Denying Leave Wasn’t Discrimination, It Was Good Workplace Management

, ,

By Deborah J. Hopkins, February 12, 2025

Quick facts:

  • Employee claims of discrimination often originate over disagreements with management practices or actions.
  • Employees are required to follow proper leave procedures, even in cases where the leave is an entitlement.
  • A complainant’s ten claims of discrimination failed because the agency articulated a legitimate, nondiscriminatory reason for each of its actions.

The annals of EEOC case law are full of decisions where employees file EEO complaints when they are unhappy with management, have personality conflicts with their supervisors, or perceive unfair treatment in the workplace. And while, unfortunately, we sometimes see illegal discrimination in the workplace, we also see complainants turn to the EEO process as a mechanism to challenge legitimate management actions.

Not long ago, this case caught my attention: Billy L. v. TSA, EEOC App. No. 2022004994 (Oct. 24, 2024). It’s worth a full read, but I’ll summarize it here.

The complainant was a transportation security inspector at the Denver International Airport who alleged age (61) discrimination and retaliation for prior protected EEO activity when:

  1. On September 27, 2021, management charged Complainant 3.75 hours of absence without leave (AWOL);
  2. On October 20, 2021, management denied Complainant’s request to change the September 27, 2021, AWOL charge to six hours of telework;
  3. On or after October 20, 2021, management denied Complainant’s request to claim 24 hours of paid administrative COVID-19 leave for October 6-8, 2021;
  4. On October 20, 2021, management denied Complainant’s request to claim eight hours of telework and/or claim eight hours of paid administrative COVID-19 leave for October 18, 2021;
  5. On November 4, 2021, management issued Complainant a 3.26 rating on his Fiscal Year (FY) 21 Employee Performance Management Plan (EPMP) appraisal;
  6. On November 19, 2021, management required Complainant to use one hour of annual leave in lieu of granting advance sick leave when Complainant requested leave under the Family Medical Leave Act (FMLA);
  7. On or after November 19, 2021, management required Complainant to conduct administrative duties while on FMLA;
  8. On December 1, 2021, management denied Complainant’s request for advance sick leave;
  9. On December 6, 2021, management denied Complainant’s request to telework on December 7, 2021; and
  10. On December 8, 2021, management issued Complainant a Letter of Reprimand (LOR).

Id. at 2.

I have no doubt this employee believed he was the victim of discrimination and retaliation – most complainants do. However, the agency successfully articulated legitimate, nondiscriminatory, and nonretaliatory reasons for each of the ten actions. A quick summary of the agency’s evidence on each claim:

Claim 1, AWOL charge

The supervisor explained the complainant was AWOL during the relevant hours and did not properly follow leave procedures, which required him to request unscheduled leave at least 60 minutes prior to the start of his shift. He did not notify his supervisor he needed to use leave until 3.75 hours after the start of his shift. Id. at 3.

Claim 2, Denial of EEO official time

The supervisor properly denied the complainant’s retroactive request to convert the September 27 AWOL charge to telework/official EEO time, because the complainant was required to request official time in advance and not after the fact. The supervisor granted the complainant’s proper request for future official time. Id.

Claims 3 and 4, COVID-related leave

The complainant, after recovering from COVID, informed the supervisor that he was changing his regular day off (RDO) and telework schedule in an attempt to get another day of COVID-related administrative leave beyond the ten days the agency had authorized. The agency’s policy required employees to request changes in advance, so the supervisor’s denial was appropriate.

Claim 5, Performance rating

The agency accurately rated the complainant’s performance as Achieved Expectations – the equivalent of fully successful – because the complainant “did his assigned work and met relevant performance standards … [but] did not do additional work to merit a higher rating.” Id. at 20.

Claims 6 & 8, Denial of advanced sick leave

The agency properly denied the complainant’s request for advanced Sick Leave because the complainant’s retirement date was set for the end of 2021, and he would not remain an employee long enough to “liquidate the indebtedness,” or pay it back. Id. at 12.

Claim 7, Administrative duties assigned while on FMLA

The supervisor sent the complainant emails telling him to submit his time and attendance into the timekeeping system, and that he was expected to review his annual performance appraisal. However, she credibly stated that she did not expect the complainant to perform any of these duties while in FMLA status and that she told him he could wait to perform these tasks until he returned from leave.  Id.

Claim 9, Denial of telework

The complainant did not report to work onsite on December 7, 2021, despite a supervisor’s explicit instructions on December 6 that he was required to report onsite on December 7. Therefore, the denial of telework status was appropriate.

Claim 10, Reprimand

The supervisor had a legitimate, nondiscriminatory reason to issue the reprimand because the employee failed to follow the supervisor’s instruction to attend a mandatory support block.

This is a perfect case to demonstrate that employees don’t take leave, they are required to request leave. Also, a supervisor’s appropriate leave denial is NOT discrimination or retaliation, it is proper management and enforcement of agency policies. As the EEOC concluded, “the record is devoid of testimonial or documentary evidence to contradict Supervisor1 and Supervisor2’s legitimate, non-discriminatory/retaliatory explanations provided. Moreover, the record is devoid of evidence of discriminatory or retaliatory animus.” Id. at 23. hopkins@feltg.com

Related training:

Federal Employment Law’s 15 Minutes of Fame

,

By Deborah J. Hopkins, February 10, 2025

Federal employment law is having a moment.

With the flurry of Federal workplace-related Executive Orders and memos issued over the past three weeks, media outlets are scrambling to keep up, and “experts” are jockeying for press and an opportunity to discuss the laws that govern the executive branch.

At FELTG, we’ve been teaching the law since 2001 – we have instructors who have been practicing it further back than that – and we want to caution you that before you rely on something you read in the media, be sure you vet the source.

To be clear, a lot of employment law experts are relaying accurate information during this crucial time. But just as many are not. Below are just a few of the myths we’ve encountered, with clarifications beneath.

MYTH: The ban on DEIA eliminates agency reasonable accommodation offices.

Clarification: Well, it shouldn’t and it better not, because the law requires agencies to provide the reasonable accommodation process to any employee or applicant who needs it. There has been some confusion, we think, because the “A” in DEIA stands for accessibility. OPM issued a memo on February 5 clarifying that agency RA programs and EEO complaint processes are not impacted by EOs 14148, 14151 and 14173.

The memo says, “[A]gencies should retain personnel, offices and procedures required by statute or regulation to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation requests.”

MYTH: Administrative leave is always limited to 10 days per year.

Clarification: The Administrative Leave Act does indeed limit the use of administrative leave to 10 days per year. 5 U.S.C. 6329a. But OPM regulations, which were finalized in December 2024, clarified the 10-day limit applies only to agency investigations:

§ 630.1404 Calendar year limitation.

(a)    General. Under 5 U.S.C. 6329a(b), during any calendar year, an agency may place an employee on administrative leave for no more than 10 workdays. In this context, the term “place” refers to a management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation … The 10-workday annual limit does not apply to administrative leave for other purposes. After an employee has been placed on administrative leave in connection with such an investigation for 10 workdays, the agency may place the employee on investigative leave under subpart O of this part, if necessary (see 5 U.S.C. 6329b(b)(3)(A) and § 630.1504(a)(1))… (bold added)

Because the regulations are so new we don’t have any case law interpreting what “other purposes” might be covered. Historically, though, admin leave has been used for everything from voting to sending someone home after an accident in the workplace. We’ll likely soon learn whether the current large-scale administrative leave orders across some government agencies will meet the “other purposes” identified in the regs.

MYTH: A probationary employee can only be separated from service for performance or conduct reasons.

Clarification: As we’ve both written about and taught, probationary employees can be terminated quite easily (they must be given the reason in writing), and they have very limited appeal rights. 5 U.S.C. 7511(a)(1)(A)(i). Probationers are only afforded the right to appeal a termination to the Merit Systems Protection Board if their removal was based on:

  • Partisan political activity,
  • Marital status, or
  • Pre-appointment reasons.

See 5 C.F.R. 315.804-806; Starkey v. HUD, 2024 MSPB 6 (2024). Probationers also have the right to file a complaint with the Equal Employment Opportunity Commission if they believe they were terminated because of civil rights discrimination, and with the U.S. Office of Special Counsel if they believe they were terminated in violation of a prohibited personnel practice. So working backwards from the rights and corresponding case law, it appears any legitimate business-based reason for a probationary separation would afford a probationer no appeal rights. This is currently being tested as large swatch of probationary employees are being terminated from agencies, and unions are pursuing litigation over the terminations.

Also, I clarified this last week on a LinkedIn discussion: A supervisory probationary period is different from an initial appointment probationary period. If a supervisor happens to be in her initial appointment one-year period and also in her supervisory probationary period, then yes, she can be separated without due process (subject to those exceptions noted above). But the supervisory probationary period is different in that if an agency decides the supervisor is not a good fit in the role during the first year as a supervisor, the agency can return the supervisor to her previous, non-supervisory position or its equivalent, 5 C.F.R. 315.907(a). This does not give the agency a right to remove the supervisor, who has already successfully completed her probationary period, from service without due process.

Plenty more myths are circulating, with new ones almost every day, to stick with FELTG and we’ll help clarify during this very busy time. And if you have questions, please Ask FELTG. hopkins@feltg.com

Upcoming Training on Executive Order Compliance

This article was updated with new information on wide-scale probationer terminations on February 14, 2025.

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.

The State of the Civil Service: 2025 Edition

, ,

By Deborah J. Hopkins, January 15, 2025

Quick facts:

  • MSPB has almost eradicated the backlog of nearly 4,000 cases it inherited in 2022.
  • The EEOC’s priorities have recently been focused on updated anti-harassment guidance and enforcing PWFA regulations.
  • The FLRA is still awaiting a Senate-confirmed General Counsel, a position that hasn’t been permanently filled in nearly 8 years.
  • OSC had its busiest year ever, between cases filed and Hatch Act activity.

Welcome to 2025, FELTG readers. With a new administration arriving in less than a week, we know some significant changes are expected in the coming days. But where are we today?

For the first time in who knows how long, we have ZERO vacancies at the top of the MSPB or FLRA, plus we have a Senate-confirmed Special Counsel and only one vacancy at the commissioner level at EEOC.

Over the past couple of years, we have been fortunate to interview a number of the individuals at the top of these agencies, so please check out the associated links to learn more about them. Now, let’s take a closer look at the major oversight agencies.

Merit Systems Protection Board (MSPB)

It’s almost hard to believe that after over five years of waiting, a Board quorum was returned to us less than three years ago. Since March 2022, when the quorum was restored, Board members have worked tirelessly to clear out the inherited inventory of 3,793 petitions for review that languished while the Senate refused to vote on nominations for half a decade. As of this writing, there are just about 100 cases remaining in the backlog. Talk about progress!

As far as who’s who, the current Chair is Cathy Harris, the Vice Chair is Ray Limon (whose term expires March 1) and the third Member is Henry Kerner (who was sworn in last June). We anticipate President Trump will appoint Kerner as Chair in the coming weeks, and we’ll keep you posted on who is nominated to replace Limon after his term expires. Harris’s term doesn’t expire until 2028 and Kerner’s in 2030, so we anticipate stability to remain in the Board over the coming months unless something unprecedented happens.

The Board usually publishes a few interesting reports each year, but we didn’t see anything new in 2024. I suppose the tradeoff is clearing out the case inventory. Hopefully, we’ll see some noteworthy research in 2025.

Equal Employment Opportunity Commission (EEOC)

The current chair at EEOC is Charlotte Burrows, and the vice chair is Jocelyn Samuels. Andrea Lucas and Kalpana Kotagal are commissioners, and there is one vacancy available for the incoming President to fill. Most likely the titles of chair and vice chair will be shifted under the new administration, but we don’t expect the commissioners to go anywhere. Their terms are five years, and traditionally, they do not turn over with the various administrations.

EEOC’s focus in 2024 included two major topics:

  • Updated Enforcement Guidance on Harassment in the Workplace, the first all-encompassing guidance in 25 years.
  • Implementation of the final regulations on the Pregnant Workers Fairness Act, which became effective in June.

In December, EEOC released Federal workforce statistics from FY 2021. The number of formal EEO complaints filed (12,200) was the lowest in seven years. That said, Federal agencies also hit a seven-year high in the amount of money awarded during the complaint process: $74.5 million.

We’ll see what develops in the EEO world in the coming weeks as we anticipate the incoming administration’s philosophical shift away from the focus on Diversity, Equity, and Inclusion (DEI) in 2025.

Federal Labor Relations Authority (FLRA)

FLRA leadership consists of three political appointees; all three are currently occupied. Susan Tsui Grundmann is the chair, and Anne Wagner and Colleen Kiko are members.

While the top is fully populated, there is still not a confirmed General Counsel. President Biden has nominated multiple people for the role, but the Senate has not confirmed. We anticipate a new nominee in the coming months. The last time this position was officially filled with a non-acting GC was in 2017. As a result, there are at least 270 unfair labor practice (ULP) filings held in abeyance until a nominee is confirmed.

With union rights likely to be challenged in the coming weeks, the FLRA could be very, very busy in 2025.

U.S. Office of Special Counsel (OSC)

Hampton Dellinger was confirmed as the Special Counsel in February, and in his short time at the agency, he has been public about his desire to increase transparency in the agency. Ideas include, but are not limited to:

  • Posting publicly a summary of allegations in matters where the Special Counsel has determined that there is a “substantial likelihood” that the information discloses a violation of a law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, substantial and specific danger to public health and safety, or censorship related to research, analysis, or technical information and has referred the matter to the relevant agency.​
  • Posting publicly a summary of allegations in matters where OSC has issued a report concluding that a PPP has occurred or has advised an agency that OSC likely could establish the elements of a PPP. OSC will post the allegation to its website when the agency does not take corrective action in a timely fashion and the person making the allegation consents.

According to its FY 2024 report, OSC received 6,251 new cases, which is the highest in agency history – and a 45 percent increase over the average number of cases in FYs 2019-2023.

Because 2024 was an election year, the Hatch Act Unit was incredibly busy. OSC resolved 391 Hatch Act cases, a 40 percent increase from the last presidential election cycle. Check out FELTG’s recent interview with Hatch Act Unit Chief Ana Galinda-Marrone about other election-related trends in 2024.

That does it for now. We’ll keep you posted as new events unfold in Washington, DC, and around the country. Happy New Year, FELTG readers! I hope it’s your best one yet.  hopkins@feltg.com

Related training:

Now is the Time: How Do Your Performance Standards Measure Up?

, ,

By Deborah J. Hopkins, December 11, 2024

Quick facts:

  • The end of the year is a good time to review performance standards for clarity.
  • If performance standards are vague, an agency can clarify expectations either before or during the PIP.
  • If the agency writes backward standards, the Board will overturn a performance-based removal based on those standards.

With a new year coming, now is an excellent time for supervisors to look at their employees’ performance standards and review whether they might benefit from clarification. As I always say in my performance classes: “Poorly written performance standards aren’t really a problem if the work is getting done – but they quickly become a problem if an employee’s performance is unacceptable.”

If the work is getting done, many supervisors don’t really concern themselves with how the standards are written until it comes time for annual performance appraisals. And although the regs say that at any time the employee’s performance becomes unacceptable, the agency should address the situation by implementing a PIP (5 CFR § 432.104), poorly written standards too often serve as a roadblock to accountability.

Sometimes, the supervisor decides to hold the employee accountable (hooray!) but unfortunately misses an important step in the process. Consider Zepeda v. NRC, 2024 MSPB 14 (Oct. 20, 2024). The appellant was a special agent for the Nuclear Regulatory Commission’s Office of Investigations, and her supervisor put her on a PIP for three of her critical elements:

  • Planning and preparation for assigned investigations;
  • Conduct of investigations/assists to staff; and
  • Preparation of reports of investigation and assists to staff closure memoranda.

Id. at 2.

At the conclusion of the PIP, the agency removed her for failing all three elements. The MSPB AJ, who presided over the appeal, found the agency’s performance standards were invalid. The AJ reversed the removal, and the Board agreed. Here’s why:

  1. The agency had a 5-level rating system and did not define the “minimal” level of performance, which is considered acceptable performance under the law. Jackson-Francis v. OGE, 103 M.S.P.R. 183, ¶¶ 6-7 (2006). The appellant’s performance plan “only defined fully successful performance for each critical element; it did not define minimally successful performance that would have allowed the appellant to avoid removal…” Zepeda at 5.
  2. The agency did not clarify the employee’s performance standards during the PIP. As the Board noted, “[a]n agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP.” at 6, citing Henderson v. NASA, 116 M.S.P.R. 96 (2011). Had the agency clearly defined what was expected for level 2 performance at this point, the action may well have been sustained. However, this leads us to:
  3. The agency’s attempt to define level 2 performance contained invalid backwards standards. This is a too-common mistake where agencies, in an attempt to clarify expectations, describe the performance expectation as work that doesn’t get done rather than the level of work that’s required.

For example, on one of the appellant’s performance standards, on the subcomponent for the quantity of work completed, the agency informed her that minimally successful performance would be met if she completed “a less than expected quantity,” which according to the Board meant the appellant would be successful “by producing nothing at all.” Zepeda at 7. In other words, backward standards are impossible to fail because of the way they are written. Therefore, a removal for failing such a standard cannot withstand appeal.

OPM has a helpful guide to identifying backwards standards, and includes the following to assist:

To help you determine whether you are writing a backward retention standard, ask:

  • Does the standard express the level of work the supervisor wants to see, or does it describe negative performance? (Example of backward standard: Requires assistance more than 50% of the time.)
  • If the employee did nothing, would he/she meet the standard, as written? (Example of the backward standard: Completes fewer than four products per year.)

The problems … that backward retention standards cause rarely surface until it’s too late. To avoid problems, it is worth taking the time when first developing the retention standards to ensure they are not … backward.

There’s much more in the case we’ll consider in future articles. If this is an area that causes concern, consider bringing FELTG to your agency for a workshop-based approach to writing legally sufficient performance standards. hopkins@feltg.com

Related training:

Religion and LGBTQ+ Status: The Clash of Two Protected Classes

, ,

By Deborah J. Hopkins, November 13, 2024

Quick facts:

  • LGBTQ+ status is protected under the umbrella of workplace sex discrimination.
  • Religion is also a protected category under EEO laws.
  • In a case where an employee raises a conflict between their religious beliefs and agency policy or requirement (such as the mandate to attend training about courtesy to LGBTQ+ individuals), the agency must consider whether exempting the employee would be an undue hardship.

For the past several years, there has been a lot of media attention focused on scenarios where a person requests a religious exemption from performing some aspect of their job because providing service to an LGBTQ+ individual violates their religious beliefs. It’s a topic that members of Congress have recently addressed.

Depending on where you live, state laws may differ, but the topic is (for now, anyway) settled in the Federal government.

Here’s a scenario for you:

Let’s say your agency is hosting a mandatory civil rights training to provide employees with information on how to treat all customers and employees with courtesy and respect. The training includes specific information on how this professionalism applies to LGBTQ+ individuals. The training also explains the anti-discrimination statutes that are applicable to all Federal employees of all categories (including age, race, disability, etc.).

Employee X claims he should be exempt from the LGBTQ+ section of the class because ”this subject matter contradicts my sincerely held religious beliefs that nobody is born gay. These are protected beliefs, expressly protected by Federal law.” This amounts to a request for a religious accommodation in the form of an exemption from attending the LGBTQ+ portion of the training.

How should the agency handle this request for exemption?

  1. Deny the request because believing people aren’t born gay is not a sincerely held religious belief.
  2. Grant the exemption as a religious accommodation because of the employee’s sincerely held belief.
  3. Grant the exemption but require the employee to take a written test on the content of the LGBTQ+ portion of the training.
  4. Deny the request because exempting the employee would be an undue hardship.

If you chose D, you agree with the EEOC in Barrett V. v. USDA/NRCS, EEOC App. No. 2019005478 (Mar. 7, 2024). The training did not “require employees to change their personal beliefs, but simply discusses and reinforces the [Agency’s] conduct rules requiring employees to treat one another professionally and to prevent and avoid discriminating against or harassing other employees or customers.” Id. at 3.

When a complainant alleges an agency failed to provide him with a religious accommodation, he must demonstrate that:

  • He has a bona fide religious belief that conflicts with his employment,
  • He informed the agency of this belief and the conflict, and
  • The agency enforced its requirement against him despite his religious beliefs.

Baum v. SSA, EEOC App. No. 01A05985 (Mar. 21, 2002).

The agency may deny the accommodation request if it shows that granting the accommodation would be an undue hardship.  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977); see also Groff v. DeJoy, 600 U.S. 447 (Jun. 29, 2023) (undue hardship is shown when a burden is substantial in the overall context of an employer’s business).

In Barrett V., the Commission held that the complainant failed to show a conflict between his faith and the mandatory training:

Complainant failed to identify–even generally–a religious belief, observance, or practice that conflicted with the employment requirement that he attend mandatory civil rights training that, in fact, simply discussed and reinforced laws and conduct rules requiring employees not to discriminate against or harass others on numerous protected bases, including sexual orientation, and to treat customers and coworkers professionally …

Complainant does not explain how the training worked or even attempted to modify, criticize, or pressure him to change his religious observance or practice–whether before, during, or after the training.

Barrett V. at 18, 20.

In addition, EEOC’s Compliance Manual on Religious Discrimination specifically recognizes that it poses an undue hardship to provide religious exemptions to mandatory training when “[t]he training does not tell employees to value different sexual orientations but simply discusses and reinforces laws and conduct rules requiring employees not to discriminate against or harass other employees based on sexual orientation and to treat one another professionally.” Section 12-IV(B)(2) (Jan. 15, 2021).

The EEOC held that granting the complainant an exemption from attending training on courtesy, including courtesy to LGBTQ+ customers, would pose an undue hardship because the “training was designed to promote compliance with EEO laws and with the Agency’s standards of conduct with respect to customers and coworkers.” Id. at 26. While there is little question about what may happen to the Biden Administration’s Executive Orders on this topic in early 2025, this does not mean EEO laws or EEO training will go away. In fact, it will be more important than ever for agencies to ensure they are complying with the law when it comes to allegations of workplace discrimination. hopkins@feltg.com

Related training:

The Board Offers Guidance, But Not Much Help, on the New Excessive Absence Standard

,

By Deborah J. Hopkins, November 5, 2024

Quick facts:

  • In excessive absence cases, the MSPB now only considers absences beyond the date the agency warns the employee to return to work.
  • The Board did not instruct agencies how much absence post-warning would meet the “excessive” standard.
  • In a new MSPB case, the Board held that 200 hours of absence post-warning did not satisfy the excessive absence Cook criteria.

Remember earlier this year when the MSPB changed the requirements for excessive absence removals in Williams v. Commerce, 2024 MSPB 8 (Apr. 23, 2024)? If not, then you’ll want to update yourself here and then come back to this article for the latest development on excessive absence removals.

Generally an agency is not allowed to discipline an employee for being on approved leave, but an exception exists if the agency can show:

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

Cook v. Army, 18 M.S.P.R. 610 (1984).

Earlier this year the Board held in Williams that under element 2, an agency may not consider any absences the employee accrued BEFORE the agency warned the employee he would be removed if he did not return to work by a specific date; the agency may only count absences that occur AFTER the warning.

But Williams involved over a thousand hours of absence post-warning, so our biggest unanswered question after reading the case multiple times:

  • Exactly how many hours of absences will the Board determine is “excessive” post-warning?

Over a thousand hours, as in Williams, sure. But what about 800? 500? 200? Williams didn’t give us any indication where the lower end of the threshold would be, except when it alluded to Gartner v. Army, 104 M.S.P.R. 463 (2007), where the agency successfully proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period.

Which brings us to today. An employee was removed for excessive absence after she was absent for 1,400 hours over a one-year period. Butler v. FDIC, DA-0752-20-0060-I-1 (Oct. 22, 2024)(NP). In Butler, where the events occurred in 2017 and 2018, the Board retroactively applied Williams and found the agency failed to prove its excessive absence charge because only 25 days (or 200 hours) of straight absence occurred after the agency warned the appellant she was required to return to work. According to the Board:

Such a relatively short period of absence does not prove an excessive absence charge. Stated another way, 25 days of absence is not sufficient to establish that the appellant’s absence continued beyond a reasonable time, and therefore, the agency has not proven its charge of excessive absence. 

Williams at 4-5.

This is the time in the article I’d like to say, “But wait, there’s more!” Except there isn’t more. The Board left it at that and didn’t indicate ANYTHING about how many hours it would take for the agency to meet the “excessive” standard; it reversed the removal and ordered the agency to reinstate the employee with back pay.

Because the line here is not clear, and because we have mountains of case law that shows an agency can justify an AWOL removal for far fewer than 200 hours, at FELTG we are strongly considering moving away from the excessive absence approach altogether, and instead ordering the employee to return on X date, informing them they will be carried AWOL if they do not return, and effecting the AWOL removal after two weeks, if the employee does not report back.

If you have thoughts on this, or if your agency is taking a different approach, please feel free to share. hopkins@feltg.com

Related training:

·     Feds Gone AWOL: What to Do When Employees Don’t Show Up, Feb. 6

Inappropriate Sexual Conduct Costs CBP $40K in Compensatory Damages

,

By Deborah J. Hopkins, October 29, 2024

Quick facts:

  • A CBP officer intentionally exposed his penis to the complainant.
  • The agency found the complainant was subjected to a hostile work environment based on that and other incidents.
  • Additional legal research shows the agency removed the harasser for his misconduct.

No matter how much awareness we bring to the topic, there are still far too many instances of inappropriate sexual conduct in the workplace. And when the conduct is not addressed promptly, it can cause continuing harm to the victim.

Consider the case involving a Customs and Border Protection (CBP) officer, in Buffalo, NY. Lelah T. DHS/CBP, EEOC Appeal No. 2021001401 (Aug. 16, 2022). The agency issued a FAD finding the complainant was subjected to a hostile work environment based on sex when:

  • On November 30, 2016, a co-worker (CW-1) pulled down his pants to reveal his camouflage boxer shorts to the complainant.
  • On March 5, 2017, co-worker 2 (CW-2) called the complainant’s name so she would turn her head and look at CW-1, who was exposing his genitals to her.
  • In August 2016, CW-1 and co-worker 3 (CW-3) had conversations in the office about pulling out their genitals in the office and having erections during work and training sessions, and CW-1 said he “worked up a chub” and “put it on the desk” for CW-3 to look at.
  • On August 19, 2017, CW-1 told Complainant he was upset that he was investigated by the Office of Inspector General (OIG) regarding her accusations that he was trying to intimidate, threaten, and discourage her from pursuing her complaints after management issued CW-1 a “cease and desist” memorandum to stay away from Complainant, effective May 5, 2017.
  • In or around August 2017, Complainant was forced to remove herself from the Tactical Terrorist Response Team (TTRT) and enter the bargaining unit to bid on a new position due to the harassment by CW-1.

Id. at 1-3.

In her complaint and signed declaration, the complainant said that as a result of the harassment, she experienced “extreme emotional distress and humiliation,” that “she felt humiliated and anxious as a result of the harassment,” and that “she was concerned for her overall health and safety.” Id. at 13.

The complainant requested, among other things, $125,000 in non-pecuniary compensatory damages, but the agency awarded $40,000 and the EEOC concurred with that amount. The award may have been higher, except some of the statements the complainant submitted in support for her $125,000 request were not signed, and the complainant’s personal statement was also not submitted.

If you’re wondering what happened to the harasser, the case doesn’t tell us. Because EEO cases use pseudonyms, we don’t know his identity. However, the decision does mention “an MSPB proceeding related to the removal of Complainant’s harasser” in relation to an attorney fees request. I surmised that CBP must have removed the harasser, and he must have appealed.

So, I did a little research, which led me to a case involving a Buffalo, NY-based GS-12 CBP officer’s removal for “exposing [his] penis in the workplace.” Burbas v. DHS/CBP, NY-0752-18-0222-I-2, p. 1 (June 13, 2024)(NP). I had a suspicion the appellant might be the harasser from Lelah T., but the NP decision was a bit vague on the details, so I went to the Burbas initial decision (Aug. 26, 2019). After reading the facts there, I am 99 percent certain this is the discipline side of Lelah T. (At least, I hope this didn’t happen more than one time in the Buffalo sector – and once was one too many times.)

Despite the appellant’s claim he meant his conduct as a joke, the AJ and the Board both upheld the removal. hopkins@feltg.com

Related training:

Do Douglas Factors Matter Even When Misconduct Involves Licking Child’s Feet?

, ,

By Deborah J. Hopkins, October 15, 2024

Quick facts:

  • An employee pleaded guilty to a fourth-degree sex offense for “unconsented sexual contact” with a minor, and second-degree assault.
  • The ensuing publicity identified him as a NOAA employee, and the agency removed him based on two specifications of Conduct Unbecoming a Federal Employee.
  • The agency did a thorough and effective Douglas factor analysis.

While you’ve doubtless come across dozens, even hundreds, of removal cases involving a Conduct Unbecoming a Federal Employee charge, have you ever read a case where the conduct involved a Federal employee luring a 13-year-old boy into his house, taking him to a “room of pain,” and licking the child’s bare feet and toes? Sadly, there is a first time for everything. Soroka v. Commerce, DC-0752-20-0180-I-1 (Aug. 30, 2024)(NP).

The appellant, a GS-14 physical scientist for the National Oceanic and Atmospheric Administration (NOAA), was the Winter Weather Program Lead in the agency’s Severe, Fire, Public, and Winter Weather Services Branch. Id. at 2. The agency learned about his conduct only after he pleaded guilty to two offenses involving the child (fourth-degree sex offense for “unconsented sexual contact” with a minor, and second-degree assault). Id. He was also placed on the Maryland Sex Offender Registry.

The ensuing publicity identified him as a NOAA meteorologist, and the agency removed him based on two specifications of Conduct Unbecoming a Federal Employee:

  1. On or about and between July 15, 2017, and July 15, 2018, you had unconsented sexual contact with a minor of whom you had temporary care and custody, and responsibility for supervision.
  2. On or about and between July 15, 2017, and July 15, 2018, you assaulted a minor in the second degree.

Id. at 3.

He appealed his removal, claiming lack of nexus, but the AJ affirmed the removal. The Board upheld the AJ, but the final order was light on details, so I visited the initial decision (ID) for more information – and I discovered an absolute master class in Douglas factors preparation and deciding official (DO) testimony. I’ve left out citations and paraphrased some material for ease of reading, but all the below details on Douglas can be found in the ID.

Douglas factor 1: Nature and seriousness of the offense

The appellant’s misconduct was extremely serious. His position required him to demonstrate credibility and integrity. His misconduct violated the public trust and placed the agency’s reputation at risk.

Douglas factor 2: Job level and type

His position as the National Winter Weather Services’ program lead was a highly visible position within the agency. The position required the appellant to perform leadership functions for a key NWS program at a national level, and his role involved significant interactions with both NWS partners and the public.

Douglas factor 3: Past discipline

The appellant had no prior discipline.

Douglas factor 4: Work record performance

The DO considered the appellant’s above-average work record, and his length of service of over 25 years.

Douglas factor 5: Trust and confidence

The DO concluded the egregiousness of the appellant’s misconduct outweighed any mitigating factors. The appellant could no longer satisfactorily perform his duties because he could not publicly represent the agency in light of the notoriety of his misconduct. In addition, the appellant’s misconduct demonstrated a clear lack of judgment, which exacerbated the loss of trust and confidence.

Douglas factor 6: Consistency of discipline with comparator employees

The appellant identified a potential comparator who was also on the sex offender registry, in another state, who was not disciplined. But the proposing and deciding officials in this case were not involved in any disciplinary actions involving the other employee and were not even aware of the potential comparator case until two weeks before the appellant’s hearing – long after the decision to remove was made. In addition, the potential comparator did not hold a leadership role and worked primarily in internal programs, so he was not a proper comparator.

Douglas factor 7: Table of penalties

The penalty was consistent with the agency’s table of penalties.

Douglas factor 8: Notoriety and agency reputation

The appellant’s misconduct became highly notorious when it was widely publicized in local, national, and international media sources, such as Newsweek. In fact, the agency first became aware of the appellant’s criminal charges through media reports, which included the appellant’s photo, name, and his position with NOAA. This notoriety was highly damaging to the appellant’s credibility and to the agency’s reputation. In addition, the appellant’s photo and personal information were listed on the Maryland Sex Offender Registry, which has the serious potential to detract from the mission of NWS and NOAA, if anyone followed up on the story.

Douglas factor 9: Clarity of notice

The DO considered the clarity upon which the appellant was on notice that his misconduct violated any rules and testified that any reasonable human adult would know such misconduct was improper. The decision letter included the statement, “As a citizen and a public servant, you are aware that assault and sexual abuse of a minor is wrong and will not be tolerated. Even absent specific notice from the Agency, you should have known that the misconduct you engaged in was inappropriate; however, you knowingly engaged in those activities. This reinforces the point made above regarding your lack of judgment.”

Douglas factor 10: Potential for rehabilitation
The appellant did not demonstrate the potential for rehabilitation because he lacked accountability and blamed others, by referring to the victim as a troubled child and blaming an overzealous press for publicizing the story.

Douglas factor 11: Mitigating circumstances

No additional mitigating factors were identified besides the appellant’s lack of disciplinary history, 25 years of service, and above-average performance.

Douglas factor 12: Alternative sanctions

The DO testified that he did not take this decision lightly and he did not take any pleasure in this process. However, given the egregiousness of the appellant’s behavior and the lack of alternate, effective sanctions to appropriately address the misconduct, he had no alternative but to remove the appellant from his position.

This could be a model lesson for DOs for decades to come. I have to give kudos to Anna Bodi, the attorney of record on the ID, for so thoroughly preparing the DO. Even though the misconduct was egregious, it’s risky for an agency to not consider all the mitigating factors (if you don’t believe me, see this recent article about how an AJ reversed the removal of a law enforcement officer who bit his wife during a fight). Hopkins@feltg.com

Related training:

Indefinite Suspensions: When an Agency Suspends Access to Classified Information

,

By Deborah J. Hopkins, September 24, 2024

We have been discussing indefinite suspensions in a series of articles over the past few months. As a reminder, an agency may indefinitely suspend an employee in three instances:

1. The agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed;

2. The agency has legitimate concerns an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate; and

3. The agency has suspended the employee’s access to classified information and the employee is required to have access in order to do his job.

Sanchez v. DOE, 117 M.S.P.R. 155, ¶ 10 (2011).

If you missed them, check out the previous articles on indefinite suspensions for criminal conduct and medical conditions.

Today, we’ll focus on the third instance, indefinite suspensions when an employee’s security clearance has been suspended.

What types of things might cause an employee to lose a security clearance?

Despite common misconceptions that anyone who loses a clearance must be attempting to sell national security secrets to a foreign adversary, a number of factors (known as the adjudicative guidelines) can impact an employee’s clearance – and not all would constitute misconduct. The 13 guidelines below identify the broad areas that impact an employee’s potential for a clearance, and include detailed information about why each of these areas is a potential concern, which conditions could raise a concern and be disqualifying, and which conditions could mitigate security concerns.

  • GUIDELINE A: Allegiance to the United States
  • GUIDELINE B: Foreign Influence
  • GUIDELINE C: Foreign Preference
  • GUIDELINE D: Sexual Behavior
  • GUIDELINE E: Personal Conduct
  • GUIDELINE F: Financial Considerations
  • GUIDELINE G: Alcohol Consumption
  • GUIDELINE H: Drug Involvement and Substance Misuse
  • GUIDELINE I: Psychological Conditions
  • GUIDELINE J: Criminal Conduct
  • GUIDELINE K: Handling Protected Information
  • GUIDELINE L: Outside Activities
  • GUIDELINE M: Use of Information Technology

What proof does an agency need to justify an indefinite suspension when an employee’s access to classified information has been suspended?

As we have discussed previously, the four elements the Board looks for when it reviews indefinite suspensions are:

(1) The agency imposed the indefinite suspension for an authorized reason;

(2) The suspension will have an ascertainable end (an event that will end the suspension);

(3) The indefinite suspension has a nexus to the efficiency of the service; and

(4) The indefinite suspension is reasonable under the circumstances.

Hernandez v. Navy, 120 M.S.P.R. 14, ¶ 6 (2013). The authorized reason here is the suspension of a security clearance pending a determination about revocation, and the lead case is Jones v. Navy, 48 M.S.P.R. 680 (1991).

How are indefinite suspensions related to security clearances different than the other types of indefinite suspensions?

When it comes to security clearance suspensions and revocations, the Board does not have the authority to review the underlying merits of an agency’s decision to suspend or revoke an employee’s access to classified information. Navy v. Egan, 484 U.S. 518, 530-31 (1998). The grant of a security clearance to a particular employee is a sensitive matter and the denial of access to classified information is entrusted to the sole discretion of the agency; the Board also lacks the authority to review any argument related to the nexus between the employee’s alleged conduct and the suspension of their security access. Id. at 536.

Unlike most other MSPB appeals, the Board is also precluded from reviewing allegations of prohibited discrimination and reprisal when such affirmative defenses relate to the revocation of a security clearance. Pangarova v. Army, 42 M.S.P.R. 319, 322 (1989).

What can trigger the end of the indefinite suspension?

There are three options:

1. After the investigation, the agency does not revoke the employee’s security clearance and the suspension of access to classified information is lifted. If this happens, the employee should be promptly returned to duty.

2. After the investigation, the agency revokes the employee’s security clearance and informs the employee in writing. In this case, the employee may accept the result and resign or retire, which could end in the indefinite suspension. If the employee wishes to appeal the revocation of their clearance, typically during this appeal, the employee would remain on indefinite suspension pending the outcome of the appeal.

3. If the employee does not appeal the revocation but also does not resign or retire, or if after appealing the revocation, the revocation stands, the employee should be given a notice of proposed removal for failing to maintain a security clearance. Jones v. Navy, 48 M.S.P.R. 680, 683 (1991).

How should an agency handle removing the employee whose clearance has been revoked?

The employee obviously cannot stay in the position if a clearance is required. While reassignment to a position that does not require a clearance may be an option (depending on the underlying reason for the revocation), below are the elements required to justify removing an employee for failing to maintain a security clearance:

  1. The agency determined that the position required a security clearance,
  2. The agency revoked or denied the clearance,
  3. The agency provided the employee adverse action rights, and
  4. The deciding official considered reassignment to a non-sensitive position.

Egan, 484 US at 521-522. On element 4, unless the agency has a statute or regulation that creates a substantive right to reassignment, the Board may not require the agency to reassign the appellant to a position that does not require a security clearance or access to classified information. See Ryan v. DHS, 793 F.3d 1368 (Fed. Cir. 2015).

One final note, removing an employee for failing to maintain a security clearance is a nondisciplinary action. As such, the Douglas factors are not required. Munoz v. DHS, 121 M.S.P.R. 483, ¶ 15 (2014).

hopkins@feltg.com

Related training:

Law Enforcement Officer Bites His Wife During an ‘Altercation’

, ,

By Deborah J. Hopkins, September 10, 2024

Quick facts:

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

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

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

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

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

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

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

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

 

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

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

Id.

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

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

Related training: