Three Things You Might Not Know About Security Clearance Revocation Cases

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By Deborah J. Hopkins, August 14, 2023

Misconceptions abound when it comes to the world of security clearances. The news media and the movies don’t always get it right. An employee can be denied a clearance for a lot more than selling national secrets to a foreign country. Below are three things you should know:

  1. There are guidelines to help determine if a clearance should be granted, suspended or revoked. A set of 13 guidelines help the government determine if a clearance is warranted, and also if a clearance should be suspended or ultimately revoked. The guidelines vary from sexual behavior to alcohol or drug use, from personal conduct to financial considerations, and more. With clearance issues, national security remains the key interest, and according to the United States Supreme Court, “determinations should err … on the side of denials.” Egan v. Navy, 484 US 518 (1988).
  1. The MSPB does not have the authority to review the merits of a security clearance revocation. According to Egan, the Board has no authority to review the merits of an agency’s underlying security clearance determination. The Court stressed that clearance determinations should be made by those with “necessary expertise in protecting classified information.” That job belongs to the agency experts, not the MSPB. The MSPB can only ensure the employee received due process if the agency proposed removal for failing to maintain a security clearance.
  2. If an agency removes an employee who has lost his clearance, the agency must show the clearance was actually required. According to Egan, there are four elements required for an agency to remove an employee for failing to maintain a security clearance:
  • The agency determined that the position required a security clearance,
  • The agency revoked or denied the clearance,
  • The agency provided the employee adverse action rights, and
  • The Deciding Official considered reassignment to a non-sensitive position.

Almost a decade ago, the Board reversed an agency’s removal. The agency did not annotate the PD to show that a security clearance was necessary, did not annotate the SF-50 to show that a security clearance was necessary, and allowed the employee to remain on the job until adjudication of his clearance was completed. Gamboa v. Air Force, 2014 MSPB 13 (2014).

If your agency has employees with security clearances, you shouldn’t miss FELTG’s upcoming two-hour program on Aug. 24 — All Clear? When Employee Security Clearances are Revoked or Suspended. Hopkins@FELTG.com

The Marijuana Conundrum: Illegal Federally, But Legal in Many States

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Marijuana is still a Federally controlled substance and Federal employees are prohibited from purchasing, possessing, using or distributing it in any form. A recent MSPB case highlighted this exact conduct. Read more.

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In Case You Need Another Reason to NOT Issue a Letter of Counseling

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A new NP MSPB case, Petoskey v. VA, SF-3443-16-0808-I-1 (Jun. 21, 2023), has once again affirmed why letters of counseling, caution, warning, and the like are just not worth your time. Read more.

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A Big Change for Undue Hardship in Religious Accommodation … or Not?

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By Deborah J. Hopkins, July 18, 2023

On June 29, the Supreme Court upended decades of precedent in its unanimous decision Groff v. DeJoy, No. 22–174 (Jun. 29, 2023).

Under Title VII, employers are required to accommodate the sincerely held religious beliefs or practices of employees unless doing so would cause an “undue hardship” on the employer. For years, the definition of “undue hardship” for religious accommodation has been “anything more than a de minimis burden,” which is a much lower threshold than proving undue hardship for the purposes of disability accommodation – and, quite recently, pregnancy accommodation.

The new SCOTUS case looked at a USPS mail carrier, Gerald Groff, who requested to be excused from work on Sundays because his religious beliefs required that day to “be devoted to worship and rest.” The agency required Sunday work because of a new partnership with Amazon.

The agency said granting Groff Sundays off would be more than a de minimis burden on his coworkers’ schedules. Also, it would require the USPS to pay overtime, which would be an undue hardship on the agency. After being disciplined for refusing to work on Sundays as ordered, Groff resigned. He filed a failure-to-accommodate religious accommodation claim against USPS.

From the SCOTUS syllabus:

Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.” §2000e(j). Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business…

Title VII requires that an employer “reasonably accommodate” an employee’s practice of religion, not merely that it assesses the reasonableness of a particular possible accommodation or accommodations. Faced with an accommodation request like Groff’s, an employer must do more that conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options would also be necessary. (citation omitted). Having clarified the Title VII undue-hardship standard, the Court leaves the context-specific application of that clarified standard in this case to the lower courts….

While this seems like a major change to the “undue hardship” analysis, there’s a school of thought that indicates this might not actually change much for Federal agencies.

I asked FELTG Instructor Bob Woods, who will present How are Religious Accommodation Requests Different from Disability Accommodation Requests? on August 17, what he thought about Groff. Here’s what Bob said:

[W]hile Groff is clearly an important decision, I don’t think it will have a significant impact on Federal agencies. I don’t have a crystal ball, but I say this based upon the nature of the types of accommodations typically requested in such cases and the EEOC’s existing guidance (in both 29 CFR 1605.2 and EEOC Guidance, Section 12: Religious Accommodation) and their Federal sector caselaw. While the Supreme Court has now clarified its decision in Hardison v. TWA, it also noted that the EEOC already minimized the impact of the term “more than a de minimis cost” in its guidance and decisions.  Although the Groff decision does not limit the EEOC to its current guidance, I believe that they already hold Federal agencies to standards that comport with the plain language of the law.

I also note, as does the Court, that the Postal Service went to fairly substantial lengths to accommodate Mr. Groff.  The 3rd Circuit found exempting Groff for Sunday work would result in an undue hardship that would clearly be more than a de minimis cost. The Supreme Court has vacated and remanded for “further proceedings consistent with this decision.”  Given the asserted impact on the Postal Service discussed in these decisions, it’s possible that the 3rd Circuit may still find an undue hardship.

Agencies would certainly be well advised to review (or create) Religious Accommodation procedures and policies and confer with counsel to review existing/pending complaints of failure(s) to provide religious accommodations to ensure they are not relying upon the concept of de minimis costs. Agencies should also be on the lookout for updated EEOC guidance. As always, we’ll keep you posted on any relevant information that results from this important SCOTUS decision. Hopkins@FELTG.com.

Reason #37,129 NOT to Issue a Letter of Warning: EEO Complaint Edition

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By Deborah J. Hopkins, July 18, 2023

It may be one of the most written-about topics in this newsletter, but we keep writing because we keep seeing cases where employees challenge letters of warning, caution, counseling, and the like, and agencies get tied up in litigation for years as a result.

Look at Shad R. v. USPS, EEOC Appeal No. 2022004404 (May 11, 2023). The complainant in this case was a sales/service/distribution associate at a postal facility. The agency issued him two letters of warning (LOW):

  1. On 23, 2021, the LOW charged the complainant with “Hazmat Question/Work Performance/Failure to Follow Instructions.” The supervisor said that the complainant “did not ask the Hazmat Question at all, did not give customer his full attention, did not apologize to the customer for making her wait, did not suggest extra services, and did not offer any additional items for the customer. Complainant was also not wearing his uniform, but rather was wearing an apron.”
  2. On March 6, 2021, the LOW charged “Conduct/Failure to Follow Instructions.” The LOW specified that, the complainant failed to remove his personal items from the retail window and workroom floor, despite an order to do so.

According to the record, the February LOW was rescinded, and the March LOW was grieved and proceeded to arbitration, with the outcome of the arbitration unknown. The complainant filed an EEO complaint over the two LOWs, alleging that the agency discriminated against him and subjected him to a hostile work environment on the bases of:

  • Race (Latino),
  • National origin (Hispanic),
  • Sexual orientation (gay),
  • Religion (Satanism),
  • Disability (HIV, anxiety, and depression), and
  • Reprisal for prior protected EEO activity.

The supervisor (S1) who issued the LOWs “explained that the February LOW resulted from her personal observations of Complainant’s interaction with a customer. S1 also explained that she issued the March LOW because Complainant had multiple personal items in the workplace, including an inappropriate picture of a woman, and he did not remove them.” In his defense, the complainant asserted, among other things, “the March LOW was improper because, as a gay man, he does not objectify women.”

The EEOC affirmed the Final Agency Decision which found no discrimination or harassment. In other words, the agency had a legitimate, non-discriminatory reason for warning the employee. That said, had the warnings been issued orally or via email and NOT put on letterhead, most likely the complainant would not have felt aggrieved for the purposes of filing a union grievance or an EEO complaint. Something about non-disciplinary actions being out on letterhead escalates things to a level where an employee wants to challenge, rather than heed the warning. We’ll discuss this plus a lot more on July 26 during the two-hour virtual training No Need for Fear: A Guide to Navigating EEO Challenges for Supervisors and Advisors. Hopkins@FELTG.com

Note: after publication, FELTG heard from a previous USPS employee who informed us that per its CBA, a Letter of Warning counts as formal discipline for certain USPS employees. The principle about LOWs remains the same, but in the case above it may have counted as discipline.

Sexting on an Agency Cell Phone: Prompt Action Required

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By Deborah J. Hopkins, June 14, 2023

A new case from the EEOC on hostile work environment harassment illustrates the importance of an agency’s actions in not only avoiding liability, but also (and more importantly) in protecting the victim from continued unwelcome conduct. Joan V. v. VA, EEOC Appeal No. 2022002963 (Apr. 20, 2023). In this case, the agency was dinged for failing to “properly address” a situation where a complainant was receiving multiple unwanted sexually explicit text messages from an unknown source, on her government-issued cell phone. The messages included “multiple specific references to female genitalia and acts to be performed to male genitalia.”

The complainant requested a new phone number on March 25, 2021. On March 29, the IT Service Desk denied the request, responding via email: “‘Each phone comes with a SIM card that supports a number. We pay for each number we receive. We can’t change out your number due to too many calls and text messages … The cost does not outweigh the benefit.’”

Over the next several weeks, the complainant made multiple additional attempts to get a new phone or phone number. She was given what we Midwesterners call the “run-around.” She finally received a new phone number on May 21 — eight weeks after her initial request.

Unfortunately, the sexually explicit messages began coming to her new number. Over the course of the next several weeks, her number was changed yet again. In August 2021, five months after the initial request, the complainant received a third new phone number and requested that the “number not be placed in the Global Address Listing (GAL).” The agency granted her request and this resolved the problem. She finally stopped receiving unwanted text messages. The case does an excellent job setting out the legal standard for HWE claims: To establish a claim of harassment, the complainant must show:

  • she is a member of a statutorily protected class;
  • she was subjected to unwelcome verbal or physical conduct involving the protected class;
  • the harassment complained of was based on the protected class;
  • the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
  • there is a basis for imputing liability to the employer.

[Citation omitted.]

Based on the number, duration, and egregious nature of the text messages, the EEOC found the first four elements satisfied. The discussion on element 5 – agency liability – took into consideration the agency’s delay in providing prompt, effective correction action:

The Agency is under an obligation to do “whatever is necessary” to end harassment, to make a victim whole, and to prevent the misconduct from recurring… The ongoing nature of the harassing behavior demonstrates that actions taken by the Agency were not effective in alleviating the harassment. As such, we find that Complainant established that she was subjected to harassment based on sex for which the Agency is liable.

The moral of the story: It shouldn’t take five months to provide prompt, effective corrective action to a victim of harassment. For more on harassment and other challenging EEO issues, join FELTG on July 12-13 for Advanced EEO: Navigating Complex Issues. Hopkins@FELTG.com

A Painful (and Costly) Lesson About Last-Minute Probationary Removals

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By Deborah J. Hopkins, June 14, 2023

We get a lot of questions about probationary periods. There can be confusion if employees switch agencies, are rehired after a break in service, or have veterans’ preference.

The end date of an employee’s initial appointment probationary period, however, is not a mystery. The probationary period lasts one year; it ends when the appointee completes his scheduled tour of duty on the day before the anniversary date of his appointment. 5 C.F.R. § 315.804(b). Therefore, an agency can pinpoint the exact moment the probationary period ends, and they can do so from the very first shift the employee works.

A recent MSPB case (Stewart v. DOT, 2023 MSPB 18 (May 16, 2023)) reinforces a lesson that’s important to share with all supervisors, advisors, and agency leaders: If you want to remove a probationary employee, do NOT wait until the very end of the probationary period to do so. Give yourself a cushion of at least a few days.

Here’s a timeline to help clarify what happened in the case:

  • The appellant began working for the Department of Transportation as a career-conditional GS-12 Safety Recall Specialist on Jan. 22, 2017. His regular work schedule was Monday through Friday, 7 a.m. to 3:30 p.m.
  • On Jan. 11, 2018, his Division Chief recommended that he be terminated for post-appointment reasons.
  • Also on Jan. 11, the Division Chief informed the appellant that, unless he resigned his position on or before Jan. 15, he would be terminated.
  • On Jan. 16, the appellant tendered his letter of resignation, to be effective Monday, Jan. 22.
  • HR advised the division chief that Jan. 22 was AFTER the end of the probationary period, so the Division Chief requested the appellant change his resignation date to Friday, Jan. 19, his last scheduled workday before the expiration of his probationary period. The appellant declined, yet he returned his laptop and PIV at the end of his tour Jan. 18.
  • On Jan. 19, HR “obtained the signatures from the relevant officials and completed the paperwork necessary to effect the termination action.”
  • Also on Jan. 19, the appellant was out on previously scheduled sick leave so the agency sent the termination notice “effective at the close of business on January 19, 2018” to his work email address, and by overnight delivery to his home address.

Do you see a problem yet?

According to the Board, “we find that a termination at the end of a probationer’s final tour of duty does not satisfy the regulatory requirement that a termination be effected before the end of his final tour of duty. See 5 C.F.R. § 315.804(b).” [bold added]

Even if the appellant had somehow logged in to his work email at some point before 3:30 p.m. on Jan. 19, which is disputed as he had returned his laptop the day before, the language in the letter controls. The appellant was clearly informed he was being separated after his probationary period was completed. And because he was no longer a probationer, he was removed without due process.

Thanks to the lack of quorum at the MSPB, this case sat in the stack of PFRs for more than five years, until last month when the Board ordered the agency to restore the appellant to his previous position and pay five-plus years of back pay, plus other costs.

For more on this topic, check out the recently recorded training Everything You Need to Know About Probationary Periods.

Hopkins@FELTG.com

 

Supporting the Deciding Official – Even if You Disagree With the Penalty

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By Deborah J. Hopkins, May 22, 2023

A recently issued non-precedential MSPB case caught my attention: an appeal involving a proposed removal that the Deciding Official (DO) mitigated to a demotion. In most cases, if a DO mitigates a proposed removal, it’s because the DO doesn’t sustain some of the charges or thinks a removal penalty is too severe in light of the misconduct and the aggravating factors. In this case, though, I think most FELTG readers would agree the misconduct the DO sustained is egregious – and yet the DO still decided removal was not appropriate. Ditch v. FDIC, DE-0752-15-0022-I-1 (Feb, 28, 2023)(NP).

The DO sustained ten specifications of conduct unbecoming a supervisor against the appellant, a GS-13 Supervisory Examiner:

  1. The appellant had sex with a subordinate female employee, off duty, on two occasions.
  2. The appellant, the subordinate female employee, and another employee whom the appellant supervised went to a bar and drank during duty hours.
  3. While at the bar, the appellant insisted that the subordinate female employee drink a shot of whiskey, saying, “drink it, come on, don’t be a p*ssy.”
  4. The appellant and the subordinate female employee kissed while at the bar.
  5. The appellant certified the subordinate female employee’s timesheet for that day as working her regular 8-hour shift, instead of accounting for the time she spent with him at the bar.
  6. Despite the subordinate female employee advising the appellant she was only interested in a professional relationship, on two occasions while they both were on duty, the appellant expressed his continued romantic feelings to her.
  7. The next day, the appellant sent the subordinate female employee a text message also saying that he had feelings for her.
  8. The appellant stated he was going to find a way to reassign the subordinate female employee.
  9. Two weeks later, the appellant instructed the subordinate female employee to meet with him during duty hours, at which time he asked her if they had a chance for a personal relationship and if she had feelings for him.
  10. The appellant, during duty hours, told another subordinate employee of his romantic feelings for the subordinate female employee and that he had slept with her.

According to the case, the DO considered the Douglas factors and found “the appellant’s misconduct very serious as it caused ‘significant disruption to the efficiency of the Denver’ office, particularly because as a supervisor the appellant was entrusted with significant responsibilities, including acting as a role model, demonstrating good judgment, developing members of his team, fostering a positive workplace culture, and promoting teamwork.” Id. at 10.

But the DO also found significant mitigating factors, including that the appellant had “no past disciplinary record, he had 25 years of service, he got along with fellow workers, he was dependable, and, due to his 25 years of satisfactory performance as a Bank Examiner, she believed that he had the ability to perform in that position.” Id.

If you’re like me, you might look at these facts and think the DO got it wrong, and that her view of holding a supervisor to a higher standard is different than yours. But if you, like me, are an advisor to supervisors in agency actions, then you also know that, according to 5 CFR § 752 (and most likely, your agency’s policy), it’s the supervisors and managers who make these decisions. Your role is limited to providing advice on legality and options, leaving the decision up to the DO. The Board found the penalty to be within the bounds of reasonableness and upheld the demotion.

I won’t get on a soapbox here, but I would be remiss if I didn’t mention the potential liability for a finding of a hostile work environment in this case if the suspension did not promptly correct this offensive behavior, but that’s a different article for a different day.

For more on this topic, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our brand-new five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. Hopkins@FELTG.com

The Board Saves the Deciding Official; Agency Prevails Despite DO Mistakes

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By Deborah J. Hopkins, May 16, 2023

As we work our way through all the cases coming out of MSPB’s backlog, some catch our attention more than others, including Lott v. Army, SF-0752-16-0490-I-1 (Apr. 10, 2023)(NP).

In this decision, the material facts were not in dispute. The appellant suspected that her husband was having an affair with a soldier in his unit. She improperly accessed agency databases containing Personally Identifiable Information (PII) to track down information on the soldier. She then passed along the PII to a colleague and asked the colleague to investigate whether the affair was occurring.

After a falling out with the appellant, the colleague reported the appellant’s conduct in accessing the PII. The agency investigated and removed the appellant for “unacceptable and inappropriate conduct from an HR employee.”

The Board upheld the appellant’s removal despite the Deciding Official making multiple mistakes:

  1. The DO inappropriately held the appellant to a higher standard based on perceived fiduciary responsibility. At the hearing, the DO “testified that she believed the appellant held fiduciary responsibilities, despite not being entrusted with anything related to the agency’s finances, by virtue of her access to employees’ personal information.” The Board clarified that fiduciary responsibilities under the Douglas factors only apply to an employee who has access or responsibility to an agency’s finances in some capacity – not PII.
  2. The DO wrongly concluded the agency’s Criminal Investigation Command (CID) determined the appellant had committed a crime. Both the PO and DO relied on information that CID determined the appellant committed a criminal offense. In reality, CID only found that it had probable cause to believe the appellant committed crime but did not have enough evidence to actually prosecute. Therefore, it was error to consider the appellant “actually committed” a criminal
  3. The DO improperly found the appellant’s remorsefulness was not mitigating because the appellant argued that similarly situated employees were not similarly disciplined. Among her defenses, the appellant attempted to blame the coworker who printed out the PII, as well as the colleague who took the envelope of PII to look into the information. According to the Board, “it is generally inappropriate to use an employee’s attempts to defend herself in disciplinary proceedings as an aggravating factor or an indication that she lacked remorse.” While the AJ found the DO did not view the appellant’s “finger pointing” as an aggravating factor but instead merely viewed it as a factor relevant to determining the degree of mitigation to warrant her remorsefulness, the Board disagreed and found “that the deciding official inappropriately viewed the appellant’s attempt to defend herself as an aggravating factor.”
  4. The DO failed to give considerable mitigating weight to the appellant’s mental health conditions. The appellant asserted that, at the time of her misconduct, she was “extremely distressed” and dealing with depression and insomnia, and that she made a “rash and impractical decision” as a result. The Board found that this medical condition could have played a part in the charged conduct, and that the DO did not give it considerable weight as a mitigating factor.

Those four mistakes aside, the Board also held that removal was within the bounds of reasonableness. Because the nature and seriousness of the offense is the most important Douglas factor, the Board agreed with the AJ who “noted the deciding official’s testimony that she considered the appellant’s misconduct to be a serious offense that went to the core of her duties as an HR employee.”

In addition, the “appellant herself testified that, as an HR employee, she was responsible for protecting PII.”

The Board also identified several mitigating factors:

  • The appellant had 15 years of Federal service.
  • She consistently received the highest performance ratings.
  • She had never been disciplined.
  • Her depression may have played a part in the misconduct.
  • Difficulties in her marriage and personal life played a central role in her decision to engage in the misconduct.
  • She expressed remorse for the misconduct.

In addition, based in part upon demeanor evidence, the Board deferred to the AJ’s credibility assessment “that the appellant could not be trusted to maintain her professional judgment in the event she again suffered difficulties in her personal life.”

Therefore, the Board upheld the appellant’s removal despite the mitigating factors and the error made by the PO and DO.

For more on drafting legally sufficient disciplinary charges and making defensible penalty determinations, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. Hopkins@FELTG.com

Applicant Failed Polygraph, But Agency Failed to Provide EEO Process Info

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By Deborah J. Hopkins, May 16, 2023

A new case from the EEOC reminds us it’s important to notify applicants about the EEO process. Lela B. v. DHS/USSS, EEOC Appeal No. 2023000348 (Apr. 20, 2023).

The complainant applied for a Uniformed Division Officer position at the U.S. Secret Service. As is mandatory for such a position, she was required to undergo a polygraph examination, which she failed on Nov. 8, 2021, “based on an inquiry regarding illegal drugs.” She was then notified she was no longer being considered for the position.

She contacted an EEO counselor on April 22, 2022. After an unsuccessful attempt at informal resolution, she filed a formal EEO complaint on June 7, 2022, alleging the agency discriminated on the bases of race (African American) and sex (female) when:

  1. On Nov. 8, 2021, the two agents who conducted the complainant’s polygraph hindered her from obtaining a job in her career field through coercion and deceitful tactics during her test that rendered a false result.
  2. On Nov. 8, 2021, the two agents who conducted Complainant’s polygraph coerced her into writing a false statement following her polygraph.
  3. The Assistant to the Special Agent in Charge released false information to a subsequent potential employer, a local Sheriff’s Office, regarding selling illegal drugs. Complainant stated, on April 21, 2022, the Sheriff’s Office informed her via email that she had “permanent disqualifiers” from employment with them, and suggested she resolve the matter with the agency.

Unsurprisingly, the agency dismissed claims (1) and (2) for untimely EEO contact, as the complainant contacted the EEO counselor months after the 45-day time limit. See 29 C.F.R. § 1614.105(a)(1). The agency also dismissed claim (3) for failure to state a claim.

The EEOC was compelled by the complainant’s argument she was not aware of the 45-day statutory timeframe because she was merely an applicant and not an employee, and “there is no evidence that she was aware of the 45-day time frame through training, posters and other information.”

Regarding claim 3, the EEOC found the agency erred in dismissing the claim, and that “the alleged actions render Complainant aggrieved” because she “alleged that the Agency manipulated the polygraph results and provided a negative reference to her potential employer because she is an African American woman.”

As a result, the EEOC remanded the case back to the agency. Properly accepting claims will save your agency countless time and resources over a remand like this  – and FELTG can help. In October, we’re holding the virtual training Get it Right the First Time: Accepting, Dismissing and Framing EEO Claims – but we can bring this to your agency sooner if you have any interest. Just let us know. Hopkins@FELTG.com