Posts

What Dave Wants, Dave Gets: Sexual Harassment is Misconduct

, , ,

By Deborah Hopkins, September 16, 2020

We discuss misconduct a lot during some FELTG training classes. And in other classes, we discuss sexual harassment in the workplace. Sometimes these two matters are discussed in the same class because rarely do workplace issues occur in a vacuum.

Among the worst types of misconduct to occur in the federal workplace is sexual harassment, particularly the egregious cases. It’s been almost three years since the #MeToo movement gained widespread traction, but cases of sexual misconduct, harassment, assault and more are still problems agencies face today.

Let’s look at an EEOC decision from last summer. The Complainant made allegations that her second-line supervisor subjected her to numerous incidents of sexual harassment for a period of approximately five months, including:

  • Continuously talking about his sex life.
  • Making sexually suggestive comments in the workplace.
  • When she was putting eye drops in her eyes, he said, “Let me do that for you. I am real good at putting things in.”
  • Discussing women he had affairs with, including his “high school sweetheart,” whom he said he got pregnant three times.
  • Talking about his ability to get sex whenever he wanted, stating, “What Dave wants, Dave gets.”
  • When the Complainant told him she was not feeling well and might go home, he stated that she might be pregnant and told her about his wife stating that she (the wife) needed a pregnancy test and said, “Well, if you hadn’t raped me, I wouldn’t be asking for the test.”
  • Refusing to clean the women’s restroom because “women are dirty and bleed all over the place and are smelly.”
  • Threatening to hit the Complainant with a cardboard roll.
  • Making comments to the Complainant such as said, “Why don’t you try smiling, darling?”
  • Physically touching her in a sexually suggestive or otherwise inappropriate way on multiple occasions.
  • Hitting her with a yardstick.
  • During her performance review, pulling her chair next to his desk, and, after the review, putting his hand on the inside of her thigh and saying, “See, it wasn’t that bad.”
  • Tousling her hair and poking her in the ribs, and after being told to stop, continuing to poke her and asking, “Oh, you are ticklish?”
  • Touching her on the back and shoulders several times, in front of co-workers.

These are just some of the events that were alleged, a number of which were witnessed by others, and many more are detailed in the case. Based on the factual record the EEOC found that the Complainant was subjected to a hostile work environment because of the unwelcome verbal and physical conduct based on sex, that was sufficiently severe or pervasive to create an abusive working environment.

The EEOC noted that a second-level supervisor placing his hand on Complainant’s leg at her thigh, in and of itself, was sufficiently severe to constitute a hostile work environment, because it was an unwelcome, intentional touching of an intimate body area. In addition, the EEOC found the agency liable. The Agency was ordered, among other things, to ensure that the Complainant was removed from the Store Manager’s supervisory/managerial authority. Terrie M. v. DOD, EEOC Appeal No. 0120181358 (Aug. 14, 2019).

You may be wondering why the EEOC only told the agency to separate the Complainant from the offending supervisor, instead of something more severe. That’s because the EEOC does not have the authority to require the agency to discipline federal employees who engage in misconduct. However, you can imagine the issues that arise if this level of misconduct goes undisciplined – issues we will discuss during the upcoming live virtual class Conducting Effective Harassment Investigations, October 6-8.

So, do you want to know what happened in the end? Well, “Dave” quit his job and left the country, so at least we know he isn’t currently doing this to another federal employee. Or, let’s hope he’s not. Dave worked for DOD and we know they have locations all over the world. And because this egregious sexual harassment isn’t in his disciplinary record (remember, he quit before he was disciplined), I sure hope a new employer bothers to call his former supervisor for a reference. Hopkins@FELTG.com

Agency Concerned About Telework as Reasonable Accommodation Request: Should It Request More Medical Information?

, , ,

By Deborah Hopkins, Ann Boehm, and Bob Woods, September 1, 2020

Here’s a hypothetical reasonable accommodation case to consider:

An employee requests telework due to a medical condition, specifically because of the side effects of the medication being taken for the medical condition. The medical information provided by the health care provider states that the medication being taken causes sleepiness and precludes the employee from driving. Can additional clarification be requested from the employee’s healthcare provider to ensure that the medication being taken by the employee will not affect his ability to perform his essential functions, specifically to handle potentially private information, including personally identifiable information (PII)?

We sure love hypotheticals. Because FELTG is a training company, we can’t give specific legal advice about this scenario. But your authors got together (well, virtually anyway) to discuss some things the agency should probably consider.

 

The telework request

Sometimes, folks overthink these situations too much. In this time of pandemic, thousands more employees are working from home. It’s still the same work with the same duties and responsibilities, just in a different environment. The employee is responsible for properly safeguarding PII at work, so that’s still a requirement at home. Is the agency allowing other similar employees to work from home? If so, how do THEY safeguard PII? If this employee fails to safeguard PII, the agency should deal with it when it occurs and take appropriate action to hold the employee accountable.

In cases like the hypothetical above, supervisors are often concerned that they can’t keep an eye on the employee to make sure they’re getting their work done and aren’t malingering. There are ways to deal with such concerns. For example, while teleworking, the supervisor can assign projects with specific deadlines or require periodic updates by phone or email. They can also have Zoom or Skype meetings, etc. They just need to think through how they monitor work while in the office and then try to replicate that as well as possible in the virtual environment. If the employee’s production decreases or the employee doesn’t respond in a timely fashion to phone and/or email, then the supervisor just deals with that like they should in the normal workplace (i.e., follow FELTG’s performance cases outline to hold the employee accountable).

The medical request

We know from EEOC cases that assuming or speculating that a certain disability will result in a particular behavior, without any evidence or history of such behavior, can get agencies in trouble. See, e.g., Matilde M. v. SSA, EEOC Appeal No. 0120140147 (Jan.17, 2017); Smith v. Navy, EEOC Appeal No. 01A40794 (June 8, 2006); Lamb v. SSA, EEOC Appeal No. 0120103232 (Mar. 21, 2012).

In our hypothetical, drowsiness as it relates to driving is the reason for the telework reasonable accommodation request. An agency should be very careful not to read into something for which there is no evidence. Drowsiness or sleepiness does not automatically suggest other issues. (In fact, all of your authors have been groggy on the job a time or two.) Grogginess does not automatically mean an employee cannot do the job, and without a direct link to the essential functions – for example, operating machinery or driving – it can be risky to assume one cannot. Lots of medications warn against driving, but that’s a different cognitive need than getting certain types of work done.

Agencies can ask for medical information to substantiate the need for accommodation, and to help understand the functional limitations. If the agency in the hypothetical above accepted the medical information as written (employee needs to telework because they can’t drive due to the effects of medication), granted telework, and the accommodation is working and there are no problems with the employee’s performance or conduct, then why would the agency need additional medical information about the performance of essential functions based on the driving restriction alone?

The bottom line

Telework can be an effective and reasonable accommodation. Whether it’s being permitted as an accommodation or just as a workplace flexibility, supervisors need to determine how they are going to assign and monitor work and how the teleworker will maintain security and PII.

Remember, it’s the same work, just a different location. As for requesting medical information regarding an accommodation, stay focused on the critical elements of the job. Remember, an accommodation is provided to enable the employee to perform the essential elements of the job. If necessary, the employer may request the medical practitioner to answer the following:

  • Nature, severity, and duration of disability;
  • Explanation of impact of disability on and off the job;
  • Extent to which impairment(s) limit ability to perform functions of job;
  • Estimated date of full or partial recovery;
  • Medical professional’s assessment of individual’s ability to successfully perform essential functions of position;
  • Explanation as to how the particular accommodation will assist individual in performing essential functions of position.

We’ll be discussing challenges related to unseen disabilities in more detail on September 8 during the virtual training program Accommodating and Understanding Employees with Hidden Disabilities, and we also have an entire virtual class dedicated to handling employee medical information during Absence, Leave Abuse & Medical Issues Week, September 28-October 2. If reasonable accommodation requests are something you deal with, you will definitely want to join us. Hopkins@FELTG.com

Can Delaying Discipline Cause EEO Liability for an Agency?

, ,

By Deborah Hopkins, August 19, 2020

On the MSPB side of federal employment law, FELTG has long held the stance that agencies should take disciplinary actions as soon as is practicable after a federal employee engages in misconduct. The longer an agency waits, the less justification the agency will have of the “harm” the employee caused, and the more unreasonable its penalty begins to look.

Take a look at Eotvos (pro se) v. Army, CH-0752-17-0355-I-1 (2018)(ID). In this case, the employee solicited a minor for sex and the agency removed him. The AJ reversed the removal because the appellant disproved the rebuttable presumption of nexus by highlighting the following details:

  • There was no proof of publicity about the event.
  • There was no customer knowledge; the agency had no minors as customers.
  • His coworkers did not care about his conduct.
  • His work performance remained good.
  • The agency waited 5-plus months to fire him.

While Eotvos is “just” an administrative judge’s decision and has no precedential value, it illustrates the importance of timing. When an agency fires someone for misconduct it states as egregious, but then waits nearly half a year to take the action, a third party may begin to question how “bad” the misconduct really was if the employee wasn’t removed immediately.

The longer you wait, the more precarious your position, unless you have a darn good reason for the delay.

For precedential MSPB decisions on the topic take a look at Baldwin v. VA, 2008 MSPB 169 (If an agency’s delay in charging discipline is unreasonable, the charges may be dismissed), or Brown v. Treasury, 61 MSPR 484 (April 7, 1994) (In cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm).

Every now and then this important principle of “discipline early and often” finds its way into an EEOC case. Take, for example, Sharon M. v. Dep’t of Transp., EEOC Appeal No. 0120180192 (Sept. 25, 2019). In this case, the complainant, an Air Traffic Control Specialist, received an email from a coworker that contained a racial slur (an abbreviation of the n-word).

The agency initiated an investigation and found that the coworker did indeed used an inappropriate racial slur, and that such behavior violated its code of conduct, so the agency told the complainant that her coworker would be suspended for 30 days. The conduct did not occur again.

Sounds good, right? The agency did an investigation, took corrective action, and the conduct didn’t happen again. So, we’re good to go?

Not quite. Although the agency took corrective action, the EEOC found that the action was not “prompt” and, therefore, the agency was not absolved of liability. Why? The agency waited six months to discipline the coworker who used the n-word. Take a look at some language from the body of decision:

…[T]he Agency is responsible for the hostile work environment unless it shows it took immediate and effective corrective action. Although the Agency took effective corrective action, upon review, we find that the Agency’s action was not prompt. We note that the record clearly indicated that the investigation occurred in early December 2016… The Agency did not state how long the internal investigation took and failed to provide a copy of the internal investigation in the ROI for the Commission to determine how long the Agency investigated the matter…

The proposed 30-day suspension was not received by [the coworker] until May 16, 2017, nearly a month after it was allegedly drafted. There is no reason given for the delay. In addition, it appears that the Agency took over six months to issue the proposed disciplinary action. Based on the events of this case, we find that six months is not prompt. See Isidro A. v. U.S. Postal Serv., EEOC Appeal No. 0120182263 (Oct. 16, 2018) (finding that the Agency failed to take prompt and effective action when it investigated a single utterance of the word [n-word] in the workplace on July 15, 2017 and issued disciplinary action on November 21, 2017). As such, we conclude the Agency failed to take prompt action after learning of the harassment. Because the Agency failed to meet its affirmative defense burden, we find that it is liable.

In most cases similar to Sharon M., we see agencies lose because they did not investigate promptly or did not put effective corrective action into place, but here the delay in taking prompt corrective action is what caused the loss.

While a delay is not always the death knell for a disciplinary action (check out my 2019 article on laches here), I hope you see now that it can be, both on the MSPB and EEOC sides of an issue.

And if you join us for MSPB Law Week, next offered virtually September 21-15, we’ll discuss all these things and a whole lot more. Hopkins@FELTG.com

Is There a Legal Path to Fire Dr. Fauci?

, ,

By Deborah Hopkins, July 15, 2020

Here’s a hypothetical. Let’s say you have a U.S. President who is in office during a global pandemic, and that president gives an interview to a news outlet and says that the country is in “a good place” with how it is handling said pandemic.

Now let’s say that there’s a high-level career federal employee who works in infectious diseases who makes a statement to a different media outlet that goes something like this: “As a country, when you compare us to other countries, I don’t think you can say we’re doing great. I mean, we’re just not.”

Of course by now you know I’m not speaking in hypotheticals. As it goes with media sensationalism, one of the stories over the past few days surrounds the legality of the President firing Dr. Anthony Fauci, the head of National Institute of Allergy and Infectious Diseases (NIAID). Most FELTG readers are probably aware that Dr. Fauci’s statements on the COVID-19 pandemic have differed somewhat from those of the White House.

The question that is being asked on cable news, in media publications, and perhaps around dinner tables across the country: Can the president have Dr. Fauci fired?

The answer, based only on the evidence available to the public, is probably not. The President himself doesn’t have the authority to fire Dr. Fauci, who is a Title 42 employee and not a political appointee. But were the President to hypothetically order an official at HHS to fire Dr. Fauci, in order for the removal to be legal there would have to be cause — Dr. Fauci would had to have engaged in removable misconduct or poor performance.

Disagreeing with a President most likely does not fall into poor performance or misconduct. In fact, it is a prohibited personnel practice to make an employment-related decision because of a career employee’s political activities. While it may be acceptable for political appointees to be removed for differing opinions than those of their president, the fact that Dr. Fauci does not agree with the President about COVID-19 is NOT a valid reason to fire him.

We don’t know the details of Dr. Fauci’s work at NIH, so we can’t speak specifically to his performance or conduct on the job. However, misconduct, loosely defined, is the violation of a valid workplace rule.

Is a statement made in contradiction with the President misconduct? Probably not. Dr. Fauci doesn’t appear to have violated a workplace rule, as he has authorization to speak to the press about NIAID matters.

What about the list of the times Dr. Fauci “has been wrong on things,” recently compiled by White House. Do these statements rise to the level of poor performance? Without seeing Dr. Fauci’s performance plan, I cannot say for certain.

If Dr. Fauci is fired for any reason, whether it appeared to be legally valid or not, he could appeal his removal to the MSPB and let the Board (if we ever get one, that is) decide whether he engaged in misconduct or poor performance.

In case you’re wondering how Title 42 employees have civil service protections, here’s a brief lesson from Lal v. MSPB, Fed. Cir. No. 2015-3140 (May 11, 2016). Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections. So, in sum Title 42 employees are hired under special authority but when it comes to being fired, they get the same protections as most of you in the FELTG Nation. And that includes Dr. Fuaci.

Interesting times, aren’t they? I’ve got some ideas for follow-up discussion and would love to incorporate your thoughts and questions into the content. So, what’s on your mind? Hopkins@FELTG.com

More About that Employee Who Left His Laptop Charger at Work During the Pandemic

,

By Deborah Hopkins, June 23, 2020

Last week, we published an article about an employee who left his laptop charger in the office at the beginning of the COVID-19 pandemic. The employee claimed he worked 40 hours a week for eight weeks, even though he later admitted he had done no work during that time. I characterized it as an open-and-shut case. It wasn’t seen that way by a number of you in FELTG Nation.

If you haven’t read the article, or didn’t read it closely, I urge you to take a look before you continue reading this article.

Many of our readers had comments, and some strong feelings, about the matter. Most of the feedback fell into three areas:

  1. The potential existence of a backup charger or at-home computer alternative.
  2. The investigation of IT records to see if the employee was working through some other mechanism.
  3. The issue with supervisor not tracking the employee’s [lack of] work product.

Below are some of the comments we received in each category, followed by an official FELTG response:

The Forgotten Charger

FELTG reader comments:

  • Some years back I was sent out of state on a business trip and forgot my charger. I…drove over to a Best Buy, and got a new power cord. Problem solved in about one hour. In today’s COVID world, I’d probably buy one from Amazon. But just because the employee forgot his power cord isn’t evidence the employee wasn’t working. How about checking on his output??
  • Perhaps the employee simply opted to buy another charger or had a reasonable substitute already at their home – they are readily available.
  • In reply, the employee will obviously claim he had another charger cable at home (and he could’ve purchased on Amazon).
  • I have a docking station, monitor, and mouse of my own for my home office.
  • Does the agency allow the employee to work on his own personal device from home?
  • Most likely there was a back-up charger. I have been telecommuting for 4 months and my charger burnt out twice. I was out of commission for a week.
  • Admittedly I did this and worked on my desktop for all of quarantine.

Official FELTG response: All excellent points, and details you would absolutely want to find out during your management inquiry or misconduct investigation. If the employee was allowed to use a personal device, or bought a backup charger, or had a docking station for his laptop at home, then as long as he was working the 40 hours a week he claimed, we don’t have misconduct.

The employee’s misconduct was lying on his time card – not leaving his charger at work. If you look closely at the article’s application of the five elements of discipline, you’ll see the employee was charged with the time and attendance violation, not leaving the charger in the office. A disciplinary charge of “leaving your laptop charger at the agency” may not rise to the level of misconduct, especially if it was accidental.

IT Records

FELTG reader comments:

  • Most agencies can see if the network was accessed or logged into.
  • The one thing I may do is have IT perform an evaluation of his computer usage as further confirmation that he hasn’t logged on and worked.
  • The IT people should be able to audit access to the [employee’s work] files, if nothing else.

Official FELTG response: In some cases, you would want to pull IT records to verify if the employee was working at all. Let’s modify the hypothetical a bit and say the employee was working on a personal device through the agency’s VPN, and claimed 40 hours of work a week, but the supervisor suspects he was working less. A search of IT records could show the amount of time the employee was on the VPN to give the agency a better idea of how much potential time theft was involved. Other considerations, such as whether the employee does work that does not require computer or VPN use, would also be relevant.

But in the original hypothetical, the employee admitted he did not work at all. Yet, he claimed 40 hours a week. That admission is preponderant evidence, so the agency could propose discipline based on that evidence alone. Yes, the IT records would provide additional evidence, but they wouldn’t be required because the burden of proof in discipline cases is only preponderant evidence – or substantial evidence, at the VA.

Supervisor Oversight

FELTG reader comments:

  • The burning question in my mind is how could the supervisor not know there was a problem; when you send people home to work, it doesn’t mean you don’t keep tabs on what they’re doing daily. Why wasn’t the supervisor communicating on at least a weekly basis and asking for accountability, not just of this employee but every employee?
  • Simplest way to check up is to ask to see work product if you doubt. Why are they having to use “inference” of a power cord sitting at the office rather than checking with IT for emails, and checking other systems for evidence of work? Seems to me the supervisor needs at least a counseling for failing to do his job as well!
  • Should we also address the supervisor who failed to see no work from this employee for months?
  • There should have been ways for management to create check points/milestones or activity goals to ensure this person was working.
  • If I was the said employee’s supervisor, I would be a little concerned about my own “failure to supervise” allegation.

Official FELTG response: Right on! This hypothetical supervisor failed to monitor the employee’s work, because no work product in eight weeks is unacceptable in any government job. As the previous article alluded, we could write another article entirely on the supervisor’s potential performance and misconduct issues.

Thanks, as always, for your responses. We loving hear from you, and enjoy the conversations. For a more in-depth discussion on related topics, be sure to join us July 1 (that’s next week!) for the 75-minute webinar Performance and Conduct Problems During the COVID-19 Pandemic: Holding Remote Employees Accountable. Hopkins@FELTG.com

He Claimed He Teleworked for 2 Months, but His Laptop Charger Was at the Office

, ,

By Deoborah Hopkins, June 17, 2020

Here’s a timely hypothetical that recently came across the FELTG desk:

Dear FELTG,

My agency sent all employees home to telework starting at the beginning of April. Hypothetically, the agency learned that an employee left his computer power cord in the office before he started teleworking, but he has been submitting 40 hours a week on his time sheets for the past two months. His computer charge lasts approximately 6 hours, and the employee’s work tasks requires use of the computer all day, every day.

I’ve been advised that investigating this misconduct would be too difficult because there wouldn’t be witnesses to attest the employee wasn’t working, and that our agency can’t discipline the employee anyway because of the current situation with the pandemic. Do you have any thoughts on this?

And our FELTG response.

Thanks for the note, FELTG reader. This one seems so easy to me. The employee is claiming pay for a large amount time when he did not work (approximately 320 hours), which is an egregious act of misconduct.

As members of FELTG Nation know, in order to discipline a Federal employee for misconduct, the agency must follow the five elements of discipline.

1 – Is there a rule? Yes, of course. Federal employees can’t lie on their time cards. It violates Federal statute to do so. See, e.g., 18 U.S.C. § 641; 18 U.S.C. § 287; 18 U.S.C. § 1001; 31 U.S.C. § 3729.

2 – Does the employee know the rule? Yes, every Federal employee receives training on how the time and attendance system works and is told their input must accurately reflect their schedule. In addition, most employees are subject to some version of the following when filling out their time and attendance records: “I certify that the time worked and leave taken as recorded on this form is true and correct to the best of my knowledge.” Moreover, the employee must click “Affirm” to validate, or sign their name if they submit a paper time and attendance form.

3 – Do you have proof the employee broke the rule? The standard here is preponderant evidence (or substantial evidence, if you’re covered by the new VA law). The employee has been at home for two months and has admitted he has not had a power cord for the laptop the entire time, and has done no work, yet he has submitted for full pay every day. Is this preponderant evidence? Sure it is. Your evidence is the employee’s admission. Remember, preponderant evidence – more likely than not – is all you need, and the employee’s admission meets that standard. There is also presumably evidence he is not working because no work has been submitted during this time. (There’s also a supervisory issue here, because a supervisor should be aware if an employee has not turned in any work in two months. But that’s another article.)

4 – Justify your penalty. Most agencies are required to justify a penalty by using the Douglas factors. A good starting point is to add up the amount of money the employee claimed and was paid, for time not actually worked. That amount, whatever it comes to, is an egregious misuse of taxpayer dollars. You can also address the loss of trust and confidence in the employee, plus any other Douglas factors that aggravate the penalty such as past discipline, employee performance, and rehabilitation potential. The COVID-19 pandemic might be a mitigating factor for some employee misconduct (for example, an employee did not log on to a web meeting because they were taking care of a child who was sick with the coronavirus and had a 103-degree fever), but in this hypothetical case a pandemic does not forgive, or even mitigate, two months of serious ongoing misconduct.

5 – Provide due process. You’ll complete these steps:

  • A proposal letter containing the charge(s) and penalty
  • The employee can respond to the charge(s)
  • An impartial decision

As far as the charge is concerned, in addition to the falsification/claiming time not worked/whatever you call the misconduct here, there could easily be another charge for the employee not alerting the supervisor that he left his laptop charger in the office and had no way of doing his work. Your agency telework policy likely mentions a process employees should follow if they have technical issues while on telework, and at the very least you can justify that the employee should have known that when he was on telework he was expected to work, and that if there were problems, he should alert the agency as soon as possible.

This scenario is not uncommon, unfortunately, and we will be addressing similar challenges on July 1 during the webinar Performance and Conduct Problems During a Pandemic: Holding Remote Employees Accountable. Hopkins@FELTG.com

DOP, DP, ODAP, OIP, PIP: Is it Just Me, or Have Performance Monikers Gotten Confusing?

, ,

By Deborah Hopkins, June 17, 2020

There are a few items in President Trump’s May 2018 Civil Service Executive Order Trifecta with which I don’t necessarily agree. But there are a lot of provisions that actually mirror what FELTG has been teaching for two decades. Among the items that I really like is the directive that employees with performance problems (those performing at an unacceptable level on any critical element) should be given a final opportunity to demonstrate acceptable performance, not to exceed 30 days.

After this EO came out, some agencies revamped their performance policies and changed the language from the existing focus on performance improvement by utilizing a Performance Improvement Plan (PIP) to some other moniker that gives the employee a 30-day opportunity to demonstrate he can perform their job at an acceptable level. The demonstration emphasis more accurately mirrors the language of the statute found at 5 USC § 4302(c)(6). An opportunity to improve could go on for quite a long time, perhaps interminably; an opportunity to demonstrate whether you can do the job you were hired to do shouldn’t take more than three or four weeks.

For what it’s worth, “Acceptable” performance is whatever the line is above Unacceptable – so if your agency has a 5-level rating system then Marginal/Minima/Partial standards count as acceptable performance. That’s right, be minimal is the goal. [“Hey, problem employee: We at the agency would consider it acceptable if you would bring your performance up to minimal. If you do that, you get to keep your job forever.” What a target, huh?]

But, I digress.

Back to poor performance. Articulating the acronym “PIP” is easy. It rolls off the tongue and almost everyone knows what it means. But I am trying to break my PIP habit (two years later), and call it something more appropriate. In the textbook UnCivil Servant: Holding Employees Accountable for Performance and Conduct (now in its 5th Edition), Bill Wiley and I call this 30-day opportunity a Performance Demonstration Period, or DP.  But in my travels across the country to agencies near and far (before the pandemic, when I was on a plane almost every week), and my more recent time in front of a virtual training screen, I have learned there are now several permutations to what Federal employees call this DP.

Demonstration Opportunity Period

  • Acronym: DOP
  • Agency using it: USDA

Opportunity to Demonstrate Acceptable Performance

  • Acronym: ODAP
  • Agency using it: HHS

Notice of Opportunity to Demonstrate Acceptable Performance

  • Acronym: NODAP (As far as I can tell, NODAP is an informal acronym and does not exist in writing in the agency’s policy, but it makes sense to me.)
  • Agency using it: DOI

Opportunity Period

  • Acronym: OP
  • Agency using it: OPM. This is unofficial and hasn’t been verified by the powers-that-be, but we have heard rumors from students that the very agency which gave us the term “PIP” now has adopted a more correct moniker.

Opportunity to Improve Performance

  • Acronym: OIP
  • Agency using it: HUD. As far as we at FELTG can tell, this policy has not been changed to reflect the language of “opportunity to demonstrate” rather than the “improve” language its name reflects.

Performance Improvement Plan

  • Acronym: PIP
  • Agencies (still) using it: Commerce, State, DOD, DHS. It’s interesting. If what I am seeing on these agencies’ websites, where the policies are posted, are up-to-date, a number of agencies – headed up by President Trump appointees – seem to be ignoring the EO’s mandate to move away from the improve/PIP mentality.

So, whether you DOP, OP, POP, ODAP, NODAP, OIP, DP, or PIP, remember the purpose is to allow the employee an opportunity to demonstrate acceptable performance per 5 USC §4302(c)(6), and not to allow the employee a perpetual opportunity to incrementally get better. Hopkins@FELTG.com

Breaking News: SCOTUS Says Federal Law Protects LGBTQ Workers From Employment Discrimination

,

By Deborah Hopkins, June 15, 2020

This morning, the Supreme Court issued a decision in Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, 590 U.S. ______ (Jun. 15, 2020). The 6-3 decision was written by Justice Gorsuch. He was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The question before the Court was whether an individual’s sexual orientation or transgender status was covered under Title VII’s prohibition against sex discrimination. The Court ruled that “The answer is clear. An employer who fires an individual for being ho­mosexual or transgender fires that person for traits or ac­tions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” (p. 2).

AT FELTG, we’ve reviewed the decision and will be re-reading it to be sure we glean all the relevant information. After the initial read, we’ve pulled out couple of interesting points the Supreme Court discussed:

  • If sex was one but-for cause for discrimination – not the motivating factor or the only cause – then Title VII applies. (p. 6)
  • Employers who seek to avoid liability because they discriminate against men and women who are LGBTQ do not avoid liability – they double their exposure to liability because the language of Title VII talks about discrimination against individuals. (p. 9)

A few takeaways directly from the language of the case include:

  • [A]n employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discrimi­nates against that person in violation of Title VII. (p. 7)
  • From the ordinary public meaning of the statute’s lan­guage at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it inten­tionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the em­ployer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to dis­charge the employee — put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer — a statutory violation has occurred. (p.9)
  • The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s be­cause it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. (p. 9)
  • [H]omosexuality and transgender status are inex­tricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some dispar­ate impact on one sex or another, but because to discrimi­nate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. (p. 10)
  • When an employer fires an employee because she is homo­sexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individ­ual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that in­dividual’s sex, the statute’s causation standard is met, and liability may attach. (p. 11)
  • We agree that homosex­uality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosex­uality or transgender status necessarily entails discrimina­tion based on sex; the first cannot happen without the sec­ond. (p. 19)
  • In Title VII, Congress adopted broad language mak­ing it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for be­ing gay or transgender defies the law. (p.33)

We’ll be going over this case in much more detail in future training events including an upcoming EEO Refresher webinar entitled The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace on July 9, and a virtual training session as part of FELTG’s special event Federal Workplace 2020: Accountability, Challenges, and Trends on July 29.

In the meantime, read the full decision yourself here. Hopkins@FELTG.com

The Employee Who Refuses to Report to Work

,

By Deborah Hopkins, June 9, 2020

Back in the day – before COVID-19 – there was a term we used for employees who refused to report to work: AWOL. Or, as our friends in the Navy call it, Unauthorized Absence. The pandemic has created a new scenario though, where a refusal to report to an agency work station might not be considered misconduct, depending on the circumstances.

As agencies start to bring employees back to the workplace, some are understandably wary about leaving the safety (and perhaps comfort) of their own homes and being put back in contact with the public once again. Some employees have more reason to be leery than others, particularly those in high-risk categories.

So, what should an agency consider when an employee expresses concern about returning back to the workplace while the virus is still killing 1,000 Americans each day?

According to OPM, agencies should work with employees and, if applicable, unions, to address return to work concerns even after agency management has determined that it is safe for employees to return. Once an agency has determined that sufficient conditions allow for employees to safely work in a given environment, employees can be expected to report to their worksite unless they are in an approved leave status.

Before issuing an order requiring employees to report to duty onsite, and when considering discipline based on non-compliance with a reporting requirement, agencies are encouraged to consider all facts and circumstances in each case. Among these considerations:

  • An employee’s vulnerability to serious complications if infected with the virus,
  • The presence of an individual in a CDC-identified high-risk category in the home, and
  • Child care or other dependent care responsibilities resulting from daycare, camp, or school closures.

Agencies should determine if other options are appropriate, such as allowing employees to continue to telework or asking them to request personal leave.

If the worksite is in a jurisdiction still subject to restrictions related to COVID-19, agencies should also consider the terms of any such restrictions as well as employee concerns about their safety in the workplace or during commuting, and determine if steps can be taken to mitigate those concerns.

FELTG readers know that federal employees are required to follow supervisory orders, including orders to report for duty, but they may legally refuse orders that would cause “irreparable harm.” These categories, found in MSPB case law, include orders that:

  • Are Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
  • Are immoral.
  • Require an unwarranted psychiatric examination.
  • Require an employee to forego a Constitutional right.
  • Are unsafe.

We know the first four are not at issue here; safety is the key. The question becomes: What is the balance between working to fulfill an agency’s mission while guaranteeing employee safety and protecting against irreparable harm?

For most employees, contracting COVID-19 would probably not cause irreparable harm. Recent data suggests a large group of the people infected – perhaps even 80% – are asymptomatic. But for a subset of employees in high-risk categories, contracting the virus could very well cause irreparable harm in the form of long-term or permanent health issues. Adding to the complication is that this virus is new, and we don’t have any information about its long-term effects.

So, where does that leave us? If an agency has determined that it is safe to return to the workplace, an employee’s subjective belief that it is not safe – especially if that employee is not in a high-risk category – will probably not be enough to have a disciplinary action for AWOL overturned.

Only time, and cases when we get them, will tell.

I think that agencies should try to be as flexible as possible, as employees are dealing with unprecedented challenges. But at the end of the day, your agency needs to fulfill its mission, and if an employee must be at work in order to do so, and work is a safe place, then the employee should be held accountable to report for duty. For more on this – and other virus-related workplace challenges – join FELTG tomorrow for the virtual training event Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic. A few spots still remain. Hopkins@FELTG.com

If You Leave an Intercontinental Ballistic Missile Unguarded, You’re Probably Getting Fired

, ,

By Deborah Hopkins, May 20, 2020

A few weeks ago, I wrote an article about progressive discipline, and explained how a time-tested approach to discipline in the federal government provides for a “three strikes and you’re out” mentality, at least when it comes to minor workplace misconduct. There are times, however, when an employee engages in misconduct so egregious that the agency skips the first two steps in progressive discipline – typically a reprimand and a suspension – and jumps right to a removal. After all, an underlying tenet of progressive discipline is that, by disciplining an employee with increasing degrees of punishment, the employee is given the opportunity to learn from his mistakes. Castellanos v. Army, 62 MSPR 315, 324 (May 4, 1994). There are times, though, an agency determines the employee has done something so bad, he should not be given such a chance.

Let’s look at a few of those cases.

You were warned

Sometimes agencies choose to issue warnings to employees, rather than issue formal discipline. A warning is an aggravating factor that is most commonly used under the Douglas factor for clarity of notice: How clearly was the employee on notice that there was a workplace rule in place?

Take, for example, the GS-12 attorney with a discipline-free record who was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone). The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal.  This appellant argued that he didn’t understand the warnings because the language used by the agency regarding “maintaining his composure” was confusing. Nice try, but that expression was an aggravating factor that expressed a lack of remorse. A GS-12 attorney should know what maintaining composure requires, so the MSPB upheld the removal. Pinegar v. FEC, 2007 MSPB 140.

One strike and you’re out

Some charges, by their very nature, have been recognized to be removal offenses even if there is no prior discipline. One such charge is Failure to Cooperate in an Investigation. Take a look at the following cases which all involved some version of an employee refusing to participate in agency-authorized investigations: Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Hamilton v. DHS, 2012 MSPB 19. Also check out Sher v. VA, 488 F.3d 489 (1st Cir. 2007) (Courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation).

Another charge where there’s not always another chance for the employee is Threat, or some version thereof (such as Making Disruptive Statements). In one such case, an appellant’s conditional threat that he would cut off his supervisor’s head warranted his removal despite a lack of prior discipline and four years of service. The agency successfully argued that such behavior affected the agency’s obligation to maintain a safe work place for its employees, thus impinging upon the efficiency of the service. Robinson v. USPS, 30 MSPR 678 (1986), aff’d., 809 F.2d 792 (Fed. Cir. 1986) (Table). A note to practitioners: If you’re going to charge Threat, you’re going to need to be sure you have evidence to support the Metz factors. Come to FELTG’s Workplace Investigations Week in Denver August 24-28 if you’d like to learn more about that.

Multiple specifications are aggravating 

Sometimes an employee engages in an act of misconduct several times, but has no disciplinary record because the agency hasn’t yet issued discipline (which, as a side note, contradicts my colleague Bill Wiley’s mantra “Discipline early, discipline often”). In those cases, the agency may choose to discipline the employee, and show the egregiousness of the conduct by listing multiple specifications, thereby justifying the penalty of a removal for a first offense of misconduct. A fairly recent case provides a perfect example of such a strategy: A first-offense removal was upheld because there were 10 specifications of continued sexual misconduct that occurred after appellant was asked to stop his inappropriate behavior. Adkins v. DoD, SF-0752-16-0294-I-1 (2016)(NP).

Harm or potential for serious harm

The Air Force has a rule: A Division 1.3 explosive must be attended at all times by its driver or a qualified representative of the motor carrier that operates it. One of our most-discussed-in-class cases at FELTG seminars involves a WG-09 Motor Vehicle Operator with 28 years of outstanding service, who left a truck with an intercontinental ballistic missile unguarded in a motel parking lot (keys in the ignition, doors unlocked) for 45 minutes, and then lied about to his supervisors when they confronted him. Though 28 years of service is a mitigating factor, and a discipline-free record is generally an asset, leaving a missile containing 66,671 pounds of explosive propellant unguarded was egregious enough to warrant a first-offense removal. Dunn v. Air Force, 96 MSPR 166 (May 24, 2004).

Remember, the goal of discipline should be to prevent future misconduct from occurring. But sometimes, employees go over the line and there’s no coming back. As long as your Douglas factors analysis supports removal, and the penalty is not grossly disproportionate to the offense, you’re free to remove an employee with a discipline-free record. For more on discipline, join FELTG for the Virtual Training Institute’s Taking Defensible Disciplinary Actions, June 1-3, or Developing & Defending Discipline, June 23-25 – from wherever you’re working. Hopkins@FELTG.com