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Ask FELTG: Do I Have MSPB Appeal Rights If I’m Subjected to a RIF?

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December 11, 2024

Thank you for your question.

This query came in from a Title V employee. For those readers not familiar, a RIF is a Reduction in Force, which is a non-disciplinary action an agency takes when it eliminates a person’s job because of a legitimate reason (such as budget).

The answer to your question will depend on your employment category.

If you are a career employee who is not a member of a collective bargaining unit, then you have the right to appeal the RIF to the Merit Systems Protection Board if you believe the agency did not properly follow RIF procedures (for example, you did not receive 60 days advance notification of the RIF). 5 CFR 351.901.

If you are a bargaining unit employee under 5 U.S.C. 7121, and RIFs are not explicitly excluded by your collective bargaining agreement, then you must use the negotiated grievance procedure to challenge the RIF.

If you are a member of the Senior Executive Service, then 5 U.S.C. 3595(c) provides you with MSPB appeal rights over a RIF, under 5 U.S.C. 7701. This applies to career appointees, whether they are probationers or post-probationers.

OPM has a helpful guide about RIF procedures, which are usually incredibly complex, labor-intensive, and time-consuming. It remains to be seen whether RIFs will be happening in any type of grand scale, but if so the sheer amount of work means it’s not likely to happen quickly. info@feltg.com

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Is Driving a Car with a Political Bumper Sticker a Hatch Act Violation?

October 22, 2024

There are 14 days left until the Presidential election. As we tick closer to Election Day, we continue to receive Hatch Act-related questions via our Ask FELTG feature. The most recent question:

Is there an issue if an employee’s bumper sticker, on a personal vehicle, said “Let’s go Brandon” and the employee drove to and from work in uniform?

The question was a follow-up to our recent interview with the Office of Special Counsel’s Hatch Act Unit Chief Ana Galindo-Marrone. Training Director Dan Gephart asked Galindo-Marrone about political bumper stickers on cars in the agency’s parking lot. She replied:

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

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

“Let’s go Brandon” is a partisan bumper sticker and it’s, apparently, the only one on this Fed’s car. So, the question gets to whether you can drive the car with the bumper sticker while wearing your agency’s uniform.

We followed back up with the OSC and received this reply:

The Hatch Act would not prohibit a Federal employee who is wearing an official uniform from driving their personal vehicle that displays partisan bumper stickers, provided the employee is not using the vehicle for official purposes.

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Related training:

Ask FELTG: Can Witness Receive Anonymity Due to Abusive Ex-partner?

October 8, 2024

We received the following via Ask FELTG:

Dear FELTG: If our agency has an employee who is a witness in an MSPB case but needs privacy because of an abusive ex-partner who no longer knows where our employee lives or works, would the MSPB consider granting the witness anonymity in the case?

Thanks for the question. Fortunately, there is clear Board guidance on this topic in the MSPB Judges’ Handbook (2019), Chapter 2, Section 5(e):

Increasingly, the Board affords anonymity to nonparties to appeals, including witnesses … Such persons are often referred to by their initials, their job titles, or as Witness 1, 2, etc., or by some other designation that does not make their name apparent to a reader unfamiliar with the facts of the case. … While the Board does not have case law or a specific policy on this matter, AJs may, at the request of a person involved in a case that is before them, or on their own motion if they believe it appropriate, keep confidential the identity of such individuals by referring to them in such a way in the initial decision.

Did you know that decades of research show that nearly one in four women and one in nine men experience severe intimate partner physical violence, sexual violence, or stalking – and nearly three-quarters of those victims are harassed by their abuser at work? Domestic violence against Federal employees is an ever-present concern, so much so that the Biden Administration recently issued guidance on providing safe leave to employees who are experiencing a dangerous or abusive situation at home.

In addition to safe leave, anonymity is one thing an agency can offer an employee as a protection against potential domestic violence entering the workplace – for example, removing the employee’s name and contact information from the agency website.

Sometimes those of us in Federal employment law have a hard time thinking outside of the legal ramifications of workplace scenarios, but at FELTG our aim is to look at workplace issues holistically. On October 23, our resident Licensed Clinical Social Worker and instructor Shana Palmieri intends to help agency attorneys, L/ER Specialists, EEO Specialists, managers and supervisors, and union officials recognize potential signs of domestic violence in the workforce (including from employees who are teleworking), and learn how to communicate concerns with employees in respectful and compassionate way. It’s too important a session to miss.

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Related training:

Ask FELTG: Can Probationary Employees Ever Have MSPB Appeal Rights?

October 1, 2025

Since we started answering your questions through Ask FELTG, we’ve received dozens on the topic of probationary periods. And that includes today’s question:

I’m confused. How is it possible for an employee who is separated during their probationary period to have appeal rights? 

And the FELTG answer: Probationers are not yet “employees” under 5 USC § 7511(a)(1) and as such they do not have MSPB appeal rights over their separations. There are, however, three exceptions:

  1. The separation was based on pre-appointment reasons,
  2. The separation was because of marital status, or
  3. The separation was for partisan political reasons.

See 5 CFR §§ 315.804-805.

In addition, there are some positions in the Federal government that require a probationary or trial period, regardless of the employee’s employment history with the government. For example, Federal employees hired under a Direct Hire Authority must serve a probationary period even if they served one in a previous position. However, these employees will retain MSPB appeal rights if they have current continuous employment, excluding service in temporary positions with a duration of two years or less, of:

  • One year in the competitive service, or
  • Two years in the excepted service, or
  • For veterans: one year in either service.

See Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999), Claiborne v. VA, 2012 MSPB 101.

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Related training:

Ask FELTG: Is it Harassment if an Employee Intentionally Mispronounces a Coworker’s Name?

July 30, 2024

The answer to this question we received from a FELTG customer? It sure could be.

A recent case, Assunta V. v. DHS, EEOC App. No. 2021003725 (May 8, 2023), involved an employee who filed a hostile work environment harassment complaint (based on race, national origin, and sex) on that issue, and more.

Here are a few of her allegations:

  • Her first-line supervisor, the Environmental Manager (the EM), “intentionally mispronounced her name when not in the presence of management – to highlight that she had a ‘non-Western name.’” Id. at 10.
  • The EM asked the complainant, “When is the next time you are going home? You know, home, across the ocean.” Id. at 1-2.
  • In a number of instances related to the complainant’s maternity leave and her use of the Mother’s Room to express breastmilk, the EM would refer to the complainant as “mom” rather than use her actual name. Id. at 8.
  • The EM made inappropriate racial remarks to the complainant in regards to an Asian American colleague’s name, using the terms “ching chong,” “ding dong,” and “ling,” instead of the colleague’s actual name. Id. at 2.

These claims, in addition to several other allegations of hostile work environment harassment related to race, national origin, and sex, were substantiated by the evidence, according to EEOC:

The record indicates that the EM exhibited a pattern of disregarding the proper pronunciation of Complainant’s name as well as Complainant’s co-worker’s name, both of whom were Asian American. The record further reflects that the EM exhibited a pattern of questioning whether the United States constituted as home for employees like Complainant who were born abroad but were also United States citizens … Additionally, the record reflects that the EM had difficulty communicating with employees who had a different racial and national origin, which resulted in Complainant being subjected to inappropriate comments based on her race and national origin over a period of time. We find these incidents were sufficiently severe and pervasive enough to constitute discriminatory harassment based on race, national origin and/or sex.

Id. at 11-12.

EEOC found the agency liable because it did not take prompt, effective corrective action. While a Supervisory Manager instructed the EM about the appropriate pronunciation of the complainant’s name, issued a non-disciplinary counseling, and told the EM to stop referring to the complainant as “mom,” EM’s conduct continued, thus proving the attempted corrective action was not effective.

Intentional mispronunciation of a coworker’s name is exactly the type of conduct that can lead to a hostile work environment, a topic we’ll be discussing in depth next week (August 7) during the two-hour training event Navigating Complex Hostile Work Environment Harassment Cases. So be sure to join us. info@feltg.com

Related Trainings:

Ask FELTG: Can Agency Consider 10-year-old Suspension as Prior Discipline?

June 25, 2024

We recently received the following question via Ask FELTG.

Dear FELTG: An attorney in my agency’s legal office told me I am not allowed to rely on an employee’s past suspension as prior discipline in a Douglas factors analysis if the suspension is more than 10 years old. Is that true?

Thanks for the question. While there is an old MSPB case that discusses how reliance on a suspension that occurred more than 10 years before was too far removed in time to be an aggravating factor, that case does NOT say that any discipline more than 10 years old can never be relied upon. Kehrier v. DOJ, 27 M.S.P.R. 477 (1985). We’ve come across more than one interpretation of Kehrier over the years. So here are some thoughts from the FELTG perspective.

The Board has never made a blanket prohibition on how far back in time an agency can consider discipline.

In Kehrier, the judge (known back then as a “presiding official”) found that a suspension that occurred 10 years prior “was too remote in time to be of significance with respect to the present charges” against the appellant. Kehrier, 27 M.S.P.R. at 480. But, in reviewing the initial decision the Board pointed out the lack of consideration of that suspension had no bearing on the outcome of the case given the seriousness of the current misconduct. Id.

In other words, in Kehrier, the Board never actually weighed in on whether going back beyond 10 years was appropriate or too far removed in time as a general principle. And in the four decades since the decision was issued, the Board has never used Kehrier as authority to find error in an agency’s considering a suspension older than 10 years.

In fact, the Board has explicitly stated, as recently as March of this year, that “none of the case law seems to bar consideration of prior discipline due merely to passage of time, [but] we find that passage of time may go to the weight that the prior discipline should be accorded, along with the severity of the prior discipline and whether the current disciplinary action is being taken for similar reasons.” Ybarra v. DOJ, CH-0752-17-0422-I-2 (Mar. 21, 2024)(NP).

Ybarra, which we wrote about previously in this newsletter, involved the 2017 removal of an FBI agent for unprofessional off-duty conduct after he made “persistent and inappropriate advances” toward two underage females. Id at 2. In its decision, the agency relied on a 45-day suspension the appellant had served 14 years prior for inappropriate sexual conduct toward female colleagues. The prior suspension also came with an “explicit warning that it was his ‘second and final notice that offensive interpersonal interactions will not be tolerated…’” Id. at 3. Because of the warning, and because the conduct 14 years prior was similar to the conduct in the current case, “notwithstanding the significant passage of time, we agree with the administrative judge that the agency did not abuse its discretion in giving the appellant’s 2003 suspension significant weight as an aggravating factor.” Id.

The more recent (and similar) the prior discipline, the more aggravating.

The Board also identified a few cases where the recency of past suspensions was an aggravating factor:

Ybarra at 3.

An agency policy or CBA might set time limits on prior discipline.

While rare, if an agency policy or union contract defines a reckoning period for past discipline, the Board will defer to the policy or contract and would find it improper to rely on expired discipline for Douglas factor 3. See Lewis v. USAF, 51 M.S.P.R. 475, 485 (1991). However, expired discipline may still be used under Douglas factor 9, clarity of notice.

Douglas requires individualized considerations.

In a case of discipline: “The fundamental requirement is that agencies exercise responsible judgment in each case, based on rather specific, individual considerations, rather than acting automatically on the basis of generalizations unrelated to the individual situation.” Douglas v. VA, 5 M.S.P.R. 280, 303 (1981)(bold added). So, applying the strict penalty assessment facts of one particular case to every future agency disciplinary action, absent an express requirement by the Board to do so, is too restrictive and may actually work against the purpose of Douglas to help an agency make individual penalty considerations.

TL; DR: There is no prohibition against relying on suspensions more than 10 years old as past discipline under Douglas factor 3. However, the further back in time the suspension was served, the less weight it holds as an aggravating factor.

Join FELTG for Advanced MSPB Law: Navigating Complex Issues July 9-11.

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Is Employee Entitled to All 90 Days of 90-day PIP?

May 28, 2024

It’s time again to reach into the FELTG mailbag. A customer sent us this question:

Dear Ask FELTG: If my agency requires a 90-day PIP, is the employee entitled to the entire 90 days before the agency can take an action?

Thanks for the question.

In our performance classes (like UnCivil Servant: Holding Employees Accountable for Performance and Conduct), we stress the importance of a brief performance demonstration period (DP, what many agencies call a PIP), but if you are stuck with a longer DP because of policy or collective bargaining agreement, then, well, you’re stuck with a longer DP. But the good news is, you don’t necessarily have to give the employee the full 90 days if it becomes apparent before 90 days the employee’s performance is still unacceptable and the employee cannot recover:

For example, if the DP is written that on a particular critical element, the employee may not make more than three significant errors in the 90-day period, and the employee makes five errors in the first 30 days, the agency may end the DP early because the employee has already failed and cannot meet the requirement.

Take a look at Luscri v. Army, 39 MSPR 482 (1989), a case where the appellant’s initial lengthy PIP was shortened by 21 days. The appellant argued he was not given a reasonable opportunity to demonstrate acceptable performance because the agency cut the employee’s PIP short. The Board held that the appellant was not entitled to the entire PIP period because precedent has long found 30 days to be a reasonable period of time for a PIP.

A recent NP MSPB case also looked at an appellant not being afforded the full 90 days, with a twist: He was not in the workplace for a significant portion of the 90 days because of “leave, training, technical, or other issues (316.75 hours of 568 total hours).” Young v. VA, PH-0432-17-0342-I-2, p. 5 (May 15, 2024)(NP). Even still, the Board held that the 251.25 hours the appellant was at work still provided him with a reasonable opportunity to demonstrate acceptable performance. The Board reasoned:

Moreover, the Board has found that a 30-day PIP may be sufficient to provide an appellant with a reasonable opportunity to improve under 5 U.S.C. chapter 43 (citation omitted). Even if the appellant only worked 40 percent of the 90-day PIP and 20 percent of the extension period, he had more than a 30-day timeframe to demonstrate acceptable performance.

. Id.

It’s sure nice to know that the Board is following precedent on this all-important aspect of performance accountability.

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: How Do I Handle Accommodation Requests for Emotional Support Animals?

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May 15, 2024

The following question recently came into Ask FELTG:

If an employee requests an emotional support animal as a reasonable accommodation, do we treat that the same as a request for a service animal?

And our answer: Thanks for the question. Any request for a reasonable accommodation (RA) should be considered independently, by using the step-by-step RA analysis we teach in our reasonable accommodation classes. Whether it’s a request you’ve received a hundred times (telework as RA) or one you’ve never dealt with (a request for an emotional support bird in the workplace), each RA request should be considered individually.

Depending on the situation, an emotional support animal may be a required reasonable accommodation for a qualified individual with a disability, even if it is not a trained service dog. If an employee requests an emotional support animal in the workplace, along with sufficient documentation of the disability and the need for accommodation, the agency must consider:

  • Whether the animal would be an effective accommodation,
  • Whether another accommodation would be effective, and
  • Whether it would be an undue hardship to allow the animal in the workplace.

An agency may deny the request for an emotional support animal if it would not be an effective accommodation. How will you know if it’s effective? Perhaps run a trial period, and see how things go, similar to the case Meaghan F. v. Treasury, EEOC Appeal No. 2019005325 (May 20, 2021). The agency granted the complainant a 60-day trial period to bring her animal into the workplace. However, “during the trial period, Complainant had been removed from an assignment for being disruptive and unproductive and had failed to establish a schedule to care for the animal’s needs.” Id. at 10. Because the animal in the workplace did not allow the complainant to perform her essential functions, EEOC held the agency’s denial to allow the animal to remain in the workplace was valid.

Other instances of lawful denials have included:

  • The support animal provided stress relief when the complainant was around strangers, but the complainant’s job did not require her to be around strangers. Struthers v. Navy, EEOC No. 07A40043 (Jun. 29, 2006).
  • Another effective accommodation was provided – a phone that lit up when it rang and a light that alerted the complainant when someone was at her door. Vina D. v. USDA/FS, EEOC Appeal No. 0120150054 (May 25, 2017).

We have a lot more where this came from, so join us on May 23 for the 60-minute training Barking Up the Wrong Tree? Service and Emotional Support Animals in the Workspace. info@FELTG.com

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What if an Agency Fails to Give ROI to Complainant?

May 7, 2024

The following question recently came into Ask FELTG:

What happens if an agency conducts an EEO investigation but fails to give a copy of the report of investigation (ROI) to the complainant?

Thanks for the question. A failure to give the complainant a copy of the ROI is a big problem and a violation of Equal Employment Opportunity Commission (EEOC) regulations, which state:

The agency “shall provide the complainant with a copy of the investigative file, and shall notify the complainant that, within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an administrative judge or may request an immediate final decision pursuant to [29 C.F.R.] § 1614.110 from the agency with which the complaint was filed.

29 C.F.R. § 1614.108(f).

Unfortunately, just because a regulation exists doesn’t mean it’s always followed. Take a look at a couple of recent EEOC cases where the complainant never received the ROI – and what happened as a result.

Sharolyn S. v. USPS, EEOC App. No. 2023001439 (Apr. 11, 2024)

The complainant alleged discrimination based on race (African-American/Native American/Cuban), sex (female), color (Brown), disability (physical and mental), and reprisal for prior protected EEO activity when:

1. Since November 10, 2021, she was not accommodated per her medical restrictions.

2. Since November 10, 2021, to present, she was charged LWOP.

3. On January 24, 2022, she was denied a bid position.

Id. at 4.

The record showed the complainant requested the ROI some days after the investigator notified her the investigation was complete and that the ROI would be sent to her in the near future. However, neither the investigator nor the agency ever provided her with a copy of the ROI. In addition, the agency never informed the complainant she had the right to request a hearing. As a result, the EEOC vacated the Final Agency Decision (FAD) (which found no discrimination), and remanded the case back for a supplemental investigation, as several important facts were missing from the investigative file.

Side note: Yikes. When the EEOC says information is missing from the investigative file, it’s going to be a long day for the agency and the investigator. Join FELTG guest instructor Roslyn Brown for an enlightening and interactive discussion on this topic and more on May 15 during Bad Detective: The Mistakes That Hamper Agency Investigations.

Susan D. v. USPS, EEOC App. No. 2020000586 (Feb. 9, 2021)

The complainant alleged the agency discriminated against her on the bases of sex (female), disability (coronary artery disease), and reprisal for prior protected EEO activity when:

Id. at 1.

The complainant asserted she never received the ROI or notice of her right to request a hearing. While the agency disputed the complainant’s claim, it provided no evidence it actually made delivery of the ROI. Id. at 2. In fact, although the agency provided tracking numbers it said corresponded to the transmittal of the ROI, when searched the “the tracking numbers produced no results.” Id. at 3.

Because the complainant informed the EEOC and agency she wanted a hearing, the EEOC vacated the FAD and ordered the agency to provide the ROI to the complainant and her representative, and to provide a copy of its decision and the investigative file to the corresponding EEOC Hearings Unit.

A mistake in the investigative process can cost the agency time and resources. If you read the cases, you’ll see that these delays almost always exacerbate the complainant’s medical conditions. The best way to avoid this problem is to conduct a legally sufficient investigation every time and follow EEOC’s regulatory timelines in providing the ROI to the complainant and their representative. Info@FELTG.com

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Is Process for Accommodating a Pregnant Employee Same as for an Individual With a Disability?

April 8, 2024

Here’s the full question we received:

Dear FELTG: I understand my agency’s obligation to accommodate employees now extends to pregnant workers. Is the process the same as it is for accommodating an individual with a disability?

And our answer:

Thanks for the question. The Pregnant Workers Fairness Act went into effect in June 2023. It is similar to the Americans with Disabilities Act (ADA)/Rehabilitation Act in that it requires agencies to accommodate the employee or applicant’s known limitations (but related to pregnancy and childbirth), unless doing so would cause an undue hardship. There are a few differences, though.

A couple of areas where the PWFA differs from the ADA:

1. The temporary nature of the accommodation.

With many disabilities, the need for accommodation might have no end in sight, but because the PWFA covers uncomplicated pregnancies, the accommodation will be temporary – in other words, there will be an end in sight. While we are still awaiting EEOC’s final regulations, the proposed rule defines the terms “temporary” (lasting for a limited time, not permanent, and may extend beyond “in the near future”) and “in the near future” (generally within 40 weeks).

2. The suspension of essential functions for a period of time.

Under the ADA, an employee is not qualified if she cannot perform the essential functions of her position with or without accommodation. Under the PWFA, an individual is still qualified – even if she cannot perform one or more essential functions of the job – if the:

  • Inability to perform the function(s) is “temporary,”
  • Worker could perform the function(s) “in the near future,” and
  • Inability to perform the function(s) can be reasonably accommodated.

If an agency temporarily suspends an essential function, depending on the position the employee might:

  • Continue to perform the remaining functions of the job;
  • Be assigned other tasks;
  • Perform the functions of a different job into which the employer temporarily transfers them; or
  • Participate in the employer’s light duty program.

These distinctions aren’t all, however. Another significant difference exists in the agency’s interactive process obligations. For a detailed explanation on that, you’ll want to join us on April 11 for Up to the Minute: The Latest Changes to Reasonable Accommodation for Pregnancy, Disability, and Religion.

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.