Employee Participation in Employee Assistance Programs

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By Barbara Haga

We recently had an inquiry from a reader about whether there is ever a time when a supervisor could legally direct an employee to seek Employee Assistance Program (EAP) services.  This brought up a number of issues and considerations that seemed like a good topic to address in the next few columns.

Background

5 USC 7901 authorizes agencies to create a health services program to promote and maintain the physical and mental fitness of employees.  The law, originally enacted in 1966, did not require such programs but authorized agencies to create them and operate them with appropriated funds.

OPM has identified a number of other laws, Executive Orders, and regulations that have addressed certain kinds of specific coverage on the EAP page of the OPM website:  (https://www.opm.gov/policy-data-oversight/worklife/employee-assistance-programs/#url=Guidance-Legislation).  Most of these additions are focused on drug and alcohol issues:

  • Public Law 99-570 (5 USC 7361 and 7362), The Federal Employee Substance Abuse Education and Treatment Act of 1986, and 5 CFR 792 require Federal agencies to establish appropriate prevention, treatment, and rehabilitative programs and services for alcohol and drug abuse problems for Federal civilian employees.
  • Public Laws 96-180 and 96-181 authorize agencies to extend counseling services, to the extent feasible, to family members of employees who have alcohol and drug problems, and to employees with family members who have substance abuse problems.
  • Public Law 79-658 authorizes the head of agency to establish health services programs for employees, also forms the basis for expanding counseling programs from those dealing solely with substance abuse to broad range programs which provide counseling for other personal problems, e.g., family, financial, marital, etc.
  • Executive Order 12564 requires agencies to establish a Drug-free Federal Workplace Program (DFWP), including an EAP as an essential element in achieving a drug-free workforce.

EAPs are voluntary, confidential programs that provide counseling and assessment to employees whose work performance and conduct are being affected by covered issues.

Mandatory Referral or Directed Participation?

There is a difference between mandatory referral to an EAP and requiring an employee to actually participate.  Referral requirements are common as discussed below. There is nothing I have found in my experience that would allow management to make an employee participate.  Even if you could, the information is still protected, so unless the employee consented to release, you still wouldn’t have what you would wanted.  Unfortunately, our laws and employment practices protect employees’ rights not to take care of themselves and not to take prescribed medication and not to take advantage of services and/or medical care that are offered with the best of intentions.

Mandatory referral is quite another thing.  We include the information in a notice or have a supervisor advise an employee that he or she is being referred.  Sometimes that includes an appointment that has already been set up with directions of where to go.  Mandatory referral may arise in these situations:

Federal Drug-Free Workplace Program (DFWP).  Section 2(b) of EO 12564 signed by President Reagan on September 17, 1986 included provisions regarding use of employee assistance for counseling and supervisory referrals for rehabilitation.  http://www.samhsa.gov/sites/default/files/executive_order.pdf. The model Federal agency plan issued by Substance Abuse and Mental Health Services Administration (SAMHSA) is available at this link: http://www.samhsa.gov/sites/default/files/workplace/ModelPlan508.pdf.  The plan states on p. 12 that “Any employee found to be using drugs shall be referred to the EAP.”

Collective Bargaining Agreements.  It is common that language has been negotiated in union contracts which requires management to make referrals in certain situations.  I would surmise that the union’s goal is to get the employee into an EAP program at the earliest possible time thus minimizing the possibility of some kind of performance or conduct action being initiated/effected.  Of course, with such referrals being included in the agreement, if that step is missed there is an issue of failure to live up to the terms of the agreement which would likely arise in any ensuing grievance or appeal.

Agency Directives.  Some agency policies include requirements for including EAP referrals in certain circumstances and/or in conjunction with disciplinary actions.  An agency could require referral if an employee is found to be in possession of alcohol on duty or under the influence of alcohol on duty.  There may be requirements for referral when there are altercations in the workplace or other similar issues.  Some agency policies build in a requirement to include EAP referral information in proposed disciplinary notices.

Mandatory Referral or Creative use of Referrals?

While we may not be able to make a mandatory referral, we can be creative in trying to ensure that an employee actually participates.  Once when working on a disciplinary case regarding an employee who was struggling with emotional illness issues, I arranged for the EAP counselor to be in a conference room down the hall while the disciplinary letter was being delivered.  The letter gave the referral information and said we had someone available to speak with her right then.  When the manager finished his part of the meeting, I asked the employee if she would be willing to talk to the counselor and she said she would, so I walked her down to the conference room.  I can’t recall what eventually happened with that case, but I distinctly remember that the employee seemed surprised that someone was immediately available and was grateful to have a chance to talk to someone.

EAP is one place where management’s and union’s goals are more closely aligned than many other areas.  The goal is to help an employee solve a problem and remain a productive member of the workforce.  If you have the kind of relationship with a union representative that would allow this, you could try to present a coordinated front in a meeting with both management and union there.  The manager would say that he or she needs to deal with the situation but sees that the employee seems to be struggling with something that is coming to work with them from home.  Management doesn’t want to have to initiate discipline if the employee will take steps to deal with the underlying issue.  Have the union official there to talk about the program and hopefully that it has helped other people and that the employee should try and see if it could be of assistance.  Perhaps the union official could be the one to escort employees to where they need to go or to sit with them as they dial in to FOH or some other service.

One thing about getting the union to join in is that they can talk to an employee in a way that management can’t. They can tell the employee in frank terms that the last person who had these kinds of issues ended up getting fired, or better yet, that the last person who had these kinds of issues got themselves straightened out and made a comeback and is still working there.  If management said that the last person got fired it might come across as a threat – but when the union does it, they are helping! It’s something to think about. Haga@FELTG.com

U.S. District Court for Eastern District of Virginia Rejects EEOC’s Holding in Baldwin

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By Deryn Sumner

Practicing before the EEOC’s federal sector administrative process is a funny thing full of contradictions.  If there’s a Federal Rule of Evidence or Civil Procedure that benefits your argument, then you bring it up to the administrative judge as persuasive and controlling.  If the Federal Rules don’t benefit your argument, you brush it off and tell the administrative judge that they only should be used as a guide and don’t need to be strictly followed.

The EEOC does the same thing in its decisions issued by the Office of Federal Operations.  If case law from the court of appeals and district courts contradicts the holdings the Commission wants to make, it will point out that anything less than Supreme Court case law is not controlling.  You can see a clear example of that in last year’s decision regarding telework as an accommodation in Lavern B. v. Dep’t of Housing and Urban Develop., Appeal No. 0720130029 (February 12, 2015). There, the Commission noted that several circuits have held that an employer does not need to provide reasonable accommodations for commutes.  However, the Commission went on to note that “federal district and circuit court decisions may be persuasive or instructive, but are not binding on the Commission” and held that an employee’s request for an accommodation of teleworking or a shorter commuting time triggers the start of the interactive process.  The decision also reminded federal agencies that they should be model employers “which may require [them] to consider innovation, fresh approaches, and technology as effective methods of providing reasonable accommodation.”

On the flip side, if case law from the circuit or district courts bolsters the argument being made, then the Office of Federal Operations will heavily cite to these cases.  An excellent example of this approach is in Baldwin v. Dept. of Transp., EEOC Appeal No. 0120133080 (July 15, 2015), where the Commission held that claims of sexual orientation should be processed as claims of sex discrimination.  The Commission extensively relied upon case law from the federal courts to support its holding.

Alas for the plaintiff in a recent decision out of the Eastern District of Virginia, the Judge did not find the Commission’s arguments as compelling.  In Hinton v. Virginia Union University, No. 3:15CV569, 2016 WL 3922053 (E.D. Va. July 20, 2016), the plaintiff’s attorney tried to argue that the EEOC’s decision in Baldwin created a matter of first impression in the circuit regarding Title VII’s coverage of sexual orientation discrimination such that summary judgment was not appropriate.  The Judge disagreed that issuance of the Baldwin decision changed anything, noting that the Fourth Circuit’s holding that Title VII does not cover discrimination based on sexual orientation in Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996) still applied and that “opinions of the…EEOC…are entitled to deference only to the extent that they have the power to dissuade.”  The Judge did not find that Baldwin served to persuade him.

As I discussed in the March newsletter, the EEOC’s private sector litigation arm filed two lawsuits earlier this year challenging sexual orientation discrimination as sex discrimination based on the decision in Baldwin.  One of those cases, against Pallet Companies, has already been settled for over $200,000. Sumner@FELTG.com

You’re Still Making the Same Stupid Mistakes

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By William Wiley

Twice a year here at FELTG, we present an audio conference that we bill as an update on the law. Starting this fall in our next offering, we’re going to add a new twist. We’re going to highlight not only any tweaks to the existing law, but also call out those agencies that continue to make stupid mistakes, causing them to lose charges and cases that should not have been lost.

That’s right. No more Mister Nice Guy. After 15 years of trying to teach agency representatives how to win cases, protect employee rights, and save us taxpayers a bucket-load of money when you screw up, we’re going to tell it like it is. Yes, you lose cases sometimes because the members at  MSPB get a little screwy and try to create foolish new law (e.g., the comparator employee Terrible Trilogy, Miller reassignment only if it makes the employee happy, prior discipline as progressive discipline only for the same category of misconduct). And sometimes you lose cases because the judge weights your evidence more lightly than you thought warranted. But do you know the Number One reason agencies lose cases? No, you don’t, because you haven’t read all the Board’s decisions.

Fortunately, we have here at FELTG. And the Number One Reason agency removals are set aside on appeal is … (drum roll, please) … practitioner error. That’s right. Some agency employee, attorney or Human Resources specialist, did something wrong. And we are TIRED OF IT. We’ve been out here for 15 years, a dozen times a year or more, telling you agency practitioners how to win cases. And some of you still don’t get it. Federal employment law is our craft, for goodness sakes. If you claim to be one of us, then you must properly and consistently practice our craft. And waaaaaaay to many agencies are relying on practitioners who don’t know this work, to do this work.

Let’s take just one topic: charging. Our FELTG colleague, author, and Instructor Emeritus Renn Fowler highlighted this issue all the way back in the mid-90s. MSPB and the Federal Circuit Court of Appeals are very fussy about the way an agency frames a charge. Something about Constitutional due process and the Magna Carta providing inalienable rights to federal employees. So for at least 20 years, those of us who teach employment law to federal agencies have been pounding away at the critical nature of the drafting of a charge in a proposal letter. By now, federal agencies with even a modicum of knowledge should have picked up on how to do this.

Yet too many haven’t.

We’ll be covering this in more detail in the fall webinar, but here’s a little taste of some recent evidence that some employment law practitioners do not know the basics:

Reid v. Air Force, CH-0752-14-0849-I-1 (2016): The misbehaving supervisor had a way of saying and doing things relative to the breasts and buttocks of other employees that were simply inappropriate in a federal workplace. When the agency finally got around to proposing that she be fired, one of the charges it relied on was “Touching and making a statement about the breast size” of another employee. And all of you certified practitioners who have completed our famous MSPB Law Week just about choked on your morning coffee when you saw that conjunctive “and” in the middle of this charge. Because you know that the law for nearly a quarter of a century requires that an agency prove both sides of a conjunctive change that is joined by an “and.” As the agency proved the touching but not the making a statement, the charge failed.

Bennett v. DVA, CH-0752-15-0367-I-1 (2016): Although the Board conceded that the appellant had a record of troubling behavior, it reversed the agency’s removal and put Mr. Bennett back to work because it simply could not “uphold his removal by affirming a poorly drafted charge.” And the horrific charge? Eerily similar to one we use as a bad example in our FELTG on-site one-day Charges seminar: “Disrespectful, intimidating language toward a supervisor/Conduct unbecoming a Federal employee.” Was it disrespectful? Was it intimidating? Was it both? And how’s all that related to unbecoming conduct? Would the conduct have been “becoming” if appellant was NOT a federal employee? Just think of all the good DVA could have done for our vets with the money it has to spend to pay this guy’s back pay. At least, a nice balloon party.

We’ve got more. So sign up for our Update webinar, if you can take pain and humiliation. If you want Mr. Nice Guy, go talk to an EAP counselor. If you want to learn how to be a better practitioner and not embarrass your agency and the rest of us in the same profession, come to our seminars. Learn this business. Everybody makes mistakes, but there are no excuses for mistakes that could (and should) have been easily avoided. Wiley@FELTG.com

 

 

Vehicle Misuse, Wile E. Coyote, and Settlement Agreements

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By Barbara Haga

If only our business had a list of rules that would always produce a successful result.  If the MSPB had a checklist (for example, like a pilot has) of things that always had to be followed to ensure your case would be sustained, we would have many more practitioners ready to take on adverse actions, fewer hours of lost sleep over whether everything had been covered, and probably a need for far fewer FELTG classes and newsletters. [Editor’s Note: Of course, that would be a BAD outcome.]

But alas, it isn’t that simple.  As I was preparing this column I reread the last one (it helps me avoid repeating myself).  Reading about poor Mr. Hoofman, the Army Construction Rep who managed to get his government vehicle stranded on the sand pile, made me think of Wile E. Coyote.

Like Wile E. Coyote, Hoofman tried several different things to get that car back on the road, and unfortunately the efforts became more damaging to his long term career prospects as he went.  First, he tried to rock it back and forth by switching the gears from forward to reverse.  Then he walked to his apartment for liquid fortification.  Later he walked back to the car and picked up two strangers along the way to help.  The three of them were all in the vehicle and apparently again tried to rock it back and forth.  Their efforts were unsuccessful and then the police arrived and you know the rest if you read the article or the case.  (Hoofman v. Department of the Army, 2012 MSPB 107).

Looney Tunes had a list of rules for making Road Runner and Wile E. Coyote cartoons.  You may read the full list here:  http://time.com/3735089/wile-e-coyote-road-runner/.  The universe for those two characters operated within certain principles:

Rule 1: The Road Runner cannot harm the coyote except by going “beep-beep.”

Rule 2: No outside force can harm the coyote—only his own ineptitude or the failure of the Acme products.

Rule 3: The Coyote could stop anytime—if he were not a fanatic.

Rule 9: The coyote is always more humiliated than harmed by his failures.

And Rule 9 leads us to our next case.  Only this time it wasn’t Wile E. Coyote who was humiliated, it was a Federal agency.

Settlement Agreements Have to be Lawful

This could be Rule 9 on the Board’s list of rules.  It seems so basic.  Sometimes we worry about things like language that is unclear – like exactly what was that clean record going to include and not include.  We have to be ready to answer whether the person had time to consider the provisions of the agreement, whether they were represented, etc. to avoid anything that would look like duress or coercion.  Obviously, agreements cannot be upheld if there is fraud involved by either party.

Occasionally there is an issue of a potentially unconscionable agreement: those agreements that are so one-sided that a court or the Board won’t enforce their provisions.  You know, when one side, in our world usually management, is holding most of the cards.  Many years ago we had a Navy practitioner who got a little carried away in writing a last chance agreement and he added a provision that if the employee attempted to file an appeal with the Board later out of any alleged violation of the agreement he had to pay the Navy’s costs to defend it.  The Administrative Judge was none too amused with that one.  That was my first exposure to the term “unconscionable.”

There is another issue with settlement agreements.  They have to comply with other relevant statutes, and that leads us to Ross v. Department of Homeland Security, DA-0752-15-0521-I-1 (2016) (NP).  This non-precedential decision issued on June 24th is hot off the press.

Statutory Penalty for Willful Misuse

DHS suspended Ross for 30 days for misuse of a government vehicle.  The charge was “Willful misuse of a Government vehicle for nonofficial purposes in violation of 31 USC 1349(b).”

Ross appealed and the parties settled.  The agency agreed to rescind the 30-day suspension and substitute a 5-day suspension, and Ross agreed to withdraw the appeal.  He later challenged the agreement in an appeal to the Board regarding one provision of the agreement relating to his leave status for a period of time relevant to the case.  The Board never got far enough to look at that, however, because they found the agreement “not lawful on its face.”

The problem was the charge.  With that charge Title 31 requires a minimum 30-day suspension.  There is no provision for anything less.  By leaving the charge intact, DHS was unable to agree to a 5-day suspension.  The settlement should have created a new charge, perhaps inappropriate conduct or failure to follow agency procedure, to avoid this problem.

This understanding of the minimum penalty required has worked to management’s favor in other cases.  In Fields v. Veterans Administration, 21 MSPR 176 (1984), there were numerous charges in the 30-day suspension, some of which were patient abuse, misuse of a government ID, willfully falsifying government records, and intentional unauthorized use of a government vehicle for other than official purposes.  The AJ did not sustain most of the charges, but did sustain two – one of which was the intentional unauthorized use of the vehicle.  Because not all of the charges were sustained, the AJ mitigated the penalty to a 14-day suspension.  The agency petitioned for review and the Board sustained the 30-day suspension because of the Title 31 provision, writing, “Since the statute imposes a mandatory minimum penalty for appellant’s offense, the Board lacks authority to reduce the penalty below a thirty-day suspension.”

Mutual Mistake

Mutual mistakes have been found in other agreements.  In Farrell v. Interior, 86 MSPR 384 (2000), the settlement agreement provided for payment of overtime hours at a rate that was contrary to law and thus had to be set aside.  In Shipp v. Army, 61 MSPR 415 (1994), the agreement set a fixed amount of back pay with deductions only for taxes; the amount of back pay calculated did not take into account that the employee had received wages for another position during the relevant time frame so that amount had to be deducted.  For the agency to pay the full amount would have violated the Back Pay Act.  In Miller v. Department of Defense, 45 MSPR 263 (1990), the Board set aside a settlement agreement that provided for a year of administrative leave based on a Comptroller General advisory opinion which provide that the use of administrative leave to provide prospective compensation and benefits in the settlement of an appeal was lawful under the circumstances.

The Board found that the settlement agreement for Ross which allowed for a 5-day suspension was also invalid based on a mutual mistake.  The appeal was remanded for reinstatement of Ross’ appeal, so DHS would have to defend the 30-day suspension for willful misuse absent a new settlement agreement.  [Editor’s Note: Even more reasons never to charge Willful Misuse of a GOV, as we teach in the FELTG MSPB Law Week; too much trouble for no real benefit.]

With this, I am wrapping up the topic of vehicle misuse.  So, that’s all folks! Haga@FELTG.com

Here We Go Again

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By William Wiley

I am so tired of this. Once more, we have an agency head that is being given bad advice by his employment law practitioners, thereby embarrassing himself and the civil service on Capitol Hill and in the press. Here’s the scenario that repeats itself every couple of months:

1. Agency employees do Bad Things.
2. Congress finds out about the Bad Things and summons the agency head to a Congressional oversight committee hearing to explain what’s being done.
3. Agency head says he knows about the Bad Things, but can’t do anything about it because of those pesky old civil service rules that keep him from disciplining employees.

AAAUUUGGGHHH! We are going to lose our civil service if this claptrap keeps up. The latest episode was on the front page of the Washington Post a week or so ago and involved our friends at the National Park Service.

If you know any of the following people (or their advisors), please send this article along:

• Jonathan Jarvis, Director of the National Park Service
• Sally Jewell, Secretary of the Interior

The article described alleged sexual harassment and whistleblower reprisal at a specific national park and the testimony of senior Park leadership before Congress regarding the allegations. While not denying the misconduct occurred, NPS Director Jonathan Jarvis stated that no one had been disciplined “because civil servants have strong rights to appeal disciplinary proceedings, taking action against them is not easy.”

Well, that’s just wrong. Whoever briefed Director Jarvis regarding civil service discipline and appeals did not do a good job. OK, OK; maybe “not easy” is shaded just enough to be truthful. However, the idea that the civil service protections somehow justify not disciplining employees who deserve it does our entire federal workforce and those who serve in it a huge disservice. As my grandmother used to say, “It’s a poor craftsman who blames his tools.” If you don’t know how to fire people from government, maybe go look in the mirror instead of in your tool box. The system has been in place nearly 40 years, and trained employment law practitioners use it every day to effectively and efficiently remove bad employees. If you were told otherwise, Director Jarvis, you were given incorrect information.

For over 15 years, FELTG has been honored to provide periodic how-to-discipline training for supervisors throughout the government, including the Park Service. On a personal note, it is tremendously rewarding to help a supervisor learn how to deal with a problem employee, removing the employee from service if that becomes necessary. So many supervisors are frustrated by the absence of good advice on how to take discipline quickly and effectively. Here at FELTG, we teach them the way to fire a bad performer in 31 days, and how to make it stick on appeal.

Last year, I was approached during a classroom break by an agency attorney who was attending one of our famous open-enrollment seminars in Washington, DC. She said that she knew that FELTG was teaching supervisors at her agency how to fire people, and that we needed to back off. In her opinion, I was making a mistake (and causing her problems) because I wasn’t taking into consideration the “culture” at her agency. Since at FELTG we teach how to remove bad employees quickly and efficiently, I assume she meant that at her agency, the culture is not to take quick efficient discipline.

She identified herself as being with the general counsel’s office at the National Park Service.

It’s all starting to come together now.

Relatedly, I reviewed the judge’s decision in a case referenced in the article, a case in which the Board found that the Park Service engaged in whistleblower reprisal. An element of that case was whether the whistleblowing appellant had a good-faith belief that an agency official violated a government regulation. Although the agency’s Office of Inspector General specifically found that the agency violated government regulations, the agency argued to the judge that the appellant did not have a good faith belief in that fact. In analyzing that claim, the administrative judge concluded, “I am, frankly, astounded by the agency’s representations and arguments. Unless it did not read its own OIG report, I cannot fathom how it could make such assertions.” Carter v. DoI, AT-1221-13-2153-W-1 (December 3, 2014).

Ouch. It’s never a good day when a Board judge refers to your arguments as astounding and concludes that she “cannot fathom” how you could make such representations. Maybe there’s more than a counter-productive “culture” going on with the Park Service. We are happy to help – give us a call. Wiley@FELTG.com

Agencies: Bring the Right People to the Table to Talk About Settlement and Make Sure They Have Authority!

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By Deryn Sumner

As we’ve talked about a few times in this space, in August 2015 the EEOC released a revised version of its Management Directive 110 (MD-110), which relates to federal sector EEO complaints processing.  One change to MD-110 that not everyone has caught up to yet is the requirement for agencies to identify a settlement authority that is not named as a responsible management official or is otherwise directly involved in the case.  The language in MD-110, Chapter 1, Section V. (emphasis added) states:

The agency must designate an individual to attend settlement discussions convened by a Commission Administrative Judge or to participate in EEO alternative dispute resolution (ADR) attempts. Agencies should include an official with settlement authority during all settlement discussions and at all EEO ADR meetings (Note: The agency’s official with settlement authority should not be the responsible management official (RMO) or agency official directly involved in the case. This is not a general prohibition on those officials from being present at appropriate settlement discussions and participating, only that they are not the officials with the settlement authority.) The probability of achieving resolution of a dispute improves significantly if the designated agency official has the authority to agree immediately to a resolution reached between the parties. If an official with settlement authority is not present at the settlement or EEO ADR negotiations, such official must be immediately accessible to the agency representative during settlement discussions or EEO ADR.

The Commission is clearly stating here that identified RMOs should not be the ones coming to the table with authority to try to settle cases.  That makes sense and is something I recommended prior to the release of the revised MD-110.  Managers who have been identified as alleged discriminating officials are too close to the situation to view it objectively, to consider the employee’s requests for settlement, and to respond in a way that addresses all the reasons why we here at FELTG teach that agencies should be open to settlement discussions, even if it is the agency’s position that it did not do anything wrong.  So make sure you are up to speed on the revised directive and identify someone outside of the RMOs and those directly involved to serve as the settlement authority.

And as a reminder, it is imperative that the individual identified by the agency to have authority to resolve complaints actually have that authority.  The Department of the Air Force recently learned that lesson the hard way. Luann L. v. USAF, EEOC No. 0120161629 (June 23, 2016).  There, the parties entered into a settlement agreement wherein the agency agreed to, in part, process paperwork to reflect that the complainant was detailed to unclassified duties at the GS-14 level for about 5 days and to thereafter temporarily promote her to a GS-14 position “until such time as the vacancy is filled or the Complainant is no longer performing the duties at which time the Complainant will convert to her previous position and pay grade.”

After the complainant filed a breach of the agreement, the agency issued a final decision finding that the settlement authority who attended the mediation did not actually have authority and therefore was not authorized to bind the agency to these terms.  The Commission did not find that argument to be persuasive and noted that an agency must present evidence to prove that the signatory to the agreement actually lacked the authority to agree to its terms. Here, as the agency did not present evidence that the settlement authority was not authorized to bind the agency to the terms of the agreement, the Commission remanded the matter to the agency for specific enforcement of the settlement agreement. Sumner@FELTG.com

Playing Favorites in Selections and Promotions: Not EEO, But Still a Bad Idea

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By Deborah Hopkins

I love it when I teach a webinar and after it’s over, participants email questions as follow-up. Here’s one that I got after last week’s webinar on The Latest Developments in LGBTQ+ Discrimination: What Agencies and Employees Need to Know:

Dear Attorney Hopkins:

Can you speak on the discrimination implications for a selecting official who chooses someone for a job based on a personal dating relationship – can applicants who did not get selected validly claim that this is sex discrimination (e.g. you have to be heterosexual, or you have to be a female)?

And here’s the FELTG answer:

Thanks for the question. I hope this helps:

The EEOC’s stance is generally that isolated incidents of sexual favoritism (for example, a selecting official choosing someone for a position because of a dating or sexual relationship) have an adverse impact on both males and females, so they are not considered sex/gender discrimination under Title VII. In addition to EEOC, the courts have widely rejected claims that isolated incidents of sexual favoritism based on consensual romantic relationships create a hostile environment for others in the workplace. See Miller v. Aluminum Co. of America, 679 F. Supp. 495, aff’d mem., 856 F.2d 184 (3rd Cir. 1988). If the relationship and romantic behavior is voluntary, the “hostile behavior that does not bespeak an unlawful motive cannot support a hostile work environment claim.” Id. at 502.

In cases where coercion is used, though, we enter in to sexual harassment territory either as a tangible employment action (formerly quid pro quo) or a hostile work environment analysis. See EEOC’s Guidelines on Sexual Harassment, Section 1604.11(l), which state that when submission to unwelcome sexual conduct is made “either explicitly or implicitly” a term or condition of an individual’s employment, a violation will be found.

Back to your question. Take a look at Paul v. GSA, EEOC No. 01992256 (EEOC OFO 2001), where the EEOC rejected a male complainant’s claim that he was subjected to sexual harassment when a female employee was awarded a position because she had a romantic relationship with a senior agency official, who was a male. This was one isolated incident of preferential treatment without coercion, and while EEOC acknowledged it was unfair, the incident did not create a hostile work environment for either male or female employees.

Another case on point is Roy v. USPS, EEOC No. 01A50021 (EEOC OFO 2004), where a complainant alleged sex discrimination after she was denied a promotion, and she claimed that the selectee’s sexual relationship with the selecting official was the reason for her promotion. In this case, EEOC also said it might be unfair but it’s not EEO, because there was no evidence indicating sexual coercion or a pattern of sexual favors in the workplace.

One word of caution, though: an agency with a common practice of granting favorable treatment based on dating relationships might create a hostile work environment. (See EEOC’s Policy Guidance on Employer Liability under Title VII for Sexual Favoritism,  https://www.eeoc.gov/policy/docs/sexualfavor.html). If sexual favoritism is widespread in a workplace, the fact that one case was voluntary and consensual would not defeat a claim that it created a hostile work environment for other people in the workplace. Miller v. Aluminum Co. of America, 679 F. Supp. At 502. This analysis is determined on a case-by-case basis.

So maybe, if it happens once, there’s no EEO problem. But aside from EEO, we have another issue. If “choosing” the romantic partner is for a promotion or a selection, then doing so based on a personal relationship (whether it’s sex-based or not) is a non-merit factor, and this constitutes a prohibited personnel practice under 5 USC 2302(b)(6). (http://www.mspb.gov/ppp/ppp.htm). So, while there may not be EEO trouble there might be OSC trouble – and believe me, unless you’re a sadist you do NOT want trouble with OSC. But, anyone who observes this type of non-merit personal relationship favoritism can report it to the US Office of Special Counsel at www.osc.gov. The OSC then would be responsible to decide whether to investigate this type of claim and taking appropriate action.

If you’re interested in this topic and you weren’t able to attend, check out a related webinar FELTG is hosting on July 20 called New Developments under Title VII: Sexual Orientation and Gender Stereotyping. Register here: https://feltg-stage-ada.stage3.estlandhosting.com/event/webinar-series-eeo-counselor-and-investigator-refresher-training/?instance_id=164.  Hopkins@FELTG.com

EEOC’s Office of Federal Operations Certifies First Federal Sector Class Action of 2016

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By Deryn Sumner

On June 1, 2016, the EEOC’s Office of Federal Operations certified what appears to be the first federal sector EEO class action of 2016 in Candice B., et al. v. Dep’t of Homeland Security, EEOC No. 0120160714 (June 1, 2016).  The Commission reversed the agency’s final action which had accepted the administrative judge’s denial of class certification.  Instead, addressing the four requirements for class complaints (commonality, typicality, numerosity, and adequate representation (although that was only summarily addressed)), the Commission certified a class of women challenging the Department of Homeland Security’s push-up test requirements as being discriminatory against women seeking to become permanent Customs and Border Protection Officers.

In October 2009, the Department of Homeland Security implemented new physical fitness standards for Customs and Border Protection Officers, which included push-up requirements.  The cut-off scores were the same for both male and female applicants and the tests came in three stages of the employment process. (For you fit FELTG newsletter readers wondering how you would stack up, applicants had to complete 12 push-ups in a minute to pass the first fitness test, 17 push-ups in a minute to pass the second, and 24 push-ups in a minute to graduate from the Federal Law Enforcement Training Center (FLETC)).

The class agent passed the first two tests and started basic training at FLETC.  However, she was unable to pass the third test and the Agency terminated her during her probationary employment.  She sought EEO counseling, alleging discrimination based on sex.  After she filed a formal complaint, received an investigation and requested an EEO hearing, she filed a Motion for Class Certification, which the administrative judge denied.  The administrative judge found the class agent did not meet the requirements of typicality, commonality, and numerosity required for class complaints.

The complainant appealed and the Commission found the requirements for class certification were in fact met, based on the evidence provided by the complainant.  Addressing commonality and typicality together, as is often done in the analysis, the Commission found that the complainant was challenging an agency policy, which contained qualifications standards that disparately impacted women.  The prospective class members had a common injury in that if they failed the push-up tests, they would be barred from permanent employment and each female applicant was required to perform the same test.  Addressing numerosity, the Commission referenced evidence in the record that over a two-year period, over 2,100 women performed the push-up tests and over 350 failed them, finding that number to be sufficient to constitute a class. The Commission found the criteria for class certification was met and remanded the complaint to an administrative judge, noting that the judge “shall afford the class agents the opportunity for any additional discovery necessary to ensure the class maintains certification.” Sumner@FELTG.com

A Collection of Odds and Ends

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By William Wiley

Every now and then a case comes along that contains a bunch of good learning points, but does not actually cut much new grass on the lawn of federal employment law jurisprudence. Here are some things we learn and are reminded of in the judge’s decision in Carter v. DoI, AT-1221-13-2153-W-1 (December 3, 2014):

  • A Letter of Counseling is a “personnel action” and can be the basis for a claim of whistleblower reprisal IF AND ONLY IF it contains a threat of future discipline. No threat of future discipline, no personnel action, and therefore no viable whistleblower reprisal claim.
    • Of course, if you issue a Letter of Counseling without a threat of future discipline, even though there is no viable claim of reprisal, that does not stop an angry employee from forcing you to defend yourself all the way through discovery, a hearing before an administrative judge, and an appeal to the three Board members. SO DON’T USE THEM! THEY ARE WORTHLESS AND HAVE TO BE DEFENDED!
  • Ordering an employee to direct all complaints through the chain of command is a form of whistleblower reprisal and the agency is automatically liable. Therefore, to avoid a reprisal finding, IT’S ok TO order the employee to use the chain of command, but specifically tell the employee that he is still free to take any concerns he has regarding wrongdoing to the Office of Special Counsel, the Office of Inspector General, the EEO office, Congress, or to any law enforcement organization.
  • An inappropriate touching by a coworker is not a “personal action” for the purpose of claiming whistleblower reprisal. However, a reprisal claim can be made regarding an agency’s failure to discipline the whistleblower toucher.
  • If a supervisor has shown a lack of candor (e.g., fails to tell the truth) during an OIG investigation, a judge is likely to disbelieve any future statement that the supervisor makes in a related appeal before the Board.
  • Arguing to a judge that a putative whistleblower could not have had a good-faith belief in the facts underlying her disclosure will cause the judge to say nasty things about you if the agency’s own IG found those facts to be true (see article above).
  • Knowing that an employee is giving statements to an IG investigator suffices to establish that the supervisor had knowledge that the employee is a whistleblower even if the employee never says to the supervisor, “Hey, boss; I’m a gosh-darned whistleblower.”
  • If a supervisor gives a whistleblower a lower performance rating than the employee received the previous year before the whistleblowing, the supervisor will have to give a good reason for the lowered rating or else be found to be a whistleblower repriser.
  • If an agency has a five-level performance rating program, and it defines the Fully Acceptable level, but not the Minimal level of performance for an employee, it cannot rate the employee Minimal if the employee is a whistleblower or it will be guilty of whistleblower reprisal.
    • Hint: Go to a Pass-Fail system and you will have one less problem with claims of discrimination and reprisal. Unless, of course, you can articulate a reason why you think five levels is better. Hint: You cannot.
  • If a critical element has several subparts, the agency should state how an overall element rating is derived based on the independent evaluation of each of the parts. For example, after the several components of the element are listed, the performance plan should say something like, “A rating of Minimal on any two or more of the subparts of this element warrants an overall rating on this element of no better that Minimal.”
  • The supervisor’s testimony at hearing as to the appellant’s performance should be consistent with, and certainly no lower than, the appellant’s most recent official performance evaluation.
  • If on several occasions you grant a whistleblower administrative leave for something, and then you decide to stop, you’d better have a darned good reason (otherwise known as proof at the clear and convincing level).

The facts in this case are not nearly as interesting to a practitioner as are the above learning points, but here they are anyway. The appellant was upset because she had been reporting agency violations of regulations to an IG, and in response the agency had been (allegedly) mistreating her. Specifically, she claimed that the agency did the following to her because she is a whistleblower:

  1. Oral counseling
  2. Written counseling
  3. A physical assault
  4. Failure to remedy a physical assault
  5. Delay in approving her leave share request
  6. Denial of administrative leave to seek EAP counseling
  7. Lowered performance rating, from Superior to Fully Acceptable
  8. Harassment in the form of:
    1. Anti-whistleblowing emails from coworkers
    2. Whistling at her by coworkers
    3. Coworker declining to talk to her

When she took her claims to the Office of Special Counsel, that office dismissed her complaint, finding no basis for her allegations. Then she and her attorney took the case to the Board’s administrative judge. In a 20-page decision, including 17 footnotes, the judge found that two of the ten alleged acts of reprisal occurred. As a remedy, the judge ordered that the agency grant her in the future all the medically necessary administrative leave required to remedy her assault, and provide her all the benefits she should have received if properly given a Superior performance rating.

Your tax dollars at work. Wiley@FELTG.com

Equal Pay for Equal Work: Recent Federal Sector Equal Pay Decisions

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By Deryn Sumner

Although claims of unequal pay occur less in the federal government than in the private sector, thanks to the published salary scales issued by OPM, they do still occur.  As a reminder, EPA claims can be filed by either male or female employees.  In order to succeed on a claim, the complainant must establish that she or he works in a job requiring equal work, skill, effort, and responsibility, under similar working conditions and within the same establishment as an employee of the opposite sex, but for less compensation.  Assuming that showing is made, an agency avoids liability by establishing that the distinction in pay is based on a reason other than sex, such as seniority, a merit system, a system by which pay is determined by quantity or quality of work, or some other differential.

In Heidi B. v. Dep’t of Health and Human Services, EEOC No. 0120152308 (June 3, 2016), the agency was unable to overcome an allegation of an EPA violation where the complainant worked as a GS-0201-12 HR Specialist and alleged she should have been paid at the GS-13 level, as a male HR Specialist was.  The agency argued that an audit revealed that the complainant “did not have the extent of independence and latitude in her classification work which would have been commensurate with performing duties at the GS-13 level of pay. Thus, the Agency argued Complainant did not establish a prima facie case under the EPA.”  The Commission disagreed, noting that audit did not compare the duties the complainant performed as compared to the identified male employee, nor did the record support that the male comparator’s job involved more responsibility. Therefore, the Commission found the complainant established a prima facie case.  The Commission then concluded that the agency failed to establish any defense to the claim.

Compare that to the result in Vaughn C. v. Dep’t of Veterans Affairs, EEOC No. 0120152918 (June 23, 2016). There, the complainant was a GS-11 Clinical Applications Coordinator (CAC) and during a conference call, became aware that a white, female CAC in another location was paid as a GS-12. The Commission did not bother to address whether the complainant established a prima facie case and assuming that he did, found that the VA established that the female comparator was required to perform additional and more complex duties, which established a factor other than sex in the salary discrepancy.

EPA claims require a clear step-by-step analysis to both bring and defend against.  During the investigation and in discovery if needed, be sure to identify the comparators, get the information about the position itself (don’t just rely on the position description), and address each element of both the prima facie claim and the affirmative defenses. Sumner@FELTG.com