OFO Awards $8,000 in Compensatory Damages Where Complainant Submitted Evidence of Substantial Harm but Failed to Link It to Agency’s Actions

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By Deryn Sumner

Successful claims for non-pecuniary compensatory damages need two things: evidence of harm and evidence of a connection between the harm and the agency’s actions.  Last month, the Office of Federal Operations issued a decision that clearly articulates the need for complainants to link the harm alleged to the agency’s actions found to be discriminatory.  In Kit R. v. Department of Army, Appeal No. 0120140952 (September 23, 2016), the complainant had great evidence of harm but failed to meet that second requirement.

After establishing that her performance appraisal had been downgraded in retaliation for her prior EEO activity, the complainant submitted statements from herself, her physician, and two of her children.  And on its face, it’s great evidence in support of a large award of compensatory damages.  The complainant stated that her supervisor’s actions caused her to feel angry, insecure, have lowered self-esteem, negatively impacted her sex life, and caused her not to be able to sleep at night but to sleep all day.  Her children, whose ages were not identified in the decision, stated that she did not speak to them for months at a time, that she would use profanity for no reason, her eating habits were impacted, and she would “sleep all day in a very dark house.” Her physician submitted a statement that the complainant slept for approximately four hours every night, experienced fatigue, and even had suicidal thoughts.

Based on this evidence, you may be thinking that the agency would be on the hook for somewhere between $45,000 to $100,000 in compensatory damages.  But the Commission awarded $8,000.  Although there was a lot of evidence of harm, the Commission concluded, “after reviewing these documents, we find that Complainant generally failed to link the retaliatory appraisal to the symptoms and conditions she reported.” Thus, the Commission found an award of $8,000 to be appropriate for the “generalized assertion that she was distressed because of the appraisal.”

It can be very hard to challenge allegations of harm raised by complainants and their friends, family members, and medical care providers.  However, agencies can often effectively argue for reduced awards where, as here, the complainant failed to establish a sufficient link between the harm and the agency’s actions found to be discriminatory and/or retaliatory. Sumner@FELTG.com

Making Yourself FELTG-Smart

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By William Wiley

Sometimes in one of our seminars, after we present an especially scintillating nugget of employment law advice, a participant will break down in tears saying something like this:

“How do you guys do it? You always seem to know what to do in most any employment law situation. Do you commune nightly with God? Do the Board, Commission, and Authority members vet their decisions through you for correction? Do your instructors have permanent cyberFEDS© connections blue-toothed into their cerebral cortexes?”

Yes, yes, yes … we do at times appear to be magical and unusually wired. And although our secret connections have to remain secret, we can share with you a trick that will help move you along the road toward FELTG Nirvana, gathering employment law wisdom as you progress, making you nearly as smart as our FELTG instructors (although, of course, never quite reaching that level of expertise).

Prepare to be enlightened, because the trick is:

  1. Read the case decisions.
  2. Draw practice conclusions.

Here’s how it works. Consider, if you will, the following analysis from a relatively routine MSPB opinion:

The evidence considered by the administrative judge consisted entirely of out-of-court witness statements, and she evaluated the probative value of that hearsay evidence, including but not limited to the deciding official’s sworn affidavit refuting the appellant’s claims, based on the factors set forth in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981). Under Borninkhof, the following factors affect the weight to be accorded hearsay evidence: (1) the availability of persons with firsthand knowledge to testify at the hearing; (2) whether the statements of the out-of-court declarants were signed or in affidavit form, and whether anyone witnessed the signing; (3) the agency’s explanation for failing to obtain signed or sworn statements; (4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made; (5) consistency of declarants’ accounts with other information in the case, internal consistency, and their consistency with each other; (6) whether corroboration for statements otherwise can be found in the agency record; (7) the absence of contradictory evidence; and (8) the credibility of declarant when she made the statement attributed to her.

The administrative judge found that the appellant withdrew her hearing request; accordingly, the witnesses could not provide hearing testimony. The administrative judge also found that all except one of the witnesses’ statements were signed and made under the penalty of perjury. The administrative judge found that the appellant and the deciding official were not disinterested witnesses and that their statements were contradictory. The administrative judge found that the appellant failed to prove her claim of race discrimination because it was based entirely on double hearsay, which lacked sufficient reliability to have real probative value, and that she submitted only “sparse ” evidence showing that her removal was motivated by her race or by her association with a race. The administrative judge also found it significant that the appellant failed to submit corroborating evidence consisting of statements from disinterested witnesses substantiating the alleged race discrimination or contemporaneous evidence in diary or journal entries reflecting the alleged discriminatory comments.

When reading this decision, you could scan through this language, appreciating that it’s foundational, then skip ahead to find out what happened to the appellant in the case. Or, if you were trying to become FELTG-smart, you could stop a second and consider whether there might be hints in here that you should use to tweak the way you do this business in practice, e.g.:

When relying on hearsay evidence in an appeal (as we all have to do on occasion), be sure to argue any of the following that are true statements:

  1. There was no one available who had first-hand knowledge of this evidence.
  2. The out-of-court written statements were made in affidavit form and co-signed by a witness.
  3. You could not get sworn statements for a very good reason (being stupid or not reading the FELTG newsletter are not very good reasons).
  4. The people making the statements are disinterested parties to the appeal.
  5. The statements are consistent with other evidence in the record.
  6. The statements can be corroborated by other evidence in the record; e.g., the individual who made the hearsay statement was keeping a contemporaneous log of events (tell your clients to keep contemporaneous notes as a case develops).
  7. There is no unbiased contradictory evidence in the record.
  8. The Hillen credibility factors support a conclusion that the person giving the statement is more likely than not telling the truth.
  9. Double hearsay (e.g., Bill’s out-of-court statement says that he heard Deb say that Ernie punched Peter, if offered to prove that Ernie indeed punched Peter) isn’t worth a bucket of warm spit.
  10. The other side’s evidence is “sparse,” a lovely subjective word that can be stretched to cover what might otherwise be characterized by the other side as “significant,” and done so with a litigator’s straight face.

There you have it. A trick to help you learn how to build a case for your side of the hearing room by applying practical lessons to implement a foundational principle in federal employment law. Now all you have to do is read all the other opinions issued by an oversight agency and draw similar practice conclusions. Or, alternatively, you can sign up for one of our fantastic FELTG seminars and learn from those of us who have gone before and have already done the leg work for you. Wiley@FELTG.com

What Do We Mean When We Talk About “Qualified Individuals with Disabilities”?

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By Deryn Sumner

A few weeks ago, I had the pleasure of teaching FELTG’s biannual EEOC Law Week alongside Ernie Hadley and Gary Gilbert.  On Wednesday, we covered disability discrimination law and focused much of our time on talking about when one is considered disabled, for purposes of making a claim of disability discrimination and the law surrounding requests for reasonable accommodations.  As Ernie likes to say, when analyzing disability discrimination claims, there are no points for creativity.  You should walk through each part of the analysis in order, starting with whether the employee in question is an individual with a disability.  After passage and implementation of the ADAAA more than seven years ago, that analysis has become rather perfunctory as the definition of what constitutes a major life activity was widely expanded, and Congress took great pains to highlight that the purpose of the Act was for broad coverage of those who need its protections.

The next step in the analysis is whether the employee in question is a qualified individual with a disability.  Because we received some questions about this part of the analysis during our training, I wanted to dedicate some space here to explain what we mean when we talk about “qualified.”

The Commission’s regulations at 29 CFR 1630.2(m) define qualified as “the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.”

Most of this definition is straightforward.  An employee, or applicant for a position, must be qualified by way of having the right skillset, prior experience, and whatever educational requirements are needed.  The government has no obligation to place unqualified individuals into positions, even if they are protected by virtue of having a disability.

The part that trips up agencies is that an individual can be qualified if he or she can perform the position with accommodation.  “But wait!” you exclaim.  “We were told not to skip any steps in our analysis and now we’re focused on reasonable accommodation before we’ve determined if the employee is actually entitled to one!”  Yes, that’s true, and I don’t have a good response for you as to why “reasonable accommodation,” which isn’t actually defined until later in the sub-section, is used to define “qualified.” But it is part of the definition and must be considered in looking at whether the employee is a qualified individual with a disability.

The second part that can create trouble is the last phrase: “essential functions” of the position at issue.  What is an essential function?  Again, let’s look at the definition in the regulation at 29 CFR 1630.2(n):

(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.

(2) A job function may be considered essential for any of several reasons, including but not limited to the following:

(i) The function may be essential because the reason the position exists is to perform that function;

(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(3) Evidence of whether a particular function is essential includes, but is not limited to:

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

Note that the definition contains a variety of factors, none of which are, “I dunno, whatever the employee’s position description says.”  The employer must actually think about what the individual does from day-to-day in his or her position.  Also note that the definition envisions employees holding the same position in different duty locations to have different essential functions. As we discuss, it’s a heck of a lot easier to determine a job duty is not essential if there are thousands of other employees in a facility who could perform the job duty than someone in a geographically-remote and sparsely-populated workspace.

Employers most often run into problems by failing to actually think about and define the essential job duties when reviewing accommodation requests.  Keep these definitions in mind to make sure your analysis is appropriate. Sumner@FELTG.com

A Love/Hate MSPB Decision

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By William Wiley

I think I’ve read maybe 10,000 MSPB initial decisions over the years. Most were good to very good, a real credit to the judges at the Board and their leadership. However, every now and then – perhaps 1 out of a 1000 – stands out as particularly well done. And recently, I ran across one of those.

The appellant’s situation is a sad one. After receiving a proposed 14-day suspension for possession of alcohol on agency premises and unauthorized use of government property, the employee entered into a Last Chance agreement (LCA) in which the agency agreed to hold the implementation of the suspension in abeyance to give the employee a chance to undergo rehabilitation related to his alcohol use. A condition of the agreement was that the employee would refrain from future misconduct for one year.

Very smart agency move – most likely implemented by one of our FELTG-certified MSPB Law Week practitioners.

Unfortunately, the employee just could not get his situation under control. So when the agency later found him under the influence of alcohol and living in an agency building (with his dog! Isn’t that some sort of mitigating factor under Douglas?), the agency notified the employee that he had violated the abeyance agreement, and imposed a 14-day suspension. A month later, it proposed the employee’s removal based on charges of alcohol impairment and misuse of government facilities. In selecting the removal penalty, the deciding official relied on the originally-abated 14-day suspension as a prior act of discipline, thereby applying the principle of “progressive discipline,” and fired the employee. Duffy v. DVA, SF-0752-15-0552-I-1 (June 15, 2016).

I’ve been waiting on resolution of this narrow point for a number of years. Suspensions that are held in abeyance are rare as compared to removals held in abeyance, so the issue does not come up often. On one hand, as the judge did here, I can see counting the suspension as a prior act of discipline because the employee engaged in previous misconduct and served his suspension prior to the proposal to removal. On the other hand, as a psychologist, I can argue that the suspension should not have been considered as a prior act of discipline because the employee has not had the “benefit” of the negative reinforcement that comes from serving a suspension. We punish (cause a little pain by suspending without pay) to motivate an employee to do better, to obey our rules. In this case, the employee was punished after he committed the misconduct that resulted in his removal. Therefore, he did not have the benefit of the pain of a suspension to motivate improved conduct. And arguably therefore, the suspension cannot be counted as a prior act of discipline for the purpose of an enhanced penalty based on progressive discipline.

Fortunately for DVA, this judge had no problem with counting the suspension as a prior for purposes of a Douglas analysis. And unless that finding is set aside on appeal, it will become a rule we can all apply. If so, I can see a future in which we never suspend anyone. If we can get the same bang for our buck by holding the suspension in abeyance and implementing it only when there is future misconduct warranting discipline, why in the world would we go through the hassle of a grievance, an arbitration in a union environment, an EEO complaint, or a complaint to the Office of Special Counsel? A smart agency (as here) would propose a suspension, then cut a deal with an employee to accept an abeyance agreement instead. Soooo much easier.

I love this decision for taking on this issue and stating an answer. At least now we have something to hang our litigation hats on should we choose to use an abeyance’d-suspension as a prior act of misconduct in a penalty analysis. But there’s so much more.

There were a number of other issues in this case:

  • Did the employee waive his rights in the LCA to challenge any eventual removal for misconduct?
  • Does a charge of “alcohol impairment” require an agency to prove that the employee was legally intoxicated?
  • What weight should be given to unsworn statements by law enforcement officers as to the indicia of the employee’s being under the influence; e.g. slurred speech, swaying, disorientation?
  • What is the best evidence that should be presented when using the results of a breathalyzer test to establish intoxication?
  • How valuable is a penalty-of-perjury-declaration when the deciding official swears that just one of the two charges proposed would warrant removal?
  • Why is it prudent to have the Proposing Official complete a Douglas Factor analysis as compared to a Deciding Official?

The reason I love this decision is that the judge to his great credit took on each issue (raised by highly competent appellant counsel, by the way), cited extensively to the record and the controlling precedence, and then reached a firm, defensible conclusion. The initial decision is 25 pages long with 17 footnotes. I encourage anyone who has any of these issues to review the well-written and well-supported judge’s decision. You will find rationale and case law to support exactly where the Board is today on each of these matters: 116 LRP 35609 if you have CyberFEDS©. Alternatively, you can come to the next FELTG seminar MSPB Law Week seminar (March 13-17, 2017 in Washington, DC) and we will be happy to explain this stuff to you.

Yet I also hate this decision. It took this very smart judge 25 pages and 17 footnotes to resolve this appeal. Yes, he has created a terrific learning tool for us practitioners. However, the expense of the creation of this learning tool is significant. In my practice, it takes me about an hour to write each page of a legal document like a decision. Given the workload that the current leadership at MSPB (soon to be gone in just over four months) has placed on itself and thereby its judges, one has to wonder whether the cost of this decision is worth the value it has provided to the appellant and to the agency. In other words, could a shorter decision have been written to provide the same value to the parties as this longer decision did, without taking so much legal time and effort to get there?

Of course, here at FELTG, we like to ask ourselves questions, and then answer them so that we look smart. We encourage you to read the judge’s decision in its entire 25-page glory, and then consider the following as an alternative way of resolving an appeal of a removal in a case that has many significant issues and is well-litigated:

Heading: [As usual]

Appellant Darrell Duffy has appealed removal from his position as a WG-4749-10 Maintenance Mechanic for misconduct at the Department of Veterans Affairs.

Charges (abbreviated):

  1. Alcohol impairment – On December 17, 2014, a breathalyzer revealed the appellant’s blood alcohol level to be 0.065.
  2. Misuse of Government Property – On December 17, 2014, the appellant was found to be storing approximately 40 boxes of personal property within agency facilities.

Issues:

  • Claim – The appellant waived rights to appeal this removal because of a “Last Chance Agreement” (LCA) that held a prior 14-day suspension in abeyance.

Holding – Although the LCA specifically waives the appellant’s rights to contest the 14-day suspension, it did not specifically address waiver of any appeal rights relative to a subsequent removal. Moreover, the agency treated the subsequent removal as a classic adverse action removal by basing the removal on new charges and by giving the appellant full Board appeal rights. If the agency believed that the appellant had waived his rights to a subsequent removal when he entered into the LCA, it would not have framed new charges and it would not have given MSPB appeal rights. Therefore, the appellant may challenge the validity of the removal on the merits as there is NO RIGHTS WAIVER.

  • Claim – A charge of “Alcohol Impaired” requires the agency to prove intoxication at a level defined in law as legally intoxicated.

Holding – A charge of impairment does not require proof of intoxication. The unsworn statements of the police officers (though better if sworn) that the employee’s speech was slurred, that he was disoriented, had bloodshot watery eyes, appeared nervous and standoffish, and smelled of alcohol coupled with the breathalyzer reading and the employee’s admission that he had been drinking the night before, established that it is more likely than not that he was alcohol-impaired while at work. Although I have credited the unsworn statements of the police officers relative to the breathalyzer results, better evidence would have been a contemporaneous photograph of the reading on the breathalyzer. Charge 1 is SUSTAINED.

  • Claim – Appellant’s decision to move personal items into the agency’s facility was caused by a lapse in judgment that resulted from his alcoholism.

Holding – Whether intentional or inadvertent due to his alcoholism, the photographic and testimonial evidence fully supports that the appellant stored personal items, including a dog, on agency premises without authorization. The appellant stated in deposition that his poor judgment was not related to his alcoholism. Charge 2 is SUSTAINED.

  • Claim– The agency committed three harmful errors: 1) double-punishment, 2) failure to conduct a proper investigation, and 3) the Proposing Official conducted a premature Douglas Factor analysis.

Holding – As for 1) the double-punishment claim, the 14-day suspension was for alcohol at work in November. Although the December alcohol event established a breach of the LCA and also formed the basis for the eventual removal, it was not the basis for the prior discipline that resulted from the November alcohol event. Separately, the Deciding Official testified that he would have removed the employee even if there had not been a prior disciplinary act based on alcohol. Therefore, no double punishment. As for the 2) proper investigation issue, although the appellant points to sections of the relevant collective bargaining agreement that arguably call for a management investigation separate from a police investigation, even if error, the appellant has not shown how he was harmed by the error. As for the 3) claim that it is agency policy for the Deciding Official to perform a Douglas analysis, not the Proposing Official, I am aware of no law, regulation, or policy that imposes such a limit. In fact, given the holding in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011), such an approach would appear to be prudent and act to ameliorate potential injustice. Therefore, I find the agency DID NOT COMMIT ANY HARMFUL ERRORS.

  • Claim – The agency failed to accommodate the appellant’s disability of alcoholism and otherwise treated him disparately and harassed him because of his alcoholism.

Holding – The appellant presented neither direct nor circumstantial evidence that he was treated more harshly as compared to non-alcoholics who engaged in similar misconduct. In addition, even if alcoholism caused the employee’s misconduct, he is not immunized from discipline. The agency is free to hold him to the same conduct standards as a non-disabled employee. As for a failure to accommodate the appellant by refraining from disciplining him and allowing him to seek treatment for his alcoholism, an alcoholic is not entitled to such a “firm choice” accommodation. As for any claim of disparate impact, the appellant has not presented any statistical evidence to support such a claim. As for the claim of harassment based on his status as an alcoholic, the appellant has not presented any evidence that any treatment by the agency was motivated by his status as an alcoholic. Therefore, I find NO DISABILITY DISCRIMINATION.

  • Claim – The agency has failed to prove a nexus between the appellant’s misconduct and government efficiency because it has not proven that the appellant could not do his job satisfactorily even though he was under the influence of alcohol at work and stored personal possessions in the agency’s facility.

Holding – Proof of nexus is not restricted to demonstrating actual impediment to full job performance. Charges such as these implicate a palpable effect on management’s trust and confidence in an employee’s job performance. Therefore, I conclude that the agency HAS PROVEN A NEXUS between the charged misconduct and the efficiency of the service.

  • Claim – The penalty of removal is unreasonable.

Holding – The Deciding Official’s analysis of the Douglas Factors is complete and worthy of deference. He relied heavily on the original Douglas Factor analysis completed by the Proposing Official and found it holistic and compelling. Relevant aggravating factors included safety concerns raised by the appellant’s misconduct, the repeated nature of the misconduct within only a year, the public nature of his work, prior notice of his misconduct, the fact that this was a second disciplined offense, a lack of rehabilitation potential, and a lack of alternative sanctions. Therefore, I find that ANY MITIGATING FACTORS ARE OUTWEIGHED BY THESE AGGRAVATING FACTORS.

Decision: I AFFIRM the removal action.

[Standard petition for review rights.]

As we teach in the wonderful FELTG Legal Writing seminar, the author of a legal document should always keep in mind the purpose of the document. Therefore, we should ask, “What is the purpose of a judge’s decision?” Here at FELTG, we would argue that in a removal appeal the purposes of an Initial Decision are, in priority order:

  1. To resolve the question of whether the agency legally removed the appellant.
  2. To inform the parties as to what the judge concluded relative to the issues on appeal.
  3. To justify the judge’s decision to those who might review it on further review: Board members and federal judges.

While this decision is terrific for its well-reasoned and authoritatively-supported conclusions, it feels as if it is trying to address a purpose other than these three. Whether there are additional purposes, and whether they are worth the cost involved in drafting a 25-page decision, are questions that we hope the new leadership at the Board will address. Another little note for our new President. Wiley@FELTG.com

Learning from Our Mistakes

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By William Wiley

If you’ve never made a mistake in this business of federal employment law, you either just started work last week, or you are not being aggressive enough. We all make mistakes. The trick is to learn from them. Sadly, too many agencies make mistakes that have been made for over a quarter of a century without seeming to have learned that they were mistakes to be avoided. Let’s deconstruct a recent adverse MSPB decision and hope that we FELTGers can learn from it.

Rosario-Fabregas v. Army, NY-0752-13-0142-I-2 (2016)(NP)

Action on appeal: Removal, GS-12 Biologist

Judge’s decision: Mitigate to a 30-day suspension

Board’s decision: Affirm the judge’s mitigation

Charge 1. Conduct Unbecoming: The employee edited letters on behalf of outside organizations with interests contrary to those of the federal government (five specifications).

Board’s Decision: Although the agency proved that the appellant edited letters for outside organizations, for four of the five specifications it did not prove that those organizations maintained interests contrary to those of any federal agency; e.g., the deciding official did not identify any interests he believed were contrary to those of the federal government. Therefore, one specification (and thereby the charge) affirmed.

Charge 2.  Insubordination:  The agency determined that a private organization did not need a permit for some act within the agency’s jurisdiction. The appellant voiced his conclusion that indeed a permit was required. The second level supervisor reconsidered the no-permit determination and concluded that it was correct. The appellant maintained his disagreement with that conclusion. When directed to issue the no-permit finding, the appellant “still maintained his original position” and was “openly antagonistic and disregarded the decision-making authority of his chain of command.”

Board’s Decision:  A charge of insubordination requires the agency to prove that the employee willfully disobeyed an order. The appellant testified that he complied with the order to issue the no-permit-required letter to the private organization. The deciding official had no personal knowledge as to whether the letter was issued. The proposal letter suggested that it was not issued, but the proposing official did not testify. Therefore, the charge fails. Being antagonistic is not being insubordinate.

Charge 3:  Inappropriate use of official time (five specifications).

Board’s Decision:  The editing of the letters at issue were not a responsibility specified in the employee’s position description. Therefore, all five specifications were sustained.

Charge 4:  Inappropriate use of government property (five specifications)

Board’s Decision:  The editing of the letters at issue on a government computer were not a responsibility specified in the employee’s position description. Therefore, all five specifications were sustained.

Summary:

  • The removal was based on four charges, three which had five specifications (4C + 15S).
  • The Board affirmed five specifications to support each of two charges, one specification in the other multi-specification charge, and set aside the Insubordination charge that had no specifications (3C + 11S).

Penalty factors warranting mitigation:

  • Not all specifications were affirmed.
  • The most serious charge, insubordination, was not affirmed.
  • The employee had not been informed of any specific rule that prohibited the editing of letters like the ones at issue here.
  • Letter editing was commonplace within the agency.
  • Although adverse notoriety was claimed by the deciding official to be possible, the actual notoriety relative to the letter editing was positive.
  • Although a lack of rehabilitation potential was claimed by the deciding official, the appellant was on record as saying, “I give my word of honor as a man that I would not correct any other letter for anybody else and that I would not argue about regulatory processes with my fellow staff. I would avoid any type of conflict, no matter its complexity.”

Learning points we have been making in our FELTG training for 15 years that, had the agency applied them, would have caused the removal to be upheld;

  • The fewer the charges and specifications, the better. We teach SHORT and SPECIFIC when it comes to discipline. That’s because, as happened here, the more the agency charges, the more the agency is required to prove. If the agency starts losing charges or specifications on appeal, the more likely it is that MSPB will set aside a removal.
  • Every element of a labeled end charge MUST be proven by a preponderance of the evidence. When the agency charged “Insubordination,” it obligated itself to prove that the order was not obeyed. Although it proved that it was mad at the employee for being cantankerous, it neglected to enter into evidence that the employee did not obey an order.
  • There are five elements to every removal action. The first one is that the agency must prove the existence of a rule, and the second one is that it must prove the employee was informed of the rule. Rules that are not enforced cease to be rules as an employee is reasonable to conclude that the agency did not intend to enforce its rule. Here, the agency failed to enter evidence to show that the employee had been told of a rule not to edit letters, and it was commonplace for letters to be edited.
  • Statements of fact in a Douglas factor analysis (the penalty defense explanation) MUST be proven by a preponderance of the evidence. When an agency claims potential bad publicity and a lack of rehabilitation in the face of good publicity and a positive indicator of rehabilitation, it is going to lose those claims for a lack of evidence.

Fun Facts:

  1. The Appellant won his appeal on his own, without a lawyer or other assistant.
  2. The Appellant won without requesting a second hearing, precluding the agency from introducing testimonial evidence.
  3. This decision was effectively a re-litigation of a prior appeal by this employee. The prior appeal was of a previous removal that was based essentially on the same charges that were the basis in this appeal. The really fun fact is that the judge in the first appeal upheld the removal.

Come to our classes. Learn the law. Do not assume that because you are smart and right, your removal will be upheld on appeal. Wiley@FELTG.com

 

 

Legalized Lying

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By William Wiley

Consider this scenario:

  • Jane writes a letter to the director of human resources at her agency (or files an Inspector General complaint, or blows the whistle with the Office of Special Counsel, or writes to her Congressman). In that letter, she accuses her supervisor of forcing her to have sex with him or be fired during probation. Above her signature she appends the old penalty-of-perjury statement and swears on all that is holy that she is telling the truth.
  • John writes a letter to the HR director saying he saw the incident occur. Same truthfulness attestation.
  • The supervisor denies the allegation. However, because it’s two witness to one, the agency believes Jane and John. It fires the supervisor.
  • The supervisor’s wife becomes aware of the charge and leaves him, taking both kids and the dog with her (not the dog!).
  • Both Jane and John testify under oath at the supervisor’s MSPB hearing that their original statements are true.
  • Subsequently, it’s determined that both Jane and John had acted in bad faith and lied, that they made up their story to get the supervisor in trouble because they did not like him.
  • The agency restores the supervisor to his old job, pays his back pay and attorney fees. The wife moves back in, but the couple needs months of marriage counseling to heal things. But the dog – the poor dog – just cannot put all of this behind him, and barks incessantly every time the supervisor comes home.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  Yes. Making false statements, lying under oath; that’s some serious stuff. Probably a felony; e.g. 18 USC 242, 1621, or 1622. Removal is no doubt a defensible penalty.

OK, similar scenario, except this time, instead of writing a letter to HR, Jane says the same thing in the filing of a sexual harassment discrimination complaint. John’s statement is given to the EEO investigator. Both testify before an EEOC judge.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  No, if the agency is located in Richmond or New Orleans. Yes, if the agency is located in Chicago. Probably not if the agency is located in DC. See Egel v. DHS, Slip op 15-434 (US District Court, District of Columbia) (June 24, 2016).

You see, there’s something at play in this second scenario called the Pettway Rule (Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969)). That rule is based on the analysis that since Title VII of the Civil Rights Act prohibits an agency from taking an adverse employment action because an employee has made a charge or testified in an EEO proceeding (the “opposition” and “participation” clauses), Jane and John cannot be fired because their false statements were made in that context. The Fifth and Fourth Circuit Courts of Appeal have adopted this rule (New Orleans and Richmond), but the Seventh Circuit has squarely rejected it (Chicago).  A single district court judge believes that the DC Circuit is in favor of it (Egel, above) and the rest of us court-watchers are waiting for an answer. EEOC appears to adopt it, but of course it’s the courts we care about if push comes to shove.

Those courts that have adopted the rule reason that to do otherwise would have a chilling effect on the rights of employees to file discrimination complaints. They conclude that statements made in EEO proceedings cannot be the basis for discipline even if those statements are false, malicious, or defamatory. The Seventh Circuit, on the other hand, concludes that only “reasonable” EEO complaint statements made “in good faith” are protected from discipline. Judge Posner from that circuit stated that he “can’t actually believe that forging documents and coercing witnesses to give false testimony are protected conduct.” See Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741 (7th Cir. 2010).

Wow. Talk about a clash of societal values. On one hand, we don’t want discriminated-against employees to be afraid to file EEO complaints. On the other hand, we don’t tolerate lying very much. Here at FELTG, if we were splitting this baby, we’d come down on the side of saying that conclusory statements in EEO complaints are protected (e.g., “He sexually harassed me.”), but false statements of fact are not (e.g., “He forced me to have sex with him.”). Of course, we don’t adjudge anything here and you know what you’re paying for our opinions.

So develop your own opinion on this issue, then write to your member of Congress. Or get elected yourself. Or appointed to the bench. These cases don’t come up very often, but the answer is of fundamental importance to who we are as a society of laws. Do we want federal employees to be able to attack their supervisors by lying about them in EEO complaints? You be the judge. Wiley@FELTG.com

EEOC Issues New Guidance on Retaliation Claims

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By Deryn Sumner

Last month, the EEOC issued revised Enforcement Guidance on Retaliation and Related Issues.  The Commission last issued such guidance in 1998.  Since then, Congress passed the Americans with Disabilities Act Amendments Act, which came into effect on January 1, 2009, as well as the Genetic Information Nondiscrimination Act, the Lilly Ledbetter Fair Pay Act, and other laws which cross paths with claims of retaliation.  Additionally, the Supreme Court issued its decision in Burlington Northern v. White, 548 U.S. 53 (2006), which addressed claims of retaliation in the workplace and held that “context matters” in determining whether an employee’s rights have been chilled because of engagement in protected EEO activity.  So, it’s good to see that the Commission has updated Enforcement Guidance to address these changes.  Just as it did with the Enforcement Guidance issued regarding reasonable accommodation claims, the Commission concurrently issued a question and answer publication to accompany the Enforcement Guidance.

The press release issued by the Commission to announce the publication of this Enforcement Guidance includes a quote from the EEOC’s Chair, Jenny R. Yang, noting that retaliation is asserted in almost 45 percent of charges received by the EEOC, which makes it the most frequently alleged basis of retaliation.  Regarding the federal sector complaints process, the press release noted that retaliation has been the most frequent basis alleged since 2008, and that findings of discrimination on the basis of retaliation comprise between 42 and 53 percent of all findings from 2009 to 2015.  Speaking as someone who reviews the decisions issued by the Office of Federal Operations each year, this statistic does not surprise me.

As we teach during EEOC Law Week, managers often falter after receiving notice that an employee has filed an EEO complaint. Remember that protected activity includes serving as a witness for a co-worker’s complaint, filing your own complaint (including starting the informal counseling process), and requesting reasonable accommodation.  Even if the underlying activity is not found to have merit, an employee can still succeed on a subsequent complaint if he or she can show that agency management took actions to treat the employee differently after learning of the protected activity, or made comments that had the result or intent of chilling the employee’s engagement in protected activity.  When considering claims of retaliation, it’s important to remember two key points.  First, as I’ve discussed in this space in January of this year, what states a claim of retaliation under the Commission’s case law is broader than what states a claim of discrimination.  That is to say, a claim that could be dismissed for failure to state a claim under any other basis could feasibly state a claim of retaliation.

The updated Enforcement Guidance covers what protected activity is, the applicable legal analysis to use to analyze claims of retaliation, the remedies available to successful complainants who file claims of retaliation, and guidance regarding how interference with the exercising of rights under the ADA constitute retaliation.  The Enforcement Guidance also includes specific examples of what constitutes an adverse employment action. The complete Enforcement Guidance is available on the Commission’s website here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm.   Sumner@FELTG.com

Is it Just Me, or is Reasonable Accommodation Becoming Trickier?

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By Deborah Hopkins

At FELTG we love our webinars. As part of each webinar agenda, we take Q & A breaks to answer your questions. Sometime we get questions that come via email after the webinars end, and occasionally we’ll answer those in our newsletter so that all our readers can hopefully learn something. Today is just such a time.

After teaching a recent webinar on disability accommodation, I received the below scenario from a customer. I’ve changed a few of the details and some identifying information to make this a true “hypothetical,” but the essence of the scenario remains intact.

Dear FELTG Brilliant Minds,

I have a case and I was wondering if you could help.

An employee assigned to a job at Office B (about an hour from our main site, Office A) requested reasonable accommodation (RA) two years ago.  At that time, there was space for her to sit in Office A, which she thought would help, and I told her that she could as long as there was space, and that if she was getting her work done she could work from Office A.  I received a call from our RA rep who reviewed the information with me over the phone and said, “That sounds good.” I asked if there was something else needed, for example paperwork/forms, and he said no.

Fast forward one year, we were starting to run out of space at Office A, and I followed up with HR regarding what to do now. The employee’s position belongs in Office B, is stationed there and should be there.  The original RA rep is no longer working here and the employee’s file is incomplete. There aren’t even any medical records (so I understand).

I told the employee she needs to reconnect with the new RA rep, and again, as long as there is space, she could stay at Office A.  It took almost a full year to get things figured out. Finally, the employee was offered a different job at Office A, in a different department.  She declined.

Now I am a week from having new employees start work, and no desks for them to sit at in Office A, where they will be assigned. 

I prepared a memo for the union explaining that the employee needs to return to her duty station [at Office B], that she declined the RA offered [the reassignment to a different department in Office A], and that the interim accommodation [working at Office A] is no longer possible. 

I asked HR to review this plan, and they told me not to send it, because they employee is preparing another RA requesting telework. Her job is not approved for telework.

I think I am going to proceed with memo to union and request that she move back to her assigned duty station at Office B.

I believe this case has been mishandled, I believe she has a real medical need, but the job is not at Office A and the program really needs the position to be posted in Office B.

Any recommendations?

Thanks in advance.

Thanks for the question. This type of situation is fairly common: these types of “unofficial accommodations” work for a while until something needs to change, and there’s no paperwork to look at to know what the problem is or what other accommodations might work. The good news – or bad news, depending on how you look at it – is that background paperwork and medical records are not really necessary in your situation because the employee has been working at Office A and only now is this possibly starting to cause an undue hardship. No paperwork, no problem; it’s time for a reasonable accommodation reassessment anyway.

Just to be sure we’re coming from the same place, though, let’s review the law on reasonable accommodation.

When making an accommodation request, an employee must show that she is a qualified individual with a disability, and that she needs a reasonable accommodation in order to successfully perform the essential functions of her position without causing harm to herself or others. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

If the agency cannot provide a reasonable accommodation without causing an undue hardship, or no accommodation is available for that job, the agency must next consider reassignment as an accommodation by looking for a vacant, funded position for which the employee is qualified, all the way up to the department level (if the agency is part of a larger Department). If no vacant, funded position is available at the employee’s grade level, the agency should look for lower-graded positions for which the employee is qualified.  If the employee refuses to accept the reassignment, the employee in essence waives the reasonable accommodation right.

At first glance it seems like you have your bases covered, as you’ve already offered the employee another position near the physical location in Office A where she currently sits, and she has refused the reassignment. You mentioned that the position the employee currently holds is not telework eligible, and that HR informed you the employee is in the process of requesting telework as accommodation. There’s an aggressive option and a conservative option. The aggressive option is to tell the employee (and the union) that she needs to go back to Office B next week, and not to consider the telework option until you receive it – after all, you have no paperwork that even confirms the employee has a disability. Here’s where you need to be careful, though. The conservative option is to keep things as they are and allow the employee to work in Office A until you receive the telework request that you know is coming any day now.

Whether you go aggressive or conservative, though, remember this: when telework is requested as a reasonable accommodation, the general rules and policies for telework do not apply, and the reasonable accommodation rules take over.

For example, if a new employee requests telework and the agency telework policy states that all employees must work full-time for a year before being telework-eligible, the agency would be correct to refuse the new employee’s request. However, if that new employee requests telework as accommodation for a disability, the agency cannot unilaterally use the telework policy as a reason to deny the request. See Dahlman v. Consumer Product Safety Commission, EEOC No. 0120073190 (2010). If the new employee has a disability and makes that telework request, the agency is obligated to engage in the interactive reasonable accommodation process and must consider whether telework would be a reasonable accommodation for this employee. If it is, the agency must grant telework if no other accommodation is available. See Kubik v. Department of Transportation, EEOC No. 01973801 (2001). If there is another effective accommodation besides telework, though, the agency has a right to choose that accommodation instead.

You mentioned there are no medical records. Now is a good time to ask your employee for new medical documentation, because but even though it sounds as if you have no questions about the employee’s medical situation, you at the very least need to know what the employee’s limitations are so you can consider which accommodation(s) might work.

Once you know the employee’s medical limitations, you’ll need to look at the essential functions of her position to consider whether telework is a reasonable accommodation. In addition, while you say the program needs someone to be present at Office B, the fact that the employee has been working from Office A for several years might work against you. It is not insurmountable; perhaps having the employee work from another location is now causing an undue hardship at Office B; we just want to make sure you have all your bases covered.

So, assuming the employee has a qualified medical condition, you must now consider whether the employee could do her job from home. As we said above, the analysis for telework as a reasonable accommodation varies from case to case, and the fact that the job is not telework-eligible under the agency policy is not good enough. Because this is a request for RA, you need to consider whether any of the employee’s work can be performed from home. See Ellis v. Department of Education, EEOC No. 01A42966 (2006). Perhaps it is not possible for this job to be performed at home; for example, jobs that require patient contact, or access to secure information available only on the agency network, may not be able to be performed from home. See Humphries v. Navy, EEOC No. 0120113552 (2013); Petzer v. Department of Defense, EEOC No. 01A50812 (2006).

Each of these situations is unique and requires participation in the interactive process. Talk with the employee and the RA coordinator to determine whether telework – whether on a permanent or intermittent basis – might be the best option.

I know it’s not an easy answer, but I hope this helps. Good luck! Hopkins@FELTG.com

Yes, But Who?

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By William Wiley

Here’s another article in our series of advisories to the new incoming President. Hey, you may know a lot about building golf courses or flying around the globe acting all “Stately,” but here at FELTG, we bet you don’t know diddly about federal employment law. Fortunately, we do, so here’s another recommendation for you.

Dear New President:

Ask “who.”

Now that you’re in charge of the Executive Branch, about once a month or so you’re going to read some article about gross malfeasance in the way that one of your federal agencies is being run. The media loves to make us civil servants look bad, and goodness knows those fellows on the other side of the aisle on Capitol Hill absolutely revel in the thought of dragging one of your secretaries before an oversight committee where she can be asked brilliant questions such as [implementing Southern drawl], “Madam Sek-e-tary, are you saying – for the record – that you fully support government waste, fraud, and abuse at the highest levels of your administration? My goodness, how do you stand to look at your sweet self in the mirror? Bless your little heart.”

Case in point: September 1, 2016, Washington Post, A-2: Patent examiners – Nearly 300,000 hours found to be fraudulently billed amid case backlog. The article discusses a recent Inspector General (IG) report which found that for part of 2014 and all of 2015, U.S. Patent and Trademark Office (PTO) employees cheated the government out of $18.3 million in salary (and possibly up to $36 million) by claiming time worked which was not. The report points to an abuse of flexiplace/flextime policies as a source of the lost time, plus employees who “gamed” the system while supposedly reporting to the PTO main office in Alexandria.

Assuming that this report is in general close-to-correct, as President you will be interested in fixing thigs, won’t you. Therefore, you will want to know the cause of this problem so you can address the cause. What follows are a couple of possible causes alluded to in the article (followed by our usual snarky FELTG comments):

  • “There may be other [legitimate] reasons for the lack of a digital footprint.” Yeah, and when I was in college, I subscribed to Playboy to read the in-depth articles. If there were other legitimate reasons for the discrepancies, don’t you think those brilliant, well-trained IG investigators would have noticed them?
  • The union contract has limitations on a supervisor’s ability to hold flexiplace employees accountable. Hey, guess what? Collective bargaining agreements can be changed! Management can make proposals and bargain. If a compromise cannot be reached, four Presidential appointees decide what the CBA will say. When confronted with a management proposal that would increase accountability, supported by a very public IG report that finds there is limited accountability, my money is on those Presidential appointees coming down on the side of efficient government.
  • “Eight years ago, the agency stopped requiring employees to swipe their badges when they leave the headquarters building. This is only required when they go into work.” Then change the darned policy. Sounds like an internal security matter for PTO, and internal security policies do not have to be bargained with the union (although the impact of the policy change does). For employees who are not in the bargaining unit, the policy change can be effective tomorrow. Same answer for allegedly outdated low performance standards. Changes to performance standards also do not have to be bargained.

Somehow poor employee accountability procedures managed to be put in place at PTO. Mister/Madam President, the “who” question is, “Who is responsible for this happening?” There are two potential groups of culprits:

Line Management

  1. It is possible that the leadership at PTO is generous on purpose; that the folks in charge intentionally put into place policies that allow employees to game the system and avoid accountability. Maybe they think that federal employees are underpaid and that by allowing abuse of the pay system, good people will remain employed at PTO rather than go work for some high paying patent law firm. If this is the case, that the slack policies were intentional, then you as El Presidente need to consider who you appoint to these positions and whether this is how you want your appointees to manage.
  2. Alternatively, it is possible that the PTO leadership came to believe that it had no choice but to reduce the oversight of the agency’s employees, that it had to sign a CBA that reduced accountability, that it could not fire employees who abuse leave, that it had to have loose accountability procedures. If this is the case, then somebody on your behalf should be looking into how PTO leadership came to believe these things.
  3. Or, it is possible that the individuals who have been appointed to leadership positions in PTO are just stupid. For a solution if this is the case, see “A.” above.

Staff Advisors

  1. Perhaps the PTO accountability staff advisors (the Office of General Law and Office of Human Resources primarily) have advised line management on good procedures for holding employees accountable, and line management has rejected that sage advice (see A. and C. above). For example, when the PTO union proposed that employees who work at home part-time not be required to log onto their computers and have 24 hours to respond to a phone call or email from their supervisor, maybe the staff advisor to the management bargaining committee gave solid accountability advice: “That’s just plain crazy. We’ll have no way of documenting whether people do their work when they say they did. There’s no way we should agree to that.” If senior management chooses to ignore this recommendation, there’s not much the LR advisor can do, but agree to the proposal and sign the CBA.
  2. Alternatively, maybe it wasn’t line management who made these sorts of decisions. Perhaps the staff advisors were the “who” that made these calls, that implemented low production standards based on how work was being done in the pre-computer days of 1976 (don’t get upset with us; we’re just reading from the Post article) and did not recommend charging people AWOL and reprimanding or firing employees who cheat. If this is the case, did the staff advisors act this way because they are evil intentional wasters of tax payer dollars, or are they just ignorant?

Here at FELTG, many times all we know is what we read in the newspapers. And that is all we know about this situation. The bottom line given the facts as reported by the IG are these. When it comes to who is responsible, it is either:

  1. Ignorance, or
  2. Evilness.

Madam/Mister President, we have to leave the evilness up to your ability to select good appointees. As for the ignorance, we aren’t a training company for nothing. You want your people to learn how to bargain a contract with your union? We teach that. Discipline employees who lie about their use of government time? We can show you how to fire them quickly and fairly until the cows come home. Manage absence and leave? We present an entire week of training on that singular topic twice a year, at a cost to the government of much less than $18,300,000.

And finally, here at FELTG, we are absolutely bewildered by the following little tidbit from the article:

“Investigators did not recommend that patent officials pursue administrative or criminal action against any individual examiner because the inspector general is prohibited under federal privacy laws from disclosing their names.”

You’re telling us that we have created an entity in government to investigate criminal activity and employee misconduct, but that agency cannot release the names of employees for the purpose of criminal prosecution or discipline for misconduct? Oh, Mx President, the problem is even worse than we thought. Wiley@FELTG.com

Fox News Could Have Used This Report a Few Months Ago

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By Deryn Sumner

My colleagues and I are never going to see settlements in the range of $20 million dollars, as Fox News agreed to pay out a few days ago, after being hit with a sexual harassment lawsuit filed by Gretchen Carlson and others.  But harassment in the federal workplace does exist, even if we’re not dealing with such high numbers in settlements.  As I mentioned in one of my other newsletter articles this month, the EEOC issued revised Enforcement Guidance on Retaliation in August 2016.  The Commission has had a busy summer, as it also issued a report of the “Select Task Force on the Study of Harassment in the Workplace” in June 2016.  The report was issued by two of the EEOC’s Commissioners, Chai R. Feldblum and Victoria A. Lipnic.  (Hat tip to one of my Firm’s law clerks, Chauna Pervis, who clerked for Commissioner Feldblum this summer and alerted me to the report).

The report is extensive, totaling more than 150 pages, and walks through two main topics: “What We Know About Harassment in the Workplace” and “Preventing Harassment in The Workplace.”  The Commissioners end the report by providing a summary of recommendations and checklists for employers.  Although this space is too limited to delve into all of this report, I did want to highlight some points that I think are most useful for our FELTG audience.

The report notes that it focused on a broad view of harassment, that is, claims of being treated poorly in the workplace because of membership in a protected class.  The report is careful to note that under the legal framework, not all of these allegations examined would constitute actionable harassment.  That is, that some of the allegations would not be sufficiently severe or pervasive to state successful claims.

The report notes that during fiscal year 2015, federal employees filed 6,741 complaints alleging harassment, which constituted 43% of all complaints filed by federal employees.  (Careful readers may wonder how the Commission can represent that formal complaints alleging retaliation constitute the most frequent basis alleged.)  To that I have two words: retaliatory harassment.  Okay, a few more words for those in the back: retaliation is a basis and harassment is a legal theory under which you have to establish treatment motivated by membership in a protected class, i.e. basis.

Some more fun statistics, straight from the report. Of the total number of complaints, filed in FY2015 by federal employees alleging harassment, approximately:

  • 36% alleged harassment on the basis of race,
  • 34% alleged harassment on the basis of disability,
  • 26% alleged harassment on the basis of age,
  • 12% alleged harassment on the basis of national origin,
  • 7% alleged harassment on the basis of sex, and
  • 5% alleged harassment on the basis of religion

The report focuses on the business case for addressing claims of harassment, including the cost of resolving the viable claims (and, let’s be honest, the nuisance ones as well), as well as the costs to productivity and morale caused by harassment, the desire to promote retention of good employees, and the harm to a company’s reputation when claims of harassment go public.

The report even cites to a 1994 MSPB report on Sexual Harassment in the Federal Workplace to illustrate the point of lost productivity:

Imagine an employee who’s being bothered by a coworker who leers at her or makes comments full of innuendo or double entendres, or who tells jokes that are simply inappropriate in a work setting. The time this employee spends worrying about the coworker, the time she spends confiding in her office mate about the latest off-color remark, the time she spends walking the long way to the photocopier to avoid passing his desk, is all time that sexual harassment steals from all of us who pay taxes.

Adding up those minutes and multiplying by weeks and months begins to paint a picture of how costly sexual harassment is. Increase this one individual’s lost time by the thousands of cases like this in a year, and the waste begins to look enormous. And this may well be a case that doesn’t even come close to being considered illegal discrimination by the courts. Whether or not they’re illegal, these situations are expensive.

No report of a taskforce would be complete without recommendations and this one has many, including suggestions for revising training (noting that many training programs are focused on allowing employers to assert affirmative defenses to claims and not to prevent harassment), changing a culture of a workplace from the top down to be clear that harassment is not tolerated (although it includes an admonition against “zero tolerance” policies, noting that they are often ineffective), and tips to address conduct carried out through social media.

The complete report is available here: https://www.eeoc.gov/eeoc/task_force/harassment/index.cfm. Sumner@FELTG.com