Ask FELTG: What if an Agency Fails to Give ROI to Complainant?

May 7, 2024

The following question recently came into Ask FELTG:

What happens if an agency conducts an EEO investigation but fails to give a copy of the report of investigation (ROI) to the complainant?

Thanks for the question. A failure to give the complainant a copy of the ROI is a big problem and a violation of Equal Employment Opportunity Commission (EEOC) regulations, which state:

The agency “shall provide the complainant with a copy of the investigative file, and shall notify the complainant that, within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an administrative judge or may request an immediate final decision pursuant to [29 C.F.R.] § 1614.110 from the agency with which the complaint was filed.

29 C.F.R. § 1614.108(f).

Unfortunately, just because a regulation exists doesn’t mean it’s always followed. Take a look at a couple of recent EEOC cases where the complainant never received the ROI – and what happened as a result.

Sharolyn S. v. USPS, EEOC App. No. 2023001439 (Apr. 11, 2024)

The complainant alleged discrimination based on race (African-American/Native American/Cuban), sex (female), color (Brown), disability (physical and mental), and reprisal for prior protected EEO activity when:

1. Since November 10, 2021, she was not accommodated per her medical restrictions.

2. Since November 10, 2021, to present, she was charged LWOP.

3. On January 24, 2022, she was denied a bid position.

Id. at 4.

The record showed the complainant requested the ROI some days after the investigator notified her the investigation was complete and that the ROI would be sent to her in the near future. However, neither the investigator nor the agency ever provided her with a copy of the ROI. In addition, the agency never informed the complainant she had the right to request a hearing. As a result, the EEOC vacated the Final Agency Decision (FAD) (which found no discrimination), and remanded the case back for a supplemental investigation, as several important facts were missing from the investigative file.

Side note: Yikes. When the EEOC says information is missing from the investigative file, it’s going to be a long day for the agency and the investigator. Join FELTG guest instructor Roslyn Brown for an enlightening and interactive discussion on this topic and more on May 15 during Bad Detective: The Mistakes That Hamper Agency Investigations.

Susan D. v. USPS, EEOC App. No. 2020000586 (Feb. 9, 2021)

The complainant alleged the agency discriminated against her on the bases of sex (female), disability (coronary artery disease), and reprisal for prior protected EEO activity when:

Id. at 1.

The complainant asserted she never received the ROI or notice of her right to request a hearing. While the agency disputed the complainant’s claim, it provided no evidence it actually made delivery of the ROI. Id. at 2. In fact, although the agency provided tracking numbers it said corresponded to the transmittal of the ROI, when searched the “the tracking numbers produced no results.” Id. at 3.

Because the complainant informed the EEOC and agency she wanted a hearing, the EEOC vacated the FAD and ordered the agency to provide the ROI to the complainant and her representative, and to provide a copy of its decision and the investigative file to the corresponding EEOC Hearings Unit.

A mistake in the investigative process can cost the agency time and resources. If you read the cases, you’ll see that these delays almost always exacerbate the complainant’s medical conditions. The best way to avoid this problem is to conduct a legally sufficient investigation every time and follow EEOC’s regulatory timelines in providing the ROI to the complainant and their representative. Info@FELTG.com

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

Ask FELTG: Is Process for Accommodating a Pregnant Employee Same as for an Individual With a Disability?

April 8, 2024

Here’s the full question we received:

Dear FELTG: I understand my agency’s obligation to accommodate employees now extends to pregnant workers. Is the process the same as it is for accommodating an individual with a disability?

And our answer:

Thanks for the question. The Pregnant Workers Fairness Act went into effect in June 2023. It is similar to the Americans with Disabilities Act (ADA)/Rehabilitation Act in that it requires agencies to accommodate the employee or applicant’s known limitations (but related to pregnancy and childbirth), unless doing so would cause an undue hardship. There are a few differences, though.

A couple of areas where the PWFA differs from the ADA:

1. The temporary nature of the accommodation.

With many disabilities, the need for accommodation might have no end in sight, but because the PWFA covers uncomplicated pregnancies, the accommodation will be temporary – in other words, there will be an end in sight. While we are still awaiting EEOC’s final regulations, the proposed rule defines the terms “temporary” (lasting for a limited time, not permanent, and may extend beyond “in the near future”) and “in the near future” (generally within 40 weeks).

2. The suspension of essential functions for a period of time.

Under the ADA, an employee is not qualified if she cannot perform the essential functions of her position with or without accommodation. Under the PWFA, an individual is still qualified – even if she cannot perform one or more essential functions of the job – if the:

  • Inability to perform the function(s) is “temporary,”
  • Worker could perform the function(s) “in the near future,” and
  • Inability to perform the function(s) can be reasonably accommodated.

If an agency temporarily suspends an essential function, depending on the position the employee might:

  • Continue to perform the remaining functions of the job;
  • Be assigned other tasks;
  • Perform the functions of a different job into which the employer temporarily transfers them; or
  • Participate in the employer’s light duty program.

These distinctions aren’t all, however. Another significant difference exists in the agency’s interactive process obligations. For a detailed explanation on that, you’ll want to join us on April 11 for Up to the Minute: The Latest Changes to Reasonable Accommodation for Pregnancy, Disability, and Religion.

Have a question? Ask FELTG.

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

Ask FELTG: Can Employee Claim PIP is Whistleblower Reprisal?

March 26, 2024

We received the following question via Ask FELTG.

Dear FELTG: I recall from attending UnCivil Servant that putting an employee on a PIP does not give them standing to file an EEO complaint, but can an employee claim being put on a PIP is whistleblower reprisal?

Thanks for the question. Let’s look at your recollection of EEOC’s stance first:

You’re correct in remembering that the Performance Improvement Plan (PIP) is a preliminary step to taking a personnel action and, in most instances, does not constitute an adverse action sufficient to render an employee aggrieved for the purposes of filing an intentional discrimination claim. See Lopez v. Agriculture, EEOC No. 01A04897 (2000); Jackson v. CIA, EEOC No. 059311779 (1994).

In fact, in the analysis that accompanied EEOC’s initial 1992 regulations at 29 CFR Part 1614, EEOC explained: “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

Being put on a PIP could come in as a fact alleged in a claim of harassment or reprisal, but standing alone, a PIP generally does not aggrieve an employee for the purposes of filing an EEO complaint.

As far as a PIP being considered whistleblower reprisal, the answer is yes, it can. In fact, a fairly recent nonprecedential MSPB case addressed this very issue and highlighted that “a performance improvement plan (PIP) may constitute a personnel action under the Whistleblower Protection Act (WPA) and that an agency action need not be ‘formal discipline’ to constitute a covered personnel action.” Ingram-Williams v. VA, SF-1221-16-0352-W-1, ¶1 (Dec. 12, 2023) (NP).

The case explains that while placement on a PIP, formal counseling, and other matters do not constitute formal personnel actions under the Civil Service Reform Act, “a PIP and equivalent opportunity-to-improve programs involve a threatened personnel action, such as a reduction in grade or removal, and thus are personnel actions under the WPA.” Id. at ¶16. [Bold added]. Because threats of personnel actions can render an employee aggrieved under the WPA, an employee has standing to claim that placement on a PIP is whistleblower reprisal.

A quick note: the terms personnel actions and adverse employment actions have varying meanings depending on the forum. We’ll help you navigate that, and much more, during FELTG’s most popular employee relations class MSPB Law Week, April 15-19.

Have a question? Ask FELTG.

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

Ask FELTG: Should I Charge Untruthful Witness With Lack of Candor?

February 27, 2024

We received the following question via Ask FELTG.

Dear FELTG: If an agency is investigating misconduct and the employee being investigated lies to an investigator, does it make sense to charge the employee with lack of candor on top of the other misconduct the agency discovers?

Thanks for the question. In many instances, agencies will indeed charge lack of candor when a witness is not truthful during an investigation. The key in doing so is to be sure the witness’s conduct meets the elements of lack of candor:

(1) The employee gave incorrect or incomplete information; and

(2) Did so knowingly.

Fargnoli v. Commerce, 123 M.S.P.R. 330, ¶ 17 (2016).

A recent MSPB case involving a Deputy U.S. Marshal raised this exact scenario: Smith v. DOJ, DA-0752-16-0383-I-1 (Feb. 1, 2024)(NP). The appellant attempted to leave a Whole Foods without paying for $6 worth of tacos, and the store’s Loss Prevention Officer stopped him and escorted him back into the store to pay. When the appellant got to the cash register to pay for the tacos, he took his money out of his U.S. Marshal’s credential case.

The appellant was then detained in the security office to await the police, but after an hour the police still had not arrived, so the appellant signed a statement admitting to wrongfully depriving the store of its property and was released. The Whole Foods store declined to press charges, but the police department reported the incident to the agency.

During the agency’s misconduct investigation, the appellant made several claims:

  • The tacos were complementary (“comped”).
  • When he signed the statement admitting to the dishonest conduct he was under duress.
  • The security personnel were aggressive toward him, yelled at him, threw paper and a pen at him, and prevented him from explaining the tacos had been comped.

Each of these statements was debunked by other evidence, including a video of the appellant’s time in the security office and the order receipt for the tacos, which was not marked as a comped order.

As a result, the agency removed the appellant based on four charges:

(1) Dishonest conduct for taking the tacos without paying for them;

(2) Failure to report that he was detained and accused of criminal conduct while on official duty as required by agency policy;

(3) Failure to follow an agency directive that prohibited the use of his credential case to store personal items, including his cash and driver’s license; and

(4) Lack of candor during [the] investigative interview into his alleged misconduct.

Id. at 3.

The Board upheld the lack of candor charge, as well as the other three charges, and sustained the removal. The video evidence from the security office clearly showed the appellant’s statements to the agency investigator were inaccurate. Also, the appellant’s “shifting explanations during his OPR-IA interview and across his subsequent statements are sufficiently distinct to allow for an inference that the appellant knowingly mischaracterized the incident,” Id. at 9.

For more on conducting legally sufficient investigations (and what to do with the findings) join FELTG for Workplace Investigations Week.

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

Ask FELTG: Could Deadnaming Be Considered Unlawful Harassment?

February 7, 2024

This article reflects current EEO law. Executive Order 14168 (Jan. 20, 2025)  limits the use of pronouns in the Federal workplace to he/she.

A FELTG reader sent us the following submission.

A discussion recently came up in our agency about deadnaming and whether that could be considered unlawful harassment. Can you weigh in?

Thanks for the question. Let’s start with a definition. A deadname, according to Merriam Webster, is “the name a transgender person was given at birth and no longer uses upon transitioning.” So, deadnaming is referring to a person by their former name.

Depending on the circumstances, referring to a coworker or employee by their deadname could constitute unlawful harassment. The details matter. EEOC case law makes clear that supervisors and coworkers should use the name and gender pronouns that correspond to the employee’s gender identity, in employee records and in communications with and about the employee. See Jameson v. USPS, EEOC App. No. 0120130992 (May 21, 2013); Eric S. v. VA, EEOC Appeal No. 0120133123 (Apr. 16, 2014).

There are cases, however, that find name or gender misuse might not meet the legal standard for unlawful harassment. Rare or unintentional misuse, while unwelcome, might not rise to the level of severe or pervasive. See Lusardi v. Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015).

A new EEOC case specifically addressed an agency’s deadnaming of a complainant. The agency’s “repeated use of the employee’s wrong pronouns and wrong name during the processing of two EEO complaints would be especially harmful and, therefore, severe to a reasonable person in that employee’s position. We therefore find that the harassment was sufficiently severe to constitute a hostile work environment.” Roxanna B. v. Treasury, EEOC App. No. 2020004142 (Jan. 10, 2024).

We know these topics can be challenging and we’ll discuss them in detail on Feb. 20 during the two-hour live virtual training Navigating Complex Hostile Work Environment Harassment Cases. Info@FELTG.com

Have a question? Ask FELTG.

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

Ask FELTG: Are There Restrictions on Gift-giving Between Feds Who are friends?

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December 4, 2023

This question came into the Ask FELTG mailbag: I know there are prohibitions on gift-giving when it involves Federal employees, but are there any restrictions on gift-giving if two people who are friends also happen to be Federal employees

The source for all things gift-related is 5 CFR Part 2635, and Subpart C specifically relates to Gifts Between Employees. The main area of concern involves gift-giving when there’s a supervisor-subordinate relationship, and/or a discrepancy in pay. According to § 2635.302, an employee may not — directly or indirectly — accept a gift from an employee receiving less pay than himself unless:

  • The two employees are not in a subordinate-official superior relationship; and
  • There is a personal relationship between the two employees that would justify the gift.

Unless the friends work for the same agency, and one was the superior of the other, there is probably not an ethical concern about gift-giving if there are no ulterior motives.

If the two of you work for the same agency and there’s a superior-subordinate relationship, you’ll probably want to check with your agency’s Ethics office or Office of General Counsel if you have any concerns. Info@FELTG.com

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

Ask FELTG: How Much Information Do You Need in the Proposal Letter?

October 23, 2023

The following question came into Ask FELTG:

Must the proposal letter in a proposed disciplinary action contain everything the agency has relied upon in making the proposal?

And here’s the answer:

The letter itself does not have to contain the agency’s entire case against the employee. At a minimum, the proposal must include the charge(s), the proposed penalty with aggravating factors identified, and the employee’s rights at this stage in the process, which under 5 CFR 752.203 and 752.404 includes the right to review the material relied upon.

An NP MSPB case from this past summer addressed this very question. The appellant challenged that the agency did not include in the notice all the material relied upon. The MSPB, however, noted that the proposal notice “informed the appellant of her right to review the material relied upon to support the reasons for the proposal notice.” Duffey v. USPS, DA-0752-16-0105-I-1, ¶5 (Jun. 20, 2023).

The MSPB explained that a proposal notice does not have to be a “self-contained document.” An agency can meet the notice requirement “when attachments to the proposal, together with the proposal itself, provide the employee with specific notice of the charges against her so that she can make an informed and meaningful reply.” Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004).” Id.

We recommend keeping the proposal letter short and to the point, but including all material relied upon in the proposal packet to save your agency time and resources, and a lot of potential back and forth. In addition, as Bill Wiley and I explain in the 5th Edition of the textbook (and the training class) UnCivil Servant, “doing so proactively avoids any claims that the employee was somehow denied the documents relied upon.”

Have a question? Ask FELTG.

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

Ask FELTG: Our Agency Has a Table of Penalties, Must We Follow It?

October 10, 2023

Not all agencies have tables of penalties; approximately half do. For those not familiar with the concept, a table of penalties contains a list of misconduct charges, and a range of potential discipline for a first, second, and third offense. (See example of a penalty table below.)

It’s not mandatory that an agency use its penalty table; it merely serves as a guide. There may be a good reason for an agency to go outside the range of discipline suggested, which is absolutely permitted. See, e.g., Farrell v. Interior, 314 F.3d 584 (Fed. Cir. 2002).

In fact, the deciding official (DO) in a recent, memorable nonprecedential decision from the MSPB did just that. An IRS employee called in to the Howard Stern radio show while he was at work, was placed on hold, began working, and was taken off hold while he was on the phone with a taxpayer. He unknowingly revealed that taxpayer’s personally identifiable information (PII) to the Howard Stern audience live.

Publicly revealing the taxpayer’s PII was the appellant’s first offense of misconduct. However, the severity of the harm and the bad publicity, among other Douglas factors, caused the agency to impose a severe penalty — removal.

The appellant challenged his removal as too harsh. He referred to the penalty table, which set a range of “written reprimand to a 14-day suspension” for the careless, reckless, or negligent disclosure of PII. The Board found that, “in light of the egregiousness of the appellant’s misconduct, the deciding official did not abuse her discretion in deciding to exceed the table of penalties and remove the appellant.” Forsyth v. Treasury, NY-0752-16-0246-I-1 (Mar. 15, 2023)(NP).

For more on outside-the-box MSPB practice, join us for the brand-new Advanced MSPB Law: Navigating Complex Issues Oct. 31 – Nov. 2. Hopkins@FELTG.com

Have a question? Ask FELTG.

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

Ask FELTG: MSPB Only Has 2 Members; What Happens if They Don’t Agree on the Outcome?

September 26, 2023

As the FELTG newsletter reader pointed out, the Merit Systems Protection Board (MSPB) is currently down a member. So what happens if the two remaining members can’t agree on the outcome of a Petition for Review (PFR)?

It’s a great question.

And here’s our answer.

If this happens, and the Board issues what is known as a split decision, the administrative judge’s (AJ) decision becomes the Board’s final, nonprecedential decision. It’s fairly rare to see a split decision, but two were issued during the first week of September. Let’s take a look at one.

The facts of the case are described in the initial decision, Wilber v. DOD, DC-0432-22-0097-I-1 (Mar. 18, 2022). The agency put the appellant, a GS-13 Accountant, on a 30-day PIP after informing him he was performing at an unacceptable level on two critical elements in his performance plan. Because of the appellant’s absences during the PIP, the agency extended the PIP another six days. According to the initial decision, the agency “established that the appellant’s performance was unacceptable prior to and during his placement on a PIP by the substantial evidence standard.” Id. at 40.

Still, the AJ found the agency did NOT provide the appellant with a reasonable opportunity to demonstrate acceptable performance. Several months prior to the PIP, during a performance feedback meeting with his supervisor, the appellant told the supervisor he had a learning disability that contributed to his performance issues. The supervisor “reached out to HR to meet any requirements to address the appellant’s learning disability.” Sounds good so far, right?

The initial decision goes into a lengthy discussion about the appellant’s raising of other medical issues and the supervisor’s reactions, including that he “was still waiting for the appellant’s RA paperwork.” Id. at 44. Uh-oh.

According to the AJ:

[I]t does not appear that a reasonable person, considering the record as a whole, might accept that 17 work-day PIP period, and particularly one that the employee lacked the RA tools he need to perform his duties, is a sufficient amount of time to expect the appellant to correct the above deficiencies, or for the agency to make a determination that he would not.

The agency in this case has not cited to any case law in which the Board or the courts have previously held that a 17 work-day PIP period (particularly where the employee is without the tools he needed to perform his duties pursuant to a RA request), on its face, would ever be a sufficient amount of time to afford an employee the required “reasonable opportunity to improve,” and my extensive research on this issue has produced none.

Id. at 49.

Longtime FELTG students may recall class discussions of a Board case where a 17-day PIP period was found to be acceptable: Bare v. DHHS, 30 MSPR 684 (1986). Whether this did not come up in the AJ’s research, or the facts in Bare were different enough to distinguish the case, we may never know.

Because the Board members disagreed on the outcome in Wilber (with no discussion in the case about why), the AJ’s decision stands and the employee remains reinstated. Wilber v. DOD, DC-0432-22-0097-I-1 (Sept. 7, 2023)(NP).

If you’re interested in reading the (very strong) opinions of the Board members on another recent split decision involving a misconduct-based removal, check out Brinson v. Navy, DC-0752-14-1129-B-1 (Sept. 8, 2023).

We’ll be discussing these tricky topics and much more during the upcoming brand-new class Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2.

Have a question? Ask FELTG.

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

Ask FELTG: Is There Case Law That Warns Against Alternative Discipline?

September 1, 2023

Much like the Merit Systems Protection Board, we at FELTG are longtime proponents of alternative discipline. And why not? In many cases, alternative sanctions are the more effective approach when addressing misconduct.

Not too long ago, we received the following question:

For alternative discipline agreements, and even last chance agreements, are there a couple good cases that pop into mind for me to look at, that would warn AGAINST doing these BEFORE a proposal is issued? 

FELTG’s answer:

There are no cases that warn against entering into an alternative discipline agreement prior to the issuance of a proposal. The manager says to the employee, “Bob, I could propose that you be removed for that, but if you’ll voluntarily accept a 14-day suspension without appealing, that will end this thing.” Write it up, sign it, and it’s settled. There is no case law on something like this because it could not get to MSPB in any normal fashion.

Perhaps a creative union attorney could argue that in a subsequent removal for new misconduct the agency should not be allowed to rely on the alternative discipline suspension as an aggravating Douglas factor because it was coerced, but we haven’t seen that — and there are plenty of cases showing that a voluntary settlement is not coercion. In addition, the Board would most likely not want to get involved in reviewing the prior action.

Last Chance Agreements (LCAs), on the other hand, are critically different. That’s because if an LCA is done properly, the employee acknowledges that the prior proposal warrants removal, but is agreeing to refrain from future misconduct for some period of time in exchange for the agency holding the removal decision in abeyance. Then, if the employee engages in a new act of misconduct, the original proposal is implemented, not a removal-decision based on the new misconduct. You have to have a proposal in place to make use of a last chance agreement. Any case law you find that discusses “abeyance agreements” should give you authority if you need it.

Looking for more guidance on this topic, register for Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives on Nov. 14. Can’t wait, or you’re looking for more general disciplinary or MSPB content? MSPB Law Week returns Sept. 11-15.

Have a question? Ask FELTG.

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