Tag Archive for: Ask FELTG

March 26, 2024

We received the following question via Ask FELTG.

Dear FELTG: I recall from attending UnCivil Servant that putting an employee on a PIP does not give them standing to file an EEO complaint, but can an employee claim being put on a PIP is whistleblower reprisal?

Thanks for the question. Let’s look at your recollection of EEOC’s stance first:

You’re correct in remembering that the Performance Improvement Plan (PIP) is a preliminary step to taking a personnel action and, in most instances, does not constitute an adverse action sufficient to render an employee aggrieved for the purposes of filing an intentional discrimination claim. See Lopez v. Agriculture, EEOC No. 01A04897 (2000); Jackson v. CIA, EEOC No. 059311779 (1994).

In fact, in the analysis that accompanied EEOC’s initial 1992 regulations at 29 CFR Part 1614, EEOC explained: “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

Being put on a PIP could come in as a fact alleged in a claim of harassment or reprisal, but standing alone, a PIP generally does not aggrieve an employee for the purposes of filing an EEO complaint.

As far as a PIP being considered whistleblower reprisal, the answer is yes, it can. In fact, a fairly recent nonprecedential MSPB case addressed this very issue and highlighted that “a performance improvement plan (PIP) may constitute a personnel action under the Whistleblower Protection Act (WPA) and that an agency action need not be ‘formal discipline’ to constitute a covered personnel action.” Ingram-Williams v. VA, SF-1221-16-0352-W-1, ¶1 (Dec. 12, 2023) (NP).

The case explains that while placement on a PIP, formal counseling, and other matters do not constitute formal personnel actions under the Civil Service Reform Act, “a PIP and equivalent opportunity-to-improve programs involve a threatened personnel action, such as a reduction in grade or removal, and thus are personnel actions under the WPA.” Id. at ¶16. [Bold added]. Because threats of personnel actions can render an employee aggrieved under the WPA, an employee has standing to claim that placement on a PIP is whistleblower reprisal.

A quick note: the terms personnel actions and adverse employment actions have varying meanings depending on the forum. We’ll help you navigate that, and much more, during FELTG’s most popular employee relations class MSPB Law Week, April 15-19.

Have a question? Ask FELTG.

The information presented here 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.

February 7, 2024

A FELTG reader sent us the following submission.

A discussion recently came up in our agency about deadnaming and whether that could be considered unlawful harassment. Can you weigh in?

Thanks for the question. Let’s start with a definition. A deadname, according to Merriam Webster, is “the name a transgender person was given at birth and no longer uses upon transitioning.” So, deadnaming is referring to a person by their former name.

Depending on the circumstances, referring to a coworker or employee by their deadname could constitute unlawful harassment. The details matter. EEOC case law makes clear that supervisors and coworkers should use the name and gender pronouns that correspond to the employee’s gender identity, in employee records and in communications with and about the employee. See Jameson v. USPS, EEOC App. No. 0120130992 (May 21, 2013); Eric S. v. VA, EEOC Appeal No. 0120133123 (Apr. 16, 2014).

There are cases, however, that find name or gender misuse might not meet the legal standard for unlawful harassment. Rare or unintentional misuse, while unwelcome, might not rise to the level of severe or pervasive. See Lusardi v. Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015).

A new EEOC case specifically addressed an agency’s deadnaming of a complainant. The agency’s “repeated use of the employee’s wrong pronouns and wrong name during the processing of two EEO complaints would be especially harmful and, therefore, severe to a reasonable person in that employee’s position. We therefore find that the harassment was sufficiently severe to constitute a hostile work environment.” Roxanna B. v. Treasury, EEOC App. No. 2020004142 (Jan. 10, 2024).

We know these topics can be challenging and we’ll discuss them in detail on Feb. 20 during the two-hour live virtual training Navigating Complex Hostile Work Environment Harassment Cases. 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.

October 23, 2023

The following question came into Ask FELTG:

Must the proposal letter in a proposed disciplinary action contain everything the agency has relied upon in making the proposal?

And here’s the answer:

The letter itself does not have to contain the agency’s entire case against the employee. At a minimum, the proposal must include the charge(s), the proposed penalty with aggravating factors identified, and the employee’s rights at this stage in the process, which under 5 CFR 752.203 and 752.404 includes the right to review the material relied upon.

An NP MSPB case from this past summer addressed this very question. The appellant challenged that the agency did not include in the notice all the material relied upon. The MSPB, however, noted that the proposal notice “informed the appellant of her right to review the material relied upon to support the reasons for the proposal notice.” Duffey v. USPS, DA-0752-16-0105-I-1, ¶5 (Jun. 20, 2023).

The MSPB explained that a proposal notice does not have to be a “self-contained document.” An agency can meet the notice requirement “when attachments to the proposal, together with the proposal itself, provide the employee with specific notice of the charges against her so that she can make an informed and meaningful reply.” Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004).” Id.

We recommend keeping the proposal letter short and to the point, but including all material relied upon in the proposal packet to save your agency time and resources, and a lot of potential back and forth. In addition, as Bill Wiley and I explain in the 5th Edition of the textbook (and the training class) UnCivil Servant, “doing so proactively avoids any claims that the employee was somehow denied the documents relied upon.”

Have a question? Ask FELTG.

The information presented here 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.

September 26, 2023

As the FELTG newsletter reader pointed out, the Merit Systems Protection Board (MSPB) is currently down a member. So what happens if the two remaining members can’t agree on the outcome of a Petition for Review (PFR)?

It’s a great question.

And here’s our answer.

If this happens, and the Board issues what is known as a split decision, the administrative judge’s (AJ) decision becomes the Board’s final, nonprecedential decision. It’s fairly rare to see a split decision, but two were issued during the first week of September. Let’s take a look at one.

The facts of the case are described in the initial decision, Wilber v. DOD, DC-0432-22-0097-I-1 (Mar. 18, 2022). The agency put the appellant, a GS-13 Accountant, on a 30-day PIP after informing him he was performing at an unacceptable level on two critical elements in his performance plan. Because of the appellant’s absences during the PIP, the agency extended the PIP another six days. According to the initial decision, the agency “established that the appellant’s performance was unacceptable prior to and during his placement on a PIP by the substantial evidence standard.” Id. at 40.

Still, the AJ found the agency did NOT provide the appellant with a reasonable opportunity to demonstrate acceptable performance. Several months prior to the PIP, during a performance feedback meeting with his supervisor, the appellant told the supervisor he had a learning disability that contributed to his performance issues. The supervisor “reached out to HR to meet any requirements to address the appellant’s learning disability.” Sounds good so far, right?

The initial decision goes into a lengthy discussion about the appellant’s raising of other medical issues and the supervisor’s reactions, including that he “was still waiting for the appellant’s RA paperwork.” Id. at 44. Uh-oh.

According to the AJ:

[I]t does not appear that a reasonable person, considering the record as a whole, might accept that 17 work-day PIP period, and particularly one that the employee lacked the RA tools he need to perform his duties, is a sufficient amount of time to expect the appellant to correct the above deficiencies, or for the agency to make a determination that he would not.

The agency in this case has not cited to any case law in which the Board or the courts have previously held that a 17 work-day PIP period (particularly where the employee is without the tools he needed to perform his duties pursuant to a RA request), on its face, would ever be a sufficient amount of time to afford an employee the required “reasonable opportunity to improve,” and my extensive research on this issue has produced none.

Id. at 49.

Longtime FELTG students may recall class discussions of a Board case where a 17-day PIP period was found to be acceptable: Bare v. DHHS, 30 MSPR 684 (1986). Whether this did not come up in the AJ’s research, or the facts in Bare were different enough to distinguish the case, we may never know.

Because the Board members disagreed on the outcome in Wilber (with no discussion in the case about why), the AJ’s decision stands and the employee remains reinstated. Wilber v. DOD, DC-0432-22-0097-I-1 (Sept. 7, 2023)(NP).

If you’re interested in reading the (very strong) opinions of the Board members on another recent split decision involving a misconduct-based removal, check out Brinson v. Navy, DC-0752-14-1129-B-1 (Sept. 8, 2023).

We’ll be discussing these tricky topics and much more during the upcoming brand-new class Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2.

Have a question? Ask FELTG.

The information presented here 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.

July 31, 2023

Here’s a summarized version of the question that came into FELTG headquarters:

I run a monthly staff meeting with the employees I supervise. They are bargaining unit employees. I received a request from a union rep to attend the staff meetings. I asked him the nature or reasons for his attendance, and he told me: “The union has a right to attend any staff meeting.” He sent a reference to 5 U.S.C. 7114 as his justification.

I need some advice. To my knowledge, no investigation has been launched or a grievance filed, so I’m confused as to why he needs to be present in the meeting.

Is this union rep correct? Can he attend a staff meeting without being invited by an employee and sit in as an observer whenever he wants?

Our perfunctory answer is: No. The union can propose that right and then negotiate to try to get it into the contract, but the statute says nothing about requiring management to allow a union representative into every single work meeting.

By law, there are two occasions when there are rights for a union rep to be in a meeting:

– Weingarten: If a management official (e.g., you) is questioning a bargaining unit employee, and that employee might be disciplined for misconduct, IF the employee requests a union rep, he has that right. Once the rep is in the meeting, he can speak on behalf of the employee, but not control your questioning. This is a statutory employee right.

– Formal Discussion:  If a management official is meeting with bargaining unit employees to discuss working conditions (e.g., how to apply for annual leave around a holiday), the manager must notify the union in advance of the meeting and the topic and allow a rep to be present if the union wants to attend and participate. This is a statutory union right.

Union and management sometimes negotiate to allow union reps into other sorts of meetings (e.g., safety meetings). If that has happened, it would be part of the union contract.

We encouraged our faithful reader to get training on this topic, as one misplaced word by a single management official when working with a union can really mess things up.

FELTG is offering a 60-minute webinar on Aug. 22, titled What Supervisors Should Know About Official Time, the final class in our Supervisory Webinar series. Register here. Or, for a more detailed training, you can attend one or more days of FLRA Law Week, running from Sept. 18-22. The Sept. 19 session will include a module on Meetings. Register here.

Have a question? Ask FELTG.

The information presented here 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.