A new NP MSPB case, Petoskey v. VA, SF-3443-16-0808-I-1 (Jun. 21, 2023), has once again affirmed why letters of counseling, caution, warning, and the like are just not worth your time. Read more.
By Deborah J. Hopkins, July 18, 2023
On June 29, the Supreme Court upended decades of precedent in its unanimous decision Groff v. DeJoy, No. 22–174 (Jun. 29, 2023).
Under Title VII, employers are required to accommodate the sincerely held religious beliefs or practices of employees unless doing so would cause an “undue hardship” on the employer. For years, the definition of “undue hardship” for religious accommodation has been “anything more than a de minimis burden,” which is a much lower threshold than proving undue hardship for the purposes of disability accommodation – and, quite recently, pregnancy accommodation.
The new SCOTUS case looked at a USPS mail carrier, Gerald Groff, who requested to be excused from work on Sundays because his religious beliefs required that day to “be devoted to worship and rest.” The agency required Sunday work because of a new partnership with Amazon.
The agency said granting Groff Sundays off would be more than a de minimis burden on his coworkers’ schedules. Also, it would require the USPS to pay overtime, which would be an undue hardship on the agency. After being disciplined for refusing to work on Sundays as ordered, Groff resigned. He filed a failure-to-accommodate religious accommodation claim against USPS.
From the SCOTUS syllabus:
Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.” §2000e(j). Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business…
Title VII requires that an employer “reasonably accommodate” an employee’s practice of religion, not merely that it assesses the reasonableness of a particular possible accommodation or accommodations. Faced with an accommodation request like Groff’s, an employer must do more that conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options would also be necessary. (citation omitted). Having clarified the Title VII undue-hardship standard, the Court leaves the context-specific application of that clarified standard in this case to the lower courts….
While this seems like a major change to the “undue hardship” analysis, there’s a school of thought that indicates this might not actually change much for Federal agencies.
I asked FELTG Instructor Bob Woods, who will present How are Religious Accommodation Requests Different from Disability Accommodation Requests? on August 17, what he thought about Groff. Here’s what Bob said:
[W]hile Groff is clearly an important decision, I don’t think it will have a significant impact on Federal agencies. I don’t have a crystal ball, but I say this based upon the nature of the types of accommodations typically requested in such cases and the EEOC’s existing guidance (in both 29 CFR 1605.2 and EEOC Guidance, Section 12: Religious Accommodation) and their Federal sector caselaw. While the Supreme Court has now clarified its decision in Hardison v. TWA, it also noted that the EEOC already minimized the impact of the term “more than a de minimis cost” in its guidance and decisions. Although the Groff decision does not limit the EEOC to its current guidance, I believe that they already hold Federal agencies to standards that comport with the plain language of the law.
I also note, as does the Court, that the Postal Service went to fairly substantial lengths to accommodate Mr. Groff. The 3rd Circuit found exempting Groff for Sunday work would result in an undue hardship that would clearly be more than a de minimis cost. The Supreme Court has vacated and remanded for “further proceedings consistent with this decision.” Given the asserted impact on the Postal Service discussed in these decisions, it’s possible that the 3rd Circuit may still find an undue hardship.
Agencies would certainly be well advised to review (or create) Religious Accommodation procedures and policies and confer with counsel to review existing/pending complaints of failure(s) to provide religious accommodations to ensure they are not relying upon the concept of de minimis costs. Agencies should also be on the lookout for updated EEOC guidance. As always, we’ll keep you posted on any relevant information that results from this important SCOTUS decision. Hopkins@FELTG.com.
By Ann Boehm, July 18, 2023
An agency lost a removal case before the Federal Circuit this month. In Williams v. Federal Bureau of Prisons, an arbitrator sustained the employee’s removal, but the Federal Circuit vacated and remanded the arbitrator’s decision because the arbitrator failed to properly analyze the Douglas factors. Williams, Case No. 2022-1575 (Fed. Cir. July 6, 2023).
If you just read that quick summary of Williams, the decision seems to be pro-employee and bad news for agencies. But here’s the thing: The decision is completely consistent with years of MSPB and Federal Circuit precedent. And the lesson agencies should learn from it is – charge carefully, or have your penalty at the mercy of arbitrators, administrative judges, the MSPB, and the Federal Circuit.
To make sure our good friends of FELTG don’t face a similar situation, let’s review what happened in Williams.
Ms. Williams started work as correctional officer at the Federal Correctional Complex in Beaumont, Texas (FCC-Beaumont) on March 4, 2018. Before that, in January 2016, she met Alex Hayes. They were engaged in July 2018, and had a child together in September 2018.
So, what’s the big deal here? Turns out Mr. Hayes had been in Bureau of Prisons (BOP) custody in his past – from June 2005 to July 2013 – and on supervised release until July 15, 2018. He even spent some time at FCC-Beaumont. The problem for Ms. Williams was the BOP Standards of Employee Conduct prohibit employees from becoming involved with inmates or former inmates, and if they do engage in such improper conduct, they must report it in writing to the BOP. Former inmate, as defined by BOP, means less than one year has elapsed since release from BOP custody or supervised release. Mr. Hayes fit into this category until July 2019.
BOP was ahead of Ms. Williams in knowing about Mr. Hayes’s former inmate status. In May 2019, they placed her on administrative reassignment, and Internal Affairs investigated her improper contact with a former inmate and failure to report the contact. Ms. Williams knew Mr. Hayes had been incarcerated but did not know about his BOP past until she heard rumors. She questioned Mr. Hayes. On June 3, 2019, she learned he had been in Federal custody. She reported this to BOP the next day.
[Quick aside here. It just seems to me if you are engaged and have a child with someone, some of your conversations might get into, “Hey, where have you lived in the past?” “Ever been in Beaumont before?” “Any chance you have ever been in Federal prison — for 8 years or so?”]
The Internal Affairs investigation, which ended in July 2019, found Williams had engaged in improper conduct with a former inmate and failed to timely report the contact. On Feb. 5, 2020, the BOP issued a notice of proposed removal based on two charges: (1) improper contact with a former inmate; and (2) failure to timely report. The final decision removing Ms. Williams was issued on April 22, 2021.
Ms. Williams challenged her removal before an arbitrator. The arbitrator sustained the charge on improper contact but did not sustain the charge on failure to report. In not sustaining the failure to report charge, the arbitrator explained that Ms. Williams immediately reported the contact as soon as she found out about Mr. Hayes’s past.
I’m sure you astute FELTG readers know, as the Federal Circuit reminded us in Williams, “when an arbitrator sustains fewer than all the agency’s charges, the arbitrator ‘may mitigate to the maximum reasonable penalty’ for the sustained charges unless the agency has indicated it desires a lesser penalty be imposed on fewer charges. Williams at 4 (citing Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999)). The BOP had not indicated it desired a penalty less than removal if only one charge was sustained, so the arbitrator should have independently analyzed the Douglas factors to determine a reasonable penalty for the one sustained charge. [Learn more on this subject. Purchase a recording of FELTG’s 60-minute training The Role of the Douglas Factors in Arbitration.]
The arbitrator did not do this, even though he indicated it would be just and fair to change the removal to a long suspension. He also failed to independently analyze the Douglas factors and deferred to the deciding official’s Douglas analysis. Because the arbitrator misunderstood and misapplied the law, the court vacated the removal and remanded for the arbitrator to independently analyze the relevant Douglas factors to determine the maximum reasonable penalty. What can agencies take away from this case?
- Charge properly. Remember that you must prove a charge by preponderance of the evidence, or 51 percent.
- If you think there is a chance any of your charges may fail, the Douglas factor penalty analysis should mention an alternative penalty in that situation.
- Remember that arbitrators often have very little experience with the Federal disciplinary process. Advocates should do their part to educate them.
Williams is not a new case that is averse to agencies. It is simply a good reminder of how things work in discipline. And that’s Good News! Boehm@FELTG.com
By Dan Gephart, July 18, 2023
Sometimes, a Federal employee’s misconduct is so far beyond the pale that it’s impossible to ever again trust that employee. That was certainly the case for a certain IRS contact representative/Howard Stern devotee. Sorry, I meant to say former IRS contact representative. (I don’t know the status of the ex-employee’s Stern fandom).
The employee arrived at work and called the Howard Stern radio show on his personal cellphone. He was put on hold. When the employee’s 8 am shift started, he began handling incoming phone calls from taxpayers on his work phone.
Two hours later, the Stern show took him off hold. The employee didn’t realize this and continued his conversation with a taxpayer, which was now being broadcast live. He unknowingly shared the taxpayers’ personally identifiable information, including her phone number and the amount of back taxes she owed, to thousands of Sirius XM listeners.
Howard Stern shouted the employee’s name to get his attention. The employee then put the taxpayer on hold to talk to Howard Stern, where he “gleefully” identified himself as a Federal employee.
It’s no surprise that the agency removed the employee, nor that the MSPB upheld that removal earlier this year, citing the effect of the employee’s misconduct on his supervisors’ confidence, while questioning his potential for rehabilitation. Forsyth v. Treasury, NY-0752-16-0246-I-1 (Mar. 15, 2023)(NP). Regarding the latter, the employee was directed to make a post-incident call to the Howard Stern show to ask them to not rebroadcast the telephone exchange, which the employee did, while also requesting a tour of the show’s broadcast studio.
A few months back, Ann Boehm extolled the value of Douglas Factor Five in her monthly Good News column. Douglas Factor 5 is consideration of “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.”
FEMA similarly lost confidence in a Senior Executive Service employee who misused her position to help a friend gain employment at FEMA. The SESer also provided her friend with personally identifiable information of FEMA employees. Clark v. Department of Homeland Security, DC-0752-13-0661-I-1 (Feb. 21, 2023)(NP).
The employee, who worked in the agency’s Chief Component Human Capital Office, pointed to a positive evaluation she received after the incident to argue that her supervisor had not lost confidence in her. The Board held, however, that “the penalty judgment belongs to the agency, not to an appellant’s supervisor … in the absence of an agency’s failure to consider the relevant Douglas factors adequately, a supervisor’s opinions are insufficient to overcome the agency’s judgment concerning the appropriateness of the agency-imposed penalty.”
How much confidence would you have in an employee who “golfed during official duty hours on at least 205 days for which he claimed no annual leave on his official timesheets.” In Sheiman v. Department of Treasury, MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP), the Board agreed removal was the right penalty, stating that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision.”
The MSPB decisions in this article have been issued within the last couple of years. For guidance on increasing the chances that your removals match the Board’s view on penalty assessment, register for Charges and Penalties Under the New MSPB on August 1. This half-day session is part of FELTG’s weeklong Federal Workplace 2023: Accountability, Challenges, and Trends event. Gephart@FELTG.com
By Deborah J. Hopkins, July 18, 2023
It may be one of the most written-about topics in this newsletter, but we keep writing because we keep seeing cases where employees challenge letters of warning, caution, counseling, and the like, and agencies get tied up in litigation for years as a result.
Look at Shad R. v. USPS, EEOC Appeal No. 2022004404 (May 11, 2023). The complainant in this case was a sales/service/distribution associate at a postal facility. The agency issued him two letters of warning (LOW):
- On 23, 2021, the LOW charged the complainant with “Hazmat Question/Work Performance/Failure to Follow Instructions.” The supervisor said that the complainant “did not ask the Hazmat Question at all, did not give customer his full attention, did not apologize to the customer for making her wait, did not suggest extra services, and did not offer any additional items for the customer. Complainant was also not wearing his uniform, but rather was wearing an apron.”
- On March 6, 2021, the LOW charged “Conduct/Failure to Follow Instructions.” The LOW specified that, the complainant failed to remove his personal items from the retail window and workroom floor, despite an order to do so.
According to the record, the February LOW was rescinded, and the March LOW was grieved and proceeded to arbitration, with the outcome of the arbitration unknown. The complainant filed an EEO complaint over the two LOWs, alleging that the agency discriminated against him and subjected him to a hostile work environment on the bases of:
- Race (Latino),
- National origin (Hispanic),
- Sexual orientation (gay),
- Religion (Satanism),
- Disability (HIV, anxiety, and depression), and
- Reprisal for prior protected EEO activity.
The supervisor (S1) who issued the LOWs “explained that the February LOW resulted from her personal observations of Complainant’s interaction with a customer. S1 also explained that she issued the March LOW because Complainant had multiple personal items in the workplace, including an inappropriate picture of a woman, and he did not remove them.” In his defense, the complainant asserted, among other things, “the March LOW was improper because, as a gay man, he does not objectify women.”
The EEOC affirmed the Final Agency Decision which found no discrimination or harassment. In other words, the agency had a legitimate, non-discriminatory reason for warning the employee. That said, had the warnings been issued orally or via email and NOT put on letterhead, most likely the complainant would not have felt aggrieved for the purposes of filing a union grievance or an EEO complaint. Something about non-disciplinary actions being out on letterhead escalates things to a level where an employee wants to challenge, rather than heed the warning. We’ll discuss this plus a lot more on July 26 during the two-hour virtual training No Need for Fear: A Guide to Navigating EEO Challenges for Supervisors and Advisors. Hopkins@FELTG.com
Note: after publication, FELTG heard from a previous USPS employee who informed us that per its CBA, a Letter of Warning counts as formal discipline for certain USPS employees. The principle about LOWs remains the same, but in the case above it may have counted as discipline.
By Barbara Haga, July 18, 2023
While the purposes of a trial period and a probationary period are much the same, the rights for excepted service employees who are subject to an adverse action are different than those for competitive service employees. In fact, it wasn’t until 1990 that non-preference eligible excepted service employees had appeal rights to the MSPB at all.
Under the original Civil Service Reform Act, excepted employees who were not preference eligibles did not have MSPB appeal rights. The Supreme Court addressed the issue in United States v. Fausto, 484 U.S. 439 (S. Ct. 1988), affirming the MSPB’s determination that non-preference eligibles were not included in the groups of employees eligible to appeal adverse personnel actions to the Board. The Civil Service Due Process Amendments Act of 1990, Pub. L. No. 101-376, granted those rights to the non-preference excepted employees about two years later.
Preference in hiring applies to permanent and temporary positions in the competitive and excepted services of the executive branch. When we address the broad category of who is a preference eligible, we typically picture those who served in uniform in the military, and certainly the vast majority of individuals who have preference obtained in that way.
However, it is important to remember that there are other categories of preference that extend from a military member’s service.
This is called derived preference and includes the spouse of a disabled veteran who is unemployed, the widow or widower of a deceased veteran, or the parent of a disabled or deceased veteran. As the Board wrote in Redus v. USPS, 88 M.S.P.R. 193 (2001):
The Veterans’ Preference Act should be construed, whenever possible, in favor of the veteran, especially when the right to defend against charges of wrongdoing is involved. See Flanagan v. Young, 228 F.2d 466, 472 (D.C. Cir. 1955). Therefore, we find that the plain language of the statute indicates that Congress intended to confer preference eligible status on spouses of disabled veterans who are unable to support their families through employment with the government because they suffer from service-connected disabilities.
Numerous conditions must be met to qualify for use of such preference. An OPM guide describes requirements for each category. It is not completely up to date since it still addresses preference for “mothers,” even though preference is currently extended to both mothers and fathers.
The language regarding spousal eligibility in 5 USC 2108(3)(E) states that preference eligible includes “the wife or husband of a service-connected disabled veteran if the veteran has been unable to qualify for any appointment in the civil service or in the government of the District of Columbia.”
The “spouse” section of the OPM guide gives examples of when disqualification may be presumed. These occur when the veteran is unemployed and 1) is rated by appropriate military or Department of Veterans Affairs authorities to be 100 percent disabled and/or unemployable; 2) has retired, been separated, or resigned from a civil service position on the basis of a disability that is service-connected in origin; or 3) has attempted to obtain a civil service position or other position along the lines of his or her usual occupation and has failed to qualify because of a service-connected disability.
The guide applies to hiring, so why would readers of this column be concerned about that? Here’s why: If the individuals exercising this preference are excepted employees, it will give them due process and appeal rights a year earlier than they would otherwise have them.
Never saw this coming!
The Redus case is a perfect example of how this issue can completely upset an otherwise simple termination case. Redus was a Postal Service employee. Her coverage as an employee entitled her to due process and was based on her status as a preference eligible. The information here is applicable with other excepted service cases.
Redus was terminated in June 1998 after more than a year of service as a Distribution Clerk. The charges were failure to report for duty as instructed and AWOL. She was not given a proposed notice and opportunity to reply, nor was she given MSPB appeal rights. Regardless, Ms. Redus found her way to the Board.
Her husband was 100 percent disabled. The Postal Service was not aware of this. She did not use spousal preference to obtain employment. She produced documentation of his disability after her termination. The VA documentation she supplied was dated Jan. 20, 1998, and said:
“This will certify that Leon Redus is a beneficiary of the Department of Veterans Affairs; that said beneficiary has been rated incompetent by the Department of Veterans Affairs in accordance with the laws and regulations governing said Department and that the appointment of a guardian of his estate is a condition precedent to the payment of monies due said beneficiary by the Department.”
Redus was persistent in advancing her case. She lost at the initial level because the AJ ruled that while her husband was disabled, there was no evidence that he had failed to qualify for any appointment. The AJ’s decision was upheld by the Board. Redus continued her challenge to the Federal Circuit. The Board asked the Federal Circuit to let them review the decision. The Court agreed, which led to the decision cited above.
The Board changed its mind regarding what was necessary to meet the last portion of the definition in 5 USC 2108(3)(E). It found the information Redus showed that her husband would not have qualified for any Federal position was sufficient to give her preference. Because of that, she was entitled to due process. The agency stated that it did not give notice because it did not know that she was a preference eligible. That was immaterial. The Board overturned the action and waived the untimely filing, since she was not given notice of her appeal rights.
In Cowan v. Interior, DE-0752-10-0066-I-1 (MSPB 2010), something similar happened. Cowan claimed preference when she was hired. She produced documentation that her husband had been rated as 70 percent disabled by the VA, had been granted a disability annuity by SSA, and had resigned from his civil service position due to his diabetes.
In spite of this, Interior violated her due process rights, and they were reversed. Haga@FELTG.com
By Deborah J. Hopkins, June 14, 2023
A new case from the EEOC on hostile work environment harassment illustrates the importance of an agency’s actions in not only avoiding liability, but also (and more importantly) in protecting the victim from continued unwelcome conduct. Joan V. v. VA, EEOC Appeal No. 2022002963 (Apr. 20, 2023). In this case, the agency was dinged for failing to “properly address” a situation where a complainant was receiving multiple unwanted sexually explicit text messages from an unknown source, on her government-issued cell phone. The messages included “multiple specific references to female genitalia and acts to be performed to male genitalia.”
The complainant requested a new phone number on March 25, 2021. On March 29, the IT Service Desk denied the request, responding via email: “‘Each phone comes with a SIM card that supports a number. We pay for each number we receive. We can’t change out your number due to too many calls and text messages … The cost does not outweigh the benefit.’”
Over the next several weeks, the complainant made multiple additional attempts to get a new phone or phone number. She was given what we Midwesterners call the “run-around.” She finally received a new phone number on May 21 — eight weeks after her initial request.
Unfortunately, the sexually explicit messages began coming to her new number. Over the course of the next several weeks, her number was changed yet again. In August 2021, five months after the initial request, the complainant received a third new phone number and requested that the “number not be placed in the Global Address Listing (GAL).” The agency granted her request and this resolved the problem. She finally stopped receiving unwanted text messages. The case does an excellent job setting out the legal standard for HWE claims: To establish a claim of harassment, the complainant must show:
- she is a member of a statutorily protected class;
- she was subjected to unwelcome verbal or physical conduct involving the protected class;
- the harassment complained of was based on the protected class;
- the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
- there is a basis for imputing liability to the employer.
[Citation omitted.]
Based on the number, duration, and egregious nature of the text messages, the EEOC found the first four elements satisfied. The discussion on element 5 – agency liability – took into consideration the agency’s delay in providing prompt, effective correction action:
The Agency is under an obligation to do “whatever is necessary” to end harassment, to make a victim whole, and to prevent the misconduct from recurring… The ongoing nature of the harassing behavior demonstrates that actions taken by the Agency were not effective in alleviating the harassment. As such, we find that Complainant established that she was subjected to harassment based on sex for which the Agency is liable.
The moral of the story: It shouldn’t take five months to provide prompt, effective corrective action to a victim of harassment. For more on harassment and other challenging EEO issues, join FELTG on July 12-13 for Advanced EEO: Navigating Complex Issues. Hopkins@FELTG.com
By Ann Boehm, June 14, 2023
Frequently, folks in FELTG training classes ask how to handle an employee who is rude, or angry, or disruptive, or makes inappropriate comments, or writes inappropriate emails. Often, these folks mention complaints from other staff members or supervisors about the employee’s behavior. And for some reason, they often fear taking action against the employee for the disruptive behavior.
A FELTG trainee’s recent inquiry about an employee’s disruptive behavior prompted me to look at Merit Systems Protection Board (MSPB) cases to see whether the Board thinks these types of matters merit discipline and even removal. Lo and behold, the Board does!
In one case, the agency removed an employee based upon 18 (!!) specifications of conduct unbecoming a Federal manager. Hornsby v. FHFA, DC-0752015-0576-I-2 (April 28, 2022) (NP).
One of the 18 specifications involved an incident that occurred during a meeting with a colleague. The employee held up an email from another employee and said he found it to be “’[expletive] offensive.’” Id. at 8. The colleague wanted to leave the meeting based upon the employee’s use of the expletive. Although the Administrative Judge did not think the single use of the expletive was conduct unbecoming, the Board disagreed. Id.
The Board sustained the specification, noting that it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.” Id. at 9 (emphasis added). The Board cited two cases sustaining removal for such behavior. Id. [Side note: Those are good cases to review if you have an employee who is rude, discourteous, disrespectful, or using abusive language. They are Holland v. DoD, 83 MSPR 317 (1999), and Wilson v. DOJ, 68 MSPR 303 (1995).]
The Board ended up sustaining only five of the 18 specifications, including the use of the expletive. It also sustained the specification about the employee revealing the name of an EEO complainant to those without a need to know; one where the employee put his hands over the mouth of a colleague to stop him from speaking in a meeting (who does that in the workplace!?); one where he intimidated agency attorneys by suggesting that if they did not edit a memo to his liking, the memo could be a “’career ender’”; and one where he asked the Human Resources Director to intervene to make his supervisor give him a higher performance rating (that one included an email directing the intervention and threatened legal action). Id. at 9-14. These actions were all enough for the Board to reinstate the removal that had been reversed by the Administrative Judge. Id. at 23-27.
Other inappropriate conduct to take very seriously is anything threatening harm to others — especially in today’s violence-filled environment. In Barker v. Department of the Army, DC-0752-15-1056-I-1 (May 22, 2023) (NP), the employee said, “‘They are pushing me over the edge. You think they would be concerned about that with all these shootings.’” The agency removed him based on charges of conduct unbecoming a Federal employee and lack of candor. Id.
Even though the Board sustained only the conduct unbecoming charge, it still found the penalty of removal to be reasonable. Id. at 11-14. Factors that supported the reasonableness of removal included the employee’s past 14-day suspension for threatening to kill his supervisor (which, in my opinion, should have been a removal), and because the employee’s comment was made soon after a shooting at a nearby Fort. Id. at 13-14.
As human beings, we know what constitutes inappropriate workplace behavior, yet I fear agencies tolerate it more than they should. Take the allegations seriously and investigate. Then see what the Board has said about similar misconduct. And always, always, always take threats seriously.
We have plenty of good employees in the Federal government. Don’t subject them to rude, angry, inappropriate, and threatening behavior by the bad ones. The Board says you should be able to remove the bad ones for such conduct. That’s Good News! Boehm@FELTG.com
By Deborah J. Hopkins, June 14, 2023
We get a lot of questions about probationary periods. There can be confusion if employees switch agencies, are rehired after a break in service, or have veterans’ preference.
The end date of an employee’s initial appointment probationary period, however, is not a mystery. The probationary period lasts one year; it ends when the appointee completes his scheduled tour of duty on the day before the anniversary date of his appointment. 5 C.F.R. § 315.804(b). Therefore, an agency can pinpoint the exact moment the probationary period ends, and they can do so from the very first shift the employee works.
A recent MSPB case (Stewart v. DOT, 2023 MSPB 18 (May 16, 2023)) reinforces a lesson that’s important to share with all supervisors, advisors, and agency leaders: If you want to remove a probationary employee, do NOT wait until the very end of the probationary period to do so. Give yourself a cushion of at least a few days.
Here’s a timeline to help clarify what happened in the case:
- The appellant began working for the Department of Transportation as a career-conditional GS-12 Safety Recall Specialist on Jan. 22, 2017. His regular work schedule was Monday through Friday, 7 a.m. to 3:30 p.m.
- On Jan. 11, 2018, his Division Chief recommended that he be terminated for post-appointment reasons.
- Also on Jan. 11, the Division Chief informed the appellant that, unless he resigned his position on or before Jan. 15, he would be terminated.
- On Jan. 16, the appellant tendered his letter of resignation, to be effective Monday, Jan. 22.
- HR advised the division chief that Jan. 22 was AFTER the end of the probationary period, so the Division Chief requested the appellant change his resignation date to Friday, Jan. 19, his last scheduled workday before the expiration of his probationary period. The appellant declined, yet he returned his laptop and PIV at the end of his tour Jan. 18.
- On Jan. 19, HR “obtained the signatures from the relevant officials and completed the paperwork necessary to effect the termination action.”
- Also on Jan. 19, the appellant was out on previously scheduled sick leave so the agency sent the termination notice “effective at the close of business on January 19, 2018” to his work email address, and by overnight delivery to his home address.
Do you see a problem yet?
According to the Board, “we find that a termination at the end of a probationer’s final tour of duty does not satisfy the regulatory requirement that a termination be effected before the end of his final tour of duty. See 5 C.F.R. § 315.804(b).” [bold added]
Even if the appellant had somehow logged in to his work email at some point before 3:30 p.m. on Jan. 19, which is disputed as he had returned his laptop the day before, the language in the letter controls. The appellant was clearly informed he was being separated after his probationary period was completed. And because he was no longer a probationer, he was removed without due process.
Thanks to the lack of quorum at the MSPB, this case sat in the stack of PFRs for more than five years, until last month when the Board ordered the agency to restore the appellant to his previous position and pay five-plus years of back pay, plus other costs.
For more on this topic, join us on Aug. 1 for Everything You Need to Know About Probationary Periods – a comprehensive one-hour virtual training.
By Dan Gephart, June 14, 2023
Several years ago, Verna Myers, VP of Inclusion Strategy at Netflix, explained the focus of her job by telling attendees at a Cleveland Bar event: “Diversity is being invited to the party, but inclusion is being asked to dance.”
Several years later, Myers’ quote still pops up regularly on LinkedIn and Facebook, and during D&I-related presentations.
We should give Myers at least partial credit for dispelling the confusion around what inclusion means. Inclusion is no longer such a seemingly abstract concept, and no longer diversity’s “and one.” It is one of the four pillars of President Biden’s Executive Order on Diversity, Equity, Inclusion and Accessibility (DEIA).
FELTG has done numerous DEIA training sessions for agencies since the President signed EO 14035 in June 2021, and we cover every letter in that acronym. Sometimes, per agency request, we’ll add another letter to make it DEIAB training. Where the heck did that “B” come from and what does it stand for?
FELTG Nation, meet “belonging.” You may already know it, as belonging is among the buzziest of HR words these days. Belonging is tied closely with psychological safety, a concept we discussed earlier this year, and one that J. Bruce Stewart defined as the “ability of a person to feel safe in speaking up at work or in the community, especially if that person has a different perspective or viewpoint.” [Editor’s note: Join Bruce on Aug. 2 for The Race Ahead: Breaking the Cycle of Racial Bias by Rewiring the American Mind.]
Some of you may not value an employee’s comfort in speaking up. I can hear you now: “Implement something that’s going to make people feel more comfortable about complaining even more? No way!” To those skeptics, I’d say you’re doing that whole baby and the bath water thing. Yes, some employees in a psychologically safe workplace will feel the need to complain about everything. But, as we all know, those employees are very capable of complaining regardless of the psychological safety of the environment.
When employees feel they belong, they don’t fear punishment for mistakes and feel comfortable enough to take risks and share creative ideas. This is the kind of workplace environment that leads to improved engagement, heightened morale, and increased FEVS scores. Oh, and fewer EEO complaints. Would you rather have an employee tell you that something “felt like a microaggression” and allow you to appropriately address it? Or would you rather hear about it later from the Office of Federal Operations?
There are several ways you, as a supervisor, can create a sense of belonging. Ask for feedback about your management of a meeting. Encourage collaboration instead of competition and replace blame with curiosity.
FELTG Instructor Katherine Atkinson will address belonging as part of her Addressing Bias and Microaggressions to Advance Agency DEIA on June 29 from 1-3 pm ET and in Setting the Bar: Advancing Diversity, Equity, Inclusion, and Accessibility for FY ’24 on Sept. 26 from 1-4:30 pm ET.
[Editor’s note: You can bring either of these classes to your agency virtually. Just contact us at info@FELTG.com. For more on bias and microaggressions, check out Advanced EEO: Navigating Complex Issues July 12-13.]
If you’re looking for a pithy saying to encapsulate what belonging means, we can build onto Myers’ quote, as Indeed Executive LaFawn Davis did on the company’s website.
“Diversity is being invited to the party, but inclusion is being asked to dance,” Davis wrote. “I love that quote — and I’d like to adapt it by adding that belonging is knowing all the songs. Knowing all the songs goes beyond simply being invited to the party; you feel like you belong there. And you can’t help but dance; it’s your jam!”
