And Now a Word With … Mxolisi Siwatu About EEOC’s Report on Older Workers

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By Dan Gephart, February 22, 2022

What do you want first — the good news or the bad news? The Equal Employment Opportunity Commission’s recent report on older Federal workers offered a little bit of both. Let’s start with the good news. General job satisfaction, perceptions of workplace inclusion and fairness, as well as having your agency EEO Director report directly to the agency head, all lead to a decreased likelihood of having an age discrimination complaint, according to the report conducted by the EEOC’s Office of Federal Operations. Basically, the data is providing a clear path to limiting discrimination complaints at your agency. And following this path will improve your FEVS scores and make your workplace more desirable to current and future employees. Kind of a win-win-win-win.

And there’s more good news. Employees 40 years or older make up 72 percent of the Federal workforce. That’s a whopping 18 percent higher representation than 40-and-up employees in the overall civilian labor force (CLF). Also, the Federal cohort is more diverse than its private sector counterpart.

Now the bad news. The report found a a significant pay disparity between older men and older women in the Federal workforce. The EEOC also found a persistent pay gap between white and Asian Federal employees as compared to other groups of older Federal employees.

Mxolisi Siwatu, PhD, an EEOC Office of Federal Operations (OFO) social scientist research analyst, took time to answer our questions about the report.

DG: Why do you think the 40 and older cohort is better represented in the Federal workplace than the private sector? What do Federal employers do right?

MS: We argued that it is possible that the difference between the private sector and the public sector in EEO performance may be due to greater oversight. The Office of Federal Operations gained increased oversight responsibilities with the introduction of Management Directives 110 (2003), which provides guidance to federal agencies for how to process EEO complaints; and Management Directive 715 (2003), which provides guidance to agencies for how to maintain an EEO program. Also, OFO provides ongoing technical assistance to Federal agencies in support of these directives, which may also contribute. However, it must be noted that this is speculation on the part of the authors and no causal analyses were conducted in the current research.

DG: Men account for 57 percent of the Federal workforce 40 or older, while it is only 45 percent in the private sector. Is there an explanation for that wide gap, and what do you suggest that agencies do differently to narrow that gap?

MS: We did not speculate on why this gap was found. However, OFO conducts technical assistance visits regularly with each Federal agency. During these visits, their participation data are assessed in relation to the CLF. Recommendations are provided to Federal agencies to address any discrepancies observed and progress is monitored thereafter. So, if we note gender disparities, it is addressed with the specific agency.

DG: The report identifies the perception of fairness as a predictor of age discrimination complaints and shares six strategies to achieving that fairness based on research by Jennifer Lee and Ann Smith. What actions can EEO specialists and supervisors take to immediately improve the perception of fairness?

MS: Lee and Smith’s article was written primarily for private sector companies. Many of the strategies identified by Lee and Smith are already practiced in the Federal sector due to guidance derived from MD-110 and MD-715. To drill down to the office or supervisory level, agencies may engage in demonstrated commitment to EEO in a way that is visible and meaningful to their workforces as a way of improving perceptions of fairness.

[Editor’s note: The six strategies identified in the Lee and Smith research are: authorizing workers’ complaints by allowing third parties to advocate on the part of disadvantaged populations and employees; creating enhanced penalties for engaging in discrimination; mandating that employers disclose information to workers about their rights; having strong anti-retaliation laws; expanding liability by placing the burden of proof on the employer; making reporting of employer discrimination data to the public and governing bodies mandatory.]

OFO recommends activities that promote EEO awareness, anti-harassment education for staff and managers, timely complaint processing and resolutions, and having a reporting structure in which the EEO program director reports directly to the agency head. In addition, ongoing monitoring of diversity and inclusion at the agency with respect to hires, promotions, and separations is required. Ongoing commitment and proactive prevention efforts may help promote a climate of EEO among the workforce that encourages lawful treatment, but also confidence in reporting unlawful treatment when appropriate.

[Editor’s note: FELTG offers several upcoming virtual training events that can help improve your DEIA efforts including:

DG: One of the main findings of the report is the importance of having EEO high up in the reporting structure, most effectively having the EEO Director report directly to the agency head. For those agencies where that’s not the current situation nor likely to be, what advice can you provide for EEO professionals and supervisors?

MS: OFO has been working to encourage all agencies to reorganize their EEO office so that the EEO Director reports directly to the agency head, as required by MD-110. As of FY2019, currently 61 percent of agencies have an EEO Director that reports directly to the agency head. OFO continues the goal of achieving 100 percent compliance among all agencies with this requirement as it remains one of the key priorities during technical assistance visits and audits.

Siwatu did not specifically say whether agencies are making progress on the hiring of a Chief Diversity Officer, as suggested in Executive Order 14035. However, he did say that the EEOC has been an “active participant in the implementation” of the EO and the goal is to have the CDO and EEO Director positions “complement one another to meet the Administration’s broad equity goals.” Gephart@FELTG.com

Three Things You May Not Know About Nondiscriminatory Hiring

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By Deborah Hopkins, February 15, 2022

By now, FELTG readers know that Diversity, Equity, Inclusion and Accessibility (DEIA) in the Federal workplace is a priority for the Biden Administration. And many agencies are in the process of hiring new employees, keeping in mind that the workforce should represent all of America, including traditionally underserved populations.

President Biden’s recent announcement that his pick for the Supreme Court would be an African American woman has also raised questions about what is and is not permitted in the hiring process within the Federal government – something we’ll be tackling in the March 16 virtual training event Nondiscriminatory Hiring in the Federal Workplace: Advancing Diversity, Equity, Inclusion and Accessibility. As we await this important event, I wanted to share three items to consider if you’re involved in the hiring process in any way.

  1. Sometimes it is legal to hire someone because of their sex.

Occasionally, a person’s sex can legally be a bona fide occupational qualification (BFOQ). While this only applies in very limited circumstances, agencies can set this requirement if there is a legitimate, business-based reason. See, e.g., Dewey R. v. DOJ, EEOC App. No. 0120142308 (May 20, 2016) (sex was a BFOQ for a correctional officer position that required performing strip searches on female inmates).

  1. It is illegal to refuse to hire someone because of their sexual orientation.

While this has been the law in the Federal government since the July 2015 decision Baldwin v. Secretary of Transportation, EEOC Appeal No. 0120133080, it became law for the rest of the country in the June 2020 Supreme Court decision Bostock v. Clayton County, 140 S. Ct. 1731.

As I say in many classes, just because a law exists doesn’t mean everyone follows it. In a recent EEOC decision, a complainant was discriminated against based on his sexual orientation when he was not hired for an Assistant Fire Operations Supervisor. While the agency claimed non-discriminatory reasons for the nonselection, EEOC found these reasons were pretextual.

For example, the complainant was ranked as the top candidate among seven after a selection panel recommended individuals to hire. However, one of the supervisors involved in the hiring process decided to expand the field to 12 candidates and changed the weight that references held. That supervisor also did not contact any of the references the complainant provided. As a result, the complainant dropped from the top spot to eighth on the list and was not given a second interview. EEOC found this discrimination was motivated by the complainant’s sexual orientation.  Bart M. v. Interior, EEOC Appeal No. 0120160543 (Jan. 14, 2021).

  1. Sometimes, the complainant doesn’t even need to apply for the job in order to state a claim of discrimination in the hiring process.

While you might think that applying for a job is a prerequisite to claiming discriminatory nonselection, there are always exceptions. A complainant need not establish that he applied for a job as an element of a prima facie case if he can show that he was actively discouraged by management from applying for the job in the first place, and that discouragement was tied to or motivated by the complainant’s protected EEO category or EEO activity. See O’Connor v. Secretary of Veterans Affairs, EEOC Appeal No. 0120112072 (2011).

We’ve got plenty more, which we’ll be sharing with you in this space and in our upcoming training sessions. We hope to see you there. Hopkins@FELTG.com.

Ambulance Company Fails to Respond Properly to Harassment Allegation

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By Dan Gephart, February 15, 2022

Within 24 hours of receiving an unwelcome picture of a sexual nature from a coworker, EMT Andrea Vasquez was fired.

For sexual harassment.

How does something like that happen?

Vasquez v. Express Ambulance Service, 835 F.3d 267 (2d Cir. 2016) is a private sector case. And it’s a few years old now. Yet, it vividly illustrates what happens when an employer relies on evidence of questionable validity. Vasquez is also an example of lazy investigation and victim-blaming. It is one of many cases that will be discussed during  Workplace Investigations Week. The virtual training event runs from February 28-March 4, and will focus on employee misconduct, including workplace harassment.

Here are the details:

Ambulance dispatcher Tyrell Gray flirted regularly with Vasquez. This included touching her shoulders, putting his arm around her, and asking her out. Vasquez regularly rebuffed Gray’s advances. One night, Vasquez reminded Gray that she had a boyfriend. Gray told her that he “could make her leave her man” and promised to send her something during her shift.

Common parlance for what Gray sent Vasquez is as crude as the actual action – a naked picture that made famous people like Brett Favre and Anthony Weiner infamous. Gray captioned the photo with “Wat u think?”

When her shift ended, Vasquez reported the photo incident to her supervisor, who told her to file a complaint right away. Gray saw a visibly shaken Vasquez filling out paperwork and surmised that she was reporting him. He left the room and asked a coworker to lie to supervisors that Vasquez and Gray had a romantic relationship. The coworker declined, and Gray left the building.

Vasquez filed the report. An HR official and supervisor thanked her and assured her that they won’t tolerate this behavior and that they would “sort the situation out.” Vasquez offered to show them the phone messages, but they declined.

The employer’s response sounds reasonable so far, right? Not so fast.

Gray altered a text chain with another woman to make it look like he and Vasquez were having a romantic relationship, and then provided copies of that altered text chain to a supervisor to “prove” that he and Vasquez were dating.

By the time Vasquez was to meet with a committee that included a union rep, the HR official, and the owner of the company, Gray’s “evidence” had already been considered, and Vasquez was told that that she had been terminated for having an “inappropriate sexual relationship” with Gray.

The investigation was certainly prompt, though it was clearly far from effective. What can agencies learn from this debacle? Here are a few points to consider:

  • Gather sufficient evidence to establish uncontested facts in case. How was reviewing the alleged harasser’s text messages consider sufficient, while refusing to review the complainant’s phone?
  • Gather as much evidence as possible on contested facts so the fact finder can reasonably draw conclusions. Beyond looking only at the alleged harasser’s text chain, why was the coworker asked to lie not interviewed?
  • Consider the reliability of the evidence. The fact that the alleged harasser just happened to have photocopies of amorous email exchanges on the very morning that he’s accused of harassment should have been important to the fact finder in drawing conclusions.

And remember this: Failure to appropriately investigate claims of harassment will come back to bite you.

Vasquez filed a retaliation complaint. Although a district court granted Express Ambulance Service’s motion to dismiss, the Second Circuit Court of Appeals reversed that decision.

In its decision, the court wrote:

“Although Vasquez does not use the term “negligence” in her complaint, we conclude that she has pled facts from which a reasonable person could infer that Empress knew or should have known that Gray’s accusations were the product of retaliatory intent and thus should not have been trusted.”

What can be trusted is FELTG training. We hope to see you later this month at Workplace Investigations Week. Gephart@FELTG.com

The Good News: Brief is Better

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By Ann Boehm, February 15, 2022

Communication in 2022 is dominated by Twitter, which limits users to 280 characters per Tweet. Online news organizations provide news feeds specifying number of words and expected reading time. Brevity is so important that online news organization, Axios, has trademarked and is marketing the concept of “Smart Brevity.”

So FELTG friends, stop writing such long discipline documents!!!

No one wants to read a 10-, 15-, or heaven forbid, 25-page proposal to remove or suspend.

Why do managers, employee relations specialists, and attorneys write such long documents? Probably because of fear. The fear is unjustified.

Writers of documents with legal implications believe that providing more words will protect in the event of a lawsuit. In reality, more words are likely to prove detrimental.

We write the way we talk, and in oral communication, silence is uncomfortable. Writing becomes excessive because of unnecessary space fillers — comfort words. Learn to recognize those and cut them! Examples: therefore; essentially; literally (I hope you don’t use that, but suspect you may); henceforth, the, that, etc. Writing is not the same as speaking.

We also worry that failing to cover every possible detail will hurt our case. Judges are guilty of this. Long decisions prevail. If you asked judges, though, they probably prefer to read shorter documents from litigants.

The challenge to concise writing is knowing what is important to the reader. I imagine news organizations now providing word counts and reading times had to adjust to the societal desire for brevity. But reading these news feeds provides the information you need to know without the fluff. People love it!

I challenge you to read the now-prevalent shortened communications. Note how effectively people on Twitter communicate with 280 characters. Pay attention to how news feeds highlight critical information.

Next, apply what you learn to your writing. Resist long factual narratives and put relevant factual information in specifications supporting charges. Trust me. Try it. You will be amazed.

Then, edit your documents. Cut out extra words. Read for what matters. Take out what does not. This takes confidence. The benefits will be significant. You will save time and energy for all subsequent readers. Those readers are likely decision-makers. They will see points concisely and cogently and will not get mired in extraneous details.

This will be an adjustment. It will take confidence. It will improve the discipline process. And that’s good news! Boehm@FELTG.com

[Ann’s note: The original version of this article had 491 words. After editing, it has 396 words. You didn’t miss a thing!]

For more on drafting disciplinary documents join FELTG for MSPB Law Week March 28-April 1, 2022. 

Questionable Hiring Decision Leads to Bad Behavior in HR Office

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By Barbara Haga, February 15, 2022

In August 2020, I wrote about a case involving an HR official who sent racists texts about other employees to subordinates, which the subordinates reported. Jenkins v. Department of Transportation, No. 2019-2075 (Fed. Cir. Aug. 6, 2020).

Jenkins, the HR official, was removed for (1) inappropriate conduct, (2) making disparaging remarks racial in nature, and (3) lack of candor. The Federal Circuit upheld the charges and the removal.

Jenkins had made several attempts to avoid responsibility. For example, her initial response was that she didn’t send the texts, then she said she didn’t remember sending them, and finally she argued that the texts were sent from her personal phone and, thus, not the agency’s business. None of these attempts worked.

I didn’t think I would be shocked by this kind of HR practitioner lack of candor again, but I recently found a case that I missed in the weekly MSPB report that summer, because this one was issued the very next day. The case is Freeland v. Department of Homeland Security, No. 2020-1344 (Fed. Cir. Aug. 7, 2020).  Before we get to the lack of candor charge, let’s look at the hiring of this individual by DHS.

Freeland’s Story

Freeland was removed in 2017 from the position of Supervisory Human Resources Specialist in the Recruitment and Placement Branch of a DHS Human Resources Operations Center.  Supervisory staffing positions would typically be concerned with ensuring that appointees are qualified for the jobs they are placed in, and that the required drug tests, physicals, and background checks are completed. Basically, their job is to ensure that the recruitment process is carried out properly and that appointments are legal.

Prior to working for DHS, Freeland had held the same type of position at an Army Civilian Human Resources organization. He resigned in May 2015 after he was issued a proposed 14-day suspension for negligent performance of duties. At the time of his resignation, he was also the subject of a workplace sexual harassment investigation. DHS brought Freeland to work on Sept. 20, 2015. Yes, that’s right. They hired a supervisory HR specialist four months after he resigned from another supervisory HR specialist position. His SF-50 stated that he gave no reason for resignation.

Given what transpired with his security paperwork, which led to the lack of candor charge, it seems that DHS hired Freeland without knowing about the prior issues.

I regularly teach classes on interviewing and reference checking. It’s important. You don’t need to bring another agency’s problem child onto your rolls. Freeland’s recent work history should have been a flashing red light to anyone looking at his resume.  He resigned with no reason given.

That’s Strange

A staffing specialist resigns with no reason given? That’s strange. He applies very quickly to come back to the government in a similar position? That’s strange.

Federal employees and staffing folks who understand what it takes to get back onto the Federal rolls from the outside, don’t resign. They apply for reassignments and transfers and promotions.

Did DHS interview Freeland? I would have asked what his reason was for resigning since none was given. He didn’t have to answer. He might have made up some story, but I would ask. I would also routinely ask:

  • Have you been the subject of any sort of performance counseling in the past appraisal cycle? If so, what was the outcome of the counseling?
  • Have you been questioned and/or counseled by your supervisor about any type of disciplinary infraction in the past year? If so, what was the outcome?

Suggested Questions

If I am interviewing for a supervisory position, I would ask something like, “If I contacted your supervisor and asked about your three major accomplishments in your supervisory position, what would he or she say?” I would let Freeland know that I was going to follow up on these issues with his past supervisor.

If he said I couldn’t contact his last supervisor? I would tell him that it’s highly unlikely he would fare well in the rest of the process if I could not validate the information he provided. If he didn’t give permission, I would be very unlikely to hire him.

It’s important to follow up on these questions. In this case, Freeland’s selecting official should be an even higher-level supervisor in HR so he/she/they should have known that an in-depth reference check was needed.

Freeland’s Army supervisor should have been asked the same things.

  • The SF-50 provided doesn’t give a reason for Freeland’s resignation. Are you aware of a reason? (Remember there is no settlement here, so the agency wasn’t prohibited from releasing information by terms of a contract.)
  • Did you counsel Freeland about any type of performance deficiencies in the past appraisal cycle? What happened as a result?
  • Did you have occasion to question or counsel Freeland about a disciplinary matter in the past year? What was the outcome of that?
  • What were the three most important contributions Freeland made as a supervisor?

One of my final questions would be: “If Freeland was eligible for a promotion and you had a vacant job at the higher grade that you could put him in today, would you?” Unless that Army supervisor (who is also an HR Specialist) is a seasoned prevaricator, you are likely to get him/ her/them to spill the beans during the conversation.

Freeland was issued a 14-day suspension notice on negligent performance of duties. We don’t know whether this was negligence related to his staffing/recruitment duties or his supervisory functions, but I think using the in-depth questions I described might get you to a point where you figure out that something isn’t right. As far as the sexual harassment investigation, there may have been no conclusions from that at the time he departed his Army job, but that could have come later. (I will do a column on annotating investigations per provisions included in the NDAA for FY 2017 in the near future.)

I was working with a supervisor on a GS-14 performance plan a week ago, and he was complaining that he had picked up a problem employee from another agency. He was upset with the losing supervisor. He said, “I did a reference check, and that person didn’t tell me the truth.” I knew he was frustrated. It didn’t change anything we were doing, so I didn’t press the issue, but I really wanted to know what questions he asked.

Did he ask, “Is this person reliable?” The answer could be yes. The work is barely acceptable, but they always turn something in on time.

Did he ask, “Is the person regular in their attendance?” The answer could also be yes. The person is always there, but they don’t do much when they are there. The losing supervisor might technically have answered what she was asked truthfully.

Without getting into in-depth areas like the questions described above, your selecting officials may not find out about issues that would cause them to move on to another candidate.

Next month, we will look at what happened once Freeland was brought on board. Haga@FELTG.com

[Editor’s note: Would you like to bring Barbara Haga’s Successful Hiring: Effective Techniques for Interviewing and Reference Checking to your agency, either on-site or virtually? contact Training Director Dan Gephart at Gephart@FELTG.com.]

Save Time with Summary Judgment

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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

Demystifying the Individual Right of Action

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By Deborah Hopkins, February 15, 2022

A lot of FELTG training involves how agencies should handle disciplinary actions known as Otherwise Appealable Actions, or OAAs. OAAs are suspensions of 15 days or more, demotions, and removals. OAAs get their name because they are agency actions that by statute the employee may appeal to the Merit Systems Protection Board (MSPB or the Board). You may think OAAs comprise most of the MSPB’s caseload. In reality, only about half of the Board’s cases deal with OAAs.

Generally, if an employee files an appeal to the MSPB over a 10-day suspension, reprimand, or low performance rating, the Board does not have jurisdiction and would dismiss the appeal because these actions, while unpleasant to the employee, are not OAAs. But there’s an exception in which a Federal employee (or former employee) can file an appeal to the MSPB over an action that would otherwise not be within the Board’s jurisdiction. It’s the Individual Right of Action (IRA).

The employee is entitled to an IRA hearing if the employee claims a personnel action (reprimand, short suspension, low performance rating, significant changes to job duties, to name just a few) was motivated by the fact that the employee had:

  • Exercised any appeal right that includes a claim of whistleblower reprisal;
  • Cooperated with an agency’s inspector general or OSC investigators;
  • Refused to follow an order that would require a violation of law, rule, or regulation; or
  • Assisted another employee in the exercise of that employee’s rights.

5 USC 2302(b)(8)-(9).

IRAs aren’t rare. In 2020, 11 percent of the Board’s caseload dealt with IRAs.

The Federal Circuit has been quite busy lately (perhaps because the MSPB has been without a quorum for 1,866 days) handling appeals over the outcomes of Administrative Judge decisions on Board IRAs.

Here are a few recent and notable takeaways:

Smolinski v. MSPB, No. 21-1751 (Fed. Cir. Jan. 19, 2022)

The appellant, a visiting provider at an Army hospital, alleged several instances of reprisal for protected activity. While the court rejected most of the claims, it referenced the abuse of authority standard in whistleblower reprisal complaints: “Although 5 U.S.C. § 2302 does not define the term ‘abuse of authority,’ the court found it appropriate to apply the definitions found in related whistleblower protection statutes … and determined that the alleged conduct … would qualify.”

In addition, the court said that in determining jurisdiction over an IRA appeal, the MSPB is not limited to the four corners of the appellant’s original OSC complaint, and that it may consider other relevant agency evidence that supports the appellant’s allegations.

Gessel v. MSPB, No. 21-1815 (Fed. Cir. Jan. 19, 2022) (NP)

This case involved an Air Force employee’s probationary removal. While probationers don’t have full MSPB appeal rights, they still may file an IRA appeal at the MSPB over the removal if they claim it was motivated by reprisal for protected activity. This employee was fired as a probationer because he lost a key to a government building, and the agency had to pay a large amount of money to have the building rekeyed. The employee claimed his removal was not for the loss of the key but rather because he was a whistleblower who made a protected disclosure. The Federal Circuit affirmed the Board’s dismissal of the IRA and found the disclosures were not protected but were the result of typical workplace conflicts. Reports that his coworker made him “uncomfortable,” was “confrontational and attempt[ed] to supervise or discipline him,” and “often watch[ed] foolish and juvenile rap videos and other material,” did not meet the standard set out in the Whistleblower Protection Act.

Marana v. MSPB, No. 21-1463 (Fed. Cir. Jan 20, 2022) (NP)

The appellant, a nurse at an Army hospital, was removed for conduct unbecoming a Federal employee after he inappropriately disclosed a patient’s personal and health-related information to unauthorized individuals. Several of his claims were dismissed because more than two years had passed between his disclosures and the adverse personnel action for which he requested relief. There is a wealth of case law on the knowledge-timing aspect of whistleblower cases: Costello v. MSPB, 182 F.3d 1372, 1377 (Fed. Cir. 1999) (“A two-year gap between the disclosures and the allegedly retaliatory action is too long an interval to justify an inference of cause and effect between the two . . . .”); Salinas v. Army, 94 MSPR 54, 59 (2003) (the disclosure and the allegedly retaliatory act two years later were “too remote in time” for a reasonable person to conclude that the disclosure was a contributing factor to the action taken).

These can be confusing and complicated subjects, and not every personnel action gives the employee the right to file an IRA. For more on OAAs, IRAs, whistleblowing, and related topics, join us virtually for MSPB Law Week, March 28-April 1. Hopkins@FELTG.com

3 Things to Know About the Federal Vaccine Requirement’s Injunction

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By Deborah Hopkins, February 7, 2022

On January 21, a Federal district judge in Texas issued an injunction on the vaccine requirement for Federal employees, established last September by Executive Order 14043. The Biden Administration has appealed the injunction and has requested a stay while the appeal makes its way through the system. While we await the outcome, there are a few nuances of which your agency should be aware.

1. Your agency should still collect information about employee and future employee vaccination status.

Though the vaccine requirement is on hold, the information on vaccination status is important to agencies as they determine safety protocols for the physical workplace. Agencies are not prohibited from using information on vaccination status to set guidelines for masking, distancing, testing, travel, and quarantine requirements.

2. Your agency does not need to rescind discipline that has already been issued and completed for failure to comply with the vaccine requirement.

While most agencies have not yet implemented discipline for employees who were not vaccinated by the November deadline, some have. The Safer Federal Workforce Taskforce guidance is clear: During the pendency of the appeal on the injunction, the discipline should remain as issued. That said, the discipline should not be relied upon as an aggravating factor in any new disciplinary actions.

3. If your agency predicated an offer of employment on a vaccine requirement, it should amend the offer and remove the vaccine requirement.

However, because this injunction is not the final disposition on the issues, the Task Force suggests the following language be included in the amended offer:

“To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Federal agencies may request information regarding the vaccination status of selected applicants for the purposes of implementing other workplace safety protocols, such as protocols related to masking, physical distancing, testing, travel, and quarantine.”

There’s much more to discuss on this topic, including information on exemption requests, what agencies should do if they are exempt from the injunction, and whether agencies are permitted to establish independent vaccine requirements for their workforce. Join FELTG next Thursday, February 17, at 1 pm ET for the 60-minute virtual event Vaccine Mandate on Hold: What Now for Accommodation, Discipline, and Hiring? Hopkins@FELTG.com

Federal Court Puts Vaccine Mandate on Pause: What’s Next?

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By Dan Gephart, January 24, 2022

The FELTG mailbag has been overfilled of late with questions from readers preparing to take adverse actions against employees who failed to comply with President Biden’s vaccine mandate. Today we can answer all those questions with just five words:

Put those actions on hold.

Last week, a Federal judge in Texas issued a nationwide injunction against the requirement that Federal employees be vaccinated against COVID-19, thus enjoining the defendants from “implementing or enforcing Executive Order 14043 until this case is resolved on the merits.”

Judge Jeffrey Brown of the Southern District of Texas wrote:

“The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19 — the court believes they should. It is not even about the federal government’s power, exercised properly, to mandate vaccination of its employees. It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.”

The Supreme Court struck down Biden’s similar mandate for private sector companies with more than 100 employees. The U.S. Postal Service was part of that mandate. It’s highly likely that this case – Feds for Medical Freedom v. Joseph R. Biden – will make its way to the Supreme Court, as well. Indeed, the Biden Administration has already appealed the ruling to the Fifth Circuit.

The decision came as agencies were preparing to move forward with adverse actions against Feds who, after counseling and education, still refused or failed to get vaccinated and did not request a legal exemption. The judge referred to this looming discipline in his decision as the “imminent harm” that required the injunction.

Despite this setback for the President, the vaccine mandate has already been considered a success by many. In a press briefing soon after news of the decision broke, White House Press Secretary Jen Psaki said that 98 percent of Federal workers are already vaccinated.

However, the decision leaves many of you hanging as you continue to deal with employees who outright refuse vaccination, as well as those who have requested exemptions to the mandate.

If you were in the middle of the reasonable accommodation process on mandate exceptions, you should, obviously, as we mentioned earlier, pause the process. However, make sure that you document that pause. If a higher court reinstates the mandate, it could lead to challenges on processing time, and you’ll need that documented legitimate reason for the delay.

You will also need to re-think your plans for returning employees en masse to the physical workplace to account for the return of unvaccinated employees while ensuring the safety of employees and customers.

While the Office of Personnel Management will not take action to implement or enforce the vaccine requirement, it announced that the Safer Federal Workforce Task Force guidance on protocols related to masking, distancing, travel, testing, and quarantine remains in effect. In addition, the Task Force released a four page Q & A with answers including what to do if agencies have already disciplined employees who failed to meet the vaccine mandate.

Keep an eye on FELTG’s website for updated guidance and news and join us on February 8 from 1 – 4:30 pm ET for Managing COVID-related EEO Challenges in the Federal Workplace. Gephart@FELTG.com

Takeaways from OPM’s Proposed Regs on Accountability and Discrimination

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By Deborah Hopkins, January 18, 2022

Well, FELTG Nation, the changes keep coming. Two weeks ago, OPM issued proposed new rules on 5 CFR Parts 315, 432 and 752, as a result of President Biden’s Executive Order 14003, and also proposed regulations for 5 CFR part 724, the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020.

These are proposed rules and cannot be finalized until OPM considers public comments. You can comment until the first week of February. While you ponder whether you’d like to submit comments for OPM’s consideration, we’ve pulled a few notable pieces from each proposed rule, and have some thoughts of our own.

5 CFR Parts 315, 432 and 752

Performance

If you read the proposed rule, you’ll notice that OPM has a disagreement with the Federal Circuit about the Santos v. NASA case from March 2021. The Federal Circuit ruled that agencies must justify unacceptable performance before placing an employee on a PIP. OPM disagrees that the statute issues this requirement and relies on its own interpretation:

[A]n agency may not take a performance-based adverse action against an employee whom the agency determined was performing unacceptably unless the agency first provides the employee with notice and an opportunity to improve, and the employee continues to perform unacceptably. The determination to be reviewed on appeal to the Board and its reviewing courts is the final determination of unacceptable performance following the PIP, not any interim determination leading to the PIP.

It will be interesting to see what the Federal Circuit thinks about this.

Another interesting item on performance indicates OPM thinks an agency may need (or at least want) to prove they engaged in performance counseling with an employee prior to the initiation of a PIP:

Agencies should also remain mindful that third parties (for example, arbitrators and judges) place a strong emphasis on a supervisor’s effort to assist the employee in improving his or her performance. Evidence that the supervisor engaged an employee in discussion, counseling, training, or the like prior to the opportunity period may assist the agency in developing a stronger case before a third party that the employee was given a reasonable opportunity to demonstrate acceptable performance before a performance-based action is taken. [bold mine]

This has never been a legal requirement. What’s unclear to us at FELTG is if OPM is setting this as a requirement, suggesting it is a good idea, or perhaps supposing this will somehow meet the Santos requirement in a different way.

Misconduct

President Trump’s 2018 Executive Order 13839 included guidance on penalty determination for agencies, and OPM’s regs which became effective in November 2020, adopted much of that language. In the newly proposed regulations, language about penalty determination and comparator employees will be removed completely. These principles are still in MSPB caselaw but will not be in the updated regulations. OPM seems to want to leave these decisions up to individual agencies.

General Observations

  • The term “business day” will no longer exist in OPM regulations, as that was derived directly from Executive Order 13839. As a result, the timeline for decisions on proposed disciplinary actions is not a hard deadline. It is being left up to agencies. OPM still encourages agencies to act promptly.
  • Clean record settlements are back. The regulation prohibiting agencies from removing discipline from an employee’s OPF is being removed. OPM’s justification for this is, among other things, “the prohibition of clean record agreements hampers agencies’ ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency.”
  • Agencies will no longer be required to provide mandatory notification to supervisors at 30 months and one month before the end of an employee’s probationary period. OPM pointed out that agencies are still encouraged “to notify supervisors that an employee’s probationary period is ending, [but] OPM believes the frequency and timing of notifications should be left up to the discretion of each agency.”
  • The regs are FINALLY being updated to include the dual status technicians in the National Guard who gained coverage under the 2018 NDAA.
  • Agencies no longer need to notify OPM if they extend an employee’s notice period beyond 30 days.

5 CFR part 724

The Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020 went into effect Jan. 1, 2021. The new law modifies the No FEAR Act and places requirements on agencies related to findings of discrimination.

According to OPM, the proposed regulations will require an agency to:

  • Provide notice, in an accessible format, of a finding of intentionally committed discriminatory (including retaliatory) acts on the public internet website (linked directly from the home page) of the agency after all appeals have been exhausted.
  • Submit the annual report in an accessible, electronic format prescribed by the Director of OPM.
  • Submit a disciplinary action report, in an accessible, electronic format, to the Equal Employment Opportunity Commission (EEOC).
  • Establish, or leverage, a system to track each complaint of discrimination; and
  • Provide a notation of any adverse action taken under section 7512 of title 5, United States Code, for a covered act of discrimination (including retaliation) in the personnel record of an agency employee found to have intentionally committed discriminatory (including retaliatory) acts, after all appeals are exhausted.
  • Update No FEAR Act training to comply with the new provisions of the Statute.
  • Train new employees within 90 calendar days of appointment, including employees who transfer from one Federal agency to another.
  • Train all existing employees on a training cycle of no longer than every two years.

We can help you with those training requirements. You know where to find us! Hopkins@FELTG.com