Denying Leave Wasn’t Discrimination, It Was Good Workplace Management

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By Deborah J. Hopkins, February 12, 2025

Quick facts:

  • Employee claims of discrimination often originate over disagreements with management practices or actions.
  • Employees are required to follow proper leave procedures, even in cases where the leave is an entitlement.
  • A complainant’s ten claims of discrimination failed because the agency articulated a legitimate, nondiscriminatory reason for each of its actions.

The annals of EEOC case law are full of decisions where employees file EEO complaints when they are unhappy with management, have personality conflicts with their supervisors, or perceive unfair treatment in the workplace. And while, unfortunately, we sometimes see illegal discrimination in the workplace, we also see complainants turn to the EEO process as a mechanism to challenge legitimate management actions.

Not long ago, this case caught my attention: Billy L. v. TSA, EEOC App. No. 2022004994 (Oct. 24, 2024). It’s worth a full read, but I’ll summarize it here.

The complainant was a transportation security inspector at the Denver International Airport who alleged age (61) discrimination and retaliation for prior protected EEO activity when:

  1. On September 27, 2021, management charged Complainant 3.75 hours of absence without leave (AWOL);
  2. On October 20, 2021, management denied Complainant’s request to change the September 27, 2021, AWOL charge to six hours of telework;
  3. On or after October 20, 2021, management denied Complainant’s request to claim 24 hours of paid administrative COVID-19 leave for October 6-8, 2021;
  4. On October 20, 2021, management denied Complainant’s request to claim eight hours of telework and/or claim eight hours of paid administrative COVID-19 leave for October 18, 2021;
  5. On November 4, 2021, management issued Complainant a 3.26 rating on his Fiscal Year (FY) 21 Employee Performance Management Plan (EPMP) appraisal;
  6. On November 19, 2021, management required Complainant to use one hour of annual leave in lieu of granting advance sick leave when Complainant requested leave under the Family Medical Leave Act (FMLA);
  7. On or after November 19, 2021, management required Complainant to conduct administrative duties while on FMLA;
  8. On December 1, 2021, management denied Complainant’s request for advance sick leave;
  9. On December 6, 2021, management denied Complainant’s request to telework on December 7, 2021; and
  10. On December 8, 2021, management issued Complainant a Letter of Reprimand (LOR).

Id. at 2.

I have no doubt this employee believed he was the victim of discrimination and retaliation – most complainants do. However, the agency successfully articulated legitimate, nondiscriminatory, and nonretaliatory reasons for each of the ten actions. A quick summary of the agency’s evidence on each claim:

Claim 1, AWOL charge

The supervisor explained the complainant was AWOL during the relevant hours and did not properly follow leave procedures, which required him to request unscheduled leave at least 60 minutes prior to the start of his shift. He did not notify his supervisor he needed to use leave until 3.75 hours after the start of his shift. Id. at 3.

Claim 2, Denial of EEO official time

The supervisor properly denied the complainant’s retroactive request to convert the September 27 AWOL charge to telework/official EEO time, because the complainant was required to request official time in advance and not after the fact. The supervisor granted the complainant’s proper request for future official time. Id.

Claims 3 and 4, COVID-related leave

The complainant, after recovering from COVID, informed the supervisor that he was changing his regular day off (RDO) and telework schedule in an attempt to get another day of COVID-related administrative leave beyond the ten days the agency had authorized. The agency’s policy required employees to request changes in advance, so the supervisor’s denial was appropriate.

Claim 5, Performance rating

The agency accurately rated the complainant’s performance as Achieved Expectations – the equivalent of fully successful – because the complainant “did his assigned work and met relevant performance standards … [but] did not do additional work to merit a higher rating.” Id. at 20.

Claims 6 & 8, Denial of advanced sick leave

The agency properly denied the complainant’s request for advanced Sick Leave because the complainant’s retirement date was set for the end of 2021, and he would not remain an employee long enough to “liquidate the indebtedness,” or pay it back. Id. at 12.

Claim 7, Administrative duties assigned while on FMLA

The supervisor sent the complainant emails telling him to submit his time and attendance into the timekeeping system, and that he was expected to review his annual performance appraisal. However, she credibly stated that she did not expect the complainant to perform any of these duties while in FMLA status and that she told him he could wait to perform these tasks until he returned from leave.  Id.

Claim 9, Denial of telework

The complainant did not report to work onsite on December 7, 2021, despite a supervisor’s explicit instructions on December 6 that he was required to report onsite on December 7. Therefore, the denial of telework status was appropriate.

Claim 10, Reprimand

The supervisor had a legitimate, nondiscriminatory reason to issue the reprimand because the employee failed to follow the supervisor’s instruction to attend a mandatory support block.

This is a perfect case to demonstrate that employees don’t take leave, they are required to request leave. Also, a supervisor’s appropriate leave denial is NOT discrimination or retaliation, it is proper management and enforcement of agency policies. As the EEOC concluded, “the record is devoid of testimonial or documentary evidence to contradict Supervisor1 and Supervisor2’s legitimate, non-discriminatory/retaliatory explanations provided. Moreover, the record is devoid of evidence of discriminatory or retaliatory animus.” Id. at 23. hopkins@feltg.com

Related training:

The Good News: Filing Deadlines Matter

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By Ann Boehm, February 12, 2025

Quick facts:

  • When employees challenge agency actions, they must meet a filing deadline.
  • Missing the deadline is devastating to their case.
  • The deadlines differ, depending on whether they are for a grievance, discrimination complaint, or MSPB appeal.

In my very first real lawyer job – law clerk to a United States Court of Appeals judge – I quickly learned the importance of timely filings. My co-clerk was obsessed with combing through each case file to look for any jurisdictional issues. I recall when he rejoiced upon finding a party’s appeal to be untimely. The case would be dismissed as a result. The court did not have jurisdiction.

Lesson learned. Filing deadlines matter.

When an employee challenges an agency action – through a grievance, discrimination complaint, or Merit Systems Protection Board appeal – there are filing deadlines. Missing a deadline can mean losing a case.

Here are some key filing deadlines to consider:

Grievances: Parties must double-check the agency’s administrative grievance procedure or the collective bargaining agreement’s negotiated grievance procedures for the filing deadlines. The times for filing vary.

Discrimination complaints: An employee must contact an equal employment opportunity counselor within 45 days from the day the discrimination occurred, and then must file a formal complaint within 15 days of receipt of the counselor’s Notice of Right to File Formal Complaint. https://www.eeoc.gov/federal-sector/overview-federal-sector-eeo-complaint-process

Merit Systems Protection Board appeal: An appeal must be filed within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later.  https://www.mspb.gov/appeals/appeals.htm

Whistleblower complaint: There is no specific deadline for reporting alleged whistleblower retaliation to the Office of Special Counsel. The general timing consideration for whistleblowers is whether the retaliatory action took place within a time that would lead a reasonable person to conclude that the disclosure contributed to the personnel action.  Typically, actions that occur within two years of the protected disclosure satisfy this test.

For agency advocates, finding a missed filing deadline can result in an easy agency victory.  For employees, missing a filing deadline can result in an unnecessary loss. Timelines matter. Paying attention to them matters. And that’s all Good News. modlin@feltg.com

Related training:

Supervisor Was Once Left Off Emails, Now She’s Getting Back Pay

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By Dan Gephart, February 12, 2025

Quick facts:

  • An assistant specialist failed to carbon copy her first-line supervisor on emails to agency leadership.
  • A commander ordered the supervisor to reveal how she found out she was being left off emails, but she refused.
  • The agency suspended the appellant but the MSPB overturned the suspension, finding the agency’s misconduct investigation of the appellant was motivated by whistleblower retaliation.

As if there weren’t already more than enough topics that divide us, I found another one recently. When scrolling through a social media site, I found a passionate debate about the “carbon copy” field on emails.

We are being overrun with emails, one poster claimed, and it’s because too many people are unnecessarily getting carbon copied on emails. Another poster called the claim “nonsense” and argued that “cc” is a great tool for keeping colleagues up to date.

I don’t know where the special assistant in Young v. Department of Homeland Security, 2024 MSPB 19 (Dec. 10, 2024) stands on the giant email debate, but we do know one thing: She communicated regularly with her supervisor’s boss without cc:ing said supervisor.

And that eventually led to a huge mess, including claims of reprisal and whistleblowing. We’re going to focus on the appellant in Young, but it’s so complicated we need to start with a cast of characters:

  1. The appellant. This person was a GS-15 supervisory field operation specialist and served as chief of staff to the commander.
  2. The special assistant. This individual reported directly to the appellant. She was the one who left the appellant off email communications.
  3. The mission support specialist. This person also reported directly to the appellant.
  4. The commander. This person supervised the appellant.

At some point, the appellant became aware she was being left off emails between the special assistant and agency leadership, despite previous directives to include her in all such communications. The appellant admonished the special assistant and directed her to draft a memorandum to explain how she would remedy the issue.

Instead, the special assistant told the commander what happened.

The commander reprimanded the appellant and ordered her to identify the individual who “provided the information to her concerning the special assistant’s communications.” The appellant refused, contending that the individual was a whistleblower.

In a separate action, the Commander reassigned the mission support specialist from the appellant’s supervision. Per footnotes in the decision, the record suggestions the mission support specialist is the person who told the appellant she was being left off emails.

Cue the complaints.

The appellant filed two complaints with the Office of Special Counsel (OSC), one related to the commander’s “verbal admonishment for insubordination for failing to obey his order to disclose the name of the employee who informed the appellant of the communication issues with the special assistant” and the other an allegation of improper favoritism toward the special assistant by reassigning her to another supervisor.

The appellant took her allegations to the agency’s Office of Inspector General (OIG). The appellant informed the commander, via a memorandum, that she felt he had committed prohibited personnel practices.

In a completely separate action, the mission support specialist filed an EEO complaint, alleging the commander improperly temporarily reassigned her and denied her training.

And now, the weaving of the web gets further tangled.

The appellant served as a management official in the mediation of the mission support specialist’s EEO complaint, which resulted in a settlement agreement. All it needed was the approval of a higher-level official.  That never came, as the commander informed the EEO office that the settlement agreement was not approved.

You still following?

The commander contacted the OIG, alleging the appellant did not inform him of the EEO complaint or discuss with him, as previously instructed, whether it was OK to engage in mediation. The commander further alleged the mission support specialist was a friend of the appellant and used the EEO process to “obtain training and a promotion for the mission support specialist in circumvention of agency rules.”

The commander’s action led to an investigation by the Office of Professional Responsibility (OPR). Soon after, the agency discipline review board proposed the appellant’s removal based on the charges of an appearance of a conflict of interest, failure to follow supervisory instructions, and lack of candor. The deciding official issued a decision sustaining the appearance of a conflict of interest and failure to follow supervisory instructions charges, but not the lack of candor charge. The official mitigated the penalty to a 15-day suspension. During this time, the commander was replaced, and the new commander reassigned the appellant.

All this led to the MSPB, where the appellant alleged the agency’s decision to suspend her for 15 days and reassign her constituted reprisal for her protected disclosures and protected activity. The administrative judge found the appellant met her burden of proving by preponderant evidence she made a protected disclosure and engaged in protected activity that was a contributing factor in the agency’s decisions to suspend and reassign her. However, the AJ also found the agency proved by clear and convincing evidence that it would have suspended and reassigned her absent her protected disclosure.

After considering the Carr factors, the Board was “not left with the firm belief that the agency would have initiated an investigation into the appellant absent her protected whistleblowing activity.” It continued:

Although the Commander had some sound reasons to request an investigation, his motive to retaliate was strong, and the agency failed to present evidence showing that it reported and initiated investigations into non-whistleblower employees for similar conduct. Therefore, we find that the agency failed to prove by clear and convincing evidence that it would have reported and initiated an investigation into the appellant’s conduct absent her whistleblowing. Accordingly, we grant the appellant’s request for corrective action with respect to her claim of a retaliatory investigation and her subsequent suspension.

The Board ordered the agency to cancel the appellant’s 15-day suspension and pay back pay, interest on back pay, and other benefits.

You’ve undoubtedly heard the phrase: This meeting could’ve been an email. Well, this case could’ve ended at an email, if only the appellant was carbon copied. gephart@feltg.com

Related training:

Is COVID Still Compensable? Welcome to the New Normal

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By Frank Ferreri, February 12, 2025

Quick facts:

  • An HHS optometrist came down with COVID-19 and felt confident she caught the virus at work.
  • Her claim was judged under new standards that made the bar for establishing COVID compensability tougher to meet than during the height of the pandemic.
  • The optometrist’s evidence consisted of a doctor’s statement that she had COVID-19 but did not include anything about a laboratory test, and ECAB found insufficient evidence and denied her claim.

Remember when everything about COVID-19 was dubbed the “new normal?” Since early 2023, as far as Federal workers’ compensation is concerned, coronavirus-related claims are just ordinary normal, as evidenced by J.W. and Department of Health & Human Services, No. 24-0028 (Dec. 20, 2024). In this case, the Employees’ Compensation Appeals Board (ECAB) addressed the medical evidence it takes for an employee to show her COVID infection was a compensable workplace injury.

The employee, an optometrist, filed a traumatic injury claim. She alleged she sustained COVID-19 on Feb. 24, 2023, while in the performance of duty. She had initial body aches on that day and stopped working until March 6, 2023.  A doctor’s report confirmed the optometrist had a positive COVID-19 test on March 1, 2023.

The Office of Workers’ Compensation Programs (OWCP) converted the claim to an occupational disease claim because there was no clear, identifiable incident or incidents over a single day or work shift that she alleged to have caused the diagnosed COVID-19 condition. OWCP also informed the optometrist of the factual and medical evidence she needed to support her claim.

In response, the optometrist provided a statement noting:

  • “A few” conversations she had with a laboratory supervisor who also tested positive for COVID-19.
  • While performing optometry examinations, she was in close proximity to patients and sat within arm’s reach, and sometimes closer, for a prolonged period of time.
  • The agency’s optometry department had 119 patients in February 2023.
  • Her symptoms first occurred on Feb. 24, 2023, and for the two weeks prior, she did not leave her house other than to go to work.
  • No family members developed COVID-19.
  • The optometrist’s supervisor called her several times to advise the COVID positivity rate was “very high” at the employing establishment and recommended that she get tested.

OWCP denied the optometrist’s occupational disease claim, finding she had not submitted medical evidence sufficient to establish a diagnosis of COVID-19 in connection with the accepted employment exposure. The employee took her case before ECAB.

What’s the rule?

Per FECA Bulletin No. 23-02 (December 15, 2022), to establish a Federal workers’ compensation claim for COVID-19 diagnosed after Jan. 27, 2023, a claimant must provide:

  1. Evidence of a COVID-19 diagnosis.
  2. Evidence that establishes that the claimant actually experienced the employment incidents or factors alleged to have occurred.
  3. Evidence that the alleged incidents or factors occurred in the claimant’s performance of duty.
  4. Evidence that the COVID-19 condition was found by a physician to be causally related to the accepted employment incidents or factors.

That’s not all, though. A claimant must submit either of the following:

  1. A positive polymerase chain reaction or antigen COVID-19 test result.
  2. A positive antibody test result, together with contemporaneous medical evidence that the claimant had documented symptoms of or was treated for COVID-19 by a physician.

If no positive laboratory test is available, the claimant must submit a COVID-19 diagnosis from a physician, together with a rationalized medical opinion supporting the diagnosis and an explanation as to why a positive laboratory test is not available.

In support of her claim, the optometrist submitted a doctor’s report, which indicated the optometrist had a positive COVID-19 test. However, without explaining why a positive laboratory test result was unavailable, the doctor’s statement was insufficient to establish a COVID-19 diagnosis under the FECA Bulletin No. 23-02.

Thus, ECAB ruled against the optometrist. However, it granted her the opportunity to submit new evidence or argument with a written request for reconsideration.

When it comes to COVID, a workers’ compensation claim doesn’t enjoy the special status it once did. Also, there is no presumption an infection was due to employment. Instead, what a claimant should be prepared to do – and what an agency should defend on – is determine whether the evidence complies with FECA Bulletin No. 23-02. info@feltg.com

Related training:

 

 

Federal Employment Law’s 15 Minutes of Fame

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By Deborah J. Hopkins, February 10, 2025

Federal employment law is having a moment.

With the flurry of Federal workplace-related Executive Orders and memos issued over the past three weeks, media outlets are scrambling to keep up, and “experts” are jockeying for press and an opportunity to discuss the laws that govern the executive branch.

At FELTG, we’ve been teaching the law since 2001 – we have instructors who have been practicing it further back than that – and we want to caution you that before you rely on something you read in the media, be sure you vet the source.

To be clear, a lot of employment law experts are relaying accurate information during this crucial time. But just as many are not. Below are just a few of the myths we’ve encountered, with clarifications beneath.

MYTH: The ban on DEIA eliminates agency reasonable accommodation offices.

Clarification: Well, it shouldn’t and it better not, because the law requires agencies to provide the reasonable accommodation process to any employee or applicant who needs it. There has been some confusion, we think, because the “A” in DEIA stands for accessibility. OPM issued a memo on February 5 clarifying that agency RA programs and EEO complaint processes are not impacted by EOs 14148, 14151 and 14173.

The memo says, “[A]gencies should retain personnel, offices and procedures required by statute or regulation to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation requests.”

MYTH: Administrative leave is always limited to 10 days per year.

Clarification: The Administrative Leave Act does indeed limit the use of administrative leave to 10 days per year. 5 U.S.C. 6329a. But OPM regulations, which were finalized in December 2024, clarified the 10-day limit applies only to agency investigations:

§ 630.1404 Calendar year limitation.

(a)    General. Under 5 U.S.C. 6329a(b), during any calendar year, an agency may place an employee on administrative leave for no more than 10 workdays. In this context, the term “place” refers to a management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation … The 10-workday annual limit does not apply to administrative leave for other purposes. After an employee has been placed on administrative leave in connection with such an investigation for 10 workdays, the agency may place the employee on investigative leave under subpart O of this part, if necessary (see 5 U.S.C. 6329b(b)(3)(A) and § 630.1504(a)(1))… (bold added)

Because the regulations are so new we don’t have any case law interpreting what “other purposes” might be covered. Historically, though, admin leave has been used for everything from voting to sending someone home after an accident in the workplace. We’ll likely soon learn whether the current large-scale administrative leave orders across some government agencies will meet the “other purposes” identified in the regs.

MYTH: A probationary employee can only be separated from service for performance or conduct reasons.

Clarification: As we’ve both written about and taught, probationary employees can be terminated quite easily (they must be given the reason in writing), and they have very limited appeal rights. 5 U.S.C. 7511(a)(1)(A)(i). Probationers are only afforded the right to appeal a termination to the Merit Systems Protection Board if their removal was based on:

  • Partisan political activity,
  • Marital status, or
  • Pre-appointment reasons.

See 5 C.F.R. 315.804-806; Starkey v. HUD, 2024 MSPB 6 (2024). Probationers also have the right to file a complaint with the Equal Employment Opportunity Commission if they believe they were terminated because of civil rights discrimination, and with the U.S. Office of Special Counsel if they believe they were terminated in violation of a prohibited personnel practice. So working backwards from the rights and corresponding case law, it appears any legitimate business-based reason for a probationary separation would afford a probationer no appeal rights. This is currently being tested as large swatch of probationary employees are being terminated from agencies, and unions are pursuing litigation over the terminations.

Also, I clarified this last week on a LinkedIn discussion: A supervisory probationary period is different from an initial appointment probationary period. If a supervisor happens to be in her initial appointment one-year period and also in her supervisory probationary period, then yes, she can be separated without due process (subject to those exceptions noted above). But the supervisory probationary period is different in that if an agency decides the supervisor is not a good fit in the role during the first year as a supervisor, the agency can return the supervisor to her previous, non-supervisory position or its equivalent, 5 C.F.R. 315.907(a). This does not give the agency a right to remove the supervisor, who has already successfully completed her probationary period, from service without due process.

Plenty more myths are circulating, with new ones almost every day, to stick with FELTG and we’ll help clarify during this very busy time. And if you have questions, please Ask FELTG. hopkins@feltg.com

Upcoming Training on Executive Order Compliance

This article was updated with new information on wide-scale probationer terminations on February 14, 2025.

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.

The State of the Civil Service: 2025 Edition

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By Deborah J. Hopkins, January 15, 2025

Quick facts:

  • MSPB has almost eradicated the backlog of nearly 4,000 cases it inherited in 2022.
  • The EEOC’s priorities have recently been focused on updated anti-harassment guidance and enforcing PWFA regulations.
  • The FLRA is still awaiting a Senate-confirmed General Counsel, a position that hasn’t been permanently filled in nearly 8 years.
  • OSC had its busiest year ever, between cases filed and Hatch Act activity.

Welcome to 2025, FELTG readers. With a new administration arriving in less than a week, we know some significant changes are expected in the coming days. But where are we today?

For the first time in who knows how long, we have ZERO vacancies at the top of the MSPB or FLRA, plus we have a Senate-confirmed Special Counsel and only one vacancy at the commissioner level at EEOC.

Over the past couple of years, we have been fortunate to interview a number of the individuals at the top of these agencies, so please check out the associated links to learn more about them. Now, let’s take a closer look at the major oversight agencies.

Merit Systems Protection Board (MSPB)

It’s almost hard to believe that after over five years of waiting, a Board quorum was returned to us less than three years ago. Since March 2022, when the quorum was restored, Board members have worked tirelessly to clear out the inherited inventory of 3,793 petitions for review that languished while the Senate refused to vote on nominations for half a decade. As of this writing, there are just about 100 cases remaining in the backlog. Talk about progress!

As far as who’s who, the current Chair is Cathy Harris, the Vice Chair is Ray Limon (whose term expires March 1) and the third Member is Henry Kerner (who was sworn in last June). We anticipate President Trump will appoint Kerner as Chair in the coming weeks, and we’ll keep you posted on who is nominated to replace Limon after his term expires. Harris’s term doesn’t expire until 2028 and Kerner’s in 2030, so we anticipate stability to remain in the Board over the coming months unless something unprecedented happens.

The Board usually publishes a few interesting reports each year, but we didn’t see anything new in 2024. I suppose the tradeoff is clearing out the case inventory. Hopefully, we’ll see some noteworthy research in 2025.

Equal Employment Opportunity Commission (EEOC)

The current chair at EEOC is Charlotte Burrows, and the vice chair is Jocelyn Samuels. Andrea Lucas and Kalpana Kotagal are commissioners, and there is one vacancy available for the incoming President to fill. Most likely the titles of chair and vice chair will be shifted under the new administration, but we don’t expect the commissioners to go anywhere. Their terms are five years, and traditionally, they do not turn over with the various administrations.

EEOC’s focus in 2024 included two major topics:

  • Updated Enforcement Guidance on Harassment in the Workplace, the first all-encompassing guidance in 25 years.
  • Implementation of the final regulations on the Pregnant Workers Fairness Act, which became effective in June.

In December, EEOC released Federal workforce statistics from FY 2021. The number of formal EEO complaints filed (12,200) was the lowest in seven years. That said, Federal agencies also hit a seven-year high in the amount of money awarded during the complaint process: $74.5 million.

We’ll see what develops in the EEO world in the coming weeks as we anticipate the incoming administration’s philosophical shift away from the focus on Diversity, Equity, and Inclusion (DEI) in 2025.

Federal Labor Relations Authority (FLRA)

FLRA leadership consists of three political appointees; all three are currently occupied. Susan Tsui Grundmann is the chair, and Anne Wagner and Colleen Kiko are members.

While the top is fully populated, there is still not a confirmed General Counsel. President Biden has nominated multiple people for the role, but the Senate has not confirmed. We anticipate a new nominee in the coming months. The last time this position was officially filled with a non-acting GC was in 2017. As a result, there are at least 270 unfair labor practice (ULP) filings held in abeyance until a nominee is confirmed.

With union rights likely to be challenged in the coming weeks, the FLRA could be very, very busy in 2025.

U.S. Office of Special Counsel (OSC)

Hampton Dellinger was confirmed as the Special Counsel in February, and in his short time at the agency, he has been public about his desire to increase transparency in the agency. Ideas include, but are not limited to:

  • Posting publicly a summary of allegations in matters where the Special Counsel has determined that there is a “substantial likelihood” that the information discloses a violation of a law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, substantial and specific danger to public health and safety, or censorship related to research, analysis, or technical information and has referred the matter to the relevant agency.​
  • Posting publicly a summary of allegations in matters where OSC has issued a report concluding that a PPP has occurred or has advised an agency that OSC likely could establish the elements of a PPP. OSC will post the allegation to its website when the agency does not take corrective action in a timely fashion and the person making the allegation consents.

According to its FY 2024 report, OSC received 6,251 new cases, which is the highest in agency history – and a 45 percent increase over the average number of cases in FYs 2019-2023.

Because 2024 was an election year, the Hatch Act Unit was incredibly busy. OSC resolved 391 Hatch Act cases, a 40 percent increase from the last presidential election cycle. Check out FELTG’s recent interview with Hatch Act Unit Chief Ana Galinda-Marrone about other election-related trends in 2024.

That does it for now. We’ll keep you posted as new events unfold in Washington, DC, and around the country. Happy New Year, FELTG readers! I hope it’s your best one yet.  hopkins@feltg.com

Related training:

The Good News:  In Formal Discussions, Subject Matter Matters

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By Ann Modlin, January 15, 2025

Quick facts:

  • Unions must have the opportunity to be present in formal discussions between bargaining unit employees and the agency.
  • There is some confusion about what constitutes a formal discussion.
  • The FLRA provides helpful guidance on when meetings concern personnel policy or practices or other general conditions of employment.

The Federal labor statute provides a union the opportunity to be represented at “any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.” 5 U.S.C. § 7114(a)(2)(A) (emphasis added). Congress limited formal discussions to meetings involving those three topic areas. Or to put it another way, if the meeting does not involve one of those three topics, it is not a formal discussion.

Based upon questions raised frequently in training sessions on formal discussions, I think there is confusion about what meeting topics fall into the last two statutory topics: personnel policy or practice and general condition of employment. Fortunately, our good friends at the FLRA have guidance to help with any such confusion.

(PUBLIC SERVICE ANNOUNCEMENT: If you have not discovered the FLRA’s very useful guidance, you are missing out. The FLRA’s guidance documents highlight and summarize relevant case law on so many helpful topics: unfair labor practices, negotiability, information requests, and more. This article focuses on Guidance on Meetings (9/1/15) (FLRA Guidance).)

The FLRA Guidance on formal discussions, like I noted above, states: “Congress specified the subject matters that can be formal discussions. If the meeting topic is not within one of the three subject matters, the meeting is not a formal discussion.” FLRA Guidance at 7 (emphasis added). I’ll cover the subject of “grievance” in a future newsletter article.

In assessing whether a meeting is a formal discussion, the agency and union need to properly analyze whether the meeting is about a personnel policy or practice or general condition of employment. Once again, our good friends at the FLRA are here to help.

The FLRA Guidance explains that “personnel policy or practice” means “‘general rules applicable to agency personnel, not discrete actions taken with respect to individual employees.’” Id. (emphasis added). The highlighted language is crucial, folks. Technically, lots and lots of matters fall under the rubric of “personnel policy or practice,” but that does not mean every meeting with an employee involves a “personnel policy or practice.” Similarly, pretty much every discussion with an employee could involve a “general condition of employment,” but the FLRA Guidance clarifies that for purposes of formal discussions, the meeting needs to cover “conditions of employment affecting employees in the unit generally.” Id. (emphasis added).

Examples provided in the FLRA Guidance may help you with this topic analysis. Meetings that count as formal discussions include discussion of enforcement of a dress code policy; addressing alleged management interference with rights under the labor statute; announcing a change in workweek and staffing; and discussing implementation of a compressed work schedule. Id.

The Guidance then states, once again, “[t]he formal discussion representation right does not apply to meetings related to discrete actions taken with respect to individual employees.” Id. The examples of meetings that are not formal discussions include a discussion between an employee and agency officials regarding an employee’s work assignments and job performance; a meeting related to an employee’s “last chance agreement”; an oral reply meeting in response to a proposed adverse action; or a meeting regarding temporary assignment of two unit employees.  Id. at 7-8.

Managers, employees, and union representatives often feel that any serious meeting with an employee or employees is a formal discussion – especially if it has negative implications for the employee (like a discussion on performance concerns). But that is not what Congress intended. If you do not trust me, trust the FLRA. The subject matter matters.  And that’s Good News. modlin@feltg.com

Related training:

Employee is Responsible for Breakdown in Accommodation Process

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By Frank Ferreri, January 15, 2025

Quick facts:

  • An ATF employee sought accommodations for stress she experienced from work.
  • The agency offered her, and she accepted, a transfer from a GS-9 to a GS-7 position.
  • The court did not consider the transfer a “forced demotion” and found the agency met its Rehabilitation Act duties regarding the employee’s accommodations.

From time to time, FELTG newsletters contain reminders that “reasonable” accommodations don’t always imply “preferred” arrangements. Such was the case in Kingsolver v. Garland, No. 2:23-CV-58 (S.D. Ga. Dec. 30, 2024), which held an agency didn’t have to provide a lateral transfer for an employee with a disability where no such transfer was available and that a request for indefinite leave did not trigger a request for FMLA as an accommodation.

A Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) employee had depression and cardiac arrhythmia. Due to increasing stress at work, she had an “uncontrollable” crying episode in her office. The employee’s supervisor advised her of ATF’s employee assistance program.

The employee took a two-week vacation, followed by a weeklong training. After she returned to the office, the employee asked for leave without pay (LWOP), a lateral transfer, or anything else to help her. The employee’s supervisor offered her “liberal use” of leave with a flexible schedule and explained the employee could take sick leave or annual paid leave. However, LWOP was not an option, and a lateral transfer was unavailable.

After the employee received the same options from a second-line supervisor, she submitted a letter from her doctor suggesting that her windowless office worsened her condition. In response, the agency moved her to an office with a window.

Eventually, the employee was given a transfer from her GS-9 position to a GS-7 role. After the transfer, the employee contacted the DOJ’s Equal Employment Opportunity staff to complain that the transfer was not a voluntary reassignment but instead a demotion that she was forced to take.

The employee brought action under the Rehabilitation Act, alleging disability discrimination because the agency failed to provide her with a reasonable accommodation.

What’s the law?

An agency unlawfully discriminates against an otherwise qualified person with a disability when it fails to provide a reasonable accommodation for the disability unless doing so would impose an undue hardship on the agency. The employee bears the burden of identifying an accommodation that would allow her to perform the essential functions of the job.

The court found a difference between coercing the employee into the GS-7 role and moving her into it to accommodate her. Looking to a Circuit Court case, Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995), the court noted five factors to determine whether an employer forced an employment action through coercion or duress:

  1. Whether the employee was given some alternative to resignation or demotion.
  2. Whether the employee understood the nature of the choice she was given.
  3. Whether the employee was given a reasonable time in which to choose.
  4. Whether the employee was permitted to select the effective date of the resignation or demotion.
  5. Whether the employee had the advice of counsel.

The court noted that while the employee was given about 24 hours to make her decision and did not have the advice of counsel, her supervisors kept her apprised of vacancies for “months.” She was given the alternative to take annual leave liberally or stay in her current position. Thus, the court found no basis on which to find that the agency denied her a reasonable accommodation.

Reassignment to a vacant position can be a reasonable accommodation, the court noted, even if an employee with a disability is qualified for and capable of performing another existing position, the employer is not required to reassign the employee if there is no vacancy. The employer is also not required to create a new position, transfer another employee, or promote the employee. In this case, “reassignment to a GS-9 or higher position would have required [the agency] to create a new position, transfer another employee, or promote her to a GS-12.”

Indefinite leave or FMLA?

The court also explained that LWOP is not generally a reasonable accommodation. The employee alleged she was seeking FMLA leave when she made her request for leave without pay and that the agency had the “responsibility” of making her aware of her FMLA rights.

The court pointed out failure to notify an employee of FMLA rights is an FMLA interference claim — not a disability discrimination claim. Despite receiving training on the FMLA, the employee never formally put in for FMLA leave.

“Thus, no reasonable juror could find in [the employee’s] favor because this ‘breakdown’ in the reasonable accommodation process was attributable to [the employee], not the employer,” the court wrote.

What about telework?

The employee also alleged telework could have been a reasonable accommodation. The court rejected this argument as at odds with the employee’s argument that stress was the cause for her need for accommodations.

“Because [the employee] has not shown how teleworking would allow her to perform the essential functions of her job or how it would address the limitations of her disability, [the employee] has not met her burden of establishing that this particular accommodation is reasonable,” the court wrote.

The court granted the agency’s motion for summary judgment on the employee’s Rehabilitation Act claims.

As the court wrote, quoting Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997), “‘liability simply cannot arise’ for a failure to accommodate ‘when an employer does not obstruct an informal interactive process; makes reasonable efforts to communicate with the employee and provide accommodations based on the information it possesses; and the employee’s actions cause a breakdown in the interactive process.’” In less court-ish language, when an agency takes steps like this one did to find a workable accommodation for an employee, there won’t be a failure to accommodate under the standards of the Rehabilitation Act.

There are some differences between what some of the courts say and EEOC’s stance on some of these matters, and as always, FELTG will keep you in the loop. info@feltg.com

Related training:

Avoid the Circus: Appropriately Consider Notoriety of the Offense

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By Dan Gephart, January 15, 2025

Quick facts:

  • The eighth Douglas factor is the notoriety of the offense and its impact on the agency’s reputation.
  • Notoriety may be considered as an aggravating factor when an employee’s misconduct has been reported by the media and, sometimes, even if it hasn’t been reported.
  • The seriousness of the misconduct, the employee’s position, and the agency’s mission are all considerations when analyzing the proper disciplinary approach.

P.T. Barnum reportedly said: “There’s no such thing as bad publicity.” Well, it’s a good thing the Greatest Showman never had to appear before the Merit Systems Protection Board or the Federal Circuit.

For misbehaving Feds, there is such a thing as bad publicity for misconduct – and it could lead to a removal penalty. The eighth Douglas Factor – one of 12 to consider when determining the penalty – is the notoriety of the offense and its impact on the agency’s reputation, and it plays an important role in determining nexus when misconduct occurs off-duty.

A few months back, FELTG President Deborah J. Hopkins shared an awful case involving a Federal employee who lured a 13-year-old boy into his house where he licked the child’s bare feet and toes. It’s not good for your agency’s reputation to have its name attached to this kind of behavior in Newsweek magazine. (Deb’s article was also one of our most-read and shared newsletter stories in 2024). The agency removed him based on two specifications of conduct that were unbecoming and relied on the publicity to prove the nexus.

Sometimes, however, the news doesn’t have to make it to a national magazine for its impact on the agency’s reputation to be considered. Reports in a local newspaper, radio station, or over social media will often count, regardless of circulation, listener ratings, or followers. Even internal agency notoriety can be relied upon.

Potential for publicity

In fact, sometimes the misconduct doesn’t need to be reported on at all.

Take the case of Stump v. DoT, 761 F.2d 680 (Fed. Cir. 1985). An air traffic controller was apprehended by the police for possession and use of cocaine while attending a rock concert in Jacksonville, FL. No criminal charges were filed. However, the police reported the incident to the FAA. After an internal investigation, the employee, who denied the charges, was removed. The employee appealed the removal to the MPSB, who upheld it. So, he appealed to the Federal Circuit.

Now, you’re probably asking: Where’s the notoriety here? Was this in the newspaper? Local TV? No, it wasn’t made public through the media. However, that didn’t matter to the Federal Circuit, which found:

Clearly, the public’s awareness of the use of drugs by an air traffic controller, even off-duty use, would detract from its confidence in the agency. While this incident may have received no publicity at the time, disciplinary proceedings are not secret.

Id. at 681-682.

The court is basically saying it is unnecessary to demonstrate the actual occurrence of publicity to establish the connection between off-duty conduct and discipline. The potential for publicity can establish the nexus.

Consider ‘potential’ carefully

In Knowlin v. VA, DC-0752-17-0703-I-1 (MSPB 2023)(NP), a GS-11 employee with the Veterans Benefits Administration was responsible for assisting service members being separated for medical reasons. The agency proposed the appellant’s removal for “disrespectful, insulting, abusive, insolent, or obscene language or conduct to or about … other employees, patients, or visitors.”

On her Douglas Factor worksheet, the proposing official wrote the appellant’s behavior “could have a negative impact” on the agency and those stationed at the appellant’s location. The behavior “could also be chronicled in the local media which would lead to additional scrutiny on the agency.” Id. at 95-97.

The MSPB found this analysis to be “purely speculative.” Id. at ¶11.

Nearly any misconduct by an employee has the potential for notoriety. In the absence of actual notoriety in the media or in the community, there was no reason to think that this counterfactual scenario should have been of special concern to the agency in this case.

Id.

And worse, the Board found the consideration of the notoriety of the offense to be an

an improper ex parte communication. The agency never let the employee know it was considering the aggravating factor until after it imposed the removal.

There’s a lesson: First off, make sure you provide the offending employee with the appropriate due process by including the Douglas factor analysis in the notice of discipline. Know and effectively apply all of the Douglas factors when determining penalty. And take into consideration the unique circumstances of each case, the egregiousness of the offense, and the agency’s mission.

gephart@feltg.com

Related training:

Three Questions: Hostile Work Environment Harassment in 2025

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January 15, 2025

FELTG instructor Katherine Atkinson will present Stay Up to Date: Hostile Work Environment Harassment in 2025 on Feb. 19 from 1 – 3 pm ET.  We asked Katie three questions as she prepared her presentation.

FELTG: You’ll be discussing the EEOC’s most recent guidance on harassment. What is the most important takeaway from that guidance?  

KA: It’s hard to say what the most important takeaway is from the guidance as it is very extensive – that’s why we need two hours for the class! There’s a lot of really important information. But if you are making me pick, I’d say the clarifications of any changes to the analysis of employer liability based on the identity of the harasser. The EEOC talks about who in an organization constitutes an “alter ego” of the employer and how liability attaches to such a person’s actions versus those of a standard supervisor or a non-supervisory employee. Thoroughly understanding liability analysis is so important, of course, because such an understanding can help employers stop and fix harassment so as to avoid liability.

FELTG: There seems to be confusion about what actually constitutes “harassment” that is actually actionable. How do you determine if it’s actionable EEO harassment?  

KA: Well, we will spend a fair amount of time on this in the class, but the super abbreviated version is that actionable harassment occurs where an employee was subjected to offensive, unwelcome treatment due to a protected category that was sufficiently severe or pervasive to alter the terms, conditions, and privileges of employment. But that sentence contains a bunch of legal terms, which I know can feel meaningless. During the class, I’ll break down what each of them mean, with emphasis on the new guidance. In particular, another possible answer I might have given to the last question is how the Commission clarified the relevance of a conclusion that the allegedly harassing behavior was “unwelcome,” so I am looking forward to talking that through with participants.

FELTG: Any thoughts on actions agencies can take to limit workplace harassment? 

KA: Send employees to FELTG classes! My fellow instructors and I love to talk to employees at all levels about the scope of employer liability, which includes explaining that harassing behavior constitutes misconduct and, thus, is actionable. So, even if attending FELTG classes is not an option – conveying to employees that harassing behavior is misconduct and taking action every time it occurs. The action should, of course, be proportional to the offense, but if employers stepped in every time an employee behaved inappropriately, I really believe we could root out harassing behavior in the workplace. Consequences are key to incentivizing good behavior. info@feltg.com