Know the Warning Signs of Employee Stress and What You Can Do to Help

, ,

By FELTG Staff, October 18, 2022

Project deadlines, that one co-worker who rubs you the wrong way, work-life balance, worries about keeping your job. Sometimes, the stress of work can feel overwhelming. Even with a low unemployment rate, which allows workers more choice in job selection, people are feeling more stressed out than ever when dealing with workplace issues.

We sat down with Shana Palmieri, LCSW, FELTG Instructor, and Chief Clinical Officer and Co-Founder of XFERALL, to find out how managers can help employees ease the tension they have at work.

FELTG: What are some of the more frequent causes of workplace stress?

SP: Reports of stress in the workplace reached an all-time high in 2021 at 43 percent, up from 31 percent in 2009 and 38 percent in 2019.

The impact on employees and employers is significant. Workplace stress leads to employee disengagement.

Current employee disengagement rates are at 50 percent, resulting in a significant loss of employee productivity. Job-related stress is estimated to cost United States Industry $300 billion annually in diminished productivity, absenteeism, and accidents. The main causes of workplace stress are:

  • 39 percent report their workload
  • 31 percent report interpersonal issues/conflict in the workplace
  • 19 percent report juggling work and personal life
  • 6 percent report job security

FELTG: How can supervisors and managers help employees deal with workplace stress?

SP: Based on all-time record highs of employee stress in the workplace and disengagement, it is critical for employers to focus on employee well-being and engagement.

Key recommendations include:

  • Add employee well-being to executive dashboards.
    • Key measurements may include employee engagement, economic cost, turnover rates, productivity, healthcare and disability costs, company reputation, employee attitudes and well-being.
  • Formalize and prioritize employee well-being programs.

It is important to assess and address potential risk factors for employee stress and disengagement:

  • Poor team cohesion
  • Lack of clarity in strategy or objectives
  • Insufficient employee support
  • Hostile work environment, bullying, harassment
  • Employees having little or limited control over their work
  • Poor management and weak communication styles
  • Inflexible work hours/limited PTO
  • Poor safety policies/health risks at the workplace

Employers will improve well-being and reduce disengagement by proactively creating a workplace culture that promotes physical and mental well-being and implementing practices that drive employee engagement.

FELTG: What are some of the warning signs managers and supervisors can look for in  employees which might indicate employees need professional help?

SP: High levels of stress can lead to burnout, mental health conditions and substance abuse. Some warning signs employees may need professional help include:

  • Increasing use or abuse of substances
  • Increased social isolation
  • Increased agitation, low frustration tolerance (can be a sign of depression)
  • Low mood with apathy, difficulty making decisions, tearfulness
  • Increased anxiety
  • Reports or comments concerning suicidal thoughts
  • Extreme fatigue in combination with significant changes in mood
  • A significant change in work productivity and/or decreased quality of interactions in interpersonal relationships

If an employee makes threats to harm themselves or others, it is important to obtain immediate assistance available by calling 911 or the 988 crisis line.

[Editor’s note: For further insight on how to help your employees deal with stress, join Shana on Thursday, March 23, 2023 from 1:00-2:00 PM ET for Grappling with Employee Stress in the Workplace: Improve Performance and Morale in Your Agency.] info@FELTG.com

Confidentially Speaking: Legitimate Reason Needed to Request Medical Info

, , ,

By Michael Rhoads, September 12, 2022

Think of a personal secret you’ve been keeping.  Now imagine that, as part of an investigation, you must divulge that secret. You assume that the investigators will keep the secret confidential, only to find out that personal secret has been published for all to see online. This might sound like a plot line to a teenage drama, but revealing confidential information happens, intentionally and unintentionally, during investigations.

As part of Section 501 of the Rehabilitation Act of 1973, an employee’s medical information should be treated as confidential. Agencies often find themselves on the losing side when an employee’s medical information is disclosed, no matter the intent of the disclosure. A few recent EEO cases illustrate just how costly it can be when agencies improperly disclose or improperly request medical information.

Augustine V. v. U.S. Postal Serv., EEOC Appeal No. 2020001847 (Aug. 16, 2021)

The EEOC increased the amount of non-pecuniary damages from $25,000 to $70,000. The complainant, a city carrier at the United States Postal Service, had his medical information displayed publicly on the agency form used to request overtime or auxiliary assistance. The manager instructed the complainant to put his medical information on the form. Also, the complainant was not given a reasonable accommodation for his medical condition. The agency gave him a light-duty assignment, but the work he was given was completed in a few hours each day, and not over a full day’s work. The complainant was forced to use sick leave to make up the balance of the day.

The agency had not complied with orders from the EEOC in a previous case, which affected the outcome of this case. In the previous case brought by the complainant in 2017, the EEOC found the agency failed to make a good faith effort to accommodate and granted him compensatory damages. The agency opined that it had accommodated the complainant sufficiently in 2017. In this subsequent case, however, the EEOC disagreed with the agency over the accommodation.

The EEOC found the agency’s accommodation to be insufficient and increased the non-pecuniary damages from $25,000 to $70,000.

The EEOC wanted the agency to conduct a supplemental investigation to determine the compensatory damages, which it did not.  Also, the agency failed to train and discipline the management official responsible for the disclosure of the complainant’s medical information. A timelier compliance with the EEOC’s orders, and especially a timelier accommodation, might have saved the agency from the increase in non-pecuniary damages.

Salvatore K. v. Dep’t of Justice, EEOC Appeal No. 0120182095 (Jun. 23, 2021)

A contract company working with the US Marshals Service terminated a court security officer (CSO). The CSO is contracted to provide “security to the federal court and its judicial officers, witnesses, defendants, and attorneys.” The contract company is obligated to have their CSOs “… undergo and pass an annual examination …”  The complainant was diagnosed with borderline Type II diabetes in 2005.

During the annual examination in August 2013, a doctor cleared the complainant for duty as “medically qualified.”  A few months later, a second doctor reviewed the report and issued a medical review form to the complainant requesting ten different types of medical data from the complainant’s hemoglobin measures to a complete history of his medications. The first doctor responded to the second doctor’s medical review form by declaring the complainant medically fit for duty. The second doctor wasn’t satisfied with that response and issued a follow-up medical review form requesting an additional eleven different types of medical data.

The complainant did not comply with one of the initial requests to test his blood sugar four times a day from his fingers since it would interfere with his ability to hold a gun. In June 2014, the complainant’s district supervisor asked if he had any additional information to submit to the agency. The complainant declined to offer any further medical data. Six days later, he was terminated from his CSO position for failing to provide all documentation to determine his medical qualification.

In March 2015, the complainant filed an EEO complaint on the basis of disability, claiming the agency “subjected him to harassing, excessive, and unduly burdensome medical assessments and to requests for documentation.” The AJ issued a decision without a hearing in favor of the agency. On appeal, the EEOC reversed the AJ’s decision and found in favor of the complainant.

The EEOC found the agency did not prove its case for a few reasons. The complainant was able to perform his duties and was not a direct threat to himself or others.  The agency relied upon too broad of a series of generalized medical requests and not an individualized assessment of the complainant or any observations of his work performance.

The EEOC also took the guidance from the American College of Occupational and Environmental Medicine (ACOEM) to task. The ACOEM’s guidance violated the Rehabilitation Act by relying on generalized stereotypes rather than individualized assessments, which is required by the Rehabilitation Act.

The point of these two cases is clear: An employee’s medical information is confidential. There are legitimate, business-based reasons to request medical information. However, that information should be treated more like a game of Operation than Go Fish.

To learn more about how you and your agency can properly request medical records from an employee, join FELTG for Absence, Leave Abuse & Medical Issues Week, September 26-30 from 12:30-4:30 pm ET each day.

Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com

Who Wrote that Rule? Notification is 2nd Element of Discipline

, ,

By Michael Rhoads, August 16, 2022

Here at FELTG, we teach that there are five Elements of Discipline when a supervisor needs to prove an employee committed a misconduct. The second element deals with what you as a supervisor/ER/LR/HR Specialist can do to pro-actively notify your employees of the rules.  For the sake of argument, we’ll say that the rule we’ve established is legal and enforceable by agency standards. Let’s say your agency has established a rule where no one is allowed to keep open food or beverages on their desk overnight, or a rule that employees must remove food from the break room fridge before the close of business on Fridays.

There are a few ways to notify employees of a new rule. First, take a moment to introduce the rule at your next group meeting. If there is a common area in your office, post any new rules or agency regulations in a prominent spot. If your agency has a SharePoint site, or an agency policies page on your website, you can post the rule there as well – and direct employees there to view the rules.

The direct route is usually the quickest and most efficient. If you know the culprit who is leaving out open food or beverages, or violating the fridge policy, then addressing it with that individual is a much better practice than calling a team meeting with everyone, when only one person is violating the policy.

Face-to-face communication has been greatly reduced since March 2020. You can accomplish the direct approach over your favorite web-based software (e.g., MS Teams, Zoom, etc.), or by simply using a phone of your choice to call the person directly.

Let’s say the violation of these rules has become a pastime at your agency, and the supervisors have not been enforcing the rules. If you don’t enforce the rule, you lose the rule, so in order to re-establish the rule the agency must re-establish notice (send an email or mention it in a team meeting, for example).

And last, but certainly not least, there is a strong case for common sense.  Shouldn’t everyone know that if food is left out on a desk, opened, for too long, it may cause alarm to your fellow employees?  Not to mention any smaller critters that may be lurking about.

To find out the other four Elements of Discipline, join FELTG President, Deb Hopkins on September 7-8 from 12:30 – 4:00 PM ET each day for our flagship course, UnCivil Servant: Holding Employees Accountable for Performance and Conduct.

Stay safe, eat in good health, and remember, we’re all in this together. Rhoads@feltg.com

Supervisors Should Learn to Recognize Signs of Suicidal Ideation

, ,

By Michael Rhoads, July 18, 2022

Shana Palmieri, LCSW and FELTG Instructor

For far too long, mental health services have carried a stigma. It’s important to know where to turn when you’re experiencing a mental health crisis or suicidal ideation.

The 988 Suicide & Crisis Lifeline came online last week, offering nationwide 24/7 access to mental health care. The Lifeline provides free and confidential support for people in distress, prevention and crisis resources, and best practices for professionals. This is a step forward and elevates mental health to the emergency service some desperately need. Of the many topics surrounding mental health, suicide is one of the most, if not the most, taboo.

According to the CDC’s website on suicide facts, an estimated 12.2 million American adults seriously thought about suicide in 2020. More than 3 million planned a suicide attempt, and 1.2 million attempted suicide. It affects all ages. In 2020, suicide was the second leading cause of death in people ages 10-14 and 25-34. It affects our friends, family, and our community at large.

The good news is suicide is preventable. Agencies can create policies that promote a protective environment and a culture of good mental health. It is important for supervisors to recognize the signs of those who might have suicidal ideations.   FELTG Instructor Shana Palmieri, LCSW will conduct a 75-minute session on Managing a Potentially Suicidal Employee on August 30 from 3 – 4:15 pm ET.

If you or someone you know is experiencing a mental health crisis or suicidal ideation, please seek help at your nearest hospital or crisis intervention center. Or dial 988. Be safe, and remember, we’re all in this together. Rhoads@FELTG.com

Ensuring Workplace Safety Through a Model EEO Program

, ,

By Michael Rhoads, June 21, 2022

I recently attended a meeting of the Federal EEO and Civil Rights Council where Dexter Brooks, Director of Federal Sector Programs of the Office of Federal Operations at the EEOC, explained how to make your workplace safer. The tools are already available. You should have the infrastructure in place, but here’s how to update and fine-tune your program to make it a safer space for all employees.

This may or may not come as a surprise: The top issue in workplace safety is harassment. It is the fastest growing issue in EEO complaints with over 50 percent of complaints containing a harassment component, according to Brooks.

Your agency recently submitted a self-assessment of its anti-harassment policy. There should already be rules set up for employee conduct inside and outside the workplace. Part of the self-assessment addressed areas of support for employees who experience sexual assault, domestic violence, and stalking.

To successfully implement your agency’s anti-harassment policy and advance workplace safety, Brooks suggested focusing on the six core principles of a model EEO program. I found NASA’s Office of Diversity and Equal Opportunity at their Langley Research Center to have a handy guide to follow.

The 6 Core Principles

1 – Ensure your agency’s leadership is committed to the EEO program. Agency leaders should take a top-down approach when communicating the EEO program’s goals. The agency head should then issue an EEO and anti-harassment policy statement on an annual basis.

2 – Integrate EEO into the agency’s strategic mission. The Director of EO (or DEI) should have regular access to senior management. Also, managers and employees should be directly involved in implementing your agency’s Title VII and Rehabilitation Act Programs.

3 – Ensure program accountability. Managers and supervisors play a big role in this part of the process. While the agency establishes the procedures to prevent all forms of discrimination, it falls on the managers and supervisors to be the agency’s eyes and ears. Additionally, the agency should ensure that reasonable accommodations and personnel policies are clearly defined.

4 – Be proactive in preventing unlawful discrimination. Agencies should conduct a self-assessment of their EEO programs on at least an annual basis. This should include a barrier analysis. Think of not only the physical barriers, but the cultural barriers that exist. For example, first generation professionals might not have the same resources available to them that others do. After the analysis is complete, act on the information, and come up with a strategic plan to eliminate those barriers identified.

5 – Find an efficient way to deal with EEO issues. Data is the foundation on which problems can be solved. If you don’t have quality data, it’s like flying a plane through clouds without flight instruments – eventually you’ll crash. The data you’ll need to collect specifically will be related to hiring, your current workforce, and EEO complaints. Additionally, complaint resolutions and alternative dispute resolutions processes should also be checked for efficiencies as well.

6 – Be responsive and legally compliant. The laws in question are Title VII and the Rehabilitation Act. Also included in legal compliance are EEOC’s regulations, orders, and other written instructions. Each year, report your program’s accomplishments to the EEOC. Be sure to comply with any final EEOC order for corrective action and relief. FELTG has worked with many agencies when the EEOC has ordered compliance training at the conclusion of a complaint.

For more information on how your agency can improve on its EEO program, FELTG will be hosting our EEOC Law Week from September 19-23, from 12:30-4:30 ET each day.  Meanwhile, stay safe, and remember, we’re all in this together. Rhoads@FELTG.com

There’s a Lot to Learn From This Year’s FEVS Results

, ,

By Michael Rhoads, May 16, 2022

The results are in! Every year, OPM takes the pulse of what Federal employees are thinking and catches the latest trends. It’s a great chance for agencies to take pride in what they are doing well, recalibrate what needs to be fine-tuned, and look for blind spots that may have eluded their attention.

So, what can we learn from this year’s Federal Employee Viewpoint Survey (FEVS)?  Quite a lot.

Let’s start with what agencies are doing well. The highest percentage level of agreement, at 88%, was “Employees in my work unit meet the needs of our customers. (Q. 14).” Most Federal employees know their colleagues work hard every day for our nation. Supervisors should also be given proper recognition as well: 86% of respondents felt their “supervisor treats me with respect. (Q.29)” and 82% feel “my supervisor listens to what I have to say (Q. 28).”

What could be fine-tuned? Employees seem to receive a mixed message about work-life balance depending on the messenger. Eighty-four percent report that “my supervisor supports my need to balance work and other life issues. (Q. 25).” However, only 60% believe “Senior leaders demonstrate support for Work-Life programs. (Q. 38).”

But this is not a time to rest on our laurels. At 42%, the second lowest percentage level of agreement is “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve. (Q. 10).” This is a common theme we here at FELTG address in many of our courses. However, managers can – and should – take action.

It is our mission here at FELTG to give supervisors the appropriate tools to handle poor performers.  If you are a supervisor who could use help dealing with poor performers at your agency, FELTG’s flagship course UnCivil Servant will take you step by step through the process of dealing with unacceptable performance. Join us on Tuesday, May 24 and Wednesday, May 25 from 12:30 – 4 pm ET each day.

Another important takeaway I found in the FEVS is employees want better recognition for their job performance, and “differences in performance” compared to their co-workers. Better communication is also on the minds of employees since only 59% report “Managers promote communication among different work units (for example, about projects, goals, needed resources). (Q.35)”

One thing is relatively clear in reviewing the FEVS, telework makes people happy. Looking at the individual questions there was a positive upward trend in responses from 2017-2020. The 2021 FEVS responses declined in almost every case.

I can hear the statisticians out there yelling, “correlation is not causation!”  However, when almost every metric comes down year over year, I’m willing to take the educated guess a decline in telework might be the culprit.

To back up my assumption, the telework status of ‘I telework every workday’ started at 2% in 2019, rose to 47% in 2020, and came down to 36% in 2021 as reported in the FEVS. OPM also came to the same conclusion, “Telework is positively related to higher scores on Employee Engagement and Global Satisfaction and declines in telework could be linked to a decline in these scores.”

What is clear is that change marches on in our society. We’re still coming to terms with the drastic changes everyone in the world was forced to face over two years ago. When it comes to dealing with changes to Federal Employment Law, FELTG is here to assist you.  Stay safe, and remember, we’re all in this together. Rhoads@feltg.com

OPM Offers Roadmap for Your DEIA Plan

, ,

By Michael Rhoads, April 11, 2022

OPM has released its Strategic Plan for FYs 2022-2026. To put this report together, OPM did its homework.

The OPM Strategic Plan for 2022-2026 represents 132 reports and studies reviewed, interviewing 30 internal stakeholders and 58 external stakeholders over 36 organizations. The plan is divided into the four Goals OPM would like to accomplish during that period. OPM wants to position the Federal Government as a model employer, transform OPM’s organizational capacity, provide greater customer satisfaction for OPM’s customers (that’s you!), and provide data-driven solutions that help with your agency’s mission.

The objectives, which expand on each goal, reflect the Biden Administration’s goals of increasing Diversity, Equity, Inclusion, and Accessibility (DEIA). I found the strategies outlined in Goal 1’s objectives to be applicable to any agency, and a good reminder of best practices for everyone as many agencies transition back into the physical workspace.

Goal 1: Position the Federal Government as a model employer. To improve the Federal government’s workforce and become a more model employer, OPM looks to draw on the diversity of all communities around the United States. “As a model employer, the Federal Government will recruit from all segments of society to attract a workforce that draws from the diversity of the American people.”

Strategies for implementation for Objective 1.1 – DEIA. OPM encourages a top-to-bottom review of policies and practices to eliminate barriers to equity by tracking demographic data and leveraging expertise to examine DEIA at all levels of grade and pay. To attract new talent from a more diverse population, use partnerships, paid internships, fellowships, and apprenticeships to reach out to historically underserved communities. Use DEIA as a tool to assess agency recruitment, hiring, promotion, retention, professional development, pay equity, reasonable accommodations access, and training policies and practices for fairness and impartiality across all pay levels.  Assess barriers which deny employment opportunities, including at the SES level, to the LGBTQ+ community and to people with disabilities, and develop plans to eliminate those barriers. Promote pay equity at all levels of Government by reviewing job classifications.

FELTG’s DEIA courses are designed to meet the Presidentially-mandated training for all agency employees from front-line supervisors to SES professionals.

Strategies for implementation for Objective 1.2 – Future of Work/Model Employer. OPM seeks to support agencies by providing human capital tools, guidance, and services as each agency returns employees to the physical workplace. In alignment with the President’s Management Agenda,  OPM will, “create a vision and strategy for how the Federal Government can be a model employer with respect to hiring, talent development, competitive pay, benefits, and workplace flexibilities…, and develop and advance human capital policies to support the longer-term future of work.”  Be sure to register for Emerging Issues in Federal Employment Law April 26-29, and see where the future of work is really headed.

Strategies for implementation of Objective 1.3 – Building Skills through Training. No organization, private or public, can hope to succeed without focused, high-impact training. OPM seeks to strengthen Federal HR by recruiting diverse, early-career talent, modernize the Pathways program, and design paid internships.  Paid internships also loop back to Objective 1.1, since unpaid internships or similar programs designed to learn new skills, are a barrier to most low-income workers and students. OPM also encourages agencies to launch initiatives to “identify and develop, select, high-impact talent projects.”

Agencies should improve the competitive hiring process with new selection rules and focus on customer service and problem solving in training opportunities for human capital professionals.

To provide agencies with access to more tools, OPM will improve assessments for hiring with a government-wide hiring assessment line of business and agency talent teams.  All of FELTG’s webinars and Virtual Training Institute courses are designed with your agency’s mission in mind, and will help expand your employee’s skills and work IQ.

Strategies for implementation of Objective 1.4 – Employee recognition. As luck would have it, yours is not the only agency in the Federal government.  OPM encourages agencies to, “share leading practices related to engagement and recognition across Federal agencies through Chief Human Capital Officers (CHCOs), Federal Executive Boards, the White House, and other stakeholders with shared missions.”

Agencies should also, “increase attention to programs that regularly spotlight workers and union members at OPM and across the Federal Government throughout the year, culminating with Public Service Recognition Week,” which is May 1-7, 2022 this year. [As a side note, I’d love to hear what your agency will do this year to honor our public servants.  Feel free to send me an email, Rhoads@feltg.com.]

In the introduction to the Strategic Plan, OPM Director Kiran Ahuja said it best.  “We will promote a diverse, equitable, inclusive, and accessible Federal workforce based on merit; develop a strategic vision for the Federal Government to prepare for the future of work; support Federal agencies to attract early career talent; and equip current and future Federal workers with the ability to build new skills over time to adapt to a rapidly changing world.”

At FELTG, we strive day in, day out to train federal workers to adapt to a rapidly changing work environment, and offer courses to promote the ideals of Diversity, Equity, Inclusion and Accessibility. Stay safe, and remember, we’re all in this together.  Rhoads@feltg.com

Non-Pecuniary Damages: How Much Is Enough?

, ,

By Michael Rhoads, March 15, 2022

Compensatory damages are available in cases of intentional discrimination under Title VII and the Rehabilitation Act, 42 USC 1981a(b), as well as the Genetic Information Nondiscrimination Act (GINA). While past pecuniary damages (do you have a receipt for that?) and future pecuniary loss (I’m going to have to keep paying how much?!?) are relatively cut and dried, non-pecuniary damages (emotional harm, or pain and suffering) are less certain to predict.  Looking at a couple of the EEOC’s recent cases on non-pecuniary damages is a good reminder that what your agency might award, and what the EEOC might award on appeal, could vary greatly.

Bill A. v. U.S. Postal Service, EEOC Appeal No. 2020003332 (June 3, 2021).

In 2017, the complainant was diagnosed with major depressive disorder, and suffered from anxiety and insomnia. He began to take medication. The agency sent him home, refused to allow him to come to work, and suspended him, among other things. The complainant was separated from the agency effective April 2019. He claimed that due to the agency’s actions, he suffered from gastrointestinal issues, hearing voices, and suicidal thoughts. The complainant had filed two previous complaints, and amended his second complaint, which is addressed here. As a part of the amendment to the second complaint, the complainant’s wife provided an affidavit confirming the complainant’s symptoms had worsened since the complainant was separated from the agency.

In a prior EEO complaint, the agency awarded $85,000 to the complainant. The agency took this amount into consideration when issuing $2,000 in non-pecuniary damages related to the amended complaint. The agency concluded the complainant’s conditions were “mostly pre-existing” and the prior damages paid by the agency covered these conditions.

The Commission modified the final agency decision from $2,000 to $35,000, finding the agency fell short on the reasonable accommodation process when it failed to consider reassignment as a reasonable accommodation for the complainant’s disability. The Commission opined, “The Agency’s suggestion that Complainant’s claim for non-pecuniary damages consisted of little more than speculation is offensive in light of …” the Commission’s previous decision awarding the Complainant $85,000.  The Commission decided the first payment should not inform how much the second payment should be, considering each decision covered two different time periods.

It is also important to note that in non-pecuniary damages cases, the complainant does not have to present medical evidence. The complainant does bear the burden of proof, but in this case, he submitted an affidavit from his wife to prove his claim.  Also, the agency did not refute his evidence in the first case. The Commission took this into consideration when deciding on the appeal.

Stanton S. v. U.S. Postal Service, EEOC Appeal No. 2019004097 (Apr. 15, 2021).

In this case, the complainant requested a religious accommodation. His religion did not permit him to work on Sundays.  However, management ordered him to be trained as a backup to work on Sundays if the need would arise. Training for the role took place on Sundays. Management issued two removal notices when the complainant missed three training dates. The EEOC ordered the agency to investigate the claims. The agency found no discrimination in its final decision.  On appeal, the Commission found the complainant established a prima facie case of religious discrimination because the agency could not show undue hardship, and sent the case back to the agency to determine the damages to be paid to the Complainant. The agency estimated the complainant was off work for approximately four months and awarded him $10,000. The complainant appealed the Agency’s compensatory damages.

In its decision, the Commission cited: “Complainant has the burden of proving the existence, nature and severity of the alleged emotional harm.”  Man H. v. Dept. of Homeland Security, EEOC Appeal No. 0120161218 (May 2, 2017). The complainant may report as evidence emotional harm, such as stress, anxiety, interference with a firmly held religious belief, etc.  However, the lack of supporting evidence may affect the amount of damages related to a case. Also, non-pecuniary damages are meant to repair the damage caused by the harm to the complainant – not to punish the agency. The Commission cited three similarly situated cases, and accordingly raised the amount of the non-pecuniary damages to $30,000.

For expert advice on how to handle compensatory damages, join Bob Woods on Thursday, March 24 from 1 – 2 pm ET for Damages and Remedies in Federal Sector EEO Cases. One hour of your time could save your agency tens of thousands of dollars in compensatory damages! Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com

Save Time with Summary Judgment

, ,

By Michael Rhoads, February 15, 2022

Let’s say your agency receives an EEO complaint and follows the EEO complaint process.  You’ve investigated the allegations and issued the complainant the report of investigation. The complainant requests an EEOC hearing. At this point, is it possible to ask the Administrative Judge (AJ) to issue summary judgment? According to 29 CFR 1614.109(g)(2), “After considering the submissions, the administrative judge may order that discovery be permitted on the fact or facts involved, limit the hearing to the issues remaining in dispute, issue a decision without a hearing or make such other ruling as is appropriate.”

The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact.  29 C.F.R. § 1614.109(g). This means both parties (complainant and agency) agree to the material facts of the case.  Each side’s interpretation of those facts might be different, but there’s no hidden meaning or conspiracy theories.

Summary Judgment for the Agency

In Phoebe O. v. Dep’t of the Army, EEOC Appeal No. 2020000674 (Apr. 5, 2021), the complainant requested a reasonable accommodation several times.  After the second request, she was retroactively placed on AWOL. After the third request, she was issued a memorandum to report to duty. Each time, the agency addressed its denial of her RA request. Part of the complainant’s request for RA was to be transferred to an open position. However, the agency decided to competitively fill the position instead.

One of the points we make in our courses at FELTG is this: The agency is performing its due diligence as long as it’s participating in the interactive process to find a reasonable accommodation for an employee’s disability.  An employee can request a specific accommodation, but the agency does not have to grant it in the way the employee requests if another effective accommodation is available, or if the employee does not provide information on her medical restrictions.

In this instance, the agency denied the request to transfer to an open position because the complainant did not provide medical documentation to support the necessity for the transfer.

As no material facts were in dispute, the EEOC affirmed the AJ’s decision granting summary judgment to the agency.

Summary Judgment Reversed

Some cases, however, are not as cut and dried. Even though an AJ might issue a decision without a hearing, the Commission sometimes sees things differently. In Jennifer K. v. Dep’t of the Navy, EEOC Appeal No. 2020001035 (May 20, 2021), the EEOC reversed the agency’s final decision after finding the AJ improperly issued a decision without a hearing.

This case dealt with some confusion about discovery. But first, some background. The complainant worked as a civil service mariner for the Navy’s Military Sealift Command in San Diego, Calif. When she became pregnant, she notified the agency’s Placement Specialist and asked what other work assignment options were available because the current assignment involved sailing out to sea for an extended period of time. Soon after, the complainant was declared Not Fit For Duty (NFFD) by the Medical Department. The agency had trouble placing her in a vacant position because she was not considered disabled.

Between May-August 2014, the complainant used leave and leave without pay while the agency searched for suitable work. The agency offered training in Seattle, Wash., after the complainant had moved to Eugene, Ore., but the complainant declined the offer because she had already received the training being offered.   Over this period, the complainant also had trouble contacting the captain of her ship to help her with her pregnancy accommodation request. Eventually an LR employee responded that they were unable to accommodate her, but would continue to seek other positions for which she might qualify.

In November 2014, she filed a complaint alleging she had been discriminated against on the basis of sex (female, pregnancy). Because of her removal after management learned of her pregnancy, she was forced to use leave and accumulated insurance debt.  Complications arose when the complainant’s attorney filed in the EEOC’s Los Angeles office and requested the case be transferred from the EEOC’s Charlotte office to LA since her last duty station was San Diego, Calif.  The agency did not acquiesce, and the case remained in the Charlotte office. In July 2016, the AJ assigned to the case in Charlotte issued an Order of Sanction and Dismissing Hearing Request after the agency requested a dismissal of the hearing request. The AJ remanded the complaint to the agency for a final decision.  In a separate case associated with this one, the complainant appealed the AJ’s dismissal. In that case, the Commission found in favor of the complainant and remanded the complainant back to the Charlotte office.

The same AJ in Charlotte was assigned to the remanded case.

And there’s more. In January 2018, the AJ ordered discovery must be initiated on or before March 5, 2018, at 5 PM. On that day, the complainant’s attorney issued interrogatories to the agency, and the agency issued interrogatories to the complainant.  However, there was confusion about when discovery was to be served. At 4:56 PM ET, the complainant’s attorney emailed the AJ for clarification. At 5:51 PM ET, the AJ responded all discovery was due at 5 PM ET. The complaint’s attorney then requested an extension, but the AJ did not reply. The complainant’s attorney then quickly served document requests, admission requests, and deposition notices to the agency on March 5, 2018, at 7:50 PM EST, which is 4:50 PM PST. However, the AJ later emailed the attorney stating the proper time zone to submit requests was 5 PM EST and found the document requests untimely.

The AJ issued summary judgment in the agency’s favor, finding the complainant did not demonstrate the agency was more likely than not motivated by some discriminatory animus. The complainant appealed the decision.

On appeal, the Commission found the AJ erroneously granted summary judgment, “After a careful review of the record, we find that the AJ’s issuance of a decision without a hearing was not appropriate as the complainant was not fully afforded the opportunity to engage in discovery, the record has not been adequately developed, and there are genuine issues of material fact in dispute.  We further find that the AJ erred as a matter of law.”

If you want to know how to make sure your summary judgment isn’t reversed, join Katherine Atkinson for Winning EEO Cases Through Summary Judgment on Thursday, February 24, 2022 from 1:00-2:00 ET. Rhoads@feltg.com

If the EEOC Orders Training, Who Ya Gonna Call?

, , ,

By Michael Rhoads, January 11, 2022

No one is perfect, and mistakes are bound to happen over the course of a career.  So, what happens when a manager is found to have made a mistake related to an EEO complaint?  Occasionally, the EEOC will order training for the supervisor in question or, if the behavior is pervasive throughout agency, for all supervisors.  The goal is to make sure everyone is in compliance with the law. Some recent EEOC cases are a good reminder that no matter how many times you say something, it’s best to mind your Ps and Qs to avoid getting yourself and your agency in trouble.  Below are some recent cases from the EEOC which serve as a good reminder of what you can and can’t say, and what should be avoided at all costs.

No Substitute

In Foster B. v. Department of Health and Human Services, EEOC Appeal No. 2019005682 (April 12, 2021) the Complainant, a supervisory health system specialist, filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male, sexual orientation) and disability.  An employee working under him used sex-based epithets against gay men several times over the course of two years.

The complainant’s supervisors encouraged him to file an EEO complaint but did nothing to stop the employee’s discriminatory behavior. The EEOC found that the agency’s lack of discipline emboldened the employee to continue with the epithets. The employee used the epithets in the presence of the complainant’s supervisor and other employees on several occasions.

The EEOC found the agency did not provide a clear complaint procedure. The most important lesson to learn from this case is, “… the EEO process is not a substitute for the Agency’s internal process.” The law is the foundation, but the agency still needs to come up with an actionable plan to assist employees with processing EEO complaints.

The EEOC also ordered the supervisors to attend eight hours for training related to eliminating harassment in the workplace.  FELTG is holding a session on Wednesday, March 9, 2022, from 1:00-3:00 ET, Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace.

Thrown Under the Bus

In Jane H. v. Dept. of the Air Force, EEOC Appeal No. 2020003198, (May 19, 2021), an employee filed 19 complaints, which the Agency investigated. The complaints alleged that the agency subjected her to a hostile work environment over a five-year period on the bases of sex (female), and reprisal for prior protected EEO activity.

The hostile work environment complaints are related to the behavior of two co-workers and the complainant’s supervisor.  Some of the behavior included:

  • The complainant’s computer software folder was intentionally deleted
  • The complainant was taken off overtime shifts
  • Items were stolen from the complainant’s desk
  • A large trash can and dead bugs were left on her desk
  • A co-worker repeatedly made loud noises “causing complainant to have a panic attack and seek medical attention.”

However, the both the AJ and the EEOC found the hostile work environment claims by the complainant to be unpersuasive. “Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor.”

However, due to one errant comment by the supervisor, the EEOC remanded the AJ’s finding of no discrimination on the bases of reprisal back to the agency for further processing. The EEOC also ordered the supervisor to attend eight hours of EEO training.  The comment from the supervisor was in response to a request from the complainant for union time. “[The Chief] and I were both thrown under the bus due to your EEO complaint. If I don’t give you time, you’re just going to file a grievance.”

But for this one comment, the Agency’s case would stand.  We’re all human, however, supervisors are held to a higher standard when it comes to the words chosen when addressing an employee. Don’t let hurt feelings hurt an EEO case by using chilling language toward a complainant.   Understanding how to avoid retaliatory situations like this is where FELTG shines.  We will offer Stop the Spread of COVID-related Retaliation in the Federal Workplace on January 19 from 1-2:15 pm ET. (Note: the training recording is now available.)

As we begin 2022, let this be a year of increased understanding and thoughtfulness between all employees. We at FELTG are here to offer the right training and guidance to help you avoid common EEO pitfalls and mistakes.  Stay safe, and remember, we’re all in this together. Rhoads@feltg.com