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:

Federal Employment Law Terms of Art: The Right Definitions

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By Deborah J. Hopkins, March 4, 2025

A lot has been happening in the Federal workplace, especially related to employees being placed on admin leave, thousands of probationary terminations, and the beginnings of reductions in force. So FELTG has put together a mini-glossary of terms that we think you’ll find useful.

Administrative/admin leave: leave status imposed by an agency, where employees are sent home but retain full pay and benefits while not being assigned any work. Limited to 10 days per year for investigative purposes; other purposes (not defined in the regulation) do not have a cap. See 5 USC 6329a(b); 5 CFR §§ 630.1402-1404.

Investigative leave: a leave status imposed by an agency when an employee is the subject of an investigation and retaining the employee in the workplace during an investigation would be disruptive. Limited to 90 days per year. See 5 CFR §§ 630.1502-1504.

Proposed removal: a letter given to a Federal employee that informs her the agency is proposing to remove her from service (which means, fire her). The letter gives specific reasons about what the employee did wrong (called a disciplinary charge), and why removal is the appropriate outcome (penalty justification). The letter gives the employee a period of time (usually 7-14 days) to respond to the deciding official and tell her side of the story, and it informs her she has the option be represented by someone she chooses (such as an attorney, union official, or personal friend). In most cases, an employee does not have the right to appeal or challenge a proposed removal because it is a preliminary action and not an official action. An employee can, however, appeal a removal decision.

Proposing official: the agency management official who proposes a disciplinary action, including removal. Often this is the employee’s immediate supervisor, but it can be any agency management official.

Deciding official: the agency management official who decides on the outcome of a proposed removal after considering the employee’s response. Often this is the employee’s second or third level supervisor, but it can be any agency management official.

Probationary termination: the separation (firing) of a person who works for a Federal agency who has not yet earned “employee” status (usually someone employed by the government for one year or less; two years for excepted service). See 5 USC 7511 or other relevant statute. Probationers can be terminated quickly for even minor reasons, but the reason must be given to the employee in writing before the termination is effective.

Deferred resignation: an agreement between an employee and an agency that the employee will resign on X date in the future in exchange for something from the agency, such as continued pay through X date. A deferred resignation must be in writing and signed. It is effective and binding on the date it is signed by the second party.

RIF: a reduction in force, the term the government uses to describe a layoff. A RIF is used when an agency abolishes a job position. OPM says RIFs are usually the result of a “reorganization, including lack of work, shortage of funds, insufficient personnel ceiling, or the exercise of certain reemployment or restoration rights.” There are complex regulations that govern a RIF that determine which employees are removed and which employees stay on the payroll. An agency must give an employee notice of its intent to remove him as the result of a RIF. See 5 CFR § 351.

Layoff: a broad term for removing a person from employment for non-disciplinary reasons, such as budget or change in workplace needs. Not typically a term used in reference to cutting the size of the government workforce, but often used outside of government.

Related training:

When Overzealous Management Becomes (Potential) Harassment

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By Deborah Hopkins, February 18, 2025

Quick facts:

  • An employee claimed sex-based harassment after her supervisor’s threatening behaviors.
  • The agency dismissed the complaint for failure to state a claim.
  • EEOC remanded for investigation because the facts as alleged could have sufficiently impacted the complainant’s terms, privileges, or conditions of employment.

If I had a dollar for every time an employee claimed “harassment” by a supervisor who was actually just doing their job, I would be long-retired and living life in a hammock on an island somewhere. Many, if not most, allegations of harassment against a supervisor end up being non-meritorious – meaning, not discrimination and not related to the person’s protected EEO categories.

But there’s always an exception. Consider Herta R. v. USPS, EEOC App. No. 2024003913 (Nov. 6, 2024). The complainant alleged her supervisor was harassing her based on sex, and made her feel physically threatened when he:

  • Approached her aggressively;
  • Got close enough to her face that she could smell his breath, then yelled at her and threatened her;
  • Followed her around work for approximately 30 minutes; and
  • “Cornered” her at work, which prevented her from going into the women’s restroom or exiting the building to get away from him.

The agency dismissed the complaint for failure to state a claim (29 C.F.R. § 1614.107(a)(1)), and the complainant appealed to the EEOC. The questions before the Commission included:

  • Whether the complainant was an “aggrieved employee” who suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy (Diaz v. USAF, EEOC Req. No. 05931049 (Apr. 21, 1994)), and
  • Whether the alleged harassment would be sufficiently severe or pervasive to alter the conditions of the complainant’s employment (Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).

The EEOC found the agency improperly dismissed the complaint because the complainant “sufficiently alleged that she was subjected to verbal or physical threats of violence because of her sex.” Herta R. at 4. As a result, the EEOC remanded the case back to the agency to process the complaint.

This doesn’t mean the complainant will ultimately prevail, but it means the agency is required to investigate the allegations to determine the facts.

Nearly a year passed between the time the complainant made her first harassment allegation and when the EEOC remanded the case, so the agency’s investigation is most likely happening as you read this. There is a lot to consider when investigating issues that occurred long in the past, so check out FELTG’s upcoming training calendar to see some of the topics we’ll be covering in 2025. hopkins@feltg.com

Related trainings;

How to Get to the Federal Circuit when MSPB Loses its Quorum

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Updated June 15, 2025

By Deborah J. Hopkins, February 14, 2025

Last month the Supreme Court allowed Cathy Harris, who until recently was Chair of the U.S. Merit Systems Protection Board (MSPB or Board), to remain fired while her case is pending in Federal court. Harris was serving a seven-year term in a Senate-confirmed position set to expire in 2028 when she was fired by President Trump in February, and her lawsuit claims her removal was illegal because the statute permits removal only for cause and the President had no cause. The Trump administration’s stance is that he should be able to fire the head of any independent agency without cause, and that any restraint on that authority is unconstitutional.

Among other things, the MSPB adjudicates covered Federal employee appeals of their removals from service. Administrative Judges (AJs) hold hearings and issue decisions on the removals, and the judges’ decisions can then be appealed through a Petition for Review (PFR) to the three-member Board.

Because Harris has not been reinstated, the three-member Board at MSPB is without a quorum; at Member Raymond Limon’s term expired Feb. 28 and only Acting Chairman Henry Kerner remains, as a new appointee has not been named. At least two Senate-confirmed members are required to issue decisions on PFRs.

And at a critical time where there’s been an influx of litigation over probationary removals, RIFs, and more, this little agency is crucial to the functioning of the executive branch. From 2017 to 2022, the Board was without a quorum because the Senate refused to vote on President Trump’s nominees from his first term, and as a result around 3,800 PFRs stacked up. This meant there were thousands former employees waiting years to find out if they would get their jobs back. Harris shared in February that 99 percent of the inherited inventory had been adjudicated since the Board regained its quorum in 2022.

So what does this lack of quorum now mean for Federal employees, or those former employees who were recently removed? Well, AJs will still be able to issue decisions of employee appeals, but PFRs of those decisions will stack up until a quorum is restored, just like we saw starting in 2017.

Unless.

There’s a lesser-known alternative to filing a Board PFR that you should know about: filing a PFR directly with the Court of Appeals for the Federal Circuit. If an AJ issues a decision and 35 days goes by without the former employee (called an appellant) or the agency filing PFR at the Board, the AJ’s initial decision becomes the final Board decision. This gives the parties the right to file a PFR of the AJ’s decision directly with the Federal Circuit. 28 USC § 1295(a)(9); 5 USC 7703(b)(1)(A); 5 CFR § 1201.113.

Usually, appellants file PFRs to the MSPB because it’s free, and filing in the Federal Circuit is not – it costs around $600. Also, the decisions on PFRs from the Board can still be appealed to the Federal Circuit – so appellants who go the route of taking the PFR directly to the Federal Circuit are losing an entire step of review.

The Federal Circuit’s scope of review in an appeal from the Board is limited by statute; it must affirm the Board’s decision unless the court finds the decision to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 USC § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. DOJ, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

In a typical year, the Federal Circuit upholds the MSPB’s decisions about 90-95 percent of the time. We expect we may see more Federal Circuit action in the coming months because the Board is once again without a quorum.  Hopkins@FELTG.com

Related training:

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.