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

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By Deborah J. Hopkins, February 20, 2024

As I make my way through dozens of new nonprecedential (NP) MSPB cases, some grab more of my attention than others.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

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

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

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

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

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

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

Id. at 16.

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

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

When a New Supervisor Revokes Employee’s Telework Accommodation

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By Deborah J. Hopkins, February 20, 2024

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

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

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

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

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

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

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

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

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

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

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

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

Does Fed Circuit Case Signal End of Singh Comparator Analysis?

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

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The State of the Civil Service: 2024 Edition

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By Deborah J. Hopkins, January 17, 2024

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

Merit Systems Protection Board

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

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

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

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

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

Equal Employment Opportunity Commission

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

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

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

Federal Labor Relations Authority

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

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

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

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

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

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

U.S. Office of Special Counsel

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

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

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

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

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

Wrong Place, Wrong Time: Teleworker AWOL When He Failed to Report to Office

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Can an agency charge Absent Without Leave (AWOL) if the employee was working, but in the wrong location? A new MSPB case, Wong v. Commerce, DC-0752-17-0298-I-2 (Dec. 9, 2023)(NP), tackles that very scenario.

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Does it Matter if a Dog is a Service Animal or Emotional Support Animal?

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In a semi-recent case involving an employee’s request for a dog in the workplace, Dona A. v. SSA, EEOC No. 2022000745 (May 9, 2022), the complainant requested 15 accommodations, including that her dog be permitted to come to work with her. Let’s break it down.

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Nude Photos, Fake Feces, Party Rumors: A Few of MSPB’s Holiday No-Nos

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By Deborah Hopkins, December 4, 2023

As December rolls along, many of you will be attending or participating in holiday parties or gift exchanges. To kick off the holiday theme of this month’s newsletter, I wanted to share three lessons about employee (mis)conduct related to the holidays.

Inappropriate use of a photo taken at a Christmas party was “abusive and offensive.”

The appellant, an M-5 supervisor at the Tennessee Valley Authority, was suspended on multiple charges. One charge included showing a female subordinate employee an inappropriate photograph. The photograph was taken of the subordinate, without her knowledge, during a Christmas party. That was only part of the problem. The appellant then took the subordinate’s head from the photo and attached it to a centerfold picture of the body of a naked woman, and showed the photo to the appellant, who testified that she was humiliated and embarrassed by the incident. MSPB held that this incident, along with others discussed in the case, amounted to “a course of abusive and offensive behavior which, if directed in large part to female employees, is discriminatory.” Hayes v. TVA, 4 MSPR 411, 414 (Dec. 16, 1980).

A Christmas gag gift can amount to disrespectful conduct.

The appellant, a WG-9 painter at the Department of Veterans Affairs, brought a red Huggies box to work and placed it on his supervisor’s workstation. The box contained what appeared to be a soiled diaper. The agency drafted the following charge:

On January 5, 2012, three individuals saw you put a red Huggies diaper box on the desk of Supervisor Mark Treadway. The box contained a baby diaper that looked like it had feces in it. According to the witnesses, you made the following statements, “Do you think this would make Mark mad” and “I hope it does.”

The “feces” was actually a candy bar that had been made to look like feces. The appellant testified it was a Christmas gag gift he had received from his mother and his sister, although witnesses did not corroborate that statement.

The supervisor was troubled with what he found at his workstation. He thought the feces was real. He called the agency’s Infectious Disease team to dispose of the box. The Administrative Judge found the appellant’s behavior amounted to disrespectful conduct. Franklin v. VA, AT-0752-12-0454-I-1 (Jul. 23, 2012)(ID).

The Whistleblower Protection Act does not protect disclosures based on rumors of events at holiday parties.

In this case, the appellant, a GS-12 correctional program specialist/special investigative agent at the Federal Bureau of Prisons, asserted he heard a rumor from other employees that there had been a fight during the institution’s holiday party, which he had not attended. He reported the rumor, which included an allegation that the associate warden had been involved in the altercation, to the agency’s executive staff. When he was disciplined for conducting an unauthorized investigation, misuse of position, and lack of candor, he claimed whistleblower reprisal, but the MSPB found the disclosure was not protected because “when the appellant made the disclosure, it was based on mere rumors, and he did not even know who allegedly had been involved.” Johnson v. DOJ, 2007 MSPB 42, P14 (Feb. 6, 2007).

Have a wonderful holiday season, FELTG readers, and let’s all remember to make good decisions out there. Hopkins@FELTG.com

How Not to Handle Religious Accommodation Requests

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This week, our focus turns to claims of religious discrimination from another angle – reasonable accommodation. Read more.

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The Israel-Hamas War and Religious Harassment in the Workplace

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By Deborah J. Hopkins, November 13, 2023

Religious persecution is on many people’s minds today. With polarizing events happening around the world, most notably the Israel-Hamas war, it’s important for Federal employees to remember this: While they may have strong feelings related to religious beliefs and practices, there are limits on workplace conduct that, if exceeded, could give rise to discrimination complaints on the basis of religion.

As a quick statutory overview, Title VII, 42 USC § 2000e-16, provides that in the Federal government, “all personnel actions affecting employees or applicants for employment …  shall be made free from discrimination based on … religion …” This statute was made applicable to Federal agencies by the Rehabilitation Act in 1972.

In addition, EEOC makes it clear that “Title VII defines ‘religion’ to include ‘all aspects of religious observance and practice as well as belief.’ Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, and only subscribed to by a small number of people, or that seem illogical or unreasonable to others. . .” EEOC Compliance Manual Section 12-I, A-1.

A browse through EEOC case law shows us that discrimination based on religion has been implicated in every theory of discrimination. Today, we’ll be focusing on cases involving hostile work environment harassment.

Wicca wasn’t welcome.

The complainant, an electronic technician, filed a hostile environment complaint based in part on his religion (Wicca). According to the case, agency supervisors “restricted him from wearing his religious shirts, jewelry” and displaying “a small cauldron” even though similar restrictions were not placed on employees of other religions. In addition, an agency supervisor counseled the complainant that he should refrain from being so open about his religious beliefs.

The complainant’s co-workers also openly chastised his religious expressions, referring to his religion as “going out East to frolic with the nymphs” and calling him “evil.” EEOC found the agency liable for hostile environment harassment and remanded the case for a damages assessment. Hurston v. USPS, EEOC App. No. 01986458 (Jan. 19, 2001).

Muslims were expected to behave in a certain way.

The complainant, a housekeeping aide, alleged religious discrimination based on his Muslim faith when among other things:

  • His supervisors made comments such as “Why don’t you act like a Muslim?” and “Where is your beanie (kufee)?” [sic].
  • His direct supervisor once handed him a computer disk labeled “get Osama.”
  • His co-workers brought in pictures of the President and the Statue of Liberty wearing disparaging Muslim garb.
  • He received approximately 25-30 letters of warning.

When assessing the severity and pervasiveness of the conduct, EEOC noted that the harassment began on Sept. 12, 2001, and continued for several weeks thereafter. It found the agency liable for a hostile work environment. Watson v. Dep’t of Veterans Affairs, EEOC Nos. 01A50731, 01A52680 (2006).

Disparaging comments were made about Islam.

The complainant, a center adjudication officer at the Federal Law Enforcement Training Center (FLETC), was attending a seven-week staff training course at FLETC’s Glynco, Ga., campus. The class instructor made disparaging remarks about Muslims and Arabic people to the class and provided factually inaccurate information about the Islamic faith and Arabic people.

In addition, the instructor told the class, “The goal of a Muslim is to convert you and kill you.” Another instructor told the class the complainant should be “investigated for possible ties to terrorist organizations.” This was so troubling that other classmates who weren’t Muslim or Arabic were uncomfortable and filed reports. EEOC agreed that this conduct created a hostile work environment. Rana v. Dep’t of Homeland Security, EEOC App. No. 0720060056 (Jan. 5, 2007).

One offensive comment constituted unlawful antisemitic harassment.

 The complainant, a workers’ compensation claims examiner, received an email from her supervisor in which the supervisor referred to himself as working like “a Hebrew slave.” The complainant filed a hostile environment harassment complaint.

The agency maintained the supervisor’s comment was not severe enough to constitute a hostile work environment because he applied the term to himself. EEOC disagreed and found that, although it was a one-time comment, such language made light of the history of Jewish persecution and genocide and it reminded the complainant about her family’s treatment during the Holocaust, where several of her family members had been killed. EEOC agreed with the AJ, who determined that this comment to a Jewish subordinate was “grossly insensitive, insulting and condescending,” “profoundly inappropriate,” and was severe enough to alter the terms, conditions, and privileges of employment. Lashawna C. v. Dep’t of Labor, EEOC App. No. 0720160020 (Feb. 10, 2017).

Newspaper photo with comments was not a hostile work environment.

Not every case of unwelcome conduct based on religion will meet the bar to prove a hostile work environment. Take, for example, the recent case Kenny M. v. Dep’t of Justice (Bureau of Prisons), EEOC App. No. 2022000449 (Dec. 6, 2022). The complainant, a cook supervisor at a Federal penitentiary, alleged a hostile work environment on the basis of religion (Judaism).

From November 2018 through December 2019, a newspaper article containing a photo of the U.S. attorney general speaking with a man in a black hat was posted in the bathroom with the captions:  “The AG and a Jew meet at a gay disco party” and “Who blows Who.” The EEOC found the incident was not sufficiently severe or pervasive to alter the terms, conditions, or privileges of the complainant’s employment. “The anti-discrimination statutes are not civility codes. Rather, they forbid ‘only behavior so objectively offensive as to alter the conditions of the victim’s employment.’” Id., citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (Mar. 4, 1998).

I’ll write more about religious discrimination next month. Hopkins@FELTG.com

Initial Takeaways from the 2023 FEVS

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By Deborah J. Hopkins, November 13, 2023

It’s the time of year when initial Federal Employee Viewpoint Survey (FEVS) results are released. Like many of you, I found some interesting numbers in the 2023 report. One topic with very favorable scores involved items related to employee views of their immediate supervisors. Take a look at a few items with high scores:

  • I am held accountable for the quality of work I produce: 86 percent.
  • I know what my work unit’s goals are: 84 percent.
  • Supervisors in my unit support employee development: 78 percent.
  • My supervisor supports my need to balance work and other life issues: 84 percent.
  • My supervisor listens to what I have to say: 82 percent.
  • My supervisor treats me with respect: 86 percent.
  • My supervisor holds me accountable for achieving results: 87 percent.

Until the 2022 FEVS, an item that appeared on every FEVS for as long as I can remember was “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” That number usually wavered between 27 and 42 percent. The question hasn’t been on the last two FEVS so it’s hard to capture the difference between how employees feel about their supervisor holding them accountable, and their supervisor holding coworkers accountable.

One item we at FELTG found troubling:

  • In my work unit, differences in performance are recognized in a meaningful way: 45 percent.

This item reminds me of what FELTG Instructor Ann Boehm says in her class on Boosting Employee Morale: 10 Dos and Don’ts for Federal Managers: “Take care of the good ones!”

We’ll share more on the 2023 FEVS in upcoming articles and in our 2024 training classes, which are now open for registration. Hopkins@FELTG.com