Can an agency charge Absent Without Leave (AWOL) if the employee was working, but in the wrong location? A new MSPB case, Wong v. Commerce, DC-0752-17-0298-I-2 (Dec. 9, 2023)(NP), tackles that very scenario.
In a semi-recent case involving an employee’s request for a dog in the workplace, Dona A. v. SSA, EEOC No. 2022000745 (May 9, 2022), the complainant requested 15 accommodations, including that her dog be permitted to come to work with her. Let’s break it down.
By Deborah Hopkins, December 4, 2023
As December rolls along, many of you will be attending or participating in holiday parties or gift exchanges. To kick off the holiday theme of this month’s newsletter, I wanted to share three lessons about employee (mis)conduct related to the holidays.
Inappropriate use of a photo taken at a Christmas party was “abusive and offensive.”
The appellant, an M-5 supervisor at the Tennessee Valley Authority, was suspended on multiple charges. One charge included showing a female subordinate employee an inappropriate photograph. The photograph was taken of the subordinate, without her knowledge, during a Christmas party. That was only part of the problem. The appellant then took the subordinate’s head from the photo and attached it to a centerfold picture of the body of a naked woman, and showed the photo to the appellant, who testified that she was humiliated and embarrassed by the incident. MSPB held that this incident, along with others discussed in the case, amounted to “a course of abusive and offensive behavior which, if directed in large part to female employees, is discriminatory.” Hayes v. TVA, 4 MSPR 411, 414 (Dec. 16, 1980).
A Christmas gag gift can amount to disrespectful conduct.
The appellant, a WG-9 painter at the Department of Veterans Affairs, brought a red Huggies box to work and placed it on his supervisor’s workstation. The box contained what appeared to be a soiled diaper. The agency drafted the following charge:
On January 5, 2012, three individuals saw you put a red Huggies diaper box on the desk of Supervisor Mark Treadway. The box contained a baby diaper that looked like it had feces in it. According to the witnesses, you made the following statements, “Do you think this would make Mark mad” and “I hope it does.”
The “feces” was actually a candy bar that had been made to look like feces. The appellant testified it was a Christmas gag gift he had received from his mother and his sister, although witnesses did not corroborate that statement.
The supervisor was troubled with what he found at his workstation. He thought the feces was real. He called the agency’s Infectious Disease team to dispose of the box. The Administrative Judge found the appellant’s behavior amounted to disrespectful conduct. Franklin v. VA, AT-0752-12-0454-I-1 (Jul. 23, 2012)(ID).
The Whistleblower Protection Act does not protect disclosures based on rumors of events at holiday parties.
In this case, the appellant, a GS-12 correctional program specialist/special investigative agent at the Federal Bureau of Prisons, asserted he heard a rumor from other employees that there had been a fight during the institution’s holiday party, which he had not attended. He reported the rumor, which included an allegation that the associate warden had been involved in the altercation, to the agency’s executive staff. When he was disciplined for conducting an unauthorized investigation, misuse of position, and lack of candor, he claimed whistleblower reprisal, but the MSPB found the disclosure was not protected because “when the appellant made the disclosure, it was based on mere rumors, and he did not even know who allegedly had been involved.” Johnson v. DOJ, 2007 MSPB 42, P14 (Feb. 6, 2007).
Have a wonderful holiday season, FELTG readers, and let’s all remember to make good decisions out there. Hopkins@FELTG.com
This week, our focus turns to claims of religious discrimination from another angle – reasonable accommodation. Read more.
By Deborah J. Hopkins, November 13, 2023
Religious persecution is on many people’s minds today. With polarizing events happening around the world, most notably the Israel-Hamas war. It’s important for Federal employees to remember this: While they may have strong feelings related to religious beliefs and practices, there are limits on workplace conduct that, if exceeded, could give rise to discrimination complaints on the basis of religion.
As a quick statutory overview, Title VII, 42 USC § 2000e-16, provides that in the Federal government, “all personnel actions affecting employees or applicants for employment … shall be made free from discrimination based on … religion …” This statute was made applicable to Federal agencies by the Rehabilitation Act in 1972.
In addition, EEOC makes it clear that “Title VII defines ‘religion’ to include ‘all aspects of religious observance and practice as well as belief.’ Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, and only subscribed to by a small number of people, or that seem illogical or unreasonable to others. . .” EEOC Compliance Manual Section 12-I, A-1.
A browse through EEOC case law shows us that discrimination based on religion has been implicated in every theory of discrimination. Today, we’ll be focusing on cases involving hostile work environment harassment.
Wicca wasn’t welcome.
The complainant, an electronic technician, filed a hostile environment complaint based in part on his religion (Wicca). According to the case, agency supervisors “restricted him from wearing his religious shirts, jewelry” and displaying “a small cauldron” even though similar restrictions were not placed on employees of other religions. In addition, an agency supervisor counseled the complainant that he should refrain from being so open about his religious beliefs.
The complainant’s co-workers also openly chastised his religious expressions, referring to his religion as “going out East to frolic with the nymphs” and calling him “evil.” EEOC found the agency liable for hostile environment harassment and remanded the case for a damages assessment. Hurston v. USPS, EEOC App. No. 01986458 (Jan. 19, 2001).
Muslims were expected to behave in a certain way.
The complainant, a housekeeping aide, alleged religious discrimination based on his Muslim faith when among other things:
- His supervisors made comments such as “Why don’t you act like a Muslim?” and “Where is your beanie (kufee)?” [sic].
- His direct supervisor once handed him a computer disk labeled “get Osama.”
- His co-workers brought in pictures of the President and the Statue of Liberty wearing disparaging Muslim garb.
- He received approximately 25-30 letters of warning.
When assessing the severity and pervasiveness of the conduct, EEOC noted that the harassment began on Sept. 12, 2001, and continued for several weeks thereafter. It found the agency liable for a hostile work environment. Watson v. Department of Veterans Affairs, EEOC Nos. 01A50731, 01A52680 (2006).
Disparaging comments were made about Islam.
The complainant, a center adjudication officer at the Federal Law Enforcement Training Center (FLETC), was attending a seven-week staff training course at FLETC’s Glynco, Ga., campus. The class instructor made disparaging remarks about Muslims and Arabic people to the class and provided factually inaccurate information about the Islamic faith and Arabic people.
In addition, the instructor told the class, “The goal of a Muslim is to convert you and kill you.” Another instructor told the class the complainant should be “investigated for possible ties to terrorist organizations.” This was so troubling that other classmates who weren’t Muslim or Arabic were uncomfortable and filed reports. EEOC agreed that this conduct created a hostile work environment. Rana v. Department of Homeland Security, EEOC App. No. 0720060056 (Jan. 5, 2007).
One offensive comment constituted unlawful antisemitic harassment.
The complainant, a workers’ compensation claims examiner, received an email from her supervisor in which the supervisor referred to himself as working like “a Hebrew slave.” The complainant filed a hostile environment harassment complaint.
The agency maintained the supervisor’s comment was not severe enough to constitute a hostile work environment because he applied the term to himself. EEOC disagreed and found that, although it was a one-time comment, such language made light of the history of Jewish persecution and genocide and it reminded the complainant about her family’s treatment during the Holocaust, where several of her family members had been killed. EEOC agreed with the AJ, who determined that this comment to a Jewish subordinate was “grossly insensitive, insulting and condescending,” “profoundly inappropriate,” and was severe enough to alter the terms, conditions, and privileges of employment. Lashawna C. v. Department of Labor, EEOC App. No. 0720160020 (Feb. 10, 2017).
Newspaper photo with comments was not a hostile work environment.
Not every case of unwelcome conduct based on religion will meet the bar to prove a hostile work environment. Take, for example, the recent case Kenny M. v. Dep’t of Justice (Bureau of Prisons), EEOC App. No. 2022000449 (Dec. 6, 2022). The complainant, a cook supervisor at a Federal penitentiary, alleged a hostile work environment on the basis of religion (Judaism).
From November 2018 through December 2019, a newspaper article containing a photo of the U.S. attorney general speaking with a man in a black hat was posted in the bathroom with the captions: “The AG and a Jew meet at a gay disco party” and “Who blows Who.” The EEOC found the incident was not sufficiently severe or pervasive to alter the terms, conditions, or privileges of the complainant’s employment. “The anti-discrimination statutes are not civility codes. Rather, they forbid ‘only behavior so objectively offensive as to alter the conditions of the victim’s employment.’” Id, citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (Mar. 4, 1998).
I’ll write more about religious discrimination next month. Hopkins@FELTG.com
By Deborah J. Hopkins, November 13, 2023
It’s the time of year when initial Federal Employee Viewpoint Survey (FEVS) results are released. Like many of you, I found some interesting numbers in the 2023 report. One topic with very favorable scores involved items related to employee views of their immediate supervisors. Take a look at a few items with high scores:
- I am held accountable for the quality of work I produce: 86 percent.
- I know what my work unit’s goals are: 84 percent.
- Supervisors in my unit support employee development: 78 percent.
- My supervisor supports my need to balance work and other life issues: 84 percent.
- My supervisor listens to what I have to say: 82 percent.
- My supervisor treats me with respect: 86 percent.
- My supervisor holds me accountable for achieving results: 87 percent.
Until the 2022 FEVS, an item that appeared on every FEVS for as long as I can remember was “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” That number usually wavered between 27 and 42 percent. The question hasn’t been on the last two FEVS so it’s hard to capture the difference between how employees feel about their supervisor holding them accountable, and their supervisor holding coworkers accountable.
One item we at FELTG found troubling:
- In my work unit, differences in performance are recognized in a meaningful way: 45 percent.
This item reminds me of what FELTG Instructor Ann Boehm says in her class on Boosting Employee Morale: 10 Dos and Don’ts for Federal Managers: “Take care of the good ones!”
We’ll share more on the 2023 FEVS in upcoming articles and in our 2024 training classes, which are now open for registration. Hopkins@FELTG.com
While there’s no clear connection between the term “master bedroom” and slavery, the subtext is enough that the real estate industry largely moved to stop using it. Here’s why.
By Deborah J. Hopkins, October 16, 2023
The Merit Systems Protection Board has taken a several-week break from issuing decisions while it updates its e-Appeal online system. The system was scheduled to come back online this week.
In the meantime, I wanted to highlight an interesting recent case involving a supervisor who was demoted for conduct unbecoming, but who the Board reinstated because the supervisor’s impatient and unprofessional demeanor did not rise to the level of actionable misconduct. Glass v. Treasury, NY-0752-19-0200-I-1 (Aug. 16, 2023)(NP).
The appellant, a supervisory national bank examiner, was demoted based on five specifications of conduct unbecoming a supervisor. According to the case, the misconduct involved the supervisor’s interactions with four subordinates and the specifications all related “to the manner in which the appellant dealt with these individuals regarding work-related matters.” Id. at ¶7. The administrative judge (AJ) agreed with the agency and upheld all five specifications and the demotion.
The Board, however, disagreed. Among the relevant details:
Specification 1: The appellant addressed one of his subordinates in a scolding manner, told him his work-related project explanations were “not a good excuse,” and told the subordinate that he was ill-prepared for a meeting. In addition, he called the subordinate a liar during a performance review.
According to the Board, “It is the job of a supervisor to address the performance of his subordinates and the making of inaccurate or false statements about a work-related matter is serious. Although the appellant’s language may have been direct or indelicate, that does not make his conduct actionable.” Id. at ¶9.
Specification 2: The appellant was having a discussion with another of his direct reports and was trying to clarify how many work items were pending. When the direct report did not understand the appellant’s question, “the appellant held up one finger from each hand in her face and said, loudly enough so that others could hear, words to the effect of ‘Here’s one finger and here’s one finger. How many fingers?’” in front of several other staff members. Id. at ¶10.
The AJ found this behavior disrespectful and inappropriate because the direct report felt intimidated and embarrassed. The Board disagreed and said the appellant was asking for information about a work-related matter, which is a supervisor’s responsibility, and even if the statement was exaggerated and made the subordinate feel uncomfortable, it did not rise to the level of actionable misconduct.
Specification 3: This specification involved the same direct report from Specification 2, above. In this instance the direct report asked the appellant a question about a work-related matter and the appellant responded, “We have talked about this five times!” Id. at ¶12.The AJ found that the appellant’s obvious annoyance and anger was not tactful and was unbecoming a supervisor, but the Board disagreed because the conversation was about “a work-related matter and his response to her was in the context of his supervisory role…To the extent that the appellant’s response reflected that he was frustrated by the question, it does not amount to actionable misconduct.” Id. at ¶13.
Specification 4: The appellant asked a different subordinate to schedule a meeting to include him and two other agency officials, and after the subordinate made several attempts to confirm the appellant’s attendance, he replied, “I told you this three times. We have to go over this again?” Id. at ¶14. As in Specification 3, the Board held that the discussion was work-related and the appellant was acting within the scope of his responsibilities, and even if he appeared annoyed and made his subordinate feel belittled, it did not rise to the level of actionable misconduct.
Specification 5: In an email exchange between the appellant and one of his direct reports, he told her to “submit her questions either to him or another named individual, and to ‘PLEASE stop emailing’” another agency employee. Id. at ¶16. The AJ found the tone of the email unprofessional, but the Board disagreed. It held a supervisor has authority and responsibility to “direct who should be provided certain information and to whom questions should be addressed. Putting a written word in all capital letters is generally intended to draw the reader’s attention to it.” Id. at ¶17. Although the subordinate testified she felt “beaten up” by the email, according to the Board “those feelings cannot serve to turn the appellant’s email into actionable misconduct.” Id.
If you are surprised by this outcome, let me draw your attention to a footnote where the Board explained, “We do not suggest that a supervisor’s conduct may never be actionable and therefore supportive of discipline, but only that the appellant’s conduct in this case does not rise to that level.” Id. at p. 7. For more on advanced topics such as these join us for the all-new program Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2. Hopkins@FELTG.com
A high-profile situation naturally raises an oft-asked question about consent as it relates to voluntariness and unwelcomeness in workplace relationships. Read more.
By Deborah J. Hopkins, September 11, 2023
The Merit Systems Protection Board holds a number of functions; chief among them is reviewing agency penalty selections in cases of appealable discipline. The Board’s role is not to displace management’s responsibility in a penalty determination with its own, but to determine whether management exercised its judgment and issued a penalty within the tolerable limits of reasonableness. Alaniz v. U.S. Postal Service, 100 M.S.P.R. 105, ¶ 14 (2005). The same is true of the role of MSPB administrative judges (AJs).
In reviewing recent nonprecedential cases, I noticed several where the Board reversed an AJ’s mitigation and re-imposed the agency’s initial removal penalty. What follows are summaries of two such cases.
The FBI Special Agent Who Fired His Service Weapon
on a Would-Be Car Thief
From a window on the second floor of his home, an FBI special agent saw a man attempting to break into his wife’s car in front of his home. The agent yelled at the would-be thief to get him to stop, but the man persisted. The agent then brandished his service weapon, identified himself as a law enforcement officer, and fired one round, injuring the individual.
At the time he fired his weapon, the appellant was approximately 10 to 25 feet higher than the individual, and 30 feet horizontal distance from the individual.
The agency removed the appellant. On appeal, the AJ mitigated the removal to a 60-day suspension, finding the agency improperly considered certain Douglas factors to be aggravating. The Board disagreed with the AJ and reinstated the agency’s removal penalty, relying on three aggravating factors:
- The appellant’s refusal to accept responsibility,
- The appellant’s prior disciplinary history, and
- The appellant’s “refusal to cooperate with the investigations.”
In addition, the Board agreed with the agency that the misconduct was “directly related to the agency’s mission and the appellant’s ability to exercise reasonable use of force in the performance of his duties in the future.” Kalicharan v. DOJ, NY-0752-16-0167-I-4 (Jul. 20, 2023).
The Disrespectful VA Practical Nurse
The agency removed the appellant, a practical nurse for the VA, based on three charges. On appeal the administrative judge found the agency proved only one charge, inappropriate language, with two specifications:
- While the appellant was in the breakroom with a male coworker, a female coworker called that individual on the telephone and the appellant “yelled out something along the lines of kill that b-tch.”
- During a meeting with management regarding the appellant’s alleged interpersonal conflicts with the female coworker, he admitted to calling the coworker a “b-tch” on one unspecified occasion after she had allegedly lied about him acting inappropriately towards her.
The AJ mitigated the penalty of removal to a 30-day suspension largely because she sustained what she considered to be only the “least serious” of the initial three charges. In explaining the mitigation, the AJ “focused on the context in which the appellant used the inappropriate language and the appellant’s past discipline.” The deciding official considered these to be aggravating factors, but the AJ disagreed.
The Board overturned the AJ’s mitigation and reinstated the removal, after considering as aggravating factors “the appellant’s work in a healthcare setting with veterans, the high standard of conduct and behavior towards patients and other VA employees expected of an individual in the appellant’s position, and the notoriety of the offense in negatively affecting the trust of veterans and the public in the level of patient care at the VA.”
Also, this was the appellant’s third disciplinary offense in less than three years. Therefore, using the principles of progressive discipline, the Board found removal did not exceed the bounds of reasonableness. Beasley v. VA, CH-0752-17-0273-I-1 (Jul. 19, 2023).
We’ll be looking in more detail at these topics during our brand-new virtual training Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2. We hope you can join us! Hopkins@FELTG.com
