Affirmative Defenses: This One is for the Self-proclaimed MSPB Nerds 

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By Deborah Hopkins, July 25, 2022

Did you happen to catch the latest precedent-altering MSPB decision related to affirmative defenses? This one’s a little weedy, but interesting nonetheless, especially to MSPB nerds like myself.

The appellant, a custodial laborer for the USPS, was removed on a charge of improper conduct with specifications including:

  • Telling a coworker that if his [the appellant’s] vehicle was towed from the agency parking lot again, he “would come into work and end up shooting someone out of revenge and anger.”
  • Telling the same coworker that he was having law enforcement follow her because of a verbal dispute the two had a year earlier and that the “only reason [he] didn’t have anything ‘bad’ happen to her was because she has children.”
  • Telling the same coworker, the following day, he was having law enforcement follow and harass a supervisor’s son in retaliation for his vehicle being towed from the agency parking lot and that he would make sure that the supervisor’s son was “booked” for “Driving Under the Influence … and other traffic violations.”

The appellant challenged his removal. In addition to claiming he did not engage in the activity leading to the charges, he also raised an affirmative defense of reprisal for prior protected activity – he had filed an MSPB appeal over an “emergency suspension” he received after the aforementioned misconduct occurred. (If you don’t know what an affirmative defense is, please join us for MSPB Law Week September 12-16 for all you need to know.)

The Administrative Judge (AJ) upheld the removal. However, his decision did not reference the affirmative defense, as that had not come up in any prehearing conference. On petition for review to the Board, the appellant challenged his removal, but did not challenge the fact that the AJ never addressed the affirmative defense.

You with me so far?

Before this case came out, precedential MSPB caselaw required the Board to remand cases for consideration of an appellant’s affirmative defense if the AJ failed to comply with certain procedural requirements. Wynn v. USPS, 2010 MSPB 214. The Board overturned Wynn and other related cases, establishing new criteria for the Board to consider in determining whether an AJ erred in not addressing an appellant’s affirmative defense at the hearing stage. As MSPB’s case report said in its summary, a potential remand hinges on the “ultimate question of whether an appellant demonstrated his intent to continue pursuing his affirmative defense, and whether he conveyed that intent after filing the initial appeal.”

Below is the non-exhaustive list of factors the Board will consider in determining whether a remand is appropriate:

(1) the thoroughness and clarity with which the appellant raised an affirmative defense;

(2) the degree to which the appellant continued to pursue the affirmative defense in the proceedings below after initially raising it;

(3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when specifically afforded an opportunity to object and the consequences of the failure were made clear;

(4) whether the appellant raised the affirmative defense or the administrative judge’s processing of the affirmative defense claim in the petition for review;

(5)  whether the appellant was represented during the course of the appeal before the administrative judge and on petition for review, and if not, the level of knowledge of Board proceedings possessed by the appellant; and

(6)  the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board.

Thurman v. USPS, 2022 MSPB 21 (Jul. 12, 2022).

In this case, the Board applied the above factors and determined that the appellant abandoned his affirmative defense, thus there was no basis for remand. As a result, the Board upheld the removal. We’ll discuss this one and others during September’s MSPB Law Week. Hopkins@FELTG.com

She/Her/Hers, He/Him/His, They/Them/Theirs: Pronouns in 2022

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By Deborah Hopkins, July 18, 2022

There are many polarizing topics (abortion, gun control, COVID-19 vaccines, political affiliation) in this country. We’re going to address another topic that generates feelings almost as strongly in certain circles: pronoun use and gender identity.

Last month, the EEOC introduced a gender marker option X for non-binary individuals who wish to file complaints. The State Department allows gender X on passports and travel documents, and some agencies are considering requiring all employees to identify their preferred pronouns in their email signatures.

Pronouns are an important piece of the gender identity equation, including within the context of the workplace. Refusal to use an employee’s preferred pronoun, or name, has been problematic for agencies in recent years, not just from a liability perspective but because of the impact of the harassment on the complainants.

As more employees share their pronouns in email signatures, on social media, and in participant lists on Zoom sessions, it’s worth a review of the law on this topic.

Pronouns fall under the sex discrimination umbrella of Title VII workplace protections, within the sexual orientation and gender identity (SOGI) category, and violations of pronoun or name use could result in illegal discrimination or harassment. Complainant v. USPS, EEOC Appeal No. 0120122376 (February 19, 2013), request for reconsideration denied, EEOC Request No. 0520130241 (Jan.10, 2014). EEOC recently addressed a specific question in a Q & A document:

Q: Could use of pronouns or names that are inconsistent with an individual’s gender identity be considered harassment?

A: Yes, in certain circumstances. Unlawful harassment includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive. In its decision in Lusardi v. Dep’t of the Army [EEOC Appeal No. 0120133395 (Apr. 1, 2015)], the Commission explained that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment. [bold added]. EEOC’s Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity, Q. 11. [bold added]

While intentional misuse can violate the law, accidental misuse of a transgender employee’s preferred name and pronouns does not generally violate Title VII. EEOC’s Sexual Orientation and Gender Identity (SOGI) Discrimination. Take, for example, Colleen M. v. USDA, EEOC Appeal No. 120130552 (May 25, 2016). In this case, the supervisor referred to the complainant, a trans female, as “Eric” even though the complainant no longer used that name.

There was no evidence the supervisor used that name intentionally, and “when it was brought to [the supervisor’s] attention that he made an error, he went to the union and explained to them that there was no malicious intent, and he apologized to Complainant.” This one instance followed by a prompt apology, did not state a claim.

A number of cases can help determine the point when pronoun misuse becomes severe or pervasive and creates a hostile environment. It’s a topic your agency is sure to deal with more frequently as the Administration continues its advancement of Diversity, Equity, Inclusion, and Accessibility (DEIA) in the Federal workplace. Training is a vital component to getting this right, so please bring your entire agency (supervisors, employees, and contractors) and join me on August 2 from 1 – 2pm ET for the webinar Promoting Inclusion: Pronoun Use and Gender Identity in the Workplace. Hopkins@FELTG.com

Post-Santos: Timing, Precedents, Retroactivity in Performance Cases

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By Deborah Hopkins, July 18, 2022

Most Federal employment law practitioners remember the day last year when the Federal Circuit issued Santos v. NASA. It set a new requirement for agencies to provide substantial evidence of unacceptable performance before implementing a performance improvement plan (PIP).

One of the questions that had lingered for more than a year was how the new MSPB would interpret and apply Santos to the performance-based removals and demotions in its PFR backlog. Would the ruling be retroactive or only apply to performance-based removals after March 11, 2021? Would MSPB reject Santos or try to find a way around it?

Well, because we have a functional MSPB, we now have an answer to those questions, and along with a new framework for agencies to follow in implementing removals or demotions under Chapter 43. Let’s look at the language of the case:

To defend an action under chapter 43, the agency must prove by substantial evidence that:

  • OPM approved its performance appraisal system and any significant changes thereto;
  • the agency communicated to the appellant the performance standards and critical elements of her position;
  • the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
  • the appellant’s performance during the appraisal period was unacceptable in one or more critical elements;
  • the agency warned the appellant of the inadequacies in her performance during the appraisal period and gave her an adequate opportunity to demonstrate acceptable performance; and
  • after an adequate improvement period, the appellant’s performance remained unacceptable in at least one critical element.

The Federal Circuit’s new precedent in Santos applies to all pending cases, regardless of when the events at issue took place.

Lee v. VA, 2022 MSPB 11 (May 12, 2022). [bold added]

The new element here is number 4, proof that the appellant’s performance at any point during the appraisal period (but before the PIP) was unacceptable. While most agencies pre-Santos likely did not make such information part of their removal cases, I imagine (or do I just hope?) that most agencies will be able to provide this information on remand. One of FELTG’s best practices has always been for agencies to keep documentation of the reasons why the supervisor implemented the PIP, even if that information wasn’t given to the employee. Anecdotally, I can tell you that most of the supervisors in my training classes have such documentation before they move to implement a PIP.

What does a remand look like in these cases? In Lee, MSPB ordered that “[o]n remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable. The administrative judge shall hold a supplemental hearing if appropriate.”

Some of you might be wondering why this VA case discusses use of a PIP. Under the 2017 VA Accountability and Whistleblower Protection Act, a PIP isn’t required for the VA to remove an employee for unacceptable performance. That’s because the events in this case occurred before the implementation of the new VA law, and the MSPB agrees with the Federal Circuit “because it is based on performance that occurred several years before the Act went into effect. Accordingly, the appellant’s removal must be adjudicated under chapter 43 on remand.”

One case has provided us with a couple of very important answers to long-held questions. We at FELTG anxiously await the 3,300 remaining decisions yet to be issued. Hopkins@FELTG.com

Don’t Ignore the Reasonable Accommodation Framework: Basic Mistakes Can Cost Dearly

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By Deborah Hopkins, June 27, 2022

The reasonable accommodation process is an entitlement that every Federal employee has a right to pursue, regardless of the job. A recent EEO case, which originated back in 2010, caught my attention.

The case involved 10 complainants who all suffered from a medical condition called pseudofolliculitis barbae (PFB). According to the case, PFB is a chronic bacterial skin disorder that’s caused by shaving facial hair. PFB causes pain, skin irritation, pustules, rashes, sores, bleeding, scarring, and infection. Medically, PFB requires abstinence from being clean-shaven, and predominantly affects African American males.

The complainants worked as police officers, within the Pentagon Force Protection Agency. PFPA police officers are required to wear protective clothing and sometimes use personal protective equipment (PPE), as the job includes defending themselves and others against possible exposure to explosives, chemicals, or other weapons of mass destruction.

In 2010, the agency issued a new regulation that impacted police officers:

Supervisors shall ensure that all emergency response personnel are able to safely wear the Level C [Chemical-Biological-Radiological-Nuclear (CBRN)] PPE Ensemble at any time: facial hair that comes between the sealing surface of the face piece and the face or that interferes with the valve function is prohibited. Emergency response personnel who have a condition that interferes with the face-to-face piece seal or valve function shall not be permitted to wear the Level C CBRN PPE Ensemble. [bold added]

Practically speaking, this new regulation required PFPA Police Officers to be clean shaven because the CBRN ensemble would not seal properly if facial hair was present. The complainants, who up until that point had been permitted to have facial hair a quarter inch in length to accommodate their PFB, were now threatened with reassignment or removal if they did not shave their facial hair. They separately filed EEO complaints, alleging discrimination on the bases of race (African American), color (Black), and disability (PFB).

After a complicated procedural history including EEOC ordering supplemental investigations into the qualification standards for the jobs (which included the need for PPE), EEOC found the standard on facial hair was appropriate because it was job-related and consistent with business necessity to have PPE that sealed properly.

However, the EEOC also found that the agency failed to meet its requirements to consider effective accommodations, namely alternative PPE that would work properly even in the presence of facial hair, because the complainants had all “passed their annual mask fit tests, and there was no evidence that they were unable to perform the essential functions of their position with the waiver or that any incident occurred where they were in danger or risked danger to others due to a respirator mask failure in an emergency situation.”

In this request for reconsideration, the EEOC held to its decision in the original appeal:

In sum, the Commission found the Agency failed to meet its burden of proving that there was no reasonable accommodation that would enable Complainants to meet the existing standard or an alternative approach that would still allow the PFPA Officers to perform the essential functions of their position. The decision concluded the Agency’s imposition of a blanket policy requiring all PFPA Officers to be clean-shaven regardless of their medical condition violated the Rehabilitation Act.

Cleveland C. et al. v. DOD, EEOC Request No. 2020003894 et al. (Apr. 4, 2022).

Now 12 years later, we finally have an outcome. The agency missed one of the basic pieces of the framework: Consider alternative accommodations that will still allow employees to perform essential functions within their medical restrictions. I can’t help but wonder what the damages will amount to in this case, given that 10 complainants were impacted for over a dozen years.

As employees are returning to the physical office and different workplace standards are being implemented in this post-pandemic world, agencies should remember that every reasonable accommodation request should be given an individualized assessment. This is but one of the many aspects of the process that we’ll be discussing in our upcoming Reasonable Accommodation in the Federal Workplace webinar series, which begins July 21. Hopkins@FELTG.com

Biggest MSPB Decision in Over a Decade: The Comparator Framework for 2022 and Beyond

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By Deborah Hopkins, June 21, 2022

We’ve had a quorum for more than three months and a full front office at the MSPB for about three weeks. And now, thanks to what might be the most significant case issued in over a decade, we have a clear, specific, and reasoned answer about who counts as a comparator employee in an adverse action under Douglas factor 6.

Why is this such a big case? In its first three decades when assessing appropriate comparators, the Board required there to be a close similarity in offenses, and generally that comparators worked in the same unit, and worked for the same supervisors. Anything further out was too far removed to be reasonable for the agency to consider. See Jackson v. Army, 99 MSPR 604, ¶ 7 (2005); Fearon v. Labor, 99 MSPR 428, ¶ 11 (2005); Rasmussen v. USDA, 44 M.S.P.R. 185, 191-92 (1990); Archuleta v. USAF, 16 MSPR 404, 407 (1983).

Those of you in the business in 2010 probably recall when the Board changed the comparator framework. It issued what we at FELTG started referring to as the Terrible Trilogy:

  • Woebcke v. DHS, 2010 MSPB 85
  • Lewis v. VA, 2010 MSPB 98
  • Villada v. USPS, 2010 MSPB 232

In case you weren’t around back then, or you’ve forgotten since it was a long time ago, we called those cases The Terrible Trilogy because they expanded the comparator analysis to include nearly anyone in the agency who engaged in broadly similar misconduct to the appellant.

This created a huge burden for agencies, particularly the large agencies, to determine which employees had been disciplined for misconduct and then to apply a consistent penalty to all employees who engaged in somewhat similar conduct, regardless of their location, their job duties, or their supervisors. It also caused potential problems for agencies when employees engaged in specific acts of misconduct but weren’t disciplined at all, which is a too-common occurrence in the Federal government.

At FELTG, we are all about fairness of penalty. However, we felt that this broad requirement was cumbersome and unnecessary to fulfill the intent of the Douglas factors. And, according to the new MSPB in this precedent-setting 2022 case, under the Terrible Trilogy standard “the universe for potential comparators was seemingly limitless” and broader than Douglas requires. Singh v. USPS, 2022 MSPB 15 (May 31, 2022).

The Board also said of the Trilogy framework: “[I]n some cases the consistency of the penalty has become not only more important than any of the other Douglas factors, it has become the sole outcome determinative factor. We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty.”

Who is a comparator employee today under Douglas factor 6, consistency of penalty?

  • Employee in the same work unit,
  • With the same supervisor,
  • Who engaged in the same or similar misconduct as the appellant.

In most cases, employees from another work unit or supervisory chain will not be proper comparators. There is an exception when, in certain unique circumstances, an employee from another work unit or supervisory chain might be a comparator for penalty purposes – but only if there is an “unusually close connection” in the type of misconduct. And even still, comparator employees cover just one of the 12 Douglas factors.

A few other notable words from the Board in Singh: “In assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently…We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty.” [bold added]

Therefore, the Terrible Trilogy and their related cases are overruled, and the question that has been lingering for over half a decade (What will be the fate of the Trilogy under a new Board?) finally has an answer. We’ll be discussing this case, plus others, in much more detail on July 20 during the virtual class Back on Board: Keeping Up with the New MSPB. Hopkins@FELTG.com.

Some of These Non-precedential Cases Seem Awfully Precedential to Me

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By Deborah Hopkins, June 13, 2022

The MSPB is operating on all levels once again, now that the third and final nominee, Cathy Harris, was sworn in at the beginning of the month. There have, as of this writing, only been 15 precedential decisions issued by the new Board, but we’ve seen dozens of non-precedential (NP) decisions in the past three months.

According to MSPB:

“A non-precedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite non-precedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law.” See 5 C.F.R. § 1201.117(c).

Despite their NP status, I have found some new lessons in these decisions. One such case that seems consequential to me is Purifoy v. VA, CH-0752-14-0185-M-1 (May 16, 2022)(NP). Take a look at this procedural history:

  • Employee was fired for AWOL (October 2013)
  • AJ mitigated the removal to a 40-day suspension (November 2014)
  • On PFR, the MSPB reinstated the removal (June 2015)
  • On appeal, the Federal Circuit remanded the case back to the MSPB for an independent Douglas analysis (October 2016)
  • Remand goes in the pile that would eventually become a 3,600+-case backlog, and eventually MSPB’s O & O reinstated the removal (May 2022)

If the second to last bullet point made you pause, you aren’t the only one. Ever since the MSPB started operating in 1979, the discipline process has worked like this:

  1. The agency drafts the charge and selects the penalty.
  2. The Board reviews the agency’s penalty determination for reasonableness.

I can’t recall a time when the Federal Circuit ordered the Board to do its own penalty assessment. (That’s not to say it hasn’t happened – but if it has, I don’t recall. And this is certainly a first for THIS Board.) As we have taught in MSPB Law Week for 20-plus years, the Board must give due weight to the agency’s discretion in exercising the managerial function of maintaining employee discipline and efficiency. The Board’s function is not to displace management’s responsibility but to assure that managerial judgment has been properly exercised within the tolerable limits of reasonableness.

So here we are. A bit more on the facts of this case. The employee, Lamonte Purifoy, was employed by DVA as a WG-2 Housekeeping Aid. He was jailed for six months due to drug use, and the VA fired him based on two charges:

  1. Two days of AWOL
  2. Six subsequent months of AWOL while in jail

On appeal, the AJ held that only 38 days of Charge 2 warranted AWOL. As the severity of the Charge 2 was reduced and because the AJ believed the employee showed a potential for rehabilitation, the AJ mitigated the removal to a 40-day suspension. On PFR the MSPB reversed the AJ’s mitigation and reinstated the removal, as it found the appellant did not demonstrate a high degree of rehabilitation potential.

Upon its review of the case the Federal Circuit decided that the Board members erred by not evaluating Douglas factor 12: “The adequacy and effectiveness of alternative sanctions to deter such conduct in the future,” although the AJ had done so, thus the basis of the remand.

In its assessment on remand, the Board looked at the Proposing Official’s testimony which said that he would object to the appellant returning to the workplace because of the negative precedent such an action would set. In addition, the Board was compelled by the Deciding Official’s testimony about deterring similar misconduct by other employees, and the message that imposing a lesser penalty would send. Therefore, this factor supported reinstating the removal penalty.

I talked with Bill Wiley, one of FELTG’s Founding Fathers, about this case and he had some insight about the Board’s decision and its assessment of Douglas factor 12: “When defending a removal penalty, be sure to state what harm would occur if the employee was returned to or remained in the workplace. Often, it can be said truthfully that anything less than removal would send a negative message to other employees. If the employee was disruptive in the workplace before removal, it would be reasonable to predict he would be disruptive if he was reinstated or retained.”

The Board also weighed in on the other Douglas factors. So, while Purifoy is an NP case, it gives us factor-by-factor information on how this new Board views the Douglas assessment. And if you understand the Board’s reasoning in Purifoy, you will be able to better defend the agency’s penalty selection for years into the future.

For more on this and other lessons from the Board, join FELTG for the virtual training Back on Board: Keeping Up with the New MSPB, July 20. Hopkins@FELTG.com

How to Lose a Cook Case – Excessive Absence Removal Requirements Under the New MSPB

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By Deborah Hopkins, May 31, 2022

When an employee is too ill to come to work on a regular basis, it puts the agency in a difficult position: wanting to work with the employee and grant leave in hopes they will eventually recover, but also needing someone to complete the job tasks on a regular basis. In some cases, the amount of leave the agency grants becomes problematic and the agency needs the employee to return to duty.

Generally, an agency cannot take an adverse action for approved absences – and that makes sense. After all, the agency grants the leave, or else the employee has an entitlement to the leave. However, an agency may remove an employee for excessive absence if the agency proves the Cook criteria, as identified in Cook v. Army, 18 M.S.P.R. 610 (1984):

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

A recent MSPB decision, Robinette v. Army, AT-0752-16-0633-I-1 (May 11, 2022)(NP), reminds us the Cook criteria are requirements, not suggestions. The decision reinforces that the Board cannot uphold a removal if the agency does not comply with all three elements in the Cook criteria.

In Robinette, the agency issued the appellant a Notice of Leave Restriction on Feb. 17, 2015, which informed him that his chronic, unscheduled absences were considered excessive and negatively affected the agency’s ability to accomplish its mission.

On May 18, 2016, the agency issued a Notice of Proposed Removal for “excessive absenteeism,” which specified that from Feb. 21, 2015, through April 16, 2016, he was absent 939.3 hours out of a total of 2103.7 available duty hours (almost 45%). The agency removed the employee on June 24, 2016, and he filed an appeal to the MSPB.

In the initial decision, the administrative judge (AJ) found the agency’s action was properly predicated upon approved leave, including annual leave, sick leave, and Leave Without Pay, but that the Leave Restriction Letter did not meet the second element of the Cook criteria; it did not inform the employee his approved absences could lead to removal if he did not become available on a regular basis. So, the AJ reversed the removal.

On Petition for Review, the agency argued that it had suspended the employee in November 2014 and April 2015 for “failure to follow proper leave procedures” and that the statement in the decision letters “[y]ou are cautioned [that] any repetition of this or similar offenses may result in more severe disciplinary action against you” met element 2 of the Cook criteria. Because neither decision letter was part of the record, the Board refused to consider anything except the February 2015 Leave Restriction Letter, which the Board also found did not meet the second Cook requirement.

Excessive absence removals are highly technical. Reading this case reminded me of a VA case from a few years ago where the agency’s removal was reversed because the warning letter told the employee that if he did not return to work, he would be disciplined, but it did not say that continued absence on approved leave would warrant his removal. Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016)(ID).

As we teach in all our classes, words matter. For more on this and other leave-related challenges, join us virtually for Absence, Leave Abuse & Medical Issues Week, June 13-17. Hopkins@FELTG.com

That Time a Supervisor Was Harassed by His Employee for Being Gay – and the Agency Was Liable

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By Deborah Hopkins, May 16, 2022

Every now and then, a supervisor in one of my classes will ask if they have a right to file an EEO complaint alleging harassment by a subordinate employee. I’ll tell them yes, they do have that right. I also tell them handling the harassment as a conduct issue is a much quicker process that yields rapid results and allows the supervisor to avoid the EEO complaint process entirely, if they prefer not to file.

How so, you might wonder?

Well, a supervisor who believes a subordinate is harassing him must simply set a rule of conduct (for example, do not refer to me as a “f*g” or “f*ggot”), and then discipline the employee if she violates the rule. [Note: We are using asterisks so that your agency’s firewall won’t block you from receiving this message. We recommend NOT using asterisks in establishing rules of conduct, reports of investigation, disciplinary letters, or other official agency documents.]

A few days ago, I came across a fairly recent EEO decision where a supervisory health system specialist at an IHS medical facility alleged harassment based on sexual orientation. The harassment was coming from a subordinate. The agency FAD acknowledged unwelcome conduct but said the conduct was not sufficiently severe or pervasive, and the complainant failed to take advantage of a key corrective opportunity provided by the agency.

The complainant was the employee’s supervisor and he did not discipline the employee for the conduct. The complainant appealed the FAD to the EEOC.

The EEOC reversed the FAD and found the agency liable for hostile work environment harassment.

Here are relevant details from the case:

  • Over a 21-month period, the employee engaged in at least nine incidents of harassment based on the complainant’s sexual orientation, including multiple uses of the words “f*g” and “f*ggot.”
  • Seven of these incidents included comments made to other agency staff or directly to, or within earshot of, at least four agency management officials. Examples of the employee’s comments included:
    • “If they want to pay me for fighting with a f*g all day, then I guess that is what I will do.”
    • “I hate [Complainant], that f*cking f*ggot!’”
    • “I have the ear of the Area Director and I am going to report your f*ggot *ss and everyone in this clinic for everything that is going on in this clinic.”
  • The complainant’s immediate supervisor, the CEO, informed him that the employee had been making derogatory comments about the complainant’s sexual orientation directly to the CEO. When the complainant questioned whether the CEO had taken corrective action, the CEO said that she had admonished the employee, and referred the complainant to the EEO Complaint process for next steps. The CEO admitted she did not discipline the employee who engaged in the harassing conduct because “she did not feel that it would be appropriate to interject herself …” into the situation.
  • The complainant said that he made multiple attempts to discipline the employee, but that the discipline was returned to him. The agency did not present a rebuttal to this statement.

Taking these facts into consideration, the Commission found a hostile work environment based on sexual orientation. It attributed liability to the agency because management officials did not take prompt and effective action once they became aware of the employee’s conduct. The Commission said it was improper for the agency to place the onus on the complainant to discipline the employee or file an EEO complaint, and further stated:

We remind the Agency that the EEO process is not a substitute for the Agency’s internal process. Moreover, we find that the inadequate responses from Complainant’s chain of command likely emboldened [the employee] to continue harassing Complainant, diminished his authority as her supervisor, and heightened the severity of the alleged incidents. Debbra R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120161305 (Jul. 26, 2016) (finding that when harassment is repeated, a supervisor’s failure to respond to instances of alleged harassment heightens the severity of the alleged act). As such, we find that [the employee]’s actions unreasonably interfered with Complainant’s work environment and management officials failed to take prompt and effective action.

Foster B. v. IHS, EEOC Appeal No. 2019005682 (Apr. 12, 2021).

The case didn’t discuss anything about the returned discipline the complainant alleged, and I can’t help but wonder if that was a deciding factor in the Commission’s decision. One thing is for sure, a lesson learned from this case: Any agency management official who has knowledge of harassing conduct has an obligation to take prompt, effective corrective action – even if the harasser is not in that person’s chain of command. A failure to act can cause agency liability, and potentially immeasurable harm to the victim.

To learn about making the Federal workplace a welcome and inclusive environment, join us on June 9 for Promoting Diversity, Enforcing Protections for LGBTQ Employees. Hopkins@FELTG.com

 

Explaining the Nexus Requirement in Misconduct Cases

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By Deborah Hopkins, May 16, 2022

One of the considerable ways in which Federal employment is different from at-will employment, is that the Civil Service Reform Act allows a Federal agency to fire a career employee only for cause (with a few exceptions we won’t get into today).

An adverse action may be brought “only for such cause as will promote the efficiency of the service.” 5 USC 7513(a); 5 CFR 752.403. This is where we get the nexus requirement. A nexus is defined as a connection or a link.

The specific charges, no matter how they’re drafted, are notice concepts that relate to due process, but efficiency of the service is the legal criteria. The agency needs to prove two things in an adverse action:

  1. The reason, charge, and specified conduct (by the employee) occurred, and
  2. The action (taken by the agency) promotes the efficiency of the service.

Miller v. Dept. of Interior, 119 MSPR 331 (2013)

In law, as well as logic, there must be a clear and direct relationship demonstrated between the articulated grounds for an adverse personnel action and either the employee’s ability to accomplish his/her/their duties satisfactorily or some other legitimate government interest promoting the “efficiency of the service.” Doe v. Hampton, 566 F.2d 265 (D.C. Cir. 1977).

It’s dangerous for agencies to assume the nexus is clear. In most cases, even if an employee engages in egregious criminal conduct, the agency should not rely merely on speculation or an unfounded assertion that the misconduct impacts the efficiency of the service; the agency has the burden of establishing the nexus by specific evidence. Douglas v. Veterans Administration, 5 MSPB 313, 334 (1981); Allen v. U.S. Postal Service, 2 MSPB 582, 584 (1980).

If the misconduct occurs on duty, or using agency resources, it is much easier for the agency to show nexus. MSPB has said it is well-settled that there is a sufficient nexus between an employee’s misconduct and the efficiency of the service when … the conduct occurred at work. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP), citing Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987); Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006). But what if the misconduct occurs off-duty?

The MSPB generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service:

  • a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct;
  • a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers’ job performance, or management’s trust and confidence in the employee’s job performance; and
  • a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. \

See, e.g., Johnson v. Department of Health and Human Services, 22 M.S.P.R. 521, 526 (1984); Merritt, 6 M.S.P.R. at 590-606; Gallagher v. U.S. Postal Service, 6 M.S.P.R. 572, 576-77 (1981).

Here’s an example where the agency properly established nexus: The agency charged the appellant with conduct unbecoming and removed him after it learned the appellant had consensual romantic relationships with three subordinates. Even though no agency policy prevented such relationships, the Board upheld the removal because the agency showed the relationships affected his supervisory role, his interaction with his subordinates was negatively affected, and the appellant’s supervisor lost confidence in the appellant’s judgment. Robacker v. USDA, Fed. Cir. No. 2009-3289 (July 9, 2010)(NP).

And here’s an example when the agency did not properly establish nexus: An FBI agent filmed sexual encounters of himself and another agent without her knowledge. The FBI removed the appellant and using the concept of “clearly dishonest” behavior to establish nexus between the misconduct and the efficiency of the service. The Federal Circuit found the agency’s nexus argument to be too vague. Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009).

Nexus is too important to skip over, so join FELTG and instructor Bob Woods on June 7 for the 60-minute webinar Got Nexus? Accountability for Off-duty Conduct. Hopkins@FELTG.com

The New Board Offers a Lesson on Conduct Unbecoming

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By Deborah Hopkins, May 9, 2022

As new cases start coming out of the MSPB after its 5-year wait for a quorum, cases containing lessons with broad applicability to Federal agencies are still few and far between. But a recent decision, involving an appellant’s removal based on conduct unbecoming a Federal manager, caught my attention. The agency charged the employee with 18 specifications. After a 5-day hearing, the Administrative Judge (AJ) found that the agency failed to prove any of the specifications supporting the charge, and ordered the agency to reinstate the employee. The agency filed a PFR.

In its decision, the Board reiterated that a charge of conduct unbecoming has no specific elements of proof; the agency establishes the charge by proving the appellant committed the acts alleged under this broad label. Then it turned its attention to the specifications, a number of which the Board said did evidence conduct unbecoming, and several that did not. Let’s take a look.

The below specifications are conduct unbecoming.

  • During a meeting with another agency employee, the appellant held up a copy of an email the employee had sent him, which was seeking clarification about pay raises, and the appellant said, “[L]ooking at this email … I found it [expletive] offensive.” (FELTG’s best guess is that the expletive started with the letter “f” and rhymes with “trucking,” which we confirmed after reading the initial decision. And with that please, new MSPB, would you consider ending the practice of sanitizing expletives in your opinions? Let the words speak for themselves.)
  • In a meeting with a fellow manager about outsourcing information technology services, the appellant told the manager about a specific employee who had filed an EEO complaint in order to illustrate that one advantage of outsourcing is that the agency does not have to deal with personnel matters such as EEO complaints.
  • During a meeting with several colleagues, the appellant placed his hand over a Project Director’s mouth to prevent him from making further comments.
  • The appellant intimidated two attorneys who wrote a draft memo for the Director and told them that issuing the memo would be a “career ender.”
  • After he received a Level 3 performance rating, the appellant asked the HR Director to negotiate with the agency’s Acting Director on his behalf for a higher rating so that he would receive a bonus, “thus placing the HR Director in the untenable position of either refusing his supervisor’s request or negotiating with his former second-level supervisor for a better performance rating for his supervisor.”

These specifications are not conduct unbecoming.

  • During a meeting with the EEO Director, the HR Director, the HR Deputy Director, and agency attorneys about anonymous EEO complaints, the appellant commented that employees should not be allowed to make anonymous EEO complaints and that they should have more “skin in the game.”
  • The appellant told the agency’s EEO and Diversity Director and an EEO Counselor that he did not believe any of the complaints about the HR Deputy Director, and that if there were any more complaints about her there would be serious consequences. (While the Board found this behavior troubling, the agency’s lack of discipline of the employee when he made the comment several years earlier meant they failed to prove this specification, because the agency “merely [took] “the remedial step of advising the appellant of the legal and policy importance of allowing employees to file anonymous internal complaints.)
  • The appellant stated in front of a group of employees that a fellow senior-level employee should be put on a PIP.
  • The appellant told a fellow manager that the allegations in her grievance against the agency’s CIO would be reflected in the CIO’s performance evaluation.
  • The appellant “became agitated” when the Acting Director questioned him about a workplace matter.

Not all 18 specifications are listed; a number of specifications the AJ found the agency did not prove were left undisturbed because of the AJ’s credibility assessments of the evidence at hearing. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP).

Quite a lot in a non-precedential case, wouldn’t you say? We’ll be discussing a lot more takeaways at the July 20 virtual event Back on Board: Keeping Up with the New MSPB. Hopkins@FELTG.com