What Do You Do with the Guy Caught Masturbating on Government Time?

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By Deborah Hopkins, May 17, 2017

Last week, Bill and I were in Denver providing training to a bunch of supervisors from agencies across the country. One of the things we regularly discuss during training classes is why so many agencies don’t take disciplinary action against people who deserve to be disciplined. A warning: the situation I’m about to describe is crass, so read at your own risk.

Let me give you an example of one such conversation; I’ll call it a hypothetical situation. Agency employee (let’s call him Jimmy) is retirement-eligible but hasn’t yet retired. A couple of times a day, Jimmy walks in to a closet, strips down completely naked, and masturbates during his normal work hours.

The closet is one that other agency employees commonly access for supplies. There have been several instances of employees going to the closet for paper, staples, etc., and opening the door to find Jimmy in the middle of his routine.

And the agency has done NOTHING to discipline Jimmy.

Jimmy is spending quantifiable government time, paid by the taxpayers (that’s you, and that’s me), to masturbate – and the agency doesn’t take action because the supervisors “hope” he will just decide to retire. Now, I don’t know Jimmy personally but I think it’s a pretty good bet that he’s not motivated to retire because he is getting paid to pleasure himself on the clock.

If you’ve been in this business longer than five minutes, then it is not a surprise to you that many agencies have dealt with employees masturbating on government time. Here’s the deal: masturbation at work, on government time, is a removable offense. If you want to read a case involving shock and awe related to this type of inappropriate sexual conduct in the workplace, check out Jardim v. Army, CH-0752-08-0147-I-2 (July 22, 2008)(ID). In Jardim, the appellant’s removal for “immoral, indecent, or disgraceful conduct” was affirmed after evidence showed he masturbated at work and in the process exposed himself to a coworker and got semen on her jacket.

In another case, an employee’s removal was sustained after he was seen by others masturbating in a government vehicle; at a different time he masturbated in front of a female coworker. The charge there? “Ejaculating or releasing bodily fluids in a government office, while on duty.” Ever have to charge someone with that? It works. Lee v. OPM, CH-844E-06-0525-I-1 (September 18, 2006)(ID).

Need more? I’ve got them. How about Venneri v. Navy, PH-0752-05-0389-I-1 (October 19, 2005)(ID), where the appellant exposed himself to a female coworker and started masturbating in front of her? Fired and removal upheld. What about the supervisor who ejaculated onto his employee’s desk after work hours and the next morning told her he had “left a present” on her desk? Charge him with “conduct unbecoming a supervisor” = see ya later, Supervisor Wagner. Wagner v. DOJ, DE-0752-03-0466-I-2 (September 14, 2004)(ID).

Plenty more still, but I think you get the idea. Masturbating at works is serious misconduct, particularly when others are exposed to the conduct.

It’s a problem too because, in addition to being a poor management decision, refusal to discipline this misconduct puts other employees at risk and creates the potential for an EEO claim of a hostile work environment. A hostile work environment is created when the victim is subjected to unwelcome conduct that is based on a protected category, and the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). An agency can absolve itself of liability only if it shows it took immediate corrective action and the complainant does not take advantage of any corrective measures. See Quinn v. U.S. Postal Service, EEOC Appeal No. 05900546 (1990).

In our non-hypothetical hypothetical above, we run into a liability problem because the agency is on notice of Jimmy’s conduct and has not done a darn thing to put a stop to it. There’s no question this is unwelcome conduct and there’s no question that it’s sexual, so the only thing we need to consider is whether the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. How many times does another employee have to go to the closet in search of paper clips and discover a stark-naked Jimmy masturbating, in order for it to affect the terms or conditions of her employment? If every time I need office supplies, I hesitate before opening the closet door because of what I’m afraid I might find inside, I’m thinking that it doesn’t have to happen a whole lot of times to meet that legal standard of “severe or pervasive.” I guarantee you that if I see that once, I’m never ever going back for more paper clips.

Just one isolated instance of unwelcome sexual conduct can be found to be severe enough to create a hostile work environment – even if the agency does not discipline the conduct. See Weaver v. U.S. Postal Service, EEOC Appeal No. 0120065324 (2008) (a male employee ground his pelvis into a female coworker’s buttocks and EEOC found a hostile environment even though the agency did not discipline the male employee).

If you follow the news, you may have noticed last week that DOJ is in the process of making a $20 million settlement with a class of female corrections officers who were exposed to harassment based on sex for a number of years, and Bureau of Prisons officials did not do enough to correct and prevent the harassment from continuing. Among the conduct? You betcha, males masturbating in front of the women or in places they knew the women might be at any given time. See also Lemons v. BOP, EEOC Appeal No. Appeal No. 0120081287 (April 23, 2009); Wilson v. BOP, EEOC Appeal No. 01A23614 (February 3, 2004); EEOC v. Indiana Bell, No. 99-1155 (S.D. Ind. 2000).

There are times when agencies win the liability argument. In a recent case form the Federal Bureau of Prisons, a female corrections officer informed the agency of inappropriate sexual conduct by inmates (including inmates masturbating in her presence), on 17 occasions in a one-year period. The EEOC found that the inmates’ conduct did rise to the level of sexual harassment, but that the agency was not liable because it took immediate corrective action in 16 of the cases to sanction the inmates’ conduct and to protect the employee from further instances. Larae S. v. BOP, EEOC Appeal No. 0120143209 (March 9, 2017).

In another instance, employees at FAA would commonly take “dumpster breaks” at the agency facility; “dumpster breaks” were widely known among employees as code language for people masturbating behind the dumpster in back of the agency facility. Shalon C. v. FAA, EEOC Appeal No. 0120141603 (July 21, 2016). The agency won this one because employees never made management aware that the conduct was occurring and the “dumpster breaks” were routinely taken after the supervisors had left for the day – so the agency was not on notice and had no opportunity to investigate and correct it, until after the complaint was filed.

Let me be clear: even though the agencies were not liable because, as in Larae S., the BOP took immediate action, or like in Shalon C. the FAA was not aware of the conduct and could not have reasonably known it was occurring, this liability defense is NOT an excuse to allow this type of conduct at work. EEO cases are not the same as MSPB cases, and EEOC notes in most of the decisions that the conduct should be addressed in a separate forum. In Jimmy’s case, the agency leadership knows about the conduct, and has chosen not to charge anything. I hope someone from that agency reads this article and realizes it’s a situation that’s too dangerous to leave alone with the hope that Jimmy decides to finally retire.

Bottom line: why would you ever refuse to discipline someone for such serious misconduct when the conduct might create a hostile work environment for your other (good, hard-working) employees? I just don’t get it.

Hopkins@FELTG.com

Probationer no More?

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By Deborah Hopkins and William Wiley, May 17, 2017

If you’ve read anything we’ve ever written in this Newsletter, then you probably know we get lots of questions from readers and we use this forum as a place to post our answers. Here’s a relatively quick one that some of you might find helpful.

Good Afternoon FELTG Team:

I’m hoping you can answer a question that I’m getting conflicting answers on. A Pathway Employee (hired under Excepted Service) finishes two years and converts to a competitive position with no break in service, into the same position and grade. Would you consider this employee as having served a probationary period and therefore now has full appeal rights, or would you consider him a probationary employee with limited appeal rights after the conversion to competitive service?

My case law research shows me that this employee is no longer probationary (limited appeal rights). What do you think?

And here’s our response:

Thanks for the email, Loyal Reader.

Without doing any research (we’d have to charge you for that!), our understanding is that employees in these sorts of positions serve a “trial” period.” Effectively the same thing as a “probationary period,” but for some reason, it has a different name.

Secondly, and this is the point that confuses so many people, is that employees get MSPB/adverse-action appeal rights TWO different ways:

  1. If they have completed a probationary period, OR
  2. If they have current continuous employment of at least one year in the competitive service or two years in the excepted service. Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999)

The employee in your situation satisfies the two years in the excepted service test. Therefore, it is immaterial whether he is placed into a “probationary period.” That’s why the better practice is NOT to play games with using a new probationary period. He got rights when he was converted.

Keep in mind that the “OR” above is a typo in the law and was always supposed to be an “AND.” In fact, that’s how OPM regs interpreted it until Van Wersch was issued. That’s why so many people get confused on this point.

Hope this helps!

Hopkins@FELTG.com

A Trip to the Federal Court of Appeals

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By Deborah Hopkins, April 19, 2017

A few weeks ago I made a trip from my Petworth condo down to the Prettyman Courthouse on Constitution Avenue, just blocks from the U.S. Capitol. The reason? FELTG’s own stellar instructor Katie Atkinson was scheduled to present oral argument in an EEO discrimination case. Those of you who have been in the business even for just a little while know that this level of litigation is a Big Deal – it’s one step away from the Supreme Court. Yowza. Statistically, most people who read this newsletter will never get to that forum, so let me just paint a picture for you with my words.

Building security is tight and only attorneys with active bar cards are allowed to carry in cell phones; all other electronics are seized and held by security at the lobby level. (Finally, a reason to use my bar card! One is not required to be an attorney to represent a client before the MSPB or EEOC, thus there is no requirement to show a bar card or inform the administrative judge of a bar number during litigation.)

The courtroom is pretty imposing. If you’ve been to an MSPB or EEOC hearing, you were probably underwhelmed (as I was) with your first “hearing room” experience. If you haven’t had that experience, let me set the stage: in most cases hearing rooms are bathed in fluorescent lighting, there might be coffee stains on the carpet, not a remote occurrence of mahogany furniture or classical pillars anywhere. In fact, a lot of EEOC hearings take place in simple conference rooms. So when I walked in to Courtroom 31, I took in the imposing painted portraits of the many men whose presence had graced that very bench (sadly, just a handful of female faces adorned the walls), the dark wood, the formal jury box, and the multiple security officers. Everyone was dressed in conservative business suits – even people who were only there to observe.

A clerk for each of the three judges came out about five minutes before court was in session, and arranged the bench per what appeared to be unique specifications – materials on the table set just so, and even the angle of the chair’s swivel toward the door to chambers. Talk about formal.

With one minute to go, the marshal explained to the crowd (a group of approximately 30 people; three arguments were scheduled for that morning) exactly what would happen next.

Then, as the judges walked out, in something astoundingly formal and supremely cool because it’s just like what happens at the Supreme Court, the Court Crier announced in a commanding voice, “The Honorable Justices of the District of Columbia Court of Appeals. Oyez! Oyez! Oyez! All persons having business before the Honorable, the District of Columbia Court of Appeals, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”

So cool.

So let me give you a quick lesson in procedure. The party filing the appeal goes first. There’s a little light at the podium – kind of like a horizontal traffic light – that turns green when the clock begins. With two minutes left (in general, oral arguments are scheduled for 10 or 15 minutes each side, though in more complex cases more time may be designated) the light turns yellow, and when time is up it turns red.

As much as attorneys practice the oral argument, when the light turns green anything can happen. Judges can interrupt, ask questions, pontificate, or change the entire direction of the discussion. That’s why it’s important to intimately know the case law from the briefs; chances are you’ll be asked about cases by name.

And ask questions the judges did. I won’t go in to the details of the oral arguments here but suffice it to say, Katie Atkinson did an amazing job. The most impressive thing to me was that she didn’t even take up the entire time reserved for argument. She stood and addressed the Court, made her argument, answered the judge’s questions, and when she was finished making her point she sat down. What a stellar example of a veteran move that reflects the mindset of a pro: whether in argument or in writing, after you’ve made your strong argument, STOP talking (or writing). No need to dilute your argument with meaningless words.

We’re looking forward to the decision which should come out any day now. In the meantime, if you need hearing practices training, let us know and we can send our resident pro to teach you all she knows!

Hopkins@FELTG.com

How Should You Document Misconduct?

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By Deborah Hopkins, March 15, 2017

In response to last month’s article about letters of counseling doing more harm than good (Another Reason to do Away with letters of Counseling), I received the below letter. Since this covers questions a number of you have, I figured this Newsletter was a good place to post and reply.

Hello,

I read with interest the article you wrote that warns that supervisors may be better off not putting letters of counseling in an employee’s file.  I am an Administrative Officer and assist our managers with labor/employee relations issues. I frequently advise managers to start with counseling memos to try and address unacceptable performance and misconduct.  However, we have noticed a trend where our union is filing grievances and taking these cases to arbitration alleging they are discipline when they are not. Fortunately, we’ve settled at mediation before an arbitration hearing.  Your article cautions that EEO cases are now being built on the issuance of counseling memos. This is very frustrating for managers trying to get their employees to do the right thing.

What would you suggest a manager should do to build documentation to support an actual disciplinary action if they are not to issue counseling memos to an employee? Would you suggest that they simply have a verbal counseling and the manager write a Memo to the file to record this discussion? Would it be okay for a manager to send an email message to the employee summarizing the conversation?

Just wondering what a manager can do. If they don’t have a way to prove the employee was put on notice of their unacceptable conduct before taking disciplinary action, it will be more difficult to prevail when actual discipline was issued.

Any guidance would be greatly appreciated. Thank you!

 

Dear FELTG Reader,

Thanks for the note.

Let me start by clarifying that there are different procedures for performance and misconduct.

In performance situations, the employee has to be given a performance plan. There’s no requirement to document unacceptable performance prior to placing the employee on a PIP. Therefore, you issue the plan, wait until you conclude that the employee is performing unacceptably, then initiate the PIP. No prior warnings or counseling are required here. If the employee fails the PIP, you can propose removal. Easy peasy.

Let’s move over to conduct now. In misconduct situations, the employee has to be on notice of the rule; he does not have to be warned that he has broken the rule. As long as the employee knows the rule, prior written warnings are not necessary to discipline. Lehnerd v. OPM, 55 MSPR 170 (1992). To tell an employee the rule, email works best. There doesn’t need to be a warning that they’ve engaged in misconduct in the past because that triggers optimism bias and a possible EEO complaint in which the employee tries to defend herself.

Let’s hash this out a little more.

In some cases, “counseling” an employee might help. For employees who just need a little coaching or guidance, a talking-to is often all they need to get better. If so, great – these are not the employees who are going to file a grievance or an EEO complaint. But a problem arises when the counseling gets memorialized into an official letter or document that goes into the OPF; as you’ve mentioned, employees grieve these (or file EEO complaints) and it’s terribly inefficient because these documents serve no necessary purpose in progressive discipline.

We don’t have exact statistics, but from our FELTG experience we see that employees are far less likely to grieve a verbal counseling session than they are a written memorandum. Personally, I think there’s something about the tangible letter going into an actual file that gets them riled up or scared or upset. Could an employee grieve a verbal meeting; sure, probably, but it’s not as tangible as a letter that says, “You were bad.” It’s inefficient, because these letters lead to things like mediation and arbitration but they can’t be used as the basis for progressive discipline. Can they be used to go to notice? Sure. But hang with me; we have a more efficient method we recommend to managers who are dealing with misconduct.

Here it is:

Step 1 – If there is a question about notice, the supervisor should talk to the employee to put him on notice of the rule. Send the employee an email after the talk, recapping the conversation. This helps provide documentation of notice without it being a formal memo put in an OPF. Remember, memos or counseling letters don’t count toward progressive discipline. In addition, the supervisor should take hand-written notes about the discussion she had with the employee, and should also make notes about the employee’s conduct following the discussion. (We suggest keeping a separate notebook for each employee, so if a case goes to discovery only notes relevant to this particular employee get submitted to the record.)

Note: this step is not necessary if the supervisor can show the employee was already on notice of the rule before they broke the rule. For example, if the employee attended a training session about a work process and there is proof the employee attended (a sign-in sheet, for example), and the employee’s misconduct is tied to something about the work process he learned in that training session, then the sign-in sheet provides documentation that the employee was on notice. In other words, employees don’t get free warnings about every act of misconduct if they already knew what the rule was.

If there was sufficient notice, we recommend skipping the counseling memo and going directly to a reprimand. Reprimands hold weight in progressive discipline. If you have an employee who has potential to get better, a reprimand will work just as well as (if not better than) a counseling memo. And as a bonus, if the employee doesn’t get better, we’ve already taken care of a step in progressive discipline by issuing a reprimand, and can move on to a short suspension next. Can they grieve it? Sure. But they can grieve a counseling memo too, and that doesn’t count as discipline. So, it saves time and effort to go directly to a reprimand. It’s as efficient as we can be, given the nature of our business.

So, depending on notice, here’s the Discipline Three-Step:

Step 2 – Reprimand

Step 3 – Short suspension

Step 4 – Removal

I know this can be frustrating; you have colleagues across the government who write letters to us about this very thing, every week.

I hope this helps. Keep the faith, and good luck!

Hopkins@FELTG.com

What About EEO Complaint-ing a Leave Restriction Letter?

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By Deborah Hopkins, February 15, 2017

At FELTG we love to read your emails and are delighted to answer (almost) any question you have as a result of reading our articles. Here’s one we got in response to the December 2016 FELTG Newsletter article, EEO Complaint-ing a PIP? No Dice.

Ms. Hopkins:

Thank you for an interesting article.  You quote the Commission, “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

So by extension, can an agency dismiss a complaint alleging discrimination in a leave-restriction letter?  How about all proposal notices informing the employee of impending discipline?  These are “preliminary steps,” for sure, and “without further action.”  The employee may well face discipline for violating the LR requirements or for the misconduct identified in the proposal notice, but per se, neither requires “further action.”

Why did the Commission single out only PIP notices?

And our FELTG response:

Dear FELTG Reader:

Thanks for the email. Why did the Commission single out only PIP notices by name? Your guess is as good as ours about the “why,” but here’s what we do know:

Under 29 CFR § 1614.107(a)(5), an Agency may dismiss an EEO claim that alleges a proposal to take a personnel action or other preliminary step to taking a personnel action. The only exception is the situation in which a non-appealable matter is a proposed action, the agency proceeds with the action and that action becomes final, in which case the proposal is said to “merge” with the final action. Wilson v. Dept. of Veterans Affairs, EEOC Appeal No. 0120122103 (Sept. 10, 2012). Keep in mind, though, these preliminary steps can still go in to evidence in a hostile work environment claim, and/or a reprisal claim.

Regarding the LRL, from a read of the cases it seems that placing an employee on a LRL could be considered an adverse action (under EEOC’s definition which is broader than MSPB’s), if placement on the LRL was motivated by discrimination. So yes, the LRL could provide the grounds for an acceptable complaint. See Brand v. Food Safety Inspection Service, EEOC Appeal No. 0120113592 (June 5, 2013).

Hope this helps. Hopkins@FELTG.com

Another Reason to Do Away with Letters of Counseling

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By Deborah Hopkins, January 18, 2017

Within the first few minutes of our FELTG onsite class UnCivil Servant: Holding Employees Accountable for Performance and Conduct, Bill and I ask a question of the attendees:

Which of the following are “disciplinary” actions?

  1. Letter of Caution
  2. Letter of Warning
  3. Admonishment
  4. Letter of Counseling
  5. Letter of Expectation
  6. Reprimand
  7. Suspension
  8. Demotion
  9. Removal
  10. Reassignment
  11. Placement on a PIP
  12. Denial of a WIGI

The answers we get often make us cringe. We’ll give you ten points if you can pick them out without error. Go ahead, take a look…we’ll wait…and the answer is…there are only FOUR disciplinary actions on that list: Reprimand, Suspension, Demotion and Removal. That’s it. Everything else on the list is NOT a disciplinary action, which means it holds ZERO significance in progressive discipline.

Items 1-5 have no legal value and often create problems for the agency that might not exist were they not implemented. Consider the recent EEOC case Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016). Here’s what happened: SSA employee Meaghan F. suffered from migraine headaches and had exhausted all of her annual leave and sick leave and had used more than 240 hours of Leave without Pay (LWOP). She provided a doctor’s note that said she might be absent “from time to time” in the future if her migraines worsened.

Not very specific medical documentation, is it? The supervisor didn’t think so either, so he held a counseling session about her attendance and told her the medical information she provided was insufficient. We don’t have a problem yet; a good supervisor should talk to an employee about her attendance if it’s becoming a problem. But the supervisor took it a step further and issued a Letter of Counseling about the problem, which he placed in her personnel file. So, what did the employee do? She filed an EEO complaint and said the letter was discriminatory because she had a disability (migraine headaches) that caused her leave issues.

You’ll be happy to know that the agency prevailed on this, as the EEOC held that a letter of counseling is not discipline and that the supervisor had a legitimate, nondiscriminatory reason for asking for more specific medical information. But, that didn’t stop the agency from having to go through the lengthy EEO process, which now takes a good two to three years on average.

Though it’s speculation on my part, I can’t help but wonder, had the supervisor not issued the letter of counseling and put it in the OPF, whether the employee would have filed a discrimination complaint. I guess we’ll never know, but this case underscores what we’ve been telling supervisors for years: sometimes the less you do, the better off you’ll be. Hopkins@FELTG.com

EEO Complaint-ing a PIP? No Dice.

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By Deborah Hopkins, December 14, 2016

A couple of weeks ago, Bill and I held a brand-new training class in Atlanta: Developing and Defending Discipline (next coming to San Diego February 28 – March 2).  One of the questions that came up was a question we get frequently enough that I figured it was worth a newsletter article.

Here’s the question: Can an employee file an EEO complaint about being put on a Performance Improvement Plan (PIP)?

Here’s the short answer: an employee can file an EEO complaint for just about anything.

But, here’s the more fulsome answer: a PIP is a preliminary step to taking a personnel action and, in most instances, does not constitute an adverse action sufficient to render an employee aggrieved. See Lopez v. Agriculture, EEOC No. 01A04897 (2000); Jackson v. CIA, EEOC No. 059311779 (1994) (holding that performance improvement plans which are not placed in the employee’s official personnel folder do not constitute adverse actions).

That means that if an employee files an EEO complaint and the basis of the complaint is something like, “I was placed on a PIP because of my race [and/or sex, age, religion, national origin, disability, etc.],” then the agency should not accept this as a valid EEO complaint because this is not a personnel action that forms the proper basis for a complaint.  Placing an employee on a PIP is what we in the business refer to as a preliminary step (see Lopez, above).

That’s right, EEOC seems to side with management on this one. In the Analysis that accompanied the 1992 issuance of EEOC regulations at 29 CFR Part 1614, EEOC explained: “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

In other words, EEOC itself says the PIP does not “affect the person” because it is not a personnel action; is simply a chance for the employee to show she can do her job. If she’s focused on filing an EEO complaint instead of meeting her performance standards during the PIP period, I think we’d all agree that the chances she’ll be able to successfully survive the PIP are pretty low.

If a federal employee comes to us (or to any of our instructors who are attorneys) and asks us to represent him in an EEO complaint, and we find out he is filing a complaint for discrimination because he was put on a PIP, our reply is always, “Get back to work; you have a job to do.”  PIP time is not the time to file an EEO complaint; you know it’s true when the EEOC has made an affirmative statement on the topic.

As an aside, someone could initiate a claim that being placed on a PIP was an act of reprisal for engaging in protected EEO activity. The reprisal standard makes it illegal “to discriminate” against someone for engaging in the EEO process or for speaking out against discriminatory policies, and putting someone on a PIP because of such activity is discrimination. While a supervisor needs only to articulate a reason to initiate a PIP, that supervisor will need solid evidence to combat a reprisal claim.

Also worth noting, a complainant could use her placement on a PIP as evidence toward a hostile work environment claim, though as stated above the PIP alone isn’t sufficient to initiate the EEO complaint.

And finally, on another related matter, if an employee alleges the PIP was initiated in retaliation for protected union activity or whistleblower activity, the supervisor will also have to defend those claims under the related elements of retaliation.

Remember, a PIP is not an adverse action, so documentation of the employee’s unacceptable performance as a reason for initiating the PIP should meet that evidence standard necessary to defend against the retaliation claims. Keep your notebook close, supervisors, and with these things in mind, PIP away! Hopkins@FELTG.com

Clearing Up Some Confusion on Accommodating a Disabled Employee’s Commute

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By Deborah Hopkins

Reasonable Accommodation for disabilities is (still and always) a hot topic. In response to my article in September’s Newsletter (Is it Just Me, or is Reasonable Accommodation Becoming Trickier?) I received a follow-up question. So let’s continue the discussion.

Dear Ms Hopkins,

I read your guidance on reasonable accommodation with great interest (as always), and saved it for future reference.

However, I was surprised you did not address the possibility that the arrangement to work from office A had been made to facilitate a shorter commute. In my experience, a request to work from Office A instead of B, usually has a lot more to do with a preferred commute than a disability related to the duties of the position.

At my agency, we have had two recent “commute-driven” requests for reasonable accommodation, supported by quite flimsy medical documentation. In considering these cases, I had been working under the assumption that (irrespective of their medical documentation) we do not accommodate HOW someone gets to work, but just the duties of the position once they arrive….

Would you mind adding your comments on our responsibilities with regards to commuting?

Thanks.

Here’s my response (not legal advice – just my thoughts).

Hello FELTG Reader,

Thanks for the follow-up question.

Let’s tackle the documentation issue first. If an employee refuses to provide medical documentation related to a disability, then the employee has essentially waived his right to reasonable accommodation (RA) because he has failed to participate in the interactive process. See Akbar v. U.S. Postal Service, EEOC No. 0120081202 (EEOC OFO 2011).

Now on to the commute question. There’s some conflict when it comes to commuting and reasonable accommodation; the courts generally say that employers are not required to accommodate issues related to the employee’s commute but EEOC “precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act.” Complainant v. HUD, EEOC No. 0720130029 (EEOC OFO 2015). In this HUD case, the EEOC said the agency denied the complainant RA when it refused to allow him to telework and/or work one day a week in an office nearer to his home than the office to which he was assigned. In this case the EEOC said that commuting is a major life activity, and that because of the complainant’s spinal condition the agency was required to accommodate his physical inability to commute the longer distance to the office.

Contrast that with the case Bill discussed in March (Accommodating the Disabled Commuter), where the complainant was requesting the agency provide him with a car and driver – an accommodation that directly opposed what Congress has said about commuting being a personal expense. Gerald L. v. DVA, EEOC No. 0120130776 (2015). In that case the EEOC reiterated that, and said the VA was not responsible to get the employee to and from work. In addition, the complainant had to be at the physical location to perform the essential functions of his job. This is fairly different than the HUD case above, where the complainant could perform the essential functions of his position in a different location, and never asked the agency to pay for a driver.

I agree that sometimes (too often, probably) the request for a different work location is tied more to convenience than actual disability, but it needs to at least be considered as a potential accommodation during the interactive process – after you get medical documentation.

So no, you do not need to accommodate the method of how the employee gets to work but you do need to consider whether they HAVE to be at the worksite to which they’re assigned. The conservative line of action here would be, after receiving appropriate medical documentation, to consider each employee’s requests and consider whether they can perform the essential functions of the position from home or perhaps at a closer office. If they can, that solution would be a potential reasonable accommodation – but if other accommodations are available, the agency is free to choose another option.  As long as you have a legitimate, nondiscriminatory reason (a business-based reason) that the employee needs to be at the main worksite, and can show that if they are not there it creates an undue hardship, you don’t have to grant the request for a different work location as an accommodation.

I hope this helps – as you know each RA request is a unique situation and must be looked at independently. Please let me know if you have any other questions.

Let’s keep the discussion going! What’s next? Hopkins@FELTG.com

That’s It! I’ve HAD It! I’m DONE!

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By Deborah Hopkins

I am mad. Really mad. I am mad about the terrible advice a federal supervisor was given by her chief counsel’s office, about not holding an employee accountable for her performance out of fear of an EEO reprisal complaint. The kind of situation you’ll see below happens every day in agencies across the country, and to use a legal term, it sucks.

Here’s an email I recently got from a FELTG customer, and below that you’ll see my response.

Dear FELTG Super-Powers,

A colleague who was a Federal EEO person for many years suggested that I contact you.

I just returned to Federal service after a ten-year hiatus. I am the supervisor of a small staff in a large agency. I started a couple of months ago, and last week I learned I was part of an EEO complaint that was filed three days after I started work. Little did I understand when I took the job that this person had been a problem with the agency for at least five years.

There do not appear to have been any reprimands or other disciplinary actions for either her conduct or her performance. She has been given outstanding reviews for poor work because of the hope to have her leave the agency. In the few weeks I have been here it is clear that she should have been gone years ago.

I’m curious as to whether or not anyone has ever had an action against an agency for its consistent lack of taking action against a “rogue” employee such as the one I have. She was moved from one office to mine about three years ago because she was such a problem. I have now inherited this problem and am seen—after only a few weeks on the job—as simply a continuation of discriminatory supervision.

Now that her EEO complaint has been submitted she has become increasingly rude to me and others. I have been counseled by our chief counsel’s office to document her behavior and performance but not to take any disciplinary actions because that might be seen as retaliation.

Should I be concerned and talk to my own counsel regarding this matter?

Thanks.

Dear Supervisor,

Thanks for reaching out. I am frustrated for you, because I know this is a tough situation; you’re not alone in this, and we get calls and emails every week from supervisors like you with eerily similar scenarios.

To answer your questions, as far as we know nobody has ever taken official action in the courts against an agency for refusing to hold “rogue” employees accountable for performance or conduct, probably because so many agencies engage in this culture. But we do sometimes see proposed bills on Capitol Hill (recent example: the DVA), or articles in the newspaper, about how agencies need to do better. That’s as far as it’s gotten.

In my personal opinion (this is not legal advice), while your chief counsel’s office was wise to tell you to document what the employee is doing wrong, it has given you poor advice in telling you that you should not take action against this employee for fear it looks like reprisal. In fact, it’s not just poor advice, it is dead wrong advice and actually violates 5 USC § 4302(b)(6) which requires agencies to remove from their positions employees who do not meet minimum performance standards. That’s right, you don’t remove a non-performing employee and you’re violating the law.

Not taking action against an employee like this just continues to allow what has been happening for years, and trust me, employees who are given “Outstanding” ratings for doing poor work will never leave on their own; why would they be motivated to?

The biggest thing, should you decide to take action, is certainly to document the business-based reasons why you are taking the action (for example, if you are initiating a PIP or disciplinary action for misconduct). Based on her history the employee will likely file a reprisal complaint, and there’s nothing you can do to stop it – but the way you defend yourself is by having the documentation of your reasons.

Regarding personal risk, we’d need to know more about the situation to answer that question. If you’ve been given a direct order to not take action against this person and you decide to, then your job could be on the line, because insubordination (or perhaps failure to follow a direct order) is a serious offense.

If you’d like to discuss in more detail to see if perhaps you need an attorney, please feel free to let me know and we can set up a phone consultation, as FELTG does provide legal advice to consult with supervisors in situations like this.

I hope this helps. Good luck.

***

But wait, we’re not done yet. I got a response from this supervisor and she said that she was moving forward with action (yay!) in the form of a warning (NOOOOOOOOO!). Please, please, please – don’t do it. Here’s why:

If you give this problem employee a warning, she can file an EEO reprisal complaint. If you put her on a Performance Improvement Plan (which you can do with no proof, as long as you can merely articulate what critical element she isn’t performing well) she can file an EEO reprisal complaint.

If she fails to improve after the warning, you have no recourse except to warn her again or to put her on a PIP. If she fails the PIP, you can remove her from federal service.

So either way you go this employee can file an EEO reprisal complaint, but here’s the big difference:

If your agency wins the EEO hearing (and remember, the EEO process takes 2-3 years) and successfully defends against the reprisal complaint regarding the warning, your problem employee still works for you. If your agency wins the EEO hearing (in 2-3 years) and defends against reprisal over the PIP, the lady has been gone from your workplace for 3 years minus the length of the PIP (we suggest 30 days unless a union contract dictates otherwise).

To me, counselors, the choice is obvious. Hopkins@FELTG.com

Is it Just Me, or is Reasonable Accommodation Becoming Trickier?

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By Deborah Hopkins

September 12, 2016

At FELTG we love our webinars. As part of each webinar agenda, we take Q & A breaks to answer your questions. Sometime we get questions that come via email after the webinars end, and occasionally we’ll answer those in our newsletter so that all our readers can hopefully learn something. Today is just such a time.

After teaching a recent webinar on disability accommodation, I received the below scenario from a customer. I’ve changed a few of the details and some identifying information to make this a true “hypothetical,” but the essence of the scenario remains intact.

Dear FELTG Brilliant Minds,

I have a case and I was wondering if you could help.

An employee assigned to a job at Office B (about an hour from our main site, Office A) requested reasonable accommodation (RA) two years ago.  At that time, there was space for her to sit in Office A, which she thought would help, and I told her that she could as long as there was space, and that if she was getting her work done she could work from Office A.  I received a call from our RA rep who reviewed the information with me over the phone and said, “That sounds good.” I asked if there was something else needed, for example paperwork/forms, and he said no.

Fast forward one year, we were starting to run out of space at Office A, and I followed up with HR regarding what to do now. The employee’s position belongs in Office B, is stationed there and should be there.  The original RA rep is no longer working here and the employee’s file is incomplete. There aren’t even any medical records (so I understand).

I told the employee she needs to reconnect with the new RA rep, and again, as long as there is space, she could stay at Office A.  It took almost a full year to get things figured out. Finally, the employee was offered a different job at Office A, in a different department.  She declined.

Now I am a week from having new employees start work, and no desks for them to sit at in Office A, where they will be assigned. 

I prepared a memo for the union explaining that the employee needs to return to her duty station [at Office B], that she declined the RA offered [the reassignment to a different department in Office A], and that the interim accommodation [working at Office A] is no longer possible. 

I asked HR to review this plan, and they told me not to send it, because they employee is preparing another RA requesting telework. Her job is not approved for telework.

I think I am going to proceed with memo to union and request that she move back to her assigned duty station at Office B.

I believe this case has been mishandled, I believe she has a real medical need, but the job is not at Office A and the program really needs the position to be posted in Office B.

Any recommendations?

Thanks in advance.

Thanks for the question. This type of situation is fairly common: these types of “unofficial accommodations” work for a while until something needs to change, and there’s no paperwork to look at to know what the problem is or what other accommodations might work. The good news – or bad news, depending on how you look at it – is that background paperwork and medical records are not really necessary in your situation because the employee has been working at Office A and only now is this possibly starting to cause an undue hardship. No paperwork, no problem; it’s time for a reasonable accommodation reassessment anyway.

Just to be sure we’re coming from the same place, though, let’s review the law on reasonable accommodation.

When making an accommodation request, an employee must show that she is a qualified individual with a disability, and that she needs a reasonable accommodation in order to successfully perform the essential functions of her position without causing harm to herself or others. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

If the agency cannot provide a reasonable accommodation without causing an undue hardship, or no accommodation is available for that job, the agency must next consider reassignment as an accommodation by looking for a vacant, funded position for which the employee is qualified, all the way up to the department level (if the agency is part of a larger Department). If no vacant, funded position is available at the employee’s grade level, the agency should look for lower-graded positions for which the employee is qualified.  If the employee refuses to accept the reassignment, the employee in essence waives the reasonable accommodation right.

At first glance it seems like you have your bases covered, as you’ve already offered the employee another position near the physical location in Office A where she currently sits, and she has refused the reassignment. You mentioned that the position the employee currently holds is not telework eligible, and that HR informed you the employee is in the process of requesting telework as accommodation. There’s an aggressive option and a conservative option. The aggressive option is to tell the employee (and the union) that she needs to go back to Office B next week, and not to consider the telework option until you receive it – after all, you have no paperwork that even confirms the employee has a disability. Here’s where you need to be careful, though. The conservative option is to keep things as they are and allow the employee to work in Office A until you receive the telework request that you know is coming any day now.

Whether you go aggressive or conservative, though, remember this: when telework is requested as a reasonable accommodation, the general rules and policies for telework do not apply, and the reasonable accommodation rules take over.

For example, if a new employee requests telework and the agency telework policy states that all employees must work full-time for a year before being telework-eligible, the agency would be correct to refuse the new employee’s request. However, if that new employee requests telework as accommodation for a disability, the agency cannot unilaterally use the telework policy as a reason to deny the request. See Dahlman v. Consumer Product Safety Commission, EEOC No. 0120073190 (2010). If the new employee has a disability and makes that telework request, the agency is obligated to engage in the interactive reasonable accommodation process and must consider whether telework would be a reasonable accommodation for this employee. If it is, the agency must grant telework if no other accommodation is available. See Kubik v. Department of Transportation, EEOC No. 01973801 (2001). If there is another effective accommodation besides telework, though, the agency has a right to choose that accommodation instead.

You mentioned there are no medical records. Now is a good time to ask your employee for new medical documentation, because but even though it sounds as if you have no questions about the employee’s medical situation, you at the very least need to know what the employee’s limitations are so you can consider which accommodation(s) might work.

Once you know the employee’s medical limitations, you’ll need to look at the essential functions of her position to consider whether telework is a reasonable accommodation. In addition, while you say the program needs someone to be present at Office B, the fact that the employee has been working from Office A for several years might work against you. It is not insurmountable; perhaps having the employee work from another location is now causing an undue hardship at Office B; we just want to make sure you have all your bases covered.

So, assuming the employee has a qualified medical condition, you must now consider whether the employee could do her job from home. As we said above, the analysis for telework as a reasonable accommodation varies from case to case, and the fact that the job is not telework-eligible under the agency policy is not good enough. Because this is a request for RA, you need to consider whether any of the employee’s work can be performed from home. See Ellis v. Department of Education, EEOC No. 01A42966 (2006). Perhaps it is not possible for this job to be performed at home; for example, jobs that require patient contact, or access to secure information available only on the agency network, may not be able to be performed from home. See Humphries v. Navy, EEOC No. 0120113552 (2013); Petzer v. Department of Defense, EEOC No. 01A50812 (2006).

Each of these situations is unique and requires participation in the interactive process. Talk with the employee and the RA coordinator to determine whether telework – whether on a permanent or intermittent basis – might be the best option.

I know it’s not an easy answer, but I hope this helps. Good luck! Hopkins@FELTG.com