When Sexual Harassment Turns Into a Workers’ Comp Claim

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By Frank Ferreri, March 11, 2024

If you read our pre-Valentine’s Day piece on sexual harassment, you are aware the wrong kinds of advances can lead to EEO headaches. But did you know sexual harassment may also lead to a compensable injury under the Federal Employees’ Compensation Act (FECA), which covers emotional conditions causally related to compensable factors of an employee’s Federal employment?

However, as the following cases show, while a claim is easy to file, it can be difficult for claimants to prevail.

Under Employees’ Compensation Appeals Board (ECAB or the Board) cases, such as Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004), an employee can establish she sustained an emotional condition in the performance of duty by submitting all of the following:

  1. Factual evidence identifying and supporting employment factors or incidents alleged to have caused or contributed to her condition.
  2. Rationalized medical evidence establishing that she has an emotional or psychiatric disorder.
  3. Rationalized medical opinion evidence establishing that the identified compensable employment factors are causally related to her emotional condition.

“Rationalized medical opinion evidence” refers to medical evidence that includes a physician’s rationalized opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors and must be based on a complete factual and medical background of the claimant, be one of reasonable medical certainty, and be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by appellant.

To understand what the ECAB analyzes in claims related to alleged sexual harassment, consider the following decisions.

Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004)

A postal clerk alleged she sustained an emotional condition causally related to harassment in the form of a supervisor sitting on a ledge in front of her and propping his leg up. The supervisor allegedly stood “very close” or walked up behind her. The clerk also alleged the postmaster discussed one of the clerk’s personal relationships. According to the clerk, these actions caused her stress and aggravation of a preexisting condition, which was an internal carotid artery aneurysm.

ECAB’s ruling: The clerk failed to implicate any compensable factors of her employment in the development of her alleged emotional conditions. There was no evidence that anyone heard the conversation about the clerk’s personal relationship, and when the supervisor learned his ledge-sitting and following made the clerk uncomfortable, he ceased the behavior. ECAB concluded the clerk did not establish compensable factors of employment caused her emotional condition.

Donahue and Department of the Army, No. 01-1006 (ECAB Jan. 9, 2002)

A supply technician alleged a supervisor would on an “almost daily” basis “grab and slap her buttocks and make sexual innuendoes with regard to having sex.” This went on, according to the technician, from 1993 until 1997. This supervisor on one occasion came to the technician’s house at 11 p.m. on the pretext of asking about her husband, who was in the hospital, and made sexual advances that amounted to a sexual assault.

ECAB’s ruling: The technician did not bring enough evidence to the table to support her claim. Although the technician alleged she was subjected to sexual harassment, she continued to work at her job and made no allegations regarding sexual harassment until she filed her claim in August 1998 — nearly five years after the alleged sexual assault occurred. ECAB dismissed the case, finding the technician did not meet her burden of proof in establishing that she sustained an emotional condition in the performance of duty.

Lofti and Department of Health & Human Services, Health Care Financing Administration, No. 95-2756 (ECAB Sept. 19, 1997)

A health insurance specialist alleged she sustained anxiety, chest pains, heart palpitations, insomnia, pneumonia, myalgia, indigestion, laryngitis, and headaches due to sexual harassment by a coworker. According to the specialist, the coworker sent her cards and letters for a year, made lewd remarks, and would visit her cubicle in a tearful and angry state. The specialist also alleged there were “physical incidents in which he forcibly tried to kiss” her.

ECAB’s ruling: The Office of Workers’ Compensation Programs, which ruled against the employee, erred in finding that harassment by coworkers can only be considered a compensable employment factor if the employing establishment is aware of such harassment and fails to intervene. On the contrary, ECAB found evidence that the specialist sustained an emotional condition and several physical ailments due to sexual harassment by a coworker. In particular, the specialist presented evidence that included a detailed factual statement and corroborating statements from the employing establishment demonstrating that the described incidents occurred as alleged. As a result, ECAB sent the case back to OWCP.

An important lesson comes out of the Lofti case: Unlike in the Title VII context, whether or not a sexual harassment charge turns into a compensable workers’ compensation claim does not depend on whether the agency took appropriate steps in response to the harassment. Instead, it depends on whether the employee suffered an injury that was causally related to her job.

So, what can agencies do? A good place to start is stressing as much as possible that sexual harassment has no place in the Federal workplace. Even if it seems like “just a joke,” the job is no place for that kind of humor, which can literally cause an injury. Info@FELTG.com

 

And Now a Word With … Lindsay Laferriere of the Partnership for Public Service

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Comments can be, at the very least, disrespectful, disillusioned, and highly uneducated. In this case, they showed a complete misunderstanding of the agency mission and a mistrust of government, in general. Read more.

Read more

Agency’s Effective Use of Progressive Discipline is a Textbook Example

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By Deborah J. Hopkins, February 20, 2024

As I make my way through dozens of new nonprecedential (NP) MSPB cases, some grab more of my attention than others. And while NP cases don’t really tell us anything new about the law (See 5 C.F.R. § 1201.117(c)), sometimes they’re still worth discussing because of the case facts.

Along those lines, the MSPB upheld a recent National Park Service removal, in large part because of the appellant’s track record of receiving previous discipline: Stancil v. DOI, DC-0752-17-0153-I-1 (Jan. 30, 2024) (NP). On Nov. 21, 2016, the agency removed the appellant for failure to follow her supervisor’s instructions, citing three specifications:

  • The appellant failed to attend a meeting scheduled for her return from a 14-day suspension on June 20, 2016.
  • The appellant failed to attend a standing biweekly update meeting on June 21, 2016.
  • The appellant failed to attend a webinar meeting on June 30, 2016, as ordered by her supervisor.

In justifying the removal, the agency relied on the fact that, among other factors, it had disciplined the appellant twice previously for the same type of misconduct:

  1. On Nov. 20, 2015, the appellant received a letter of reprimand for four instances of failing to follow her supervisor’s directions to attend meetings; and
  2. On June 5-18, 2016, the appellant served a 14-day suspension for five instances of failing to follow her supervisor’s instructions to attend meetings.

The appellant raised multiple affirmative defenses including whistleblower reprisal, however, the Board held the agency supplied clear and convincing evidence it would have removed the appellant even absent her protected activity. According to the Board:

We find that the deciding official’s principal motivation for removing the appellant was her unwillingness to change her behavior despite receiving progressive discipline. In particular, the deciding official testified that he had hoped the use of progressive discipline would change the appellant’s behavior and cause her to recognize that she needed to follow her supervisor’s directions to attend meetings. HT at 96 (testimony of the deciding official). He further testified that he thought that the appellant’s continued failure to follow her supervisor’s instructions was flagrant and that he felt there was no other choice but to remove her.

Id. at 16.

Progressive discipline is something we teach during MSPB Law Week (next held April 7011, 2025) as a tool to (hopefully) correct an employee’s misconduct. If it doesn’t have its intended effect, it provides the agency with a solid basis to support a removal action.

Take a bow, NPS, for showing the FELTG world a textbook use of progressive discipline. hopkins@feltg.com

Good News: We Answer Your Questions About Medical Documentation

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By Ann Modlin, February 20, 2024

I heard from some readers that last month’s Q&A on medical inability to perform removals was timely. Yay!  I also had some follow-up questions regarding medical documentation. No time like the present to address those issues.

If an agency is considering a removal for medical inability to perform, who may have access to medical documentation?

Agency employees, such as reasonable accommodation coordinators or health officers, are often reluctant to share medical documentation with supervisors or other decision-makers. Their instincts may be noble, but also incorrect.

A supervisor cannot make a decision about a medical inability to perform without, well, knowing about any medical issues and the impact of those issues on the employee’s ability to perform the essential functions of the job. So, what can be shared?

Our friends at the EEOC have guidance on their website about the confidentiality of medical documentation and who can access that information.

This EEOC guidance explains “[t]he ADA requires employers to treat any  medical information obtained from a disability-related  inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.”

How is an agency supposed to store a confidential medical record?

It is very important for an agency to properly store confidential medical records. The ADA addresses this, and agencies can be liable for violating this statutory language: “information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.” 42 USC 12112(d)(3)(B) (emphasis added).

Note the emphasis added here: Do not store confidential medical information in a disciplinary or other personnel file.

What about HIPAA – the Health Insurance Portability and Accountability Act of 1996? Does it apply?

Since everyone who has ever been to a medical professional is acutely aware of the privacy protections under HIPAA (forms, forms, and more forms), there’s a belief that HIPAA applies to employers. But nope, that’s not the case.

For this, we turn to our friends at the Department of Health and Human Services for assistance (they are the HIPAA people).

“The [HIPPA] Privacy Rule does not protect your employment records, even if the information in those records is health-related. In most cases, the Privacy Rule does not apply to the actions of an employer.” But HIPAA does apply to health care providers. HHS explains, “if your employer asks your health care provider directly for information about you, your provider cannot give your employer the information without your authorization unless other laws require them to do so.”

Also remember this: You do not need the employee’s entire medical file – just information related to the employee’s medical inability to perform. Diagnosis, prognosis, and functional limitations should be the focus.

It’s important to properly handle confidential medical information, but it’s also important to have access to that information in a medical inability to perform case. There is a lot of solid guidance out there from the EEOC and HHS – and that’s Good News. modlin@feltg.com

Violence Prevention Measures Necessary in These Dangerous Times

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By Dan Gephart, February 20, 2024

If it feels like a dangerous time for Feds, that’s because it is. Attorney General Merrick Garland warned earlier this year about a “deeply disturbing spike” in threats against Federal workers.

A few weeks after Garland’s announcement, the unimaginable happened. A 32-year-old man killed and decapitated his father in their Bucks County, Pa. home. The man then posted a 14-minute YouTube video in which he held up his father’s decapitated head and called him a traitor. Why, according to the son, was the father a traitor? Because he was a Federal employee. The man then urged others to commit similarly violent acts against government officials. Police recovered a USB device that allegedly contained pictures of Federal buildings and instructions on how to make an explosive device.

Meanwhile, it’s election season when the discourse about Federal employees often turns ugly. This year, the rancor is uglier. It’s also quite dangerous. It was this election season, after all, when a major presidential candidate, who has since dropped out, promised, if elected, to “start slitting throats” in the Federal workplace.

We don’t want to be alarmist, but we do want to ensure your agency is as prepared as possible if violence shows up at the office, whether it’s caused by a current or former employee, a family member of an employee, a customer, or someone unknown to the agency.

FELTG instructor Shana Palmieri provides the following guidance (and much more) during her Assessing Risk and Taking Action: Threats and Violence in the Federal Workplace training (next held on April 3.) [Editor’s note: To have Shana teach this class directly to your agency, contact Info@FELTG.com.]

You should have a set of policies and procedures in place, and they should be accessible to all employees. Those policies and procedures need to include:

  • How the agency handles any incident of threatening or inappropriate behavior.
  • The process for reporting the behavior (incident reporting).
  • How the agency handles each type of violence.
  • Training that will be provided to staff.
  • The assessment protocol once an incident report has been submitted.
  • Who is responsible for the assessment process.
  • Who is responsible for the development of the management plan.
  • How staff will be notified of the management plan if there is a potential risk.

You should also have a prevention strategy that includes:

  • An effective incident reporting process. This process should encourage employees to submit concerns.
  • A relationship with local law enforcement. Does your agency receive reports from local law enforcement of potential risks within the community?
  • Effective protection. Physical security alarm systems, security staff, building access, sign-in processes for the general public.
  • An effective automated warning system.

Another key component of prevention strategy is take all threats of violence seriously. And take  immediate action when those threats come from current employees. Remember, a threat of violence is misconduct. Work your way through the Douglas factors, of course, and determine whether the threats warrant a suspension or removal.

There are numerous cases where removal for threats have been upheld – even as a first offense. In Robinson v. USPS, 30 M.S.P.R. 678 (1986), the MSPB found an employee’s verbal threat to a supervisor warranted removal despite the employee’s lack of prior discipline and four years of service. Per the Board: Such behavior affects the agency’s obligation to maintain a safe workplace for its employees, thus impinging upon the efficiency of the service.

The Federal Circuit echoed those thoughts in 2010 and reiterated them more recently in Jolly v. Department of the Army, No. 2017-1919 (Fed. Cir. Sept. 11, 2017):

“Where an employee makes ‘threats … against her supervisor [that are] unprofessional and inappropriate, and . . . they adversely affect the work atmosphere,’ the penalty of removal is ‘within the permissible range of reasonableness.’” Gephart@FELTG.com

 

When a New Supervisor Revokes Employee’s Telework Accommodation

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By Deborah J. Hopkins, February 20, 2024

When it comes to disability accommodation, there is no shortage of pitfalls to avoid. And there is one area we constantly hear about from FELTG readers, and that’s the topic of revisiting – or revoking – an employee’s existing reasonable accommodation, particularly when a new supervisor takes over.

One of the cases we discuss in detail in some of our trainings on revisiting existing accommodations (next offered as the 60-minute webinar Red Light, Green Light: Revisiting Existing Reasonable Accommodations on March 14) is Sandra A. v. Navy, EEOC App. No. 2021002131 (Sept. 16, 2021), request for recon. denied, EEOC Req. No. 2022000276 (Mar. 7, 2022).

In this case, the complainant, a technical editor, was granted an accommodation of full-time telework due to her irritable bowel syndrome (IBS). As a teleworker, she performed her job tasks successfully for several years. Working at home, according to the case, allowed the complainant to “have a low-stress environment with a consistent, regular schedule where [she] could have greater control over [her] IBS symptoms.” Id. at 3.

In the spring of 2018, a new supervisor took over and revoked all telework agreements in the complainant’s department. The complainant informed the new supervisor her telework was an accommodation for her disability and the telework revocation would require her to use leave to accommodate her medical restrictions.

The complainant renewed her formal request for telework and provided supporting medical documentation. She was denied. The agency instead granted the complainant “frequent and prolonged bathroom access as needed.” Id. at 4.

The complainant then explained if frequent and prolonged bathroom breaks were permitted, she would only be able to work 20 to 30 hours a week onsite, while she would be able to put in a full 40-hour week if she were allowed to telework.

The complainant’s medical documentation noted her condition often required an unpredictable and sudden need to use the restroom. Her “functional limitations have resulted in situations that are easy to take care of if working from home but can be difficult and misunderstood in a professional environment.” Id. at 5.

The documentation also noted that if the complainant was required to work onsite, she needed use of a private restroom. The agency instead provided access to a shared restroom.

Because her telework was revoked and she was not provided with a private restroom, the complainant was not able to come to the worksite. Because of this, she resigned approximately nine months after her telework was revoked.

Upon review of the appeal, the EEOC found the agency failed to provide a reasonable accommodation because the shared restroom was not effective. In addition, while the agency claimed the complainant’s position was not eligible for telework, the fact that the complainant had successfully worked from home for more than two years undermined the argument.

The EEOC also found the complainant’s resignation amounted to a constructive discharge because “a reasonable person in Complainant’s situation would have found the Agency’s actions intolerable.” Id. at 13.

Revisiting existing accommodations is sometimes necessary – but when an agency changes an accommodation that’s been working, it almost never ends well for anyone. Hopkins@FELTG.com

Valentine’s Day Advances Should Not Be in the Cards

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A generalized recognition of Valentine’s Day could be a nice way to inject some brightness into wintertime at work, but in conversation heart language, “say yes” to Title VII compliance by ensuring that charges of sexual harassment are addressed promptly and thoroughly. Learn more.

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Does Fed Circuit Case Signal End of Singh Comparator Analysis?

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Singh provides a fairly narrow comparator analysis that employees generally be from the same work unit, work under the same supervisor, and engage in the same or similar offenses. Here’s our take on Singh v. USPS, 2022 MSPB 15 (May 31, 2022).

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The State of the Civil Service: 2024 Edition

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By Deborah J. Hopkins, January 17, 2024

With the start of another year, it’s time for our annual update on what’s happening in the Federal employment law agencies most relevant to FELTG readers. Let’s get right to it. 

Merit Systems Protection Board

Isn’t it wonderful to have a functioning Board? Nearly every morning, I check to see what new cases have been issued. More often than not there’s something new to read. According to recent case processing data, the Board issued 2,176 decisions between March 2022 (when the quorum was restored) and Dec. 31, 2023. Of those, over 2,000 were part of the original 3,793 in the case inventory (what we at FELTG have commonly referred to as the backlog) the Board inherited following 5-plus years without a quorum.

Despite losing its third Member Tristan Leavitt, whose term expired in February 2023, the Board has been able to function with only two Member positions filled.

As of Jan. 1, the Board had 1,788 cases in its inventory still to be adjudicated. We’ll be covering the most relevant new cases during our upcoming MSPB Law Week in April.

As 2024 gets under way, we await a Senate vote on former Special Counsel Henry Kerner, who President Biden nominated last fall to be a Member. The Senate committee has a vote scheduled for January 17 (today!), so we should know more very soon.

The Board has also published interesting reports on topics including sexual harassment and employee perceptions of prohibited personnel practices in the workplace.

Equal Employment Opportunity Commission

The EEOC’s focus this past year included the implementation of the long-awaited Pregnant Workers Fairness Act, which became law June 27, 2023. This law requires employers to accommodate the pregnancy- and childbirth-related physical and mental limitations of employees in much the same way agencies are required to accommodate disabilities. Regulations are due any day now, so it’s a good time to register for Everything You need to Know About the Pregnant Workers Fairness Act on Feb. 7.

Another major case with EEO impact was the Supreme Court’s Groff v. Dejoy, which raised the standard for an employer to show undue hardship when considering an employee’s religious accommodation request. We wrote about that case here.

And finally, the EEOC’s Office of Federal Operations (OFO) issued guidance on workplace accessibility. You should take a look to ensure your agency is in compliance.

Federal Labor Relations Authority

The FLRA, much like the MSPB, has a leadership panel, which consists of three political appointees. At the moment there are two Authority Members – Susan Tsui Grundmann and Colleen Duffy Kiko. Last September, Kiko was nominated for another term.

Last week, President Biden nominated Anne Wagner, currently the Associate Counsel at OSC, to the third seat. If her name is familiar to you, it may be because Wagner served as a Member of the MSPB for several years alongside Grundmann. Much like the MSPB, the Authority is able to operate with a two-person quorum, so Grundmann and Kiko are issuing decisions as normal.

The FLRA hasn’t had a confirmed General Counsel in longer than I can recall off the top of my head, but there have intermittently been civil servants who have filled the role in an acting capacity.

A couple of weeks ago, Biden nominated Suzanne Elizabeth Summerlin for the third seat. Now, we await Senate action. The senate committee plans to vote on Summerlin today as well.

The FLRA is experiencing major issues with its annual budget, which is actually lower than it was in 2004, according to GovExec. Its workforce has also shrunk despite the increase in labor management activity in recent years.

While there’s emphasis on resolving disputes without time-consuming litigation – check out Dan Gephart’s two-part interview with FLRA’s Collaboration and Alternative Dispute Resolution (CADRO) Director Michael Wolf here and here – we have to wonder how the agency can continue to serve its mission if its budget doesn’t match its workload.

U.S. Office of Special Counsel

Just a few days ago, President Biden sent Hampton Y. Dellinger’s nomination to the Senate, asking them to confirm Dellinger as the Special Counsel, and the Senate committee is scheduled to vote today.

Dellinger was nominated in October 2023. His background includes work at the U.S. Department of Justice as an assistant attorney general overseeing the Office of Legal Policy (OLP), and work for the state of North Carolina investigating and working on initiatives to reduce Medicaid fraud and fight political corruption.

According to its 2023 Performance Report, OSC received 4,611 new cases in FY 2023, which  represents a 21 percent increase over the average of the previous three fiscal years, and achieved 418 “favorable actions” which is the second highest in the agency’s history. “What’s a favorable action?” you might ask. We’ll tell you when you come to MSPB Law Week.

Also interesting since it’s an election year (doesn’t it always feel like an election year?), OSC resolved 277 Hatch Act cases and obtained three disciplinary actions against Federal employees who violated the Hatch Act in FY 2023.

That about does it for now. Keep reading our newsletters and we’ll keep you posted as new events unfold. Happy New Year, FELTG readers! I hope it’s your best one yet.  Hopkins@FELTG.com

Good News: We Answer Your Questions on Medical Inability to Perform

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By Ann Modlin, January 17, 2024

Ann Modlin Boehm HeadshotIn the past year, I have seen an uptick in questions regarding how to remove an employee based upon medical inability to perform.

Removal based upon medical inability to perform is an effective, and probably underutilized, process. To help you good folks out there, I decided it would be an opportune time to answer some of these questions.

Is a medical inability to perform removal a 5 U.S.C. chapter 75 action?

Yes. A removal for medical inability to perform is an “adverse action,” so removal must promote the efficiency of the service. The removal may be appealed to the Merit Systems Protection Board (Board).

Is a Douglas factor analysis required in a medical inability to perform removal?

No. Like a furlough, a removal for medical inability to perform is not disciplinary, so Douglas does not apply. See Brown v. Dep’t of the Interior, 2014 MSPB 40 (Douglas analysis not required “because of the nondisciplinary nature of the agency’s action.”)

If Douglas does not apply, how does the agency prove removal is appropriate?

The Board explained in Brown, “the correct standard to be applied in determining the penalty for a removal based on [medical] inability to perform is whether the penalty of removal exceeded ‘the tolerable limits of reasonableness.’” Id.

Um OK, so how do we show removal did not exceed “the tolerable limits of reasonableness”?

The first step is to “prove a nexus between the employee’s medical condition and observed deficiencies in his performance or conduct, or a high probability, given the nature of the work involved, that his condition may result in injury to himself or others.” Clemens v. Department of the Army, 2014 MSPB 14.

Huh?

The Board expected this follow-up question: “In other words, the agency must establish that the appellant’s medical condition prevents him from being able to safely and efficiently perform the core duties of his position.” Id.

What are the core duties of the position?

Clemens is instructive on this point. “The core duties of a position are synonymous with its essential functions, i.e., the fundamental job duties of the position, not including marginal functions.” Id. The Board relies upon the EEOC’s regulations regarding essential functions.

Factors to consider: “the reason the position exists is to perform that function, because of the limited number of employees available among whom the performance of that job function can be distributed, or because the function is highly specialized so that the incumbent is hired for his or her expertise or ability to perform the particular function.” Id.

What evidence should the agency provide to show the essential functions of the job?

The Board, like the Equal Employment Opportunity Commission, will consider “the employer’s judgment as to which functions are essential, written position descriptions, the amount of time spent performing the function, and the consequences of not requiring the incumbent to perform the function.” Id.

What are some examples of supporting evidence?

If you haven’t figured this out, yet, Clemens is a great case to read if you are pondering a medical inability to perform removal. The employee was a supervisory public safety dispatcher who had a significant loss of speech ability after a stroke.

His position description included essential functions of the position related to speech. This included providing “emergency police, fire and medical services to the public by answering emergency 911 calls and responding with appropriate personnel and equipment” and “Advanced Emergency Medical Dispatch Life Support through pre-arrival instruction to callers;” spending “25% of his time on duties related to caller interrogation, including ‘crisis intervention with distraught emergency callers during high-risk situations’ and ‘dispatch[ing] a variety of emergency equipment.’” Id. Also, “a knowledge requirement for the position was ‘the ability to communicate orally.’” Id.

Does the agency have to provide a reasonable accommodation before removing based upon medical inability to perform?

If the employee does not request a reasonable accommodation or desire to return to work, as in Clemens, the agency is not obligated to provide an accommodation. If the employee does request an accommodation, the Board would consider a reasonable accommodation, so long as one exists that “would enable the appellant to safely and efficiently perform those core duties.” Id.

But, to simply prove the charge of medical inability to perform, “the agency is not required to show that it was unable to reasonably accommodate the appellant by assigning him to a vacant position for which he was qualified; whether it could do so goes to the affirmative defense of disability discrimination or the reasonableness of the penalty.” Id.

What’s the Good News here?

The Board has long held that “removal for physical inability to perform the essential functions of a position promotes the efficiency of the service.” Id. (citing D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 51 (1992)). If you have an employee with medical issues legitimately impacting on their ability to perform their core duties, this removal process is one you should contemplate using. modlin@feltg.com