So, Now Putin Can Claim Whistleblower Reprisal and Get an MSPB Hearing?

,

By Deborah J. Hopkins, November 28, 2022

The MSPB’s most recent precedential decision deals with a Federal contractor (Abernathy) who made a protected disclosure in 2012 when he alerted the agency’s Inspector General that agency officials had misappropriated funds. A few weeks later, Abernathy applied and was not selected for a career position within the agency, so he contacted the U.S. Office of Special Counsel, and after exhausting that potential remedy, filed an Individual Right of Action appeal at the MSPB, claiming his nonselection was in reprisal for his whistleblowing activity under 5 USC 2302(b)(8).

As you might imagine, the agency argued there was no MSPB jurisdiction because Abernathy wasn’t an employee or applicant at the time he made the disclosure; the Administrative Judge (AJ) agreed and dismissed the appeal for lack of jurisdiction.

On Petition for Review the Board, saw it differently: “[The] appellant’s disclosures are not excluded from whistleblower protection simply because he was not a Federal employee or an applicant when he made a protected disclosure,” relying on Greenup v. USDA, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), which said the statute does “not specify that the disclosure must have been made when the individual seeking protection was either an employee or an applicant for employment.” This principle was again iterated in Weed v. SSA, 113 M.S.P.R. 221, ¶¶ 8-12 (2010). Despite three nonprecedential decisions from the Federal Circuit which conflict with this reasoning, the Board chose to follow its own precedent and disregard the Federal Circuit, as its NP decisions are not binding on the Board.

In addition, the Board held, “This holding is not limited to Federal contractors, but applies to any individual who makes a whistleblowing disclosure at any time before becoming a Federal employee or applicant for employment.” Abernathy v. Army, 2022 MSPB 37 (Nov. 15, 2022). (bold added)

I was discussing this case with FELTG Founding Father Bill Wiley and he made an astute observation. “Abernathy has the potential to open up a big new world of whistleblower reprisal. A smart person (e.g., Vladimir Putin) could go public with a reasonable belief that some Federal manager has violated a law, then apply for a Federal job for which he ultimately is not selected, and THEN take advantage of the discovery procedures of his MSPB appeal to dispose all sorts of cool management officials.”

While we at FELTG aren’t sure exactly how far these protections might reach, and we hope it wouldn’t extend to someone like Putin, we can only wait to see this challenged in future litigation – perhaps the Federal Circuit will have something precedential to say one day. In the meantime, join us December 5-9, for MSPB Law Week where we’ll have a more in-depth discussion on this case plus all the new Board cases that matter most. Hopkins@FELTG.com

A New Aggravating Job Type Under Douglas Factor 2

, ,

By Deborah J. Hopkins, November 15, 2022

A brand-new precedential MSPB decision has led me to ask FELTG readers: What charge would you draft, and what penalty would you assess, in this case? Here are some facts:

The appellant, a GS-9 Supervisory HR specialist, made several comments and engaged in conduct toward two subordinates over an 18-month period which made them uncomfortable, including:

  • Calling them “sexy” or “beautiful”
  • Commenting on what a subordinate was wearing, including “you look nice,” and you “should wear dresses more often because [she] has nice legs.”
  • Leering
  • Staring at a subordinate’s rear end
  • Continuing to make comments even after the subordinates told him he had crossed a line
  • Making advances and “hitting on” them

In addition to the above, the appellant spent hours in his office, with the door closed, “with a particular female subordinate employee, reportedly engaging in conversations that were personal in nature, and that he, as a supervisor, should have recognized that his actions could be construed as favoritism and were disrupting his office.” This caused a disruption because the appellant “was often unavailable to assist other [employees].”

A few of the aggravating factors identified in the case:

  • One subordinate employee would hide out of sight in a co-worker’s office when the appellant was around
  • The appellant’s supervisor spoke to him “numerous times” about his inappropriate behavior
  • A 13-day suspension a few years previously for sending pornographic emails using his government-issued computer to another female subordinate employee
  • Disruption in the workplace

And mitigating factors:

  • His length of service and “good performance”
  • The appellant’s claims that he was suffering from stress and tension in the workplace due to his relationship with his supervisor
  • The appellant’s claims that he was suffering from depression

The agency removed the appellant for conduct unbecoming a supervisor, with two specifications — one for his unwelcome conduct toward his subordinates including calling them “beautiful” and “sexy” and the other for his closed-door conduct in his office with the subordinate.

Despite upholding both specifications and thereby affirming the charge, the AJ found removal too severe and mitigated the penalty to a 14-day suspension and demotion, primarily because the conduct did not include “more serious charges such as sexual harassment, making sexual advances, or inappropriate conduct” towards female subordinates.

On PFR, the Board disagreed with the AJ’s characterization of the misconduct and held the AJ “erred in limiting the specification to two instances of the appellant calling female subordinates ‘beautiful,’ and in doing so, trivialized the severity of his behavior.”

The appellant’s misconduct actually spanned several months and went well beyond two instances.

In its review, the Board looked at Douglas factor 2, job level and type, holding in line with MSPB precedent that “because supervisors occupy positions of trust and responsibility within an agency, the agency has a right to expect a higher standard of conduct from them.” Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010). But then it continued:

Furthermore, while the appellant’s misconduct would be serious in any context, when considered in the context of the appellant’s position as a Supervisory Human Resources Specialist, we find his misconduct to be exceptionally serious. The importance of a healthy and effective human resources department for an agency cannot be overstated … Human resources employees, such as the appellant, play crucial roles in maintaining the quality of public service, because it is the responsibility of the human resources component of an agency “to retain Governmentwide approaches, authorities, entitlements, and requirements” in areas including “[a]ccountability for adherence to merit system principles” and “[e]mployee protection from prohibited personnel practices.” [bold added]

The Board held that the appellant’s conduct was “antithetical” to his responsibilities as a Supervisory Human Resources Specialist and “strikes at the very core of his job duties to assist in protecting the merit systems principles and prevent prohibited personnel practices.” Therefore, removal was within the bounds of reasonableness. Thomas, IV v. Army, 2022 MSPB 35 (Oct. 20, 2022).

The big takeaway from this case is that in addition to supervisors, LEOs, and SESers, HR employees may also be held to a higher standard under Douglas factor 2.

We discuss this case and others in detail during MSPB Law Week, December 5-9. Hopkins@FELTG.com

EEO Reprisal is (Unfortunately) Alive and Well

, , ,

By Deborah J. Hopkins, November 15, 2022

Reprisal, or retaliation, is alleged in about half of all EEO complaints. It is the most common basis of discrimination in findings against agencies. Let’s look at a few situations where the EEOC has issued findings of EEO reprisal: reassignment, discipline, and retaliatory harassment.

Reassignment

An agency is permitted to reassign an employee for any legitimate, business-based reason, such as employee performance or agency business needs. But reassigning an employee that management views as a problem because of her EEO activity is not permitted under the law.

A Federal Bureau of Prisons medical officer complained about harassment “in the form of harsh supervision, denial of adequate staff assistance, daily intimidation, differential treatment, inappropriate schedule changes, and desecration of her religious practices.” According to the Commission, management reprised against the complainant when they told her she was “the problem” and “the one causing all of the drama” and that “problems always surround her.”  The AJ also found the complainant was subjected to reprisal when management reassigned her to a different work location. Gwendolyn G. v. BOP, EEOC Appeal No. 2021001396 (Oct. 18, 2021).

Disciplinary action

An agency is permitted to discipline an employee for misconduct as long as there is a nexus between the misconduct and the efficiency of the service, and provided the discipline is not motivated by that employee’s protected category or activity.

A program analyst filed an EEO complaint against two supervisors alleging hostile work environment harassment on Aug. 12, 2016. On Aug. 29, the supervisor reprimanded the complainant for discourteous behavior that occurred between the complainant and her supervisor on Aug. 10. The supervisor never put the reprimand in the complainant’s eOPF despite her statement she intended to do so.

The EEOC found a causal connection between the complainant’s protected activity and the agency’s disciplinary action because of the “close temporal proximity” between the two events. The AJ concluded, and the EEOC agreed, the reprimand was issued for the purpose of chilling the complainant’s EEO activity. Karolyn E. v. HHS, EEOC Appeal No. 2021003151 (Oct. 19, 2021).

Retaliatory harassment

Creating a hostile work environment because a complainant engaged in protected activity also violates the EEO statutes.A supervisory criminal investigator claimed retaliatory harassment when he was warned he “better be careful” and that if he continued to file EEO complaints “they will come after him.” An agency management official also confirmed that she informed the complainant about the comments and management’s attempts to legally “stop” his EEO activity. On top of that, another management official stated he believed the complainant’s EEO complaints were “ridiculous.” Also, agency management failed to timely approve or acknowledge the complainant’s leave requests, denied his telework request, and issued him a counseling memorandum without following the agency’s discipline policy. The EEOC found this conduct was motivated by the complainant’s protected activity and constituted unlawful retaliatory harassment. Terrance A. v. Treasury, EEOC Appeal No. 2020002047 (Sept. 13, 2021), request for reconsideration denied, EEOC Request No. 2022000139 (Feb. 9, 2022).

Reprisal is something easily avoided if you have the proper training and awareness. We’ll be teaching EEO counselors how to identify potential reprisal during our Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training Jan. 23-26, 2023. Hopkins@FELTG.com

How Do You Feel About This 2-1 MSPB Decision?

,

By Deborah Hopkins, October 24, 2022

FELTG Nation, we have our first 2022 MSPB decision with a dissent! Let’s take a look.

The appellant was a GS-14 Security Specialist at DTRA. One morning, he put food from the cafeteria’s self-serve breakfast buffet in a container, paid for it, and put the container in a bag. He then returned to the breakfast buffet, removed the container from the bag, put more food in the container, and returned the container to the bag. He then left the cafeteria without paying for the additional food, which was valued at $5.

A cafeteria employee who witnessed the incident reported it to her supervisor, and the matter was referred to the OIG. Investigators interviewed the appellant and the cafeteria employee, reviewed the video surveillance footage, and concluded that the appellant “knowingly took food from the cafeteria without rendering payment.”

The agency proposed removal based on a charge of larceny in violation of 18 U.S.C. § 661. The Deciding Official (DO) upheld the removal.

On appeal, the appellant claimed his failure to pay for the second helping of food was inadvertent and occurred as a result of his Type 2 diabetes. He stated that he urgently needed to eat because his blood sugar level was low, and that his fixation on eating caused him to lose focus on paying for the additional food.

The Administrative Judge (AJ) assessed the appellant’s credibility and determined the blood sugar argument was not convincing. The judge also noted the appellant failed to exhibit a clear, direct, or straightforward demeanor during his testimony. In addition, his testimony was not consistent with the record evidence, including the cafeteria video footage.

On PFR, Members Harris and Limon held that the DO failed to appropriately consider all relevant Douglas factors in determining the penalty.

The de minimis nature of the theft. The DO said that “what matters is the action,” and someone who would steal “has a character flaw” and “should not be working as a senior security professional … with a security clearance in the Department of Defense.”

The appellant’s 30 years of discipline-free service and the appellant’s outstanding performance record.

The DO referenced these factors as “NEUTRAL” and at hearing that she considered these factors irrelevant because stealing “shows a character flaw.”

The Board majority said the DO should have considered those factors as mitigating, rather than neutral.

Another interesting piece of the case: Although not addressed by the DO or the AJ, the Board held that the appellant did not have custody or control over the stolen items as part of his official duties. The Board considered this a mitigating factor as well. The outcome: “A 90-day suspension recognizes the seriousness of the offense and its severity.”

Member Leavitt disagreed with his colleagues. In the dissent, he said the agency should have received penalty deference. His explanation relied on video evidence of the appellant that indicated he was hiding from a police officer in the cafeteria and, therefore, was aware of his actions. In addition, the appellant initially answered the OIG investigator’s question denying the conduct, then changed his story when shown the security video.

Member Leavitt also wrote that he believed the DO considered all the DFs, and properly determined that the mitigating factors were outweighed by “the level of responsibility, the fiduciary responsibilities, and the expectation of exemplary personal conduct.” His impression of the penalty: “To me, the deciding official clearly demonstrated that she considered all specific, relevant mitigating factors before determining the penalty and showed that the agency’s judgment to impose a removal did not clearly exceed the limits of reasonableness.”

Chin v. DOD/DTRA, 2022 MSPB 34 (Oct. 7, 2022).

In speaking with students and with other FELTG instructors about this case, I’ve concluded that not everyone will agree with the outcome.

  • Some of you will agree with the Board because a removal seems too severe for such a small amount of money.
  • Others of you might think that removal was warranted given that the conduct violated the law.
  • Some of you might personally disagree with the removal but acknowledge that the agency should receive deference on the penalty, as it was not outside the bounds of reasonableness.
  • And others might think a different penalty was appropriate.

Let’s continue the discussion December 5-9 during MSPB Law Week. Hopkins@FELTG.com

Why F-Words Get Agencies in Trouble

, ,

By Deborah Hopkins, October 18, 2022

For as long as we’ve been a company (since 2001, in case you’re wondering), FELTG has taught agency reps and supervisors that if you’re charging misconduct that begins with an f-word (falsification, fraud, false _______, etc.), you’d better make sure you have evidence the employee intentionally provided false information. Otherwise, you will lose the charge, which often means losing your case.

So, it was no surprise to see a recent MSPB decision, Conaway v. Commerce, CH-0752-16-0166-I-2 (Sept. 22, 2022)(NP), that overturned an agency’s discipline because of an f-word the agency couldn’t prove. The real heartbreaker is that this case cost the agency eight years and more than a quarter million in back pay, thanks to the lack of quorum at the MSPB. And to be fair, it also dragged out for eight years on the appellant’s side which is no picnic either.

In Conaway, the agency removed the appellant, a Census Bureau GS-6 Field Supervisor, on one charge of providing false information regarding Census Bureau questionnaires, with one specification regarding a March 24, 2014, interview.

The MSPB equates this type of charge to one of falsification. In order to have a falsification charge upheld, the agency must prove the following by preponderant evidence:

  • the appellant supplied incorrect information; and
  • did so knowingly with intent to defraud, deceive, or mislead the agency for her own private material gain.

Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014).

The basic premise of Conaway’s misconduct was that she entered information into a survey form she had obtained in a months-earlier interview with a questionnaire respondent, even though procedures required her to ask the respondent questions and enter information in the current interview (held March 24, 2014). At hearing, Conaway presented unrebutted testimony that the respondent had provided her with information during an interview weeks prior to the March 24 interview, and had told her that “nothing had changed” during her phone conversation with the respondent about the March 24 questionnaire.

Here’s how the case fell apart for the agency, according to MSPB:

[While] the record clearly established that the appellant entered information into the survey …that she did not obtain from the March [24], 2014 interview, the agency has not provided any evidence suggesting that this information was incorrect, as required to prove a charge of falsification. To the contrary, it is likely this information is correct given the appellant’s unrebutted testimony…

Moreover, even if this information was incorrect, we find that the appellant had a reasonable good faith belief in the truth of the information, which precludes a finding that she acted with deceptive intent. Therefore, we find that the agency has not proven a charge of falsification.

Although the appellant’s handling of the … survey may have been contrary to established procedures or otherwise improper, the agency did not assert such a charge against her. Rather, as stated above, the agency charged her with providing false information … The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency and may not substitute what it considers to be a more adequate or proper basis. Therefore, we cannot sustain a charge of failure to follow survey procedure against the appellant, and such failure cannot serve as a basis to sustain a charge of falsification. In light of the foregoing, we reverse the initial decision in part and do not sustain the appellant’s removal. (Citations omitted.)

I talked to FELTG Founder Bill Wiley about this case. He believes the agency made two notable mistakes, both of which FELTG addresses in our training:

  1. If you charge The Effing Word (Falsification), you have to prove, inter alia, that the information provided is false. That’s straight from the Charges day of MSPB Law Week, next held December 5-9. Here, although the employee did not follow procedures, the actual information provided was in fact true. Therefore, bye-bye Effing charge.
  2. The agency did a decent job of describing how the employee failed to follow procedures. However, they did that in some sort of “Background” section rather than in the “Charge” section of the proposal. Agency representatives who attend FELTG’sMSPB Law Week and learn not to waste words in a Background section hardly ever have to tell payroll to cut a backpay check for over a quarter of a million dollars.

We hope this helps you think twice before the next time you charge an F-word. Lots to learn from these new Board cases, and lots of lessons re-affirmed too.

Don’t Forget the Accommodation of Last Resort

, ,

By Deborah Hopkins, October 18, 2022

In our Reasonable Accommodation training classes, we at FELTG focus on the framework set out in the law. It’s the best way to ensure your agency is handling every request appropriately. Here’s the basic approach once it’s been established the employee is a qualified individual with a disability. This is the approach that FELTG founding father Bill Wiley calls the Accommodation Three-Step:

  1. Look for a reasonable accommodation that will allow the employee to perform the essential functions of the job (by engaging in the interactive process) without causing an undue hardship.
  2. If accommodation is not possible, consider the accommodation of last resort: a reassignment to a vacant, funded position for which the employee is qualified, at the current grade level.
  3. If nothing is available at the employee’s grade level, look for a vacant, funded position at a lower grade level.

A recent case, Shanti N. v. IHS, EEOC Appeal No. 2019004882 (Sept. 14, 2021), illustrates how problematic it can be when an agency stops at Step 1. In Shanti N., the employee, a GS-9 staff analyst, requested full-time telework to accommodate her medical conditions (TBI, PTSD, and pregnancy). Her supervisor denied the request because in 2017 when the events of this case occurred, staff analysts were required to be in the office full-time because of the customer service nature of their positions.

(This might be a good time to mention that things have changed since then, and FELTG is holding a class on November 17 titled Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, where we’ll discuss how telework has altered Reasonable Accommodations – and much much more.)

Back to Shanti N. Once her telework request was denied, she requested a reassignment to a telework-friendly position. Her supervisor agreed, but then made no effort to conduct a search for a vacant, funded position.

According to the case, agency HR “experienced difficulties in completing the reassignment process because [the agency] had a policy of giving absolute hiring preference to Native Americans and Alaskan Natives and Complainant was neither.” The supervisor then explained that it would be difficult to reassign the complainant to another position in the agency because the complainant would have to compete for a vacant position and would be discounted by a candidate with “Indian Preference.”

On the alternative side, the complainant exercised her diligence and actually identified several positions for reassignment in another subcomponent of the agency. When she made these suggestions, the agency indicated it would be unable to complete the reassignment, and that it was on the complainant to obtain and secure the  reassignment on her own.

As you can imagine, the EEOC did not take this well. They found the agency did not meet its obligation to identify vacant reassignment positions, or to confirm whether the Indian Preference policy would actually prevent a reassignment.

In addition, the EEOC found that the agency had not shown that reassigning the complainant would be an undue hardship, and it failed to engage in a good faith search for a reassignment, which violated the Rehabilitation Act.

A simple mistake that ended up being quite costly, not just to the agency but to the employee as well. Don’t let it happen to you. Hopkins@FELTG.com

WIGI Documentation Can Justify a PIP Under Santos

,

By Deborah J. Hopkins, September 19, 2022

I don’t know about you, but I am still loving the fact that we have a fully functioning MSPB again. While you might be tempted to skip over the non-precedential (NP) cases, you should rethink that because we have found several jewels in NP cases over the past six months.

One of the the trends we’ve seen in 432 actions – performance-based removals and demotions – is that the MSPB has been remanding cases if the record doesn’t contain substantial evidence of unacceptable performance that justified the agency’s decision to place the employee on a PIP. And because that requirement didn’t exist until March 22, 2021 (Santos v. NASA, No. 2019-2345, Fed. Cir. Mar. 11, 2021; see also Singh v. USPS, 2022 MSPB 15 (May 31, 2022)), most of the 432 cases are being remanded on this point. Santos never explicitly stated what types of evidence agencies could use to justify the PIP, instead ruling, “we are not prescribing any particular evidentiary showing with respect to the employee’s pre-PIP performance. Performance failures can be documented or established in any number of ways.”

So, one of the items that jumped out at me in a brand-new case (Slama v. HHS, SF-531D-15-0266-I-4; SF-0432-16-0496-I-1 (Aug. 24, 2022)(NP)) is we now know at least one type of evidence the Board will consider in pre-PIP unacceptable performance determinations.

A bit of history first: In Slama, the appellant’s performance problems started in 2011. Bigger problems emerged in performance year 2013, and he received a Level 1 summary rating in 2014. His unacceptable performance that year led to the denial of a Within Grade Increase (WIGI), which he appealed to the MSPB. For reasons not explained in the case, the appellant was not put on a PIP until 2015 after he received yet another Level 1 summary rating. The appellant failed the PIP and the agency removed him later that year. He appealed … and into the backlog the new case went.

Fast forward to 2022, the return of the quorum, and the new Santos requirement. In Slama, the MSPB joined his two appeals (one over the WIGI denial and the other over the 432 action) and, among other things, decided that the material that forms the basis of a WIGI denial can also be used to justify a PIP and meet the Santos requirement. According to the case:

The administrative judge found that the agency demonstrated by substantial evidence that, before being placed on the PIP, the appellant’s performance in the critical elements of administrative requirements, communication, and technical competence was unacceptable [citation omitted]. The administrative judge based her finding largely on the same facts and analysis under which she had affirmed the agency’s [acceptable level of competence] determination in connection with the WIGI denial. ¶25

While WIGI denials are rare, it’s quite interesting (and time saving) that the Board will rely on that same content to show the agency can justify the PIP. It might be helpful for those of you handling the 432 remands to check the WIGI files and see if you have anything you can use. And then join me for Back on Board: Keeping Up with the New MSPB on October 20. Hopkins@FELTG.com

EEOC Case Illustrates the Ugliness of Harassment Based on Disability

, , ,

By Deborah Hopkins, September 12, 2022

Members of the FELTG Nation are likely familiar with EEO cases where agencies fail to accommodate a complainant’s disability, but there’s another ugly side of disability discrimination that sometimes arises – hostile work environment harassment based on the complainant’s disability. We saw this in a fairly recent EEOC case, Damon Q. v. DOD, EEOC Appeal No. 2020003388 (Aug. 9, 2021).

Imagine you have a visible physical disability, and a high-level supervisor mimics your disability and the way you do your job in front of a room full of your co-workers. This exact thing – and more – happened to a supply technician at DLA, a left-hand amputee who, among other things, alleged:

  • During a safety re-enactment meeting in front of the workgroup, the Director mimicked the complainant’s physical disability by “put[ting] his arm up with his elbow bent” and demonstrating the way the complainant performed the task, which humiliated and embarrassed him.
  • After the meeting, the complainant approached the Director to talk to him about his conduct during the meeting, and the Director responded in an intimidating manner.
  • While walking away from the Director because of his intimidating response and mannerisms, the Director walked behind Complainant talking aggressively about his physical disability.
  • A few weeks later the complainant received an email from the safety representative stating that the complainant chose not to come to the regularly scheduled meeting because he did not want to participate in management meetings. This was a misrepresentation of his request to not be required to interact with the Director who had mimicked his disability.

EEOC looked at the facts of this case and disagreed with the AJ, who granted summary judgment for the agency. Interestingly, though, the Commission said the material facts were not in dispute and summary judgment was appropriate – for the complainant. The Commission found the agency created a hostile work environment because the unwelcome conduct based on the complainant’s disability was sufficiently severe or pervasive:

“…[W]e note that in evaluating whether the conduct is severe or pervasive enough to create a hostile work environment, the harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. (citation omitted). In this case, we note that Complainant attested that he felt threatened, embarrassed, and humiliated by the Director’s impersonation of him with his impairment during the safety reenactment. Complainant maintained, moreover, that the Director was also aggressive towards him after he complained to the Director that the mimicking of his disability was offensive towards him. We note that employees observed that Complainant and the Director engaged in a “heated” conversation after the reenactment, and a Material Handler attested that he observed the Director getting closer and closer to Complainant to the point of Complainant putting his arm up between the two of them. As noted above, the Director did not dispute that he demonstrated the crate inspection as if he had no left hand to show that Complainant was not properly performing the task…

According to Complainant, he was so humiliated by the Director’s mimicking of his disability in criticizing his performance in front of employees that he communicated to the Deputy Director, among others, that he no longer wished to attend meetings wherein the Director would be present. Rather than immediately addressing Complainant’s request and concerns of a hostile work environment, the Agency generated CAC meeting minutes noting that Complainant did not want to attend the meeting because he did not want to meet with management. Complainant further received emails wherein he was accused of having a conflict with management. Complainant believed that the meeting minutes and the emails cast him in a negative light, as he only wanted to be away from the Director and did not have a conflict with management as a whole. Upon review, we determine that a reasonable person in Complainant’s circumstances would find that management’s actions were severe enough to create a hostile work environment based on disability… (Damon Q., above, p. 8-9).

The EEOC found the agency liable because the actions were committed by a director and the agency did not take prompt, effective corrective action. When handling disability cases, be careful not to stop at reasonable accommodation, but also be aware that harassment isn’t part of the equation. We’ll discuss in more detail during the virtual event EEOC Law Week, September 19-23.  Hopkins@FELTG.com

Q&A About the Douglas Factors Under the New MSPB

, ,

By William Wiley and Deborah J. Hopkins, August 22, 2022

In a recent MSPB case law update (the next one is October 20, if you’re interested), we discussed the Douglas factors and the new comparator analysis the Board laid out in Singh v. USPS, 2022 MSPB 15 (May 31, 2022). This dramatic change in precedent inevitably led to questions, which we thought were worth sharing with FELTG Nation. So here goes.

Q: For the comparator analysis under Douglas, is it required that the Deciding Official (DO) in her decision letter specify or identify any comparable cases, or is it sufficient to state, for example, “in consultation with HR, I considered how the agency addressed similar misconduct in the past.” Wondering what evidence, if any, needs to be put forth in the decision letter regarding comparators.

A: The best practice is for the DO not to consult with anyone they don’t need to. The requirement is for the DO (and the Proposing Official, or PO) to consider misconduct cases they know about that have the characteristics of “same-or-similar misconduct” we discussed in the training. If the DO knows of any cases that fit that definition, or if she decides to ask HR for same-or-similar cases (even though she doesn’t have to), good appellant’s lawyer will grill her on appeal about what those cases involve, and why she felt that they were different. In detail. If the PO/DO were to reference asking HR for same-or-similar situations, and the HR advisor says that there were none, then that HR advisor becomes the appellant’s witness who will be expected to provide details of the cases surveyed.

Unlike expected testimony on appeal, a broad statement will suffice for the purpose of the Douglas factor analysis in the proposal and decision notices. The language we have recommended at FELTG for more than a decade, as long as it is true, is something like: “I know of no other situations in which an agency employee engaged in similar misconduct and was, thereafter, disciplined at a lesser level.”

On the other hand, if the DO/PO knows of similar cases that support the penalty selected, then something like: “In two misconduct cases similar to this situation, removal was determined to be the appropriate penalty.” And finally, if a similar case is known of in which removal was not the selected penalty, something like: “I know of one other case of AWOL in which the employee was not removed. However, in that case there was no significant harm caused by the unapproved absences. In this situation, the employee’s absences caused the agency to expend $5,000 to hire a contract replacement.” Or whatever the distinction may be.

Q: What is the rationale for separately attaching a Douglas factors worksheet instead of solely discussing it within the proposal notice?

A: We’ve seen numerous cases over the years in which the proposal or decision notice contained the Douglas factor considerations along with the misconduct charges. Unfortunately, doing so has the potential of confusing the Board as to which fact statements are relevant to the charge and which are relevant to the penalty. We have learned from history that the MSPB generally expects us to prove every factual assertion relative to the charge (due process requirement), but only most of the fact statements relative to the penalty, although proving everything is always ideal. Therefore, when the misconduct facts get mixed with the penalty facts, the Board has a problem weighing them. We don’t want the Board to get confused about anything we do.

Separately, using a Douglas factors worksheet forces the PO to go through each of the 12 factors, evaluating those that are relevant and noting which are not. We have seen many cases in which an agency lost the penalty because the PO or DO ignored or failed to adequately address one or more factor. A worksheet reduces the possibility of making this mistake. Administrative judges are trained to assess each of the 12 factors in order. A worksheet lays that out for them to the benefit of the agency.

That said, it is not a critical error to include the Douglas factor analysis in the body of the proposal notice. Clearly delineated and identified as penalty factors separate from the misconduct charge facts, encompassing all 12 Douglas factors would work. But there is no reason you would want to go to that extra trouble and accept that extra risk.

A separate worksheet attached to the proposal notice, as we noted in the recent caselaw in the training, helps the Board understand (and affirm) the agency’s action. It is a good idea without a downside.

One final thought. For goodness’ sake, DO NOT violate the employee’s Constitutional right to due process. The Board will automatically reverse a removal, without consideration as to whether there was any harm, if the DO considers Douglas Factors relied on by the PO, but not communicated by the PO to the employee. See Braxton v. VA, DC-0752-14-0997-A-1, August 12, 2022 (NP).

This really is easy, folks. Just have the PO do a Douglas Factor Worksheet, staple it to the Proposal Notice, and fuhgeddaboudit. Hopkins@FELTG.com

This Isn’t Harassment: Supervision, Not Hostile Work Environment

, , ,

By Deborah Hopkins, August 16, 2022

One of the topics we’ve been discussing in recent FELTG classes is “other harassment,” that is, harassment that’s not based on protected EEO categories. And one of the most common questions we’re asked is this: At what point a supervisor crosses the line from effectively supervising employees to creating a hostile work environment?

Hostile work environment harassment is a term of art in the EEO world, and requires a complainant to

prove three things:

  1. They were subjected to unwelcome conduct,
  2. The conduct was based on their protected EEO category, and
  3. The conduct was so severe or pervasive that it altered the terms, conditions, and privileges of employment.

The below supervisory actions, if exercised in a reasonable manner, are NOT harassment:

  • Assigning work
  • Setting deadlines
  • Creating a work or telework schedule
  • Assessing performance or providing feedback
  • Managing work groups
  • Setting a dress code
  • Disagreement on management style or decisions

The list is not exhaustive. The statute that gives supervisors this authority is 5 USC 301-302, which says the head of an executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business … and to delegate to subordinate officials the authority vested in him … by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency.

Harassment is easy to allege, but not easy to prove. Let’s look at a couple of recent cases.

Case 1

The employee alleged harassment and reprisal when his supervisor avoided him or walked away from him on multiple occasions, and he claimed that his supervisor often responded to his questions by stating he did not know the answer and failed to provide him adequate guidance. He also claimed his chain of command treated him in a “hostile manner” when his supervisor “yelled” at him that he needed to fix something, and when his supervisor “grabbed [his] arm to pull [him] into a room” and “yelled” at him about reporting improper patient care. In addition, he claimed that the chief of staff “yelled at him, accused him of ‘making up our service data,’ and told him to ‘shut up’ during a meeting.

The MSPB, which had jurisdiction over this case because it was an IRA appeal, said that while these actions were indicative of an “unpleasant and unsupportive work environment,” they did not violate the law. Skarada v. VA, 2022 MSPB 17 (Jun. 22, 2022).

Case 2

In a recent case before the EEOC, a complainant alleged multiple incidents of harassment based on race, color, sex, age, and reprisal. Among the incidents she identified:

  • She received a Letter of Warning (we at FELTG recommend you NEVER issue these)
  • She was told that the Letter of Warning was serious and could lead to future disciplinary actions
  • Her access to work-related databases was revoked
  • A supervisor went through her desk to look for documents
  • A supervisor broke a souvenir that was on her desk
  • She did not receive assistance from upper-level management after she informed them her supervisor was targeting her
  • She was eventually removed

In response to the allegations of harassment the agency provided legitimate reasons for its actions, including that the complainant had engaged in 198 specifications of misconduct, including violations of the Privacy Act and Rules of Conduct of Maintenance of Personnel Records, as well as “unauthorized use of non-public information, intentional failure to observe any written regulation or order prescribed by competent authority, and violating the Rules of Behavior.” Also, the complainant did not respond to any of the charged misconduct.

EEOC said, “The image which emerges from considering the totality of the record is that there were conflicts and tensions in the workplace that left Complainant feeling aggrieved. However, the statutes under the Commission’s jurisdiction do not protect an employee against all adverse treatment … Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Here, the preponderance of the evidence does not establish that any of the disputed actions were motivated in any way by discriminatory.”  Kandi M. v. SSS, EEOC Appeal No. 2021002424 (Apr. 18, 2022)

Want to know more about Other Harassment? Join FELTG for the Federal Workplace 2022 virtual event the last week of August for a session on that very topic. Hopkins@FELTG.com