominated last fall to be a Member. The Senate committee has a vote scheduled for January 17 (today!), so we should know more very soon.
The Board has also published interesting reports on topics including sexual harassment and employee perceptions of prohibited personnel practices in the workplace.
Equal Employment Opportunity Commission
The EEOC’s focus this past year included the implementation of the long-awaited Pregnant Workers Fairness Act, which became law June 27, 2023. This law requires employers to accommodate the pregnancy- and childbirth-related physical and mental limitations of employees in much the same way agencies are required to accommodate disabilities. Regulations are due any day now, so it’s a good time to register for Everything You need to Know About the Pregnant Workers Fairness Act on Feb. 7.
Another major case with EEO impact was the Supreme Court’s Groff v. Dejoy, which raised the standard for an employer to show undue hardship when considering an employee’s religious accommodation request. We wrote about that case here.
And finally, the EEOC’s Office of Federal Operations (OFO) issued guidance on workplace accessibility. You should take a look to ensure your agency is in compliance.
Federal Labor Relations Authority
The FLRA, much like the MSPB, has a leadership panel, which consists of three political appointees. At the moment there are two Authority Members – Susan Tsui Grundmann and Colleen Duffy Kiko. Last September, Kiko was nominated for another term.
Last week, President Biden nominated Anne Wagner, currently the Associate Counsel at OSC, to the third seat. If her name is familiar to you, it may be because Wagner served as a Member of the MSPB for several years alongside Grundmann. Much like the MSPB, the Authority is able to operate with a two-person quorum, so Grundmann and Kiko are issuing decisions as normal.
The FLRA hasn’t had a confirmed General Counsel in longer than I can recall off the top of my head, but there have intermittently been civil servants who have filled the role in an acting capacity.
A couple of weeks ago, Biden nominated Suzanne Elizabeth Summerlin for the third seat. Now, we await Senate action. The senate committee plans to vote on Summerlin today as well.
The FLRA is experiencing major issues with its annual budget, which is actually lower than it was in 2004, according to GovExec. Its workforce has also shrunk despite the increase in labor management activity in recent years.
While there’s emphasis on resolving disputes without time-consuming litigation – check out Dan Gephart’s two-part interview with FLRA’s Collaboration and Alternative Dispute Resolution (CADRO) Director Michael Wolf here and here – we have to wonder how the agency can continue to serve its mission if its budget doesn’t match its workload.
U.S. Office of Special Counsel
Just a few days ago, President Biden sent Hampton Y. Dellinger’s nomination to the Senate, asking them to confirm Dellinger as the Special Counsel, and the Senate committee is scheduled to vote today.
Dellinger was nominated in October 2023. His background includes work at the U.S. Department of Justice as an assistant attorney general overseeing the Office of Legal Policy (OLP), and work for the state of North Carolina investigating and working on initiatives to reduce Medicaid fraud and fight political corruption.
According to its 2023 Performance Report, OSC received 4,611 new cases in FY 2023, which represents a 21 percent increase over the average of the previous three fiscal years, and achieved 418 “favorable actions” which is the second highest in the agency’s history. “What’s a favorable action?” you might ask. We’ll tell you when you come to MSPB Law Week.
Also interesting since it’s an election year (doesn’t it always feel like an election year?), OSC resolved 277 Hatch Act cases and obtained three disciplinary actions against Federal employees who violated the Hatch Act in FY 2023.
That about does it for now. Keep reading our newsletters and we’ll keep you posted as new events unfold. Happy New Year, FELTG readers! I hope it’s your best one yet. Hopkins@FELTG.com
