The Grand Bargain: Injured Employee Can’t Sue Agency

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By Frank Ferreri, November 13, 2024

Quick facts:

  • A VA nurse was injured on the job, and the injury was covered under FECA.
  • The nurse’s attempt to also sue the agency was barred by the “exclusive remedy” doctrine.
  • Due to the “grand bargain” that is workers’ compensation law, the employee was limited in recovery to the $2,108.04 she received via FECA.

The workers’ compensation system across the country, including the law that governs federal agencies, is often called the “grand bargain” because it guarantees – with some exceptions – that an employee’s work-related injuries will be compensated in exchange for an assurance that the employer can’t be sued for those same injuries.

Recently, Lopez v. U.S., No. 1:23-cv-03538 (D.D.C. Oct. 8, 2024), demonstrated the “exclusive remedy” doctrine in action.

The injury

A longtime registered nurse for the Department of Veterans Affairs suffered muscle strains, nerve damage, and chronic pain after a patient attacked her while she was on duty. The nurse filed a Federal Employees’ Compensation Act claim with the Office of Workers’ Compensation Programs. OWCP accepted most of the claim and paid the nurse $2,108.04 to cover her related medical costs.

The nurse then filed an administrative claim under the Federal Torts Claims Act, alleging the hospital was negligent in not warning her of the danger the patient posed and in not providing her with a security guard for her protection. The VA denied the administrative claim, stating that her earlier FECA claims precluded her FTCA claims. The nurse brought the FTCA case to court.

Exclusive remedy rule

FECA contains an exclusive remedy provision. In exchange for offering fixed compensation in lieu of litigation rights, the law protects the government from suits under statutes like the FTCA. A government employee covered by FECA cannot bring suit under the FTCA until the Secretary of Labor, in the form of the OWCP, has first found that FECA did not cover the employee’s injuries. FECA’s exclusive remedy provisions nixed the nurse’s FTCA claim in court.

“Plaintiff is a federal employee who seeks compensation for injuries she incurred at the VA,” the court wrote. “She filed a FECA compensation form with the OWCP, the OWCP determined that the FECA covered her injuries, and the OWCP provided her with compensation.”

In an effort to spare her case from the exclusive remedy barricade, the nurse alleged she experienced emotional injuries. The court noted that although “the state of the law concerning FECA coverage for emotional and psychological injuries sustained by federal employees remains unsettled,” it didn’t make a difference because once FECA applies to a claim, exclusivity attaches.

The court dismissed the nurse’s tort claim against the agency.

The statute

In reaching its decision, the court relied on the language of FECA and a longstanding precedent case applying it, as follows.

5 USC 8116(c): This statute provides that the “liability of the United States under [FECA] … with respect to the injury or death of an employee is exclusive and instead of all other liability.”

Daniels-Lumley v. U.S., 306 F.2d 7269 (D.C. Cir. 1962): In a case involving a federal worker who slipped on an icy sidewalk, the court spelled out that “unless [a] plaintiff’s injuries were clearly not compensable under the FECA … , we believe that the Secretary of Labor must be given the primary opportunity to rule.”

In other words, the “grand bargain” kicks in when an employee’s injury triggers FECA coverage, which in turn protects the agency from having to shell out additional damages that might be awarded in a tort action.

The lesson

If a federal employee’s injuries are compensable under FECA – and especially if she’s already been compensated through the operation of FECA – she will be barred from bringing a tort action under another federal statute, such as the FTCA.

On a related note, if the injuries rise to the level of a disability, the agency has an obligation to accommodate the employee’s medical restrictions if doing so does not cause an undue hardship. info@feltg.com

Related training:

 

The Board Offers Guidance, But Not Much Help, on the New Excessive Absence Standard

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By Deborah J. Hopkins, November 5, 2024

Quick facts:

  • In excessive absence cases, the MSPB now only considers absences beyond the date the agency warns the employee to return to work.
  • The Board did not instruct agencies how much absence post-warning would meet the “excessive” standard.
  • In a new MSPB case, the Board held that 200 hours of absence post-warning did not satisfy the excessive absence Cook criteria.

Remember earlier this year when the MSPB changed the requirements for excessive absence removals in Williams v. Commerce, 2024 MSPB 8 (Apr. 23, 2024)? If not, then you’ll want to update yourself here and then come back to this article for the latest development on excessive absence removals.

Generally an agency is not allowed to discipline an employee for being on approved leave, but an exception exists if the agency can show:

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

Cook v. Army, 18 M.S.P.R. 610 (1984).

Earlier this year the Board held in Williams that under element 2, an agency may not consider any absences the employee accrued BEFORE the agency warned the employee he would be removed if he did not return to work by a specific date; the agency may only count absences that occur AFTER the warning.

But Williams involved over a thousand hours of absence post-warning, so our biggest unanswered question after reading the case multiple times:

  • Exactly how many hours of absences will the Board determine is “excessive” post-warning?

Over a thousand hours, as in Williams, sure. But what about 800? 500? 200? Williams didn’t give us any indication where the lower end of the threshold would be, except when it alluded to Gartner v. Army, 104 M.S.P.R. 463 (2007), where the agency successfully proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period.

Which brings us to today. An employee was removed for excessive absence after she was absent for 1,400 hours over a one-year period. Butler v. FDIC, DA-0752-20-0060-I-1 (Oct. 22, 2024)(NP). In Butler, where the events occurred in 2017 and 2018, the Board retroactively applied Williams and found the agency failed to prove its excessive absence charge because only 25 days (or 200 hours) of straight absence occurred after the agency warned the appellant she was required to return to work. According to the Board:

Such a relatively short period of absence does not prove an excessive absence charge. Stated another way, 25 days of absence is not sufficient to establish that the appellant’s absence continued beyond a reasonable time, and therefore, the agency has not proven its charge of excessive absence. 

Williams at 4-5.

This is the time in the article I’d like to say, “But wait, there’s more!” Except there isn’t more. The Board left it at that and didn’t indicate ANYTHING about how many hours it would take for the agency to meet the “excessive” standard; it reversed the removal and ordered the agency to reinstate the employee with back pay.

Because the line here is not clear, and because we have mountains of case law that shows an agency can justify an AWOL removal for far fewer than 200 hours, at FELTG we are strongly considering moving away from the excessive absence approach altogether, and instead ordering the employee to return on X date, informing them they will be carried AWOL if they do not return, and effecting the AWOL removal after two weeks, if the employee does not report back.

If you have thoughts on this, or if your agency is taking a different approach, please feel free to share. hopkins@feltg.com

Related training:

·     Feds Gone AWOL: What to Do When Employees Don’t Show Up, Feb. 6

Inappropriate Sexual Conduct Costs CBP $40K in Compensatory Damages

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By Deborah J. Hopkins, October 29, 2024

Quick facts:

  • A CBP officer intentionally exposed his penis to the complainant.
  • The agency found the complainant was subjected to a hostile work environment based on that and other incidents.
  • Additional legal research shows the agency removed the harasser for his misconduct.

No matter how much awareness we bring to the topic, there are still far too many instances of inappropriate sexual conduct in the workplace. And when the conduct is not addressed promptly, it can cause continuing harm to the victim.

Consider the case involving a Customs and Border Protection (CBP) officer, in Buffalo, NY. Lelah T. DHS/CBP, EEOC Appeal No. 2021001401 (Aug. 16, 2022). The agency issued a FAD finding the complainant was subjected to a hostile work environment based on sex when:

  • On November 30, 2016, a co-worker (CW-1) pulled down his pants to reveal his camouflage boxer shorts to the complainant.
  • On March 5, 2017, co-worker 2 (CW-2) called the complainant’s name so she would turn her head and look at CW-1, who was exposing his genitals to her.
  • In August 2016, CW-1 and co-worker 3 (CW-3) had conversations in the office about pulling out their genitals in the office and having erections during work and training sessions, and CW-1 said he “worked up a chub” and “put it on the desk” for CW-3 to look at.
  • On August 19, 2017, CW-1 told Complainant he was upset that he was investigated by the Office of Inspector General (OIG) regarding her accusations that he was trying to intimidate, threaten, and discourage her from pursuing her complaints after management issued CW-1 a “cease and desist” memorandum to stay away from Complainant, effective May 5, 2017.
  • In or around August 2017, Complainant was forced to remove herself from the Tactical Terrorist Response Team (TTRT) and enter the bargaining unit to bid on a new position due to the harassment by CW-1.

Id. at 1-3.

In her complaint and signed declaration, the complainant said that as a result of the harassment, she experienced “extreme emotional distress and humiliation,” that “she felt humiliated and anxious as a result of the harassment,” and that “she was concerned for her overall health and safety.” Id. at 13.

The complainant requested, among other things, $125,000 in non-pecuniary compensatory damages, but the agency awarded $40,000 and the EEOC concurred with that amount. The award may have been higher, except some of the statements the complainant submitted in support for her $125,000 request were not signed, and the complainant’s personal statement was also not submitted.

If you’re wondering what happened to the harasser, the case doesn’t tell us. Because EEO cases use pseudonyms, we don’t know his identity. However, the decision does mention “an MSPB proceeding related to the removal of Complainant’s harasser” in relation to an attorney fees request. I surmised that CBP must have removed the harasser, and he must have appealed.

So, I did a little research, which led me to a case involving a Buffalo, NY-based GS-12 CBP officer’s removal for “exposing [his] penis in the workplace.” Burbas v. DHS/CBP, NY-0752-18-0222-I-2, p. 1 (June 13, 2024)(NP). I had a suspicion the appellant might be the harasser from Lelah T., but the NP decision was a bit vague on the details, so I went to the Burbas initial decision (Aug. 26, 2019). After reading the facts there, I am 99 percent certain this is the discipline side of Lelah T. (At least, I hope this didn’t happen more than one time in the Buffalo sector – and once was one too many times.)

Despite the appellant’s claim he meant his conduct as a joke, the AJ and the Board both upheld the removal. hopkins@feltg.com

Related training:

Do Douglas Factors Matter Even When Misconduct Involves Licking Child’s Feet?

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By Deborah J. Hopkins, October 15, 2024

Quick facts:

  • An employee pleaded guilty to a fourth-degree sex offense for “unconsented sexual contact” with a minor, and second-degree assault.
  • The ensuing publicity identified him as a NOAA employee, and the agency removed him based on two specifications of Conduct Unbecoming a Federal Employee.
  • The agency did a thorough and effective Douglas factor analysis.

While you’ve doubtless come across dozens, even hundreds, of removal cases involving a Conduct Unbecoming a Federal Employee charge, have you ever read a case where the conduct involved a Federal employee luring a 13-year-old boy into his house, taking him to a “room of pain,” and licking the child’s bare feet and toes? Sadly, there is a first time for everything. Soroka v. Commerce, DC-0752-20-0180-I-1 (Aug. 30, 2024)(NP).

The appellant, a GS-14 physical scientist for the National Oceanic and Atmospheric Administration (NOAA), was the Winter Weather Program Lead in the agency’s Severe, Fire, Public, and Winter Weather Services Branch. Id. at 2. The agency learned about his conduct only after he pleaded guilty to two offenses involving the child (fourth-degree sex offense for “unconsented sexual contact” with a minor, and second-degree assault). Id. He was also placed on the Maryland Sex Offender Registry.

The ensuing publicity identified him as a NOAA meteorologist, and the agency removed him based on two specifications of Conduct Unbecoming a Federal Employee:

  1. On or about and between July 15, 2017, and July 15, 2018, you had unconsented sexual contact with a minor of whom you had temporary care and custody, and responsibility for supervision.
  2. On or about and between July 15, 2017, and July 15, 2018, you assaulted a minor in the second degree.

Id. at 3.

He appealed his removal, claiming lack of nexus, but the AJ affirmed the removal. The Board upheld the AJ, but the final order was light on details, so I visited the initial decision (ID) for more information – and I discovered an absolute master class in Douglas factors preparation and deciding official (DO) testimony. I’ve left out citations and paraphrased some material for ease of reading, but all the below details on Douglas can be found in the ID.

Douglas factor 1: Nature and seriousness of the offense

The appellant’s misconduct was extremely serious. His position required him to demonstrate credibility and integrity. His misconduct violated the public trust and placed the agency’s reputation at risk.

Douglas factor 2: Job level and type

His position as the National Winter Weather Services’ program lead was a highly visible position within the agency. The position required the appellant to perform leadership functions for a key NWS program at a national level, and his role involved significant interactions with both NWS partners and the public.

Douglas factor 3: Past discipline

The appellant had no prior discipline.

Douglas factor 4: Work record performance

The DO considered the appellant’s above-average work record, and his length of service of over 25 years.

Douglas factor 5: Trust and confidence

The DO concluded the egregiousness of the appellant’s misconduct outweighed any mitigating factors. The appellant could no longer satisfactorily perform his duties because he could not publicly represent the agency in light of the notoriety of his misconduct. In addition, the appellant’s misconduct demonstrated a clear lack of judgment, which exacerbated the loss of trust and confidence.

Douglas factor 6: Consistency of discipline with comparator employees

The appellant identified a potential comparator who was also on the sex offender registry, in another state, who was not disciplined. But the proposing and deciding officials in this case were not involved in any disciplinary actions involving the other employee and were not even aware of the potential comparator case until two weeks before the appellant’s hearing – long after the decision to remove was made. In addition, the potential comparator did not hold a leadership role and worked primarily in internal programs, so he was not a proper comparator.

Douglas factor 7: Table of penalties

The penalty was consistent with the agency’s table of penalties.

Douglas factor 8: Notoriety and agency reputation

The appellant’s misconduct became highly notorious when it was widely publicized in local, national, and international media sources, such as Newsweek. In fact, the agency first became aware of the appellant’s criminal charges through media reports, which included the appellant’s photo, name, and his position with NOAA. This notoriety was highly damaging to the appellant’s credibility and to the agency’s reputation. In addition, the appellant’s photo and personal information were listed on the Maryland Sex Offender Registry, which has the serious potential to detract from the mission of NWS and NOAA, if anyone followed up on the story.

Douglas factor 9: Clarity of notice

The DO considered the clarity upon which the appellant was on notice that his misconduct violated any rules and testified that any reasonable human adult would know such misconduct was improper. The decision letter included the statement, “As a citizen and a public servant, you are aware that assault and sexual abuse of a minor is wrong and will not be tolerated. Even absent specific notice from the Agency, you should have known that the misconduct you engaged in was inappropriate; however, you knowingly engaged in those activities. This reinforces the point made above regarding your lack of judgment.”

Douglas factor 10: Potential for rehabilitation
The appellant did not demonstrate the potential for rehabilitation because he lacked accountability and blamed others, by referring to the victim as a troubled child and blaming an overzealous press for publicizing the story.

Douglas factor 11: Mitigating circumstances

No additional mitigating factors were identified besides the appellant’s lack of disciplinary history, 25 years of service, and above-average performance.

Douglas factor 12: Alternative sanctions

The DO testified that he did not take this decision lightly and he did not take any pleasure in this process. However, given the egregiousness of the appellant’s behavior and the lack of alternate, effective sanctions to appropriately address the misconduct, he had no alternative but to remove the appellant from his position.

This could be a model lesson for DOs for decades to come. I have to give kudos to Anna Bodi, the attorney of record on the ID, for so thoroughly preparing the DO. Even though the misconduct was egregious, it’s risky for an agency to not consider all the mitigating factors (if you don’t believe me, see this recent article about how an AJ reversed the removal of a law enforcement officer who bit his wife during a fight). Hopkins@feltg.com

Related training:

The Good News: It’s Simple, Proposing Official Should Do Douglas

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By Ann Modlin, October 15, 2024

Quick facts:

  • We are often asked by FELTG customers: Who should do the Douglas factor analysis?
  • We recommend the proposing official cover all 12 factors in the worksheet and attach it to the proposed discipline.
  • The deciding official should review the proposing official’s Douglas analysis and the employee’s response.

It’s time for another edition of “Douglas and the Proposing Official.”  (Why does that sound like it could be a sitcom? I mean, who would have thought Parks and Recreation would be a thing?)

We have written a lot of articles about this topic, but questions still arise regularly about whether the proposing official, the deciding official, or both, should do the Douglas analysis. Here’s the answer:

  • The proposing official should do the Douglas. We recommend covering all 12 factors in a worksheet attached to the proposal.
  • The employee then has an opportunity to meaningfully respond to the both the charge(s) and proposed penalty.
  • The deciding official should review the proposing official’s Douglas analysis and the employee’s response, but not create a new, independent Douglas analysis in the decision.

It comes down to our good old friend due process.

Due process entitles the employee to notice of why discipline is being proposed, a meaningful opportunity to respond, and an impartial decision. Penalty is a key aspect of discipline, so due process applies.

The Douglas decision itself, way back in 1981, stated “aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to the alleged factors . . . .” Douglas v. VA, 5 MSPR 280 (1981) (emphasis added). The Proposing Official should include the Douglas analysis in the proposal so that the employee has an opportunity to reply.

I know some of you are thinking, “But Douglas says ‘aggravating factors,’ and not mitigating factors, have to be in the proposal.”  Um, technically it does say that, but there can be a fine line between aggravating and mitigating factors. Better to include all of them in the proposal, just to be safe.

At one point, even the MSPB got confused about whether due process applied to penalty, so the Federal Circuit expressly stated that due process applies to the penalty part of discipline in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011). Ward noted “the importance of giving an employee notice of any aggravating factors supporting an enhanced penalty as well as a meaningful opportunity to address ‘whether the level of penalty to be imposed is appropriate.’” Id. (citing Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999)).

There’s also a practical side to all of this. Having the proposing official do the Douglas analysis, with the deciding official reviewing and assessing that analysis, also goes to the heart of what we at FELTG emphasize in ALL of our training – it keeps things simple. If the deciding official agrees with the proposing official’s Douglas analysis, the decision can say, “I have considered the penalty factors identified in the proposal, and I concur.” Done. Case closed.

Easy, right? That’s Good News! boehm@feltg.com

 

Complaint Doesn’t Fly, Thanks to a Swift and Effective Reply

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By Dan Gephart, October 15, 2024

Quick facts:

  • An air traffic control specialist and an agency operations supervisor entered a consensual sexual relationship.
  • The specialist alleged sexual harassment and discrimination on the bases of sex (female) and reprisal for prior protected EEO activity.
  • An EEOC AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant.

When faced with an allegation of sexual misconduct, there are two words you must remember as you contemplate action — swift and effective. While reacting wildly is not condoned, hesitation is imprudent and ill-advised. It could open up liability to the agency, and, even worse, leave an employee in a dangerous situation.

The recent EEOC decision Annice F. v. Buttigieg, EEOC App. No. 2022004327 (Aug. 22, 2024), underscores the importance of the aforementioned advice.

An air traffic control specialist filed a formal EEO complaint alleging the agency subjected her to sexual harassment and discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity. It started when an agency operations supervisor (AOS) was assigned to work alongside the complainant’s team. The AOS was not the complainant’s supervisor. However, due to the nature of his training and staff shortages, AOS sometimes provided operational instructions to the complainant and others on her team.

Soon after the AOS started working with the complainant, they began a consensual sexual relationship. However, that relationship ended abruptly when the complainant learned the AOS lived with his girlfriend and had multiple other sexual partners.

Later that year, the complainant told two supervisors of her intention to file a discrimination claim. She provided details of the relationship, explained the difficulty of working alongside the AOS, and shared concerns for her safety.

Now, imagine you’re one of these two supervisors, what would you do?

The supervisors told the complainant to contact local law enforcement, and advised her the agency would conduct an immediate investigation. That very same day, one of the supervisors reported the complainant’s allegations and prior relationship with the AOS to the agency’s Accountability Board in order to initiate a prompt investigation about sexual misconduct, potential gun violence, and involvement by local law enforcement for the safety of all parties.

Meanwhile, that same supervisor instructed management officials to immediately limit interactions and work projects between the AOS and the complainant. Soon after, the AOS was moved to a different team.

The supervisor also investigated the complainant’s claim that the AOS had guns in his vehicle on Federal property. No guns were found in the AOS’ vehicle, and the complainant admitted she never saw guns in his vehicle at work, just that he owned guns and stated he kept them in his vehicle.

Several days later, the complaint contacted a crisis hotline. She told her supervisors, who then sought guidance from the agency’s medical division. Citing the high pressure and national security implications of the air traffic control specialist position, the agency’s flight surgeon temporarily terminated the complainant’s medical clearance. A medical diagnosis is not needed to terminate clearance, only a concern that the employee’s physical or mental state could impact the performance of their job. Shortly after the complainant’s clearance was reinstated, she filed the claim.

The complainant alleged:

  1. She was harassed and subjected to a hostile workplace environment, resulting in disparate treatment.
  2. She was seduced, lied to, and coerced into having sex with a manager, under the belief that she was going to have a romantic relationship with him. Instead, however, the AOS used his position to convince her to have sex in order to benefit his own work environment, including assaulting and raping her on several occasions.
  3. She saw guns in the AOS’ car at work; however, nothing was done, and the guns were not removed.
  4. She went to the police and was told that she was not in any imminent danger; thus, she was unable to file a restraining order; and the AOS had since been moved to another facility.
  5. The agency removed her medical clearance as a result of her filing this EEO claim.

The EEOC AJ issued a bench decision that found the evidence established the agency took appropriate, prompt, corrective action in response to the complainant’s reports of sexual misconduct by the AOS and a potential gun violation on Federal property. Regarding the allegations of rape, the complainant was directed to local law enforcement.

The evidence also reinforced that the AOS was not a supervisor who was empowered to hire, fire, reassign, or take any other employment action against the employee, or make any decision that would affect her benefits or terms and conditions of her employment.

The AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant. The complainant appealed, and the EEOC concurred with the AJ.

But it was not only the swiftness of the supervisors’ actions, but also the effectiveness, that EEOC found appropriate. This is particularly critical when the allegations include firearms on workplace grounds and sexual assault. gephart@feltg.com

Related training:

 

Keep Accommodations on the Radar After Workers’ Comp Claims

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By Frank Ferreri, October 15, 2024

Quick facts:

  • A mail carrier had a string of injuries over several years that resulted in workers’ compensation coverage and absences from the job.
  • The carrier’s supervisor repeatedly misclassified her time off and allegedly made derogatory remarks about her disability being a “lifestyle.”
  • Due to a lack of evidence about accommodations and the carrier’s status as a “qualified individual,” the court dismissed her Rehabilitation Act claim.

When a workers’ compensation scenario arises, chances are an employee has a disability that could find coverage under the Rehabilitation Act and be subject to that law’s requirements regarding reasonable accommodations.

However, an on-the-job injury doesn’t automatically trigger accommodation duties with no other documentation. As the court in Johnson v. DeJoy, No. 23-2342 (D.D.C. Sept. 17, 2024) explained, the employee still has to show an accommodation exists that it will allow her to perform the essential functions of her job.

Many years, multiple injuries

A full-time mail carrier was involved in an incident on the job where she reported that she was “wrongfully accused of hitting a customer with her mail truck and leaving the scene.” According to the carrier, she was sent home for about eight months before being offered her job back and was not paid for “the pain suffered” as a result of the incident.

After she returned to the job, and while she was two months pregnant, the carrier fell down a flight of stairs while delivering mail. She injured her lower back and tailbone, which required medical treatment and resulted in the loss of her pregnancy.

Because of the accident, the carrier suffered from “a severely depressed mood, anxiety, and symptoms of post-traumatic stress.” She was eventually diagnosed with bipolar disorder and post-traumatic stress disorder. The carrier sought FMLA leave, which was denied.

Later, the carrier took leave approved by the Office of Workers’ Compensation Program (OWCP). When she returned to work, she requested reasonable accommodations. According to the carrier, the agency responded “by creating a hostile work environment and retaliating against” her and by refusing to sign and return her leave slips and improperly coding her OWCP-approved leave as AWOL and LWOP.

After contacting an EEOC counselor, the carrier received and signed an Offer of Modified Assignment but did so “under protest,” as her new schedule interfered with her childcare responsibilities.

Eventually, the carrier and the agency reached a settlement agreement under which her supervisor would sign and return her leave slips and correct leave that had been improperly recorded.

The carrier returned to work. Within a few days, she was chased by a dog, fell, and injured her right wrist, shoulder, lower back, and both knees. After some delay, the OWCP accepted her request for continuation of pay (COP). Again, however, the supervisor improperly coded her absences as LWOP or annual leave.

Human resources informed the carrier her health benefits had been terminated because she had not remained in a pay and duty status for eight pay periods, prompting another EEOC complaint and instruction from OWCP for the agency to provide the carrier with a job that complied with her medical restrictions.

The carrier returned to work and, on several occasions, was required to perform work in violation of her medical restrictions. Again, the carrier had to take leave and again had her absences misclassified.

Following an alleged statement from the supervisor that the carrier’s disabilities were a “lifestyle,” the carrier brought a Rehabilitation Act claim, alleging a failure to accommodate.

The carrier’s case

Under the Rehabilitation Act, agencies must make reasonable accommodations to the known physical or mental limitations of a qualified individual with a disability. To be a “qualified individual,” an employee must be able to perform the essential functions of a job with or without reasonable accommodation. While a determination that an employee is not a qualified individual is rare on a motion to dismiss, it can be appropriate where an employee has not indicated that she could perform the essential functions of her job and has not identified a reasonable accommodation that would allow her to do so.

The court granted the agency’s motion to dismiss the carrier’s failure to accommodate claim. She failed to allege what her essential functions were and to present relevant reasonable accommodation options to the court.

“Rather, [the carrier] merely states that a ‘reasonable accommodation would have allowed her to fulfill all essential functions of her job,’” the court wrote, explaining that such a statement was “a legal conclusion that the court need not accept as true.”

The court noted the only evidence the carrier presented as to qualification was her assertion that she was “otherwise qualified for her position,” due to her long and successful employment history.

The court interpreted this argument as the carrier asking it to infer from her employment history that she could perform the essential functions of her job with or without reasonable accommodations.

Lesson for agencies

The court wrote that “it is unable to make this inference,” due to a lack of evidence on whether and to what degree she was impaired, and how the nature and severity of her impairments evolved over the course of about 12 years. Thus, the court found the carrier had not stated a Rehabilitation Act claim.

When an employee is dealing with matters involving workers’ compensation, it is not a bad idea to consider whether accommodations might be in order. At the same time, an agency will not be at fault for breakdowns in the interactive process when an accommodation has not been proposed, so as to allow an employee to perform the essential functions of her job or desired role.

Similarly, if a case ends up in court, and an employee doesn’t have the details on what makes her qualified for her job, the court will have a hard time moving ahead with the case. The agency didn’t do itself any favors by continually mixing up how the employee’s time off was recorded (or not, as it were). The court doesn’t tell us much about the emotional backstory of the case, but it’s not hard to imagine an employee feeling frustration from the kinds of repeated mistakes the carrier had to deal with.

Remember, COP is an entitlement for Federal employees injured on the job in which the agency continues to pay an employee her regular pay during a period of disability for up to 45 days. In this case, the mix-up interfered with that benefit. As a result, it affected the carrier’s finances.

Mistakes happen, but when they keep happening, it can turn the temperature up on a dispute and bring a case into court that might have had a quicker, easier resolution. info@feltg.com

Related training:

Indefinite Suspensions: When an Agency Suspends Access to Classified Information

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By Deborah J. Hopkins, September 24, 2024

We have been discussing indefinite suspensions in a series of articles over the past few months. As a reminder, an agency may indefinitely suspend an employee in three instances:

1. The agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed;

2. The agency has legitimate concerns an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate; and

3. The agency has suspended the employee’s access to classified information and the employee is required to have access in order to do his job.

Sanchez v. DOE, 117 M.S.P.R. 155, ¶ 10 (2011).

If you missed them, check out the previous articles on indefinite suspensions for criminal conduct and medical conditions.

Today, we’ll focus on the third instance, indefinite suspensions when an employee’s security clearance has been suspended.

What types of things might cause an employee to lose a security clearance?

Despite common misconceptions that anyone who loses a clearance must be attempting to sell national security secrets to a foreign adversary, a number of factors (known as the adjudicative guidelines) can impact an employee’s clearance – and not all would constitute misconduct. The 13 guidelines below identify the broad areas that impact an employee’s potential for a clearance, and include detailed information about why each of these areas is a potential concern, which conditions could raise a concern and be disqualifying, and which conditions could mitigate security concerns.

  • GUIDELINE A: Allegiance to the United States
  • GUIDELINE B: Foreign Influence
  • GUIDELINE C: Foreign Preference
  • GUIDELINE D: Sexual Behavior
  • GUIDELINE E: Personal Conduct
  • GUIDELINE F: Financial Considerations
  • GUIDELINE G: Alcohol Consumption
  • GUIDELINE H: Drug Involvement and Substance Misuse
  • GUIDELINE I: Psychological Conditions
  • GUIDELINE J: Criminal Conduct
  • GUIDELINE K: Handling Protected Information
  • GUIDELINE L: Outside Activities
  • GUIDELINE M: Use of Information Technology

What proof does an agency need to justify an indefinite suspension when an employee’s access to classified information has been suspended?

As we have discussed previously, the four elements the Board looks for when it reviews indefinite suspensions are:

(1) The agency imposed the indefinite suspension for an authorized reason;

(2) The suspension will have an ascertainable end (an event that will end the suspension);

(3) The indefinite suspension has a nexus to the efficiency of the service; and

(4) The indefinite suspension is reasonable under the circumstances.

Hernandez v. Navy, 120 M.S.P.R. 14, ¶ 6 (2013). The authorized reason here is the suspension of a security clearance pending a determination about revocation, and the lead case is Jones v. Navy, 48 M.S.P.R. 680 (1991).

How are indefinite suspensions related to security clearances different than the other types of indefinite suspensions?

When it comes to security clearance suspensions and revocations, the Board does not have the authority to review the underlying merits of an agency’s decision to suspend or revoke an employee’s access to classified information. Navy v. Egan, 484 U.S. 518, 530-31 (1998). The grant of a security clearance to a particular employee is a sensitive matter and the denial of access to classified information is entrusted to the sole discretion of the agency; the Board also lacks the authority to review any argument related to the nexus between the employee’s alleged conduct and the suspension of their security access. Id. at 536.

Unlike most other MSPB appeals, the Board is also precluded from reviewing allegations of prohibited discrimination and reprisal when such affirmative defenses relate to the revocation of a security clearance. Pangarova v. Army, 42 M.S.P.R. 319, 322 (1989).

What can trigger the end of the indefinite suspension?

There are three options:

1. After the investigation, the agency does not revoke the employee’s security clearance and the suspension of access to classified information is lifted. If this happens, the employee should be promptly returned to duty.

2. After the investigation, the agency revokes the employee’s security clearance and informs the employee in writing. In this case, the employee may accept the result and resign or retire, which could end in the indefinite suspension. If the employee wishes to appeal the revocation of their clearance, typically during this appeal, the employee would remain on indefinite suspension pending the outcome of the appeal.

3. If the employee does not appeal the revocation but also does not resign or retire, or if after appealing the revocation, the revocation stands, the employee should be given a notice of proposed removal for failing to maintain a security clearance. Jones v. Navy, 48 M.S.P.R. 680, 683 (1991).

How should an agency handle removing the employee whose clearance has been revoked?

The employee obviously cannot stay in the position if a clearance is required. While reassignment to a position that does not require a clearance may be an option (depending on the underlying reason for the revocation), below are the elements required to justify removing an employee for failing to maintain a security clearance:

  1. The agency determined that the position required a security clearance,
  2. The agency revoked or denied the clearance,
  3. The agency provided the employee adverse action rights, and
  4. The deciding official considered reassignment to a non-sensitive position.

Egan, 484 US at 521-522. On element 4, unless the agency has a statute or regulation that creates a substantive right to reassignment, the Board may not require the agency to reassign the appellant to a position that does not require a security clearance or access to classified information. See Ryan v. DHS, 793 F.3d 1368 (Fed. Cir. 2015).

One final note, removing an employee for failing to maintain a security clearance is a nondisciplinary action. As such, the Douglas factors are not required. Munoz v. DHS, 121 M.S.P.R. 483, ¶ 15 (2014).

hopkins@feltg.com

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And Now a Word With … OSC’s Hatch Act Unit Chief Ana Galindo-Marrone

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By Dan Gephart, September 17, 2024

Televised debates and annoying political advertisements can only mean one thing: It’s election season again, and the Office of Special Counsel’s Hatch Act Unit is busier than the restaurant kitchen in TV’s fictional The Bear.

In recent years, the most-common Hatch Act violations have involved the use of social media to engage in on-duty political activity. But each election season seems to bring some new surprise.

Ana Galindo-Marrone, Chief of the Office of Special Counsel’s Hatch Act Unit, generously took some time from her hectic schedule to answer our questions.

DG: Regarding inquiries or violations, what is a new issue that you hadn’t dealt with before?

AG: OSC has recently updated its position on Federal employees displaying political candidate merchandise after the election. We previously advised that once an election is over, it is okay to display such items. However, Special Counsel [Hampton] Dellinger has instituted a year-round ban on displaying materials related to a current or contemporaneous political figure no matter if it’s before or after an election. A current or contemporaneous political figure is an incumbent Federal elected official and/or someone who has ever received a political party’s nomination for President of the United States and is still living.

We also receive many inquiries about whether issue advocacy violates the Hatch Act, which we advise would generally not violate the Hatch Act, absent any accompanying message in support of a political candidate, party, partisan political group, or other electoral-focused message.

DG: Here’s an example of an advocacy issue – the Israel-Hamas war. Have you received any questions about it and, if so, what is your guidance?

AG: OSC has received numerous questions regarding whether the Hatch Act restricts Federal employees from expressing their views about the current conflict between Israel and Hamas and other related topics. In response, OSC issued an advisory opinion to inform Federal employees of when and how the Hatch Act might apply to such speech.

The relevant provision of the Hatch Act prohibits employees from engaging in political activity while on duty or in the Federal workplace. Speaking about the ongoing conflict between Israel and Hamas is not political activity unless that speech also shows support for, or opposition to, domestic political parties, partisan political groups, or candidates for partisan political office.

DG: What about flags in the workplace — pride flag, blue lives matter flag, upside down flag?

AG: If if it is not connected to electoral advocacy, it does not violate the Hatch Act.

DG: Is it OK to have political bumper stickers? And, if so, do you need to hide them if entering the agency’s parking lot?

AG: While the Hatch Act prohibits Federal employees from engaging in political activity in a Federal workplace, the Hatch Act regulations specifically state that an employee may place a partisan political bumper sticker on his personal vehicle and park that vehicle in a Federal parking lot or garage.

Even if an employee has bumper stickers for two different candidates on their car, we do not believe it violates the Hatch Act. Employees must be cautioned, though, against displaying other partisan political materials, or even bumper stickers, in such a way that makes the vehicle appear to be a campaign mobile.

DG: Can you follow an agency political appointee on LinkedIn?  And, must you no longer follow that person if they run for office?

AG: Yes, you can follow an agency political appointee on LinkedIn. Should the individual run for office, you can still follow that person. But Federal employees who follow a candidate must be careful not to engage in activity in support of the candidate while on duty or in the Federal workplace.

DG: What is your guidance on quotes by politicians in email signature lines?

AG: We advise that employees may not use work email signature lines to show support for political parties or candidates by displaying their quotes or campaign slogans.

gephart@feltg.com

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Law Enforcement Officer Bites His Wife During an ‘Altercation’

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By Deborah J. Hopkins, September 10, 2024

Quick facts:

  • A law enforcement officer was removed after the agency learned he bit his wife during an off-duty physical altercation at their home.
  • The appellant was not truthful when questioned about the altercation and claimed his wife bit herself.
  • The administrative judge (AJ) found a nexus between the conduct and the efficiency of the service but mitigated the penalty because the agency did not appropriately address several mitigating factors, and the MSPB upheld the AJ.

In my line of work, I never have to make anything up. And once again, the point is proven in a recent MSPB case, Bonojo v. DHS, NY-0752-20-0056-I-3 (Aug. 22, 2024)(NP). Here are the facts, some of which I had to find in the initial decision (ID), which was issued Mar. 31, 2021.

  • A GS-12 Deportation Officer at ICE had a physical altercation with his wife on a day he was not scheduled to work. However, he was wearing his service weapon at the time because he could be called in to work if necessary.
  • The physical struggle occurred after his wife learned he had received a text message from another woman, and she attempted to take his phone from him. The appellant threw his wife on the ground and bit her on the arm; she scratched his chest.
  • The appellant called the police, and both individuals were arrested for assault.
  • The appellant reported the arrest to the agency. He claimed, on multiple occasions, that his wife bit herself in an attempt to make him look like the aggressor.
  • The agency removed the appellant based on two charges: 1) conduct unbecoming a law enforcement officer (one specification, related to biting his wife) and (2) lack of candor (four specifications, related to inaccuracies in reporting his version of the altercation).

On appeal, the AJ affirmed both charges, including 3 of the 4 specifications on the lack of candor charge. She also found a nexus between the conduct and the efficiency of the service because, while charge 1 occurred off duty, “[t]he appellant’s biting his wife raises questions as to his temperament.” Initial Decision at 13. However, the AJ also found the deciding official did not give sufficient weight to certain mitigating factors:

  • The appellant’s wife was not seriously injured and did not need medical attention.
  • The appellant’s performance ratings were outstanding.
  • The appellant had over 10 years of discipline-free Federal service.

The AJ found the removal to be outside the bounds of reasonableness. However, the appellant was now Giglio-impaired. The AJ ordered the removal mitigated to a reassignment to the highest-graded non-LEO position in his commuting area.

If you are thinking, “But Deb, a reassignment on its own isn’t even discipline,” then you’d be absolutely right. If the agency reassigned the appellant to a non-LEO job at the same grade level, then there would not be any discipline in his record!

And that is despite the Board’s strong language on nexus: “Thus, when law enforcement officers engage in off-duty misconduct, it is a ‘serious breach of conduct and . . . [has] a significant effect on [the officer’s] reputation for honesty and integrity, thereby a significant effect upon the efficiency of the service,’” citing Austin v. Department of Justice, 11 M.S.P.R. 255, 259 (1982). NP Decision at 4. Furthermore:

 

As a trained law enforcement officer, it is reasonable to expect that the appellant not resort to such violence, and his failure to do so casts doubt upon his ability to perform his duties, which require him to have good judgment and strong decision-making skills in high stress, difficult situations … [A]s a result of his actions, the appellant was arrested, and his second line supervisor had to retrieve the appellant’s weapon and credentials from the local police station, thus involving agency officials in his off-duty conduct.

Therefore, we find that the appellant’s actions undermine his ability to perform his duties as a law enforcement officer and adversely impacted the mission of the agency, namely, the enforcement of laws. Thus, consistent with previous Board findings, we find that the appellant’s off-duty misconduct is antithetical to the appellant’s role as a law enforcement officer and, therefore, has a significant impact on the efficiency of the service. (internal citations omitted)

Id.

Rather than reinstate the penalty, however, the Board upheld the AJ’s order on reassignment.

Had the agency done a complete Douglas analysis, it’s quite possible the removal would have been upheld, but its failure to give consideration to the mitigating factors allowed the AJ to substitute her own judgment for that of the deciding official. Yikes. hopkins@feltg.com

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