Handling Social Media Threats from an Off-Duty Employee

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By Deborah Hopkins, June 12, 2018

Here’s an email we received after a recent training program on managing employee behavioral health issues in the federal workplace:

Dear FELTG, thank you for an excellent presentation today on behavioral health issues. I had a question about how we work with an employee who is delusional, in danger of being harmed and not in the workplace at present. How do we handle calls/texts on our personal cell phones and social media (such as Facebook) from such an employee?  What is our responsibility as an organization with this situation?

And here’s the response to the hypothetical scenario above:

Dear FELTG Attendee,

Thanks for the email. Regarding the “legal” side of this hypothetical case: if the person is a current employee and the texting/messaging/calling is causing a disruption in the workplace (there’s your nexus), you can give a direct order to the employee to stop contacting co-workers on their personal phones and social media accounts. Then, if the behavior continues, you can issue discipline for the violation. As far as an appropriate penalty, that’s directly related to the level of disruption the texting/calling causes. (Unless you’re in the VA, in which case you can fire the employee and not worry about a judge mitigating the penalty to something less than removal. I’m not necessarily suggesting you do that – but it is the new law for the VA.)

If you want to be extra careful, when you give the employee the written directive to stop contacting people after hours, you’ll include the gag order language below – if you don’t want to give the Office of Special Counsel any reasons to get excited.

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

Discipline early, before it gets any further out of hand. So, there’s the legal side. On the clinical side, here are some thoughts on dealing with someone who may have some behavioral health issues:

  1. Be careful about what you say to the employee so you don’t set him off, and if feasible, direct the employee towards professional help or EAP. Also, save the conversations/texts that are being sent, should you need them as evidence later on.
  2. If things escalate and the person does not listen to your orders to stop texting/calling/messaging, you can contact your local behavioral health crisis hotline and provide them with all the information they have so a mental health professional can intervene.
  3. Also, if the employee is making violent threats towards others you can call the local police and/or mental health crisis line. If you feel the employee is in immediate danger or is reporting thoughts to kill himself, then call 911 and the crisis line as they will work collaboratively.

Mental and behavioral health issues are no joke, so whatever you do, don’t ignore them.

If you want more, come to our upcoming class Handling Federal Workplace Challenges: Dealing with Behavioral Health Issues, Threats of Violence, and Coworker Conflicts July 17-19 in Washington, DC.

Hopkins@FELTG.com

The Two Sides of EEO Reprisal Protections: Participation and Opposition

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By Deborah Hopkins, June 12, 2018

Reprisal is a word that strikes fear in the hearts of supervisors everywhere. Indeed, we’ve seen a few cases where seemingly-minor behaviors were found to be EEO reprisal. For the purposes of this article, we’ll define reprisal as adverse treatment of an individual who engages in protected activity. Adverse treatment is much broader than adverse actions; it applies to any undesirable treatment, including things that would not constitute personal injury under EEO antidiscrimination statutes.

A lot of federal supervisors and advisers know that the law protects people for participating in the EEO process in any way, but many miss the other side of protection: the opposition side of EEO activity. Let’s look at both. But first, as we do here at FELTG, let’s look at the law.

It shall be an unlawful employment practice for an employer to discriminate against any employees or applicants . . . because he has opposed any practice made unlawful by this subchapter, or because he had made a charge, testified, assisted or participated in an investigation, proceeding or hearing . . .

 42 USC § 2000e-3 (emphasis added).

Participation Clause

The following things are considered participation in protected EEO activity, and employees who engage in these activities are protected from reprisal.

  • Contacting an EEO counselor
  • Filing a formal EEO complaint
  • Testifying at an investigation or hearing
  • Providing documents to a complainant
  • Requesting a reasonable accommodation

There probably aren’t any surprises on that list. However, the participation clause of the law goes much further, as we see in the case law. Read on.

  • Filing a frivolous EEO complaint is participation, as is contacting an EEO counselor with no intent to file a complaint. Hashimoto v. Dalton, 118 F.3d 671 (9th 1997), cited in EEOC Compliance Manual §8-11(C)(2).
  • A witness doesn’t need to actually testify in order to be protected. Being named as a potential witness is participation for the purposes of reprisal protection. Green v. Navy, EEOC Appeal No. 01964701 (1997).
  • Representing a complainant is participation, and action taken against a representative aggrieves the complainant and may be considered reprisal. Larson v. Secretary of Navy, EEOC Appeal No. 01983075 (1999).
  • Even having a close association with individuals who file complaints is a protected activity. The seminal case on this involved an engaged couple. The company fired the complainant’s fiancé in reprisal, and the Supreme Court said, “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” We don’t know the extent of association, though; the Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.” Best practice: don’t push it. Thompson v. Northern American Stainless, LP, 131 S. Ct. (2011).

There is a limit to the participation clause, though: an employee can’t go storming off workroom floor in search of counselor in defiance of supervisor’s order, and if he does, disciplining that employee is not reprisal for protected activity. Butler v. Postmaster General, EEOC Appeal No. 01872877 (1988).

Having fun yet?

Opposition Clause

The EEOC Compliance Manual, 8–II(B), tells us that an individual is protected from reprisal if that individual explicitly or implicitly communicates to her employer a belief that an activity constitutes a form of employment discrimination under the statutes enforced by EEOC. This opposition must strike a balance between a supervisor’s need for a stable and productive workforce, the rights of individuals to oppose discrimination, and the public’s interest in enforcement of EEO laws.

Frivolous opposition is not covered, though. The Opposition Clause has three requirements, and an employee must meet at least one. An employee sets forth a proper claim if:

  1. A challenged employment practice violates Title VII;
  2. She possessed a good faith, reasonable belief that it did; or
  3. She possessed a subjective, good faith belief that Title VII was violated by the practice.

Mattern v. Postmaster General, EEOC Appeal No. 01850054 (1986).

So, a comment such as an employee’s vague assertion, “All these agency managers are a bunch of white supremacists” is likely not enough to trigger the protection of the opposition clause.

But, examples of covered opposition include specific complaints about employment practices to:

  • Managers or supervisors
  • Union officials
  • Coworkers
  • Reporters
  • Congresspersons

So, hopefully now you know more about reprisal. For more on this topic, join us for EEOC Law Week offered next September 17-21 in Washington, DC. Hopkins@FELTG.com

Final Agency WHAT?

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By Deborah Hopkins, May 16, 2018

Remember in grade school, learning about homonyms? In case you don’t remember, homonyms are words which sound alike or are spelled alike, but have different meanings. Think to, too, and two; or they’re, their and there. It’s not always a fatal error to use the wrong word, but it can make you look pretty silly.

Lots of terms that sound alike, but have different meanings, get used in our federal employment law world – and while people may be tempted to use these terms interchangeably, sometimes it’s a mistake to do so. Today, let’s clear up any potential confusion over these common EEO terms:

  • Final Agency Decision
  • Final Agency Order
  • Final Agency Determination
  • Final Agency Action

First up is the Final Agency Decision (FAD), which refers to a written decision on a complaint of discrimination that is made by the agency’s EEO Office, without a hearing before an Administrative Judge. The agency will issue findings based on the claims raised, and if discrimination is found, will issue a remedy. This may include agency decisions to dismiss claims, or agency decisions on the merits. A FAD is appealable, by the complainant, to the EEOC. Agencies are not permitted to appeal their own FADs (though some would like to!).

If complainant requests a FAD, fails to request a hearing, or files an untimely hearing request, the agency must issue Final Agency Decision within 60 days. 29 CFR § 1614.110(b).

On to the rest. EEOC Management Directive 110 clarifies these terms for us:

A Final Agency Order refers to a decision by an agency to implement or not implement an Administrative Judge’s decision, which is appealable to the Commission. That’s right, an agency can choose not to implement all – or any part – of an AJ’s decision if it disagrees with the finding, the amount of damages, or any other remedy therein. If the agency’s final order does not fully implement the AJ’s decision, the agency must simultaneously appeal to the Commission with its reasons explained.

A Final Agency Determination refers to an agency’s determination about whether there was a breach of a settlement agreement that is appealable to the Commission. For example, the agency may make a determination the complainant breached the settlement if, as part of the settlement the employee agreed to withdraw all pending EEO Complaints but then did not do so.

A Final Agency Action refers to an agency’s last and, unsurprisingly, final action on a complaint of employment discrimination. The final agency action may be in any of several forms:

  • a final agency decision,
  • a final agency order implementing an Administrative Judge’s decision, or
  • a final determination on a breach of settlement agreement claim.

Hope this helps curb some of the confusion around these similar, but non-interchangeable terms. Hopkins@FELTG.com

Bullied by the Union – What Can You Do?

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By Deborah Hopkins, May 16, 2018

Questions, we get wonderful questions from our wonderful class participants. This one combines the very contemporary issue of workplace bullying with the old-as-the-hills concept of union official robust debate:

Dear FELTG,

Where can I find information about addressing union reps’ rude, unprofessional, and hostile behavior in emails, in-person, and on the phone when performing day-to-day representation duties? I am aware of the robust debate exception to misconduct, but this behavior is not during negotiations, creates a hostile work environment and any non-union employee would be disciplined.  As an employee, I should not have to tolerate this, and it interferes with my work.  Agency LR staff says the union has the right to act the way it does.  I want the union to show me respect like I show them. I want their behavior to stop and the agency to stop allowing it. Please advise.

Thank you, Bullied by Union

Here’s the FELTG response.

Dear Bullied,

You may not like the FELTG answer, but based on the hypothetical you’ve described, your LR staff is correct. Robust debate is the term we use to describe the rough speech and raised voices that union representatives are allowed to exhibit when performing representational duties – not just during negotiations. This “uninhibited, robust, and wide-open debate,” is protected activity and may include profanity and shouting, according to the U.S. Supreme Court. National Association of Letter Carriers v. Austin, 418 U.S. 264 (1974).

Congress intended to permit union-related debate, even if it rose to the level of “unrestrained” or “uncivil.” Language used during union-related discussions may be “intemperate, abusive and insulting.” Old Dominion Branch, NALC v. Austin, 418 U.S. 264 (1974).

To help clarify this, here are a few examples of protected activity:

  • When the supervisor refused to make an overtime decision, the union president said, “Fuck you. I don’t give a fuck.” The supervisor had the employee removed from the workplace. FLRA held that the supervisor committed a ULP. FAA v. NATCC, 64 FLRA 419 (2010)
  • Calling management a “cheap son-of-a-bitch,” Groves Truck & Trailer, 281 NLRB 1194 (1986)
  • The statement, “Management is a bunch of assholes,” UPS, 241 NLRB 389 (1979)
  • Referring to an employee as an “Egotistical fucker and a fucking liar,” Union Carbide, 331 NLRB 356 (2000)

Pretty robust, wouldn’t you say?

There are some limits, though. A union rep may be disciplined for “robust debate,” but only in two circumstances:

  • If in doing so the union representative engages in flagrant misconduct, or
  • The behavior exceeds the bounds of protected activity.

5 USC 7102.

Here are a couple of examples of activity that is not protected and that is cause for discipline:

  1. A union officer interrupted an office birthday celebration and called the event a “blatant and ridiculous display of management’s power.”
    • She later complained about the dress code, called a district manager “ridiculous,” and shouted when talking about her supervisor.
    • The agency suspended her for two days for inappropriate, disrespectful, and disruptive behavior.
    • This was not robust debate because she was not acting in her union capacity.

AFGE, Local 1164 and SSA, 110 FLRR-1 128 (2010).

  1. A union steward was suspended for two incidents of improper behavior:
    • He spoke forcefully to an HR specialist with balled fists and referred to violence against her, making her feel “intimidated and threatened”
    • He called a supervisor “Uncle Tom” after the supervisor questioned his whereabouts.

He was not acting in his official capacity – and even if he were, robust debate does not include protection for racial slurs.

AFGE, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Ga., 109 FLRR-1 79 (2009).

Factors to consider in determining whether language exceeds the bounds of protected status:

  • Does the union have a legitimate concern?
  • Was the workplace disrupted?
  • Who provoked the incident, supervisor or union rep?
  • Was the outburst spontaneous?
  • How extensive (and loud) was the profanity?
  • Who else overheard the exchange?

Defense Mapping Agency, 85 FLRR 1-1018 (1985).

There’s a different standard for acceptable conduct among employees and union reps engaging in union activity. The bottom line is, if the rude and disrespectful behavior occurs during representational duties, unless it’s racist or sexist, it’s probably protected and you can’t stop it from occurring. It’s unfortunate you’re dealing with such a tumultuous situation, but legally there is no recourse.

Good luck and keep your head down. Hopkins@FELTG.com

A Hidden-in-Plain-Sight Management Tool: Reassignment

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By Deborah Hopkins, April 18, 2018

Reassignment is a management tool that often goes under-utilized in the federal civil service. Some people think it only applies to reasonable accommodation cases; others believe that it’s a way to punish bad employees. Bill and I had quite a lively discussion during MSPB Law Week last month (you can join us for the next round, in Denver June 4-8), so I thought I’d use this newsletter as a way to share some questions and answers that came up in class.

Question: What exactly is reassignment?

Answer: Reassignment is a permanent transfer of an employee to another job in the agency, anywhere in the world, to a job at the same grade level.  If you like fancy legal words, here’s the language about reassignment out of 5 CFR 210.102(b)(12): “A change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion.” This may include changes in pay based on locality, and it may include a different job series.

Question: When can a supervisor unilaterally and legally reassign an employee?

Answer: Basically, whenever she wants to – if she has a reason to.

Federal supervisors have authority under 5 USC 7106 to run the government and determine the day-to-day operations of the federal agencies in which they work. This includes hiring people, assigning work, directing employees how and where to work, and reassigning employees. 5 CFR 335.102.

If a supervisor has a legitimate, business-based reason for reassignment, then the supervisor can order the employee, with appropriate notice, to another job in the agency, anywhere in the world. Note: When an agency reassigns an employee outside her commuting area, that employee will generally get reimbursed for moving expenses.

One of the very first cases after the MSPB was founded tells us that the only limitation on a supervisor’s decision to reassign is that the reason is “bona fide and based upon legitimate management considerations in the interest of the service.” Ketterer v. USDA, 2 MSPB 459 (1980). Even better, once it is established that the reassignment was a proper business decision, the MSPB will not review the underlying reasons why management exercised its discretion in directing the reassignment. Id.

Reassignment is not limited to use only after an employee fails a PIP. It can be directed at any time, for any bona fide reason.

Question: So, a supervisor can reassign a really bad employee, or a really good employee?

Answer: You betcha. You can reassign your best employee to another office because you need the best employee you’ve got in that position, or you can reassign your worst employee to another job because she isn’t cutting it in her current place and you think she may do better elsewhere.

Either way, you have a bona fide reason. Pretty cool, huh?

Question: Is reassignment an entitlement?

Answer: No, unless your union contract says so (this is rare), or unless the reassignment is being used as a disability accommodation.

Question: What if the employee doesn’t want to be reassigned?

Answer: Too bad. He has to go, if you tell him to. In fact, removal is warranted for an employee who refuses to accept a directed reassignment. Foundational MSPB case law backs up the stance that removal is not “unreasonably harsh” for a refusal to go where he is ordered. Nalbandian v. DOI, 25 MSPR 691 (1985).

Here’s a bonus, too: to justify a removal, you don’t have to do Douglas factors if you charge Failure to Accept a Directed Reassignment. Instead, you just need to apply the two-prong test from Ketterer, above: (1) Show your bona fide reason for the management-directed reassignment, and (2) Show that removal will promote the efficiency of the service. Your burden in this disciplinary action is a preponderance of the evidence (unless you’re in the VA, in which case it’s a lower burden of substantial evidence).

Question: Can union contracts limit reassignment authority?

Answer: A collective bargaining agreement cannot prohibit management-directed reassignment, but it may dictate how the reassignment is implemented; for example, it may require the agency give the employee 120 days’ notice.

Question: Can an employee challenge a reassignment?

Answer: Yes, he can. Here are the various routes to challenge a management-directed reassignment:

  • Administrative grievance procedure
  • Negotiated grievance procedure, if he’s in the union
  • EEO complaint, if he thinks the reassignment was motivated by his protected class
  • Office of Special Counsel, if he thinks the reassignment was motivated by the fact that he’s a whistleblower
    • MSPB Individual Right of Action appeal, if OSC declines to investigate

Question: What about reassignment as reasonable accommodation?

Answer: Due to space restrictions, let’s tackle that in another article. See elsewhere in this newsletter for the article Reassignment as the Accommodation of Last Resort. Hopkins@FELTG.com

Reassignment as the Accommodation of Last Resort

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By Deborah Hopkins, April 18, 2018

Elsewhere in this newsletter, I discussed some of the questions that come up about management-directed reassignment for business-related reasons. We also often get questions about reassignment as reasonable accommodation (RA) for disabilities, so let’s tackle that topic here.

Question: Is reassignment an entitlement?

Answer: Yes, if all other accommodation options have been exhausted. Reassignment is designated as a type of reasonable accommodation under the Americans with Disabilities Act. Under 29 CFR 1630.2, reassignment is a legal obligation if the agency cannot make minor job modifications or otherwise find an accommodation that will allow the employee with a disability to perform the essential functions of her position without causing an undue hardship on agency operations. Reassignment is referred to as the accommodation of last resort, a final opportunity for the individual to retain employment.

Question: What counts as reassignment for RA purposes?

Answer: Reassignment is a non-competitive, permanent transfer of the employee to a vacant, funded job at the same grade level in the agency. The individual must be qualified for that position, both in terms of “on paper” (education, work experience, etc.) and as a practical matter (able to perform the essential functions of the job with or without accommodation). 29 CFR 1630, Appendix. There is no obligation that the agency search for a higher-graded position for reassignment, see Foley v. Transportation, EEOC No. 0120090235 (February 6, 2009), or that the agency should create a position for the employee, see Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997).

Question: Does the employee get to choose which position he prefers?

Answer: If there are multiple reassignment positions for which the employee is qualified, the agency should defer to the employee’s choice of position. We know that the agency gets to choose the accommodation, as long as it’s effective. See Birdie C. v. VA, EEOC No. 0120150115 (February 28, 2017). We know from the case law that if an employee identifies a vacant reassignment position, the agency is required to consider that, see Bowers v. DSS, EEOC No. 0720070012 (March 22, 2010). And when it comes down to two or more vacant positions to which the employee can be reassigned, I just don’t think an agency should want to pick a fight with the EEOC about which job the employee gets.

Question: What if there’s no position available at the employee’s grade?

Answer: The 29 CFR 1630 Appendix addresses this by stating the agency “may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

Question: How many times does the agency have to look for a reassignment position?

Answer: Once is enough, if the search is thorough and reasonable. The key is that you have to be “reasonable.” One good-faith job search should be enough. If the agency has knowledge that a position will soon become vacant, though, the agency should reassign the individual once the job is open. 29 CFR 1614, Appendix. Also, if the employee is aware of a position to which she can be reassigned, and she is qualified, her proposal should be considered.

Question: What if the employee refuses to accept a reassignment?

Answer: If the employee refuses to accept a reassignment, and no other reassignments are available, the employee has ended the agency’s obligation in the RA process and may be removed for medical inability to perform or a similar non-disciplinary charge. See Clemens v. Army, EEOC No. 0320070044 (March 29, 2007).

Question: What if there are no reassignment positions available anywhere in the agency?

Answer: If no positions are available for which the employee is qualified, then the agency is free to remove the employee. See Acosta v. VA, EEOC No. 0320100028 (July 20, 2010).

Hope this answers some questions you may not have even known you had. Hopkins@FELTG.com

Animal Kingdom Throwdown: Service Animals vs. Emotional Support Animals

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By Deborah Hopkins, originally published March 14, 2018; updated October 10, 2023

Do you remember the story where an emotional support dog bit a little girl in the face on a Southwest Airlines flight a few years back? Or, how a Spirit Airlines customer flushed her emotional support dwarf hamster down an airport toilet after being told she was not allowed to fly with the rodent? (FWIW, the hamster-bearing passenger claimed a Spirit Airlines employee told her to flush the hamster, but Spirit Airlines has denied this accusation.)

If you didn’t catch those stories, you probably at least saw the headline in 2018 when United Airlines denied boarding to a woman’s emotional support peacock at Newark’s Liberty Airport. United’s statement to the media explained that the peacock “did not meet guidelines for a number of reasons, including its weight and size,” a fact which the would-be passenger had been told three separate times before she got to the airport. Should you ever need a bit of trivia for a cocktail party or a game show, in order to accommodate emotional support animals, the airline requires medical documentation at least 48 hours in advance of the flight, at which time they evaluate unusual animals “on a case by case basis.” While federal guidelines require airlines to permit passengers with disabilities to board with trained service animals or emotional-support animals, airlines may exclude from flights animals that are too large or heavy to accommodate on board, or animals that could cause a significant disruption of service during the flight.

No doubt about it, emotional support animals are becoming more popular in this country, but they are NOT the same as service animals. According to the ADA National Network, a service animal is any dog (or in certain cases, a trained miniature horse) “that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”

Let’s quickly set out some of the differences between service animals and emotional support animals:

Service Animals

Emotional Support Animals
  • Limited under the ADA to dogs (and in some cases, miniature horses)
  • Formally trained to assist people with disabilities
  • Do NOT bite or misbehave
  • May be certified by licensed medical providers
  • Perform physical tasks for disabled individuals with vision, hearing, mobility, and other impairments
  • Tasks may include pulling or pushing a wheelchair, retrieving dropped items, reminding a person to take medication, pressing an elevator button, alerting at the potential onset of seizures, and alerting at the arrival of visitors.
  • Also known as comfort or therapy animals
  • Can be any animal, really; we’ve seen various types of birds and fowl, snakes, monkeys, ponies, rodents, cats, even spiders
  • Do not undergo formal service animal training
  • May bite or misbehave
  • Are not certified by medical providers
  • Provide companionship
  • Help owners by providing emotional support for conditions such as depression, anxiety, PTSD, or mood disorders
  • Assist in relieving stress

 

There is no federal law that requires public organizations or businesses to accommodate emotional support pets, but sometimes people try to take advantage of the service animal stigma by bringing pets into public places and places of employment and hoping people are too afraid to ask if the animal is a trained service animal. It has gotten so bad, in fact, that some state and local laws have made it a crime to try to pass off an emotional support dog or pet as a legally-protected, disability-related service animal.

This topic of emotional support animals, while making the news this year, is not new. In a decision from 2006, the EEOC agreed with the Navy after the Navy denied an employee the use of an emotional support dog in the workplace, because there was no connection between the dog’s presence and the employee’s disability. While the employee was substantially limited in the major life activity of interacting with others, and the dog helped curb her anxiety and stress when she dealt with crowds and strangers, the employee was unable to show that she had to interact with crowds or strangers at work because her job consisted mainly of data-entry tasks. Struthers v. Navy, EEOC No. 07A40043 (June 29, 2006).

In another case from several years ago, an agency allowed an employee’s emotional support bird to stay at the office, as long as the bird was caged and the cage was kept clean. The employee requested to give the bird free range to roam outside the cage because he thought the bird would be unhappy cooped up, but the agency properly denied this request. Mermen v. USPS, EEOC No. 01A13112 (September 25, 2002).

Though there are not a whole lot of legal cases on this topic, we have seen an increasing number of federal employees attempting to bring emotional support animals to the workplace. What does this all mean for you? Here’s what you need to know: the EEOC takes that stance that an emotional support animal may be a required reasonable accommodation for a qualified individual with a disability, even if it is not a trained service dog.  So, whether the animal is a trained service animal or an emotional support animal, your agency has a duty to engage in the interactive process to determine if allowing the animal in the workplace would permit the employee to perform the essential functions of her job without causing an undue hardship.

That’s right: even though public places like restaurants, bars, movie theaters, supermarkets, and hospitals are not legally required to provide access to their customers’ emotional support animals, federal agencies actually do have an obligation to consider options for applicants and employees who request emotional support animals or service animals in the workplace.

Hope this helps clear up some of the questions you might have. Hopkins@FELTG.com

The “Reasonable” Aspect of Reasonable Accommodation: What Does Reasonable Really Mean?

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By Deborah Hopkins, March 14, 2018

There’s yet another recent EEO decision that makes me ask the question, “When it comes to providing reasonable accommodation to an individual with a disability, how far does an agency need to go?”

And the answer, based on this particular case: pretty darn far.

Here’s what happened. The complainant, a management and program analyst for the FBI, had exhibited some attendance issues and so the FBI issued a notice of proposed removal. In response to the notice, the employee disclosed that she suffered from major depressive disorder and anxiety disorder, and those disabilities were the cause of her attendance issues. She asked the FBI for an accommodation that would allow her a flexible amount of time (the language in the case is “daily variable schedule”) to complete her scheduled 80 hours of work per pay period. She even provided medical documentation that said she was “chronically sleep deprived” and a flexible schedule would provide her with a medical benefit.

The FBI supervisor, probably trying to be nice (because there is no legal requirement to cancel proposed discipline after the disclosure of a disability), held the removal in abeyance for 90 days and granted the complainant a “gliding schedule” that would allow her to report to work any time between 8:00 and 9:30 a.m. Despite this accommodation, the complainant was still late for work 21 times during the 90-day period. According to the agency, the complainant blamed several of her late arrivals on child care issues.

So, after the 90 days elapsed, the agency removed the complainant for AWOL and she filed a reasonable accommodation claim and requested a Final Agency Decision. The FAD found that Complainant was not denied a reasonable accommodation, and so she filed an appeal to the Office of Federal Operations.

The EEOC found that the FBI did not grant a reasonable accommodation and remanded the case (5 years later!), citing a few reasons:

  • The complainant contacted her supervisor on 18 of the days she was going to be late, and the agency did not consider granting the complainant leave as accommodation for her tardiness in those instances, instead marking her AWOL.
  • The child care issues were related to the underlying disability.
  • A maximum flexible schedule would have been an effective reasonable accommodation, and the agency did not demonstrate why the complainant needed to arrive to work by 9:30 a.m.
  • The agency did not demonstrate that granting a maximum flexible “gliding” schedule would be an undue hardship.

When I read the case, I don’t see anywhere that the employee requested a “maximum gliding schedule” for the agency to consider. She asked for a “daily variable schedule” which it appears the agency offered her, by allowing for a 90-minute window in which to arrive. But what do I know?

Yep. The EEOC said that the complainant’s oversleeping was a result of her disability and the underlying cause of her attendance issues, so therefore she was not AWOL when she didn’t get to work on time and didn’t call in, and the agency should not have expected her to arrive by 9:30 each day. Davina W. v. FBI, EEOC Appeal No. 0120152757 (December 8, 2017). [Editor’s note: The supervisor might have been able to defend his actions in this claim if he had kept notes of the harm that occurred each time the employee was late. That’s something we’ve been teaching for nearly 20 years. Contemporaneously document your reasons for doing something adverse to an employee, especially if it has the potential to show up as an issue in an appeal/complaint.]

I guess that’s what you get for being a nice supervisor and holding a removal in abeyance, huh? Hopkins@FELTG.com

Bug Bites: How Do You Handle an Employee Who Brings Bed Bugs in to the Office?

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By Deborah Hopkins, February 14, 2018

A few days ago, I got an interesting hypothetical question from a long-time FELTG reader, and it was such a good one I thought I’d share it with the rest of you. It’s something I hope is always hypothetical and you never have to deal with in real life. Here we go:

Hi FELTG,

I have attended many of your trainings and your instructors have even been out to my agency to train our lawyers and HR personnel.  I have a hypothetical strange case that I was hoping I could bounce off of you all.

Hypothetically, what should an agency do if it has an employee who is bringing bed bugs into the office? Let’s say the agency has already paid for an exterminator once and the exterminator confirmed that this employee’s office was the source of the infestation.  Let’s also say that the employee’s supervisor has talked with the employee to notify her of the problem (if she wasn’t already aware), and she told management that she would address it.

Now let’s say it’s a few weeks later and there are still bed bugs in the office, and it’s so bad that other employees are getting bit. Because coworkers getting bit by the bedbugs, this is hypothetically creating a massive morale issue in the office. What do you think a hypothetical agency should do in a case like this? Here are some thoughts:

  1. Do I give him an order and then discipline him if he doesn’t follow that order?  Is my order “Do not bring bed bugs into the office”?
  2. Do I indefinitely suspend him until such time as he can prove to the agency that he has addressed the problem at his home?
  3. Do I put him out on enforced leave (I don’t like this option)?
  4. Do I allow him to come to work but separate him from everyone else and force him to bring a change of clothes each day that is in a sealed plastic bag?

I’m assuming that someone must have dealt with something like this before.  Do you have any thoughts?

And here’s the FELTG response:

Dear well-thought-out FELTG reader,

What an interesting hypothetical you’ve presented to us. While this person’s behavior clearly involves employee safety and health, it’s also misconduct – and as you know from being a long-time FELTG reader, charging misconduct is fast, easy, and free. You give her an order, thereby making it her problem to resolve, and “Do not bring bed bugs into the office” is a clear, understandable order. Of course, you’ll document this conversation with her.

If you’re not going to fire her when she violates the order (if you determine the misconduct does not rise to the level of removable misconduct under Douglas) you can even do an indefinite suspension until she 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), 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, unsanitary, conduct in the workplace.

No need to do enforced leave, and (not legal advice, just personal advice) I wouldn’t do Option 4 because the plastic bags might not work, and it would just drag out the inevitable.

Thanks for the note, and good luck if a case like this ever presents itself in real life! 😉

Hopkins@FELTG.com

More on the Dangers of Charging Intent: Threat and Willful Misconduct

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By Deborah Hopkins, February 14, 2018

Last month we discussed charges that carry an element of intent. If you didn’t get a chance to read it, check it out here: https://feltg-updates.stage1.estlandhosting.com/the-dangers-of-charging-intent/. As a reminder, if a charge includes an element of intent, the intent must be proven by a preponderance of the evidence. Usually we don’t have a confession showing intent, so we look at circumstantial evidence and consider the totality of the circumstances. Naekel v. Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); Boo v. DHS, 122 MSPR 100 (2014).

This month we will be looking at two specific charges: threat and willful misconduct.

Threat

The lead case on threat is Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986). If you haven’t read it, you really should. As a quick summary, though, Mr. Metz was an instructor at the Federal Law Enforcement Training Center, and he was not happy with his performance evaluation: he received an annual rating of “excellent” but believed he deserved an “outstanding,” and he said he would harm himself and others. Two of Metz’s coworkers also reported that they heard Metz say he was going to kill his supervisors.

Threats of harm against a government supervisor are taken seriously, though sometimes it is difficult for an agency to determine if a threat actually has been made, or if a person is just talking out of frustration or anger. In reviewing removals based on threat charges, MSPB must use “the connotation which a reasonable person would give to the words.” Meehan v. USPS, 718 F.2d 1069, 1075 (Fed. Cir. 1983). In other words, look carefully at the circumstances.

Metz sets out five factors to help determine whether a threat has been made:

  1. The listener’s reaction;
  2. The listener’s apprehension of harm;
  3. The speaker’s intent;
  4. Any conditional nature of the statements; and
  5. The attendant circumstances.

Intent evidence shaky? Consider another charge for the misconduct. Discipline has been upheld for a charge of “Making statements that caused anxiety and disruption in the workplace,” McCarty v. Navy, 95 FMSR 5122 (1995), and charging “inappropriate conduct,” but bringing intent evidence into the Douglas analysis as justification of a more severe penalty, Brough v. Commerce, 119 MSPR 118 (2013).

Willful Misconduct

So, what the heck is this charge “willful misconduct”? It’s a deliberate and intentional (not careless or heedless) disobedience of a lawful order. So if you’ve got intent evidence that the disobedience was intentional, go forth and charge. However, as always when dealing with intent, proceed with caution.

The line between careless and willful should not be ignored.  We often see employee injuries and workers’ compensation claims in cases of willful misconduct, and when an employee’s willful misconduct leads to his injury, his actions take him out of the performance of duty. I.A. and USPS, No. 15-1913 (ECAB 2016). For example, a USPS employee drove a GOV without a seatbelt and entered an intersection with the vehicle’s passenger-side door open. These behaviors were not willful misconduct but rather were lapses of judgment, because they did not exhibit wanton or reckless disregard of probable injurious consequences. L.R. and USPS, No. 08-84 (ECAB 2008). Because there was no evidence of premeditation…or intentional wrongdoing, or that the employee knew his behavior was likely to result in serious injury, his claim was not precluded under workers’ comp. Id.

As we said last month, and will say a thousand more times, the bottom line in labeled charges that contain an intent element: be sure you have a preponderance of the evidence on intent, because if you don’t you will lose your whole case, and Mx Misconduct will be coming back to work for you. Hopkins@FELTG.com