Reprimand in Lieu of Suspension: An Underutilized (But Valuable) Discipline Alternative

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By Deborah J. Hopkins, September 4, 2025

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During FELTG classes, certain topics come up again and again. One of the most asked-about topics in 2025 is how to draft the discipline alternative known as the Reprimand in Lieu of a Suspension (RLS).

If you’ve attended any of our classes on discipline, you know that we really don’t like suspensions. They usually hurt the agency more than they hurt the misbehaving employee. On suspension days, the agency has to forgo the services of the suspended employee. Coworkers have to pick up the slack, which can hurt morale. Supervisors sometimes have to pay another employee overtime to cover for the suspended employee. Or, the work just doesn’t get done.

So, with all the downsides, why do we ever suspend – especially if there’s an alternative that doesn’t really have any downsides? And that’s where the RLS comes into consideration.

While progressive discipline is not mandatory in every case of employee misconduct, the MSPB still gives significant weight to progressive discipline when evaluating an agency’s Douglas Factors analysis.

There are generally three steps to traditional progressive discipline:

  • First offense: Reprimand
  • Second offense: Suspension
  • Third offense: Removal

The variation that we generally recommend is to replace the second offense suspension with an RLS. Here’s how that would work:

  • First offense: Reprimand, as usual
  • Second offense:

a. Propose a short suspension.

b. At the bottom of the proposal letter, offer the employee the option to voluntarily accept a Reprimand in Lieu of a Suspension (see template below).

c. If the employee accepts, you have avoided the workplace harm caused by a suspension, with the bonus that you will not have to deal with a grievance or EEO complaint.

  • Third offense – Remove as usual, based on the two prior acts of discipline.

The Merit Systems Protection Board (MSPB) has recognized the RLS alternative (under varying names) as equivalent to a suspension for decades, as long as the employee agrees to it, or the option is written into a union contract. (There’s no case law on how the MSPB would handle a unilaterally-imposed RLS.) If you’re not using this tool, you’re missing out on an employee-friendly, management-supporting approach to discipline that can really make your work life so much easier.

If the employee elects not to sign the RLS, the Deciding Official simply makes a decision on the proposal and employee’s response, as required through standard discipline procedures.

Here’s a template; the italicized section at the bottom serves as the optional RLS.

Reprimand in Lieu of Suspension Agreement Format

[Agency Letterhead]

From: Sam Supervisor, Head, Administrative Division, Logistics Department

To: Eduardo Employee, Project Clerk, GS-303-9

Subj: Proposed Two-Day Suspension

Date: April 15, 20XX

By this letter I am proposing that you be suspended without pay for two days for the following misconduct:

  • On March 7, 20XX, I informed you that the lunch break period for our office is from noon to 12:30. Yesterday, I observed you leaving your desk to go to lunch at 11:50 AM and not returning until 1:45 PM.

In selecting this penalty, I note that I reprimanded you for similar misconduct on March 14, 20XX.

You have the right to respond to this proposal in writing and in person with Branch Chief Marlene Manager. If you choose to exercise this right, you may meet with Branch Chief Manager at 10:00 AM on April 17, 20XX in the main conference room, Building 123. For information as to this and other rights you might have, you may consult with Hank Richards in Human Resources, (202) 123-4567.

 

____________________________

[Supervisor’s signature]

______________________________________________________________________

By my signature below, I accept responsibility for this act of misconduct, acknowledge that discipline is warranted, and accept a Reprimand in Lieu of a Suspension as an alternative form of discipline. I understand that the agency will consider this Reprimand in Lieu of a Suspension equivalent to the proposed suspension for the purpose of progressive discipline should I engage in future misconduct. Finally, I hereby waive my rights to challenge this action in any manner or forum.

 

 

_____________________­­­­­­­__________________________________

Eduardo Employee                                                       Date

______________________________________________________________________

And there you have it. Trust us, it’s worth the offer. hopkins@feltg.com

Related training:

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.

Is a Compressed Schedule – to Permit Attendance at Mosque Prayer Services – an Undue Hardship?

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By Deborah J. Hopkins, August 27, 2025

In recent weeks the Trump administration has put an emphasis on Federal employee rights to express religious beliefs in the workplace, and has also highlighted the requirement that agencies reasonably accommodate the sincerely held religious beliefs and practices of employees unless doing so would cause the agency an undue hardship. 42 U.S.C. § 2000e(j). And while a recent OPM memo only gives examples specifically related to Christianity and Judaism, the law identifies religion much more broadly and in addition to major world religions includes less-common belief systems as well. EEOC Compliance Manual, Section 12-I, A-1.

A recent EEO decision considered a Muslim employee’s claim that her agency unlawfully failed to accommodate her based on religion. Augustine B. v. VA, EEOC Appeal No. 2023004016 (Aug. 4, 2025). The complainant, a VA physician, requested that her schedule be adjusted to allow her to attend Friday afternoon prayer services at her mosque, and she offered to work longer days Monday through Thursday plus Friday mornings to ensure she completed 40 hours of work per week.

The agency ultimately granted her request for Friday afternoons off, but rather than agree to her proposed compressed schedule it provided two alternative options: the complainant “had to either start working six days a week or transfer to a part time position with significantly fewer hours.” Id. at 1. The complaint accepted the part time schedule, although “begrudgingly.” Id.

The Commission considered the reasonableness of the complainant’s request and compared it to the agency’s offered alternatives:

  • Regarding the six-day work schedule option, it found “no justification … to rationalize depriving Complainant of the customary benefit of two full days off. Nor does the Agency explain why it even made sense to go through the trouble of having Complainant work on Saturday rather than just letting her put in a [sic] extra hours on weekdays.” at 5.
  • On the part-time schedule option, it held that this offer was not reasonably comparable to the full-time job the complainant was originally hired for, as it resulted in a 40% reduction in hours and pay. at 5-6.

While the agency argued that providing the requested accommodation would be an undue hardship, the EEOC disagreed, finding that the requested accommodation “squarely eliminates the scheduling conflict with Complainant’s prayer service without unduly encumbering her working conditions or her religious practice.” Id. at 6. The EEOC also did not agree with the agency’s speculation that providing a compressed schedule would compromise patient care and burden other physicians. As (the new case writer at) OFO put it:

We are not persuaded that mere disgruntlement in the ranks over Complainant’s accommodation suffices to establish an undue hardship. To hold otherwise would mean that an employee’s entitlement to religious accommodation would often hinge on the magnanimity of her coworkers. An employee with the misfortune of having stingy colleagues would almost never receive accommodation.

Id. at 8.

The Commission held that a partially compressed work schedule would have been reasonable and would not have imposed an undue hardship, so the agency was liable for failure to accommodate. Id. hopkins@feltg.com

Related training:

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.

Forcible Kissing, Comments About Lingerie, and References to Porn: What NOT to Do if You’re a Rear Admiral with an Attractive Colleague

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By Deborah J. Hopkins, August 12, 2025

Imagine you’re a female civilian Public Affairs Specialist. Your job involves building and managing relationships betweenheadshot of Deb your agency and its stakeholders – including the media and members of the public – and you enjoy sharing all the positive work your agency is doing.

Now imagine the highest-ranking official in your workplace, a male Rear Admiral, does the following to you at work:

  • In January, he asks you to do him a favor by speaking to your husband about something – and he suggests you wear sexy lingerie to persuade your husband.
  • On several dates in August, he gives you a “high five,” but instead of flat-palm contact he interlaces his fingers with yours.
  • In October, while he’s telling a story, he demonstrates an event from the story by physically turning you around and placing his back against your back.
  • In October or November, while you’re standing by your desk, he approaches you and asks if a picture of you on your computer is a profile picture or a “porn” picture.
  • In November, he asks you what is wrong with your hair, commenting that “it looked like you had a little morning action.” When you reply neutrally that you had been wearing a hat, he once again alludes to your sex life.
  • In early December, he grabs your face and kisses you on the mouth.

Unfortunately this is no hypothetical – this happened to one of your Federal colleagues in her workplace, and she filed an EEO complaint alleging a hostile work environment based on sex. Susan M. v. Navy, EEOC Appeal No. 2022001003 (Jun. 12, 2023).

The agency’s own investigation substantiated the allegations and found that the Rear Admiral engaged in inappropriate sexual conduct toward the complainant, and violated the agency’s sexual harassment policies. Id. at 2. In fact, the incidents were serious enough to warrant an IG investigation and the removal of Rear Admiral as Commander. Id.

On appeal to EEOC, the Agency argued that because it took prompt and effective corrective action when it removed the Rear Admiral, there was no basis for imputing liability. But because the Rear Admiral was the highest-ranking official at the facility, the Commission found the “alter ego” theory of liability was appropriate. The alter ego theory applies in a harassment case where the harasser is of sufficiently high rank to be treated as the Agency’s proxy, resulting in his conduct being directly imputed to the Agency – regardless of the agency’s anti-harassment efforts. See Sebek v. Department of Justice, EEOC Appeal No. 07A00005 (March 8, 2001). Id. at 3.

The fact that the complainant reported the harassment within days of the December kissing event contradicted an additional agency argument that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities.

The Commission concluded the agency was liable for the Rear Admiral’s harassing conduct, and that it was sufficient to create a hostile and offensive work environment. hopkins@feltg.com

Related training:

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.

The Legal Boundaries of Faith at Work: When Does Prayer Become an Undue Hardship?

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By Deborah J. Hopkins, July 23, 2025

A few days ago OPM issued a new memo, Reasonable Accommodations for Religious Purposes (July 16, 2025), which highlighted law that’s been in place for decades but bears repeating:

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of an individual’s religion … The statute requires employers to reasonably accommodate an employee’s religious observances, practices, and beliefs unless doing so would cause an undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e-2; 42 U.S.C. § 2000e(j); see also 29 C.F.R. § 1605.1.

A reasonable accommodation for religion is an adjustment to the work environment (including things like work schedule, work location, or dress code) that will permit the employee to comply with his sincerely held religious beliefs or practices. See Ian S. v. Treasury, EEOC Appeal No. 0120160622 (Apr. 27, 2018); Complainant v. DOJ, EEOC Appeal No. 0120132112 (Apr. 17, 2015).

OPM’s new memo discusses types of accommodations agencies may need to provide, including telework, remote work and flexible work schedules – and it explicitly identifies the requirement to accommodate employees whose religious beliefs require them to participate in prayer.

I have to wonder if the folks who drafted the memo had recently been reading Vernie M. v. USPS, EEOC Appeal No. 2020004103 (2022). This case dealt with an employee who requested religious accommodation in the form of an empty room where she could conduct her prayers. Her supervisor denied her request because the agency had a policy that “religion and politics were not allowed to be discussed on the workroom floor.” Id. at 4.

While this case involved a number of other claims, on the religious failure to accommodate claim EEOC held that the complainant stated a prima facie case because she “has a bona fide religious belief, Christianity; the Agency was aware of her belief and desire to utilize an empty room for prayer; and the Agency enforced its requirement that employees not discuss religion in the workplace.” Id. at 6. Stating a prima facie case, however, doesn’t mean there will be a finding of discrimination; the burden then shifts to the agency to show that it either provided the accommodation, or that providing accommodation would cause an undue hardship.

EEOC continued:

We understand the Agency’s desire to keep the workplace free from conflicts that may arise out of sensitive topics such as religion and politics; however, the Agency presented no argument that Complainant’s use of the empty room for prayer posed an undue hardship. Likewise, the Agency provided no alternative accommodation nor discussed the matter with Complainant in order to determine if an alternative accommodation was available. Therefore, we find that the Agency violated Title VII when Complainant’s request for a religious accommodation was denied.

Id.

We’ve seen many cases, new and old, where the assertion of a policy that conflicted with a religious practice was NOT enough to prove undue hardship. With the renewed focus on religious accommodation in the workplace, now is a critical time to review the law. hopkins@feltg.com

Related training:

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.

What Everyone’s Asking: A Q&A on Conflict, Accountability, and Morale

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June 2, 2025

It’s been quite a year so far, with more change than many of us have experienced in the entirety of our lifetimes. Some people handle change well; for others, it’s quite the challenge.

Amid all the change, FELTG caught up with instructor Ann Modlin (pictured at right) as she was preparing for her June 12 class Management Essentials for 2025: Address Conflict, Increase Accountability & Build Morale. Ann’s two-plus decades of experience as a government attorney – and, for many years, a supervisor – combined with her insight into current Federal workforce challenges, create the perfect confluence for a training that combines current events, the law, and practical skills to help make the workplace more efficient, and yes, enjoyable.

Read on for our questions and her answers.

FELTG: Why is now a good time for supervisors and advisors to think about the relationship among conflict, accountability and morale?

AM: Because it’s always a good time to analyze the workplace aspects of conflict, accountability, and morale. The three concepts play on each other every day, and too often supervisors and advisors do not take the time to really assess that interplay. Understanding that conflict is not inherently bad, but instead taking the steps to understand it, helps with building accountability and morale. And that makes the workplace better for everyone.

FELTG: What potential conflicts should employers be aware of as more employees are now reporting to work onsite?

AM: Conflict is typically a function of personality. When people interact more on a daily basis, as will occur with the shift to working onsite, those personality differences are more obvious and have a greater chance of resulting in conflict. Early intervention and establishing boundaries will go a long way.

FELTG:  Do you have any suggestions about the best way for a supervisor to handle a conflict between coworkers?

AM: The key to handling conflict between coworkers is to understand fundamental personality differences. Seventy-five percent of people have different core personality types than our own, but most people do not contemplate how that impacts on interpersonal relationships. A knowledgeable supervisor can help employees appreciate their differences, which can be a helpful step to mitigate the conflict.

Join us on June 12 for much more information on these important topics, or bring this class specifically to your agency. It’s too important to miss. info@feltg.com

Related training:

Is Taking a Nap Every Two Hours a Reasonable Accommodation for Narcolepsy?

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By Deborah J. Hopkins, May 15, 2025

 

Key facts:

  • The complainant had two reasonable accommodations for his narcolepsy – periodic naps, and flexibility to travel to obtain medication refills.
  • The agency terminated the complainant after he requested – and the agency granted – a modification to his medication refill travel schedule.
  • The EEOC found the agency retaliated against the complainant because of his accommodation requests, and created a hostile work environment when it transferred him to a new position and then terminated his employment.

This case involves a contractor who had worked with the State Department for 30 years, and who for the past 10 years had worked in Iraq as a Systems Administrator. In October 2020 he claimed the agency discriminated against him on the bases of disability (Type I Narcolepsy, Colon Cancer) and in reprisal for prior protected EEO activity when:

  1. On July 20, 2020, he was terminated from his position as a contractor for the agency; and
  2. Since the fall of 2018, he was subjected to a hostile work environment characterized by, but not limited to, heightened scrutiny and disapproval of his reasonable accommodation.

Wes L. v. State, EEOC App. No. 2021005122, 2 (May 15, 2023).

The case primarily focuses on the reasonable accommodation requests related to the complainant’s narcolepsy, “which flares up when he misses his medication. If he misses his medication, he experiences hallucinations, nausea, double vision, and daytime sleepiness. … Because he experiences daytime drowsiness and sudden attacks of sleep, his narcolepsy reportedly impacts his sleep, ability to work, and his ability to eat.” Id.

Agency-approved accommodations for the complainant’s narcolepsy included a 15-minute nap every two hours while he was on duty, and the flexibility to return to the United States periodically to obtain medication that was not available to him in Iraq.

On a 2020 trip to the United States he requested to return to Iraq on a flight a few weeks later than originally scheduled, so that he could obtain enough medication to last him an additional three months in Iraq. The agency granted the request, but then terminated him just days later, claiming that the last-minute change of plans for his return flight left the agency unable to replace the complainant with another contractor, which caused a customer service hardship.

While the Commission found this was a legitimate, nondiscriminatory articulation of the agency’s reasoning, it also found the agency’s claim was pretextual and the facts did not support the agency’s assertion about the timing of the complainant’s request to change his flight. Therefore the agency “retaliated against Complainant in violation of the Rehabilitation Act when it asked that Complainant be removed from his post with the Agency following his request for reasonable accommodation.” Id. at 7.

The case also addressed the complainant’s claims of hostile work environment harassment and found that the complainant’s job transfer (motivated by his supervisor’s disapproval of his need for naps) and his termination amounted to tangible employment actions taken because of the reasonable accommodation requests. hopkins@feltg.com

Related training:

When Calling Your Supervisor a “F*cking Motherf*cker” is NOT a Removable Offense

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By Deborah J. Hopkins, April 29, 2025

Key facts:

  • The appellant experienced a stress-induced heart attack at work.
  • He was removed for inappropriate conduct after yelling and cursing at his supervisor including multiple uses of the f-word, when his supervisor did not immediately sign a workers compensation form related to the heart attack.
  • The AJ mitigated the removal to a 30-day suspension, finding the deciding official did not appropriately consider  mitigating factors, and the Board agreed.

Over coffee the other morning, I finally caught up on my case reading: about 100 MSPB nonprecedential cases that have been issued in the last several weeks.

One that caught my attention was Rike v. Navy, PH-0752-23-0075-I-1 (Mar. 31, 2025)(NP), where the agency removed the appellant, GS-12 Supply Management Specialist, for inappropriate behavior. The appellant had “yelled and cursed at [his supervisor], called him a “f*cking liar” and a “[f]*cking [m]other [f]*cker,” and “demanded that [the supervisor] sign” a workers compensation document about the appellant’s recent workplace-related health episode – a heart attack caused by stress. Id. at 3. The appellant had been disciplined twice prior to this incident.

Under Board precedent, agencies can usually justify removal for a third offense of just about any misconduct based on multiple instances of prior discipline. And here, the appellant’s disciplinary record included a letter of reprimand for unauthorized absence, lack of candor, and failure to follow instructions, and a 14 -day suspension for failure to comply with timekeeping procedures. Id. at 7.

The administrative judge (AJ) mitigated the removal to a 30-day suspension and the Board agreed, finding the agency’s Douglas factors analysis was flawed because the deciding official (DO) did not give proper consideration to several mitigating factors.

The case points out, “In concurring with the proposing official’s analysis, the deciding official assigned more weight to the appellant’s prior unrelated discipline.” Id.

The Board continued:

Although the Board generally will not discount a prior disciplinary record because it is for an unrelated offense, if the nature of the prior misconduct is sufficiently different from the charges in the proposal at issue, the difference may significantly diminish the weight of that prior discipline in determining a proper penalty. See Skates v. Department of the Army, 69 M.S.P.R. 366, 369 (1996); Lewis v. Department of the Air Force, 51 M.S.P.R. 475, 484 (1991). As such, we are unconvinced that the appellant’s attendance-related discipline, which is sufficiently different from the charged inappropriate behavior, outweighs his 10 years of service, which was free from the discipline at issue here.

Id.

The Board also addressed other mitigating factors and found the DO did not give them appropriate consideration:

  • The appellant’s stress levels which caused his on-duty heart attack;
  • The appellant’s allegations of bullying and harassment from his immediate supervisor and other management officials, which included a pending EEO complaint against his supervisor;
  • The appellant’s satisfactory performance evaluations;
  • The agency’s identified comparator employees had engaged in multiple instances of disrespectful conduct while the appellant engaged in a single instance;
  • The appellant’s supervisor was also yelling and shouting during the altercation; and
  • Instances of shouting and using inappropriate language were common in the shipyard.

Despite the Board’s statement that they acknowledged “the seriousness of the charge against the appellant and do not minimize its gravity,” id. at 9, they agreed with the AJ that a 30-day suspension was the maximum reasonable penalty. All the more reason for the PO to do a full Douglas analysis, and the DO to give a full explanation of all the Douglas factors – aggravating and mitigating – at hearing. hopkins@feltg.com

Related training:

Lynching Jokes and Slave Roles: Racial Harassment on the Job

By Deborah J. Hopkins, April 22, 2025

Key facts:

  • Forcing an African American employee to role play as a slave during a Juneteenth celebration was unwelcome conduct based on race and color.
  • Comments about lynching and other stereotypes also contributed to a hostile work environment.
  • When a supervisor or manager engages in repeated harassment of a subordinate, the agency is usually liable.

Sometimes I read a case and it involves such blatant misconduct that I can’t believe an agency would litigate rather than settle. Such a case is Anne C. v. VA, EEOC App. No. 2022003036  (Jan. 31, 2023).

The complainant, a GS-11 Social Worker in the agency’s Homeless Program in Kansas City, Missouri, alleged she was subjected to a hostile work environment based on race (African American/Mixed), color (Dark), religion (Christian), and disability (Multiple Sclerosis), when:

  1. Since 2013, the complainant was assigned an unfair number of cases that included cases based solely on race or religion;
  2. In 2018, the complainant’s first-line supervisor referred to the complainant as “girl”;
  3. In August 2020, the complainant was not selected for the position of a GS-11 Social Worker;
  4. On various dates, multiple coworkers subjected the complainant to racial slurs, disparaging remarks, and a comment about a past “lynching”;
  5. In June 2020, the complainant was forced to participate in an event where racial slurs and stereotypes were made, and she was required to roleplay a “slave”;
  6. On August 6, 2020, the complainant was notified by her second-line supervisor that the Program Manager made disparaging remarks about the complainant’s physical appearance and lisp; and
  7. On various dates, the complainant was denied training opportunities.

Id. at 2.

The agency accepted claims 1, 3, and 7 as independent claims, and also accepted the complainant’s discriminatory harassment claim for investigation. The Final Agency Decision (FAD) determined there was no discrimination or harassment, so the complainant appealed to the EEOC.

The Commission found the agency “proffered legitimate, nondiscriminatory reasons for claims 1, 3, and 7,” id. at 3, but also contradicted a number of the agency’s findings on the race and color harassment claims. In fact, the Commission held, the “Complainant’s workplace was permeated with discriminatory ridicule, insult and microaggressions by multiple Agency employees that, in cumulative effect, were sufficiently severe or pervasive to create a hostile work environment for Complainant that altered the conditions of her employment.” Id. at 7.

According to the Commission, the following incidents were the cause of a hostile work environment based on race and color:

  • A supervisor repeatedly referred to the complainant as “girl,”
  • The complainant was subjected to comments about lynching and ropes,
  • The complainant was subjected to racially insensitive epithets at a work meeting,
  • The complainant was forced to act as a slave in a Juneteenth program, and
  • The complainant was subjected to comments based on racial stereotypes related to the Juneteenth celebration.

The Commission found the agency liable and ordered corrective action. Additionally, in a footnote the EEOC specifically noted improper actions by the agency’s EEO Manager in communications with the investigator. Id. at 6. We can’t stress this enough – the integrity of the EEO process from start to finish is paramount. hopkins@feltg.com

Related training:

Off-duty Conduct: Violation of a Protective Order, Conduct Unbecoming, and Nexus

By Deborah J. Hopkins, March 26, 2025

Quick facts:

  • Nexus is a requirement in misconduct cases appealed to the MSPB.
  • Off-duty conduct may have a nexus to the workplace, especially when a law enforcement officer engages in potentially criminal offenses.
  • An agency’s trust and confidence in the appellant’s ability to carry out the mission is a crucial consideration in nexus.

Nexus is a topic we’ve written about in this space before. A recent Federal Circuit case involving off-duty conduct by a Department of Education Criminal Investigator highlighted that the agency’s trust and confidence in the employee, as well as negative publicity about the employee’s conduct, remain two of the key ways in which nexus can be proven.

The agency removed the appellant after police got involved following a physical altercation (the case referred to “physical grappling”) at home with his wife and his 16-year-old stepdaughter. Gonzalez v. Dep’t of Education, No.2023-2001 (Fed. Cir. Mar. 14, 2025)(NP). Criminal charges were filed but because the Los Angeles Sheriff’s Department (LASD) had trouble securing witness interviews, the prosecution dropped the case.

The agency’s Quality and Integrity Group (QIC) conducted an administrative investigation into the appellant’s conduct and found that:

… [The appellant] had assaulted his stepdaughter, drove away from the scene under the influence of alcohol leaving minor children unattended, violated the court-imposed protective order by regularly communicating with his wife, and interfered with LASD’s and QIG’s investigations. The Report opined that Mr. Gonzalez’s transgressions do not comport with the standards for character set by the Council of the Inspectors General (“CIG”), which require investigators to possess and maintain the highest standards of conduct and ethics. The Report particularly noted that Mr. Gonzalez’s failure to comply with the court-imposed protective order was a failure to comply with legal requirements, which is also a requirement of the CIG standards.

Id. at 7.

As a result, the appellant was removed based on three charges:

  1. Conduct Unbecoming a Federal Law Enforcement Officer, with five specifications;
  2. Lack of Candor, with three specifications; and
  3. Failure to follow instructions, with one specification.

Id. at 7-8. (I encourage you to read the case for the specific details, of which there are many.)

One of the primary issues in the appeal process was nexus: whether the agency showed by preponderant evidence that the appellant’s conduct impacted the efficiency of the service. The court relied on the deciding official’s unambiguous statement in her penalty analysis:

There is a nexus between the charged misconduct and your position as a Federal law enforcement officer. . . . You are expected to conduct yourself while on-duty and offduty in a manner that does not bring disrepute to yourself or to the agency. . . . You hold a position of public trust; the public expects that you will be trustworthy and act with integrity at all times. At the very least, the public expects that a person sworn to enforce the laws of the United States will also follow the law. . . . Your unbecoming conduct . . . violate[s] one or more of the expectations of Federal law enforcement officers described above. . . . Your failure to comply with a local judge’s protective order for its entire duration violates the expectation that a person sworn to enforce the laws will also follow the law at all times. Your behavior calls into question your ability and willingness to follow lawful orders and legal requirements related to your assigned investigations. . . . “I do not believe that management in OIG can confidently assign casework to you knowing that you engaged in unbecoming conduct, including violating a protective order.”

Id. at 23-24.

The court upheld the MSPB’s decision to remove, relying on the agency’s excellent explanation of nexus and its implication in a number of Douglas factors. hopkins@feltg.com

Related training:

And Now a Word With … EEOC AJ Michael Rhoades

March 18, 2025

I enjoy commuting to work during an ice storm. I really need to spend more time on social media. If only there were more streaming services to which I could subscribe. I miss when car phones were 80 pounds.

These are some phrases you’re not likely to hear – ever. Oh, and here’s another one: Mixed cases are so easy to navigate.

We caught up with EEOC Administrative Judge Michael Rhoades – of the Chicago district – about this critical topic.

FELTG: Why do so many people struggle with mixed cases?

MR: Mixed cases can be very difficult to handle for a variety of reasons. As a threshold matter, as noted by the United States Supreme Court, the statutory framework surrounding mixed case processing is not the clearest. During oral argument in Perry v. Merit Systems Protection Board Justice Alito commented, “nobody who is not a lawyer, and no ordinary lawyer could read these statutes and figure out what they are supposed to do” and joked whoever drafted the statutory framework for these processes was, “somebody who takes pleasure out of pulling the wings off flies.” Also complicating the matter is that agency employees working in EEO offices and legal advisors assisting in the accept/dismiss process may not have been exposed to these issues. Some agencies have the additional muddying factor of certain categories of employees having MSPB appeal rights while others do not. Past changes in how the EEOC and MSPB handle mixed case processing, such as the processing of “inextricably intertwined” matters, can also create further uncertainty with an already confusing issue.

FELTG: What’s the most important thing for EEO staff to know about mixed cases when they first receive a complaint?

MR: It is very important for EEO staff to have clear understanding of what type of issues are appealable to the MSPB and which employees have MSPB appeal rights. For the Board to have jurisdiction over an appeal it must have jurisdiction over both the action and the employee filing the appeal. While the EEOC has jurisdiction over all sorts of actions, learning the specific, limited types of “adverse actions” the MSPB has jurisdiction over will catch most mixed case complaints. If EEO staff keep an eye out for these at the time of acceptance and properly identify these issues, much of the confusion and delay can be avoided. EEO staff should also remember that where a matter is proposed and later implemented, the proposal “merges” with the decision and should not remain as a separate unmixed issue. EEO staff should also have knowledge of constructive adverse actions and how these matters should be handled.

FELTG: What is the most common mistake and/or misconception in terms of choice of venue?

MR: The most common misconception is that employees get to choose whether to have their appeal heard before the MSPB or the EEOC. When I question whether the EEOC has jurisdiction over something because it appears to be a mixed case issue, it is not uncommon for employees (and even attorneys) to state they, “elected to pursue the matter before the EEOC.” If the Board has jurisdiction over the matter and the employee has Board appeal rights, with limited exceptions, the matter cannot proceed to an EEOC administrative hearing. An employee may elect to file a mixed case appeal directly with the MSPB or a mixed case complaint with the EEO office. If they file a mixed case complaint, however, this election only determines whether the matter is investigated pursuant to 29 CFR 1614 prior to receiving a final agency decision with appeal rights to the MSPB.

FELTG: Where do mistakes in the process most often happen?

MR: The most common mistake is not identifying mixed case issues at the time of acceptance which results in these issues being treated as unmixed issues. Instead, EEO offices need to clearly identify these at the time of acceptance because complainants have different rights for mixed case issues. The acceptance letter needs to accurately reflect and articulate their options. Another common slipup occurs when a complainant initiates EEO contact for precursor unmixed issues that they believe are discriminatory and are later subject to an adverse action which may be appealed to the MSPB. The amendment may be made, but oftentimes no one realizes that these new issues are subject to mixed complaint processing. The acceptance/amendment letter needs to clearly identify the mixed issues that will receive a Final Agency Decision (FAD) appealable to the MSPB and which issues can be heard before the EEOC.

A similar frequent error happens when mixed issues are identified at the time of acceptance, however, when the investigation is complete the EEO office mistakenly informs the employee that they have a right to an EEOC hearing on all issues. Instead, a FAD should be issued on mixed issues and only unmixed issues are heard by the EEOC.

FELTG: What are some of the impacts of improper mixed case processing? 

MR: Mistakes can lead to extremely lengthy delays and can also deprive employees of correct due process rights. The MSPB considers the procedural and substantive merits of a limited number of disciplinary actions, while the EEOC considers a broader range of issues but asks only if the action is discriminatory or retaliatory. As a result, it is imperative that these issues are identified early and properly routed to ensure employees are afforded the proper scope of review. info@feltg.com

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