A Supervisor’s Negative Comments About EEO = Reprisal EVERY TIME

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By Deborah J. Hopkins, June 10, 2024

It is absolutely critical for Federal supervisors and managers to understand that engaging in protected EEO activity is a right for all Federal employees, regardless of the outcome of such activity. Throughout my years in the classroom, I’ve come across numerous supervisors who believe that if an EEO complaint is found to have no merit, then the employee has not engaged in protected activity. This couldn’t be further from the truth.

The Equal Employment Opportunity Commission for decades has held that comments which, on their face, discourage an employee from participating in the EEO complaint process can have a chilling effect on others, and as such nearly always amount to reprisal. See, e.g., Binseel v. Army, EEOC Req. No. 05970584 (Oct. 8, 1998), where the supervisor told the complainant that filing an EEO complaint was not the right approach to try to get a promotion.

Below are two more recent examples where the EEOC found reprisal because of a supervisor’s words about the EEO process:

Carlton T. v. USPS, EEOC App. No. 2019005495 (Nov. 16, 2020)

EEOC found a supervisor’s criticism of the manner in which the complainant filed EEO complaints constituted reprisal. Examples of the supervisor’s criticism included:

  • Telling the complainant he [the supervisor] thought it was “pretty sad” the complainant made up stories about people, and that this was why the complainant’s EEO complaints “never went anywhere, as nobody believed” him. at 9.
  • Telling the complainant, “you think you’re a specialist[,] but they reject all your [EEO complaints] because they’re all misspelled and have a lot of run-on sentences.”
  • In response to the complainant’s offer to assist a coworker in filing an EEO complaint, the supervisor told the complainant, “[t]he one who [is] stupid is you because you were pushing him [Complainant’s coworker] to file an EEO [complaint] against [S2][;] just because you can’t beat him you want somebody else to join in.”
  • Characterizing the complainant’s actions as “pathetic.”

Bert P. v. Army, EEOC App. No. 2020003846 (Nov. 15, 2021)

During the pre-complaint (informal) EEO process, a supervisor told the EEO Counselor “ … employees should have to pay to file an EEO complaint and only get it back if and when they may prevail.” Id. at 7.

The complainant originally saw a copy of the EEO Counselor’s draft report containing the comment. However, the comment was removed from the final report. The complainant testified that after seeing the supervisor’s comment in the draft report, the complainant thought the supervisor believed EEO “complaints are frivolous and [employees] ought to pay a fee so it would deter people from making complaints.” Id.

According to the case, the EEO Counselor removed the comment from the final report after being directed to do so by the EEO Manager. In its Final Agency Decision (FAD) the agency found that this comment amounted to per se retaliation because of its potential chilling effect on future would-be filers. The Commission agreed.

If you’re a supervisor or manager, it’s important to understand your role in the process from the very beginning. That’s why FELTG is offering a brand-new class on June 27 called The Supervisor’s Role in the EEO Counseling and Investigative Processes. In just two hours, we’ll cover everything from how to behave after an employee has claimed discrimination, to how to respond to an investigator’s written interrogatories. Plus, you can ask your questions and get answers in real time. You cannot afford to miss this event. Hopkins@FELTG.com

After Going Through Legal Hoops, Fed’s Worker Comp Case Rebounds

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By Frank Ferreri, June 10, 2024

Anyone who’s hooped it up on the hardwood or the playgrounds for years and years has probably felt the aches and pains that come with being a middle-aged baller.

For a 57-year-old airway transportation systems specialist, however, a pesky basketball injury threatened his Federal workers’ compensation case in C.B. and Department of Transportation, Federal Aviation Administration, No. 21-0323 (ECAB April 18, 2024). Nevertheless, his use of  the stairs while traveling for work offered backing for his claim.

The specialist filed a traumatic injury claim, alleging he sustained left knee and ankle injuries while on temporary duty. On the CA-1, the specialist’s supervisor acknowledged the injury happened in the specialist’s performance of duty.

While being treated for the injury, the specialist said he injured his left ankle and knee the prior day while playing basketball, leading the agency to controvert the claim on the basis that the specialist was not in the performance of duty at the time of the injury.

The specialist submitted his doctor’s report, which stated he twisted his left knee and ankle while exercising, had undergone a left knee arthroscopy meniscectomy five or six years prior, and was asymptomatic until the day at issue.

The specialist submitted a statement that he injured his left knee and ankle while climbing six flights of stairs to his room from the hotel exercise facility early in the day and that he reinjured his left knee and ankle while shooting hoops in a fitness center later that evening. The specialist related that he was on travel status for training at the time of the injury.

In response, the agency said the specialist’s job was not associated with any physical fitness or medical requirements. Also, he was not participating in a supported or sponsored after-work activity at the time of the injury.

OWCP denied the claim. A representative of OWCP’s Branch of Hearings and Review affirmed the decision over the specialist’s argument that he was a rescue climber, had to maintain a level of physical fitness, and the agency was aware of it. Thus, the specialist appealed to the Employees’ Compensation Appeals Board.

The Applicable Law

The Federal Employees’ Compensation Act covers an employee 24 hours a day when the employee is on travel duty status and engaged in activities essential or incidental to such duties. The “general rule” regarding coverage of employees on travel duty status or temporary-duty assignments is that an employee whose work entails travel away from the employer’s premises is considered to be within the course of his employment continuously during the trip, except where there is a “distinct departure” on a personal errand. For an injury to be “in the course of employment,” ECAB has held that it must occur:

  • At a time when the employee may reasonably be said to be engaged in the agency’s business;
  • At a place where the employee may reasonably be expected to be in connection with his employment; and
  • While the employee was reasonably fulfilling the duties of his employment or engaged in something incidental thereto.

ECAB found that the specialist met his burden of proof to establish a traumatic incident in the performance of duty on the day in issue. ECAB noted:

  • The specialist injured himself on the stairs in his hotel.
  • The specialist’s activity at the hotel was reasonably incidental to the duties of the temporary assignment contemplated by the agency.

Because OWCP didn’t previously reach the question of whether the specialist sustained an injury causally related to the employment incident, ECAB sent the case back for a new decision.

The Takeaway

ECAB emphasized FECA covers an employee 24 hours a day when the employee is on TDY status, with that coverage disappearing when the employee engages in something that is not “reasonably incidental” to the duties of the temporary assignment.

In this case, going up and down stairs at a hotel was reasonably incidental to the specialist’s travel status due to agency-required training. Had it strictly been a basketball injury, it’s difficult to say how ECAB would have come down, and it would take more consideration of the evidence and applicable law to flesh out that case.

However, the “reasonably incidental” part of the ECAB’s conclusion in this case makes sense and provides a guideline to work with it: If an injury happens and that injury goes along with the employee’s assignment at hand, it could make for an easy layup of a workers’ compensation claim. info@FELTG.com

Indefinite Suspensions: When Medical Conditions Create Concerns

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An indefinite suspension occurs when an agency puts an employee in a temporary status without duties and without pay for an undetermined period of time. Learn more.

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And Now a Word With … Special Counsel Hampton Dellinger

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As the new head of the U.S. Office of Special Counsel (OSC), Hampton Dellinger is immersed in understanding and appreciating the role of whistleblowers. Read more.

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Ask FELTG: How Do I Handle Accommodation Requests for Emotional Support Animals?

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May 15, 2024

The following question recently came into Ask FELTG:

If an employee requests an emotional support animal as a reasonable accommodation, do we treat that the same as a request for a service animal?

And our answer: Thanks for the question. Any request for a reasonable accommodation (RA) should be considered independently, by using the step-by-step RA analysis we teach in our reasonable accommodation classes. Whether it’s a request you’ve received a hundred times (telework as RA) or one you’ve never dealt with (a request for an emotional support bird in the workplace), each RA request should be considered individually.

Depending on the situation, an emotional support animal may be a required reasonable accommodation for a qualified individual with a disability, even if it is not a trained service dog. If an employee requests an emotional support animal in the workplace, along with sufficient documentation of the disability and the need for accommodation, the agency must consider:

  • Whether the animal would be an effective accommodation,
  • Whether another accommodation would be effective, and
  • Whether it would be an undue hardship to allow the animal in the workplace.

An agency may deny the request for an emotional support animal if it would not be an effective accommodation. How will you know if it’s effective? Perhaps run a trial period, and see how things go, similar to the case Meaghan F. v. Treasury, EEOC Appeal No. 2019005325 (May 20, 2021). The agency granted the complainant a 60-day trial period to bring her animal into the workplace. However, “during the trial period, Complainant had been removed from an assignment for being disruptive and unproductive and had failed to establish a schedule to care for the animal’s needs.” Id. at 10. Because the animal in the workplace did not allow the complainant to perform her essential functions, EEOC held the agency’s denial to allow the animal to remain in the workplace was valid.

Other instances of lawful denials have included:

  • The support animal provided stress relief when the complainant was around strangers, but the complainant’s job did not require her to be around strangers. Struthers v. Navy, EEOC No. 07A40043 (Jun. 29, 2006).
  • Another effective accommodation was provided – a phone that lit up when it rang and a light that alerted the complainant when someone was at her door. Vina D. v. USDA/FS, EEOC Appeal No. 0120150054 (May 25, 2017).

We have a lot more where this came from, so join us on May 23 for the 60-minute training Barking Up the Wrong Tree? Service and Emotional Support Animals in the Workspace. info@FELTG.com

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

A MAJOR New Requirement in Excessive Absence Cases

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By Deborah J. Hopkins, May 13, 2024

We haven’t had many precedential MSPB cases this year, but the eighth one was BIG, involving a new requirement for removals under a charge of excessive absence. Excessive absence removals can be a little weedy, but if you ever handle these kinds of cases for your agency, please take five minutes to read on, or save this article and come back when you have time.

A general principle is the agency cannot take an adverse action against an employee for absences it has approved. It wouldn’t make sense (or be fair) for an employee to be disciplined for a situation where the supervisor had granted discretionary leave, or the employee had an entitlement to the leave (such as sick leave).

However, sometimes approved leave can extend so long that it causes an issue for the agency – most often in situations of extended Leave without Pay (LWOP), and sometimes including copious amounts of sick leave and/or annual leave. In rare circumstances, an agency may remove an employee for excessive absences, even if the employee has been on approved leave, but to justify doing so, the agency must prove the following elements:

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

Cook v. Army, 18 M.S.P.R. 610 (1984).

In the precedential case that brings us together today, the Board added a significant amendment to how an agency determines what absences can be tabulated to meet the “beyond a reasonable time” standard:

We hold that, to prove a charge of excessive approved absences, an agency cannot rely on absences that predate the warning… It would be a stretch to consider a notification of potential discipline as a “warning” to the extent that the notice was given after the underlying conduct already occurred.

Williams v. Commerce, 2024 MSPB 8, ¶6-7 (Apr. 23, 2024).

Up until Williams, agencies would typically send the warning letter after hundreds, if not thousands, of hours of absences and then remove the employee fairly shortly after the warning was issued if the employee did not return to work or still had significant absences after he returned to work.

Does Williams mean the agency cannot rely on any of the absences leading up to the warning to return? Not exactly. The Board said, “Prewarning absences may still be relevant for other purposes, such as evaluating medical evidence or determining whether the absences have a foreseeable end. However, they cannot be used to support the charge itself. Rather, a charge of excessive absences will only be sustained when the post-warning absences were themselves excessive.” Id. at ¶8.

In Williams, the absences still amounted to 1,109.25 hours in the one-year period after the agency warned the appellant to come back to work, so the Board held the agency proved its case even after discounting the prewarning absences.

This case raises the question, of course, about what the Board will consider to be “excessive” post-warning. Does existing Board case law still stand, given that until now the pre-warning absences could be counted, or will a new line of cases give us updated parameters?

Fortunately, the Board has indicated at least some past precedent is still good law. In Williams, it cited Gartner v. Army, 104 M.S.P.R. 463, ¶ 10-11 (2007), a case where the agency proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period (about a third of the time). So, we may not be looking at additional multiple years beyond the warning letter, but we can guess it likely requires several absences over the course of a few months, at a minimum.

We are going to hash this out, along with any other new cases on excessive absence, during next month’s Absence, Leave Abuse & Medical Issues Week, June 3-7. Hope you can make the time to join us! Hopkins@FELTG.com

P.S. You can read the full Williams opinion here.

The Good News: EEOC Issues Superb Guidance on Harassment

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By Ann Boehm, May 13, 2024

On April 29, the EEOC issued “Enforcement Guidance on Harassment in the Workplace.” Trust me. You want to read this guidance.

I’m always happy to praise Federal agencies when they do something well – something that really helps. This guidance does that.

I could spend time summarizing the guidance, but I do not need to because it is a very usable document. Instead, I’ve decided to highlight my favorite things.

  • The guidance is structured based upon how a harassment case is analyzed. How logical!
    • Covered bases and causation – What are the protected statuses and how is the alleged harassment tied to the protected status?
    • How did allegedly harassing conduct impact on a term, condition, or privilege of employment? – What constitutes a hostile work environment?
    • Employer liability – What makes an employer liable for the conduct?
  • The guidance has 77 (yes, 77!) examples of what is or is not harassment.
    • By golly, these are really, really helpful.
  • The guidance is very readable.
    • I get that I am a lawyer, but I firmly believe any non-lawyer can read and understand this guidance.
  • The guidance gets to the point efficiently. For example, regarding what constitutes a “prompt investigation,” the EEOC gives the parameters up front:

“An investigation is prompt if it is conducted reasonably soon after the employee complains, or the employer otherwise has notice of possible harassment. Clearly, an employer that opens an investigation into a complaint one day after it is made has acted promptly. By contrast, an employer that waits two months to open an investigation, absent any mitigating facts, very likely has not acted promptly. In many instances, what is “reasonably soon” is fact-sensitive and depends on such considerations as the nature and severity of the alleged harassment and the reasons for delay. For example, when faced with allegations of physical touching, an employer that, without explanation, does nothing for two weeks likely has not acted promptly.

(You have to admit this is exactly what we need to know about what “prompt” is and what it is not!)

  • If you need to skim the guidance, the EEOC has presented key information in highlighted blue boxes.
    • Examples:
      • “Harassment must be based on an employee’s legally protected characteristic.”
      • “These are key questions that typically arise in evaluating a hostile work environment claim and whether it amounts to unlawful harassment . . .”

I hope supervisors, advisors, and employees will read and use this guidance. I especially hope employees will use it. Hostile work environments still exist, and they should not. But a hostile work environment is not just, “my boss does not like me.” Anyone filing or defending against a harassment allegation will benefit from this guidance.

Thank you EEOC for this helpful document. Hey, the government did something good. That is good news! Boehm@FELTG.com

P.S. On a related note, join FELTG on July 11 for the 60-minute training Dealing with “Other” Harassment: It’s Not Always About EEO.

ECAB Ruling: Specialist Fell in Performance of Duty on ‘Premises’

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By Frank Ferreri, May 13, 2024

The Employees’ Compensation Appeals Board could have helped me  and, more importantly, FELTG newsletter readers if it had published a recent decision ahead of the publication of the April issue’s “going & coming” rule story.

Not to worry, though, here’s what happened in A.S. and Department of Homeland Security, Transportation Safety Administration, No. 21–1143 (ECAB March 21, 2024), a premises rule case involving a worker’s stumble in an employee parking lot on his way in to work.

A TSA specialist filed a CA-1, alleging he fractured his left arm in the performance of duty. According to the specialist, he tripped and fell in the lot on his way to work. The agency controverted the claim, asserting the specialist was injured before his shift began. OWCP agreed and denied the claim based on its analysis that the parking garage was not part of the agency’s premises.

Under the Federal Employees’ Compensation Act (FECA), the injury must be sustained in the performance of duty, and any disability or medical condition for which compensation is claimed must be causally related to the employment injury.

If an employee has fixed hours and place of work, injuries that occur on the employer’s premises while going to or coming from work, before or after working hours, or at lunchtime are compensable. This is the premises rule. It is applied to cases where it is affirmatively demonstrated that the employing establishment owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees.

Even if an agency does not own or control the place of injury, the place may still be considered part of the “premises.” ECAB and courts will make the determination on a case-by-case basis.

ECAB uses these factors to determine if a parking area is part of an agency’s “premises:”

  • Whether the agency contracted for exclusive use of the parking area for its employees.
  • Whether parking spaces were assigned by the agency to employees.
  • Whether the parking areas were checked for unauthorized cars.
  • Whether parking was provided without cost to employees.
  • Whether the public was permitted to use the garage.
  • Whether other parking was available to employees.

The specialist met his burden of proof to establish the trip and fall occurred in the performance of duty, according to ECAB. It found the lot was the agency’s “constructive premises” because:

  • The agency arranged for the use of the lot and provided subsidies for its employees to park there.
  • The lot was restricted to employees. The public did not have access.
  • The specialist was responsible for displaying a parking pass, and the area was routinely monitored for compliance.
  • The agency paid a monthly fee for the specialist to park in the lot, and he was entitled to one unreserved space there.
  • The CBA confirmed the agency had determined that providing full parking subsidies for its bargaining unit employees at their airport duty station was necessary to attract and retain qualified security screening personnel and to avoid significant impairment of its operating efficiency at the nation’s airports.

ECAB also explained that the specialist was engaged in activities that may be described as incidental to his employment because he had fixed hours and a fixed place of employment. The fall occurred at 12:35 pm in advance of his 1 pm shift.

ECAB sent the case back to OWCP to analyze and develop the medical evidence in determining what, if any, benefits were due to the specialist.

The takeaway: To get to his job, the specialist parked where the agency designated for him to park and paid for him to do so. If it’s something that the agency requires or makes available so that a worker can get to her job, chances are it will be within the scope of the “premises rule.” info@FELTG.com

 

The Why and How of Starting Misconduct Investigations

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By Dan Gephart, May 13, 2024

There’s a buzz at your agency about potential misconduct taking place. It’s been suggested you perform an administrative investigation. This is somewhat new to you, and you have questions, mostly:

  • What’s the goal of the investigation?
  • How do I get started?

You’ve come to the right place. However, if you are currently enveloped in an investigation and have more advanced questions, you should check out Ann Boehm’s recent Good News column, where she addressed several inquiries she’s received when doing investigations training. (If you don’t see your question, send it to Ask FELTG.)

For now, we’re going to focus on the two aforementioned questions. Let’s start with the goal of investigations: Why should you investigate?

Agency administrative investigations are usually conducted because of potential misconduct or civil rights discrimination. (Sidenote: To be clear, discriminating against or harassing employees is itself misconduct.)

For misconduct investigations, you need to know who did what and when so that management can determine the proper course of action; and if that action is discipline, to ensure that it can withstand third-party review.

This is serious stuff. As Ann wrote in Good News: “A good investigation is the foundation for effective discipline in the Federal government.”

So, there’s your mission. What you’re about to embark on is important. It’s no surprise then, that a key to a successful investigation is preparation and planning. Let’s take a look at what you need to know to get started:

  • Legal rights and obligations that apply to Federal employees who are witnesses.
  • Procedures necessary for management to take a disciplinary action.
  • Categories of actionable conduct.
  • What constitutes evidence, and how to gather it.
  • The concept of employee affirmative defenses.
  • How to properly document, store and safeguard evidence gathered during the course of an investigation.

You’ll need patience. This probably isn’t something you’re going to wrap up in a day or two.

It goes without saying that objectivity is critical. However, our brains are wired to make quick judgments on what we’ve seen. Resist the urge to jump to a conclusion, at the very least until you have every bit of evidence you can collect.

Where do you go next? How do you learn all the stuff you’re supposed to know? Ann will present Misconduct Investigations: Get Them Right from the Start on July 24. Want to dive in even further? FELTG’s Workplace Investigations Week will run Aug. 19-23. Good luck out there. Gephart@FELTG.com

Indefinite Suspensions: When Employees Engage in Criminal Conduct

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In the first of a series of three articles focusing on indefinite suspensions, we’re looking at indefinite suspension because the agency has reasonable cause to believe the employee has committed a crime that could result in imprisonment. Learn more.

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