Lack of Date Specificity in Proposal Not Always Due Process Violation

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By Deborah J. Hopkins, July 17, 2024

Quick facts:

  • Due process requires specificity in charges
  • When incidents of misconduct are clear – such as exposing a penis in the workplace or smacking a coworker on the buttocks – the date might not need to be specific
  • If an appellant, by his response, indicates he is aware of the misconduct charged, it weakens his argument of a due process violation

One of the fundamental elements in an adverse action against a Federal employee is for the agency to provide the employee with due process: a notice of the charges against the employee and any material relied upon, an opportunity for the employee to respond, and an impartial decision. 5 USC §§ 7503(b), 7513(b). As part of the notice step, the charges are required to be specific and detailed so the employee can make a meaningful reply. See Mason v. Navy, 70 M.S.P.R. 584 (1996); Pope v. USPS, 114 F.3d 1144 (Fed. Cir. 1997).

A recent MSPB case involved an employee who was removed on a charge of conduct unbecoming, with six specifications of sexually inappropriate behavior, including comments, touching, and exposing his penis in the workplace, Lewis v. Army, DC-0752-18-0856-I-1 (May 20, 2024)(NP). The administrative judge affirmed the removal, finding the agency proved five of the six specifications. The appellant filed a Petition for Review, challenging that his due process rights were violated by the lack of detail and specificity in the dates and locations the agency provided in the proposal notice.

Consider the below specifications (taken word for word from the case, but with some quotes and internal citations omitted for ease of reading), and see if you agree:

  • Specification 1: On multiple (approximately four) occasions during the period on or around June 2017 through January 2018, you kissed [your coworker] on her cheek during work hours in workspaces, such as by the water fountain, exiting the women’s restroom or in the hallway.
  • Specification 2: On one Friday between June 2017 and January 2018, when [your coworker] was leaving the Payroll office, you smacked [her] buttocks with your hand.
  • Specification 3: Between June 2017 and January 2018, on multiple occasions, primarily while [your coworker] was passing the hallway and once when she was sitting in [your supervisor’s] office, you held a paper towel dispenser roll to your genital area implying the size of your penis, and on one of these occasions stated, “In case you were wondering.”
  • Specification 4: On or around Fall 2017, when [your coworker] was in the payroll office, you walked by her and told her, “One night with me, and you won’t want to be with your husband.”
  • Specification 5: On 24 May 2018, while you were sitting down on your chair facing towards the walkway, you exposed your penis in full view and were taking pictures of your penis with your cellphone in your cubicle.
  • Specification 6: In early winter of 2017, you went to [your coworker’s] office while she was working alone, you walked behind [your coworker], who was sitting in her chair, and you placed both of your arms around her. Your face was touching her cheek, and you whispered in her ear, “I noticed your leave was low, and I am known for padding people’s leave for ‘special favors.’” She rebuffed you. You kissed her cheek on your way out and told her, “Let me know if you change your mind.”

So, FELTG reader, what do you think? Specific enough to satisfy due process, or not?

The Board considered the appellant’s arguments. While it held the locations were specific, it agreed with the appellant that the notice was not specific about the times and dates of the alleged conduct; each specification identified a range of several months’ time (for example, “between June 2017 and January 2018”). The Board compared Lewis to a lead case (one we also will discuss during MSPB Law Week September 9-13) where a lack of specificity in the dates attached to the charges indeed violated the appellant’s due process: Mason, supra. The Board then distinguished Lewis from Mason:

[W]e decline to interpret Mason so broadly as to impose a due process requirement that agencies, in all cases, affix a specific date to alleged misconduct. This is particularly so in cases like this one, where the agency itself lacked sufficient information to narrow down the occurrences to specific dates. A blanket rule imposing such a requirement could effectively prevent agencies from disciplining employees when it is unclear exactly when their misconduct occurred, and we do not think that this would be a desirable outcome.

Lewis at 6.

The Board went on to explain three additional reasons why the events in Lewis can be distinguished from Mason:

  1. The agency provided the appellant in Lewis with an approximate range of dates (up to about 6 months) for each specification, whereas the agency in Mason did not even notify the appellant of the year when he was alleged to have committed his misconduct.
  2. The agency offered the appellant in Lewis all the information it had concerning the dates for the specifications, whereas the agency in Mason withheld such information even though it could have supplied it.
  3. The agency in Mason surprised the appellant at the hearing by eliciting testimony about the precise dates of the alleged misconduct, but there was no such surprise for the appellant in Lewis.

Id.

In addition, the appellant in Lewis indicated by his responses that he understood the events in question that led to the charges. Because of these significant differences, the Board held that the lack of specificity on the dates in Lewis was not so egregious that it deprived the appellant of a meaningful opportunity to respond. The Board upheld the removal and closed the case by saying:

In sum, although a more specific proposal notice may have offered the appellant additional bases to challenge the proposal, due process did not require any greater specificity under the facts of this case. The proposal notice disclosed all of the known facts with respect to time and place, and it was otherwise sufficient to put the appellant on notice of the reasons for his removal. We find that the administrative judge made no error in analyzing the appellant’s due process defense. The appellant has not challenged the administrative judge’s findings on the agency’s case in chief, and we find no reason to disturb them.

Hopkins@FELTG.com

Training on this Topic:

The Good News: Smile and Beware, Your Home Office is on Camera

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By Ann Modlin, July 17, 2024

Office space is a home away from home. Or let’s face it, in 2024, your office space very well may be your home. However, a home office can be very visible to your colleagues, and some rules apply to what you display in your home office.

When everyone worked in office buildings, people took great pride in decorating their personal office spaces. Some people created brag walls full of diplomas and awards. Lots of office spaces displayed family and pet photos. Landscapes, artwork, or child-crafted pottery often appeared. Some people without windows put up fake windows on their walls. The goal – make the workspace a pleasant place to spend a good portion of one’s life.

Post-pandemic, a substantial portion of Federal employees work from home one or more days per week. The advent of Zoom and Teams and WebEx enables colleagues to see each other’s workspaces on camera.

A home office can feel more personal, so people may be more careless about what they display. An office in a Federal building is not likely to house an unmade bed. But that can appear in a Zoom meeting. What about someone using their Peloton bike (and wearing workout clothes) during a Teams meeting? Not likely to happen in a Federal building. According to some of my sources, it happened on Zoom.

What guidance is out there regarding appropriate home office displays? Not a lot, quite honestly. But, there are two potential home office minefields that managers, advisers, and employees need to understand.

First, displays of offensive objects can create a hostile work environment under equal employment opportunity laws. The EEOC clarified in its recent “Enforcement Guidance on Harassment in the Workplace” that “conduct within a virtual work environment can contribute to a hostile work environment.” https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace (April 29, 2024). This would include, for example, “racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting.”

Second, the Hatch Act applies to home offices. The Hatch Act prohibits Federal employees from engaging in political activity while on duty. In April 2020, the Office of Special Counsel (the entity that enforces the Hatch Act) issued guidance about the application of the Hatch Act to teleworking employees. Hatch Act Advisory for Teleworking Employees, Office of Special Counsel (April 28, 2020) (Advisory).

The Advisory explains that “[e]mployees participating in virtual work-related conferences are subject to the same on-duty Hatch Act restrictions as when they attend meetings or communicate in-person with others at work.” The Advisory specifically notes that employees “should ensure that any partisan materials, like campaign signs or candidate pictures, are not visible to others during the call.” Also avoid wearing campaign t-shirts or hats while on virtual conferences.

I think practical guidance is worthwhile on this subject, too. If you would not display something in a Federal building, you should not display it in your home office.

An office – whether in a Federal building or a home – should be a place where anyone would feel comfortable. There are lots of ways to do that without being offensive, inappropriate, or in violation of the Hatch Act.  And that’s Good News! modlin@feltg.com

Related Training:

How Long is Too Long for Delay on Reasonable Accommodations?

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By Frank Ferreri, July 17, 2024

They say patience is a virtue. Does that mean the interactive process on an employee’s reasonable accommodation can go at a snail’s pace?

Not according to the court in Pelton v. DeJoy, No. 19-1766 (D.D.C. May 3, 2024), which indicated a four-year timeline between request and accommodation would be a delay too long to withstand a failure-to-accommodate challenge under the Rehabilitation Act.

The case involved an attorney hired by the U.S. Postal Service in 2013. Her disabilities included a spinal cord injury, cervical fusions, bilateral thoracic outlet syndrome, nerve damage, depression, and a genetic clotting disorder. During her time with the USPS, the attorney was diagnosed with or treated for peripheral nerve entrapment, carpal tunnel syndrome, tendon and ligament tears, tremors, anxiety, depression, chronic insomnia, and weight gain.

The attorney said she requested an ergonomic chair, desk, keyboard, and mouse during her first week on the job. She presented these requests to the employee who conducted her orientation, however, was told that there was no room in the budget. Instead, she was shown “a room full of broken office equipment” from which she was expected to select something that would work for her.

In 2014, the attorney received an ergonomic keyboard and mouse. In 2017, she received an ergonomic chair and desk.

Because of the failure of the USPS to accommodate her disabilities, the attorney allegedly developed tendon and ligament tears as well as pain.

In 2017, the attorney’s responsibilities changed, requiring her to perform additional typing-intensive work. The attorney’s doctor said she was to limit typing to only 20 minutes per hour and no more than three hours per day. Upon receiving this information, the USPS referred the attorney to the USPS’s reasonable accommodations committee, which began the interactive process.

Along with the ergonomic chair and desk, the attorney also received voice-dictation software.

Nonetheless, the attorney sought and received Family and Medical Leave Act leave before suing under the Rehabilitation Act for a failure to accommodate.

To establish a failure to accommodate claim, an employee must show:

  1. She had a disability within the meaning of the Rehabilitation Act.
  2. Her employer had notice of her disability,
  3. She was able to perform the essential functions with accommodation and
  4. Her employer denied her request for a reasonable accommodation.

In the attorney’s case, only the fourth factor was in dispute. She alleged that the USPS unreasonably delayed in granting her requested accommodations. The court sided with the USPS on the keyboard and mouse, reduced typing time, and voice-dictation software. However, it found triable issues regarding the attorney’s request for an ergonomic chair and desk.

Although it was disputed as to whether the attorney asked for the chair and desk as early as 2013, the court found that it was a question for the factfinder to decide.

“A reasonable jury could find that she requested an ergonomic chair and desk in 2013, that her request went unfulfilled for four years, and that such delay was unreasonable,” the court wrote.

The court noted that case law hadn’t set a bright line on how long is too long but found guidance from the following:

Ward v. McDonald, 762 F.3d 24 (D.D.C. 2014). In a footnote, the Ward court noted that the three months that passed between when the employee made her request and when she resigned was “no long delay” and rebuked the employee for cutting the interactive process short and “blam[ing] her employer for not immediately granting her specific request.”

Faison v. Vance-Cooks, 896 F. Supp. 2d 37 (D.D.C. 2012). The agency did not offer an explanation for a more-than-three-year delay in providing an accommodation other than to say that it was not “in any way intentional.” The court found the agency didn’t reasonably accommodate the employee’s need for voice-activated computer equipment.

Mogenhan v. Napolitano, 613 F.3d 1162 (D.C. Cir. 2010). This case suggested a three-year delay would be actionable, but noted that the employee in the case, who had sinus problems, didn’t give a date for when she attempted to start the interactive process. She didn’t have a basis to argue that the interactive process took so long as to constitute a failure to accommodate.

While the attorney’s case and the precedent cases don’t necessarily lend themselves to a hard-and-fast rule, common sense notions of “reasonable” should prevail. There are also a number of EEOC cases that discuss accommodation delays. If the interactive process is shifting from a months-long process to a years-long ordeal, it’s likely going too slow, and the agency may find itself in failure-to-accommodate troubles. info@FELTG.com

Training on this Topic:

 

 

 

Be Prepared and Avoid a Deposition Conniption

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By Dan Gephart, July 17, 2024

A search on YouTube will bring up dozens of videos of famous people from presidents (Bill Clinton and Donald Trump) to pop stars (Justin Bieber, Pharrell Williams) providing testimony in a deposition.

God forbid you find a video of any of the several depositions of Ye. The rapper/design mogul/former Presidential candidate, previously known as Kanye West, has testified under oath that he’s “from Earth” and the “smartest celebrity you’ve ever met” and called an opposing attorney “f-cking stupid.” During one deposition, Ye put on a head covering with the image of Jesus Christ. Even though it “fully covered his face and muffled his voice,” he refused to take it off.

But depositions aren’t just for cases involving the rich and famous. And those being deposed are rarely as outlandish as Ye. (Notice I said rarely, not never.)

In the world of Federal employment law, depositions are an integral part of the discovery process and a critical step in preparing for a hearing before the Merit Systems Protection Board or Equal Employment Opportunity Commission. As we did our own preparation for the upcoming Hearing Advocacy: Presenting Cases Before the MSPB and EEOC virtual training (1-4:30 pm ET on August 13-14), we decided to answer some recurring questions about the deposition process.

What is the purpose of a deposition?

The National Institute of Justice defines deposition as the “recorded sworn oral testimony of a party or witness before a trial.” Depositions allow parties to “explore the strengths and weaknesses of the opposing party’s case.”

Depositions provide the opportunity for attorneys to:

  • Discover information.
  • Lock witnesses into their story.
  • Gather evidence.
  • Gauge credibility of witnesses.
  • Preserve testimony of witnesses.

Are there situations where a deposition would not be a good idea?

Absolutely. Avoid depositions when you’re worried it could provide the opposing party insight into your case tactics or give them an opportunity to evaluate you. Also, there are times when the report of investigation provides all the information you need.

Are all depositions videotaped?

Under 5 C.F.R. § 1201.75, depositions may be taken by any method on which the parties agree. Depositions can be recorded by sound or video, and those recordings are supplemental to a transcript by a certified court reporter. The party requesting the deposition is responsible for hiring a court reporter and paying the court reporter costs.

How do you best prepare for a deposition?

FELTG instructor Katherine Atkinson suggests the following steps of preparation:

  • Review prior statements.
  • Determine which exhibits to use.
  • Paginate the number of the exhibits in advance.
  • Copy the exhibits in advance.
  • Prepare a list of questions, keyed to exhibits.
  • Prepare a witness binder and your binder.

Any advice for supervisors who are deposed? 

  • Be ready to answer leading or nonleading questions.
  • Ignore the conflict around you, whether it is attorneys arguing or objecting to a question.
  • Stay focused on the questions being asked.
  • Do not act like Ye. Gephart@FELTG.com

Training on this topic:

Yet Another Improper (and Appalling) Denial of Telework as Reasonable Accommodation

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By Deborah J. Hopkins, July 9, 2024

Quick facts:

  • The complainant had a painful skin condition that caused unpredictable flare-ups and fluid seepage from her lesions.
  • She requested full-time telework as an accommodation and provided medical documentation of her limitations.
  • The EEOC found the agency’s offer of two days of telework and a modified work schedule were not effective, and that providing full-time telework would not be an undue hardship.

If it’s a day that ends in “y”, it’s a day we see yet ANOTHER case involving a denial of telework as a disability accommodation, when there is a mountain of evidence (and supporting medical documentation) that telework is the only effective accommodation: Tania O. v. Army, EEOC App. No. Appeal No. 2022001333 (Jan. 31, 2023).

Why are some supervisors still opposed to telework – especially supervisors who know the employee performed acceptably on 100% telework for 10-plus months during the initial COVID lockdowns?

Consider the Tania O. case, cited above, where the complainant was diagnosed with hidradenitis suppurativa (HS), a skin condition that causes painful lumps to form underneath the skin, which can either break open and seep fluid, or form tunnels beneath the skin surface.

According to the complainant’s testimony, “I get the lumps under my armpits, under my breast, on my buttocks which prevents me from sitting, but I am mostly affected in my groin area, which is painful for me to walk because any type of clothes that can rub against it begins to irritate the lumps…They break open and leak all over my clothes…which causes me the need to change my clothes or pad my clothes.” Id. at 5.

The complainant requested a reasonable accommodation that would allow her to have situational telework in the event of an HS flare-up. The supervisor requested medical documentation, and the complainant complied, providing information from her physician which identified that:

  • The complainant’s case of HS caused her to develop painful nodules and plaques (boils) that could be debilitating.
  • Active flaring lesions can create a significant amount of drainage.
  • Flare-ups can fluctuate in severity but can happen daily in patients during some phases of the disease.
  • It can take several days for lesions to improve.
  • Lesions in the groin/buttocks area make prolonged sitting, standing, or walking very difficult.
  • Certain clothes, including work attire, can be difficult to wear during flare-ups.
  • The leaking drainage has a strong odor, and also shows up visibly on clothing, which causes high levels of embarrassment in a public setting.
  • Using public bathrooms with open/draining sores in the groin/buttocks area is very uncomfortable.
  • Working from home can be very helpful during flare-ups to allow for increased comfort and reduced stress and embarrassment.

How’s that for specific?

Even still, the complainant’s supervisor did not approve her telework request, but suggested alternate accommodations — a sit-to-stand desk and a private office located near several restrooms. The complainant accepted the alternative accommodations but indicated that she disagreed with them and initiated the agency’s informal dispute resolution process. Id. at 6.

The complainant then renewed her telework request and the agency denied it but offered additional accommodations — toilet seat covers and an alternate work schedule, with hours from 7 a.m. to 4:30 p.m. The complainant once again disagreed with the offered accommodations, indicating they would not be effective, and informed the agency she was initiating an EEO complaint. The agency responded by issuing a memo informing the complainant that she could request FMLA leave to deal with her flare-ups, and that she could telework on Tuesdays and Thursdays.

In emoji speak, ??‍♀️ and ? come to mind.

The complainant accepted the newest accommodations (after all, some telework is better than no telework, right?) but informed the agency shortly thereafter that the two days of telework were not working for her because her flare-ups were not limited to Tuesdays and Thursdays. Understandably frustrated, at one point the complainant asked her supervisor, “do you want me to come to work with no underwear and bra, and the boil bursts drains onto my clothing and chair and causes a [foul] odor.” Id.

The Commission sided with the complainant and found the agency violated the law because it failed to provide an effective accommodation:

None of the alternative accommodations the Agency provided [Complainant] alleviated her need to abstain from sitting, walking, and wearing clothing that aggravated her painful lesions during unpredictable flare-ups of her condition. The only accommodation the Agency provided that even remotely addressed her needs – the fixed telework days – was also ineffective because [Complainant’s] condition did not only flare on Tuesdays and Thursdays. Significantly and critically, neither [Complainant] nor her doctor can predict those days when her condition may flare.

Id. at 3.

In addition, the agency never demonstrated (or even contended) that providing the complainant with telework during her flare-ups would cause an undue hardship. Aiding the complainant’s case was her experience on 100 percent telework for 10 months during the COVID pandemic while maintaining successful performance.

Fellow humans, if you’re reading this, you probably agree with me that being stingy on telework when it would be an effective accommodation is an absolutely terrible idea. But you have my permission – nay, my pleading request – to pass this article along to anyone you think should receive the message. Hopkins@FELTG.com

Training on This Topic

And Now a Word With … MSPB Vice Chair Raymond Limon

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By Dan Gephart, June 17, 2024

Just over two years ago, we interviewed the newly sworn in Merit Systems Protection Board Vice Chair Raymond Limon. We discussed how Limon’s previous Federal work would help as the recently quorumed Board planned to tackle an inherited inventory of nearly 3,800 cases in the middle of a pandemic, while introducing a new e-Appeals system.

Limon’s Federal experience is vast. It included roles with the State Department and the Office of Personnel Management, as well as a stint as Deputy Assistant Secretary for Human Capital and Diversity and CHCO at the Department of the Interior.

However, the Federal job that best helped Limon move from a career “get-it-done” mindset to a political “lead-it” mindset was a volunteer position he held early on in his Federal career.

“I’ll be honest: It was the Peace Corps when I was in Honduras,” Limon said. “There you’re sitting in a fishbowl. It’s a different culture, a different language. People have perceptions about you that could be true, maybe not true. But all eyes are on you. That kind of vulnerability and confidence and willingness to make yourself vulnerable. I took a lot of those Peace Corps experiences I had to go through at a younger age, now I’m sitting at this table [here at the MSPB for my first transition briefing]. All the career executives are getting ready to brief me. I used to sit in that exact same seat you [the Board staff] used to sit in. I didn’t want to be that person that says: ‘This is what you have to do. You have to do this right away.’”

Limon very graciously took time to talk with FELTG last week over Zoom.

DG: Last time we spoke, you had just been sworn in. Tell us what those early days were like.

RL: A lot of that was listening to (MSPB staff), determining: What are the strategies [to tackle the inherited inventory]? What are the best practices we should focus on? And knowing, at some point, yes, we’re anticipating Cathy’s arrival. [Editor’s note: MSPB Chair Cathy Harris, at that point, had not yet been confirmed.] You want to get stood up, but not get ahead of your skis. You also want to make sure Cathy was set up for success.

As I think back on it, first and foremost it was the wellbeing and safety of our employees. Even though it seems like 20 years ago, it was two short years ago and people were still getting vaccinated and workplace safety practices were in place.

DG: And you had the inherited inventory of cases waiting for you.

RL: The expectation from the White House was: Get busy. Get started on these cases right away. I talked with all of the experts here to get their suggestions on what we should be doing to take on that inherited inventory. We wanted to make sure from a data collection standpoint that we were differentiating between inherited inventory and ongoing inventory.

Our progress has been demonstrated. [Editor’s note: The new Board started with an inherited inventory of 3,793 cases. As of the end of May, they had completed 78 percent.] We also post our progress monthly on the Board’s website. That’s a testament to the team, and all these different stakeholders, to make sure everybody was in the room, that they could hear the famous NASA “Go. No Go.” Make sure everybody was in step before we implemented.

It’s a great story, and I think it offers a lesson for other agencies if they ever find themselves in a similar situation. We dealt with a lack of leadership appointments, but other agencies can have unexpected inventories based on technology issues, budgets. The kind of practice we went through can be a map for another agency.

DG: What can other agencies learn from your approach?

RL: First of all, always listen to your experts. They have not only dealt with these issues for a number of years, they have also anticipated your arrival and come up with some good strategies.

As I alluded to earlier regarding my service in the Peace Corps, I needed to stop, slow my roll and listen so I could better understand the culture, better understand the pain points these people had gone through over the last five years, which was very unique.

I’ve been on that side of the table so many times, when a political team comes in. They sometimes don’t have the patience for you. Half the time in the briefing, they’re not paying attention, they’re on their Blackberries. I didn’t want to be that guy. Going back to my beginning, being a Peace Corps volunteer has probably suited me the best for the job I’m in.

One thing I would not sleep on is your IT infrastructure. You can be coming up with all the ideas but if you don’t have capacity to get that information out to your stakeholders, it’s not going to work.

We were facing a challenging time, rolling in a brand-new e-Appeal system, away from a homegrown series of software and IT systems that helped collect some of our information. At some point the legacy systems aren’t going to be supportable.

Again, don’t get ahead of your skis. If we were going to get out there fast reducing the inherited inventory, we needed the confidence our IT system could keep pace.

DG: Based on the cases you’ve reviewed, what’s the mistake made most often when it comes to performance?

RL: I’ll put the bottom line up front: It starts with supervisors. People typically don’t leave the agency necessarily for more money. They leave their supervisors. When it comes to performance management we have to step back. I really do believe performance is a team event, everything from design of your performance program to the development of the performance standards to how you communicate that with your team, how you work with your unions, to roll out, etc. Going back to IT world. I’m at that age and experience, where I transitioned paper processing for time and attendance and/or performance management systems to a web environment and it is not easy.

It’s very important that the supervisor take his or her role seriously, understanding the performance management system, being involved at the beginning stage of it, the communication side of it, understanding how developing your employees is the right thing to do.

Now that I’m, of course, adjudicating and ruling on these cases where employees felt like they were not being treated fairly in the performance process, or management is defending its actions, it basically comes down to there was a communication breakdown. If the standards weren’t completely clear, did they come down from the strategic goals to department goals to office goals to the employee?

When we develop performance standards and metrics, every employee needs to feel it was written for them, to be able to say: “You understand me. This is what I do. It makes sense, now I’m now going to go out and do it.”

A lot of times supervisors, when they don’t clarify and they’re not involved in process, they kind of treat it like they have to instead of they get to, some kind of communication mishap is going to occur, and it manifests itself into litigation. I do see the worst of the worst of that.

I also know from sitting on the CHCO Council for 16 years, there are success stories. There are good ways to do it. It’s not all doom and gloom. In my world, I’m seeing the manifestation of the lack of communication, supervisors not taking their jobs seriously because of several reasons – one being, they were appointed to be supervisor and shouldn’t have been. They didn’t have the competencies, the ability to be a supervisor.

Are agencies holding the probationary periods for supervisors in check? Some do. Some don’t.

Are supervisors being rewarded for growing their people? When supervisors turn down shadowing opportunities to allow employees to go out and strengthen their skillset, but their managers are hanging on tightly, saying I can’t lose you. Nobody else knows how to write that report. There’s no way I’m going to let you go off to training or that detail.

That’s where we’re missing the forest through the trees. When supervisors are so locked into the tyranny of the present, they forget their role as a supervisor is spending at least 25 percent of their time, according to OPM’s supervisory guide, managing and developing people.

DG: What trends are you seeing in new PFRs that are being filed?

RL: I’ve not necessarily noticed a change in types of cases we’re getting. Maybe this is more of a byproduct of the growth of the Board. Through e-Appeal, we’re finding, in my humble opinion, that moving of data and pleadings is happening more efficiently. Looking at the inherited inventory, there were a lot of issues about timeliness, for instance. Was it completely faxed in on time? Did the person receive notice? There was some of that.

We’ll continue to see a significant number of whistleblowing cases. I think 20-25 percent of our cases involve some level of whistleblowing, either as an affirmative defense or an individual right of action. I think that trend line is going to continue to grow.

DG: The Board recently issued a “Notice of Opportunity,” which it has rarely done. I know you can’t talk about the specifics of the case in question, but can you describe the process that leads to a decision to issue a similar notice?

RL: Under the Board’s regulations, when we are looking at a case of first impression or something that we believe needs clarification, we can solicit stakeholder feedback. Recently, we did this in a matter that involves the whistleblower statutes and asked our stakeholders for their viewpoints on the questions we posed.  Also, even though I’ve been in multiple agencies and worked with many employment attorneys over the years, I can say unequivocally the best attorneys work here at the Board. No knock on anyone else, but these attorneys are the best.

They live and breathe it. They read all of the opinions coming from the different courts. We shouldn’t rely on our own hubris. It’s OK to ask for help. With our regulations, we have the authority to go out and ask for briefs. As in our recent notice, we post a couple issues, see what the public thinks. Bring that back in and, hopefully, we start to draft and finalize that opinion.

Gephart@FELTG.com

For more on the Board’s happenings and cases, check out FELTG’s newly-updated class Advanced MSPB Law: Navigating Complex Issues, July 9-11.

 

As Wiley Always Said, ‘Nexus is NOT a Hair Product’

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By Deborah J. Hopkins, June 10, 2024

I used this article’s headline in a recent training class on Advanced MSPB Law: Navigating Complex Issues (next held July 9-11). It was a favorite used by FELTG Founder Bill Wiley when explaining the nexus requirement in agency cases involving discipline for employee misconduct.

An agency must establish three requirements when defending an adverse action against an employee under 5 U.S.C. chapter 75:

  • It must prove by a preponderance of the evidence that the conduct occurred as charged;
  • It must establish a nexus between that conduct and the efficiency of the service; and
  • It must demonstrate that the penalty imposed is reasonable.

5 U.S.C. §§ 7513(a), 7701(c)(1)(B); 5 C.F.R. 752.403; Pope v. USPS, 114 F.3d 1144, 1147 (Fed. Cir. 1997).

A nexus, generally defined, is a link or connection between the misconduct and the employee’s job or the workplace; as seen under the second requirement above, the concept of nexus is often referred to as the “efficiency of the service” standard.

As we’ve discussed in a previous article, the MSPB generally recognizes three independent means by which an agency can show a nexus when the agency wants to impose discipline, particularly for off-duty misconduct:

  • A rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct (for example, cases involving harm against children);
  • The misconduct affects the employee’s or co-workers’ job performance, or management’s trust and confidence in the employee’s job performance (for example, management has lost trust in the employee’s ability to make good decisions because the employee was arrested for driving under the influence of alcohol); or
  • The misconduct interfered with or adversely affected the agency’s mission (for example, an employee of an agency’s morale, welfare and recreation division has an affair with an officer’s wife while the officer is deployed overseas).

A lead case on nexus for off-duty conduct, that every agency rep and union official should read, is Kruger v. DOJ, 32 M.S.P.R. 71 (Jan. 8, 1987). The case involved three Federal Bureau of Prisons employees who were reported to be smoking marijuana outside a local bar. After the agency’s investigation confirmed the events as alleged, the employees were removed on charges of “possession and use of marijuana on July 10, 1985, outside a local public tavern while off duty.” Id. at 74.

The agency justified the removal because, in part “as correctional officers, appellants have close contact with inmates and they are responsible for protecting property and inmate safety, enforcing security policies, regulations, and laws (including the laws proscribing narcotics and contraband), and assisting with inmate rehabilitation.” Id. at 74-75.

On nexus, DOJ showed that the appellants’ use of marijuana impacted agency mission because it was “antithetical to the agency’s law enforcement and rehabilitative programs that they are responsible for monitoring.” Id. The agency also showed that the notoriety of the conduct by the public “would impair the efficiency of the agency by undermining public confidence in it, thereby making it harder for the agency’s other workers to perform their jobs effectively.” Id.

The Board found the agency showed by preponderant evidence there was a nexus linking the off-duty misconduct with the efficiency of the service. It also, however, found removal was unreasonable and relied on the following Douglas factors in justifying a mitigation to a 60-day suspension:

  • None of the appellants had any prior discipline.
  • Length of service: Kruger had approximately 12 years of service and the other two appellants each had seven years.
  • The appellants all had either fully successful or outstanding performance.
  • The appellants’ truthful admissions of their misconduct on initial inquiry by the agency “indicate that they will not subsequently act in a dishonest or otherwise improper manner with the agency.” at 77.
  • The public was not aware of the events since no criminal charges were filed.

Shocking, perhaps, considering this was the 1980s and marijuana laws were quite different (and much stricter) back then. Check out the case for yourself and let us know if you have any thoughts or questions. We always enjoy getting messages from you. Hopkins@FELTG.com

 

The Good News: Reasonable Accommodation Requests Should Not Be Scary

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By Ann Modlin, June 10, 2024

Many supervisors panic when an employee requests a reasonable accommodation because of a disability. It does not need to be that way. Understanding the basics of the reasonable accommodation interactive process can help all involved – the supervisor, employee, and reasonable accommodation experts – do what is best for the employee and the agency.

My employee is claiming to be disabled.  How do I know if the employee is really disabled?

A disability is a physical or mental impairment that substantially limits one or more major life activities. Because of the Americans with Disabilities Act Amendments Act of 2008, the definition of “disability” is broadly construed. If it’s a close call the presumption is that an employee has a disability. If the disability and needed accommodation are not obvious, the employee may need to provide medical documentation to explain the nature of the disability and the functional limitations.

Many Federal employees have medical and physical impairments that meet the definition of disability. A list from the Department of Justice, Civil Rights Division, includes these examples of disabilities:

  • Cancer
  • Diabetes
  • Post-traumatic stress disorder
  • HIV
  • Autism
  • Cerebral palsy
  • Deafness or hearing loss
  • Blindness or low vision
  • Epilepsy
  • Mobility disabilities such as those requiring the use of a wheelchair, walker, or cane
  • Intellectual disabilities
  • Major depressive disorder
  • Traumatic brain injury

If my employee has a disability, do they need a reasonable accommodation?

Not necessarily. An employee with a disability has to be qualified for the position and able to perform the essential functions of the job with or without a reasonable accommodation.

Huh?

This is the important part of the interactive process, especially for supervisors. Many employees with disabilities can perform the essential functions of the job without an accommodation. Some employees cannot.

What are the essential functions of the position?

The EEOC’s regulations on reasonable accommodation explain “the essential functions are the fundamental duties of the position.” 29 C.F.R. 1630.2(n)(1). In our training classes on reasonable accommodation we refer to these at the “outcomes” of the job.

Does the EEOC have any more guidance on essential functions?

The regulations provide a list of reasons that a function may be considered essential:

“(i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.” 29 CFR 1630.2(n)(2).

The regulations also list evidence of whether a particular function is essential: “(i) The employer’s judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs.” 29 C.F.R. 1630.2(n)(3) (emphasis added).

Note the italicized language, above. As a supervisor, your input is significant in determining whether a job function is essential. Make sure you do an honest assessment. It is not an essential function just because you want a job performed a certain way.

My employee has not actually said “I need a reasonable accommodation.” Is it possible they requested one anyway?

It certainly is possible. The employee does not have to use any particular form or even use the words “reasonable accommodation.” What they need to do is let you know they need “an adjustment or change at work for a reason related to a medical condition.” EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, at p. 9 (Oct. 17, 2002) (Guidance).

Also, the request for an accommodation does not need to come from the employee. Someone else, like a relative or health care provider or friend, may make the request. Guidance, at p. 10.

How quickly do I need to address a request for reasonable accommodation?

The employer needs to act promptly! An undue delay can be disability discrimination. Guidance, at p. 17. If an employee requests reasonable accommodation, contact your reasonable accommodation coordinator immediately and get the process started.

Does my employee get to decide the reasonable accommodation?

The key word here is “reasonable” accommodation. The employee’s choice is considered, but as long as the accommodation is effective, it does not have to be the gold standard. Guidance, at 16.

The information provided here should help alleviate any panic associated with a request for reasonable accommodation. Remember that disability discrimination is illegal. As a supervisor, you are not expected to be an expert on reasonable accommodation, but you need to participate in the reasonable accommodation interactive process. Your agency has reasonable accommodation experts to help with this process. A reasonable accommodation request is not scary. And that’s Good News! modlin@feltg.com

[Editor’s note: FELTG’s annual webinar series on reasonable accommodation comes back summer 2025. Check out the first event here.]

When All Yell Breaks Loose: Rude Behavior and Discipline

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By Dan Gephart, June 10, 2024

On my morning coffee runs to Wawa, I drive by a pedestrian crosswalk and navigate a hectic parking lot that resembles a Richard Scarry book. This daily caffeine quest often reminds me there are two kinds of people in this world.

There’s the kind who say thank you when you hold a door open for them. These are the people who give you a nod and slightly pick up their pace when you let them cross in front of your car. Then there’s the other kind, who respond to your act of kindness with, well, nothing. No nod. No eye contact. No words of gratitude.

These rude folks aggravate me, even though I know they shouldn’t. But it’s a brief encounter. And once that coffee is securely in my hands, the lack of courtesy I encountered is long forgotten. Also, it’s a lower level of rudeness – one borne of self-absorption, not aggression.

But aggressive rudeness is out there. Just ask any retail clerk. And it’s in the Federal workplace, too, as recent decisions bear out. Unfortunately, there’s no latte or cappuccino available that’ll put these people out of your mind.

In Hornsby v. FHFA, DC-07520125-0576-I-2 (April 28, 2022) (NP), an employee was removed based upon 18 specifications of conduct unbecoming a Federal manager. This guy must be fun to sit next to on an airplane. In one meeting, he held up an email from another employee, who was also in the meeting, and said he found the email to be “[expletive] offensive.”

In this case, the Board sustained only five of the 18 specifications – but the meeting outburst was one of those sustained.

In Brooks v. Small Business Administration, DOCKET NUMBER SF-0752-23-0197-I-1, (Aug. 8, 2023), the MSPB administrative judge (AJ) sustained three specifications involving a loan specialist’s rude behavior. Those specifications involved emails that “impugn[s] the motives and character” of the loan specialist’s supervisor, and “levie[s] vague threats against her.”

Examples of those emails:

  • “I do not trust anything that you have to say because you’re not a credible person when you take into account what you were ‘willing’ to do against me without any real justification and or rationale. You’re (sic) morality and ethics are very questionable. And this too will come to light as well.”
  • “Obviously, you don’t care about what is right or wrong when you literally ignored the ‘facts’ of what I stated. Simply want to use your authority whether it’s right or wrong obviously doesn’t matter with you. And it continually shows in every way. Your time is indeed coming when you will have to be held ‘accountable’ to what you’ve done and continue to do against me.”
  • “I do not ‘personally’ want to review any 4th qtr, or any other year-end review with you because I do not trust anything that you have to say. You do not have any credibility with me.”

In Ikossi v. Department of Defense, DC-0752-17-0357-I-2 (April 10, 2024) (NP), the Board upheld the removal of a scientist on charges of conduct unbecoming and failure to follow instructions. The conduct unbecoming charge was bolstered by six specifications of rude, uncooperative, and unprofessional behavior.

In one of those instances, a supervisor and IT professional were assisting the scientist with reducing the size of her electronic mailbox and syncing her new computer. The scientist pointed her finger in the IT professional’s face and yelled at her. During a meeting to discuss a reasonable accommodation request for telework, the scientist yelled at an HR representative and then “jumped up and down.”

In another meeting, the scientist’s supervisor asked her to read the emails that were sent to her. According to the supervisor, the scientist replied:  “I am not going to read anything” and “You don’t know what you are doing.” When the supervisor attempted to read a printout of one of the emails, the employee grabbed them from supervisor’s hand and called her “stupid.”

In Salyer v. VA, DC 0752-17-0635-I-1 (May 20, 2024) (NP), the Board upheld an employee’s removal, which was supported by nine charges, including (you guessed it) a charge of conduct unbecoming. The appellant’s behavior is a textbook example of rude.

The employee would allegedly “yell” and “raise her voice” at employees. Most of the diatribes were aimed at subordinate employees, but at other times she raised her voice without directing the ire at anyone specifically. When someone told the appellant she needed to stop yelling, she replied: “I haven’t yelled, maybe I should start yelling so people know what my yelling is like.”

This kind of behavior is misconduct, and failure to address it will sink morale, make it harder to meet mission, and could eventually lead to harassment complaints.

In the Hornsby decision, the Board noted it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.” As FELTG Instructor Ann Modlin told us last year – words and attitude matter. gephart@feltg.com

[Editor’s note: If you’re looking for more guidance on challenging conduct and performance issues, bring FELTG directly to your agency to deliver our flagship UnCivil Servant class. Email info@feltg.com for more information.]

A Supervisor’s Negative Comments About EEO = Reprisal EVERY TIME

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By Deborah J. Hopkins, June 10, 2024

It is absolutely critical for Federal supervisors and managers to understand that engaging in protected EEO activity is a right for all Federal employees, regardless of the outcome of such activity. Throughout my years in the classroom, I’ve come across numerous supervisors who believe that if an EEO complaint is found to have no merit, then the employee has not engaged in protected activity. This couldn’t be further from the truth.

The Equal Employment Opportunity Commission for decades has held that comments which, on their face, discourage an employee from participating in the EEO complaint process can have a chilling effect on others, and as such nearly always amount to reprisal. See, e.g., Binseel v. Army, EEOC Req. No. 05970584 (Oct. 8, 1998), where the supervisor told the complainant that filing an EEO complaint was not the right approach to try to get a promotion.

Below are two more recent examples where the EEOC found reprisal because of a supervisor’s words about the EEO process:

Carlton T. v. USPS, EEOC App. No. 2019005495 (Nov. 16, 2020)

EEOC found a supervisor’s criticism of the manner in which the complainant filed EEO complaints constituted reprisal. Examples of the supervisor’s criticism included:

  • Telling the complainant he [the supervisor] thought it was “pretty sad” the complainant made up stories about people, and that this was why the complainant’s EEO complaints “never went anywhere, as nobody believed” him. at 9.
  • Telling the complainant, “you think you’re a specialist[,] but they reject all your [EEO complaints] because they’re all misspelled and have a lot of run-on sentences.”
  • In response to the complainant’s offer to assist a coworker in filing an EEO complaint, the supervisor told the complainant, “[t]he one who [is] stupid is you because you were pushing him [Complainant’s coworker] to file an EEO [complaint] against [S2][;] just because you can’t beat him you want somebody else to join in.”
  • Characterizing the complainant’s actions as “pathetic.”

Bert P. v. Army, EEOC App. No. 2020003846 (Nov. 15, 2021)

During the pre-complaint (informal) EEO process, a supervisor told the EEO Counselor “ … employees should have to pay to file an EEO complaint and only get it back if and when they may prevail.” Id. at 7.

The complainant originally saw a copy of the EEO Counselor’s draft report containing the comment. However, the comment was removed from the final report. The complainant testified that after seeing the supervisor’s comment in the draft report, the complainant thought the supervisor believed EEO “complaints are frivolous and [employees] ought to pay a fee so it would deter people from making complaints.” Id.

According to the case, the EEO Counselor removed the comment from the final report after being directed to do so by the EEO Manager. In its Final Agency Decision (FAD) the agency found that this comment amounted to per se retaliation because of its potential chilling effect on future would-be filers. The Commission agreed.

If you’re a supervisor or manager, it’s important to understand your role in the process from the very beginning. That’s why FELTG is offering a brand-new class on June 27 called The Supervisor’s Role in the EEO Counseling and Investigative Processes. In just two hours, we’ll cover everything from how to behave after an employee has claimed discrimination, to how to respond to an investigator’s written interrogatories. Plus, you can ask your questions and get answers in real time. You cannot afford to miss this event. hopkins@feltg.com

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