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

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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

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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

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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

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