Clearing Up Some Confusion on Accommodating a Disabled Employee’s Commute

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By Deborah Hopkins

Reasonable Accommodation for disabilities is (still and always) a hot topic. In response to my article in September’s Newsletter (Is it Just Me, or is Reasonable Accommodation Becoming Trickier?) I received a follow-up question. So let’s continue the discussion.

Dear Ms Hopkins,

I read your guidance on reasonable accommodation with great interest (as always), and saved it for future reference.

However, I was surprised you did not address the possibility that the arrangement to work from office A had been made to facilitate a shorter commute. In my experience, a request to work from Office A instead of B, usually has a lot more to do with a preferred commute than a disability related to the duties of the position.

At my agency, we have had two recent “commute-driven” requests for reasonable accommodation, supported by quite flimsy medical documentation. In considering these cases, I had been working under the assumption that (irrespective of their medical documentation) we do not accommodate HOW someone gets to work, but just the duties of the position once they arrive….

Would you mind adding your comments on our responsibilities with regards to commuting?

Thanks.

Here’s my response (not legal advice – just my thoughts).

Hello FELTG Reader,

Thanks for the follow-up question.

Let’s tackle the documentation issue first. If an employee refuses to provide medical documentation related to a disability, then the employee has essentially waived his right to reasonable accommodation (RA) because he has failed to participate in the interactive process. See Akbar v. U.S. Postal Service, EEOC No. 0120081202 (EEOC OFO 2011).

Now on to the commute question. There’s some conflict when it comes to commuting and reasonable accommodation; the courts generally say that employers are not required to accommodate issues related to the employee’s commute but EEOC “precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act.” Complainant v. HUD, EEOC No. 0720130029 (EEOC OFO 2015). In this HUD case, the EEOC said the agency denied the complainant RA when it refused to allow him to telework and/or work one day a week in an office nearer to his home than the office to which he was assigned. In this case the EEOC said that commuting is a major life activity, and that because of the complainant’s spinal condition the agency was required to accommodate his physical inability to commute the longer distance to the office.

Contrast that with the case Bill discussed in March (Accommodating the Disabled Commuter), where the complainant was requesting the agency provide him with a car and driver – an accommodation that directly opposed what Congress has said about commuting being a personal expense. Gerald L. v. DVA, EEOC No. 0120130776 (2015). In that case the EEOC reiterated that, and said the VA was not responsible to get the employee to and from work. In addition, the complainant had to be at the physical location to perform the essential functions of his job. This is fairly different than the HUD case above, where the complainant could perform the essential functions of his position in a different location, and never asked the agency to pay for a driver.

I agree that sometimes (too often, probably) the request for a different work location is tied more to convenience than actual disability, but it needs to at least be considered as a potential accommodation during the interactive process – after you get medical documentation.

So no, you do not need to accommodate the method of how the employee gets to work but you do need to consider whether they HAVE to be at the worksite to which they’re assigned. The conservative line of action here would be, after receiving appropriate medical documentation, to consider each employee’s requests and consider whether they can perform the essential functions of the position from home or perhaps at a closer office. If they can, that solution would be a potential reasonable accommodation – but if other accommodations are available, the agency is free to choose another option.  As long as you have a legitimate, nondiscriminatory reason (a business-based reason) that the employee needs to be at the main worksite, and can show that if they are not there it creates an undue hardship, you don’t have to grant the request for a different work location as an accommodation.

I hope this helps – as you know each RA request is a unique situation and must be looked at independently. Please let me know if you have any other questions.

Let’s keep the discussion going! What’s next? Hopkins@FELTG.com

That’s It! I’ve HAD It! I’m DONE!

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By Deborah Hopkins

I am mad. Really mad. I am mad about the terrible advice a federal supervisor was given by her chief counsel’s office, about not holding an employee accountable for her performance out of fear of an EEO reprisal complaint. The kind of situation you’ll see below happens every day in agencies across the country, and to use a legal term, it sucks.

Here’s an email I recently got from a FELTG customer, and below that you’ll see my response.

Dear FELTG Super-Powers,

A colleague who was a Federal EEO person for many years suggested that I contact you.

I just returned to Federal service after a ten-year hiatus. I am the supervisor of a small staff in a large agency. I started a couple of months ago, and last week I learned I was part of an EEO complaint that was filed three days after I started work. Little did I understand when I took the job that this person had been a problem with the agency for at least five years.

There do not appear to have been any reprimands or other disciplinary actions for either her conduct or her performance. She has been given outstanding reviews for poor work because of the hope to have her leave the agency. In the few weeks I have been here it is clear that she should have been gone years ago.

I’m curious as to whether or not anyone has ever had an action against an agency for its consistent lack of taking action against a “rogue” employee such as the one I have. She was moved from one office to mine about three years ago because she was such a problem. I have now inherited this problem and am seen—after only a few weeks on the job—as simply a continuation of discriminatory supervision.

Now that her EEO complaint has been submitted she has become increasingly rude to me and others. I have been counseled by our chief counsel’s office to document her behavior and performance but not to take any disciplinary actions because that might be seen as retaliation.

Should I be concerned and talk to my own counsel regarding this matter?

Thanks.

Dear Supervisor,

Thanks for reaching out. I am frustrated for you, because I know this is a tough situation; you’re not alone in this, and we get calls and emails every week from supervisors like you with eerily similar scenarios.

To answer your questions, as far as we know nobody has ever taken official action in the courts against an agency for refusing to hold “rogue” employees accountable for performance or conduct, probably because so many agencies engage in this culture. But we do sometimes see proposed bills on Capitol Hill (recent example: the DVA), or articles in the newspaper, about how agencies need to do better. That’s as far as it’s gotten.

In my personal opinion (this is not legal advice), while your chief counsel’s office was wise to tell you to document what the employee is doing wrong, it has given you poor advice in telling you that you should not take action against this employee for fear it looks like reprisal. In fact, it’s not just poor advice, it is dead wrong advice and actually violates 5 USC § 4302(b)(6) which requires agencies to remove from their positions employees who do not meet minimum performance standards. That’s right, you don’t remove a non-performing employee and you’re violating the law.

Not taking action against an employee like this just continues to allow what has been happening for years, and trust me, employees who are given “Outstanding” ratings for doing poor work will never leave on their own; why would they be motivated to?

The biggest thing, should you decide to take action, is certainly to document the business-based reasons why you are taking the action (for example, if you are initiating a PIP or disciplinary action for misconduct). Based on her history the employee will likely file a reprisal complaint, and there’s nothing you can do to stop it – but the way you defend yourself is by having the documentation of your reasons.

Regarding personal risk, we’d need to know more about the situation to answer that question. If you’ve been given a direct order to not take action against this person and you decide to, then your job could be on the line, because insubordination (or perhaps failure to follow a direct order) is a serious offense.

If you’d like to discuss in more detail to see if perhaps you need an attorney, please feel free to let me know and we can set up a phone consultation, as FELTG does provide legal advice to consult with supervisors in situations like this.

I hope this helps. Good luck.

***

But wait, we’re not done yet. I got a response from this supervisor and she said that she was moving forward with action (yay!) in the form of a warning (NOOOOOOOOO!). Please, please, please – don’t do it. Here’s why:

If you give this problem employee a warning, she can file an EEO reprisal complaint. If you put her on a Performance Improvement Plan (which you can do with no proof, as long as you can merely articulate what critical element she isn’t performing well) she can file an EEO reprisal complaint.

If she fails to improve after the warning, you have no recourse except to warn her again or to put her on a PIP. If she fails the PIP, you can remove her from federal service.

So either way you go this employee can file an EEO reprisal complaint, but here’s the big difference:

If your agency wins the EEO hearing (and remember, the EEO process takes 2-3 years) and successfully defends against the reprisal complaint regarding the warning, your problem employee still works for you. If your agency wins the EEO hearing (in 2-3 years) and defends against reprisal over the PIP, the lady has been gone from your workplace for 3 years minus the length of the PIP (we suggest 30 days unless a union contract dictates otherwise).

To me, counselors, the choice is obvious. Hopkins@FELTG.com

Is it Just Me, or is Reasonable Accommodation Becoming Trickier?

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By Deborah Hopkins

At FELTG we love our webinars. As part of each webinar agenda, we take Q & A breaks to answer your questions. Sometime we get questions that come via email after the webinars end, and occasionally we’ll answer those in our newsletter so that all our readers can hopefully learn something. Today is just such a time.

After teaching a recent webinar on disability accommodation, I received the below scenario from a customer. I’ve changed a few of the details and some identifying information to make this a true “hypothetical,” but the essence of the scenario remains intact.

Dear FELTG Brilliant Minds,

I have a case and I was wondering if you could help.

An employee assigned to a job at Office B (about an hour from our main site, Office A) requested reasonable accommodation (RA) two years ago.  At that time, there was space for her to sit in Office A, which she thought would help, and I told her that she could as long as there was space, and that if she was getting her work done she could work from Office A.  I received a call from our RA rep who reviewed the information with me over the phone and said, “That sounds good.” I asked if there was something else needed, for example paperwork/forms, and he said no.

Fast forward one year, we were starting to run out of space at Office A, and I followed up with HR regarding what to do now. The employee’s position belongs in Office B, is stationed there and should be there.  The original RA rep is no longer working here and the employee’s file is incomplete. There aren’t even any medical records (so I understand).

I told the employee she needs to reconnect with the new RA rep, and again, as long as there is space, she could stay at Office A.  It took almost a full year to get things figured out. Finally, the employee was offered a different job at Office A, in a different department.  She declined.

Now I am a week from having new employees start work, and no desks for them to sit at in Office A, where they will be assigned. 

I prepared a memo for the union explaining that the employee needs to return to her duty station [at Office B], that she declined the RA offered [the reassignment to a different department in Office A], and that the interim accommodation [working at Office A] is no longer possible. 

I asked HR to review this plan, and they told me not to send it, because they employee is preparing another RA requesting telework. Her job is not approved for telework.

I think I am going to proceed with memo to union and request that she move back to her assigned duty station at Office B.

I believe this case has been mishandled, I believe she has a real medical need, but the job is not at Office A and the program really needs the position to be posted in Office B.

Any recommendations?

Thanks in advance.

Thanks for the question. This type of situation is fairly common: these types of “unofficial accommodations” work for a while until something needs to change, and there’s no paperwork to look at to know what the problem is or what other accommodations might work. The good news – or bad news, depending on how you look at it – is that background paperwork and medical records are not really necessary in your situation because the employee has been working at Office A and only now is this possibly starting to cause an undue hardship. No paperwork, no problem; it’s time for a reasonable accommodation reassessment anyway.

Just to be sure we’re coming from the same place, though, let’s review the law on reasonable accommodation.

When making an accommodation request, an employee must show that she is a qualified individual with a disability, and that she needs a reasonable accommodation in order to successfully perform the essential functions of her position without causing harm to herself or others. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

If the agency cannot provide a reasonable accommodation without causing an undue hardship, or no accommodation is available for that job, the agency must next consider reassignment as an accommodation by looking for a vacant, funded position for which the employee is qualified, all the way up to the department level (if the agency is part of a larger Department). If no vacant, funded position is available at the employee’s grade level, the agency should look for lower-graded positions for which the employee is qualified.  If the employee refuses to accept the reassignment, the employee in essence waives the reasonable accommodation right.

At first glance it seems like you have your bases covered, as you’ve already offered the employee another position near the physical location in Office A where she currently sits, and she has refused the reassignment. You mentioned that the position the employee currently holds is not telework eligible, and that HR informed you the employee is in the process of requesting telework as accommodation. There’s an aggressive option and a conservative option. The aggressive option is to tell the employee (and the union) that she needs to go back to Office B next week, and not to consider the telework option until you receive it – after all, you have no paperwork that even confirms the employee has a disability. Here’s where you need to be careful, though. The conservative option is to keep things as they are and allow the employee to work in Office A until you receive the telework request that you know is coming any day now.

Whether you go aggressive or conservative, though, remember this: when telework is requested as a reasonable accommodation, the general rules and policies for telework do not apply, and the reasonable accommodation rules take over.

For example, if a new employee requests telework and the agency telework policy states that all employees must work full-time for a year before being telework-eligible, the agency would be correct to refuse the new employee’s request. However, if that new employee requests telework as accommodation for a disability, the agency cannot unilaterally use the telework policy as a reason to deny the request. See Dahlman v. Consumer Product Safety Commission, EEOC No. 0120073190 (2010). If the new employee has a disability and makes that telework request, the agency is obligated to engage in the interactive reasonable accommodation process and must consider whether telework would be a reasonable accommodation for this employee. If it is, the agency must grant telework if no other accommodation is available. See Kubik v. Department of Transportation, EEOC No. 01973801 (2001). If there is another effective accommodation besides telework, though, the agency has a right to choose that accommodation instead.

You mentioned there are no medical records. Now is a good time to ask your employee for new medical documentation, because but even though it sounds as if you have no questions about the employee’s medical situation, you at the very least need to know what the employee’s limitations are so you can consider which accommodation(s) might work.

Once you know the employee’s medical limitations, you’ll need to look at the essential functions of her position to consider whether telework is a reasonable accommodation. In addition, while you say the program needs someone to be present at Office B, the fact that the employee has been working from Office A for several years might work against you. It is not insurmountable; perhaps having the employee work from another location is now causing an undue hardship at Office B; we just want to make sure you have all your bases covered.

So, assuming the employee has a qualified medical condition, you must now consider whether the employee could do her job from home. As we said above, the analysis for telework as a reasonable accommodation varies from case to case, and the fact that the job is not telework-eligible under the agency policy is not good enough. Because this is a request for RA, you need to consider whether any of the employee’s work can be performed from home. See Ellis v. Department of Education, EEOC No. 01A42966 (2006). Perhaps it is not possible for this job to be performed at home; for example, jobs that require patient contact, or access to secure information available only on the agency network, may not be able to be performed from home. See Humphries v. Navy, EEOC No. 0120113552 (2013); Petzer v. Department of Defense, EEOC No. 01A50812 (2006).

Each of these situations is unique and requires participation in the interactive process. Talk with the employee and the RA coordinator to determine whether telework – whether on a permanent or intermittent basis – might be the best option.

I know it’s not an easy answer, but I hope this helps. Good luck! Hopkins@FELTG.com

Transgender Discrimination on Agency Premises is a No-no

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By Deborah Hopkins

I taught a webinar a few weeks ago and covered a case that created quite a bit of conversation, and even some debate. Deryn Sumner wrote about this particular case in the FELTG newsletter a few months ago, but since not everyone had a chance to read that article – or perhaps they read it and still have questions or concerns – I want to revisit it from a slightly different perspective.

Here’s the situation:

A transgender female employee was denied a chance to make a presentation during a Bible study meeting held by an employee-run religious organization that met within a federal agency. The organization was created and recognized under the agency’s Employee Organization Policy, which meant that it was sponsored by a senior executive, met on agency premises, used agency resources (such as email and newsletters), and even received compensation from the agency to travel to events.

The employee was denied the chance to make her presentation, even after she offered to present as a man during the meeting. When asked why the request was denied the organization’s president, also an agency employee, said she did not want to promote a “transgender lifestyle” among the Bible study members because that went against the beliefs of the group.

Many folks on the webinar saw logic in this thought; others did not. Hang with me here.

The transgender female employee filed a discrimination complaint and the agency initially dismissed it for failure to state a claim, asserting that it was the organization’s president acting in that role, and not the agency, that refused to allow the employee to make her presentation.

On appeal, EEOC reversed the dismissal and remanded the case back to the agency after finding that the employee stated a viable claim for hostile work environment harassment.

Why the remand, you might ask? EEOC said that the president’s use of the term “transgender lifestyle” could “reasonably be perceived as offensive, as it is indicating that transgender people somehow are different from others and have a different lifestyle than others, and as a result, they should be treated differently.” EEOC also said that not allowing someone to dress conducive to the gender with which they identify, is “humiliating and dehumanizing” and that refusing to allow a transgender employee to make a presentation “causes further alienation” among coworkers, and interferes with her work environment.  Finally, EEOC said that if the agency failed to take immediate and appropriate action to stop the harassment, the agency could be found liable for the harassment.

So here’s where the discussion came in: a number of participants asked how the EEOC could (or whether it should) get so involved in a voluntary, employee-run organization’s free exercise of religion. How could the EEOC supersede the group members’ decisions to determine who was allowed to make a presentation during a meeting – especially when the person who requested to make the presentation had a lifestyle that did not match the core beliefs of the group?

Some asked whether this perhaps stated a claim of religious discrimination and whether the organization might have standing to file a complaint. EEOC addressed this potential claim, and said that it is a violation of the law to subject one employee to a discriminatory hostile work environment in order to accommodate another employee’s religious beliefs.

Still with me here? Because the organization was created and recognized by the agency’s Employee Organization Policy and used agency resources, the laws that apply to the agency at large (here, we’re talking about civil rights laws) apply to this employee-run organization as well. The agency had the duty to investigate and promptly correct any discrimination or harassment that came from the organization’s members, who were the complainant’s coworkers, because their conduct was reasonably related to the complainant’s work within the agency.

Were it not for this connection with the agency, there would probably not be potential agency liability here. For example, if the group was made up of agency employees but was entirely independent, unaffiliated with the agency, did not use any agency resources, and met after work hours off agency premises, the complainant might not be able to show that her exclusion was reasonably related to her day job.

A word of caution moving forward: the same analysis would apply to similar organizations that attempted to discriminate against others because of other protected classes: race, color, national origin, religion, sex, age, disability, genetic information. Whether you agree or disagree with this reasoning, this remains true: you just can’t do it; Hillier v. IRS, EEOC Appeal No. 0120150248 (April 21, 2016). Hopkins@FELTG.com

Playing Favorites in Selections and Promotions: Not EEO, But Still a Bad Idea

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By Deborah Hopkins

I love it when I teach a webinar and after it’s over, participants email questions as follow-up. Here’s one that I got after last week’s webinar on The Latest Developments in LGBTQ+ Discrimination: What Agencies and Employees Need to Know:

Dear Attorney Hopkins:

Can you speak on the discrimination implications for a selecting official who chooses someone for a job based on a personal dating relationship – can applicants who did not get selected validly claim that this is sex discrimination (e.g. you have to be heterosexual, or you have to be a female)?

And here’s the FELTG answer:

Thanks for the question. I hope this helps:

The EEOC’s stance is generally that isolated incidents of sexual favoritism (for example, a selecting official choosing someone for a position because of a dating or sexual relationship) have an adverse impact on both males and females, so they are not considered sex/gender discrimination under Title VII. In addition to EEOC, the courts have widely rejected claims that isolated incidents of sexual favoritism based on consensual romantic relationships create a hostile environment for others in the workplace. See Miller v. Aluminum Co. of America, 679 F. Supp. 495, aff’d mem., 856 F.2d 184 (3rd Cir. 1988). If the relationship and romantic behavior is voluntary, the “hostile behavior that does not bespeak an unlawful motive cannot support a hostile work environment claim.” Id. at 502.

In cases where coercion is used, though, we enter in to sexual harassment territory either as a tangible employment action (formerly quid pro quo) or a hostile work environment analysis. See EEOC’s Guidelines on Sexual Harassment, Section 1604.11(l), which state that when submission to unwelcome sexual conduct is made “either explicitly or implicitly” a term or condition of an individual’s employment, a violation will be found.

Back to your question. Take a look at Paul v. GSA, EEOC No. 01992256 (EEOC OFO 2001), where the EEOC rejected a male complainant’s claim that he was subjected to sexual harassment when a female employee was awarded a position because she had a romantic relationship with a senior agency official, who was a male. This was one isolated incident of preferential treatment without coercion, and while EEOC acknowledged it was unfair, the incident did not create a hostile work environment for either male or female employees.

Another case on point is Roy v. USPS, EEOC No. 01A50021 (EEOC OFO 2004), where a complainant alleged sex discrimination after she was denied a promotion, and she claimed that the selectee’s sexual relationship with the selecting official was the reason for her promotion. In this case, EEOC also said it might be unfair but it’s not EEO, because there was no evidence indicating sexual coercion or a pattern of sexual favors in the workplace.

One word of caution, though: an agency with a common practice of granting favorable treatment based on dating relationships might create a hostile work environment. (See EEOC’s Policy Guidance on Employer Liability under Title VII for Sexual Favoritism,  https://www.eeoc.gov/policy/docs/sexualfavor.html). If sexual favoritism is widespread in a workplace, the fact that one case was voluntary and consensual would not defeat a claim that it created a hostile work environment for other people in the workplace. Miller v. Aluminum Co. of America, 679 F. Supp. At 502. This analysis is determined on a case-by-case basis.

So maybe, if it happens once, there’s no EEO problem. But aside from EEO, we have another issue. If “choosing” the romantic partner is for a promotion or a selection, then doing so based on a personal relationship (whether it’s sex-based or not) is a non-merit factor, and this constitutes a prohibited personnel practice under 5 USC 2302(b)(6). (http://www.mspb.gov/ppp/ppp.htm). So, while there may not be EEO trouble there might be OSC trouble – and believe me, unless you’re a sadist you do NOT want trouble with OSC. But, anyone who observes this type of non-merit personal relationship favoritism can report it to the US Office of Special Counsel at www.osc.gov. The OSC then would be responsible to decide whether to investigate this type of claim and taking appropriate action.

If you’re interested in this topic and you weren’t able to attend, check out a related webinar FELTG is hosting on July 20 called New Developments under Title VII: Sexual Orientation and Gender Stereotyping. Register here: https://feltg-stage-ada.stage3.estlandhosting.com/event/webinar-series-eeo-counselor-and-investigator-refresher-training/?instance_id=164.  Hopkins@FELTG.com

Do I Have to Grant an Employee with a Disability Her Accommodation of Choice?

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By Deborah Hopkins

Last week, I was teaching a day on The Federal Supervisor’s Role in EEO to a group of GS-14 and 15 supervisors at an agency in Atlanta. One of the topics that generated a lot of discussion – and about which there was some confusion – was reasonable accommodation for disabilities. Specifically, there were questions about what “reasonable” means, and whether the employee is entitled to the accommodation of her choice.

Now, just to make sure we’re all on the same page, let’s have a quick review. Federal employees (and applicants) are entitled to participation in the reasonable accommodation interactive process in two areas: physical or mental disability (under the Rehabilitation Act/ADA), and religion (under Title VII). Agencies must accommodate (1) the disabilities of qualified employees, and (2) the bona fide religious beliefs and practices of employees – unless doing so would create an undue hardship on the agency.

We won’t get into the process of determining who is a qualified individual with a disability here today, so let’s assume we have an employee who is qualified because she has a medical condition that causes severe back pain, and she needs an accommodation in order to perform the essential functions of her job.

A reasonable accommodation is a logical adjustment to the job and/or the work environment that enables a qualified person with a disability to perform the essential functions of the position without doing harm to herself or others. This does not mean the employee gets the best possible accommodation. Some options for accommodation might be:

  • Accessible facilities
  • Flexible starting or ending times, or brief break periods
  • Telework
  • Reassignment
  • Special software
  • Equipment or devices
  • Furniture and office layout modifications
  • Service animals
  • Hearing interpreters
  • Modifying job duties, without changing the essential job functions

In looking at what accommodations you might be able to provide and determining whether there’s an undue hardship in providing the accommodation, you’ll also want to take into consideration the overall size of your agency’s program, the type of facilities, the size of your budget, the composition and structure of the workforce, and the nature of the accommodation. 29 CFR 1630.2 (p). Agencies beware, though – money is usually not a defensible reason to deny a reasonable accommodation, especially when another accommodation is not available.

Back to our hypothetical employee. The back pain she is experiencing means that she can’t sit for more than 10 minutes at a time, and she has provided acceptable medical documentation that says as much. She generally takes a bus to work and the ride is about 20 minutes, but occasionally she will drive her car and that takes about 15 minutes. She has requested full-time telework in order to accommodate her disability. Do you have to give her full-time telework?

No, you don’t. You might do that, and maybe it’s a good idea, but remember you don’t have to. You’d want to consider things like:

  • Whether the essential functions of the job can be performed at home. If she works on computer systems or with sensitive information that aren’t accessible off-site, telework won’t allow her to perform the essential functions of her job.
  • Whether she requires management oversight in order to meet her minimum performance rating. If the employee has demonstrated that she can’t complete her work unsupervised, you don’t have to give her telework because she asked for it. See Yeargins v. HUD, EEOC No. 0320100021 (EEOC OFO 2010).
  • Whether another accommodation would allow her to perform the essential functions of her job, at the agency. Things like ergonomic chairs, standing desks, frequent breaks to allow her to walk around the building to stretch her back, and other options might be better accommodations than the full-time telework she’s requested.

The bottom line here is that and employee does not get to unilaterally dictate to the agency that she be granted the accommodation she prefers. That’s why the process is called the interactive process; it suggests agencies and employees work together informally to find an acceptable outcome. 29 CFR 1630.2(o)(3). For more on this check out a recent case, Complainant v. Department of Veterans Affairs, EEOC No. 0120122961, (EEOC OFO 2015), in which the complainant requested a number of specific accommodations, and the agency provided alternative accommodations and prevailed in the EEO complaint. Hopkins@FELTG.com

Don’t Come to Mediation if You’re not Willing to Budge

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By Deborah Hopkins

Mediation is an interesting thing. Most disputes resolve without litigation, but for some reason we don’t seem to talk as much about that as we do about the cases that get to hearing or the courts. Obviously, the cases that go to litigation also provide us with our case law so we would be remiss if we didn’t spend a lot of time and energy teaching that stuff.

But, we want to make sure we spend some time talking about other methods of dispute resolution. I recently attended mediation for a private sector employment dispute. While a few of the details were different than what a federal sector employment law dispute would cover, the general formula is the same.

The mediator was a former circuit court judge in Virginia, and he has been an attorney for 49 years. Can you imagine that? What a long time to be an attorney! In his opening script he stated that he believes the objective of finding a “mutually agreeable resolution” is a misstatement, and that the better way to look at things would be to aim for a “mutually disagreeable resolution” since neither party was going to get exactly what it wanted. He also explained that his success rate was a whopping 97%. Little did the parties (or at least, one of the parties) know that this mediation would fall into the remaining 3%.

Why did the mediation fail, you might ask? Well, it’s because one of the parties arrived that morning completely unwilling to budge from its position. The outcome: after seven hours, the only people who benefited were the attorneys (who got paid) and the mediator (who got paid). Neither side was anywhere closer to a resolution because one party refused to consider anything less than what he wanted from the beginning. He was so stuck on his position (being “right’) that the mediation proved to be a complete waste of time. [Editor’s Note: Some agencies exacerbate this problem by mandating that line supervisors are required to participate in the mediation of discrimination complaints. As Deb well points out, it is a waste of everybody’s time and money when one side or the other has no intention to compromise. Mediation should be voluntary on the part of all parties. If it is not, then it is not going to work.]

There are two primary types of negotiation: position-based and interest-based. Let’s a take a quick look at each:

Position-Based Negotiation (PBN)

This type of negotiation focuses on the stances taken on each side of the dispute. Each party takes a position, and then spends its time arguing from that position. Throughout the process, each side makes concessions until an agreement is finally reached. Benefits to taking this approach include clarity of standpoint, strong anchoring during stressful negotiations, and clear, defined roles of the parties.

But, there are some major downsides to classic PBN:

  • Any final agreement may not be very wise; it may instead be a product of the interactions of the negotiators rather than the logic of the arguments pro and con whatever is being negotiated.
  • The more the parties argue position, the more they become committed to the position, thus impacting flexibility and open-mindedness to alternative resolutions. (The more attention is paid to position, the less attention is paid to underlying concerns. This = bad news.)
  • PBN can be inefficient. Because they know they’ll likely end up meeting somewhere in the middle after making a series of small concessions, parties in these cases are tempted to start off with extreme positions.
  • It strains relationships. Often involving a contest of wills, in PBN one side generally wins, which means the other side loses. Being nice is not a good answer to this problem, because then the goal switches from reaching a wise agreement to just reaching any agreement. Plus, it’s rare that both sides act nicely, so the nice people generally get taken advantage of in these scenarios.

Position-based negotiation has its place, for sure, but is not always the best approach.

Interest-Based Negotiation (IBN or IBB)

This type of negotiation approach is drastically different because the parties separate the people and relationships involved from the problems that are in contention. Rather than present a position on why they should prevail, the parties instead discuss their interests and what is important to them. IBN is based on assumptions of mutual gain and is designed to generate high-quality solutions while enhancing relationships. Sound like a pipe dream? Well, believe it or not, it sometimes works.

Interest-based negotiators provide a variety of resolution options before the parties decide what to do, and generally set timelines to promote efficiency. Strengths in the IBN process include greater confidence and self-esteem, more control, and influence over strategic decisions.

IBN is not perfect, though. Sometimes the partnership process can be slow. Other times, IBN’s use is limited to softball issues and not major points of dispute. For example, parties have encountered problems dealing with contentious issues – such as the types of issues normally handled through adversarial bargaining – and management and the union sometimes have divergent views of how negotiations should work. When considering this approach, then, it makes sense to think about the issues to be addressed, the parties concerned, and their relationships.

One of the primary requirements for a successful mediation is for each party to come with an open mind. If either party is uncooperative, then it’s a waste of time for everyone – not to mention expensive. Productive negotiations during mediation have a few similarities:

  • They result in a wise agreement
  • They are efficient
  • They do not damage the relationship between the parties (and in some cases, they improve it)
  • They focus on the future, not the past

The mediation I attended was derailed by one party that would not abandon its position. A learning experience, to be sure. I’ll likely attend the upcoming trial, so stay tuned for my observations on that! Hopkins@FELTG.com

If the Agency Settles, Does that Mean the Employee Wins?

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By Deborah Hopkins

Settlement makes up a major part of federal employment law practice. In fact, most disputes in our field settle – whether they initiate as grievances, EEO complaints or as appeals of agency disciplinary action – before they ever get to hearing.

Settlement happens. A lot. Yet somehow, this is a topic that doesn’t get a lot of love in the training world. Many of us think we know how to settle, but few of us are actually ever trained in the skills required to negotiate settlement agreements. Settlement Skills is certainly not a mandatory class in law school, and no agency or union that we know of requires its reps to complete training in settlement negotiations or ADR.

There are several considerations to make when determining whether your case is one that’s prime for a settlement offer.

First, both sides have to be willing to settle. If you approach the employee (or, for employee reps, if you approach the agency) and they are not willing to discuss settlement, you’re probably done right there. You can always ask again, and as most of you know, the AJs at MSPB and EEOC are going to ask about the possibility of settlement at just about every phase of the process, but if one side says no, you can’t force settlement on them.

Second, you should consider the conditions that will be included in the settlement agreement. Will there be an admission of fault or liability? Is an apology required? Will there be a reference clause or a confidentiality clause? No two settlements are exactly alike, and some fairly creative arrangements might be upheld. One of my favorite settlement stories occurred in David Hasselhoff’s 2008 divorce settlement: he got to keep total possession of the nickname “Hoff” and the catchphrase “Don’t Hassle the Hoff.”

Third, there must be valid consideration. For those of you who didn’t go to law school (or for those of you who remain scarred from Contracts), consideration is a bargained-for exchange and in the context of settlement it means that each party has to do something to its detriment as part of the agreement – something that it isn’t already obligated to do. Valid consideration might be something like the reassignment of a supervisor, or allowing an employee to swap work shifts. An agency offering to treat a complainant with “dignity and respect,” and “not to retaliate,” however, is not valid consideration; the EEOC said the agency was already supposed to be doing that for all employees. Dubois v. Social Security Administration, EEOC Request No. 05950808 (1997).

Fourth (and last for today), the agreement must be enforceable. The agreement must be signed by someone with the authority to make the decisions held therein, and the agency and employee must have the ability to comply with the terms. Included in the enforceability requirement is a “meeting of the minds” where all parties involved know what they’re agreeing to. Without that, the settlement agreement is not valid.

Just last week I was talking with an agency representative who is a former prosecutor, and she said, “Settlement just doesn’t feel right. It’s like saying the employee did nothing wrong and the agency is at fault.” That’s a common misconception, but it’s not actually grounded in truth; settlement has no direct tie to liability or admissions of wrongdoing. Even if it goes against your gut to consider settlement, keep in mind it’s not just about “guilt and innocence.” Plus, even when an agency wins an appeal, it’s going to cost the agency. A successful defense averages about $100,000 at MSPB. We’re not sure how much is costs for an agency to win at EEOC, but a number of those complaints are unresolved for years, so we know it’s not cheap.

As a result of interest in this topic, we at FELTG are creating a brand new open enrollment program on Settlement, Mediation, ADR and other ways to resolve disputes without litigation. The program will be held in Washington, DC October 31 – November 4, and we’ll have details for you, including an official program name, very soon. Hopkins@FELTG.com

MSPB Attorney-Whistleblower Officially Wins IRA Appeal

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By Deborah Hopkins

You may have been following the articles I’ve been writing since late 2014 about the Korb case, which detailed the journey of a 25-year employee at MSPB who filed an Individual Right of Action (IRA) appeal alleging whistleblower reprisal. It presented a unique situation because the MSPB is the agency which, according to its website, is the guardian of merit principles, yet with Korb it reprised against him in direct violation of one of those principles.

Well, big news a few days ago: the initial decision has arrived. Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016). In the first paragraph of decision, the judge writes, “[T]he Appellant made a protected disclosure and engaged in protected activity. While these were not the sole factors in the Agency’s decision to take personnel actions against him, they were nevertheless contributing factors and the Agency did not prove by clear and convincing evidence that it would have taken the same personnel action in the absence of any protected activity or disclosure.”

Before we get into the facts of a case, let’s do a quick review of the whistleblower process for federal employees under the Whistleblower Protection Act (WPA).

FIRST: Agency employee “blows the whistle” and makes a disclosure about a violation he sees. If the violation fits in to one of these four categories below, it is considered a protected disclosure and the agency may not retaliate against the employee for blowing the whistle.

    1. Violation of law, rule, or regulation
    2. Gross mismanagement or gross waste of funds
    3. Substantial and specific danger to public health or safety
    4. Abuse of authority
  • A protected disclosure is generally made to a supervisor, the OIG, law enforcement, the Office of Special Counsel, Congress or the media. (Note: a disclosure to a co-worker is not protected under the WPA.)
  • In general, employees of certain agencies – most within the intelligence community – do not have whistleblower protections.

NEXT: If the agency takes an adverse action or a performance-based action against the employee, it must prove by clear and convincing evidence that it would have taken the same action even absent the whistleblowing. This standard of proof is high and is intended to protect whistleblowers from retaliation by the agency.

Now that we have a crash course on whistleblower reprisal (covered in detail during the Friday of MSPB Law Week, next held in San Francisco June 13-17), let’s do a quick review of what exactly Korb, a GS-14 Attorney-Advisor at MSPB, did:

  • Made a protected disclosure when he submitted a document containing evidence of significant delays in the processing of MSPB appeals. There was no valid reason for the delays and MSPB had no internal tracking system to ensure the appeals were moved in a timely manner. Korb independently gathered information to track the cases that had been sitting in the office, and provided the information to his supervisors in the Office of Appeals Counsel (OAC). This information was not well-known outside of his office so the judge determined that Korb’s disclosure was more than just a policy disagreement, so it was protected as whistleblowing activity (under the category of gross mismanagement).
  • Korb also engaged in protected activity when he assisted a co-worker in filing a grievance.

Here’s what MSPB did to Korb in response:

  • Charged him with misconduct for altering boilerplate language in a case writing template, and proposed a 21-day suspension for the alleged misconduct.
  • Reassigned one of Korb’s significant job duties (writing the MSPB Case Report) to another office.
  • Did not select Korb for a promotion.

In the decision, the judge found that the disclosures Korb made to his OAC supervisors and the MSPB Chairman about the delay in case processing times reflected poorly on higher management at MSPB found that MSPB leadership was motivated to take a personnel action because Korb had engaged in protected activity, and that they would not have done so had the appellant not engaged in that protected activity. The agency did show by clear and convincing evidence that it would not have selected Korb for the promotion, so on that allegation MSPB prevailed.

The damages issue has not been decided and there will be a hearing on that issue, but a few corrective actions have been ordered and acted upon:

  • The duty of writing the MSPB Case Reports has been returned to Korb, and his performance standards have been adjusted to reflect what they would have been prior to the reassignment of that duty to another department
  • The Notice of Proposed Suspension has been removed from Korb’s OPF

Interestingly enough, this case is non-precedential but I guarantee, we don’t see cases like this every day. Each party has until April 6 to decide if it will file a Petition for Review (PFR) of the judge’s decision. If either side does, it will be interesting because PFRs generally go to the Board members for review. Because the Board Chairman was named in this complaint and because the Board is a party to this litigation, there is an apparent conflict of interest. We will have to wait to see what the Board members do if a PFR is filed. None of the options are particularly attractive. Stay tuned. Hopkins@FELTG.com

Korb v. MSPB decision full text.

Sorry, but Your Illegal Agency Accommodation Policy Doesn’t Supersede the Law

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By Deborah Hopkins

Can an agency policy overwrite existing law, if it’s specialized to a very small group of employees? In a word, nope. This article provides a review of reasonable accommodation requirements, courtesy of TSA. Two issues are central to this case: (1) reasonable accommodation requirements for individuals with disabilities, and (2) internal agency policies that conflict with the law.

In 2011, TSA subjected an employee to discrimination based on disability because it missed a crucial step in the required accommodation process under the Rehabilitation Act. Here’s a quick recap of the facts in Marielle L. v. TSA, EEOC No. 0720140024 (October 22, 2015):

  • A Transportation Security Officer (TSO) had a medical condition and made the agency aware of the condition
  • The medical condition meant that she could not lift 70 lbs, which was a requirement for the position as per the Aviation and Transportation Security Act (ATSA)
  • TSA declared that the employee was not qualified to do the job and no accommodation would allow her to lift 70 lbs; the employee agreed
  • Rather than consider reassignment, TSA gave the employee an application for retirement
  • The employee didn’t want to retire; leadership told her to request LWOP or else she’d be placed on AWOL
  • Employee was eventually terminated for physical inability to perform

The agency missed an important, legally-required step in the accommodation process when they did not consider available reassignments. Let’s review the requirements.

When making an accommodation request, an employee must show that (1) She is an individual with a disability, (2) She is a qualified individual with a disability, and (3) The Agency failed to provide a reasonable accommodation. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

But, it doesn’t stop there. If the agency cannot provide a reasonable accommodation or no accommodation is available for that job, the agency must next consider reassignment as an accommodation – and this is where TSA messed up. The agency must look for a vacant, funded position for which the employee is qualified, and not just within the agency but all the way up to the Department level, which in this case would mean DHS-wide. If no vacant, funded position is available at the employee’s grade level the agency must look for lower-graded positions for which the employee is qualified. Once these options have been exhausted and no position is available, only then may the agency remove the employee for inability to perform.

Here’s where issue 1 (consider reassignment) meets issue 2 (internal policy that violates the law). The agency argued that they could remove the employee because the ATSA specifies that if an employee does not meet the requirements of the TSO position, that employee may be removed. The ATSA also specified that the TSO who cannot perform is not eligible for accommodation, including reassignment. The AJ told the agency that internal policy did not supersede the Rehabilitation Act requirement of considering reassignment as an accommodation and that the policy be modified to reflect the law. The agency argued that the AJ’s authority did not include a requirement that TSA change a national policy, but the EEOC disagreed, because changing the policy would simply reflect “the obligation [TSA] already has – to offer a reasonable accommodation in the form of reassignment, when appropriate, to TSOs.”

There you have it. Internal policies cannot override the law. Therefore, the agency had to pay out compensatory damages, attorney fees and costs for discriminating against the employee.

This stuff is important and even though it may seem basic, it’s clear from the case above that agencies get it wrong because they don’t know the law. We teach a whole day on Reasonable Accommodation Under the ADA and Rehabilitation Act during Absence & Medical Issues Week, next held February 1-5 in Washington, DC. Or, bring FELTG onsite and we’ll teach you all about it on your home field. You can’t afford to make a mistake like this! Hopkins@FELTG.com