The Supervisor who Threatened to “Skull F*ck” His Employees

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By Deborah Hopkins, August 16, 2017

Lately, FELTG has begun offering classes on dealing with threats of violence in the federal workplace. It seems that there’s a workplace shooting just about every day, and if you can believe it, government workplaces (including state and local) experience about twice the amount of workplace violence as do private sector employment facilities.

Violence should be taken seriously and in my humble opinion, violence in the workplace is usually a first-strike-and-you’re-out offense. Even threats of violence should be taken seriously. It’s just not worth it to gamble with people’s lives.  Aaron Alexis, the contractor who committed the Navy Yard mass shooting in 2013, had a history of violent behavior in the Navy – violent behavior that went uncharged and therefore was under the radar when he applied for his contractor job.

Here are some recent cases where agencies removed employees for violent behavior, and the removals were upheld.

Removal for conduct unbecoming a supervisor was upheld when evidence showed the supervisor threatened multiple employees with the comment, “I’ll skull f*ck you.” Hamel v. DHS, DE-0752-15-0039-I-2 (July 31, 2017).

Removal for conduct prejudicial to the best interests of the service was upheld where evidence showed that an employee: 1) Upset that her leave request was denied, pulled a gun from her car and showed it to the supervisor who had denied the request, and 2) Stood at the door to her supervisor’s office, pointed her finger at him and made a noise as if she were firing a gun. Hicks v. USDA, AT-0752-16-0105-I-1 (September 16, 2016) (NP).

Removal for patient abuse was upheld where the employee, a certified nursing assistant, slapped a patient in the face after he bit her finger. Mitchell v. VA, DC-0752-15-0645-I-1 (May 27, 2016) (NP)

Removal was upheld where the appellant, upset about unresolved leave and pay issues, wrote a letter to her Congressman complaining about the agency and asking “Must more blood [ ] be shed before changes occur?” The appellant also asked a high-level supervisor if she recalled the shootings at Camp Lejeune and Fort Hood and then told her that her first- and second-level supervisors should be careful and should leave [the appellant] alone. Jolly v. Army, AT-0752-15-0013-I-1 (April 15, 2016) (NP).

Violent behavior also creates potential EEO issues. A supervisor’s failure to take prompt and effective corrective action, when a coworker made racially discriminatory threats of violence against the complainant, created agency EEO liability amounting to $125,000, and created severe health problems for the complainant: anxiety, difficulty concentrating, a loss of appetite, high blood pressure, severe headaches, relationship problems, loss of motivation to work, insomnia, weight gain, and paranoia that the coworker would physically harm his family. Vaughn C. v. USAF, EEOC Appeal No. 0120151396 (April 15, 2016).

I have a bunch more, but you get the idea. There’s just no place for people like this in the federal civil service.

In case you’re interested in learning more, FELTG is offering a webinar on the topic: Handling Violence and Threats of Violence in the Federal Workplace on September 7. You really can’t afford to miss this one. Hopkins@FELTG.com

The EEO Supervisor Who Never Heard of a Targeted Disability

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By Deborah Hopkins, July 19, 2017

A few weeks ago, I was talking shop with a colleague, and he mentioned that he’d recently run into an agency EEO supervisor who had never heard the term targeted disability.

“C’mon,” I said, “There’s no way that’s right.”

“Right or wrong, it’s the truth,” replied my colleague.

“Okay,” I said, “Maybe she is at least familiar with the term predictable assessment?”

“Nope,” my colleague said, “Not that either.”

“Ok, how about Schedule A?”

“Negative.”

Holy moly. If an EEO supervisor doesn’t know this stuff, then how many of our readers might not know it either? I think it’s time for a “read and learn” session.

Targeted disabilities are the most severe types of disabilities, and they include:

  • Blindness
  • Deafness
  • Partial and full paralysis
  • Missing extremities
  • Dwarfism
  • Epilepsy
  • Intellectual disabilities
  • Psychiatric disabilities

Individuals with these disabilities typically have the greatest difficulty finding employment, so the federal government places a special emphasis on recruiting, hiring, promoting and retaining people with targeted disabilities.

The related term predictable assessment comes out of 29 CFR § 1630.2(j)(3): the “inherent nature” of certain impairments will “virtually always be found to be a substantial limitation.” Thus, these conditions always rise to the level of disability under the ADA.

Section 501 of the Rehabilitation Act of 1973 charges federal agencies to promote the hiring and retention of individuals with disabilities in two ways:

  1. To be a model employer of individuals with disabilities through use of meaningful affirmative hiring, placement, and advancement opportunities; and
  2. To ensure employment non-discrimination and reasonable accommodation.

Schedule A hiring authority allows agencies to provide job opportunities to individuals with targeted disabilities by appointing qualified individuals to federal jobs non-competitively, thus eliminating the need to post a job opening or certify a certain number of candidates for an open position. Schedule A also allows for hiring readers, interpreters, and personal assistants for employees with severe disabilities as reasonable accommodations.

From a practical perspective, this means that if a candidate with a targeted disability appears to be qualified for a funded vacancy, and the supervisor wishes to hire this individual, the agency does not need to issue a job announcement. But, Schedule A applications can be accepted after the job announcement closes, up until the position is actually offered to someone.

Earlier this year, the EEOC released a final rule, “Affirmative Action for Individuals with Disabilities in Federal Employment.” Beginning in 2018, agencies will be required to incorporate affirmative action into hiring and advancement plans: 12 percent of employees should be people who have disabilities, and 2 percent of employees should have targeted disabilities. Agencies will be required to report their statistics to the EEOC, and will furnish copies of their hiring/promotion plans to EEOC for approval.

This is an important topic that some people seem to have missed. There’s a lot more that goes into Schedule A hiring, and FELTG is holding a webinar on this topic July 20 (that’s tomorrow!), so if you’re interested there’s still time to register. Hopkins@FELTG.com

Good News, Y’all: Sometimes Telework is NOT a Reasonable Accommodation

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By Deborah Hopkins, June 14, 2017

Out of all the training classes we present here at FELTG, maybe the biggest area where we get questions, comments, complaints, and yes even tears of frustration, is the discussion of telework as a reasonable accommodation for disability. Telework is often an effective accommodation to allow someone to perform the essential functions of her job; it’s just fabulous when it works.  Sometimes, though, telework is not a good option, yet agencies are afraid to say “no” to someone who brings in a doctor’s note that says “Employee X needs to telework because of a medical condition” because they fear getting in trouble if they deny the request or ask for more information.

Does this sound familiar? If so, then it’s time to rejoice, because I have a few points to share that will help you legally deny telework as accommodation:

  1. When the employee does not have a medically-documented disability. If an employee claims to have a disability and requests telework as accommodation, that employee must provide medical documentation that says they have a physical or mental impairment that affects their ability to perform an essential function of the job. The employee must also explain to the agency how the accommodation (in this case, telework) would allow him to perform that essential function from home. If the person does not provide medical documentation, then you do NOT have to grant him telework because he is NOT qualified. In other words, if he refuses to provide specific medical documentation (diagnosis, prognosis, functional limitations), then he waives his entitlement to the reasonable accommodation process. See Complainant v. DLA, EEOC Appeal No. 0120114081 (2013) (employee’s medical documentation was vague and did not describe the limitations on her essential functions, so the agency was not obligated to accommodate her request). No documentation, no disability. No disability, no accommodation.
  2. When telework is not an effective accommodation. Some jobs can’t be done from home because the essential functions require the person to be onsite. In those cases, telework is not an effective accommodation and should not be granted. See Humphries v. Navy, EEOC Appeal No. 0120113552 (2013) (telework was not an effective accommodation because face-to-face interaction with clients was an essential function of the employee’s job); Gemmill v. FAA, EEOC Appeal No. 0120072201 (2009) (telework was not an effective accommodation because the employee needed to access computer systems and confidential documents that were kept securely at the agency facility). If an essential function of the job requires the employee to be at work to do something, and the employee can’t be at work to do the thing, and no accommodation at work will allow the employee to do the thing, the employee is not a qualified individual.
  3. When an employee has a performance problem. Some employees just can’t be successful while teleworking. If an employee is having performance problems in the workplace with direct supervision, you can easily see how granting telework, where the employee does not have direct supervision, might make that performance issue even worse. See Yeargins v. HUD, EEOC Petition No. 0320100021 (2010) (agency properly denied telework as accommodation because the employee, an EEO specialist, lacked sufficient knowledge of civil rights laws to work independently). EEOC has also upheld agency denials of telework as accommodation because of past performance issues that occurred while the employee was teleworking. See Robinson v. DOE, 586 F.3d 683 (9th Cir. 2009) (agency properly denied telework as accommodation after the employee demonstrated an inability to satisfactorily perform her job while teleworking; in 477 hours of telework the employee only completed a half-page document work product).
  4. When another accommodation is effective. More good news: the agency, and not the employee, gets to choose the accommodation, as long as it is effective. See, e.g., Don S. v. BOP, EEOC Appeal No. 0120141175 (2016). Sure, a lot of employees request telework as accommodation, but if the employee can perform the essential functions of the job with an accommodation in the workplace, the agency has fulfilled its obligation and is not required to grant telework. See Complainant v. Army, EEOC Appeal No. 0120122847 (2014) (though the employee requested telework, the agency effectively accommodated her disabilities at work by providing her with a wheelchair, a special parking spot, and a change in minor job duties she could perform within her medical restrictions); Dennis v. Department of Education, EEOC Appeal No. 0120090193 (2010) (an enclosed work area was reasonable accommodation for an employee with perfume allergies); Gilbertz v. CDC, EEOC Appeal No. 0120110026 (2012) (providing the employee with a quieter work area was an effective accommodation for the employee’s hearing problem).

Now that you know there are times you can deny telework as accommodation, we warn you not to go too overboard with your Telework Denied stamp. There are few things to keep in mind:

  1. Telework does not have to be all or nothing. In many cases, telework is an effective accommodation some of the time. If an employee has a job that requires some contact with customers onsite, but other essential functions can be done at home, granting a few hours of telework per week is a reasonable accommodation. See Petzer v. Department of Defense, EEOC Appeal No. 01A50812 (2006) (sixteen hours of telework per week was an appropriate accommodation because the employee needed the remainder of the workweek to access databases that were only available at the agency); Skarica v. DHS, EEOC Appeal No. 0120073399 (2010) (telework for two hours per day was an effective accommodation because it permitted the employee to use his own private restroom to self-administer a catheter for his medical condition).
  2. Telework as reasonable accommodation falls outside general agency telework policies. Telework as reasonable accommodation, in essence, trumps your agency’s general telework policy. For example, if your telework policy says employees are only eligible for telework after they complete a probationary period, but you have a probationary employee who requests telework as disability accommodation, you can’t just say no because he’s a probationer and the policy prohibits him from telework; you have to consider whether telework is an effective accommodation. If there is no other accommodation available, and telework will allow him to perform the essential functions of his job, then you must grant him telework as an accommodation. EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation. See also Dahlman v. CPSC, EEOC Appeal No. 0120073190 (2010) (agency permitted an exception to its telework policy and allowed a new employee to telework one day per week if, after 30 days, she demonstrated her ability to work independently).
  3. The agency’s obligation is to accommodate the qualified employee and nobody else. Only qualified individuals with disabilities are entitled to reasonable accommodation. An agency does not have an obligation to accommodate a non-disabled employee who requests telework so she can better take care of a family member who has a disability. See Key-Scott v. USUS, EEOC Appeal No. 0120100193 (2012) (Agency did not violate the law when it denied an employee’s request for telework so she could take better care of her disabled son).

Note: please keep in mind that if no other accommodation except telework is effective, a conservative approach that will check the “good faith” box might be to grant the employee a 30-day Telework Trial to see if the employee is capable of successful performance while working from home. With the recent decisions coming out of the EEOC, you just might want to show that you did this before you use that Telework Denied stamp.

There’s lots more on this topic (including what your obligations are in accommodating a disabled employee’s commute) next week during the 90-minute webinar Telework and Leave as Reasonable Accommodation, so if you’re interested please sign up. Hopkins@FELTG.com

What Do You Do with the Guy Caught Masturbating on Government Time?

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By Deborah Hopkins, May 17, 2017

Last week, Bill and I were in Denver providing training to a bunch of supervisors from agencies across the country. One of the things we regularly discuss during training classes is why so many agencies don’t take disciplinary action against people who deserve to be disciplined. A warning: the situation I’m about to describe is crass, so read at your own risk.

Let me give you an example of one such conversation; I’ll call it a hypothetical even though it’s not. Agency employee (let’s call him Jimmy) is retirement-eligible but hasn’t yet retired. A couple of times a day, Jimmy walks in to a closet, strips down completely naked, and masturbates during his normal work hours.

The closet is one that other agency employees commonly access for supplies. There have been several instances of employees going to the closet for paper, staples, etc., and opening the door to find Jimmy in the middle of his routine.

And the agency has done NOTHING to discipline Jimmy.

Jimmy is spending quantifiable government time, paid by the taxpayers (that’s you, and that’s me), to masturbate – and the agency doesn’t take action because the supervisors “hope” he will just decide to retire. Now, I don’t know Jimmy personally but I think it’s a pretty good bet that he’s not motivated to retire because he is getting paid to pleasure himself on the clock.

If you’ve been in this business longer than five minutes, then it is not a surprise to you that many agencies have dealt with employees masturbating on government time. Here’s the deal: masturbation at work, on government time, is a removable offense. If you want to read a case involving shock and awe related to this type of inappropriate sexual conduct in the workplace, check out Jardim v. Army, CH-0752-08-0147-I-2 (July 22, 2008). In Jardim, the appellant’s removal for “immoral, indecent, or disgraceful conduct” was affirmed after evidence showed he masturbated at work and in the process exposed himself to a coworker and got semen on her jacket.

In another case, an employee’s removal was sustained after he was seen by others masturbating in a government vehicle; at a different time he masturbated in front of a female coworker. The charge there? “Ejaculating or releasing bodily fluids in a government office, while on duty.” Ever have to charge someone with that? It works. Lee v. OPM, CH-844E-06-0525-I-1 (September 18, 2006).

Need more? I’ve got them. How about Venneri v. Navy, PH-0752-05-0389-I-1 (October 19, 2005), where the appellant exposed himself to a female coworker and started masturbating in front of her? Fired and removal upheld. What about the supervisor who ejaculated onto his employee’s desk after work hours and the next morning told her he had “left a present” on her desk? Charge him with “conduct unbecoming a supervisor” = see ya later, Supervisor Wagner. Wagner v. DOJ, DE-0752-03-0466-I-2 (September 14, 2004).

Plenty more still, but I think you get the idea. Masturbating at works is serious misconduct, particularly when others are exposed to the conduct.

It’s a problem too because, in addition to being a poor management decision, refusal to discipline this misconduct puts other employees at risk and creates the potential for an EEO claim of a hostile work environment. A hostile work environment is created when the victim is subjected to unwelcome conduct that is based on a protected category, and the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). An agency can absolve itself of liability only if it shows it took immediate corrective action and the complainant does not take advantage of any corrective measures. See Quinn v. U.S. Postal Service, EEOC Appeal No. 05900546 (1990).

In our non-hypothetical hypothetical above, we run into a liability problem because the agency is on notice of Jimmy’s conduct and has not done a darn thing to put a stop to it. There’s no question this is unwelcome conduct and there’s no question that it’s sexual, so the only thing we need to consider is whether the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. How many times does another employee have to go to the closet in search of paper clips and discover a stark-naked Jimmy masturbating, in order for it to affect the terms or conditions of her employment? If every time I need office supplies, I hesitate before opening the closet door because of what I’m afraid I might find inside, I’m thinking that it doesn’t have to happen a whole lot of times to meet that legal standard of “severe or pervasive.” I guarantee you that if I see that once, I’m never ever going back for more paper clips.

Just one isolated instance of unwelcome sexual conduct can be found to be severe enough to create a hostile work environment – even if the agency does not discipline the conduct. See Weaver v. U.S. Postal Service, EEOC Appeal No. 0120065324 (2008) (a male employee ground his pelvis into a female coworker’s buttocks and EEOC found a hostile environment even though the agency did not discipline the male employee).

If you follow the news, you may have noticed last week that DOJ is in the process of making a $20 million settlement with a class of female corrections officers who were exposed to harassment based on sex for a number of years, and Bureau of Prisons officials did not do enough to correct and prevent the harassment from continuing. Among the conduct? You betcha, males masturbating in front of the women or in places they knew the women might be at any given time. See also Lemons v. BOP, EEOC Appeal No. Appeal No. 0120081287 (April 23, 2009); Wilson v. BOP, EEOC Appeal No. 01A23614 (February 3, 2004); EEOC v. Indiana Bell, No. 99-1155 (S.D. Ind. 2000).

There are times when agencies win the liability argument. In a recent case form the Federal Bureau of Prisons, a female corrections officer informed the agency of inappropriate sexual conduct by inmates (including inmates masturbating in her presence), on 17 occasions in a one-year period. The EEOC found that the inmates’ conduct did rise to the level of sexual harassment, but that the agency was not liable because it took immediate corrective action in 16 of the cases to sanction the inmates’ conduct and to protect the employee from further instances. Larae S. v. BOP, EEOC Appeal No. 0120143209 (March 9, 2017).

In another instance, employees at FAA would commonly take “dumpster breaks” at the agency facility; “dumpster breaks” were widely known among employees as code language for people masturbating behind the dumpster in back of the agency facility. Shalon C. v. FAA, EEOC Appeal No. 0120141603 (July 21, 2016). The agency won this one because employees never made management aware that the conduct was occurring and the “dumpster breaks” were routinely taken after the supervisors had left for the day – so the agency was not on notice and had no opportunity to investigate and correct it, until after the complaint was filed.

Let me be clear: even though the agencies were not liable because, as in Larae S., the BOP took immediate action, or like in Shalon C. the FAA was not aware of the conduct and could not have reasonably known it was occurring, this liability defense is NOT an excuse to allow this type of conduct at work. EEO cases are not the same as MSPB cases, and EEOC notes in most of the decisions that the conduct should be addressed in a separate forum. In Jimmy’s case, the agency leadership knows about the conduct, and has chosen not to charge anything. I hope someone from that agency reads this article and realizes it’s a situation that’s too dangerous to leave alone with the hope that Jimmy decides to finally retire.

Bottom line: why would you ever refuse to discipline someone for such serious misconduct when the conduct might create a hostile work environment for your other (good, hard-working) employees? I just don’t get it.

Hopkins@FELTG.com

Probationer no More?

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By Deborah Hopkins and William Wiley, May 17, 2017

If you’ve read anything we’ve ever written in this Newsletter, then you probably know we get lots of questions from readers and we use this forum as a place to post our answers. Here’s a relatively quick one that some of you might find helpful.

Good Afternoon FELTG Team:

I’m hoping you can answer a question that I’m getting conflicting answers on. A Pathway Employee (hired under Excepted Service) finishes two years and converts to a competitive position with no break in service, into the same position and grade. Would you consider this employee as having served a probationary period and therefore now has full appeal rights, or would you consider him a probationary employee with limited appeal rights after the conversion to competitive service?

My case law research shows me that this employee is no longer probationary (limited appeal rights). What do you think?

And here’s our response:

Thanks for the email, Loyal Reader.

Without doing any research (we’d have to charge you for that!), our understanding is that employees in these sorts of positions serve a “trial” period.” Effectively the same thing as a “probationary period,” but for some reason, it has a different name.

Secondly, and this is the point that confuses so many people, is that employees get MSPB/adverse-action appeal rights TWO different ways:

  1. If they have completed a probationary period, OR
  2. If they have current continuous employment of at least one year in the competitive service or two years in the excepted service. Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999)

The employee in your situation satisfies the two years in the excepted service test. Therefore, it is immaterial whether he is placed into a “probationary period.” That’s why the better practice is NOT to play games with using a new probationary period. He got rights when he was converted.

Keep in mind that the “OR” above is a typo in the law and was always supposed to be an “AND.” In fact, that’s how OPM regs interpreted it until Van Wersch was issued. That’s why so many people get confused on this point.

Hope this helps!

Hopkins@FELTG.com

A Trip to the Federal Court of Appeals

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By Deborah Hopkins, April 19, 2017

A few weeks ago I made a trip from my Petworth condo down to the Prettyman Courthouse on Constitution Avenue, just blocks from the U.S. Capitol. The reason? FELTG’s own stellar instructor Katie Atkinson was scheduled to present oral argument in an EEO discrimination case. Those of you who have been in the business even for just a little while know that this level of litigation is a Big Deal – it’s one step away from the Supreme Court. Yowza. Statistically, most people who read this newsletter will never get to that forum, so let me just paint a picture for you with my words.

Building security is tight and only attorneys with active bar cards are allowed to carry in cell phones; all other electronics are seized and held by security at the lobby level. (Finally, a reason to use my bar card! One is not required to be an attorney to represent a client before the MSPB or EEOC, thus there is no requirement to show a bar card or inform the administrative judge of a bar number during litigation.)

The courtroom is pretty imposing. If you’ve been to an MSPB or EEOC hearing, you were probably underwhelmed (as I was) with your first “hearing room” experience. If you haven’t had that experience, let me set the stage: in most cases hearing rooms are bathed in fluorescent lighting, there might be coffee stains on the carpet, not a remote occurrence of mahogany furniture or classical pillars anywhere. In fact, a lot of EEOC hearings take place in simple conference rooms. So when I walked in to Courtroom 31, I took in the imposing painted portraits of the many men whose presence had graced that very bench (sadly, just a handful of female faces adorned the walls), the dark wood, the formal jury box, and the multiple security officers. Everyone was dressed in conservative business suits – even people who were only there to observe.

A clerk for each of the three judges came out about five minutes before court was in session, and arranged the bench per what appeared to be unique specifications – materials on the table set just so, and even the angle of the chair’s swivel toward the door to chambers. Talk about formal.

With one minute to go, the marshal explained to the crowd (a group of approximately 30 people; three arguments were scheduled for that morning) exactly what would happen next.

Then, as the judges walked out, in something astoundingly formal and supremely cool because it’s just like what happens at the Supreme Court, the Court Crier announced in a commanding voice, “The Honorable Justices of the District of Columbia Court of Appeals. Oyez! Oyez! Oyez! All persons having business before the Honorable, the District of Columbia Court of Appeals, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”

So cool.

So let me give you a quick lesson in procedure. The party filing the appeal goes first. There’s a little light at the podium – kind of like a horizontal traffic light – that turns green when the clock begins. With two minutes left (in general, oral arguments are scheduled for 10 or 15 minutes each side, though in more complex cases more time may be designated) the light turns yellow, and when time is up it turns red.

As much as attorneys practice the oral argument, when the light turns green anything can happen. Judges can interrupt, ask questions, pontificate, or change the entire direction of the discussion. That’s why it’s important to intimately know the case law from the briefs; chances are you’ll be asked about cases by name.

And ask questions the judges did. I won’t go in to the details of the oral arguments here but suffice it to say, Katie Atkinson did an amazing job. The most impressive thing to me was that she didn’t even take up the entire time reserved for argument. She stood and addressed the Court, made her argument, answered the judge’s questions, and when she was finished making her point she sat down. What a stellar example of a veteran move that reflects the mindset of a pro: whether in argument or in writing, after you’ve made your strong argument, STOP talking (or writing). No need to dilute your argument with meaningless words.

We’re looking forward to the decision which should come out any day now. In the meantime, if you need hearing practices training, let us know and we can send our resident pro to teach you all she knows!

Hopkins@FELTG.com

How Should You Document Misconduct?

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By Deborah Hopkins, March 15, 2017

In response to last month’s article about letters of counseling doing more harm than good (Another Reason to do Away with letters of Counseling), I received the below letter. Since this covers questions a number of you have, I figured this Newsletter was a good place to post and reply.

Hello,

I read with interest the article you wrote that warns that supervisors may be better off not putting letters of counseling in an employee’s file.  I am an Administrative Officer and assist our managers with labor/employee relations issues. I frequently advise managers to start with counseling memos to try and address unacceptable performance and misconduct.  However, we have noticed a trend where our union is filing grievances and taking these cases to arbitration alleging they are discipline when they are not. Fortunately, we’ve settled at mediation before an arbitration hearing.  Your article cautions that EEO cases are now being built on the issuance of counseling memos. This is very frustrating for managers trying to get their employees to do the right thing.

What would you suggest a manager should do to build documentation to support an actual disciplinary action if they are not to issue counseling memos to an employee? Would you suggest that they simply have a verbal counseling and the manager write a Memo to the file to record this discussion? Would it be okay for a manager to send an email message to the employee summarizing the conversation?

Just wondering what a manager can do. If they don’t have a way to prove the employee was put on notice of their unacceptable conduct before taking disciplinary action, it will be more difficult to prevail when actual discipline was issued.

Any guidance would be greatly appreciated. Thank you!

 

Dear FELTG Reader,

Thanks for the note.

Let me start by clarifying that there are different procedures for performance and misconduct.

In performance situations, the employee has to be given a performance plan. There’s no requirement to document unacceptable performance prior to placing the employee on a PIP. Therefore, you issue the plan, wait until you conclude that the employee is performing unacceptably, then initiate the PIP. No prior warnings or counseling are required here. If the employee fails the PIP, you can propose removal. Easy peasy.

Let’s move over to conduct now. In misconduct situations, the employee has to be on notice of the rule; he does not have to be warned that he has broken the rule. As long as the employee knows the rule, prior written warnings are not necessary to discipline. Lehnerd v. OPM, 55 MSPR 170 (1992). To tell an employee the rule, email works best. There doesn’t need to be a warning that they’ve engaged in misconduct in the past because that triggers optimism bias and a possible EEO complaint in which the employee tries to defend herself.

Let’s hash this out a little more.

In some cases, “counseling” an employee might help. For employees who just need a little coaching or guidance, a talking-to is often all they need to get better. If so, great – these are not the employees who are going to file a grievance or an EEO complaint. But a problem arises when the counseling gets memorialized into an official letter or document that goes into the OPF; as you’ve mentioned, employees grieve these (or file EEO complaints) and it’s terribly inefficient because these documents serve no necessary purpose in progressive discipline.

We don’t have exact statistics, but from our FELTG experience we see that employees are far less likely to grieve a verbal counseling session than they are a written memorandum. Personally, I think there’s something about the tangible letter going into an actual file that gets them riled up or scared or upset. Could an employee grieve a verbal meeting; sure, probably, but it’s not as tangible as a letter that says, “You were bad.” It’s inefficient, because these letters lead to things like mediation and arbitration but they can’t be used as the basis for progressive discipline. Can they be used to go to notice? Sure. But hang with me; we have a more efficient method we recommend to managers who are dealing with misconduct.

Here it is:

Step 1 – If there is a question about notice, the supervisor should talk to the employee to put him on notice of the rule. Send the employee an email after the talk, recapping the conversation. This helps provide documentation of notice without it being a formal memo put in an OPF. Remember, memos or counseling letters don’t count toward progressive discipline. In addition, the supervisor should take hand-written notes about the discussion she had with the employee, and should also make notes about the employee’s conduct following the discussion. (We suggest keeping a separate notebook for each employee, so if a case goes to discovery only notes relevant to this particular employee get submitted to the record.)

Note: this step is not necessary if the supervisor can show the employee was already on notice of the rule before they broke the rule. For example, if the employee attended a training session about a work process and there is proof the employee attended (a sign-in sheet, for example), and the employee’s misconduct is tied to something about the work process he learned in that training session, then the sign-in sheet provides documentation that the employee was on notice. In other words, employees don’t get free warnings about every act of misconduct if they already knew what the rule was.

If there was sufficient notice, we recommend skipping the counseling memo and going directly to a reprimand. Reprimands hold weight in progressive discipline. If you have an employee who has potential to get better, a reprimand will work just as well as (if not better than) a counseling memo. And as a bonus, if the employee doesn’t get better, we’ve already taken care of a step in progressive discipline by issuing a reprimand, and can move on to a short suspension next. Can they grieve it? Sure. But they can grieve a counseling memo too, and that doesn’t count as discipline. So, it saves time and effort to go directly to a reprimand. It’s as efficient as we can be, given the nature of our business.

So, depending on notice, here’s the Discipline Three-Step:

Step 2 – Reprimand

Step 3 – Short suspension

Step 4 – Removal

I know this can be frustrating; you have colleagues across the government who write letters to us about this very thing, every week.

I hope this helps. Keep the faith, and good luck!

Hopkins@FELTG.com

What About EEO Complaint-ing a Leave Restriction Letter?

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By Deborah Hopkins, February 15, 2017

At FELTG we love to read your emails and are delighted to answer (almost) any question you have as a result of reading our articles. Here’s one we got in response to the December 2016 FELTG Newsletter article, EEO Complaint-ing a PIP? No Dice.

Ms. Hopkins:

Thank you for an interesting article.  You quote the Commission, “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

So by extension, can an agency dismiss a complaint alleging discrimination in a leave-restriction letter?  How about all proposal notices informing the employee of impending discipline?  These are “preliminary steps,” for sure, and “without further action.”  The employee may well face discipline for violating the LR requirements or for the misconduct identified in the proposal notice, but per se, neither requires “further action.”

Why did the Commission single out only PIP notices?

And our FELTG response:

Dear FELTG Reader:

Thanks for the email. Why did the Commission single out only PIP notices by name? Your guess is as good as ours about the “why,” but here’s what we do know:

Under 29 CFR § 1614.107(a)(5), an Agency may dismiss an EEO claim that alleges a proposal to take a personnel action or other preliminary step to taking a personnel action. The only exception is the situation in which a non-appealable matter is a proposed action, the agency proceeds with the action and that action becomes final, in which case the proposal is said to “merge” with the final action. Wilson v. Dept. of Veterans Affairs, EEOC Appeal No. 0120122103 (Sept. 10, 2012). Keep in mind, though, these preliminary steps can still go in to evidence in a hostile work environment claim, and/or a reprisal claim.

Regarding the LRL, from a read of the cases it seems that placing an employee on a LRL could be considered an adverse action (under EEOC’s definition which is broader than MSPB’s), if placement on the LRL was motivated by discrimination. So yes, the LRL could provide the grounds for an acceptable complaint. See Brand v. Food Safety Inspection Service, EEOC Appeal No. 0120113592 (June 5, 2013).

Hope this helps. Hopkins@FELTG.com

Another Reason to Do Away with Letters of Counseling

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By Deborah Hopkins, January 18, 2017

Within the first few minutes of our FELTG onsite class UnCivil Servant: Holding Employees Accountable for Performance and Conduct, Bill and I ask a question of the attendees:

Which of the following are “disciplinary” actions?

  1. Letter of Caution
  2. Letter of Warning
  3. Admonishment
  4. Letter of Counseling
  5. Letter of Expectation
  6. Reprimand
  7. Suspension
  8. Demotion
  9. Removal
  10. Reassignment
  11. Placement on a PIP
  12. Denial of a WIGI

The answers we get often make us cringe. We’ll give you ten points if you can pick them out without error. Go ahead, take a look…we’ll wait…and the answer is…there are only FOUR disciplinary actions on that list: Reprimand, Suspension, Demotion and Removal. That’s it. Everything else on the list is NOT a disciplinary action, which means it holds ZERO significance in progressive discipline.

Items 1-5 have no legal value and often create problems for the agency that might not exist were they not implemented. Consider the recent EEOC case Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016). Here’s what happened: SSA employee Meaghan F. suffered from migraine headaches and had exhausted all of her annual leave and sick leave and had used more than 240 hours of Leave without Pay (LWOP). She provided a doctor’s note that said she might be absent “from time to time” in the future if her migraines worsened.

Not very specific medical documentation, is it? The supervisor didn’t think so either, so he held a counseling session about her attendance and told her the medical information she provided was insufficient. We don’t have a problem yet; a good supervisor should talk to an employee about her attendance if it’s becoming a problem. But the supervisor took it a step further and issued a Letter of Counseling about the problem, which he placed in her personnel file. So, what did the employee do? She filed an EEO complaint and said the letter was discriminatory because she had a disability (migraine headaches) that caused her leave issues.

You’ll be happy to know that the agency prevailed on this, as the EEOC held that a letter of counseling is not discipline and that the supervisor had a legitimate, nondiscriminatory reason for asking for more specific medical information. But, that didn’t stop the agency from having to go through the lengthy EEO process, which now takes a good two to three years on average.

Though it’s speculation on my part, I can’t help but wonder, had the supervisor not issued the letter of counseling and put it in the OPF, whether the employee would have filed a discrimination complaint. I guess we’ll never know, but this case underscores what we’ve been telling supervisors for years: sometimes the less you do, the better off you’ll be. Hopkins@FELTG.com

EEO Complaint-ing a PIP? No Dice.

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By Deborah Hopkins, December 14, 2016

A couple of weeks ago, Bill and I held a brand-new training class in Atlanta: Developing and Defending Discipline (next coming to San Diego February 28 – March 2).  One of the questions that came up was a question we get frequently enough that I figured it was worth a newsletter article.

Here’s the question: Can an employee file an EEO complaint about being put on a Performance Improvement Plan (PIP)?

Here’s the short answer: an employee can file an EEO complaint for just about anything.

But, here’s the more fulsome answer: a PIP is a preliminary step to taking a personnel action and, in most instances, does not constitute an adverse action sufficient to render an employee aggrieved. See Lopez v. Agriculture, EEOC No. 01A04897 (2000); Jackson v. CIA, EEOC No. 059311779 (1994) (holding that performance improvement plans which are not placed in the employee’s official personnel folder do not constitute adverse actions).

That means that if an employee files an EEO complaint and the basis of the complaint is something like, “I was placed on a PIP because of my race [and/or sex, age, religion, national origin, disability, etc.],” then the agency should not accept this as a valid EEO complaint because this is not a personnel action that forms the proper basis for a complaint.  Placing an employee on a PIP is what we in the business refer to as a preliminary step (see Lopez, above).

That’s right, EEOC seems to side with management on this one. In the Analysis that accompanied the 1992 issuance of EEOC regulations at 29 CFR Part 1614, EEOC explained: “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

In other words, EEOC itself says the PIP does not “affect the person” because it is not a personnel action; is simply a chance for the employee to show she can do her job. If she’s focused on filing an EEO complaint instead of meeting her performance standards during the PIP period, I think we’d all agree that the chances she’ll be able to successfully survive the PIP are pretty low.

If a federal employee comes to us (or to any of our instructors who are attorneys) and asks us to represent him in an EEO complaint, and we find out he is filing a complaint for discrimination because he was put on a PIP, our reply is always, “Get back to work; you have a job to do.”  PIP time is not the time to file an EEO complaint; you know it’s true when the EEOC has made an affirmative statement on the topic.

As an aside, someone could initiate a claim that being placed on a PIP was an act of reprisal for engaging in protected EEO activity. The reprisal standard makes it illegal “to discriminate” against someone for engaging in the EEO process or for speaking out against discriminatory policies, and putting someone on a PIP because of such activity is discrimination. While a supervisor needs only to articulate a reason to initiate a PIP, that supervisor will need solid evidence to combat a reprisal claim.

Also worth noting, a complainant could use her placement on a PIP as evidence toward a hostile work environment claim, though as stated above the PIP alone isn’t sufficient to initiate the EEO complaint.

And finally, on another related matter, if an employee alleges the PIP was initiated in retaliation for protected union activity or whistleblower activity, the supervisor will also have to defend those claims under the related elements of retaliation.

Remember, a PIP is not an adverse action, so documentation of the employee’s unacceptable performance as a reason for initiating the PIP should meet that evidence standard necessary to defend against the retaliation claims. Keep your notebook close, supervisors, and with these things in mind, PIP away! Hopkins@FELTG.com