Using Progressive Discipline: How Many Strikes Before You’re Out?

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By Deborah Hopkins, March 10, 2020

I spend most of my days talking about discipline. It’s a topic that I find very interesting, as do a lot of you in the FELTG Nation. In our field, of course there are a lot of boring discipline cases about the guy who is late to work or doesn’t follow an SOP and is disciplined accordingly. There are also attention-grabbing cases about employees who view pornography on government computers, urinate in mop closets, take food off inspection lines to do vulgar things, destroy government property, and on and on. If you work in federal employment law, you never have to make anything up.

One of the topics worth focusing on (and hey, there’s a webinar about this next Thursday) is progressive discipline for employees who are multiple misconduct offenders. While reprimands usually correct misbehavior, in 15-20% of cases an employee re-offends with a subsequent act of misconduct. What’s more, in 2018 the Government Accountability Office issued a report that said 25% of the 10,000-12,000 people suspended in the federal government every year have been suspended at least once previously.

Misconduct is loosely defined as the violation of a workplace rule. Discipline for misconduct is a way to correct bad behavior, or to teach the employee a lesson. Some agencies even discipline to send a warning message to other employees in order to deter future misconduct. The underlying principle in determining the appropriate level of discipline is that the penalty is proportionate to the offense. Agencies determine what’s appropriate with the guidance of the Douglas factors.

But some employees just don’t (or won’t) learn their lesson even after being disciplined, and that’s where things typically escalate. Enter progressive discipline. The general principle is “Three Strikes and You’re Out” when it comes to breaking minor rules and being disciplined in the federal workplace. This has been a widely accepted approach for longer than most of us have been alive; indeed, it pre-dates the Civil Service Reform Act and was standard in cases when we still had the Civil Service Commission. Three strikes is not a mandatory requirement, of course. Some supervisors allow employees four, five, or six strikes – or even more.

However, if an agency chooses to rely on past discipline in the Douglas factors analysis, any past, unexpired discipline at all is an aggravating factor in determining the appropriate penalty. In 2018 President Trump issued Executive Order 13839 that clarified prior misconduct for any charged offense – not just the current offense – could be relied upon in using progressive discipline. For example, a previous Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL, as would be a prior Reprimand for AWOL. This been the law for decades, but had been misunderstood in recent years.

Take a look at a few cases where agencies used progressive discipline, and MSPB upheld the removals:

  • Grubb v. DOI, 96 MSPR 361 (2004): Removal was warranted for two charges – making repeated unfounded and unsubstantiated allegations concerning her co-workers’ and supervisors’ alleged misconduct and failure to follow her supervisor’s instructions in violation of a direct order – because the appellant had received four suspensions within a two-year period. [Can I just mention that I cringe at how those charges are drafted…but that’s another article.]
  • Blank v. Army, 85 MSPR 443 (2000): A reprimand and two suspensions preceded a removal action, and the MSPB upheld the removal because the past discipline was an aggravating factor.
  • Alaniz v. USPS, 100 MSPR 105 (2005): In one year alone, the appellant received four suspensions, so a fifth offense in the same year warranted removal.

I think most FELTG readers would agree that these cases show egregious examples of repeated misconduct. I would even hazard a guess that removal could have been upheld a couple of suspensions sooner, had the agencies above chosen to go that route. However, they chose not to and under the law that is their right.

Believe it or not, though, removal is appropriate in cases of “minor misconduct” where employees have been disciplined in the past and continue to violate workplace rules. See Ferguson v. USPS, 19 MSPR 52 (1984) (When past disciplinary records indicate unreliability and a failure to comply with agency regulations, the penalty of removal does not exceed the limits of reasonableness even for cases involving minor misconduct such as “being out of the facility while on the clock without permission.”) Foundational MSPB case law tells us that the agency need not impose the minimum penalty possible so long as the penalty imposed is reasonable. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Of course, because progressive discipline is not mandatory, sometimes agencies employ the “One Strike and You’re Out” approach. Next month, we’ll look at cases where progressive discipline was not used, because it wasn’t necessary. See you then, if not before. Hopkins@FELTG.com

You Can’t Be Halfway Pregnant, and Informal Discipline is Not a Thing

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By Deborah Hopkins and William Wiley, February 19, 2020

Have you ever heard this saying: You can’t be halfway pregnant   — either you are, or you aren’t? There are a number of things in life that are all or nothing, with no halfway. Either it is, or it isn’t.

One of those things is discipline. An action taken against an employee who has committed misconduct in the federal workplace is either discipline, or it isn’t. There’s no halfway. I can’t tell you how many agency policies we have seen – yes, even recently — that list the items that constitute Formal Discipline, but then have other sections highlighted as “Informal Discipline” or “Other Discipline” or, perhaps most confusingly, just Discipline. Other policies list the steps of Progressive Discipline and include items such as Counseling and Oral Reprimands. That’s another mistake and isn’t legally accurate.

Here’s what we know about the requirements for an action to be considered discipline in the federal workplace, as laid out in Bolling v. Air Force, 9 MSPR 335 (Dec. 21, 1981):

Discipline must be in writing. If a supervisor yells and screams at an employee, calls the employee all kinds of nasty names , throws a chair, slams a door, threatens to fire the employee, or anything else along those lines, that supervisor might feel like she is disciplining the employee, and indeed, the employee may even feel disciplined from the sting of those words. However, under the law, the employee has not been disciplined. Those words and gestures matter not one iota under the law. If it isn’t in writing, it isn’t discipline. (It’s definitely bad management, but we’ll save that conversation for another article.)

Discipline must be grievable. As explained in Bolling, for an action to count as discipline, the employee must be “given an opportunity to dispute the action by having it reviewed, on merits, by an authority different from the one that took the action.” Just because an item is in writing, doesn’t make it grievable. An agency needs to look to its administrative grievance procedure or its union contract to see what types of written documents are grievable. Typically, items such as counseling memos, emails, letters of caution, or written expectations, do not meet these criteria and, therefore, are excluded from the definition of discipline.

The action must be made a matter of record. This requirement essentially means that there is official agency paperwork involved; the item belongs in the employee’s OPF. A lot of supervisors put notes and memos into the OPF, but the only things that truly belong there, for the purposes of counting as discipline, have an SF-50 attached. A reprimand does not have an SF-50 because it is not a pay action. However, it is commonly stored in the OPF in the temporary section (for those who remember OPFs before they were electronic, on the left side of the folder), where it does not remain in the file past its expiration date. A reprimand is considered discipline until its expiration date, because it meets all the legal requirements of discipline: It is written, grievable, and a matter of record.

All this brings us back to the confusion around “informal discipline,” or whatever your agency calls it. There is no accepted definition for informal discipline, and it does you more harm than help if you try to draw a distinction.

If a supervisor mistakenly issues three types of informal discipline against an employee, and on the fourth offense decides that it’s time for a removal under progressive discipline, she is going to be upset when she realizes the informal procedures she followed in her agency’s policy have carried exactly ZERO legal weight for the purposes of progressive discipline. At the very most, she might have some evidence for the Douglas factor on notice, but that’s about it. Here’s why this is important:

Efficiency: As we have taught in our FELTG seminars since the cooling of the Earth, the best practice is to do as little as required by law when dealing with a problem employee. The more you do, the longer it takes, the more you give the employee to grieve and complain about, and the greater your chances of making a mistake. If you create a category of actions unrecognized by law or otherwise unnecessary, you make it more difficult to efficiently correct behavior.

Confusion: If you create something called “informal discipline,” you confuse the poor front-line supervisor. When should the supervisor engage in informal discipline? Is there a requirement to use informal discipline before he uses the real thing? How is the employee supposed to view the administration of an informal disciplinary action? Most importantly, what is the judge or the arbitrator supposed to do with an informal discipline policy? Confusion does you no good when trying to manage workplace behavior.

Litigation: MSPB administrative judges closely review the removal of employees from federal service. If a judge discovers that you have mistakenly considered an act of “informal discipline” as a step in progressive discipline, then you stand a big fat chance of the removal being mitigated or even set aside on appeal. Litigation is hard. Don’t create the potential for mistakes that are unnecessary.

If you’re stuck with one of these policies and aren’t in a position to change it, don’t sweat it. Most of these policies do not require a supervisor to start with the informal before going the disciplinary route, so a supervisor should be free, to go right to the reprimand and skip the Letter of Whatever. Hopkins@FELTG.com

Takeaways from MSPB’s FY 2019 Annual Report: Agencies Continue to Win Appeals, but Don’t Litigate Very Many Cases

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By Deborah Hopkins, February 19, 2020

A couple of weeks ago, MSPB issued its Annual Report for FY 2019. This report is similar to a “State of the MSPB” document, which highlights the priorities, strategies, and numbers from the previous fiscal year. Because we have no sitting members of the MSPB for the first time in history – and it’s been almost a year since the Board has been vacant – the report is more abbreviated than it has been in years past. But there’s still some interesting information we at FELTG want to share with you, in case you haven’t had a chance to look at the report yet.

As of the end of FY 2019, MSPB had 2,378 Petitions for Review (PFRs) pending at HQ. That was the end of September, of course. As of last week, MSPB’s website showed more than 2,600 pending PFRs. The backlog has been growing for more than three years and will continue to grow until the Senate votes to confirm the nominees, who have been patiently waiting – two of the three for nearly two years.

The Administrative Judges (AJs) in the regional and field offices continue to hold hearings and review cases. Last FY, they issued 5,112 decisions. Of those, 4,893 were initial appeals, 190 were addendum cases, and 29 were stay requests. Let’s look at a further breakdown of these numbers:

  • 2,092 of the AJ decisions involved adverse actions.
  • 388 cases were probationer removals. (As most FELTG readers know, probationers have limited Board appeal rights. If you didn’t know that, attend MSPB Law Week in March and we’ll tell you all about it.)
  • 113 cases involved performance-related removals or demotions.
  • 490 were Individual Right of Action appeals – with most of those, if not all, undoubtedly being appeals of alleged whistleblower reprisal.
  • 61 appeals were related to suitability.
  • USERRA and VEOA appeals combined for 213 appeals.

Another interesting statistic involves settlement. In years past, around 60 percent of MSPB appeals government-wide were settled before they ever went to hearing. Of course, some agencies tend to settle more often, and others less frequently, but overall the majority of cases still settled. I often get asked what that looks like, and why agencies settle cases after the disciplinary action has already been decided. Well, it costs the government time and money to litigate a case in front of an MSPB AJ, and if the agency can offer the employee something (usually a sum of money) in order to resolve the appeal today, then it often will.

This decision to settle usually comes from someone further up the chain of command, and in many cases includes the employee’s agreement that they won’t apply for another job at the agency again. Whether you like it or not, that’s how the system works.

Well, last year we had the lowest number of post-appeal settlements I can ever recall seeing: only 47 percent of cases settled after the appeal was filed to MSPB. A likely reason for this is Executive Order 13839, which went into effect in 2018 and removed the agency’s authority to take discipline out of an employee’s official record. A clean record is often the determining factor in getting an employee to agree to withdraw an appeal and go away, so it’s not surprising to see this number decrease so significantly.

Of the 915 appeals that went to hearing (in other words, they weren’t settled, withdrawn, dismissed, or otherwise disposed of) and were adjudicated on the merits, agency actions were upheld 85% of the time — a 2% increase from FY2018. Only 2% of agency actions were mitigated and about 12% were overturned.

So, who went to hearing the most? By the numbers, the VA far and away adjudicated the most MSPB appeals (161), more than doubling the number of its closest followers, Army and DHS. Not far off the podium were DOD, USPS, Navy, and Air Force, followed by  DoJ, USDA and Treasury. Considering the size of the top three agencies, this is not entirely surprising as one could assume the number of hearings is related to the size of the workforce. However, several decent-sized Departments only adjudicated appeals in the single or low-double digits:

  • Department of Health and Human Services: 15 appeals; 79,000 employees
  • Department of Transportation: 15 appeals, 58,000 employees
  • Department of Commerce: 14 appeals; 46,000 employees
  • Department of the Interior: 12 appeals; 70,000 employees
  • Department of Labor: 4 appeals; 17,000 employees
  • Department of Energy: 3 appeals; 14,000 civilian employees
  • Department of Housing and Urban Development: 3 appeals; 8,000 employees

The fact that some agencies adjudicated so few appeals is not necessarily directly related to the number of personnel actions taken. A number of Departments employ groups of people who do not fall under MSPB jurisdiction – for example, Department of Energy employs more than 100,000 contractors who do not have MSPB appeal rights. Some agencies have very high settlement rates, and other agencies see very few employees file an appeal of a removal. That said, it is true that some agencies just don’t take action against most employees who engage in misconduct or perform at an unacceptable level. I share these numbers not to point fingers, because these numbers standing alone don’t tell us the complete story, but as a way of starting the conversation about accountability in the federal government.

There’s lots more in the report including a statement on the lack of a quorum (or any members at all) and summaries of important Federal Circuit decisions. Hopkins@FELTG.com

What’ll It Be, Mack? The Easy Way, or the Hard Way?

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By Deborah Hopkins, January 21, 2020

My colleague Bill Wiley has long preached the value of taking the easy route vs. the hard route. An example he has often used in our Washington, DC classes goes something like this:

If you’re in Washington, DC, and you want to get to Baltimore, the fastest and most direct way to get there is to take I-95 north. Of course, there are other ways to get to Baltimore from DC. You could hop on I-66 and head out toward West Virginia, come up north across western Maryland and on into central Pennsylvania, then drive east on the Pennsylvania turnpike before heading to Baltimore south on I-95 via Philadelphia. But why would you take the long route and waste all that time and fuel, when you could be there in less than an hour by taking the quickest route?

I want to look at  a 2019 Federal Circuit decision with this easy-vs-hard approach in mind. The case involves a VA psychologist named Eric Cerwonka who was removed from his position as a Clinical Psychologist at a VA medical center in Alexandria, La. Cerwonka appealed his removal to the MSPB and ultimately petitioned for review by the Federal Circuit.

Here’s what happened: The state of Louisiana took away Cerwonka’s license to practice for “clear ethical violations and a repeated failure to follow the rules and regulations binding upon [him] as a psychologist.” Once the VA learned Cerwonka’s license had been revoked, it proposed his removal based on one charge: failure to maintain a current license, in violation of 38 U.S.C. § 7402(f). The statute provides that a psychologist “may not be employed” by the VA if even one of his licenses is terminated for cause.

Cerwonka appealed to Louisiana over the license revocation. The state temporarily reinstated his license, as is typical procedure in appeals of license revocations. Cerwonka appealed his removal to the MSPB and argued that the subsequent reinstatement of his license meant the VA did not have cause to remove him because he once again had his license to practice.

The Board’s role in these cases – and thus the Federal Circuit’s jurisdiction in appeals and PFRs – is limited to reviewing Federal agency personnel actions and determining whether those actions were proper at the time they were made. See 5 C.F.R. § 1201.4(f) (defining the term “appeal” to the Board as “[a] request for review of an agency action”).

In the initial decision, the AJ concluded that the agency action under review — Cerwonka’s removal — was proper at the time it was made. Because Cerwonka’s Louisiana license had been revoked, for cause, at the time the agency removed him from employment, he did not have a license on the day the agency issued his removal, and Cerwonka did not present any evidence to refute this fact. The express terms of the statute compels removal and does not permit the VA to consider subsequent events, such as the reinstatement of a license at a later date. The Federal Circuit put it this way:

To the extent Cerwonka is arguing that the Board must consider subsequent events or that there should be a waiting period prior to removal to give an opportunity for an appeal, those arguments find no support in the statute, and we decline Cerwonka’s invitation to read exceptions into the express terms of 38 U.S.C. § 7402(f).

Which brings me to the point of this article. The agency could have drafted up a fancy proposed removal with perhaps multiple charges revealing Cerwonka’s misconduct and how the ethical violations he engaged in caused harm to the agency. It could have proven the facts, and the elements of each charge, by a preponderance of the evidence. And it could have justified the removal penalty by showing that because Cerwonka’s ethics were called into question, he was no longer trustworthy in his role and, accordingly, the agency lost confidence is his ability to do his job. Then if Cerwonka had appealed to the MSPB, the agency could have defended its charges. As we teach in FELTG training classes, doing that is not nearly as difficult as you might think.

However, in this case, the agency made a smart call. Rather than try to build a case over misconduct, it took an even easier and more efficient route by proposing removal for failure to maintain a current license:

  1. A license is required to have this job today;
  2. Your license is revoked as of today;
  3. No license = you’re fired.

Get where you want to be the easiest way. Take I-95 to Baltimore – or better yet take the MARC or Amtrak – rather than go the circuitous route. Make your life easier, when you can. Hopkins@FELTG.com

The Great Debate: Douglas in the Proposal or Douglas in the Decision?

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By Deborah Hopkins, January 14, 2020

When Bill Wiley and I teach MSPB Law Week (next held in Washington, DC March 9-13), we get a lot of great questions.

And occasionally, we get pushback from an attendee on some of our practice methods. One hot topic that always generates discussion – and the occasional challenge – is where to use the Douglas Factors analysis in a removal case.

We have written about this topic multiple times, because it’s a topic people always have questions about. So it’s a fitting discussion for the first newsletter of the year, and the decade.

At FELTG, our approach is to attach a Douglas Factors Worksheet to the proposal notice. We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.

Here’s a direct quote from Douglas v. VA, 5 MSPR 280 (1981):

[A]ggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …

That’s right, all the way back in 1981 when the ink was barely dry on the Civil Service Reform Act, the famous Douglas decision laid out 12 factors to consider in determining a penalty for misconduct, and the aggravating factors (those factors which work against the employee and weigh in favor of a harsher penalty) must be included in the proposal notice.

And who is responsible for the proposal notice? The Proposing Official (PO), of course, usually in conjunction with an advisor from L/ER or OGC. The proposal letter, along with any attachments, such as a Douglas Factors Worksheet, is what gives the employee the “advance notice” required by the Douglas decision.

Sometimes a person in our class wants to get into a debate about why we include all 12 factors in the proposal when Douglas only requires the employee to be given notice of the aggravating factors.

It is true that the legal minimum is to give the employee only the aggravating factors, but at FELTG this is one of the few times we go beyond the legal minimum. We don’t want to get into a fight about whether a particular factor is aggravating or mitigating, so we include them all upfront.

One of the examples we use in class to illustrate this principle is length of service. Let’s say the employee has worked for your agency for nine years. Is that length of service aggravating or mitigating? The PO might think it’s mitigating, but if the Deciding Official (DO) thinks it’s aggravating and we haven’t given the employee the “Length of Service” factor in the proposal notice, we run the risk of a due process violation. In addition, the Federal Circuit has highlighted that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, No. 2010-3021 (Fed. Cir. 2011).

If the Proposal Letter contains only three or four aggravating factors, and the Deciding Official does a full Douglas analysis and decides there’s a fifth aggravating factor and does not provide notice to the employee, that DO has committed a due process violation because the employee has now been denied his legal right to fully defend himself. That due process violation is an automatic loser, regardless of the evidence on the merits.

The safest thing to do is to include all the Douglas factors in the proposal. Then we don’t have to make the call on whether a factor that could go either way is more aggravating or mitigating. Makes sense, doesn’t it?

Here’s the process:

  1. Employee is given the proposal notice, an attached Douglas Factors Worksheet, and any evidence relied upon.
  2. Employee responds to the Deciding Official based on the proposal notice and its attachments.
  3. Deciding Official makes a decision based only on the proposal, which includes the Douglas Factors worksheet, and the employee’s response.

As discussed above, the Douglas decision says the employee gets notice of the factors relied upon when the proposal is made – not the decision. So, if the DO agrees with the Douglas analysis in the proposal, there’s no need to add a word to the penalty assessment. Her decision letter will just say: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” No new information, no due process violation.

If the DO disagrees is some way with the Douglas analysis in the proposal, or comes across new information that was not in the proposal or the employee’s response (let’s say she gets an email from a former coworker, discussing how the employee always cheated on his time cards when they worked together), the safest thing to do is to send the employee what we call a Ward letter, describe the new information that was considered, and give the employee a chance to respond to that new information.

If the case ends up on appeal before the MSPB, the Administrative Judge will certainly be more interested in what the DO has to say, than what the PO has to say. This does not mean the DO has to do a separate Douglas Factors analysis, though; it just means that the DO should be intimately familiar with the PO’s Douglas analysis and be prepared to answer any questions about the content therein, since she is signing off on the analysis and agreeing with it.

I hope you agree that in the Great Debate of 2020 (and 2019, 2018, 2017, 2016….all the way back to 1981), the clear winner is Douglas in the proposal notice. We’ve even helped agencies rewrite their discipline policies to reflect this legal requirement. Let us know if you want help with yours; we’d be happy to assist. Hopkins@FELTG.com

The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems

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By Deborah Hopkins, December 11, 2019

Last month, FELTG published an article about federal employees with hygiene issues, and whether agencies could justify taking disciplinary action against employees who do things like intentionally defecate themselves, urinate in closets, and bring in unwelcome critters on their clothing or hair, thus infesting the office.

As you can imagine, a lot of people clicked on that article. One of the cases cited dealt with a food inspector in a chicken processing plant who intentionally passed gas on and around his coworkers (Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID)). I know a lot of people had a chuckle about that one, probably because it sounds horrid. (And it was horrid, among other things.) We used the case to illustrate the principle that employees can be disciplined for intentionally doing gross things in the workplace.

Some cases can teach us multiple lessons, and thanks to a FELTG reader who urged us to look deeper, I re-read the entire case – something I hadn’t done in a long time. I suggest you do the same and if you do, you will see this is not a case involving an employee playing the class clown, but it’s a case involving something much darker.

Yes, there is a lot about farting in the case – including multiple instances of the appellant passing gas and then asking coworkers and others if they could smell it. But the more serious issues in the case were incidents of unwelcome sexual conduct over an extended time period, against females he worked with and around. Some of the sexual references, suggestions, gestures, and requests are so egregious that I can’t print them here for fear of your agency firewalls blocking this email – not to mention the things he did with the chicken parts in an attempt to make his coworkers uncomfortable. In addition, the unwelcome sexual conduct was also directed at the private employees in the establishment that the appellant was charged with helping regulate, so it went beyond an internal agency issue. Despite multiple requests to stop, the appellant continued to subject his victims to this conduct. In the end, the AJ sustained the appellant’s 30-day suspension. This was 2006, and if you read the facts I think you’d agree that the agency could probably have justified a removal, even in a pre-#MeToo world.

Why do we bother spending so much time discussing an initial decision that doesn’t carry any precedential value? Because the principles are important, and the victims in this case are just as important as the victims in cases that carry precedential value. Our reader put it better than I ever could:

Often people laugh at those who say crude things to strangers on the street – dismissing them as silly because they won’t likely result in romance. I routinely cite this case to explain – saying overtly sexual things to someone is not meant to try and get them on a date. It’s meant to degrade the female with the overall purpose of elevating the male at her expense.

Why fart? Because it’s about POWER. Why would the same person who said explicit sexual things and ask for dates also raise his hip, [fart], ask “Didja smell that?” and laugh? Because he was engaged in multiple forms of bullying behavior. See the ID page 6 in particular…it’s just stunning (a great summation of a horrible thing).

This case is a perfect illustration that sexual harassment cases are not always about sexual desire. There are multiple motivators for unwelcome behavior in the workplace, and your agency should not put up with it. Hopkins@FELTG.com

Old Man Winter and the Requirement to Telework When it’s a Snow Day

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By Deborah Hopkins, December 11, 2019

‘Tis the season. Yes, the holidays are upon us and there are lights and ornaments and Christmas trees everywhere you look. But it’s also the season of snow, sleet, and ice in many parts of the country. And with that, it’s a good time to review OPM’s newish guidance on weather and safety leave, last updated in its Governmentwide Dismissal and Closure Procedures in November 2018 and based on the Administrative Leave Act of 2016.

FELTG readers understand the federal government’s vital business must continue without compromising the safety of its employees and the general public. And while some agencies can shut down for a day or two with no real harm, other agencies absolutely must stay operational no matter what’s happening outside.

Read the procedures for yourself here, but below are some highlights and reminders:

  • First, make sure you know your agency’s procedures about what is expected of you when operating status announcements are issued. Also, be sure you know where to look for operating status alerts. Is it the OPM website, your agency’s website, your local Federal Executive Board, your email, or somewhere else?
  • It’s also important to understand which flexibilities are available to you during specific agency operating procedures, such as unscheduled telework, unscheduled leave, leave without pay, an alternative day off, etc.
  • An agency may grant paid weather and safety leave when it is determined that employees cannot safely travel to or from, or safely perform work at their normal worksite, a telework site, or another approved location because of severe weather or another emergency situation. The cause could be weather, an earthquake, a terrorist attack, or any other situation that causes a danger to employees. There is no annual limit to paid weather and safety leave – it’s all up to Mother Nature.
  • Employees who are set up to telework are generally excluded from receiving weather and safety leave. Because this leave is explicitly granted when travel is dangerous, and employees who telework do not have to travel, they are expected to work as regularly scheduled. There are exceptions if, in the agency’s judgment, the telework-capable employee could not have reasonably anticipated the severe weather or other emergency condition and, therefore, did not take home needed equipment or work.But in general, telework-eligible employees are expected to anticipate telework days if the forecast makes weather-related leave likely
  • Employees on preapproved leave may not receive weather and safety leave even if their colleagues were granted the leave. That means if you used 40 hours of annual leave to escape the cold and go on a cruise, and that same week there is a snowstorm where you live and work and your colleagues get 16 hours of weather and safety leave because the roads are snowed in, you still have to use all 40 hours of annual leave. If you’re on leave, whether in or out of town, you don’t get the benefit of the snow days.

The new OPM Director also issued a memo with more highlights. Be safe out there! Hopkins@FELTG.com.

Yes, ADHD Actually is a Disability – and NO, All Kindergartners Don’t Have It

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By Deborah Hopkins, December 3, 2019

My brother is several years younger than I am, and I remember when he was in kindergarten, his teacher recommended he go on Ritalin because he was hyper and she thought he had ADHD. My parents were taken aback and started talking to other parents who had children in my brother’s class. It turns out the teacher had recommended that 22 out of 25 of her students go on Ritalin.

I’m no medical expert, but I can tell you that 22 kids in his class did not have ADHD; they were five and six years old and had energy, as kids do. Maybe the teacher should have opted for a classroom of students who were a bit older, but I digress.

As we teach during the behavioral health day of Emerging Issues Week (next offered in Washington, DC, July 20-24), ADHD is a brain disorder with a pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development. This may include:

  • Inattention – individual wanders off task, lacks persistence, or has difficulty sustaining focus.
  • Hyperactivity – individual moves about constantly, excessively fidgets, taps, or talks. The individual is frequently restless.
  • Impulsivity – individual makes quick decisions without thinking through them first; may have a desire for immediate gratification and/or may be socially intrusive.

Note: These problems are not due to defiance, lack of comprehension or substance use.

I’m not sure if the over-diagnosis of ADHD in the 1980s and 1990s has led agencies to believe it is not a legitimate disability, but don’t make that mistake. ADHD does exist and for the people who have this condition, the symptoms and effects are very real.

If you’ve been in this business longer than five minutes, you are aware that Americans With Disabilities Act, the Rehabilitation Act, and the various amendments to these laws provide employment protections to certain people with disabilities.

In order to be covered the employee or applicant must:

–      Have a physical or mental impairment that substantially limits one or more of the major life activities of such individual,

–      Have a record of such an impairment, or

–      Be regarded as having such an impairment

42 USC § 12102(1).

Obvious physical impairments are sometimes handled better by agencies than mental impairments. Indeed, a number of mental impairments, such as ADHD, are what we refer to as “hidden,” “unseen,” or “invisible” disabilities. While it’s true that many physical disabilities are also invisible to the observer, there have been too many cases where agencies denied reasonable accommodation to employees with unseen mental impairments.

I’d like to look at two cases involving ADHD.

In the first, the complainant, who had ADHD, had a difficult time concentrating, so she requested to be moved to a quieter work area. Though the agency agreed the complainant had a disability, it took two years (!!!) before it addressed her request to move to a quieter, low-traffic area to work. She also requested she be allowed to do work that “focused on the task at hand,” be allowed to avoid multi-tasking whenever possible, and that the agency provide her with time to readjust when moving from one thing to another and time to formulate ideas when trying to streamline questions or statements. The agency did not grant these additional requests beyond the workspace move, and the complainant’s performance rating was affected as a result. The Commission found the agency did not show it would be an undue hardship to consider these requests and ordered the agency to expunge negative performance reviews from her file, and to consider the complainant’s claim for compensatory damages. Michelle G. v. Treasury, EEOC Appeal No. 0120132463 (May 13, 2016).

In the second ADHD case, the complainant’s condition substantially limited her ability to concentrate. She also experienced side effects from multiple medications which further affected her ability to concentrate. Her request for accommodation included a medical note that stated, “cannot concentrate in loud open cubicle environment.” She requested a regular telework schedule, a private office or cubicle, or a modified work schedule. The agency requested additional information, which the complainant responded. Her medical documentation noted that the cubicle location allowed “for too many distractions for her disability” and that she “needed to work in the most distraction-free environment possible (e.g., a private office or quiet cubicle away from noise and/or distractions).” This did not satisfy the agency, so they asked for more. Once again, the complainant complied. Her doctor explained that she was: [H]aving difficulty wrapping up the final details of a project, organizing things, evidencing signs of physical and mental restlessness, easily distracted by noise, talking too much and interrupting people, and trouble waiting her turn, which Complainant’s doctor described as “classic signs of ADHD.” The complainant’s doctor added that medication “was not the full answer” and that “ADHD impact[ed] upon one’s ability to care for self, to speak appropriately, to interact with others, to concentrate and to work effectively.” The agency considered this medical documentation insufficient, so the complainant filed an EEO complaint over the denial of reasonable accommodation.

Eventually, the Commission found that the Agency failed to present sufficient evidence that granting the complainant’s request would have been an undue hardship, and the complainant received $60,000 in non-pecuniary damages, plus pecuniary damages and attorney’s fees. That’s an expensive lesson to learn. Selma D. v. Education, EEOC Appeal No. 0720150015 (April 22, 2016). [Allow me to note that the original RA request came in 2007 and the decision was not issued until 2016. Talk about harm.] So, there you have it.

If you want more, there’s still time to join FELTG’s webinar Accommodating Hidden Disabilities in the Workplace this Thursday. Hopkins@FELTG.com

Can You Fire A Federal Employee for Body Odor or Bad Hygiene?

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By Deborah Hopkins, November 13, 2019

You’ve probably all dealt with this situation at some point: You’re sitting on an airplane, bus, or subway train, or at a concert or in church or in a meeting, and you catch an odor from the person sitting next to you. It’s not a temporary odor that’s the result of an accidental gas release from an upset stomach. It’s a fixed odor that’s likely related to bad hygiene.

I remember one time flying on Southwest Airlines and being so grateful that the seats were not pre-assigned; a seatmate who had some very unpleasant odors settled in next to me and I was able to move without having to endure a 3-hour flight in that seat. With my overly sensitive sense of smell, I had to get out of there ASAP. While it might seem mean to say it’s difficult to be around people with bad odors, I’m not saying it to be mean. I think most readers would agree it can be a real challenge to be exposed to people with certain hygiene issues.

In many of these unpleasant situations, the arrangement is temporary, and in a number of cases you are able to remove yourself from the situation like I did on my flight. But what happens when the problem is coming from an employee or coworker who you have to see – and work around – every day?

Believe it or not, we have MSPB cases on the topic. A very old, foundational case addressed the matter of an employee who had unhygienic personal habits which went beyond body odor and included intentional defecation of himself in the workplace. The agency removed him on four charges including (1) non-compliance with work standard; and (4) unhygienic personal habits. The presiding official – who we now call the Administrative Judge – concluded that the appellant’s unhygienic personal habits alone would have been sufficient to remove him. Interestingly, the employee argued that his disability (colitis) caused the misconduct, the MSPB didn’t buy that argument and agreed with the presiding official:

The evidence of record plainly shows the demoralizing and unhealthy environment created by appellant’s personal habits. The record also reflects that the agency frequently counseled appellant as to his hygiene and that appellant made no effort to change. The agency endured appellant’s poor performance and unhygienic habits for many years. It need not exercise forbearance indefinitely. Gertzman v. INS, 9 MSPR 581, 583 (Jan. 19, 1982).

It’s true that sometimes body odor is disability-related, and you may need to consider an accommodation. However, that was not the case in Gertzman.

In another old case, the agency removed a probationer for failure to improve her personal hygiene after repeated warnings and counseling from her supervisors and after several complaints about her odor from her coworkers and members of her trade. As many of our readers know, if a probationer is removed, she has very limited appeal rights to MSPB and may only appeal if her removal was based on partisan political reasons or marital status. 5 USC 7511(a)(1)(A)(i); Ney v. Commerce, 115 MSPR 204 (2010). In this case, the appellant claimed she had hygiene and odor issues because her status as an unmarried person prevented her from obtaining resources that would allow her to improve her personal hygiene. The MSPB didn’t buy that argument, either, but you can’t blame a person for trying. Hilden v. USDA, 8 MSPR 300 (Oct. 1, 1981).

I’ve got more. There’s the Bureau of Prisons supervisor who for years urinated in a mop closet – not into a bucket but onto the closet floor – rather than walk to the restroom to use the proper facilities. As if that’s not bad enough, he also encouraged his subordinate to do the same. His demotion for Conduct Unbecoming a Supervisor was upheld. Hutchinson v. DOJ, 211 MSPR 77 (May 5, 2014). Then there’s the food inspector who was suspended for “improper conduct” because he intentionally passed gas around his coworkers on the food inspection line, and then asked them to smell it. Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID).

What about the employees who bring critters in to the office with them? No, not emotional support animals (that’s a different article) but things like bedbugs. Can you tell the employee they are prohibited from bringing bedbugs in to the office? Well, sure. As long as you have a business-based reason, you can set a workplace rule for an employee, and there is most certainly a business-based reason for not wanting bedbugs in a federal office. Tell the employee, then follow up in an email: “Do not bring bedbugs to the office.” If necessary, you can even do an indefinite suspension until the employee demonstrates medically she is free of the little critters. See, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), cases which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unhygienic, conduct in the workplace. Hopkins@FELTG.com

Takeaways from OPM’s 2019 Federal Employee Viewpoint Survey

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By Deborah Hopkins, November 13, 2019

It’s that time of year again. No, not the time when the stores put out Christmas decorations and pre-black-Friday sales begin (although that is happening, too). It’s the release of OPM’s 2019 Federal Employee Viewpoint Survey (FEVS). Each year as I await the report, I wonder what new pieces of information we’ll learn about how the federal government is doing as an employer. And each year, I learn something I didn’t know before. In case you haven’t had a chance to read it, here are a few takeaways, in ascending percentage order, from over 615,000 federal employees who participated:

  • 17% of respondents said there were no poor performers in their work unit.
  • 34% believe their supervisors take steps to deal with a poor performer who cannot or will not improve. Looking at it from the other side, this means that 66% of employees still don’t think supervisors are taking action against poor performers. Not a great number, but it is still the best percentage on this question in recent memory.
  • 39% believe that differences in performance among employees in their work unit are recognized in a meaningful way. Again, this means that 61% do not feel recognized.
  • 56% said that poor performers remain in their work unit and continue to underperform.
  • 57% believe their training needs were assessed and addressed in the past year.
  • 59% think their workload is reasonable.
  • 66% would recommend their organization as a good place to work.
  • 67% believe they can disclose a suspected violation of any law, rule or regulation without fear of reprisal – in other words, two-thirds of employees believe it’s safe to be a whistleblower in the federal government.
  • 71% of respondents agree with their most recent performance rating.
  • 83% believe their supervisors are holding them accountable for performance.
  • And, and astounding 96% of employees who responded said that when needed they are willing to put in the extra effort to get a job done. This proves what FELTG has always known, that most of our readers are incredible, hard-working, dedicated employees who want to make the government a better place.

There’s also an entire series of questions related to the impact of the 35-day shutdown, which is not very eye-opening but because it’s new you might find it interesting. If you want to read it yourself, check it out here. Hopkins@FELTG.com