Law Enforcement Officer Bites His Wife During an ‘Altercation’

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By Deborah J. Hopkins, September 10, 2024

Quick facts:

  • A law enforcement officer was removed after the agency learned he bit his wife during an off-duty physical altercation at their home.
  • The appellant was not truthful when questioned about the altercation and claimed his wife bit herself.
  • The administrative judge (AJ) found a nexus between the conduct and the efficiency of the service but mitigated the penalty because the agency did not appropriately address several mitigating factors, and the MSPB upheld the AJ.

In my line of work, I never have to make anything up. And once again, the point is proven in a recent MSPB case, Bonojo v. DHS, NY-0752-20-0056-I-3 (Aug. 22, 2024)(NP). Here are the facts, some of which I had to find in the initial decision (ID), which was issued Mar. 31, 2021.

  • A GS-12 Deportation Officer at ICE had a physical altercation with his wife on a day he was not scheduled to work. However, he was wearing his service weapon at the time because he could be called in to work if necessary.
  • The physical struggle occurred after his wife learned he had received a text message from another woman, and she attempted to take his phone from him. The appellant threw his wife on the ground and bit her on the arm; she scratched his chest.
  • The appellant called the police, and both individuals were arrested for assault.
  • The appellant reported the arrest to the agency. He claimed, on multiple occasions, that his wife bit herself in an attempt to make him look like the aggressor.
  • The agency removed the appellant based on two charges: 1) conduct unbecoming a law enforcement officer (one specification, related to biting his wife) and (2) lack of candor (four specifications, related to inaccuracies in reporting his version of the altercation).

On appeal, the AJ affirmed both charges, including 3 of the 4 specifications on the lack of candor charge. She also found a nexus between the conduct and the efficiency of the service because, while charge 1 occurred off duty, “[t]he appellant’s biting his wife raises questions as to his temperament.” Initial Decision at 13. However, the AJ also found the deciding official did not give sufficient weight to certain mitigating factors:

  • The appellant’s wife was not seriously injured and did not need medical attention.
  • The appellant’s performance ratings were outstanding.
  • The appellant had over 10 years of discipline-free Federal service.

The AJ found the removal to be outside the bounds of reasonableness. However, the appellant was now Giglio-impaired. The AJ ordered the removal mitigated to a reassignment to the highest-graded non-LEO position in his commuting area.

If you are thinking, “But Deb, a reassignment on its own isn’t even discipline,” then you’d be absolutely right. If the agency reassigned the appellant to a non-LEO job at the same grade level, then there would not be any discipline in his record!

And that is despite the Board’s strong language on nexus: “Thus, when law enforcement officers engage in off-duty misconduct, it is a ‘serious breach of conduct and . . . [has] a significant effect on [the officer’s] reputation for honesty and integrity, thereby a significant effect upon the efficiency of the service,’” citing Austin v. Department of Justice, 11 M.S.P.R. 255, 259 (1982). NP Decision at 4. Furthermore:

 

As a trained law enforcement officer, it is reasonable to expect that the appellant not resort to such violence, and his failure to do so casts doubt upon his ability to perform his duties, which require him to have good judgment and strong decision-making skills in high stress, difficult situations … [A]s a result of his actions, the appellant was arrested, and his second line supervisor had to retrieve the appellant’s weapon and credentials from the local police station, thus involving agency officials in his off-duty conduct.

Therefore, we find that the appellant’s actions undermine his ability to perform his duties as a law enforcement officer and adversely impacted the mission of the agency, namely, the enforcement of laws. Thus, consistent with previous Board findings, we find that the appellant’s off-duty misconduct is antithetical to the appellant’s role as a law enforcement officer and, therefore, has a significant impact on the efficiency of the service. (internal citations omitted)

Id.

Rather than reinstate the penalty, however, the Board upheld the AJ’s order on reassignment.

Had the agency done a complete Douglas analysis, it’s quite possible the removal would have been upheld, but its failure to give consideration to the mitigating factors allowed the AJ to substitute her own judgment for that of the deciding official. Yikes. hopkins@feltg.com

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Take-it-or-leave-it Telework Offer Raises Accommodation Questions

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By Frank Ferreri, September 10, 2024

Quick facts:

  • An EPA economist had allergies that required him to be away from certain irritants.
  • The agency accommodated him until it moved a heavily perfumed coworker near him.
  • The agency’s offer of 100% telework or nothing led a Circuit Court to question the offer and the interactive process.

Last month, we told you a reasonable accommodation doesn’t mean the employee necessarily gets exactly what they want. Well, a case that came out in the meantime shows that the same holds true for the agency side. In Ali v. Regan, No. 22-5124 (D.C. Cir. Aug. 9, 2024), the D.C. Circuit Court of Appeals found the agency’s offer of telework or nothing as an accommodation left questions regarding the reasonableness of the offer and the sufficiency of the interactive process.

The fragranced coworker

An Environmental Protection Agency economist had severe allergies. The agency was aware and provided a workspace that accommodated the employee’s health needs.

Things changed, however, when the EPA placed a worker known for wearing heavy perfume in the cubicle next to the economist. When the economist asked for a private office or conference room to work in, the EPA offered a different cubicle, which the economist also found “very perfumy.”

The EPA requested and received medical information from the economist regarding his allergies. The agency offered the economist a take-it-or-leave-it accommodation of 100% telework, which the employee had not requested.

The economist asked the agency for other options and asked the coworker to stop wearing fragrances. Neither yielded a solution. Thus, he filed a Rehabilitation Act claim after an ALJ and the EEOC ruled in the EPA’s favor.

The District Court granted summary judgment in favor of the EPA as well, concluding the economist failed to act in good faith during the interactive process because he rejected telework without an explanation.

Rehabilitation Act requirements

The economist appealed to the D.C. Circuit Court of Appeals, which focused on the reasonableness of the accommodation offered.

The Rehab Act’s reasonable accommodation standards are the same as those applied under the Americans with Disabilities Act. Under the ADA, “reasonable accommodations” include making existing facilities usable by people with disabilities and may involve job restructuring, modified scheduling, and reassignment. The EEOC has specified that adjustments to the work environment may be necessary to provide a reasonable accommodation.

In its appendix to the ADA regulations, the EEOC advises that employers should:

  1. Analyze the particular job involved and determine its purpose and essential functions.
  2. Consult with the employee to ascertain the precise job-related limitations imposed by the employee’s disability and how those limitations could be overcome with a reasonable accommodation.
  3. In consultation with the employee to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position.
  4. Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
More questions

The D.C. Circuit reversed the District Court’s decision, finding it erred in concluding the economist caused a breakdown in the interactive process. According to the D.C. Circuit, it was up to a jury to decide the disputed material facts regarding the reasonableness of the EPA’s proposed final accommodation, which was offered without first meeting with the economist to discuss accommodation options.

The D.C. Circuit noted the economist provided all of the information that the agency requested of him, and that information is what the agency used to formulate its accommodation offer. The D.C. Circuit also found questions regarding whether the economist did, in fact, reject the EPA’s offer.

“The record does not indicate that [the] EPA spoke with [the economist] at all about an appropriate accommodation between the time it determined he qualified for one and its proffer of the 100% telework accommodation,” the D.C. Circuit wrote. “Instead, [the] EPA presented its offer as an apparent fait accompli, without ever discussing with [the economist] the effectiveness or reasonableness of 100% telework.”

The D.C. Circuit also pointed out that the economist tried to re-engage the agency in discussion about alternative accommodations, following up once a week for three weeks on his request for a private working space with no evidence that the EPA responded to any of the follow-ups other than an email stating “you have been offered a reasonable accommodation of 100% telework and have declined the offer.”

Was the offer reasonable?

The D.C. Circuit also found triable issues as to whether the all-or-nothing telework offer was reasonable, given evidence that the economist could “not print things” at home due to allergic reactions he experienced “to emissions from printers” and that he lacked an office space “set up.”

While telework is often a successful option, especially in a post-COVID world, the D.C. Circuit pointed out that assumptions can be risky, and some employees may not be suited for separation from the in-person environment.

“Offering a willing employee a remote-work option is very different from forcing remote work on an unwilling employee as the sole option for accommodating that employee’s disability,” the D.C. Circuit reasoned. “In the latter case, the factual record would have to justify the reasonableness of such forced segregation, such as by showing the absence of an integrative reasonable accommodation.”

The D.C. Circuit sent the decision back to the District Court.

A dissenting judge pointed out that, five years earlier, the economist worked at home temporarily as a reasonable accommodation. That experience, along with a lack of evidence on how working at home would hurt the economist’s career, supported the EPA’s position that telework was a reasonable accommodation.

As the court phrased it, requiring an employee who has successfully worked in the office for years to leave the workplace permanently as the sole means for accommodating a disability – without first discussing it with the employee or exploring integrative alternatives – risks running afoul of the Rehabilitation Act. It is still up to the employee to show the feasibility of some other option. However, just because telework is an excellent accommodation in many cases does not mean it will be reasonable in every case. info@feltg.com

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The Good News: Unions Make Sure You Do Your Job Correctly

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By Ann Boehm, September 10, 2024

Quick facts:

  • It’s the managers’ obligation to handle problem employees who negatively impact the agency’s mission.
  • Union representatives are obligated to ensure problem employees are treated fairly.
  • Learn the processes and take the right steps to handle problem employees.

What do managers, counsel, employee relations specialists, labor relations specialists, employees, and union representatives all have in common? All of them know who the toxic employees are. What’s different is how these folks deal with the toxic employees. Or is it really different?

I recently had the amazing opportunity to train union stewards. Throughout my career, I have spent much more time on the management side than on the union side. This was a tremendous chance for me to learn more about the union perspective.

Early in the training, I discovered the union stewards certainly know who the problem employees are. In fact, the problem employees are not necessarily any nicer to the union representatives than they are to managers.

But here’s the big difference between the managers and the union representatives: The managers have an obligation to the public, and part of that obligation is to handle problem employees who negatively impact the mission. The union representatives are obligated to ensure that even the problem employees are treated fairly and have all available opportunities to challenge management’s actions.

I came out of this experience thinking of the union representatives more like criminal defense attorneys. Most people wonder how criminal defense attorneys can represent an admitted murderer, for example. The common response from those attorneys is that everyone is entitled to their rights under the Constitution and criminal laws. If the police or prosecutors do something wrong to violate those rights, or if the prosecutors cannot prove the commission of a crime beyond a reasonable doubt, then that’s on them.

In the employment context, union representatives may know the employee is a problem and deserves discipline or a performance-based action, but they are going to do their level best to make sure management and agency reps do things correctly.

What’s the lesson to be learned here? No one wants problem employees dragging down the agency or co-workers. If the agency wants to take action, it needs to do things correctly. The union representatives are there to keep a check on the process. It’s their job.

So, agencies learn the processes and follow them. (We at FELTG are here to help!) Understand that the union representatives know who the problem employees are, but they have a job to do. Take the right steps to handle the problem employee. Everyone will benefit. And that’s Good News! boehm@feltg.com

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ALJ Rules Medical Inability to Perform Removal Was Fitting

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By Dan Gephart, September 10, 2024

Quick facts:

  • A Navy shipfitter was injured on the job. He broke several bones, had internal bleeding, and later developed PTSD.
  • Years later, the agency and employee went through a good faith interactive process to find a reasonable accommodation.
  • A Merit Systems Protection Board administrative law judge upheld the agency’s decision to remove the employee for medical inability to perform.

Some cases we review offer fact patterns that include outlandish, even ridiculous, behavior by an employee. Other cases reveal an agency blatantly failing to follow the basic tenets of the law.

Denny v. Navy, SF-0752-24-0291-I-1 (May 29, 2024)(ID) is neither of the above. This case involves an appellant whose injury made it impossible for him to perform his job and an agency that followed the right steps to address the situation. Unfortunately, it was not a win-win situation in the end. However, Denny allows us an opportunity to review how to handle the reasonable accommodation process and medical inability to perform removals.

It all started because of an improperly installed hatch on a ship. The appellant, a shipfitter on a temporary assignment in Japan, stepped onto the hatch, which collapsed inward. He fell, suffering internal bleeding and several broken and fractured bones. The spotter, a coworker who was with the appellant, had a panic attack and could not help. The appellant was lucky to live through this accident.

The appellant was initially treated in Japan. Upon return to the United States, he was diagnosed with a lumbar contusion, left hip contusion, right index finger avulsion fracture PIP joint, right great toe avulsion fracture based proximal phalanx, right wrist scaphoid fracture status post-ORIF, pulmonary contusion, and splenic subcapsular hematoma. After a psychological evaluation and counseling, the appellant was diagnosed with post-traumatic stress disorder resulting from his work injury, as well as major depressive disorder.

After his injury, the appellant continued to work as a shipfitter. Fast forward a few years: His supervisor was not happy with the appellant’s work and sought to have him removed. The appellant then submitted a request for reasonable accommodation, elaborating that cold weather made his hand pain and back pain worse and that he had psychological trauma.

Four reasonable accommodations were considered but dismissed. The first, moving the appellant away from the waterfront and getting him out of the cold, did not address the other physical limitations or psychological concerns. Second, making the appellant a training instructor, a role he took on while the accommodation process played out, would require a promotion, and the appellant was only capable of teaching 25 percent of the curriculum.

The appellant also requested telework or medical retirement as accommodations.

First off, early retirement is not an accommodation. (Ironically, being removed for medical inability to perform creates a presumption of entitlement to those benefits.) But more importantly, telework is not an option for the shipfitter position, which requires work on large pieces of metal on ships or in the shop. The agency attempted reassignment as an accommodation but couldn’t find a position where the appellant could perform the essential functions.

In order to receive an accommodation, the employee must be a qualified individual with a disability. The term is defined as someone who:

  • Has a disability;
  • Satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires; and
  • Can perform the essential functions of such position with or without reasonable accommodation.

After a thorough process, the agency could not find any reasonable accommodations that allowed the appellant to perform the essential functions of his job. So, the agency removed him based on a single charge of Medical Inability to Perform the Essential Functions of the Position with the following specification:

“Documentary evidence demonstrates that you have permanent physical limitations and psychological limitations of an unknown duration. Because of the nature of your limitations, you are not able to perform the essential functions of your position of record.”

When the MSPB sustains all of an agency’s charges, it will usually defer to the agency’s penalty determination, only reviewing it to determine if the agency considered all of the relevant factors.

Separation for medical inability to perform is an adverse action. However, it is non-disciplinary. So, the agency did not have to apply the Douglas factors. Shoffner v. DoI, 9 MSPR 265 (MSPB 1981).

The administrative law judge ruled:

In the circumstances, the agency’s decision to remove the appellant was reasonable. Based on the existing medical restrictions, the appellant is unable to perform the WG-08 Shipfitter position. The restrictions are described as permanent. The appellant raised questions about the severity of his limitations but did not procure any adjustment from a medical provider. The agency considered the appellant for reassignment, but that process was unsuccessful.

The ALJ addressed other issues in the decision, including the appellant’s claims of whistleblowing and EEO retaliation, and reminded the appellant that removal for physical inability to perform the essential functions of a position is prima facie entitlement to disability benefits, and directed him to the Office for Personnel Management. gephart@feltg.com

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