Use These Tips to Improve Your Douglas Factor Analysis

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By Dan Gephart, March 11, 2024

With the constant changes in Federal employment law over the last several years, it’s sometimes easy to forget not only how useful the Douglas factors are when determining a reasonable penalty for employee misconduct, but also how long we’ve had these factors.

The Douglas factors turn 43 next month. The same day the decision in Douglas v. VA, 5 MSPB 313 (1981) was published, many Americans were turning (literally and physically) their television sets to CBS to watch brand new episodes of Dukes of Hazzard and Dallas.

Considering a large portion of the Federal workplace couldn’t tell Boss Hogg from Rosco or venture a guess at who shot J.R., let’s just say it’s been a while. To help keep your Douglas skills and knowledge sharp, consider these few tips.

1 – Make sure you’re spending a reasonable amount of time and effort on your Douglas analysis. How much is reasonable? In her upcoming (April 24) class Do You Really Know How to Use the Douglas Factors?, FELTG Instructor Ann Boehm suggests: “Usually, half of the effort that goes into defending a misconduct removal should be devoted to the agency’s Douglas Factor analysis.”

The safest way to handle the Douglas Factor analysis is to complete a Douglas Factor Worksheet, attach that worksheet to the proposal notice, and then in the body of the proposal notice, include a sentence that says this: “In selecting a penalty, I relied on the assessment of the relevant penalty selection factors as described in the attached Douglas Factor Worksheet.”

This has been standard FELTG advice for a long time now. As FELTG President Deborah J. Hopkins once wrote on the topic: “We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.”

2 – Use the Merit Systems Protection Board’s example. The MSPB rarely independently evaluates the Douglas penalty assessment factors. Instead, the Board generally sticks to evaluating the agency’s evaluation of the factors. Even if the Board members might not fully agree with the penalty, MSPB must defer to the agency’s decision as long as the agency proves its charge(s) and shows the penalty was “within the bounds” of reasonableness.

But then came Purifoy v. VA, CH-0752-14-0185-M-1 (2022)(NP). You probably noticed the parenthesized “NP” at the end of the case citation. Yes, this is a nonprecedential decision. But it is, also, to use Deb’s word — consequential.

Why the lofty word choice for a non-precedential decision?

Purifoy is, we think, the first time the current Board independently assessed the Douglas factors on its own. Read the case and think about the Board’s reasoning. You will be in much better shape to defend the agency’s penalty selection for years into the future.

3 – Consider both aggravating and mitigating Douglas factors and include them in the proposal notice. Some will tell you that only aggravating factors belong in the proposal notice. After all, while most all adverse actions have some mitigating factors, it’s usually the aggravating factors that control the outcome, and only aggravating factors are required at the proposal stage.

However, former FELTG President and founder Bill Wiley had this to say about that: “Do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. The employee should have the opportunity to know this stuff so she can respond and defend herself completely.”

Join us April 15-19 for MSPB Law Week, where you can get the most effective guidance and up-to-date information via an engaging week of training focusing on the legal requirements and best practices for penalties and much more. Gephart@FELTG.com

 

 

 

Agency Clarifies a Vague Standard During PIP

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By Deborah J. Hopkins, March 11, 2024

We get a lot of questions about how a supervisor can effectively address unacceptable performance when an employee’s performance standards are written in a vague or subjective manner. In fact, vague standards are probably one of the top reasons why supervisors don’t address performance issues with employees more often.

The good news, which we share in all of our performance classes, is that a vaguely written standard in itself does not preclude an agency from addressing unacceptable performance in real time.

Let’s look at a recent MSPB case involving a travel office financial management specialist at NASA, Atkinson v. NASA, AT-0432-20-0510-I-1 (Feb. 7, 2024)(NP). The appellant’s primary duty was to monitor the Travel Request Mailbox (TRM), which was an electronic mailbox that received requests for travel authorizations and travel expense reimbursements. The agency had provided the appellant with Travel Request Mailbox Instructions (TRMI), which was “a detailed set of instructions for monitoring the TRM, and included classifying emails in the TRM inbox, forwarding emails to designated personnel, and documenting the status of travel-related requests.” Id. at 2.

The appellant’s performance plan included a critical element titled “Process Civil Service Travel” (critical element 2) and her performance standard required her to, among other things, “produce accurate work with ‘no significant errors.”’ Id. at 3. Below is a summary of the events in the case:

  • In October 2016, the supervisor informed the appellant she was not meeting expectations in critical element 2 due to the significant number of errors she was making in monitoring the TRM.
  • In May 2017, after deeming the appellant’s performance unacceptable for [critical] element 2 in her first performance appraisal, the supervisor placed the appellant on a 60-day performance improvement plan (PIP). The PIP informed the appellant that she was required to demonstrate acceptable performance in critical element 2 by the end of the PIP period by, among other things, “correctly address[ing] all emails in the [TRM] according to the TRMI.”
  • The agency provided the appellant, who was deaf, with a video ASL translation of the TRMI before the PIP and full-time assistance of interpreters prior to and throughout the PIP. The appellant’s supervisor and the travel office lead met with the appellant regularly during the PIP to discuss her performance, including her continuing errors.

Id.

At the conclusion of the PIP, the appellant was still not performing at an acceptable level. The proposed removal identified over 180 errors she made during the PIP. The deciding official upheld the removal. The appellant filed an appeal to MSPB, challenging the removal in part by claiming that her performance standards were invalid – a claim that, if proven, would render the removal inappropriate.

The appellant argued the requirement that her work contain “no significant errors” was overly subjective, and what constituted a “significant” error was never defined. Id. at 5. The Board disagreed, relying on the hearing testimony from both the travel office lead and the appellant’s supervisor, who said that “significant errors” are “those which impacted the processing of travel-related requests,” and they shared multiple examples of these types of errors with the appellant. Id. In addition, the appellant received detailed feedback about her performance deficiencies before and during the PIP, so the word “significant” was given appropriate context and was not overly vague or subjective.

If performance standards are written vaguely or subjectively, the agency may clarify the expectations by fleshing out the standard or giving examples of performance, during the PIP itself. To learn how to do this, join us for MSPB Law Week, April 15-19. Hopkins@FELTG.com

When Sexual Harassment Turns Into a Workers’ Comp Claim

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By Frank Ferreri, March 11, 2024

If you read our pre-Valentine’s Day piece on sexual harassment, you are aware the wrong kinds of advances can lead to EEO headaches. But did you know sexual harassment may also lead to a compensable injury under the Federal Employees’ Compensation Act (FECA), which covers emotional conditions causally related to compensable factors of an employee’s Federal employment?

However, as the following cases show, while a claim is easy to file, it can be difficult for claimants to prevail.

Under Employees’ Compensation Appeals Board (ECAB or the Board) cases, such as Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004), an employee can establish she sustained an emotional condition in the performance of duty by submitting all of the following:

  1. Factual evidence identifying and supporting employment factors or incidents alleged to have caused or contributed to her condition.
  2. Rationalized medical evidence establishing that she has an emotional or psychiatric disorder.
  3. Rationalized medical opinion evidence establishing that the identified compensable employment factors are causally related to her emotional condition.

“Rationalized medical opinion evidence” refers to medical evidence that includes a physician’s rationalized opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors and must be based on a complete factual and medical background of the claimant, be one of reasonable medical certainty, and be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by appellant.

To understand what the ECAB analyzes in claims related to alleged sexual harassment, consider the following decisions.

Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004)

A postal clerk alleged she sustained an emotional condition causally related to harassment in the form of a supervisor sitting on a ledge in front of her and propping his leg up. The supervisor allegedly stood “very close” or walked up behind her. The clerk also alleged the postmaster discussed one of the clerk’s personal relationships. According to the clerk, these actions caused her stress and aggravation of a preexisting condition, which was an internal carotid artery aneurysm.

ECAB’s ruling: The clerk failed to implicate any compensable factors of her employment in the development of her alleged emotional conditions. There was no evidence that anyone heard the conversation about the clerk’s personal relationship, and when the supervisor learned his ledge-sitting and following made the clerk uncomfortable, he ceased the behavior. ECAB concluded the clerk did not establish compensable factors of employment caused her emotional condition.

Donahue and Department of the Army, No. 01-1006 (ECAB Jan. 9, 2002)

A supply technician alleged a supervisor would on an “almost daily” basis “grab and slap her buttocks and make sexual innuendoes with regard to having sex.” This went on, according to the technician, from 1993 until 1997. This supervisor on one occasion came to the technician’s house at 11 p.m. on the pretext of asking about her husband, who was in the hospital, and made sexual advances that amounted to a sexual assault.

ECAB’s ruling: The technician did not bring enough evidence to the table to support her claim. Although the technician alleged she was subjected to sexual harassment, she continued to work at her job and made no allegations regarding sexual harassment until she filed her claim in August 1998 — nearly five years after the alleged sexual assault occurred. ECAB dismissed the case, finding the technician did not meet her burden of proof in establishing that she sustained an emotional condition in the performance of duty.

Lofti and Department of Health & Human Services, Health Care Financing Administration, No. 95-2756 (ECAB Sept. 19, 1997)

A health insurance specialist alleged she sustained anxiety, chest pains, heart palpitations, insomnia, pneumonia, myalgia, indigestion, laryngitis, and headaches due to sexual harassment by a coworker. According to the specialist, the coworker sent her cards and letters for a year, made lewd remarks, and would visit her cubicle in a tearful and angry state. The specialist also alleged there were “physical incidents in which he forcibly tried to kiss” her.

ECAB’s ruling: The Office of Workers’ Compensation Programs, which ruled against the employee, erred in finding that harassment by coworkers can only be considered a compensable employment factor if the employing establishment is aware of such harassment and fails to intervene. On the contrary, ECAB found evidence that the specialist sustained an emotional condition and several physical ailments due to sexual harassment by a coworker. In particular, the specialist presented evidence that included a detailed factual statement and corroborating statements from the employing establishment demonstrating that the described incidents occurred as alleged. As a result, ECAB sent the case back to OWCP.

An important lesson comes out of the Lofti case: Unlike in the Title VII context, whether or not a sexual harassment charge turns into a compensable workers’ compensation claim does not depend on whether the agency took appropriate steps in response to the harassment. Instead, it depends on whether the employee suffered an injury that was causally related to her job.

So, what can agencies do? A good place to start is stressing as much as possible that sexual harassment has no place in the Federal workplace. Even if it seems like “just a joke,” the job is no place for that kind of humor, which can literally cause an injury. Info@FELTG.com

 

And Now a Word With … Lindsay Laferriere of the Partnership for Public Service

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Comments can be, at the very least, disrespectful, disillusioned, and highly uneducated. In this case, they showed a complete misunderstanding of the agency mission and a mistrust of government, in general. Read more.

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Agency’s Effective Use of Progressive Discipline is a Textbook Example

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By Deborah J. Hopkins, February 20, 2024

As I make my way through dozens of new nonprecedential (NP) MSPB cases, some grab more of my attention than others. And while NP cases don’t really tell us anything new about the law (See 5 C.F.R. § 1201.117(c)), sometimes they’re still worth discussing because of the case facts.

Along those lines, the MSPB upheld a recent National Park Service removal, in large part because of the appellant’s track record of receiving previous discipline: Stancil v. DOI, DC-0752-17-0153-I-1 (Jan. 30, 2024) (NP). On Nov. 21, 2016, the agency removed the appellant for failure to follow her supervisor’s instructions, citing three specifications:

  • The appellant failed to attend a meeting scheduled for her return from a 14-day suspension on June 20, 2016.
  • The appellant failed to attend a standing biweekly update meeting on June 21, 2016.
  • The appellant failed to attend a webinar meeting on June 30, 2016, as ordered by her supervisor.

In justifying the removal, the agency relied on the fact that, among other factors, it had disciplined the appellant twice previously for the same type of misconduct:

  1. On Nov. 20, 2015, the appellant received a letter of reprimand for four instances of failing to follow her supervisor’s directions to attend meetings; and
  2. On June 5-18, 2016, the appellant served a 14-day suspension for five instances of failing to follow her supervisor’s instructions to attend meetings.

The appellant raised multiple affirmative defenses including whistleblower reprisal, however, the Board held the agency supplied clear and convincing evidence it would have removed the appellant even absent her protected activity. According to the Board:

We find that the deciding official’s principal motivation for removing the appellant was her unwillingness to change her behavior despite receiving progressive discipline. In particular, the deciding official testified that he had hoped the use of progressive discipline would change the appellant’s behavior and cause her to recognize that she needed to follow her supervisor’s directions to attend meetings. HT at 96 (testimony of the deciding official). He further testified that he thought that the appellant’s continued failure to follow her supervisor’s instructions was flagrant and that he felt there was no other choice but to remove her.

Id. at 16.

Progressive discipline is something we teach during MSPB Law Week (next held April 15-19) as a tool to (hopefully) correct an employee’s misconduct. If it doesn’t have its intended effect, it provides the agency with a solid basis to support a removal action.

Take a bow, NPS, for showing the FELTG world a textbook use of progressive discipline. Hopkins@FELTG.com

Good News: We Answer Your Questions About Medical Documentation

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By Ann Boehm, February 20, 2024

I heard from some readers that last month’s Q&A on medical inability to perform removals was timely. Yay!  I also had some follow-up questions regarding medical documentation. No time like the present to address those issues.

If an agency is considering a removal for medical inability to perform, who may have access to medical documentation?

Agency employees, such as reasonable accommodation coordinators or health officers, are often reluctant to share medical documentation with supervisors or other decision-makers. Their instincts may be noble, but also incorrect.

A supervisor cannot make a decision about a medical inability to perform without, well, knowing about any medical issues and the impact of those issues on the employee’s ability to perform the essential functions of the job. So, what can be shared?

Our friends at the EEOC have guidance on their website about the confidentiality of medical documentation and who can access that information.

This EEOC guidance explains “[t]he ADA requires employers to treat any  medical information obtained from a disability-related  inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.”

How is an agency supposed to store a confidential medical record?

It is very important for an agency to properly store confidential medical records. The ADA addresses this, and agencies can be liable for violating this statutory language: “information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.” 42 USC 12112(d)(3)(B) (emphasis added).

Note the emphasis added here: Do not store confidential medical information in a disciplinary or other personnel file.

What about HIPAA – the Health Insurance Portability and Accountability Act of 1996? Does it apply?

Since everyone who has ever been to a medical professional is acutely aware of the privacy protections under HIPAA (forms, forms, and more forms), there’s a belief that HIPAA applies to employers. But nope, that’s not the case.

For this, we turn to our friends at the Department of Health and Human Services for assistance (they are the HIPAA people).

“The [HIPPA] Privacy Rule does not protect your employment records, even if the information in those records is health-related. In most cases, the Privacy Rule does not apply to the actions of an employer.” But HIPAA does apply to health care providers. HHS explains, “if your employer asks your health care provider directly for information about you, your provider cannot give your employer the information without your authorization unless other laws require them to do so.”

Also remember this: You do not need the employee’s entire medical file – just information related to the employee’s medical inability to perform. Diagnosis, prognosis, and functional limitations should be the focus.

It’s important to properly handle confidential medical information, but it’s also important to have access to that information in a medical inability to perform case. There is a lot of solid guidance out there from the EEOC and HHS – and that’s Good News. Boehm@FELTG.com

Violence Prevention Measures Necessary in These Dangerous Times

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By Dan Gephart, February 20, 2024

If it feels like a dangerous time for Feds, that’s because it is. Attorney General Merrick Garland warned earlier this year about a “deeply disturbing spike” in threats against Federal workers.

A few weeks after Garland’s announcement, the unimaginable happened. A 32-year-old man killed and decapitated his father in their Bucks County, Pa. home. The man then posted a 14-minute YouTube video in which he held up his father’s decapitated head and called him a traitor. Why, according to the son, was the father a traitor? Because he was a Federal employee. The man then urged others to commit similarly violent acts against government officials. Police recovered a USB device that allegedly contained pictures of Federal buildings and instructions on how to make an explosive device.

Meanwhile, it’s election season when the discourse about Federal employees often turns ugly. This year, the rancor is uglier. It’s also quite dangerous. It was this election season, after all, when a major presidential candidate, who has since dropped out, promised, if elected, to “start slitting throats” in the Federal workplace.

We don’t want to be alarmist, but we do want to ensure your agency is as prepared as possible if violence shows up at the office, whether it’s caused by a current or former employee, a family member of an employee, a customer, or someone unknown to the agency.

FELTG instructor Shana Palmieri provides the following guidance (and much more) during her Assessing Risk and Taking Action: Threats and Violence in the Federal Workplace training (next held on April 3.) [Editor’s note: To have Shana teach this class directly to your agency, contact Info@FELTG.com.]

You should have a set of policies and procedures in place, and they should be accessible to all employees. Those policies and procedures need to include:

  • How the agency handles any incident of threatening or inappropriate behavior.
  • The process for reporting the behavior (incident reporting).
  • How the agency handles each type of violence.
  • Training that will be provided to staff.
  • The assessment protocol once an incident report has been submitted.
  • Who is responsible for the assessment process.
  • Who is responsible for the development of the management plan.
  • How staff will be notified of the management plan if there is a potential risk.

You should also have a prevention strategy that includes:

  • An effective incident reporting process. This process should encourage employees to submit concerns.
  • A relationship with local law enforcement. Does your agency receive reports from local law enforcement of potential risks within the community?
  • Effective protection. Physical security alarm systems, security staff, building access, sign-in processes for the general public.
  • An effective automated warning system.

Another key component of prevention strategy is take all threats of violence seriously. And take  immediate action when those threats come from current employees. Remember, a threat of violence is misconduct. Work your way through the Douglas factors, of course, and determine whether the threats warrant a suspension or removal.

There are numerous cases where removal for threats have been upheld – even as a first offense. In Robinson v. USPS, 30 M.S.P.R. 678 (1986), the MSPB found an employee’s verbal threat to a supervisor warranted removal despite the employee’s lack of prior discipline and four years of service. Per the Board: Such behavior affects the agency’s obligation to maintain a safe workplace for its employees, thus impinging upon the efficiency of the service.

The Federal Circuit echoed those thoughts in 2010 and reiterated them more recently in Jolly v. Department of the Army, No. 2017-1919 (Fed. Cir. Sept. 11, 2017):

“Where an employee makes ‘threats … against her supervisor [that are] unprofessional and inappropriate, and . . . they adversely affect the work atmosphere,’ the penalty of removal is ‘within the permissible range of reasonableness.’” Gephart@FELTG.com

 

When a New Supervisor Revokes Employee’s Telework Accommodation

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By Deborah J. Hopkins, February 20, 2024

When it comes to disability accommodation, there is no shortage of pitfalls to avoid. And there is one area we constantly hear about from FELTG readers, and that’s the topic of revisiting – or revoking – an employee’s existing reasonable accommodation, particularly when a new supervisor takes over.

One of the cases we discuss in detail in some of our trainings on revisiting existing accommodations (next offered as the 60-minute webinar Red Light, Green Light: Revisiting Existing Reasonable Accommodations on March 14) is Sandra A. v. Navy, EEOC App. No. 2021002131 (Sept. 16, 2021), request for recon. denied, EEOC Req. No. 2022000276 (Mar. 7, 2022).

In this case, the complainant, a technical editor, was granted an accommodation of full-time telework due to her irritable bowel syndrome (IBS). As a teleworker, she performed her job tasks successfully for several years. Working at home, according to the case, allowed the complainant to “have a low-stress environment with a consistent, regular schedule where [she] could have greater control over [her] IBS symptoms.” Id. at 3.

In the spring of 2018, a new supervisor took over and revoked all telework agreements in the complainant’s department. The complainant informed the new supervisor her telework was an accommodation for her disability and the telework revocation would require her to use leave to accommodate her medical restrictions.

The complainant renewed her formal request for telework and provided supporting medical documentation. She was denied. The agency instead granted the complainant “frequent and prolonged bathroom access as needed.” Id. at 4.

The complainant then explained if frequent and prolonged bathroom breaks were permitted, she would only be able to work 20 to 30 hours a week onsite, while she would be able to put in a full 40-hour week if she were allowed to telework.

The complainant’s medical documentation noted her condition often required an unpredictable and sudden need to use the restroom. Her “functional limitations have resulted in situations that are easy to take care of if working from home but can be difficult and misunderstood in a professional environment.” Id. at 5.

The documentation also noted that if the complainant was required to work onsite, she needed use of a private restroom. The agency instead provided access to a shared restroom.

Because her telework was revoked and she was not provided with a private restroom, the complainant was not able to come to the worksite. Because of this, she resigned approximately nine months after her telework was revoked.

Upon review of the appeal, the EEOC found the agency failed to provide a reasonable accommodation because the shared restroom was not effective. In addition, while the agency claimed the complainant’s position was not eligible for telework, the fact that the complainant had successfully worked from home for more than two years undermined the argument.

The EEOC also found the complainant’s resignation amounted to a constructive discharge because “a reasonable person in Complainant’s situation would have found the Agency’s actions intolerable.” Id. at 13.

Revisiting existing accommodations is sometimes necessary – but when an agency changes an accommodation that’s been working, it almost never ends well for anyone. Hopkins@FELTG.com

Valentine’s Day Advances Should Not Be in the Cards

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A generalized recognition of Valentine’s Day could be a nice way to inject some brightness into wintertime at work, but in conversation heart language, “say yes” to Title VII compliance by ensuring that charges of sexual harassment are addressed promptly and thoroughly. Learn more.

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Does Fed Circuit Case Signal End of Singh Comparator Analysis?

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Singh provides a fairly narrow comparator analysis that employees generally be from the same work unit, work under the same supervisor, and engage in the same or similar offenses. Here’s our take on Singh v. USPS, 2022 MSPB 15 (May 31, 2022).

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