Determining Hostile Work Environment: Is it Severe? Or Pervasive? Or Neither?

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By Dan Gephart, January 17, 2024

Over the last several years, agencies have paid more particular attention to harassment, including the non-EEO kind. This has led to a greater general awareness of hostile work environment. Unfortunately, while more people are aware of HWE, there are way too many who don’t understand exactly what it is.

Much of the misunderstanding is on the part of employees who define the term “hostile” way too broadly, Ann Modlin wrote late last year. However, those who should know better are not immune to confusion when it comes to recognizing and addressing an actionable hostile work environment.

Most EEO and HR professionals can recognize verbal and physical behavior that is unwelcome, and most can discern if the conduct was based on the employee’s protected status. But confusion rears it head when discussion turns to the third part of the elements of proof – determining if the conduct was sufficiently severe or pervasive to alter the terms, conditions, and privileges of employment.

There is no simple rule or guideline for determining hostile work environment, as it often depends on the unique circumstances of each case. Here are five points to help you make the appropriate determination.

  1. Remember that it’s severe or pervasive – not and.
  2. This means a single incident, if severe enough, can create a hostile work environment.
  • The EEOC found sufficient evidence to support a finding that a manager came up to the complainant while she was at her workstation, grabbed her around the waist, and kissed her on the neck. Trina C. v. USPS, App. No. 0120142617 (2016).
  • A male coworker pushed the complainant’s hair back and stuck his tongue in her ear. Hayes v. USPS, No. 01954703 (1999).
  1. On the flip side, a single incident that is not severe would not be an HWE. Here’s an example from a Supreme Court case:

An employee met with her male supervisor and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.”  The supervisor read the comment aloud, looked at the employee and stated, “I don’t know what that means.” The male employee then said, “Well, I’ll tell you later,” and both men chuckled. The Supreme Court ruled: “Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in employment terms and conditions.” Clark County School District v. Breeden, 532 U.S. 268 (2001).

  1. However, non-severe conduct could create a hostile work environment if it is frequent or pervasive. Some of the actions in Gillespie v. McHugh, App. No. 0120080758 (2012), are not severe alone, but when viewed together, it’s another story. Over time, the supervisor:
  • Told the complaint that she was not an expert on regulatory matters and that the districts didn’t come to her for advice.
  • Gave the complainant a lower performance rating than she had received previously, and one lower than all other attorneys in her group.
  • Told the complainant she was not qualified to be on the Chief Counsel’s Management Partners’ Group.
  • Told the complainant she didn’t know how to brief people.
  • Sent an email to a Regulatory Appeals Officer apologizing for inadvertently sending out a draft for others to review, while blaming the complainant for the mistake.
  • Chastised the complainant for not volunteering to work on a project.
  • Acted in a hostile and demeaning manner towards the complainant during a meeting.
  • Accused the complainant of being condescending, rude and in violation of her oversight responsibility.
  • Intentionally refused to select the complainant to represent the Office of Counsel at weekly meetings.
  • Blocked an on-the-spot award that a district wanted to give the complainant.
  • And much more.

On their own, some of the bullets above appear to be standard supervisory actions. And as we know from the numerous emails we’ve received (and the article Deb wrote last year), some overly sensitive employees are confusing basic supervisory functions with harassment.

In Gillespie, however, the pervasiveness of the evidence along with witness statements led to the EEOC overturning its administrative judge’s ruling that sided with the agency.

“It was a very nasty tone,” a co-worker testified about one of the meetings. “That’s what made me feel sick … And since [the complainant] is a good coworker and team player and has always been helpful, I was thinking, well, how can I reiterate to [the supervisor] that [the complainant] did everything she was supposed to do for my team . . . and make sure [the supervisor] understood that.”

In Gillespie, the EEOC not only overturned the AJ’s decision, but it also found the agency liable. While it directed the agency to secure training for the supervisor, the EEOC also strongly recommended discipline.

  1. When making determinations about a hostile work environment, always consider the following:
  • Frequency and duration of conduct
  • Vulnerability of the victim
  • Makeup of the workforce
  • Relative positions of the perpetrator and harassed employee

If you’re looking for more guidance on hostile work environments, join us on Feb. 20 for the two-hour virtual training Navigating Complex Hostile Work Environment Harassment Cases. gephart@feltg.com

5 ECAB Decisions Reveal How Workers’ Comp Overpayment Happens

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By Frank Ferreri, Jan. 17, 2024

For a variety of reasons, some benign and others more sinister, Federal employees may wind up on the receiving end of a workers’ compensation overpayment. What happens when the Employees’ Compensation Appeals Board decides that a Federal worker received a workers’ compensation overpayment?

Under the Federal Employees’ Compensation Act, and particularly Section 8129, when an overpayment has been made to a Federal employee receiving workers’ compensation benefits, an adjustment is made by decreasing later payments to which the employee is entitled. If the worker dies before the adjustment is completed, an adjustment will be made by decreasing death benefits.

Recovery isn’t always required. Section 8129 also provides that adjustment or recovery may not be made when both of the following are true:

  1. Incorrect payment has been made to a worker “who is without fault”; and
  2. Adjustment or recovery would defeat the purpose of FECA or would be against “equity and good conscience.”

The following cases show the remedial steps ECAB takes in cases of overpayment.

J.B. and Department of the Army, Combat Developments Experimentation Center, No. 22-1027 ECAB (Nov. 16, 2023)

Alleged overpayment amount: $169,429.15

How it happened: An operations research analyst received wage-loss compensation for permanent aggravation of major depression and prolonged depressive reaction. For roughly 22 years after being divorced, the worker claimed that he was married, that his spouse did not live with him, and that he made regular payments for her support, and thus, he received an augmented rate of compensation. The worker claimed that he was unaware that his marriage had been dissolved and that his signature on the document associated with the dissolution was a forgery.

ECAB decision: The worker received the overpayment because:

  1. Under FECA, a former spouse does not come within the meaning of the term “wife.”
  2. There was no evidence of any dependent children at the time of the divorce.
  3. The worker was not required to pay spousal support.

Thus, from Nov. 20, 1998, through April 25, 2020, the worker received $1,390,519.32 in FECA compensation benefits at the augmented rate but was entitled to only $1,221,090.17 at the basic rate.

Watkins and U.S. Postal Service, 28 ECAB 632 (1977)

Alleged overpayment amount: $16,150.08

How it happened: A letter carrier who sustained an injury to his right knee received compensation for temporary total disability benefits and concurrently received retirement benefits from the Civil Service Commission. The worker didn’t take steps to stop his receipt of dual benefits.

ECAB decision: The worker was given the chance to elect between workers’ compensation and civil service retirement benefits for the period from Mar. 1, 1975, through Jan. 5, 1977. Were he to elect retirement benefits, the overpayment amount would be the amount that was paid in workers’ compensation, which was $16,150.08. If he decided on workers’ compensation benefits, the overpayment would be the difference between the amount the worker was paid ($16,150.08) and the amount to which he would be determined to be entitled. In that scenario, the worker would also have received an overpayment under the retirement system that he would have to repay.

 Smith and Department of Transportation, Federal Railroad Administration, 48 ECAB 132 (1996)

Alleged overpayment amount: $216,105.25

How it happened: A Federal railroad worker received workers’ compensation benefits for a right knee injury he later admitted did not occur as he described in his claim. Instead, the worker “just wanted to get a couple months off to work on [his] home.” Following that admission, the worker argued that when he made the statement about just wanting some time off to fix up the house he was “mentally incompetent.”

ECAB decision: The incompetence argument fell flat, and ECAB found that the worker knowingly made an incorrect statement that he had injured his knee at work, and accepted payments he knew were incorrect.

 C.H. and Department of The Navy, Mare Island Naval Shipyard, No. 08-2426 (ECAB Aug. 14, 2009)

Alleged overpayment amount: $8,882.61

How it happened: An employee sustained a right knee injury from getting in and out of tanks and walking up and down steps on a deck. In addition to FECA benefits, the carrier also received Social Security benefits as part of his Federal Employee Retirement System retirement package.

 ECAB decision: Per FECA Bulletin No. 97-9, the portion of the Social Security benefit the worker earned as a Federal employee was part of the FERS retirement package, and the receipt of FECA benefits and Federal retirement concurrently was a prohibited dual benefit.  ECAB ruled that repayment of the overpayment could be accomplished by withholding $550 per month from his continuing compensation.

 Borquez and Department of the Air Force, Davis-Monthan Air Force Base, No. 03-1989  (June 10, 2004)

Alleged overpayment amount: $85,950.76

How it happened: An Air Force employee pleaded guilty to mail fraud to obtain workers’ compensation benefits. On that basis, ECAB determined that the worker received an overpayment.

ECAB decision: The overpayment amount was initially calculated at $104,367.25 before deductions of $9,181.07 for the amount of compensation the worker was owed but did not receive for a six-month period and $5,600, which was the amount the worker paid in court-ordered restitution. ECAB upheld the $85,950.76 calculation of the worker’s overpayment of FECA benefits.

The lesson: Honesty is the best policy. If you received too much in workers’ compensation benefits, report the overpayment. Anyone who tries to secure additional benefits by wrongdoing will eventually face the wrath of OWCP, ECAB, and, possibly, criminal law. Info@FELTG.com

Wrong Place, Wrong Time: Teleworker AWOL When He Failed to Report to Office

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Can an agency charge Absent Without Leave (AWOL) if the employee was working, but in the wrong location? A new MSPB case, Wong v. Commerce, DC-0752-17-0298-I-2 (Dec. 9, 2023)(NP), tackles that very scenario.

Read more

Does it Matter if a Dog is a Service Animal or Emotional Support Animal?

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In a semi-recent case involving an employee’s request for a dog in the workplace, Dona A. v. SSA, EEOC No. 2022000745 (May 9, 2022), the complainant requested 15 accommodations, including that her dog be permitted to come to work with her. Let’s break it down.

Read more

Year in Review: Top FELTG Newsletter Stories of 2023

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Welcome to another year-end News Flash, where we reveal the two most popular FELTG newsletter stories (based on the number of reads and forwards) for each month of 2023. Let’s dive in.

Read more

Nude Photos, Fake Feces, Party Rumors: A Few of MSPB’s Holiday No-Nos

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By Deborah Hopkins, December 4, 2023

As December rolls along, many of you will be attending or participating in holiday parties or gift exchanges. To kick off the holiday theme of this month’s newsletter, I wanted to share three lessons about employee (mis)conduct related to the holidays.

Inappropriate use of a photo taken at a Christmas party was “abusive and offensive.”

The appellant, an M-5 supervisor at the Tennessee Valley Authority, was suspended on multiple charges. One charge included showing a female subordinate employee an inappropriate photograph. The photograph was taken of the subordinate, without her knowledge, during a Christmas party. That was only part of the problem. The appellant then took the subordinate’s head from the photo and attached it to a centerfold picture of the body of a naked woman, and showed the photo to the appellant, who testified that she was humiliated and embarrassed by the incident. MSPB held that this incident, along with others discussed in the case, amounted to “a course of abusive and offensive behavior which, if directed in large part to female employees, is discriminatory.” Hayes v. TVA, 4 MSPR 411, 414 (Dec. 16, 1980).

A Christmas gag gift can amount to disrespectful conduct.

The appellant, a WG-9 painter at the Department of Veterans Affairs, brought a red Huggies box to work and placed it on his supervisor’s workstation. The box contained what appeared to be a soiled diaper. The agency drafted the following charge:

On January 5, 2012, three individuals saw you put a red Huggies diaper box on the desk of Supervisor Mark Treadway. The box contained a baby diaper that looked like it had feces in it. According to the witnesses, you made the following statements, “Do you think this would make Mark mad” and “I hope it does.”

The “feces” was actually a candy bar that had been made to look like feces. The appellant testified it was a Christmas gag gift he had received from his mother and his sister, although witnesses did not corroborate that statement.

The supervisor was troubled with what he found at his workstation. He thought the feces was real. He called the agency’s Infectious Disease team to dispose of the box. The Administrative Judge found the appellant’s behavior amounted to disrespectful conduct. Franklin v. VA, AT-0752-12-0454-I-1 (Jul. 23, 2012)(ID).

The Whistleblower Protection Act does not protect disclosures based on rumors of events at holiday parties.

In this case, the appellant, a GS-12 correctional program specialist/special investigative agent at the Federal Bureau of Prisons, asserted he heard a rumor from other employees that there had been a fight during the institution’s holiday party, which he had not attended. He reported the rumor, which included an allegation that the associate warden had been involved in the altercation, to the agency’s executive staff. When he was disciplined for conducting an unauthorized investigation, misuse of position, and lack of candor, he claimed whistleblower reprisal, but the MSPB found the disclosure was not protected because “when the appellant made the disclosure, it was based on mere rumors, and he did not even know who allegedly had been involved.” Johnson v. DOJ, 2007 MSPB 42, P14 (Feb. 6, 2007).

Have a wonderful holiday season, FELTG readers, and let’s all remember to make good decisions out there. Hopkins@FELTG.com

The Good News: A Letter to Santa 2023

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By Ann Boehm, December 4, 2023

Dear Santa:

I hope you’ve had a wonderful 2023. Are the elves pushing for a hybrid environment? I hope the reindeer are not working remotely! Especially not on December 24, because that would be a real problem!

My year has gone well. I have done more in-person training this year, which is fun. Remote still works too.

I have been behaving. But Congress – not so much. More on that in a second.

I am working hard on writing efficiently and effectively, so I am going to put my requested Christmas items in order of importance.

  1. A pony.

I really feel like it’s only a matter of time until a pony appears at my house on Christmas!

  1. A budget from Congress.

Actually, several budgets are needed in 2024. Some need to pass in January. Some need to pass in February. And, oh yeah, how about a budget by September 30 for a change? (I realize this one may be tougher than the pony.) Please don’t let the naughty behavior of the Members of Congress hurt the good Federal employees who are tired of budget deadline drama.

  1. Revision of all collective bargaining agreements (CBAs) that have Performance Improvement Plans (PIPs) lasting more than 30 days. (I am really asking for a lot this year. I know that!)

I feel sad when I see a CBA with a 90-day PIP. If 30 days works for the Merit Systems Protection Board, why should CBAs ever require more than 30-day PIPs? Help the unions understand this, please!

  1. Hatch Act compliance by all Federal employees. 

It’s a big election year. And it’s going to be ugly. Federal employees need to remember that the Hatch Act prevents certain political activities, because they work in a merit system. The Office of Special Counsel will send out lots of guidance. Read it! For the good of the public, Federal employees need to abide by the Hatch Act’s requirements.

  1. Effective communication in the workplace.

Please help managers communicate effectively with employees, and employees voice appropriate concerns to managers. Also, help managers be aware they need to inform advisors about problem employees as soon as they sense a problem. And advisors need to listen to the managers’ concerns and do their best to help – not just provide a knee-jerk “no, we can’t do that” reaction.

Santa, I said that my list was in order of importance, but then I realized what I really want for Christmas. Please help the candidates for President, members of Congress, the media, and the public appreciate the hard work and truly public service provided by Federal employees. There are so many amazing people working in many different capacities in our Federal agencies. With the exception of a few bad eggs (that we at FELTG try to help managers and advisors handle appropriately), we have an amazing Federal workforce! And you know what Santa – that’s Good News.

Merry Christmas! Happy New Year!  Boehm@FELTG.com

Spread Cheer Wisely and Avoid Discrimination by Decoration

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By Frank Ferreri, December 4, 2023

It’s that time of year again. Office workers across the world, including the Federal government, will soon bring merriment to their cubicles, quads, and corridors with lights, snowpersons, trees, and other indicia of “the season.”

While some Yuletide cheer is appropriate, welcome, and legally acceptable around the holidays, getting too zealous in workplace decorations can earn more than a lump of Title VII coal from the EEOC or a court.

In terms of what the law requires, whether harassment on the basis of religion is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems, 510 U.S. 17 (1993).

To establish a case of hostile environment harassment on the basis of religion, as detailed in Humphrey v. USPS, EEOC App. No. 01965238 (Oct. 16, 1998), a complainant must show all of the following:

  1. She was a member of a statutorily protected class (here, religion).
  2. She was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class.
  3. The harassment complained of was based on the statutorily protected class.
  4. The harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment.

These EEOC and court decisions provide guidance to ensure the holidays are merry, bright, and nondiscriminatory.

Decision: Sturman v. FAA, EEOC App. No. 0120072361 (Oct. 31, 2007).

Facts: An air traffic control specialist claimed he was discriminated against on the basis of religion (Jewish) when a facility manager allowed her staff to hang Christmas decorations during business hours but did not hang Chanukah decorations. Staff also downloaded Christmas songs to her computer during business hours. The specialist submitted pictures of a workplace with a Christmas tree, a Christmas wreath, garland, lights, and other Christmas holiday decorations.

Ruling/analysis: The specialist’s case “failed” on the question of whether the atmosphere at work had the purpose or effect of unreasonably interfering with the work environment.

The EEOC noted the decorations — a Christmas tree, wreath, icicle lights, garland, and Santa Claus — were “predominantly secular” in nature. Although the tree “seemed to have had a number of ornaments which featured an angel,” the overall display was not religious, since “there was not a nativity scene, nor was there any other decoration which was religious in nature.”

The EEOC also noted that although Christmas trees are commonly associated with the Christian holiday of Christmas, “it has become a prevalent practice for many people and businesses to decorate evergreen trees, and feature lights and garland, as an expression of ‘the winter holiday spirit’ in a very secular sense.”

* * *

Decision: Garry H. v. FAA, EEOC App. No. 0120181570 (Sept. 24, 2019).

Facts: In one of six sections of a control room, an air traffic control specialist’s coworker put up a sign that read “Happy Hanukkah,” a silver and blue garland along with stars of David on the lights; a sign that read “Happy Kwanza” [sic]; and a sign that said, “Santa is coming in [x number] of days,” along with Christmas lights and wrapping paper.

The specialist claimed the agency discriminated against him on the basis of religion (Jewish) when all non-Christmas decorations were taken down while Christmas decorations throughout the facility stayed up.

Ruling/analysis: The specialist did not prove the agency subjected him to discrimination. The decorations the specialist complained about were secular decorations that were permitted throughout the Federal government and work environment.

“The record shows the holiday decorations … consisted of a sign that said, ‘Santa Clause [sic] is coming in [x number] of days,’ Christmas lights and wrapping paper,” the EEOC wrote. “According to the U.S. Supreme Court, such holiday decorations amount to secular symbols rather than an expression of a religion and displaying them in the federal workplace does not violate the establishment clause of the First Amendment.”

The EEOC also explained that Tile VII does not require a public or private employer to remove holiday decorations or add holiday decorations associated with other religions.

* * *

Decision: Ian S. v. IRS, EEOC App. No. 0120160622 (Apr. 27, 2018).

Facts: A senior individual taxpayer advisory specialist alleged that the agency discriminated against him on the basis of religion (Jehovah’s Witness) when his manager would not allow him to eat at his desk so that he could avoid exposure to holiday decorations in the break room, where a tablecloth and two poinsettias offended his religious beliefs.

Ruling/analysis: The holiday decorations at issue amounted to secular symbols rather than an expression of a religion, and displaying them in the federal workplace did not violate the establishment clause of the First Amendment.

* * *

Decision: Moore v. AAFES, EEOC App. No. 01933575 (Mar. 16, 1994).

Facts: A warehouse worker alleged he was discriminated against on the basis of religion (non-Christian) when Christmas music was played over the public address system where he worked.

Ruling/analysis: Even if the worker could prove that there was a deliberate intent on the part of the agency to harass him by playing Christmas music, it still would not rise to the level necessary to prove discrimination. This was because the harassing music complained of was played only on two days and for relatively brief periods of time.

* * *

Decision: Lurensky v. FERC, 167 F. Supp. 3d 1 (D.D.C. 2016).

Facts: The employee, who was a Jewish woman in her 60s, alleged the agency subjected her to disability discrimination when it denied the employee’s request to remove a Christmas garland off of a handrail in the lobby of the building where she worked.

Ruling/analysis: “Though a Christmas garland may have annoyed or inconvenienced the plaintiff, this allegation … fails to state a claim for discrimination or retaliation because it does not amount to an adverse employment action,” the court reasoned, since the garland did not affect the terms of employment and the decision to leave it in place was “not sufficiently adverse to chill a complainant’s exercise of her rights.”

* * *

Decision: Plotkin v. Shalala, 88 F. Supp. 2d 1 (D.D.C. 2000).

Facts: An HHS scientist, who was Jewish, complained about the display of “Christian Christmas decorations” in the workplace prior to being terminated.

Ruling/analysis: The employee’s concession that she was dismissed because of her alleged conduct and that her employer’s decision to terminate her employment was made before she voiced her concerns about the office Christmas decorations “effectively dispose[d] of” her claim of religious discrimination.

* * *

Decision: Spohn v. DVA, 2000 WL 1459981 (S.D.N.Y. 2000).

Facts: A VA employee, who was Catholic, alleged the agency violated his rights by displaying symbols of the Jewish religion, but not the Christian religion, in public areas of the hospital during two December holiday seasons. It appeared that “menorahs were displayed along with toy soldiers, Christmas trees, and Santa Clauses,” which the employee considered secular symbols, as well as “posters celebrating Kwanza” [sic] and “signs mentioning Muslim prayer services.”

The employee sought to have the court order a nativity be added to the VA’s decorations.

Ruling/analysis: Because the employee did not allege specific facts about the holiday displays, the claim was dismissed. However, along the way, the court noted that holiday displays including religious as well as secular symbols of the holiday season have been upheld but displays of religious symbols standing alone in locations associated with core governmental functions have been struck down.

The court also explained that while the agency could not be prohibited from displaying a creche in addition to a menorah in an “appropriate setting,” there was no authority for the proposition that such a pairing was constitutionally required.

“This Court cannot order the Center to include a creche in its holiday display,” the court pointed out. In addition, citing County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989), the court highlighted that “Chanukah, like Christmas, is a cultural event as well as a religious holiday” in that “[j]ust as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and ‘as a cultural or national event, rather than as a specifically religious event.’”

What’s the takeaway from cases like these? A workplace that stays secular and celebrates the “American cultural” version of the holidays in its decorations will keep the season jolly and away from Title VII troubles. But for everyone’s sake, leave Mariah Carey in the earbuds. Info@FELTG.com

Ask FELTG: Are There Restrictions on Gift-giving Between Feds Who are friends?

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December 4, 2023

This question came into the Ask FELTG mailbag: I know there are prohibitions on gift-giving when it involves Federal employees, but are there any restrictions on gift-giving if two people who are friends also happen to be Federal employees

The source for all things gift-related is 5 CFR Part 2635, and Subpart C specifically relates to Gifts Between Employees. The main area of concern involves gift-giving when there’s a supervisor-subordinate relationship, and/or a discrepancy in pay. According to § 2635.302, an employee may not — directly or indirectly — accept a gift from an employee receiving less pay than himself unless:

  • The two employees are not in a subordinate-official superior relationship; and
  • There is a personal relationship between the two employees that would justify the gift.

Unless the friends work for the same agency, and one was the superior of the other, there is probably not an ethical concern about gift-giving if there are no ulterior motives.

If the two of you work for the same agency and there’s a superior-subordinate relationship, you’ll probably want to check with your agency’s Ethics office or Office of General Counsel if you have any concerns. Info@FELTG.com

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.