A New Aggravating Job Type Under Douglas Factor 2

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By Deborah J. Hopkins, November 15, 2022

A brand-new precedential MSPB decision has led me to ask FELTG readers: What charge would you draft, and what penalty would you assess, in this case? Here are some facts:

The appellant, a GS-9 Supervisory HR specialist, made several comments and engaged in conduct toward two subordinates over an 18-month period which made them uncomfortable, including:

  • Calling them “sexy” or “beautiful”
  • Commenting on what a subordinate was wearing, including “you look nice,” and you “should wear dresses more often because [she] has nice legs.”
  • Leering
  • Staring at a subordinate’s rear end
  • Continuing to make comments even after the subordinates told him he had crossed a line
  • Making advances and “hitting on” them

In addition to the above, the appellant spent hours in his office, with the door closed, “with a particular female subordinate employee, reportedly engaging in conversations that were personal in nature, and that he, as a supervisor, should have recognized that his actions could be construed as favoritism and were disrupting his office.” This caused a disruption because the appellant “was often unavailable to assist other [employees].”

A few of the aggravating factors identified in the case:

  • One subordinate employee would hide out of sight in a co-worker’s office when the appellant was around
  • The appellant’s supervisor spoke to him “numerous times” about his inappropriate behavior
  • A 13-day suspension a few years previously for sending pornographic emails using his government-issued computer to another female subordinate employee
  • Disruption in the workplace

And mitigating factors:

  • His length of service and “good performance”
  • The appellant’s claims that he was suffering from stress and tension in the workplace due to his relationship with his supervisor
  • The appellant’s claims that he was suffering from depression

The agency removed the appellant for conduct unbecoming a supervisor, with two specifications — one for his unwelcome conduct toward his subordinates including calling them “beautiful” and “sexy” and the other for his closed-door conduct in his office with the subordinate.

Despite upholding both specifications and thereby affirming the charge, the AJ found removal too severe and mitigated the penalty to a 14-day suspension and demotion, primarily because the conduct did not include “more serious charges such as sexual harassment, making sexual advances, or inappropriate conduct” towards female subordinates.

On PFR, the Board disagreed with the AJ’s characterization of the misconduct and held the AJ “erred in limiting the specification to two instances of the appellant calling female subordinates ‘beautiful,’ and in doing so, trivialized the severity of his behavior.”

The appellant’s misconduct actually spanned several months and went well beyond two instances.

In its review, the Board looked at Douglas factor 2, job level and type, holding in line with MSPB precedent that “because supervisors occupy positions of trust and responsibility within an agency, the agency has a right to expect a higher standard of conduct from them.” Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010). But then it continued:

Furthermore, while the appellant’s misconduct would be serious in any context, when considered in the context of the appellant’s position as a Supervisory Human Resources Specialist, we find his misconduct to be exceptionally serious. The importance of a healthy and effective human resources department for an agency cannot be overstated … Human resources employees, such as the appellant, play crucial roles in maintaining the quality of public service, because it is the responsibility of the human resources component of an agency “to retain Governmentwide approaches, authorities, entitlements, and requirements” in areas including “[a]ccountability for adherence to merit system principles” and “[e]mployee protection from prohibited personnel practices.” [bold added]

The Board held that the appellant’s conduct was “antithetical” to his responsibilities as a Supervisory Human Resources Specialist and “strikes at the very core of his job duties to assist in protecting the merit systems principles and prevent prohibited personnel practices.” Therefore, removal was within the bounds of reasonableness. Thomas, IV v. Army, 2022 MSPB 35 (Oct. 20, 2022).

The big takeaway from this case is that in addition to supervisors, LEOs, and SESers, HR employees may also be held to a higher standard under Douglas factor 2.

We discuss this case and others in detail during MSPB Law Week, December 5-9. Hopkins@FELTG.com

The Good News: Douglas Factor 5 is Your Chance to Tell the Story

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By Ann Boehm, November 15, 2022

Anyone who has taken my training or read my articles knows how much I like the Douglas factors, established by the Merit Systems Protection Board (MSPB or Board) way back in 1981: Douglas v. VA, 5 MSPB 313 (1981). The Douglas factors serve as a logical tool that enables proposing and deciding officials to figure out a defensible, reasonable penalty for an employee who engages in misconduct.

For proposing officials and deciding officials, it is necessary to understand the importance of Douglas Factor number 5: “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.”  Douglas, 5 MSPB at 332. It is your chance to tell the story!

I acknowledge that it is well-settled in Board law that the most important Douglas Factor is number 1. MSPB cases repeatedly state, “[i]n selecting a reasonable penalty, the Board must consider, first and foremost, the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated.” But what is often overlooked is the significant weight the Board gives to Douglas Factor 5.

Cases from the long-awaited newly-quorumed (yep, I know that is not a real word) MSPB substantiate the importance of Douglas Factor 5. In Sheiman v. Department of the Treasury, the Board agreed that the employee’s continued use of sick leave to play golf justified removal, highlighting that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision,” and “[t]he deciding official’s loss of trust is an aggravating factor.” MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP).

Similarly, in Purifoy v. DVA, the Board found removal for AWOL to be reasonable, noting “[t]he deciding official’s loss of confidence in the appellant and his concern that the appellant’s misconduct conveyed a negative message to other employees are also aggravating factors.” MSPB No. CH-0752-14-0185-M-1, at 8 (May 16, 2022) (NP). Specifically, “the deciding official testified that he did not think that the appellant ‘was going to come back and be a good employee’ and, according to the Douglas factors worksheet, which the deciding official considered in imposing the appellant’s removal, his supervisors ‘lost all confidence in his ability to perform his assigned duties’ because he was not present to perform them.” Id.

(Can we pause for a moment to appreciate that last sentence? The supervisors lost confidence in his ability to perform his duties because he was not there – he was AWOL. Hahaha. Makes sense to me.)

Supervisor confidence can also benefit an employee. In my experience, I have seen instances where an employee really messed up with some major misconduct, but the supervisor’s continued confidence in the employee resulted in a penalty less than removal.

And that is ultimately my point about Douglas Factor 5. Supervisors know their employees. They know the impact misconduct has on their office and their mission. They are the only ones who know that. The Board understands this.

Tell your story. The Board will listen. And that’s Good News! Boehm@FELTG.com

No Debate Necessary: Accommodating Employees Who Had Strokes

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By Dan Gephart, November 15, 2022

I watched my no longer undefeated Philadelphia Eagles take on the Washington Commanders on Monday Night Football. I am usually a wreck watching my Birds, and the last few weeks have been more anxiety-filled than ever. Despite the loss, the game was less stressful. The reason? I wasn’t forced to watch dozens of political ads during the game.

Regardless of where you are on the political spectrum or how you feel about last week’s results, I think we can all agree on saying good riddance to these dark, poorly produced, truth-averse, fear-mongering commercials. This past election season took awfulness and ugliness to a new level.

As losing candidates and parties continue their post-mortems this week, I’d like to conduct one, too. But I don’t want to discuss issues, votes, winning, or losing. Let’s talk about reasonable accommodation.

As the Pennsylvania primaries rolled to an end, the campaign for Senatorial candidate John Fetterman announced that he had suffered a stroke. Fetterman still won the Democratic primary, then stayed off the campaign trail for weeks as he recovered.

A major party candidate for the Senate recovering from a stroke seemed like an anomaly. It’s not. Former Illinois Senator Mark Kirk suffered a severe stroke and still campaigned for reelection in 2016, although he eventually lost to Tammy Duckworth. Two current Senators – Ben Ray Lujan of New Mexico and Chris Van Hollen of Maryland – have suffered strokes since they’ve been in office. More than 795,000 people in the United States have a stroke each year, according to the CDC.

Fetterman’s campaign announced he had auditory processing difficulties, a common occurrence after a stroke. Fetterman’s first big foray back in public, other than a few small rallies, was a televised high-stakes debate with his opponent Mehmet Oz. Fetterman had requested and received an accommodation of closed captioning.

Despite the accommodation, Fetterman stumbled over some words, struggled to find others, and spoke haltingly. Critics and opponents called his debate performance “painful to watch,” “disastrous,” and “cringe-worthy.”

As Federal HR and EEO practitioners and supervisors, what can we learn from all of this?

  1. A communication disorder is not a reflection on an individual’s brain capacity or his/her/their ability to do a specific job. This should be obvious to everyone, but it isn’t always. For years, people have assumed that someone who struggles communicating — whether it’s a speech impediment or aphasia — lacks intelligence. Research has consistently shown that is not always the case.
  1. Accommodations are highly individualized. Just because another employee who had a stroke received a certain reasonable accommodation doesn’t mean that accommodation will be successful for someone else who suffered a stroke. There are a wide variety of stroke-related limitations. And people experience these limitations in different ways. The Job Accommodation Network suggests asking the following questions during the interactive process:
  • What limitations is the employee experiencing?
  • How do these limitations affect the employee and the employee’s job performance?
  • What specific job tasks are problematic as a result of these limitations?
  • What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
  • Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
  • Do supervisory personnel and employees need training?
  1. Not every reasonable accommodation will be effective. Closed captioning is a potentially effective accommodation for someone who processes visual information better than auditory information, such as Fetterman. “But during a debate,” Disability Policy Expert Adam Fishbein wrote in an opinion piece for the Philadelphia Inquirer, “where multiple people were speaking rapid-fire, it would be difficult for Fetterman to integrate what he needed to read in order to process what was being said.” Fishbein and his cowriter Susan Paul, a certified speech/language pathologist, said a more effective accommodation would’ve been to allow Fetterman extra time to digest what he read and formulate his response, not starting the clock on his response until he started talking. Work closely with the employee and communicate often about the effectiveness of the accommodation.
  1. Have patience with the employee, but don’t delay accommodation. Not only are the limitations for individuals who have had strokes highly individualized, so is the recovery time. Taking your time to find the right accommodation doesn’t mean letting the situation play out. Jeffry R. v. USPS, EEOC App. No. 0120180058 (EEOC 2019) offers a great example: After a city carrier had a stroke that caused partial paralysis, he requested a spinner knob on his vehicle. The agency failed to provide one for three years. The agency argued that the carrier was not qualified because he took too long to complete his route. However, the EEOC found the agency only gave the carrier one month to reacclimate to delivering mail and to his route – he was able to do it within four months.

For more guidance on accommodation, join Attorney at Law and FELTG Instructor Katherine Atkinson November 17 for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. Gephart@FELTG.com

Can Agencies Drug Test Injured Workers?

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By Frank Ferreri, November 15, 2022

Let’s say an employee who is going about her business on the job slips and falls, resulting in an injury for which she files a claim for workers’ compensation benefits. Someone at the agency thinks that it wasn’t work that caused the spill but the fact that she was under the influence of drugs at the time of the injury.

The agency, wanting to get the record straight, decides the employee needs to undergo drug testing. Can the agency do such a thing and what sort of considerations apply when an agency has made the call to test for drugs?

The following breaks down what Congress, the Office of Workers’ Compensation, and the Employee Compensation Appeals Board (ECAB) have had to say about drug testing for workers injured on the job.

First off, while it isn’t the law it should be pointed out that Executive Order 12564, signed into effect by President Reagan in 1986, maintains that Federal employees are required to refrain from the use of illegal drugs. The EO charges agencies with establishing programs for drug testing. So, Federal employees shouldn’t be using drugs in the first place, and agencies have the authority to take action against those who do.

In the specific context of workers’ compensation, under 5 USC Sec. 8102(a), Congress has declared that agencies are not required to pay workers’ compensation benefits for a disability or death that is proximately caused by the intoxication of the employee. Unlike Reagan’s EO, it’s not just illegal drugs that are a problem. That’s because on the regulatory side of things, in 20 CFR 10.220, OWCP clarified by implication that the “intoxication” referred to under the statute is “intoxication by alcohol or illegal drugs.”

In 2009, OWCP released Publication CA-810, which, among many other things, spelled out that an agency defending against compensating an employee must present a record that establishes the extent to which the employee was intoxicated at the time of the injury and the particular manner in which the intoxication caused the injury.

So, while the work doesn’t stop by proving that an employee was under the influence of illegal drugs or alcohol, it is a necessary first step to controverting a claim.

The 2009 publication emphasized that an agency looking to proximately link an injury to an employee’s intoxication does not have “any additional authority to test employees for drug use beyond that which may exist under other statutes or regulations.”

An agency claiming the employee’s intoxication as a defense should, per the FECA Procedure Manual, obtain a statement from the physician and hospital where the employee was examined following the injury that describes the extent to which the employee was intoxicated and the manner in which the intoxication affected the employee’s activities. As part of this, the manual directs agencies to obtain “the results of any tests made by the physician or hospital to determine the extent of intoxication.”

Contours of the law

To see how the law plays out in the real world, it’s necessary to look at ECAB decisions that have weighed in on the issues of injured employees, their intoxication, and agency-employed drug testing.

Here’s a look at a few cases for insight on those subjects:

N.P. and U.S. Postal Service, 2011 WL 4499581, No. 10-952 (ECAB July 26, 2011)

What happened? A letter carrier alleged that she injured the left side of her head, broke her left elbow, and scraped her left knee when she fell after making a delivery.

The agency’s argument. The agency controverted the claim, asserting that she was intoxicated at the time of the injury due to her consumption of narcotics and, therefore, did not sustain an injury in the performance of duty, which is a required showing for an employee to obtain benefits.

The drug testing issue. Because the carrier appeared to be intoxicated – allegedly she was slurring her speech and falling in and out of consciousness and another patient expressed concern that the carrier had been driving — the hospital where she received treatment for her injuries administered the test, which came back positive for opiates. Further analysis revealed the presence of “an extremely high concentration of morphine and a significantly elevated level of oxycodone.”

How the ECAB ruled. According to the board, the evidence, including the drug test, wasn’t “clear” that the carrier was intoxicated at the time of her fall and did not establish that intoxication was the proximate cause of the accident. “The evidence establishes only the possibility that [the carrier] was intoxicated … at the time of injury.”

T.F. and U.S. Postal Service, 2008 WL 5467738, No. 08-1256 (ECAB Nov. 12, 2008)

What happened? A mail carrier alleged that she experienced an injury while driving for work when she hit an embankment of gravel, which caused the vehicle to hydroplane and led to a spinal injury.

The agency’s argument. Drug testing came back positive for marijuana and opiates, the agency denied the carrier’s claim.

The drug testing issue. The test was administered two full days after the accident, and the report indicated that the tests were “all … unconfirmed” and noted that no chain of custody was maintained on the specimens received.

How the ECAB ruled. The agency didn’t meet its burden to establish the affirmative defense of intoxication because it did not provide any discussion of why intoxication was the proximate cause of the accident. Instead, the evidence established that “at the time of her injury [the carrier] was delivering mail on her usual mail delivery route.” Accordingly, the carrier sustained an injury in the performance of duty.

In the Matter of Elaine Hegstrom and U.S. Postal Service, 2000 WL 1285967, 51 E.C.A.B. 539 (ECAB June 5, 2000)

 What happened? A USPS employee died after sustaining a broken neck in a motor vehicle accident that occurred while he was delivering mail. Before he died, the employee was cited for driving under the influence. 

The agency’s argument. The agency invoked the affirmative defense of intoxication, claiming that it removed the employee from the performance of duty.

The drug testing issue. Upon arrival at the hospital after the accident, the employee’s blood alcohol level was tested at nearly twice the legal intoxication limit in the state where the accident occurred.

How the ECAB ruled. Based on the blood alcohol level and a doctor’s opinion, the ECAB held that the employee’s intoxication removed him from the performance of duty as it was the proximate cause of his injury.

B.B. and Department of Justice, Bureau of Prisons, 2015 WL 5306843, No. 14-2000 (ECAB July 9, 2015) 

What happened? The widow of a Bureau of Prisons correctional officer filed a claim for survivor’s benefits, alleging that the officer was “murdered [by] gunshot” on the job.

The agency’s argument. In response, the agency alleged that the officer died in a hotel as the result of a gunshot wound inflicted by a fellow correctional officer in activities that were not job-related, part of which involved illegal drug use.

The drug testing issue. A toxicology report indicated that the officer had Methlenedioxypyrovalerone – better known as “bath salts” – in his system. The report also indicated the presence of Lidocaine, which is used as a “cutting” agent for drugs of abuse.

How the ECAB ruled. According to the board, “the employee’s ingestion of mind-altering drugs would not be reasonably expected by the employing establishment as a travel-duty activity, and it constituted a deviation from the normal incidents of his employment such that he was removed from the performance of duty.” Thus, the widow was not entitled to survivor’s benefits.

The takeaway

What does it all mean?

Based on statutes, regulations, agency decisions, and guidance, agencies should get the results of drug testing in hand when faced with a claim for workers’ compensation benefits, particularly if something like a doctor’s concern or a coworker’s observation raises the suspicion of possible drug or alcohol use on the job.

However, the legal key to asserting a defense based on an employee’s substance use is that intoxication must be the proximate cause of the injury for OWCP to deny benefits to a worker. Thus, the agency must provide evidence showing that the employee’s illegal drug or alcohol use removed her from the performance of duty.

It can be a tough case because, in certain circumstances, the ECAB might say that even if the employee was intoxicated, the injury would have happened anyway, and so would be compensable. info@FELTG.com

EEO Reprisal is (Unfortunately) Alive and Well

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By Deborah J. Hopkins, November 15, 2022

Reprisal, or retaliation, is alleged in about half of all EEO complaints. It is the most common basis of discrimination in findings against agencies. Let’s look at a few situations where the EEOC has issued findings of EEO reprisal: reassignment, discipline, and retaliatory harassment.

Reassignment

An agency is permitted to reassign an employee for any legitimate, business-based reason, such as employee performance or agency business needs. But reassigning an employee that management views as a problem because of her EEO activity is not permitted under the law.

A Federal Bureau of Prisons medical officer complained about harassment “in the form of harsh supervision, denial of adequate staff assistance, daily intimidation, differential treatment, inappropriate schedule changes, and desecration of her religious practices.” According to the Commission, management reprised against the complainant when they told her she was “the problem” and “the one causing all of the drama” and that “problems always surround her.”  The AJ also found the complainant was subjected to reprisal when management reassigned her to a different work location. Gwendolyn G. v. BOP, EEOC Appeal No. 2021001396 (Oct. 18, 2021).

Disciplinary action

An agency is permitted to discipline an employee for misconduct as long as there is a nexus between the misconduct and the efficiency of the service, and provided the discipline is not motivated by that employee’s protected category or activity.

A program analyst filed an EEO complaint against two supervisors alleging hostile work environment harassment on Aug. 12, 2016. On Aug. 29, the supervisor reprimanded the complainant for discourteous behavior that occurred between the complainant and her supervisor on Aug. 10. The supervisor never put the reprimand in the complainant’s eOPF despite her statement she intended to do so.

The EEOC found a causal connection between the complainant’s protected activity and the agency’s disciplinary action because of the “close temporal proximity” between the two events. The AJ concluded, and the EEOC agreed, the reprimand was issued for the purpose of chilling the complainant’s EEO activity. Karolyn E. v. HHS, EEOC Appeal No. 2021003151 (Oct. 19, 2021).

Retaliatory harassment

Creating a hostile work environment because a complainant engaged in protected activity also violates the EEO statutes.A supervisory criminal investigator claimed retaliatory harassment when he was warned he “better be careful” and that if he continued to file EEO complaints “they will come after him.” An agency management official also confirmed that she informed the complainant about the comments and management’s attempts to legally “stop” his EEO activity. On top of that, another management official stated he believed the complainant’s EEO complaints were “ridiculous.” Also, agency management failed to timely approve or acknowledge the complainant’s leave requests, denied his telework request, and issued him a counseling memorandum without following the agency’s discipline policy. The EEOC found this conduct was motivated by the complainant’s protected activity and constituted unlawful retaliatory harassment. Terrance A. v. Treasury, EEOC Appeal No. 2020002047 (Sept. 13, 2021), request for reconsideration denied, EEOC Request No. 2022000139 (Feb. 9, 2022).

Reprisal is something easily avoided if you have the proper training and awareness. We’ll be teaching EEO counselors how to identify potential reprisal during our Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training Jan. 23-26, 2023. Hopkins@FELTG.com

Weingarten and Performance Counseling Don’t Mix

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By Barbara Haga, November 15, 2022

Last month, my colleague Ann Boehm wrote a great article The Good News: With Weingarten, The Law Is Enough. I cheered as she discussed the various elements of the Weingarten right and when she suggested that agencies should not agree to anything beyond what the law requires. How is it in management’s interest to add additional notice requirements? If the statute says annual notice is good enough, then, like Ann, I am all about complying with just that.

The basics

Understanding the reasoning behind the Weingarten right helps make it clear when it applies and when it doesn’t.  In Department of Justice, Bureau of Prisons, Safford, AZ and AFGE, Local 2313, 35 FLRA No. 56 (FLRA 1990), the Authority quoted from the legislative history of the Civil Service Reform Act (CSRA), where Congress adopted the same framework regarding representation for Federal employees in disciplinary situations that applied under the National Labor Relations Act.

In Weingarten the Court noted that “[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.” Id. at 262-63. In such circumstances, the Court concluded that “[a] knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.” Id. at 263. In support of its conclusion that representation could be beneficial to the employer as well as the employee, the Court quoted from an arbitrator’s award that described the representation process as contemplating “that the steward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified.”

Performance evaluation issues

When leading training sessions for various agencies, I hear some managers say they allow union representatives to participate in performance discussions and performance counseling sessions because they believe it is required. Perhaps, their agencies agreed to such a provision in contract negotiations, or it has become a past practice over time, or perhaps they are allowing the representatives even though their advisors would say it is contrary to their policies.

However, the situation the Supreme Court addressed in Weingarten — a lone employee being questioned by management about events that could lead to a disciplinary action — is quite different than discussions between a supervisor and employee about missing information in a report or whether the employee applied the wrong per diem rate in a travel reimbursement.

The FLRA’s view 

The question of whether Weingarten extended to performance conversations arose early after passage of the CSRA. The Authority issued decisions in 1981 and 1982 that clearly indicated that Weingarten was inapplicable to these types of situations.

In Internal Revenue Service, Detroit, MI and National Treasury Employees Union and NTEU, Chapter 24, 5 FLRA No. 53 (FLRA 1981), the Authority dealt with the case of an annual performance review. Mr. Goff was a GS-11 revenue officer whose work was subject to a 100 percent review by his manager. This was a normal process which had occurred in prior years. It included preparation of a form identifying the findings of the manager and then a meeting with the employee to discuss those findings. After prior such evaluations, Goff had to make adjustments on some cases. Prior to the meeting at issue, Goff requested that a union representative be present at the meeting.

The manager denied Goff’s request. As Goff expected, the manager criticized his work and gave him a “critical elements” letter, which was essentially a PIP notice.

The union filed an unfair labor practice charge. The ALJ who heard the case found no violation and the Authority adopted the ALJ’s findings. The ALJ found that the performance review meeting was not an examination and that there was no reasonable basis to conclude that disciplinary action could arise from it. It was noted that the “critical elements” letter was not a disciplinary action, but instead, “… identifies serious work performance deficiencies and does advise the employee what is expected to improve performance to an acceptable level within a specified period of time, at the end of which there will be a further evaluation of the employee’s performance on these identified elements.”

Roughly one year later, the Authority issued its decision in Department of the Treasury, Internal Revenue Service and National Treasury Employees Union and NTEU, Chapter 22, 8 FLRA No. 72 (FLRA 1982). In a similar set of circumstances, Mr. Kotofsky’s cases were reviewed. He had received several written counseling notices that year about deficiencies in his work. His supervisor told him a branch chief was coming in to hold a discussion with him and the supervisor about the unacceptable work results. Kotofsky asked for a representative, which was denied. Kotofsky was not asked to provide responses on any of the case reviews. In fact, neither the branch chief nor the supervisor took notes during the meeting.

The ALJ in this case found that there was no right to representation under the circumstances. The decision includes the following finding:

“The purpose of the meeting was to generally highlight these known deficiencies to the employee and tell him how to raise the level of his performance to expected standards. This was nothing more than a pure counseling session and was remedial in nature; without the requisite investigatory element it did not qualify as an ‘examination of an employee . . . in connection with an investigation,’ even though the employee asked to be represented by the union. The Statute does not provide a right to representation under these circumstances.”

Bottom line  

In the situations described in these cases, the Authority found that Weingarten did not apply. If union representation is being allowed in performance meetings, it isn’t because Weingarten makes it so. So, please allow me to echo Ann’s message from last month: Agencies don’t need to go beyond what the law provides. And please make sure your managers know what the limits are.

Lessons Reinforced: DOs Can Be Heavily Involved Early in Discipline Situations

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By William Wiley, November 7, 2022

As the new Merit Systems Protection Board (MSPB) members plow through the 3,000-plus pending PFRs, we keep an eye out for any new principles of law being developed by the issuance of precedential decisions. However, it is just as valuable to watch for the affirmation of existing Federal employment law principles in new opinions, regardless of whether new law is being created. We all need to know whether any current Board members have a different take on existing precedence or plans to change how we do things.

[Editor’s note: See Bill’s recent article on other principles affirmed in recent MSPB decisions.]

A recent Board decision reminds us that a Deciding Official (DO) can be involved significantly in a disciplinary case before the Proposing Official (PO) issues the proposal notice. In Dieter v. DVA, 2022 MSPB 32 (Sept. 14, 2022), the new Board had to address a claim by the appellant that the agency violated his Constitutional due process rights because, among other things, “the deciding official was biased against him and considered ex parte information in deciding to impose the removal,” Dieter, ¶7. In evaluating this argument, the Board relied on precedence that broadly reinforced that a DO can be significantly involved in the initiation of a disciplinary action.

This is an important issue. At FELTG, we frequently hear from agency DOs who have been told that they must remain isolated from any proposed disciplinary action for fear of violating the employee’s due process rights. This is often frustrating for the higher-level manager who is concerned about workplace misconduct or poor performance yet is supposed to remain above the fray until the lower-level supervisor issues a proposal notice. We all need to appreciate that such isolation of the DO is not required by Board law and is usually bad for workplace management.

In finding no due process violation relative to this issue in Dieter, the Board referenced solid existing precedence that tells us that a DO can be very active in a discipline case without violating due process, e.g.,

  • “A deciding official’s awareness of background information concerning the appellant, her concurrence in the desirability to take an adverse action, or her predisposition to impose a severe penalty does not disqualify her from serving as a deciding official on due process grounds.” Lange v. DoJ, 119 MSPR 625 (2013).
  • “A deciding official’s mere knowledge of an employee’s background does not rise to the level of a due process violation unless ‘that knowledge is a basis for the deciding official’s determination on either the merits of the underlying charge or the penalty to be imposed.’” , 675 F.3d 1349 (Fed. Cir. 2012).

The key to avoiding a due process violation is for the heavily involved DO to be able to testify truthfully something like this:

“Yes, I was deeply involved in this incidence of misconduct. Yes, I have known the appellant for many years and previously witnessed several similar dishonest acts. Yes, I spoke to the employee’s supervisor and told him that he should consider proposing that the employee be fired. And yes, I told the supervisor that I considered that Douglas Factor 1 in the Douglas Factor Worksheet should be specific as to the extent of the harm caused by the misconduct. However, when I made my decision I considered only the evidence file, the employee’s oral and written responses, and the Douglas Factors as assessed by the proposing official.”

The Dieter opinion and order reminds us: If the DO can truthfully deny considering anything outside of these sources, there will be no due process violation.

For this case law reaffirmation, we can say, “Thank you, new Board members.” This principle validates the reality of a typical workplace. Higher level managers are involved in serious personnel situations in the organization, and such involvement is OK. No need to isolate DOs from an incident so long as they know to make their final decision only on facts told to the employee in the proposal materials. We hope all readers of our newsletter understand this concept and work to implement it in real time in their respective roles in discipline and performance-based actions.

In fact, being the aggressive little devils we are at FELTG, we encourage you to go one step further. When drafting a proposed removal letter for misconduct, why not have the PO and the DO sit down together with staff support from legal or human resources, and jointly develop a Douglas Factor Worksheet to be attached to the proposal notice? That way, any predispositions and concerns can be fleshed out early by both management officials simultaneously, and the employee properly notified of those concerns in the proposal notice so he can have a fair chance to respond to them? That should make it easier for the DO to consider the employee’s focused defenses and preclude a need for the DO to bring into the decision-making process any facts or issues not in the proposal.

New decisions that reinforce old principles are good. New ways of doing things built on those old principles that make this business more efficient are even better. Come to our training at FELTG, specifically the upcoming MSPB Law Week December 5-9, and learn how to do this work as well as it can be done. Wiley@FELTG.com

How Do You Feel About This 2-1 MSPB Decision?

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By Deborah Hopkins, October 24, 2022

FELTG Nation, we have our first 2022 MSPB decision with a dissent! Let’s take a look.

The appellant was a GS-14 Security Specialist at DTRA. One morning, he put food from the cafeteria’s self-serve breakfast buffet in a container, paid for it, and put the container in a bag. He then returned to the breakfast buffet, removed the container from the bag, put more food in the container, and returned the container to the bag. He then left the cafeteria without paying for the additional food, which was valued at $5.

A cafeteria employee who witnessed the incident reported it to her supervisor, and the matter was referred to the OIG. Investigators interviewed the appellant and the cafeteria employee, reviewed the video surveillance footage, and concluded that the appellant “knowingly took food from the cafeteria without rendering payment.”

The agency proposed removal based on a charge of larceny in violation of 18 U.S.C. § 661. The Deciding Official (DO) upheld the removal.

On appeal, the appellant claimed his failure to pay for the second helping of food was inadvertent and occurred as a result of his Type 2 diabetes. He stated that he urgently needed to eat because his blood sugar level was low, and that his fixation on eating caused him to lose focus on paying for the additional food.

The Administrative Judge (AJ) assessed the appellant’s credibility and determined the blood sugar argument was not convincing. The judge also noted the appellant failed to exhibit a clear, direct, or straightforward demeanor during his testimony. In addition, his testimony was not consistent with the record evidence, including the cafeteria video footage.

On PFR, Members Harris and Limon held that the DO failed to appropriately consider all relevant Douglas factors in determining the penalty.

The de minimis nature of the theft. The DO said that “what matters is the action,” and someone who would steal “has a character flaw” and “should not be working as a senior security professional … with a security clearance in the Department of Defense.”

The appellant’s 30 years of discipline-free service and the appellant’s outstanding performance record.

The DO referenced these factors as “NEUTRAL” and at hearing that she considered these factors irrelevant because stealing “shows a character flaw.”

The Board majority said the DO should have considered those factors as mitigating, rather than neutral.

Another interesting piece of the case: Although not addressed by the DO or the AJ, the Board held that the appellant did not have custody or control over the stolen items as part of his official duties. The Board considered this a mitigating factor as well. The outcome: “A 90-day suspension recognizes the seriousness of the offense and its severity.”

Member Leavitt disagreed with his colleagues. In the dissent, he said the agency should have received penalty deference. His explanation relied on video evidence of the appellant that indicated he was hiding from a police officer in the cafeteria and, therefore, was aware of his actions. In addition, the appellant initially answered the OIG investigator’s question denying the conduct, then changed his story when shown the security video.

Member Leavitt also wrote that he believed the DO considered all the DFs, and properly determined that the mitigating factors were outweighed by “the level of responsibility, the fiduciary responsibilities, and the expectation of exemplary personal conduct.” His impression of the penalty: “To me, the deciding official clearly demonstrated that she considered all specific, relevant mitigating factors before determining the penalty and showed that the agency’s judgment to impose a removal did not clearly exceed the limits of reasonableness.”

Chin v. DOD/DTRA, 2022 MSPB 34 (Oct. 7, 2022).

In speaking with students and with other FELTG instructors about this case, I’ve concluded that not everyone will agree with the outcome.

  • Some of you will agree with the Board because a removal seems too severe for such a small amount of money.
  • Others of you might think that removal was warranted given that the conduct violated the law.
  • Some of you might personally disagree with the removal but acknowledge that the agency should receive deference on the penalty, as it was not outside the bounds of reasonableness.
  • And others might think a different penalty was appropriate.

Let’s continue the discussion December 5-9 during MSPB Law Week. Hopkins@FELTG.com

And Now a Word With … EEOC Commissioner Keith Sonderling

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By Dan Gephart, October 18, 2022

Efficiency.

Enforcement.

These two words are probably not among the first to spring to mind when you think of the Equal Employment Opportunity Commission. But EEOC Commissioner Keith Sonderling has a whole lot of statistics to explain why they should be.

Let’s look at FY 2021, the last year for which data is currently available. The EEOC collected a total of $485 million for more than 15,000 victims of discrimination. Out of that large sum, almost $100 million went to 2,169 Federal employees.

“When I speak across the country and I talk about that statistic, people are shocked,” EEOC Sonderling said. “That’s a big chunk of change from an overall picture.”

What about efficiency? Try on this statistic: The 7,664 hearing requests received in FY 21 was a decrease of 6.2 percent from the previous fiscal year. This can be partly attributed to the resolution of 9,082 complaints by the Commission’s hearings program. “Getting 9,000 complaints out the door, that’s really efficient.”

Meanwhile, employees took advantage of the EEOC’s free mediation program. More than 600 Federal sector mediations were conducted, resulting in another $8.4 million for Federal employees and applicants.

“We’ve seen a lot more interest in mediation since the pandemic when we went virtual,” Sonderling said. “Before, you had individuals hesitant to enter mediation. Think of an old-school mediation. You go into a conference room with the person who discriminated against you and your old boss. You never want to see these people again. It’s traumatic. But virtually, you can be in a separate breakout. You don’t even have to see the people.”

The EEOC has been criticized in the private and Federal sectors about case backlogs. Progress is being made there, too, according to Sonderling. In the Federal sector, the aged inventory was reduced by 11.5 percent. And resolutions result in a 6 percent reduction of cases that were more than 300 days old.

“The reduction of pending and aged inventory will have a positive impact on the agency’s ability to more timely process the hearings complaints received and better serve participants in the hearings process.”

The agency is developing its next Strategic Enforcement Plan – an important document that will determine the Commission’s priorities for the next five years. The last strategic plan was approved in 2016. It set the EEOC’s focus over the past five-plus years on, among other things, eliminating barriers in recruitment and hiring, protecting vulnerable workers in underserved communities, ensuring equal pay, and preventing systemic harassment.

Why is this important? Of the EEOC’s 99 findings of Federal sector discrimination in FY 2021, 83 were “identified as implicating one or more Strategic Enforcement Plan priorities, including numerous decisions addressing equal pay or other wage discrimination issues.”

There have been three hearings on the new SEP, all are available on the EEOC’s YouTube page. There will be an opportunity to submit formal comments through the Federal Register. As the agency looks forward, we thought it was a good time to check in with Commissioner Sonderling (pictured at top next page) about priorities, trends, and more. “The most important thing for me and, I think, for all of us at the EEOC is to ensure that the Federal government is leading in creating an inclusive, barrier-free workplace because the US government is the largest employer in the country,” Sonderling said. “It’s important for Federal government to be the model employer. That falls on the EEOC to give guidance to the agencies compliance assistance to prevent discrimination and also from an enforcement perspective when discrimination occurs.

DG: Charges of discrimination are down. Why is that?

KS: I’d love to say it’s because (employees are) realizing employers are trying to do the right thing and prevent discrimination from occurring. Or that the EEOC has provided enough information to employees to know what happened may not have been discrimination. Also, too, with the economy we have now and so many jobs available, instead of going down this very long road of filing charges of discrimination, they may give up because they got another job and think, “I don’t need this anymore.”

DG: Reprisal continues to be a major problem for agencies. Based on the cases before you, what can agencies do best to limit reprisal?

KS: Well, let me tell you: It’s not just the Federal government. It’s across the board. It’s the number one filed alleged basis of discrimination in the United States. Hands down. Those are the most claims. It’s a persistent thing.

It’s not just at EEOC and in the discrimination context. The NLRB has retaliation provisions. Department of Labor, OSHA has provisions, as well.

Back in 2016, the EEOC put out broad guidance and tried to define reprisal very broadly. It’s treating employees differently because they complained about discrimination on the job, filed a complaint, participated in any manner in a charge or proceeding — theirs or someone else’s. Second, something negative has to happen

to your employment, generally, in addition to just filing charge of discrimination. What happens if you’re resisting sexual advances? Or you requested an accommodation for disability or religion? Did your work situation change in an adverse way once that occurred?

For agencies, it’s really just maintaining plain language anti-retaliation policies.

We simplified the definition in our guidance available to the public. Federal agencies’ policies and retaliation reporting procedures must do the same, just make it simple. Make it so plain language with examples of what is retaliation and what is not retaliation.

If you are fired or demoted because you are not performing well at work, you’re not hitting your goals, or just not doing the job, that’s not retaliation. But, if you are fired or demoted because you were sexually harassed or filed a charge, that’s a different story. Make it clear: This is retaliation, and this is not.

And it must come from the top. We saw this really changed with the MeToo movement. When the movement happened, it was national news. Harvey Weinstein and offending CEOs were fired. New management teams came in: What was the first message they were saying? From that CEO level, they were saying: “We’re not going to tolerate this harassment. We’re willing to fire the CEO. We’re willing to fire our rainmakers, our best performers if they are sexually harassing. And the same needs to happen here. In cabinet agencies, it needs to come from the top. It needs to come from the highest career SES, the cabinet secretaries themselves, the leaders of the agencies. This is just not going to be tolerated. We have an open-door policy. If you feel like you’re being harassed, here’s the mechanism we put in place in our agency. If you don’t feel comfortable going to that, here are alternate ways to report harassment, so you’re not dealing with the harasser or the direct manager. You can go to neutral HR or the civil rights office in your agency and not have that fear of reprisal.”

DG: Policies are important.

KS: Let’s make them easier to understand, and let’s have that commitment come from the top. So that from very first day, they know the leader of the agency is against this and it’s part of the culture at this agency.

That’s my best advice.

DG: Federal agencies often require a bar on reemployment as a term in an EEO settlement agreement for an employee who no longer works at the agency and filed an EEO complaint. Does the EEOC have a position on whether such clauses constitute retaliation per se?  

KS: Yes, the EEOC has dealt with this. And the Supreme Court has dealt with this in the private sector. They basically said: Look, it’s a contract and the parties in the settlement agreement or consent decree or however you get there, if you agree to this no re-hire policy, if it’s very clear and if it’s a legitimate nondiscriminatory reason for refusing to re-hire, then it’s valid. That is the key.

Even if settling claims of discrimination, if you’re putting in no-hire provisions, they should be explainable, and if it is later challenged, you may have to be able to provide the reasons the no-re-hire position was related to legitimate nondiscriminatory reasons. Basically, it’s a contract claim. However, Courts will not enforce contracts about future discrimination. So even in the event you have a no-rehire clause and you re-hire the individual, you cannot waive future claims of discrimination.

The EEOC dealt with this in 2003 in a Federal sector opinion [Jablonski v. NLRB, EEOC Appeal No. 01A23730]. That was a case of an employee against NLRB. We upheld that a no re-employment clause in a settlement agreement with a former employee was valid. The agency also declined to impose a reasonable limitation on the no-rehire period.

Like the Supreme Court, the EEOC finds that settlement agreements are contracts between the complaint and the agency. If the intent of the party is in the contract, that’s what’s going to control.  We rely on the plain meaning of the contract.

Where confusion arises when settling with current employees is waiving future claims of discrimination, including retaliation that has not yet occurred. Even if you had that no re-hire, and agency goes and prevents you from getting another job, that’s still retaliation.

DG: What impact did the pandemic have on employees with disabilities?

KS: Employees with existing disabilities have been largely impacted by the pandemic. For instance, they had a disability before and now the disability is more severe and now they need additional accommodations. Or, you have Federal workers who weren’t disabled and now need those accommodations because of long haul COVID.

So many Federal workers who were not disabled suddenly have become disabled post-COVID and we’re seeing that across the board, related to long haul COVID.

We’ve given out a lot of guidance on this to help Federal agencies make that determination: What is a disability now post-COVID? What is long haul COVID? Our guidance has very specific examples of the types of long haul COVID, like needing supplemental oxygen, having heart-related issues, severe fatigue, heart palpitations versus what is not COVID — a cold, congestion, sore throat.

I think the Federal agency EEO/Accommodation manager will be flooded with these requests, especially as more employees come back to the office.

[Editor’s note: Join FELTG for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency on Nov. 17, from 1-3 pm ET.)

DG: Technology is accelerating at such a fast pace, especially workplace technology. Is accessibility to this technology keeping up the same pace?

KS: In the private sector, companies are rapidly implementing technology like artificial intelligence to make decisions about their workforce, whether to recruit, whether to hire. The future is now.

A big concern is that workers with disabilities have the same ability to use these platforms with their disability as they would any kind of screening test. Federal agencies have had these assessment tests for decades, and a lot of them are going online. The agencies know they must accommodate both applicants and employees who are being subject to these tests.

The technology can certainly affect workers with disabilities when it comes having to do your interview online or having to take your test online.

Make sure these newer technologies don’t discriminate against any of the categories we enforce here, especially workers with disabilities. Outside of retaliation, disability discrimination is our number one cause of action in the private sector. Employers using these technologies should go through the same interactive process on the front end for applicants and during the life cycle, so employees feel comfortable asking for requests without fear they’re not going to get the job because they’re not using the program the employer spent a lot of money on buying and implementing.

With artificial technology in the ADA space, there are three takeaways:

  1. It needs to provide reasonable accommodation.
  2. The tool can’t intentionally or unintentionally screen out employees with disabilities.
  3. Make sure these tools are not seeking disability-related inquiries or not medical examinations and relevant to the job.

These are the same principles we know for reasonable accommodation, but they can’t be lost here. With HR technologies, you can’t have that set-it-and-forget-it approach.

Gephart@FELTG.com

Why F-Words Get Agencies in Trouble

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By Deborah Hopkins, October 18, 2022

For as long as we’ve been a company (since 2001, in case you’re wondering), FELTG has taught agency reps and supervisors that if you’re charging misconduct that begins with an f-word (falsification, fraud, false _______, etc.), you’d better make sure you have evidence the employee intentionally provided false information. Otherwise, you will lose the charge, which often means losing your case.

So, it was no surprise to see a recent MSPB decision, Conaway v. Commerce, CH-0752-16-0166-I-2 (Sept. 22, 2022)(NP), that overturned an agency’s discipline because of an f-word the agency couldn’t prove. The real heartbreaker is that this case cost the agency eight years and more than a quarter million in back pay, thanks to the lack of quorum at the MSPB. And to be fair, it also dragged out for eight years on the appellant’s side which is no picnic either.

In Conaway, the agency removed the appellant, a Census Bureau GS-6 Field Supervisor, on one charge of providing false information regarding Census Bureau questionnaires, with one specification regarding a March 24, 2014, interview.

The MSPB equates this type of charge to one of falsification. In order to have a falsification charge upheld, the agency must prove the following by preponderant evidence:

  • the appellant supplied incorrect information; and
  • did so knowingly with intent to defraud, deceive, or mislead the agency for her own private material gain.

Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014).

The basic premise of Conaway’s misconduct was that she entered information into a survey form she had obtained in a months-earlier interview with a questionnaire respondent, even though procedures required her to ask the respondent questions and enter information in the current interview (held March 24, 2014). At hearing, Conaway presented unrebutted testimony that the respondent had provided her with information during an interview weeks prior to the March 24 interview, and had told her that “nothing had changed” during her phone conversation with the respondent about the March 24 questionnaire.

Here’s how the case fell apart for the agency, according to MSPB:

[While] the record clearly established that the appellant entered information into the survey …that she did not obtain from the March [24], 2014 interview, the agency has not provided any evidence suggesting that this information was incorrect, as required to prove a charge of falsification. To the contrary, it is likely this information is correct given the appellant’s unrebutted testimony…

Moreover, even if this information was incorrect, we find that the appellant had a reasonable good faith belief in the truth of the information, which precludes a finding that she acted with deceptive intent. Therefore, we find that the agency has not proven a charge of falsification.

Although the appellant’s handling of the … survey may have been contrary to established procedures or otherwise improper, the agency did not assert such a charge against her. Rather, as stated above, the agency charged her with providing false information … The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency and may not substitute what it considers to be a more adequate or proper basis. Therefore, we cannot sustain a charge of failure to follow survey procedure against the appellant, and such failure cannot serve as a basis to sustain a charge of falsification. In light of the foregoing, we reverse the initial decision in part and do not sustain the appellant’s removal. (Citations omitted.)

I talked to FELTG Founder Bill Wiley about this case. He believes the agency made two notable mistakes, both of which FELTG addresses in our training:

  1. If you charge The Effing Word (Falsification), you have to prove, inter alia, that the information provided is false. That’s straight from the Charges day of MSPB Law Week, next held December 5-9. Here, although the employee did not follow procedures, the actual information provided was in fact true. Therefore, bye-bye Effing charge.
  2. The agency did a decent job of describing how the employee failed to follow procedures. However, they did that in some sort of “Background” section rather than in the “Charge” section of the proposal. Agency representatives who attend FELTG’sMSPB Law Week and learn not to waste words in a Background section hardly ever have to tell payroll to cut a backpay check for over a quarter of a million dollars.

We hope this helps you think twice before the next time you charge an F-word. Lots to learn from these new Board cases, and lots of lessons re-affirmed too.