Applicant Failed Polygraph, But Agency Failed to Provide EEO Process Info

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By Deborah J. Hopkins, May 16, 2023

A new case from the EEOC reminds us it’s important to notify applicants about the EEO process. Lela B. v. DHS/USSS, EEOC Appeal No. 2023000348 (Apr. 20, 2023).

The complainant applied for a Uniformed Division Officer position at the U.S. Secret Service. As is mandatory for such a position, she was required to undergo a polygraph examination, which she failed on Nov. 8, 2021, “based on an inquiry regarding illegal drugs.” She was then notified she was no longer being considered for the position.

She contacted an EEO counselor on April 22, 2022. After an unsuccessful attempt at informal resolution, she filed a formal EEO complaint on June 7, 2022, alleging the agency discriminated on the bases of race (African American) and sex (female) when:

  1. On Nov. 8, 2021, the two agents who conducted the complainant’s polygraph hindered her from obtaining a job in her career field through coercion and deceitful tactics during her test that rendered a false result.
  2. On Nov. 8, 2021, the two agents who conducted Complainant’s polygraph coerced her into writing a false statement following her polygraph.
  3. The Assistant to the Special Agent in Charge released false information to a subsequent potential employer, a local Sheriff’s Office, regarding selling illegal drugs. Complainant stated, on April 21, 2022, the Sheriff’s Office informed her via email that she had “permanent disqualifiers” from employment with them, and suggested she resolve the matter with the agency.

Unsurprisingly, the agency dismissed claims (1) and (2) for untimely EEO contact, as the complainant contacted the EEO counselor months after the 45-day time limit. See 29 C.F.R. § 1614.105(a)(1). The agency also dismissed claim (3) for failure to state a claim.

The EEOC was compelled by the complainant’s argument she was not aware of the 45-day statutory timeframe because she was merely an applicant and not an employee, and “there is no evidence that she was aware of the 45-day time frame through training, posters and other information.”

Regarding claim 3, the EEOC found the agency erred in dismissing the claim, and that “the alleged actions render Complainant aggrieved” because she “alleged that the Agency manipulated the polygraph results and provided a negative reference to her potential employer because she is an African American woman.”

As a result, the EEOC remanded the case back to the agency. Properly accepting claims will save your agency countless time and resources over a remand like this  – and FELTG can help. In October, we’re holding the virtual training Get it Right the First Time: Accepting, Dismissing and Framing EEO Claims – but we can bring this to your agency sooner if you have any interest. Just let us know. Hopkins@FELTG.com

 

Can an Agency Constrain Official Time for EEO Complainants?

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By Deborah J. Hopkins, April 17, 2023

A few years ago, a client asked me what to do in this scenario: The employee did not show up to work for two weeks and did not respond to her supervisor’s phone calls, text messages, or emails. On the day the employee returned to work, the supervisor asked the employee where she had been. The employee said she had “been taking official time for my EEO complaints.”

EEOC’s regs at 29 CFR § 1614.605 establish that if the complainant “is an employee of the agency, she is entitled to a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information … The agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer.” [bold added]

There has been much litigation over what amount of official time is considered reasonable, and also over how much control an agency has over the complainant’s use of official time. EEOC recently addressed official time in Aline A. v. USDA/ARS, EEOC Appeal No. 2022003111 (Mar. 8, 2023). The case discusses EEOC’s long-held position that there’s not a set amount of official time designated for an EEO complaint. Also, the number of hours to which a complainant is entitled will vary based on factors including the complexity of the complaint, the agency’s mission, and the agency’s need to have its employees available to perform their normal duties on a regular basis.

Regardless of the details surrounding the complaint, “the Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed, so an agency may restrict the overall hours of official time afforded.” Referring to my client’s scenario above, we know reasonable does not include an AWOL employee claiming 80 hours after the fact, without making a request.

In Aline A., the complainant alleged the agency violated the law by denying her a reasonable amount of official time for her EEO complaint when:

  • On Aug. 5, 2019, she was denied six hours of overtime pay, for official time.
  • On Oct. 25, 2019, she requested three hours of official time and was denied.
  • On Dec. 19, 2019, management denied her sufficient time (six hours) to meet with her designated representative regarding her pending EEO complaint.

The agency’s position was that it did not violate the complainant’s right to official time because:

  • On Aug. 5, 2019, the supervisor stated the complainant claimed six hours of overtime for her EEO activity (premium pay) without pre-approval. The supervisor disapproved the overtime pay but provided the complainant with six hours of credit time.
  • On Oct. 25, 2019, the supervisor had already scheduled the complainant’s performance evaluation. He denied her request due to the conflict but approved three hours of official time for Oct. 30, 2019. (The complainant was scheduled for leave on Oct. 28 and 29, 2019.)
  • On Dec. 19, 2019, the complainant’s request for six hours of official time included four hours of driving and two hours for the meeting with the representative. The agency did not think it was reasonable to provide official time for all the travel, but still granted four hours of official time, to include one leg of travel.

The Commission sided with the agency on all three official time claims and found the complainant “did not establish that the Agency improperly denied her official time for her EEO activity.” Specifically on the Oct. 25 denial, the commission ruled: “[T]he Agency reasonably delayed Complainant’s request for three hours of official time to balance her need with business reasons,” namely the performance evaluation.

Other recent cases have discussed official time including:

  • Complainants are not entitled to unlimited officialEEO time, just because they request it. Jeanie G. v. USDA/ARS, EEOC No. 2021003820 (Feb. 28, 2023).
  • A supervisor requiring a complainant to obtain approval prior to every official timerequest does not violate 29 CFR Part 1614. Angela R. v. DOD/NGA, EEOC No. 2022002317 (Feb. 21, 2023).
  • A supervisor requiring advance requests of EEO meetings related to official time, when the supervisor does not ask details about where the complainant was specifically going and with whom the complainant was meeting, does not violate 29 CFR Part 1614. Bryan F. v. Army, EEOC No. 2022002206 (Feb. 16, 2023).

Hope this helps. Hopkins@FELTG.com

Is Three-strikes Progressive Discipline a Thing of the Past?

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By Deborah J. Hopkins, March 15, 2023

A recent MSPB nonprecedential decision has me scratching my head, as the outcome appears to go against over 40 years of case precedent. I wrote about the facts of the case in a previous newsletter article, so if you’d like the specific details please check that out. A quick recap though: The agency removed an employee based on three charges: (1) lack of candor; (2) disregard of directive; and (3) unauthorized absence. The MSPB only sustained charge 2, disregard of directive, because the appellant did not follow appropriate leave request procedures.

Because the agency only proved one of three charges, the Board mitigated the removal to a 7-day suspension. That may not sound odd to you, but here’s where I’m stuck: if you look at Board’s view of the Douglas factors analysis on pages 9-10 in the case, the appellant “was previously reprimanded and served a 3-day suspension for failure to follow the agency’s leave procedures.”

A principle that has been around for longer than the Civil Service Reform Act, progressive discipline stands for the proposition that for minor misconduct, Federal employees are generally given a “three strikes and you’re out” opportunity to learn from conduct-based mistakes. Progressive discipline, which we’ll discuss in more detail during MSPB Law Week March 27-31, typically looks like this:

  • First offense of misconduct: Reprimand
  • Second offense of misconduct: Suspension of 1-14 calendar days
  • Third offense of misconduct: Removal

Progressive discipline is not mandatory, most recently confirmed during OPM’s discussion of its updated regulations at 5 CFR §752.202.

There are times agencies remove an employee for a first offense (see, e.g., Pinegar v. FEC, 2007 MSPB 140), and there are times they give more than three strikes – sometimes a lot more (see, e.g., Blank v. Army, 85 MSPR 443 (2000)). And that is absolutely up to the agency. But past discipline has almost always been a significant aggravating factor, and for over four decades the Board has generally upheld removals for a third offense of any misconduct. See, e.g., Grubb v. DOI, 96 MSPR 361 (2004).

If the Board were to follow its own precedent in the current case, the agency should have received penalty deference and the Board should have upheld the removal. Instead, the Board found other factors to be mitigating:

  • The appellant worked for the agency for six years and did not have any performance problems during that time.
  • The appellant was not a supervisor.
  • The appellant contacted the agency “to inform his supervisor that he would be absent, albeit not in the way in which he was instructed.”
  • The appellant claimed he and his wife were having relationship troubles.
  • The appellant claimed he was experiencing pain because of a disability.
  • The agency’s table of penalties recommended a “5-day suspension to removal for a third offense of failure to request leave according to established procedures.”

If removal was appropriate according to the table of penalties, why did the Board mitigate?

I will admit, proving only one specification of one charge does make one consider whether the penalty is unreasonable; in essence the agency only proved a third of its case. That said, because of the weight past discipline usually holds, I am a little surprised the Board did not defer to the agency’s penalty. I wonder if the outcome would have been different if there was language in the decision letter that any charge standing alone would warrant removal? See, e.g., Sheiman v. Treasury, SF-0752-15-0372-I-2 (May 24, 2022)(NP).

This is one of the few cases under this Board where a Member dissented from the majority; Tristan Leavitt noted a dissent but without opinion, so it’s anyone’s guess as to why. Perhaps it’s for the very reason outlined above. Ortiz v. USAF, DE-0752-22-0062-I-1 (Jan. 25, 2023)(NP).

At first I was thinking this might be an outlier, but two subsequent cases have seen the same mitigation despite of past progressive discipline: Spivey v. Treasury (IRS), CH-0752-16-0318-I-1 (Feb. 15, 2023 )(NP) and Williams v. HHS, DC-0752-16-0558-I-1 (Feb. 25, 2023)(NP). Read on for Bill Wiley’s take on these cases and on why agencies discipline at all. Hopkins@FELTG.com

Three Costly Lessons on Reasonable Accommodation

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By Deborah J. Hopkins, March 6, 2023

There are always two sides to a reasonable accommodation (RA) case: the agency’s side and the complainant’s side. While a lot of our training programs at FELTG focus on avoiding agency liability, there’s another aspect to this that’s important to mention, and that’s doing the right thing for the employee who requests accommodation. We see too many instances where an agency handles an RA request improperly, and it exacerbates the employee’s medical condition, causing further harm.

The goal should always be to process RA requests according to the law. One way to ensure that happens is to look at cases to see what agencies did correctly, and also cases where they could have handled requests better. Today I want to highlight three important lessons from fairly recent RA cases.

1. If an accommodation is working, don’t change it. Every now and then we see a scenario where an employee is on a long-term RA, and a new supervisor comes in and revokes the RA, thus causing problems for the complainant and the agency. Once such case involved a technical editor who suffered from irritable bowel syndrome. She was on 100 percent telework with a flexible schedule for several years. She had been performing her duties, preparing manuscripts and various administrative oversight functions, at an acceptable level throughout this time.

A new supervisor took over the department and cancelled all existing telework agreements, including the complainant’s. The complainant notified the supervisor she needed telework to accommodate her disability and she requested the RA be granted back to her. The agency refused and, among other things, claimed the complainant’s job was not telework eligible, despite the fact that she’d been performing the work from home for several years. As a result of the accommodation denial, the complainant stopped coming to work. The EEOC found that the agency failed to provide an RA. It ordered the agency to offer the complainant a retroactive reinstatement, with appropriate back pay and benefits, and to investigate the complainant’s claim for damages. Sandra A. v. Navy, EEOC Appeal No. 2021002132 (Sept. 16, 2021), request for recon. denied, EEOC Request No. 202200276 (Mar. 7, 2022).

2. Don’t skip the interactive process. In this case, the complainant was a food inspector who developed asthma. The chemical sprays used to wash animal carcasses in his work area exacerbated his condition, so he provided a medical note to inform his agency of the issue. Rather than consider the medical note as an RA request, the agency considered the note as evidence the complainant could not work in his designated area and sent him home. The EEOC found this particular conclusion to be rational at the time.

From home, the complainant again requested an RA – specifically, the use of a certain type of respirator his physician recommended that would filter out the workplace chemicals that irritated his respiratory system. The agency denied this request, claiming “there is no evidence that demonstrates significant inhalation exposure to the employees at the establishment.” The complainant continued to make requests. After a few weeks, the agency informed him that he could use a different type of respirator than the one his doctor had ordered. However, this respirator did not filter out the chemicals that caused the complainant respiratory distress, so he again requested to use the respirator the physician recommended. He was denied because, according to the agency, it “would be an undue burden because it is a safety hazard while performing his animal slaughter duties as well as concerns with complying with OSHA’s regulatory requirements.”

EEOC noted that by requesting use of the respirator, the complainant requested the interactive process: “This informal, interactive process should be a problem-solving approach that includes: an analysis of the job to determine its essential functions; consultations with the complainant; an assessment of the effectiveness of potential accommodations; and consideration of the complainant’s preferences. 29 C.F.R. pt.1630, app. § 1630.9.”

The EEOC held the agency failed to engage in the interactive process because it did not “participate in this necessary exchange of information, which resulted in the improper denial of a reasonable accommodation.” The EEOC ordered the agency to consider the complainant’s request for compensatory damages. Tyson A. v. USDA, EEOC Appeal No. 2020000972 (Aug. 16, 2021).

3. After receiving sufficient medical documentation, don’t ask for more. The complainant in this case was injured at work. As a result, she required surgery and reasonable accommodations. She provided sufficient medical documentation to substantiate her FMLA and RA requests, but the supervisor still contacted the complainant’s medical provider without the complainant’s permission to make further inquiries about the complainant’s medical restrictions.

The supervisor was unable to explain why she needed additional medical documentation, so the EEOC found the agency committed a per se violation of the Rehabilitation Act by conducting an unlawful disability-related inquiry. EEOC remanded the case for a back pay award and a compensatory damages assessment. Eleni M. v. Army, EEOC Appeal N. 2020001903 (Sept. 7, 2021), request for recon. denied, EEOC Request No. 2021005193 (Feb. 22, 2022).

We’ll be addressing these issues and more during EEOC Law Week next week, on June 14 in Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, and as part of the updated Reasonable Accommodation in the Federal Workplace in 2023 webinar series, beginning July 20. Hopkins@FELTG.com

Masks and Tests: Here Come the COVID Discipline Cases

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By Deborah J. Hopkins, February 14, 2023

It took less than a year of a quorum at the MSPB before we got our first two cases involving agency discipline related to COVID-19 – consequently, both from the Air Force. In one case, the agency prevailed. In the other, the Board mitigated the appellant’s removal to a seven-day suspension. Let’s take a look.

Opposed to Wearing a Mask

The appellant was a GS-06 pharmacy technician whose job duties included filling and refilling prescriptions, entering orders into a medical database, checking medication stock, inspecting the pharmacy, and consulting with patients and physicians. In March 2020, the agency imposed a mask mandate for anyone entering the medical center, including employees. The agency stationed personnel at the building’s entry to enforce its mask policy, and to screen would-be entrants for fever. Once inside the facility, employees were permitted to remove their masks if they were able to keep physically distanced from other people.

In September 2020, the appellant was stopped twice at the entryway for not wearing a mask. The appellant subsequently informed agency officials she had “a sincerely held religious belief that precluded her from wearing a mask or other face covering.” In November 2020, the agency imposed a more stringent mask policy, which required individuals in the building to be masked at all times unless they were alone in a room and behind closed doors. The next day, the appellant was told that if she did not wear a face covering, she would not be able to enter the building and report for duty.

The appellant contacted the EEO office and “began to absent herself from work in order to avoid the mask requirement.” She exhausted her leave and remained absent from work for several weeks. In January 2021, the agency proposed her removal for (1) unauthorized absence and (2) failure to comply with established leave procedures. The removal was implemented in April 2021.

In her appeal of the removal, the appellant alleged affirmative defenses of religious discrimination and EEO reprisal. The AJ held – and the Board affirmed – the appellant did not prove her affirmative defenses: “[A]lthough the appellant’s religious beliefs, her refusal to wear a mask, and the absences underlying her removal are linked, a finding that the appellant was removed for either unauthorized absences or failure to follow masking policy does not entail a finding that the removal was motivated by the appellant’s religious beliefs.”

The case includes a discussion of the agency’s exhaustive efforts to consider a religious accommodation, and it’s worth a read if you have any role in processing (or defending against) religious accommodation requests. In the end the Board sustained the removal. Davis v. USAF, DA-0752-21-0227-I-1 (Feb. 2, 2023)(NP).

Fabricating Wife’s COVID-19 Diagnosis

The appellant in this case was a WG-10 composite/plastic fabricator. On April 28, 2021, he reported to the agency his daughter was exhibiting symptoms of COVID-19. The next day, he reported his daughter had tested positive for COVID-19, so the agency ordered him to stay home for 14 days.

The day before he was scheduled to return to work, he reported that his wife had just tested positive for COVID-19. He was ordered to stay home an additional 14 days. He finally returned to work on May 27, and “later submitted to the agency photos of two COVID-19 home testing kits, appearing to have positive results, with his wife and daughter’s names written on the test cards.”

On June 10, the appellant’s friend called the agency and requested a day of LWOP for the appellant because he “ was incoherent due to medications he was taking.” The agency, concerned for the appellant, requested the police perform a wellness check.

The police found the appellant wasn’t home. After the wellness check, the appellant’s second-level supervisor called the appellant’s wife to inquire further. The appellant’s wife stated her daughter had an exposure to COVID-19 at school but that “[n]o other Covid incidents happened,” which contradicted the appellant’s version of April events.

Over the next several days, the appellant was absent from work multiple times. He provided a note from a chiropractor to cover the absences. His supervisor, suspicious about the authenticity of the notes, called the medical office to confirm. The supervisor learned the appellant had not seen the chiropractor on at least two dates for which he provided medical notes. Also, he was not given a note excusing him from work.

As a result, the agency proposed removal, with three charges: (1) lack of candor; (2) disregard of directive; and (3) unauthorized absence. The deciding official sustained all three charges. The appellant filed a Board appeal but did not request a hearing, so the AJ issued an initial decision based on the written record, sustaining charges 1 and 2 but not charge 3. The AJ also denied the affirmative defenses of disability discrimination under the theories of disparate treatment and failure to accommodate. The AJ upheld the removal.

On PFR, the Board scrutinized the credibility of the evidence and the witness testimony. The Board held the agency did not prove Lack of Candor because, among other things:

  • The statements about COVID-19 made by the appellant’s wife were recounted secondhand by agency officials.
  • When the appellant’s wife spoke to agency officials, she was angry about being asked for personal medical information.
  • While some of the appellant’s statements are not entirely consistent, “we find that as a whole, the agency has presented insufficient evidence to prove by preponderant evidence that the appellant’s statements regarding his wife and daughter testing positive for COVID-19 were untruthful.”
  • While the appellant has admitted he added an additional date to the medical note, he claimed his doctor authorized him to do so.
  • There was conflicting evidence within the chiropractor’s office about whether the appellant was seen on a particular date.

Because all three specifications failed, the agency did not prove Lack of Candor. The Board held the agency proved one specification of Disregard of Directive related to the appellant’s improper leave request procedures.

Because the agency failed to prove Charges 1 and 3 and only proved one specification of Charge 2, the Board found removal to be unreasonable and mitigated the penalty to a 7-day suspension.

The Board’s brief Douglas analysis relied on mitigating factors, including that “the appellant made contact with the agency to inform his supervisor that he would be absent, albeit not in the way in which he was instructed” and that “[the appellant] and his wife were having relationship troubles.” It gives insight into the Board’s reasoning, so it’s worth a look. Ortiz v. USAF, DE-0752-22-0062-I-1 (Jan. 25, 2023)(NP).

While these cases are nonprecedential, they include a number of important takeaways and lessons about the current Board, which we’ll discuss in more detail next month during MSPB Law Week. Join us March 27-31 on Zoom and we’ll fill you in on everything you need to know. Hopkins@FELTG.com

Is This a New Type of Tangible Employment Action?

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By Deborah J. Hopkins, February 14, 2023

When we discuss tangible employment actions in our EEO classes, we usually focus on facts in existing case law: a supervisor takes a pay-related action (such as a suspension, or non-selections) against an employee because of the employee’s response to the supervisor’s unwelcome sexual advances.

The Supreme Court has ruled that a tangible employment action constitutes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

A fairly new case from EEOC has seemingly broadened the type of action considered a “tangible employment action” in Federal agencies and has also included actions motivated not by an employee’s responses to sexual overtures but by a supervisor’s distaste for a complainant because of the complainant’s sexual orientation. In this case, the complainant accused his supervisor of creating a hostile work environment based on sex, citing several examples over a span of four years. The complainant claimed his supervisor:

  • Made negative comments about the complainant’s sexual orientation in a chat message with a coworker.
  • Was condescending to the complainant in emails.
  • Verbally attacked the complainant about his breaks and lunch periods.
  • Informed the complainant that he could only use certain doors when arriving to and leaving the workplace, making the door closest to the supervisor’s workstation off-limits.
  • Told the complainant that he was no longer allowed to “loiter” in the parking lot after work hours.
  • Required the complainant to inform her when he was coming and going from the workplace, despite a maxi-flex schedule.
  • Excluded the complainant from office discussions in an effort to get him to resign.

The agency asserted it was not liable because it exercised reasonable care to prevent and promptly correct the harassing behavior when:

  • It followed its internal workplace harassment policy once the complainant made a claim of harassment.
  • It allowed the complainant to maximize telework in order to avoid the supervisor while the agency worked to resolve the situation.
  • It eventually transferred the supervisor to a lower-graded position within the agency.

In its FAD, the agency found the supervisor created a hostile work environment but argued there was no agency liability because the “[s]upervisor’s actions did not result in a tangible employment action.”

On appeal, EEOC disagreed and found the agency was liable:

Despite this approved [maxi-flex] work schedule, Supervisor made it clear to Complainant that he was only allowed strict break and lunch times. Additionally, despite his maxi-flex schedule, Complainant was informed that he was to notify Supervisor any time that he was leaving his workspace. Lastly, Supervisor acknowledged that she informed Complainant that he was only allowed to use certain doors for exiting and entering. We find these actions constitute tangible employment actions as they altered the terms and conditions of Complainant’s employment. [bold added]

Nathanial P. v. NPS, EEOC Appeal No. 2021000613 (Jan. 13, 2022).

We discuss the ever-changing world of hostile work environment harassment as part of our comprehensive EEOC Law Week, next held March 13-17. Join us for the day or the week; we’ll be happy to have you there. Hopkins@FELTG.com

Last Chance Agreement Violation With a Side of Fries

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By Deborah J. Hopkins, January 30, 2023

A last chance agreement (LCA) is an alternative disciplinary option for an agency when an employee has engaged in misconduct that warrants a removal, but the agency gives the employee one final opportunity to keep her job. Typically, the LCA is offered after the employee’s response to the proposal and before the decision is due. An LCA generally includes the employee’s promise to follow all the agency’s rules and maintain successful performance for two years. In exchange, the agency agrees to purge the proposed removal from the file upon successful completion of the LCA. If the employee violates the agreement at any time within the two-year period, the agency can remove the employee as quickly as the day of the violation without requiring another proposal. (This is all written into the terms which we’ll discuss in more detail during MSPB Law Week March 27-31).

An LCA can be a marvelous tool for agencies when an employee engages in removable misconduct, but the agency wishes to give the employee one more chance to show she deserves to keep her job. There are multiple reasons why an agency would employ an LCA:

  • The employee engaged in misconduct the agency cannot ignore, but the employee is truly remorseful
  • The employee engaged in substance misuse and agrees to get treatment if the agency gives her another chance
  • The employee has a unique skillset and would be difficult to replace
  • The job exists in a geographic area where employees are difficult to recruit and a vacant position would be highly problematic for the agency
  • The supervisor has reason to believe the employee has learned her lesson

A recent MSPB case, Bollin v. VA, DA-3443-16-0106-I-2 (Jan. 19, 2023)(NP), involved a VA police officer whose removal was proposed based on two charges:

1.    Failure to follow a direct order, and

2.    Failure to follow supervisory instruction.

The deciding official agreed the evidence and penalty assessment supported removal. Prior to the effective date of the removal, the agency and appellant entered into an LCA. Under the terms of the LCA, “the agency agreed to hold the removal action in abeyance for a 2-year period … and purge the removal and agreement from the appellant’s agency file upon completion of the 2-year period … In exchange, the appellant served a 14-day suspension and agreed that, should he ‘engage[] in any substantiated misconduct’ or violate any other term of the agreement within the 2-year period, then the agency would reinstate the removal action and immediately remove him from his position.” Id. at 2.

Several months later, the appellant violated the LCA when he “was 20 minutes late in departing for firearms training and stopped at a McDonald’s drive-thru to purchase food on the way to the training, which constituted an unreasonable delay in carrying out instructions and an unauthorized use of a Government vehicle.” Id. at 3. The agency removed him for these two acts of misconduct. While seemingly minor, the conduct triggered the violation of the LCA.

As these cases go, the appellant filed an appeal to MSPB. The Board found no jurisdiction because the appellant violated the agreement, which had included a provision that he waived his MSPB appeal rights over the initial action. So in the end, Officer Bollin stayed fired.

Other types of misconduct that the Board has agreed violate an LCA include:

  • Referring to a co-worker as a “kiss-ass” in a group email (Reveles v. DHS, DA-0752-08-0306-I-1 (May 30, 2008)(ID)
  • Testing positive for alcohol and marijuana while on duty (Complainant v. USPS, EEOC No. 0120130190 (2014))
  • Possession of marijuana (Bruhn v. USDA, 2016 MSB 42)

Not every LCA violation involves French fries, but this is probably a lesson with details none of us will soon forget. Hopkins@FELTG.com

The State of the Civil Service: 2023 Edition

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By Deborah J. Hopkins, January 17, 2023

Happy new year, FELTG Nation! The previous 12 months have included several milestones and significant changes in the Federal civil service. So, I’m once again using the month of January to share some highlights about exactly where things stand in the world of Federal employment law.

MSPB

I can’t imagine a single FELTG reader doesn’t know that after a 5+-year hiatus, we again have a fully functioning Merit Systems Protection Board. The Acting Chair is Cathy Harris (the Senate still has not confirmed her as Chair, but functionally she is still in charge). The two other members are Ray Limon and Tristan Leavitt.

In 2022, the Board members inherited a backlog of more than 3,600 cases. At latest count, somewhere around 700-800 decisions had been issued, 46 precedential and the rest non-precedential, while new Petitions for Review (PFRs) continue to be filed. So, the number of PFRs awaiting Board adjudication remains well above 3,000.

Two of the most significant new decisions include:

  • Singh v. USPS, 2022 MSPB 15 (May 31, 2022), which clarified who is a comparator for the purposes of Douglas factor 6, and
  • Lee v. VA, 2022 MSPB 11 (May 12, 2022), which clarified requirements for demonstrating unacceptable performance before a PIP (as explained in the March 2021 Federal Circuit decision Santos v. NASA).

The Board is once again able to conduct research. It has identified several topics on its 2022-2026 agenda, including Aligning Workplace Flexibilities with the Future of Work, Correcting Employee Performance and Conduct, and Understanding the Roles of Teams and Team Leaders. We can’t wait to see what they learn after a half-decade research hiatus.

For a case law update on the most consequential decisions over the past few months, join us Feb. 14 for Back on Board: Keeping Up with the New MSPB. For a full class on all things Board-related, register for MSPB Law Week, which will be held March 27 – 31.

EEOC

The Equal Employment Opportunity Commission, which has jurisdiction inside and outside the Federal sector, continues to promote President Biden’s Diversity, Equity, Inclusion and Accessibility (DEIA) agenda. Areas of focus include raising awareness about the harassment, discrimination, and violence against transgender people, updates to COVID-19 issues, changes in Reasonable Accommodations in a post-COVID world, and much more.

To help promote the EEOC’s mission, FELTG is hosting a 32-hour EEO Counselor training later this month and EEOC Law Week in March. And be sure to check out Dan Gephart’s recent interview with EEOC Chief AJ Regina Stephens about the agency’s priorities in 2023, her thoughts on EEOC-ordered training, and more.

FLRA

The Federal Labor Relations Authority has gone from a full complement of three members down to a quorum of two in 2023, as Chair Ernest Dubester’s holdover term expired at the end of the last Congress. The new Chair is a familiar face to many, former MSPB Chair Susan Tsui Grundmann, who was confirmed to the FLRA several months back and joins previous Chair and now-member Colleen Duffy Kiko.

We still await confirmation of a General Counsel, a position that has been vacant for several years. Charlotte Dye is currently in Acting General Counsel capacity, where she may remain for a maximum of 10 months, unless President Biden nominates, and the Senate confirms, a General Counsel before then. With the two current members from opposing philosophies on several areas of labor-management relations and a nominee for the third member yet to be made by the President, we’ll all wait and see how the FLRA is impacted by this change in dynamics.

For a jump start on what you can expect, join former FLRA employee and current FELTG instructor Ann Boehm on Feb. 2 for the 60-minute What Happens Now at the FLRA?

A significant change within the agency occurred last summer when the FLRA and the Union of Authority Employees (the exclusive representative of the FLRA’s bargaining-unit employees) announced they were re-establishing the FLRA’s Labor-Management Forum.

There have also been some important cases altering FLRA precedent, and a recent decision allowing an agency to discipline a union official for exceeding the bounds of robust debate – a topic of discussion in the Jan. 19 training Drawing the Line: Union Representation or Misconduct. Or join us for FLRA Law Week May 1-5, where the entire world of Federal Labor Relations will be discussed in depth. We can promise the 2023 class will be different than the 2022 version, as we keep up with the changes.

OPM Regs, Return to the Work Plans

In December, the Office of Personnel Management issued new regulations on 5 CFR Parts 315, 432 and 752, as a result of Executive Order 14003. If you missed these important updates, check out our 60-minute recording of the significant takeaways.

Among other things, OPM’s 2022 Federal Employee Viewpoint Survey (FEVS) focused on the current state of telework in agencies. After a largely abandoned attempt to return employees to the physical workplace in 2021 – thanks to the Delta and Omicron COVID-19 variants – 2022 was the year that saw increases in office attendance around the country. A full 56 percent of the Federal workforce reported that they telework one or more days per week, and 36 percent of employees reported that they were required to be physically present at their worksite every single day.

There are varying philosophies about the need for in-person collaboration as balanced against the flexibility and productivity that full-time telework provides. Return to the physical workplace has been a key point of negotiation between agencies and unions – and we don’t expect that to change any time soon. As a result, most FELTG’s classes have incorporated strategies and best practices for managing employee issues in a hybrid work environment, whether it’s harassment or employee PIPs, and everything else in between.

Closing Thoughts

I believe 2023 is looking brighter, with a Federal budget approved through September, more people comfortable traveling and meeting in person, and no major national elections (is anyone else thrilled about this one?).

Stick with FELTG this year and we’ll keep you posted on all the happenings. Hopkins@FELTG.com

In-Office Thursdays Only? Some Employees Really Do Need Specific Telework Days

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By Deborah J. Hopkins, January 17, 2023

If your agency has an employee who, as a reasonable accommodation (RA), teleworks three days a week, and reports to the office one day a week, you might think the agency has the right to choose which day the employee reports to the office. And, depending on the scenario, you might be right. But you might not.

Each RA case requires an individualized analysis. Failure to follow the process could result in a finding against the agency – plus potential exacerbation of the employee’s medical conditions.

In a recent EEOC decision, the complainant, who had fibromyalgia, fibromyoma, chronic pain, cancer in remission, and arthritis, received the below accommodations:

  • A maxiflex work schedule;
  • Three days of telework per week (Monday, Tuesday, and Wednesday);
  • A requirement to report to the office on Thursdays; and
  • Fridays off.

On Nov. 21, 2019, the complainant’s supervisor met with her and with the Reasonable Accommodation Coordinator (RAC) about revising the existing RA to:

  • A compressed work schedule (10-hour days Monday – Thursday);
  • Three days of telework per week (Monday, Tuesday, and Thursday);
  • A requirement to report to the office on Wednesdays; and
  • Fridays off.

The complainant objected, explaining the change in schedule was not compatible with her medical limitations. The RAC sought additional medical documentation to support the complainant’s claim that a Thursday “in-office” day was part of her medical treatment plan.

According to the case, “The RAC’s questions included: ‘Is [Complainant] capable of reporting to the office on Wednesdays? If not, provide the specific medical need (with an explanation) that does not allow her to report to the office on this day.’”

The complainant’s physician responded on Dec. 5, 2019, informing the agency the complainant’s medical treatment plan included telework three days a week with Thursday, specifically, as her weekly “in-office” day:

The letter explained why a Thursday “in-office” day benefitted complainant in terms of managing the symptoms of her disabilities and explained how a change to her “in-office day would negatively impact her medi[c]al treatment plan.” The RAC deemed the reference to a medical treatment plan to be too vague, so around Dec. 26, 2019, the RAC sent the complainant’s physician another information request to include a “specific medical reason/need (i.e. include the specific type of medical treatment in your medical plan) that prevents [Complainant] from reporting to the office on Wednesdays.”

On Jan. 20, 2020, the complainant’s physician again responded, informing the agency the treatment plan included medication, therapy, and mandatory extended continuous periods of rest on Fridays, Saturdays, and Sundays, in order to mitigate the complainant’s symptoms.

The documentation further stated the change to Wednesdays “is not advisable” and “would be detrimental to [Complainant’s] treatment and health” because if the schedule changed the complainant would:

  • Experience medical challenges managing the symptom[s] and side effects of her medication;
  • Not [be] able to have the extended period of rest without missing work;
  • Encounter negative impacts managing her pain;
  • Experience intensification in her sleep disturbance, fatigue; and
  • See increases in additional side effects from her medication.

The RAC still deemed the physician’s response insufficient, so she again sent the Dec. 26 request for information about the specific type of treatment that would prevent the complainant from reporting on Wednesdays; neither the physician nor the complainant provided further documentation.

On Mar. 9, 2020, the complainant received a notice from her supervisor, informing her that her existing RA had been modified and that her in-office day would be Wednesdays beginning Mar. 16. The complainant requested the agency reconsider but was denied, so she appealed to the EEOC.

On appeal, the EEOC found that the Dec. 5, 2019, response from the physician “was sufficient to support Complainant maintaining Thursday as her ‘in office’ day” because the physician provided specific rationale, stating the existing treatment plan “has decreased the severity of [Complainant’s] symptoms, stabilized her condition and delayed progression of her medical condition,” and warned that a change in schedule would be “detrimental to her condition, mobility and treatment.”

The Commission also disagreed with the supervisor and RAC’s assessment that the medical documentation supported that the complainant could change her “in-office” day to Wednesday.

While the agency is permitted to ultimately choose an employee’s accommodation, the RA must be effective.

In this case, the Commission said that management’s insistence on moving the in-office day to Wednesday, which resulted in the complainant having to work the next day rather than rest, rendered her reasonable accommodation “far less effective.” In addition, when the supervisor and RAC changed the complainant’s work schedule from maxiflex to compressed, it became impossible for the complainant to “adjust her lunch break to use it in conjunction with her leave for medical appointments or adjust her start or end time to accommodate medical appointments,” which also rendered the accommodation less effective.

The Commission closed by stating, “By modifying Complainant’s long-held accommodations to make them less effective, we conclude the Agency violated its accommodation duties under the Rehabilitation Act.” Cheryl L. v. Treasury, EEOC Appeal No. 2021001710 (Sept. 26, 2022).

For more on this topic, join FELTG on Feb. 16 for the two-hour virtual training Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. Hopkins@FELTG.com

Due Process Lessons From Three New MSPB Cases

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By Deborah Hopkins, December 6, 2022

As we continue MSPB Law Week (next held March 27-31), I thought I’d share a few of the new Board’s decisions on appellant allegations of due process violations. From my read, the Board seems to be closely following four decades of precedent in its decisions.

Lesson 1: A refusal to extend the response period is not a due process violation.

In proposed removals and other appealable actions, appellants are entitled to a statutory minimum of 7 calendar days to respond to the deciding official (DO) under 5 U.S.C. § 7513(b)(1). In a recent case, the agency’s notice of proposed removal gave the appellant a full 14 days to submit any written or oral responses to the DO. The appellant requested an extension on this 14-day timeline, which the agency denied.

Nevertheless, the appellant sent a written response that the DO received after the 14-day window. According to the case, the DO had already decided that the removal action was warranted, yet she still considered the appellant’s late-filed response. However, it did not change her decision. At that point, because the 14 days has passed, she was under no obligation to consider the appellant’s response. However, having done so, she effectively negated his due process argument. Jones v. VA, CH-0752-15-0286-I-1 (Jul. 21, 2022)(NP).

Lesson 2: Providing fewer than 7 days to respond is not automatically a due process violation.

In this case, the agency proposed a 14-day suspension based on two charges and provided the appellant with 7 days to respond. A few days later, the agency amended the proposal notice to add a third charge and gave the appellant an additional 4 days to respond. Although the 4-day response period was fewer than the 7 days required by statute, “it was not unreasonably short.” Moreover, the DO considered the supplemental written response the appellant provided the day after the 4-day deadline. Because the appellant received notice of the action against her, an explanation of the reasons for the action, and an opportunity to present her response, there was no due process violation.

Another interesting takeaway from this case: The agency did not schedule an oral reply, and the appellant raised a harmful error affirmative defense. The Board held that appellant did not show the lack of scheduling an oral reply constituted harmful procedural error because the appellant was still provided the opportunity to present her side of the case in writing.

For those astute readers wondering how a 14-day suspension ended up before the Board in the first place, the agency split the suspension into two portions to fit around the employee’s 90-day detail to another office and, due to administrative error, the two periods of suspension combined for a total of 15 calendar days, thus constituting an appealable action. Cargile v. Army, CH-0752-14-0056-I-2, CH-752S-13-2680-I-2 (Oct. 3, 2022)(NP).

Lesson 3: Credibility matters in allegations of due process violations.

In this case, the appellant claimed her due process rights were violated on the day she received the notice of proposed removal. On that day, the DO spoke to the appellant’s former coworker and indicated that the agency had terminated the appellant. The appellant claimed the alleged conversation demonstrated that “her subsequent response to the proposed removal was meaningless, rather than meaningful.”

The agency disputed the nature of the conversation and due process claim. According to a sworn statement, the DO spoke with three individuals on the day the appellant received the proposed removal. The DO spoke to a Human Resources point of contact, the appellant’s former Engineering Division Chief, and a former subordinate of the DO who was also friends with the appellant. The DO indicated he spoke to HR about the disciplinary process and the DO’s specific responsibilities, “including those related to the appellant’s due process rights.”

A conflict arose in descriptions of the other two conversations:

  • “According to that former Engineering Division Chief, he specifically remembered asking if the appellant was fired, and the deciding official responding in the negative, instead indicating that the appellant was being given the opportunity to present her case.”
  • “According to that former subordinate of the deciding official and friend of the appellant, the deciding official called him, indicating that the appellant had been terminated earlier that day.”

After weighing the AJ’s credibility determinations, the Board agreed with the AJ that the DO’s version of events was more credible. It denied the appellant’s due process claim. Conde v. DHS, DC-0752-15-1059-I-1 (Nov. 10, 2022)(NP). Hopkins@FELTG.com