The “Reasonable” Aspect of Reasonable Accommodation: What Does Reasonable Really Mean?

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By Deborah Hopkins, March 14, 2018

There’s yet another recent EEO decision that makes me ask the question, “When it comes to providing reasonable accommodation to an individual with a disability, how far does an agency need to go?”

And the answer, based on this particular case: pretty darn far.

Here’s what happened. The complainant, a management and program analyst for the FBI, had exhibited some attendance issues and so the FBI issued a notice of proposed removal. In response to the notice, the employee disclosed that she suffered from major depressive disorder and anxiety disorder, and those disabilities were the cause of her attendance issues. She asked the FBI for an accommodation that would allow her a flexible amount of time (the language in the case is “daily variable schedule”) to complete her scheduled 80 hours of work per pay period. She even provided medical documentation that said she was “chronically sleep deprived” and a flexible schedule would provide her with a medical benefit.

The FBI supervisor, probably trying to be nice (because there is no legal requirement to cancel proposed discipline after the disclosure of a disability), held the removal in abeyance for 90 days and granted the complainant a “gliding schedule” that would allow her to report to work any time between 8:00 and 9:30 a.m. Despite this accommodation, the complainant was still late for work 21 times during the 90-day period. According to the agency, the complainant blamed several of her late arrivals on child care issues.

So, after the 90 days elapsed, the agency removed the complainant for AWOL and she filed a reasonable accommodation claim and requested a Final Agency Decision. The FAD found that Complainant was not denied a reasonable accommodation, and so she filed an appeal to the Office of Federal Operations.

The EEOC found that the FBI did not grant a reasonable accommodation and remanded the case (5 years later!), citing a few reasons:

  • The complainant contacted her supervisor on 18 of the days she was going to be late, and the agency did not consider granting the complainant leave as accommodation for her tardiness in those instances, instead marking her AWOL.
  • The child care issues were related to the underlying disability.
  • A maximum flexible schedule would have been an effective reasonable accommodation, and the agency did not demonstrate why the complainant needed to arrive to work by 9:30 a.m.
  • The agency did not demonstrate that granting a maximum flexible “gliding” schedule would be an undue hardship.

When I read the case, I don’t see anywhere that the employee requested a “maximum gliding schedule” for the agency to consider. She asked for a “daily variable schedule” which it appears the agency offered her, by allowing for a 90-minute window in which to arrive. But what do I know?

Yep. The EEOC said that the complainant’s oversleeping was a result of her disability and the underlying cause of her attendance issues, so therefore she was not AWOL when she didn’t get to work on time and didn’t call in, and the agency should not have expected her to arrive by 9:30 each day. Davina W. v. FBI, EEOC Appeal No. 0120152757 (December 8, 2017). [Editor’s note: The supervisor might have been able to defend his actions in this claim if he had kept notes of the harm that occurred each time the employee was late. That’s something we’ve been teaching for nearly 20 years. Contemporaneously document your reasons for doing something adverse to an employee, especially if it has the potential to show up as an issue in an appeal/complaint.]

I guess that’s what you get for being a nice supervisor and holding a removal in abeyance, huh? Hopkins@FELTG.com

Bug Bites: How Do You Handle an Employee Who Brings Bed Bugs in to the Office?

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By Deborah Hopkins, February 14, 2018

A few days ago, I got an interesting hypothetical question from a long-time FELTG reader, and it was such a good one I thought I’d share it with the rest of you. It’s something I hope is always hypothetical and you never have to deal with in real life. Here we go:

Hi FELTG,

I have attended many of your trainings and your instructors have even been out to my agency to train our lawyers and HR personnel.  I have a hypothetical strange case that I was hoping I could bounce off of you all.

Hypothetically, what should an agency do if it has an employee who is bringing bed bugs into the office? Let’s say the agency has already paid for an exterminator once and the exterminator confirmed that this employee’s office was the source of the infestation.  Let’s also say that the employee’s supervisor has talked with the employee to notify her of the problem (if she wasn’t already aware), and she told management that she would address it.

Now let’s say it’s a few weeks later and there are still bed bugs in the office, and it’s so bad that other employees are getting bit. Because coworkers getting bit by the bedbugs, this is hypothetically creating a massive morale issue in the office. What do you think a hypothetical agency should do in a case like this? Here are some thoughts:

  1. Do I give him an order and then discipline him if he doesn’t follow that order?  Is my order “Do not bring bed bugs into the office”?
  2. Do I indefinitely suspend him until such time as he can prove to the agency that he has addressed the problem at his home?
  3. Do I put him out on enforced leave (I don’t like this option)?
  4. Do I allow him to come to work but separate him from everyone else and force him to bring a change of clothes each day that is in a sealed plastic bag?

I’m assuming that someone must have dealt with something like this before.  Do you have any thoughts?

And here’s the FELTG response:

Dear well-thought-out FELTG reader,

What an interesting hypothetical you’ve presented to us. While this person’s behavior clearly involves employee safety and health, it’s also misconduct – and as you know from being a long-time FELTG reader, charging misconduct is fast, easy, and free. You give her an order, thereby making it her problem to resolve, and “Do not bring bed bugs into the office” is a clear, understandable order. Of course, you’ll document this conversation with her.

If you’re not going to fire her when she violates the order (if you determine the misconduct does not rise to the level of removable misconduct under Douglas) you can even do an indefinite suspension until she demonstrates medically she is free of the little critters, see, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unsanitary, conduct in the workplace.

No need to do enforced leave, and (not legal advice, just personal advice) I wouldn’t do Option 4 because the plastic bags might not work, and it would just drag out the inevitable.

Thanks for the note, and good luck if a case like this ever presents itself in real life! 😉

Hopkins@FELTG.com

More on the Dangers of Charging Intent: Threat and Willful Misconduct

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By Deborah Hopkins, February 14, 2018

Last month we discussed charges that carry an element of intent. If you didn’t get a chance to read it, check it out here: https://feltg-stage-ada.stage3.estlandhosting.com/the-dangers-of-charging-intent/. As a reminder, if a charge includes an element of intent, the intent must be proven by a preponderance of the evidence. Usually we don’t have a confession showing intent, so we look at circumstantial evidence and consider the totality of the circumstances. Naekel v. Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); Boo v. DHS, 122 MSPR 100 (2014).

This month we will be looking at two specific charges: threat and willful misconduct.

Threat

The lead case on threat is Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986). If you haven’t read it, you really should. As a quick summary, though, Mr. Metz was an instructor at the Federal Law Enforcement Training Center, and he was not happy with his performance evaluation: he received an annual rating of “excellent” but believed he deserved an “outstanding,” and he said he would harm himself and others. Two of Metz’s coworkers also reported that they heard Metz say he was going to kill his supervisors.

Threats of harm against a government supervisor are taken seriously, though sometimes it is difficult for an agency to determine if a threat actually has been made, or if a person is just talking out of frustration or anger. In reviewing removals based on threat charges, MSPB must use “the connotation which a reasonable person would give to the words.” Meehan v. USPS, 718 F.2d 1069, 1075 (Fed. Cir. 1983). In other words, look carefully at the circumstances.

Metz sets out five factors to help determine whether a threat has been made:

  1. The listener’s reaction;
  2. The listener’s apprehension of harm;
  3. The speaker’s intent;
  4. Any conditional nature of the statements; and
  5. The attendant circumstances.

Intent evidence shaky? Consider another charge for the misconduct. Discipline has been upheld for a charge of “Making statements that caused anxiety and disruption in the workplace,” McCarty v. Navy, 95 FMSR 5122 (1995), and charging “inappropriate conduct,” but bringing intent evidence into the Douglas analysis as justification of a more severe penalty, Brough v. Commerce, 119 MSPR 118 (2013).

Willful Misconduct

So, what the heck is this charge “willful misconduct”? It’s a deliberate and intentional (not careless or heedless) disobedience of a lawful order. So if you’ve got intent evidence that the disobedience was intentional, go forth and charge. However, as always when dealing with intent, proceed with caution.

The line between careless and willful should not be ignored.  We often see employee injuries and workers’ compensation claims in cases of willful misconduct, and when an employee’s willful misconduct leads to his injury, his actions take him out of the performance of duty. I.A. and USPS, No. 15-1913 (ECAB 2016). For example, a USPS employee drove a GOV without a seatbelt and entered an intersection with the vehicle’s passenger-side door open. These behaviors were not willful misconduct but rather were lapses of judgment, because they did not exhibit wanton or reckless disregard of probable injurious consequences. L.R. and USPS, No. 08-84 (ECAB 2008). Because there was no evidence of premeditation…or intentional wrongdoing, or that the employee knew his behavior was likely to result in serious injury, his claim was not precluded under workers’ comp. Id.

As we said last month, and will say a thousand more times, the bottom line in labeled charges that contain an intent element: be sure you have a preponderance of the evidence on intent, because if you don’t you will lose your whole case, and Mx Misconduct will be coming back to work for you. Hopkins@FELTG.com

Shall, Will, May, or Must?

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By Deborah Hopkins, January 17, 2018

It’s every legal writer’s conundrum: when writing a legal document, which word of the following is the strongest to use, imposing a mandatory requirement on the recipient of the document:

A. Shall

B. Will

C. May

D. Must

The answer? D.

The only word of obligation from the list above is must – and therefore, the only term connoting strict prohibition is must not. The interpretation of everything else is up for debate.

Don’t believe me? You don’t have to take my word for it. Just about every jurisdiction in this great country has held that the word shall, while the most often used of the above, is also the most confusing because it can mean may, will, or must. Our very own U.S. Supreme Court has interpreted the word to mean may. In fact, it’s so confusing that the Federal Rules of Civil Procedure no longer use the word at all.

We quote Bryan Garner, one of our favorite authors, quite a lot during our legal writing classes because the guy just gets it; he understands what it means to beat your head against a wall trying to get a legal document just right, and understands that sometimes one word can alter the meaning of an entire sentence, paragraph, or document. On the topic of today’s article, he says, “In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language.” Hahaha. Nothing like lawyers to make black and white seem like all the shades of gray. Isn’t this a fun business we’re in?

To be fair, it’s not really our fault that this confusion exists. We can blame our law school professors: until just a few years ago, even the top tier law schools were teaching students that the word shall means must. The Federal Plain Writing Act only clarified this in 2010, and clearly a lot of us didn’t get the note. Props to the FAA, though, as it was the first agency to bring this topic to our attention.

So, realizing that words that sound alike may have very different meanings, let’s look at an example from a hypothetical EEO settlement agreement:

A. The agency shall return the complainant to her previous position as a GS-4 File Clerk and the complainant shall withdraw her complaint.

B. The agency will return the complainant to her previous position as a GS-4 File Clerk and the complainant will withdraw her complaint.

C. The agency may return the complainant to her previous position as a GS-4 File Clerk and the complainant may withdraw her complaint.

D. The agency must return the complainant to her previous position as a GS-4 File Clerk and the complainant must withdraw her complaint.

Yep, I’m going with D. Remember, when you want something to be mandatory – like a settlement agreement that requires both sides to do something – use the word must instead of shall, and you’ll have a document that carries with it a firm legal obligation. For more on this topic see the Federal Plain Language Guidelines (page 25) and the Federal Register Document Drafting Handbook (Section 3).

And if you really can’t get enough of this stuff, join us for this upcoming writing workshop in Washington, DC: Writing for the Win: Legal Writing in Federal Sector EEO Cases (May 8-10).

And now, I must go. Hopkins@FELTG.com

The Dangers of Charging Intent

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By Deborah Hopkins, January 17, 2018

One of the more interesting – and precarious – challenges that attorneys, HR practitioners, and supervisors in our business come across in misconduct cases is a word that you probably remember from way back in your Criminal Law class, if you went to law school: intent. Proving intent can be difficult, and while in the criminal world lesser-included offenses automatically apply (for example, if you can’t prove Murder 1, Murder 2 is a lesser-included offense that rides along with the Murder 1 charge), in the business of federal employment law, failing to prove intent might just cause you to lose your entire case – even if you have incontrovertible video evidence and 100 witnesses who can swear that the employee engaged in misconduct.

In our business, labeled charges (for example, falsification; theft) come with an element of intent, and the intent has to be proven by a preponderance of the evidence. So, how does one prove intent? Well, unless we have an appellant who admits they intended to tell a lie or to permanently deprive someone of something, intent is proven by considering the totality of the circumstances. Naekel v. Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); Boo v. DHS, 2014 MSPB 86.

When it comes to intent charges, we have a few common categories that are worth exploring. Today we’ll cover deceit/falsification and insubordination. In the next newsletter we’ll tackle threat and willful misconduct.

Deceit/Falsification

In order to prove Falsification, the agency must prove that the information given by employee is:
1. Either
– False,
– Misleading, or
– Incomplete,
2. Given with the intent to deceive, and
3. For private material gain
Boo, supra.

All of these elements are required, so just because an agency can show that an appellant has provided incorrect information, this proof in itself does not control the question of intent for purposes of adjudicating a falsification charge. Reid v. Navy, 118 MSPR 396 (2012) (intent may be negated if there is evidence the appellant does not believe he has done anything wrong). Because we’re talking about circumstantial evidence, intent may also be inferred when the misrepresentation is made with a reckless disregard for the truth, or with conscious purpose to prevent the agency from learning the truth. Crump v. VA, 114 MSPR 224, ¶ 6 (2010).

One of the common ways agencies lose the intent argument is when an employee makes a good-faith explanation for the behavior that seems deceitful, and the agency still decides to charge the employee with falsification. A reasonable good-faith belief in the truth of a statement precludes a finding that an employee acted with deceptive intent. See, e.g., Leatherbury v. Army, 524 F.3d 1293 (Fed. Cir. 2008) (appellant who requested mileage reimbursement to which he was not entitled had a reasonable good faith belief that he could seek reimbursement, therefore he could not have been reckless with regard to the truth because of that reasonable good faith belief).

The absence of a credible explanation for the incorrect information can constitute circumstantial evidence of intent to deceive. Crump, supra (the totality of the circumstances and lack of plausible explanation showed the appellant falsified his educational background, a medical record, and information related to a military leave request with the intent to deceive or mislead).

If your intent to deceive evidence is shaky, consider charging lack of candor, which is a more flexible charge that need not require proof of intent to deceive. See, e.g., Ludlum v. DoJ, 278 F.3d 1280 (Fed. Cir. 2002). And always remember, you can pump up the penalty by putting intent in the Douglas analysis; if you lose it down there, your case isn’t necessarily dead.

Insubordination

Insubordination is “The willful and intentional refusal to obey an authorized order of a superior that the superior is entitled to have obeyed.” Phillips v. GSA, 878 F.2d 370 (Fed. Cir. 1989), which is a distinct charge from failure to follow a policy, Brown v. Air Force, 95 FMSR 5182 (1995).

Here are examples of a few cases where agencies were able to prove the intent element in insubordination charges:

• Refusal to comply with a supervisor’s order to go home, Ziegler v. Treasury, DC-0752-11-0645-I-1 (2013)(NP).

• Disobedience of an order to be vaccinated against anthrax, Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002).

• Refusal to answer a supervisor’s questions in connection with a work assignment, Shaw v. Air Force, 98 FMSR 5373 (1998).

• Refusal to submit to drug testing, Watson v. Transportation, 91 FMSR 5447 (1991).

And here are a few that agencies lost:

• A brief delay in providing information sought in connection with an investigation, Milner v. Justice, 97 FMSR 5455 (1997).

• Refusal to comply with an order that would have placed the employee in imminent danger of serious injury, Washington v. VA, 91 FMSR 5486 (1991).

• A sincere but unsuccessful attempt to comply with an order, Forgett v. Army, 90 FMSR 5329 (1990).

• Failure to comply with an order or direction that is not sufficiently clear, Drummer v. GSA, 84 FMSR 5706 (1984).

If you’re having trouble on the intent evidence in these cases where you want to charge insubordination, consider instead charging something like failure to follow orders, which does not require willful refusal to obey an order but just requires proof the employee did not do what he was told to do. See Hamilton v. USPS, 71 MSPR 547 (1996).

The bottom line in labeled charges that contain an intent element: be sure you have a preponderance of the evidence on intent, because if you don’t, you lose the whole thing. Hopkins@FELTG.com

It’s Called Sexual MISCONDUCT for a Reason

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By Deborah Hopkins, December 13, 2017

You probably saw last week that Time Magazine’s 2017 Person of the Year is not a person at all, but rather is a group of people: “The Silence Breakers,” the women who came forward under #MeToo as victims of sexual harassment and assault.

This #MeToo movement continues to reveal more details of sexual misconduct in the workplace, and more horrifying details of sexual misconduct – from the highest levels – are coming out. It may seem like “guilty until proven innocent” is the trend in Hollywood (think Matt Lauer; Kevin Spacey; Harvey Weinstein), but keep in mind that there’s a lot we don’t know about why those ramifications hit so quickly. There could have been admissions, confessions, or agreements to resign.

What we do know is that because of these front-page stories, there is now a heightened awareness and sensitivity to sexual harassment and related inappropriate conduct in the federal government. Sexual misconduct among federal employees is not anything new, but because it’s a topic on everyone’s minds, it’s worth a deeper look today.

First of all, sexual harassment is a term of art and while it’s easy to allege, it’s actually not that easy to prove. There are elements to a sexual harassment claim, and the complaining employee must prove them all in order to prevail. So, there is a LOT of inappropriate conduct that does not rise to the level of Title VII sexual harassment but is still inappropriate in the workplace.

What does this mean for you, at your agency? It means you should not wait to discipline an employee who engages in inappropriate sexual conduct until a complaint of sexual harassment is filed or proven. The EEO complaint process takes so long, you could have a predator roaming the halls of your agency for years before there’s ever a finding. So do not delay.

A lesson we learned from the Postal Service 30 years ago is that an agency can remove an employee for inappropriate sexual conduct, even if the conduct does not rise to the level of Title VII harassment. It bolsters the agency’s case for removal if the employee’s conduct affects other agency employees, and if the agency has a legitimate concern about incurring potential Title VII liability if it fails to take appropriate action to correct the employee’s behavior. See Carosella v. USPS, 816 F.2d 638 (Fed. Cir. 1987). Part of an agency’s obligation in these cases is to promptly investigate and STOP harassment from occurring, so acting quickly is the best way to protect employees from harm – and to protect your agency from liability.

So, what kinds of cases warrant removal as an appropriate penalty? Let’s look at a few.

Supervisor Misconduct

Supervisors are held to a higher standard than co-workers, so if the perpetrator is a supervisor we know that removal can be warranted, especially when there are multiple charges of inappropriate sexual behavior toward subordinates. Last year the MSPB affirmed a supervisor’s removal for Unacceptable Conduct where the supervisor made inappropriate comments with sexual undertones to several subordinates, including telling an employee that he was willing to help her cheat on her husband, and telling a different employee that she could take the day off if she was willing to act “a little unprofessional.“ Oliveros-Ballon v. USPS, SF-0752-15-0615-I-1 (April 15, 2016)(NP).

In another recent case, a supervisor’s removal was affirmed after she made comments of a sex-based nature and touched an employee on the buttocks on multiple occasions. That’s right, female supervisors engage in this type of behavior as well, and are disciplined accordingly. Reid v. Air Force, CH-0752-14-0849-I-1 (April 5, 2016) (NP).

Over at the VA, a supervisor’s removal was affirmed after he was charged with 20 counts of inappropriate and intimidating sexual comments, sexual conduct, and changes to working conditions, of his female employees. Alberto v. VA, 98 MSPR 50 (2004).

There are hundreds, if not thousands, of cases that follow this same line of outcome, but hopefully by now you get the idea. Sexual misconduct – regardless of what you decide to call the charge – is nothing new and agencies have been successfully removing supervisors for decades over inappropriate sexual language and conduct in the workplace.

Coworker Misconduct

In the case of a non-supervisor, though, removal is often still an appropriate penalty. Earlier this year, the Federal Circuit upheld a removal for Unacceptable Conduct where the appellant made 10 vulgar sexual comments to female customers and coworkers. Canarios v. USPS, No. 2017-1935 (Fed. Cir. 2017) (NP). In another recent case, an MSPB AJ upheld a Conduct Unbecoming removal when an appellant made sexual comments and gestures at three coworkers and did not stop after they objected to his conduct. Adkins v. DOD, SF-0752-16-0294-I-1 (December 12, 2016) (NP).

A Treasury employee’s removal was upheld by the MSPB because he continued to talk to a coworker in sexually offensive and derogatory terms, after being explicitly told by management not to do so. Lentine v. Treasury, 94 MSPR 676 (2003). [Editor’s Note:  This is critical and sometimes, this is hard. Before we can discipline, the employee has to be on notice of the prohibited misconduct. Some conduct obviously violates accepted norms of behavior and can be disciplined even if we did not tell the employee not to do it; e.g., non-consensual sexual touching. On the other hand, some conduct is not so obviously inappropriate; e.g., touching someone’s shoulder. The manner and context of conduct often determines whether the employee should have known not to do it; e.g., was the shoulder touch an “Atta boy/girl” congratulation or was it a “Hey, baby. You got some nice sexy shoulders there.” The good news is that a supervisor can establish rules that clarify any gray areas; e.g., “No touching. Anywhere. Any time.”]

This is serious stuff that requires appropriate action.

If you’re dealing with a potential sexual misconduct charge, you’ll want to pay special attention to these mitigating or aggravating factors in penalty selection for sexual harassment cases:

  1. Physical contact
  2. Frequency or severity of the conduct,
  3. Supervisory status,
  4. Clarity with which employee is on notice of rules prohibiting sexual harassment and improper conduct, and
  5. The employee’s potential for rehabilitation.

See, e.g., Reid, supra.

Is there a correct way to handle in these cases? Yes. The answer is to take prompt, effective corrective action so that these behaviors do not continue. Look to the cases for guidance. And hey, while it seemed for a while that Congress was above it all, we’re finally starting to see that in sexual misconduct is a serious offense, and it deserves consequences, no matter who you are. Hopkins@FELTG.com

How Much Workplace Violence Do I Have to Put Up With?

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By Deborah Hopkins, November 15, 2017

Here’s a note a reader recently sent:

Dear FELTG,

I work in a federal agency but NOT in a federal building. We don’t have metal detectors – just a security person at a reception desk, who is sometimes there and sometimes not. I have never been bothered by working in a non-secure building until recent events in the media – most recently, a few days ago when a man shot and killed three coworkers, and injured two other, outside Baltimore. While we don’t know much yet about the shooter, I have to wonder if he had violent tendencies and whether this could have been stopped before it happened.

This leads me to my questions:

  1. Can a federal agency fire someone who shows violent tendencies in the workplace?
  2. If so, what should the charge be, and how much proof do we need?

Thanks for your help.

And here’s the FELTG response:

Thanks for your note. I’m sure you’ve heard us talk or write about the sad fact that over 400 people die at work every year at the hands of a co-worker. It’s a tough reality. Regarding your questions, let’s take them in order:

  1. Yes. If the employee has engaged in misconduct – broken a rule – you can propose removal if, in doing the Douglas analysis, you determine that the misconduct warrants removal. (If you’re at the VA, a new law means you don’t even have to do Douglas.)
  2. As far as proof, you’ll need a preponderance of the evidence – that it’s more likely than not – that the individual did whatever you charged him or her with. The charge you use will depend on the facts of the case. Is the individual assaulting people, threatening people, or destroying property? You want to make sure to select a charge that you can prove. (If you’re at the VA, you only need to prove the misconduct by substantial evidence.)

Here are a few case examples where removal for threatening or aggressive-type behavior was appropriate:

Charge: Unacceptable Conduct

A letter carrier’s removal was upheld after he used profanity toward a co-worker and punched the co-worker in the head. Davis v. USPS, 487 F. App’x 571 (Fed. Cir. 2012) (NP).

Charges: 1) Violation of the Code of Professional Responsibility; 2) Off-Duty Misconduct; 3) Unnecessary Display of a Weapon

A U.S. Deputy Marshal’s removal was upheld for an off-duty altercation. The Marshal had stopped his car in the middle of the street and was arguing with his girlfriend, and when two people he did not know told him to move his car so they could drive past, the Marshal “slapped” the driver’s car, and then pulled out his firearm and pointed it above the driver’s head. Rodriguez v. DOJ, NY-0752-10-0081-I-1 (2011) (NP)

Charges: 1) Creating a Disturbance, and 2) Insubordination

Removal was upheld where the appellant, a Legal Administrative Assistant, refused to comply with an agency police officer’s orders, started “flailing” his elbows, and injured two officers who were attempting to take him into custody. Sousa v. Army, 108 F.3d 1391 (February 11, 1997)

Charge: Threatening a Coworker with a Knife

Removal was upheld for an Army weapons explosives operator, who flipped out the blade of his pocket knife and told a coworker he would cut the buttons off her overalls. Despite his defense that he was joking, the coworker testified she felt threatened, and witnesses concurred. McGuire v. Army, 333 F. App’x 528 (Fed. Cir. 2009) (unpublished)

If an agency’s charge includes the word “threat,” it is wise to be sure a threat has actually been made. The MSPB looks to the Metz factors in analyzing charges of threat: 1) the listener’s reactions; 2) the listener’s apprehension of harm; 3) the speaker’s intent; 4) any conditional nature of the statements; 5) the attendant circumstances. Metz v. Treasury, 780 F.2d 1001 (Fed. Cir. 1986)

If any of the Metz factors are shaky, it’s probably best to frame the charge differently. Remember, too, if there’s an emergency situation, you can – and should – call 911.

If you need to know more about this all-too-important topic, join us for the 2018 webinar series Behavioral Health Issues in the Federal Workplace, or join us for the brand-new two-day program Handling Behavioral Health Issues and Threats of Violence in the Federal Workplace March 6-7 in Honolulu. Hopkins@FELTG.com

Do I Have to Pay My Disabled Employee’s Wife to Assist Him at Work?

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By Deborah Hopkins, October 18, 2017

The answer to this article’s title: maybe.

Earlier this year, EEOC amended the regulations on federal agency obligations to provide Personal Assistance Services (PAS) to employees who have targeted disabilities. (If you need a refresher on what a targeted disability is, check out this recent FELTG article). The amendments apply to Section 501 of the Rehabilitation Act of 1973, the law that prohibits the federal government from discriminating in employment on the basis of disability and requires it to engage in affirmative action for people with disabilities.

Some individuals with targeted disabilities cannot work unless PAS are provided to them in the workplace, so beginning January 3, 2018, federal agencies will be required by 29 CFR § 1614.203(d)(5) to provide PAS to individuals who need it. PAS are provided by humans, and help individuals who, because of their targeted disabilities, require assistance to perform basic activities of daily living, such as eating, walking, or getting out of a vehicle.

According to the regulations, PAS means “assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom.” Keep in mind these are examples and the regulations do not list every activity that might constitute a need for PAS. For example, someone providing PAS might push a wheelchair or assist someone with getting into or out of their desk chair at work.

PAS provide functional assistance, not medical assistance. PAS do not include performing medical procedures (such as injecting insulin) or medical monitoring (such as monitoring heart rate, body temperature or blood sugar).

Here are some examples of Personal Assistances Services federal employees might need:

  • Pushing a wheelchair
  • Getting out of their vehicle when they get to work
  • Using the restroom
  • Walking across uneven surfaces
  • Assistance with prosthesis
  • Eating or drinking during a break
  • Reaching and retrieving items

As stated above, PAS allow individuals to perform activities of daily living that an individual would typically perform if he or she did not have a disability – but they do NOT perform the essential functions of the job FOR the individual. EEOC’s website gives an example: “PAS do not help individuals with disabilities perform their specific job functions, such as reviewing documents or answering questions that come through a call-in center. PAS differ from services that help an individual to perform job-related tasks, such as sign language interpreters who enable individuals who are deaf to communicate with coworkers, and readers who enable individuals who are blind or have learning disabilities to read printed text. Those services are required as reasonable accommodations, if the individual needs them because of a disability and providing them does not impose undue hardship on the agency. An agency’s obligation to provide reasonable accommodations is unaffected by the new regulations.”

Agencies are required to provide PAS to an individual if:

  1. The individual is an employee of the agency;
  2. The individual has a targeted disability;
  3. The individual requires the services because of his or her targeted disability;
  4. The individual will be able to perform the essential functions of the job, without posing a direct threat to safety, once PAS and any required reasonable accommodations have been provided; and
  5. Providing PAS will not impose undue hardship on the agency.

In addition to being available regularly scheduled work hours, PAS must be supplied during overtime hours and work-sponsored events such as special talks and holiday parties, as these are “benefits and privileges of employment,” PAS must also be provided to teleworkers who qualify.

PAS employees may be federal employees, independent contractors, or a combination of employees and contractors. While the agency has the final say on who provides PAS to the employee, the employee’s choice should be given deference whenever possible. This means if the employee’s spouse provides PAS when he is not in the workplace, and the employee needs assistance when in the workplace, the agency may employ his wife (as either an employee or contractor) as the PAS provider if the employee requests her. If the agency denies a request for a specific PAS, the agency must show providing it would be an undue hardship under the disability standard.
For more information see EEOC’s Questions and Answers: Federal Agencies’ Obligation to Provide Personal Assistance Services (PAS) under Section 501 of the Rehabilitation Act at https://www1.eeoc.gov//federal/directives/personal-assistance-services.cfm?renderforprint=1.

Hopkins@FELTG.com

A Classic Reprisal Case

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By Deborah Hopkins, October 18, 2017

EEO activity isn’t fun for anyone involved – not for the complainant, not for the agency reps, and not for the supervisor named as a responding management official. But EEO laws exist to protect people from illegal reprisal for engaging in protected EEO activity, and a recent reprisal case from USGS shows us exactly what not to do.

The employee, a hydrologist for the U.S. Geological Survey, filed an EEO complaint based on age (51), sex (male), hostile work environment, and reprisal. The employee’s claims were:

  1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position;
  2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position;
  3. On September 10, 2013, his first level supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri;
  4. On August 20, 2013, the selecting official told him that the supervisory position was the Selectee’s position;
  5. On August 20, 2013, his first level supervisor instructed him not to apply for the Supervisory Hydrologist position in Rolla, Missouri;
  6. On an unspecified date in October 2010, he did not receive his promotion after being told that he had the director’s approval for the promotion, pending a letter of reference;
  7. On an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do;
  8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and
  9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment.

As is common in EEO cases filed, the complainant’s claims on age, race and harassment were found to have no merit, but the EEOC did find evidence of reprisal for prior EEO activity:

  • The supervisor offered the employee an incentive to withdraw his complaint, and told him that if management changed and the employee had a good performance evaluation, he would talk with senior management about a new job for the complainant.
  • The supervisor told the complainant he thought he had “pulled the trigger too soon” by contacting the EEO counselor.
  • The supervisor also told the complainant that the EEO process is not “the most enjoyable path for anyone involved.”

The EEOC found that the supervisor “engaged in conduct that was designed to intimidate and/or interfere with Complainant’s EEO activity. We further find that [the Supervisor’s] comments would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and that the actions and comments by [the Supervisor] were clearly in violation of the anti-retaliation provisions of our regulations.”

As part of the order, EEOC required the USGS to provide “at least eight hours of in-person EEO training to [the Supervisor] regarding his responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees.” Octavio C. v. USGS, EEOC Appeal No. 0120150460 (August 16, 2017).

We try to get the word out to your supervisors that while EEO is not fun for anyone involved, making these types of statements is going to be reprisal, every single time. If you need to know more on this topic, Bill and I are holding a webinar called 50 Shades of Reprisal: The Differences between Whistleblower, EEO, Union & Veteran Reprisal on October 26.  Hopkins@FELTG.com

Do Supervisors Have Any Appeal Rights?

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By Deborah Hopkins, September 13, 2017

A couple of weeks ago, I was teaching a class to supervisors on holding employees accountable for performance and conduct. The day after the training ended, I received the following email from an attendee.

Thanks for the excellent presentation on holding employees accountable.  My concern is with the new changes that might be coming from Congress — it seems that there will be little to NO protection for Supervisors, regardless of tenure with the government.

What recourse does a supervisor have IF given a letter of Reprimand, and where can I find information as to the rights of a Supervisor within the Federal government, when I have no union for protection?

And here’s the quite-brief response to that question.

Dear FELTG attendee,

Thanks for the email. Though you’re not in a union, you do have a couple of options if you’d like to challenge the reprimand:

  1. You can file an internal administrative grievance with the agency. This is different from a union grievance in that the internal grievance generally goes to a higher-level official in the agency, instead of to an arbitrator, and of course you don’t have a union to represent you. I haven’t read your internal grievance policy so I don’t know the specific person you file with, but I imagine HR will be helpful in providing you with that info.
  2. You could contact an EEO counselor if you think the reprimand was motivated by your EEO category (age, sex, religion, etc.).
  3. You could contact the US Office of Special Counsel if you meet the definition of a whistleblower.
  4. If you are a veteran and feel you have been mistreated because of your military service, the Department of Labor (or OSC sometimes) can help you out.

And that’s about it. Please let me know if you have any questions at all. Take care. Hopkins@FELTG.com