While there’s no clear connection between the term “master bedroom” and slavery, the subtext is enough that the real estate industry largely moved to stop using it. Here’s why.
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By Deborah J. Hopkins, October 16, 2023
The Merit Systems Protection Board has taken a several-week break from issuing decisions while it updates its e-Appeal online system. The system was scheduled to come back online this week.
In the meantime, I wanted to highlight an interesting recent case involving a supervisor who was demoted for conduct unbecoming, but who the Board reinstated because the supervisor’s impatient and unprofessional demeanor did not rise to the level of actionable misconduct. Glass v. Treasury, NY-0752-19-0200-I-1 (Aug. 16, 2023)(NP).
The appellant, a supervisory national bank examiner, was demoted based on five specifications of conduct unbecoming a supervisor. According to the case, the misconduct involved the supervisor’s interactions with four subordinates and the specifications all related “to the manner in which the appellant dealt with these individuals regarding work-related matters.” Id. at ¶7. The administrative judge (AJ) agreed with the agency and upheld all five specifications and the demotion.
The Board, however, disagreed. Among the relevant details:
Specification 1: The appellant addressed one of his subordinates in a scolding manner, told him his work-related project explanations were “not a good excuse,” and told the subordinate that he was ill-prepared for a meeting. In addition, he called the subordinate a liar during a performance review.
According to the Board, “It is the job of a supervisor to address the performance of his subordinates and the making of inaccurate or false statements about a work-related matter is serious. Although the appellant’s language may have been direct or indelicate, that does not make his conduct actionable.” Id. at ¶9.
Specification 2: The appellant was having a discussion with another of his direct reports and was trying to clarify how many work items were pending. When the direct report did not understand the appellant’s question, “the appellant held up one finger from each hand in her face and said, loudly enough so that others could hear, words to the effect of ‘Here’s one finger and here’s one finger. How many fingers?’” in front of several other staff members. Id. at ¶10.
The AJ found this behavior disrespectful and inappropriate because the direct report felt intimidated and embarrassed. The Board disagreed and said the appellant was asking for information about a work-related matter, which is a supervisor’s responsibility, and even if the statement was exaggerated and made the subordinate feel uncomfortable, it did not rise to the level of actionable misconduct.
Specification 3: This specification involved the same direct report from Specification 2, above. In this instance the direct report asked the appellant a question about a work-related matter and the appellant responded, “We have talked about this five times!” Id. at ¶12.The AJ found that the appellant’s obvious annoyance and anger was not tactful and was unbecoming a supervisor, but the Board disagreed because the conversation was about “a work-related matter and his response to her was in the context of his supervisory role…To the extent that the appellant’s response reflected that he was frustrated by the question, it does not amount to actionable misconduct.” Id. at ¶13.
Specification 4: The appellant asked a different subordinate to schedule a meeting to include him and two other agency officials, and after the subordinate made several attempts to confirm the appellant’s attendance, he replied, “I told you this three times. We have to go over this again?” Id. at ¶14. As in Specification 3, the Board held that the discussion was work-related and the appellant was acting within the scope of his responsibilities, and even if he appeared annoyed and made his subordinate feel belittled, it did not rise to the level of actionable misconduct.
Specification 5: In an email exchange between the appellant and one of his direct reports, he told her to “submit her questions either to him or another named individual, and to ‘PLEASE stop emailing’” another agency employee. Id. at ¶16. The AJ found the tone of the email unprofessional, but the Board disagreed. It held a supervisor has authority and responsibility to “direct who should be provided certain information and to whom questions should be addressed. Putting a written word in all capital letters is generally intended to draw the reader’s attention to it.” Id. at ¶17. Although the subordinate testified she felt “beaten up” by the email, according to the Board “those feelings cannot serve to turn the appellant’s email into actionable misconduct.” Id.
If you are surprised by this outcome, let me draw your attention to a footnote where the Board explained, “We do not suggest that a supervisor’s conduct may never be actionable and therefore supportive of discipline, but only that the appellant’s conduct in this case does not rise to that level.” Id. at p. 7. For more on advanced topics such as these join us for the all-new program Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2. Hopkins@FELTG.com
A high-profile situation naturally raises an oft-asked question about consent as it relates to voluntariness and unwelcomeness in workplace relationships. Read more.
By Deborah J. Hopkins, September 11, 2023
The Merit Systems Protection Board holds a number of functions; chief among them is reviewing agency penalty selections in cases of appealable discipline. The Board’s role is not to displace management’s responsibility in a penalty determination with its own, but to determine whether management exercised its judgment and issued a penalty within the tolerable limits of reasonableness. Alaniz v. U.S. Postal Service, 100 M.S.P.R. 105, ¶ 14 (2005). The same is true of the role of MSPB administrative judges (AJs).
In reviewing recent nonprecedential cases, I noticed several where the Board reversed an AJ’s mitigation and re-imposed the agency’s initial removal penalty. What follows are summaries of two such cases.
The FBI Special Agent Who Fired His Service Weapon
on a Would-Be Car Thief
From a window on the second floor of his home, an FBI special agent saw a man attempting to break into his wife’s car in front of his home. The agent yelled at the would-be thief to get him to stop, but the man persisted. The agent then brandished his service weapon, identified himself as a law enforcement officer, and fired one round, injuring the individual.
At the time he fired his weapon, the appellant was approximately 10 to 25 feet higher than the individual, and 30 feet horizontal distance from the individual.
The agency removed the appellant. On appeal, the AJ mitigated the removal to a 60-day suspension, finding the agency improperly considered certain Douglas factors to be aggravating. The Board disagreed with the AJ and reinstated the agency’s removal penalty, relying on three aggravating factors:
- The appellant’s refusal to accept responsibility,
- The appellant’s prior disciplinary history, and
- The appellant’s “refusal to cooperate with the investigations.”
In addition, the Board agreed with the agency that the misconduct was “directly related to the agency’s mission and the appellant’s ability to exercise reasonable use of force in the performance of his duties in the future.” Kalicharan v. DOJ, NY-0752-16-0167-I-4 (Jul. 20, 2023).
The Disrespectful VA Practical Nurse
The agency removed the appellant, a practical nurse for the VA, based on three charges. On appeal the administrative judge found the agency proved only one charge, inappropriate language, with two specifications:
- While the appellant was in the breakroom with a male coworker, a female coworker called that individual on the telephone and the appellant “yelled out something along the lines of kill that b-tch.”
- During a meeting with management regarding the appellant’s alleged interpersonal conflicts with the female coworker, he admitted to calling the coworker a “b-tch” on one unspecified occasion after she had allegedly lied about him acting inappropriately towards her.
The AJ mitigated the penalty of removal to a 30-day suspension largely because she sustained what she considered to be only the “least serious” of the initial three charges. In explaining the mitigation, the AJ “focused on the context in which the appellant used the inappropriate language and the appellant’s past discipline.” The deciding official considered these to be aggravating factors, but the AJ disagreed.
The Board overturned the AJ’s mitigation and reinstated the removal, after considering as aggravating factors “the appellant’s work in a healthcare setting with veterans, the high standard of conduct and behavior towards patients and other VA employees expected of an individual in the appellant’s position, and the notoriety of the offense in negatively affecting the trust of veterans and the public in the level of patient care at the VA.”
Also, this was the appellant’s third disciplinary offense in less than three years. Therefore, using the principles of progressive discipline, the Board found removal did not exceed the bounds of reasonableness. Beasley v. VA, CH-0752-17-0273-I-1 (Jul. 19, 2023).
We’ll be looking in more detail at these topics during our brand-new virtual training Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2. We hope you can join us! Hopkins@FELTG.com
If you’re at all familiar with EEO complaints, you’re likely aware that in the Federal sector, a complainant must make contact with an EEO counselor within 45 days of the alleged event of discrimination. Read more.
By Deborah J. Hopkins, August 14, 2023
Misconceptions abound when it comes to the world of security clearances. The news media and the movies don’t always get it right. An employee can be denied a clearance for a lot more than selling national secrets to a foreign country. Below are three things you should know:
- There are guidelines to help determine if a clearance should be granted, suspended or revoked. A set of 13 guidelines help the government determine if a clearance is warranted, and also if a clearance should be suspended or ultimately revoked. The guidelines vary from sexual behavior to alcohol or drug use, from personal conduct to financial considerations, and more. With clearance issues, national security remains the key interest, and according to the United States Supreme Court, “determinations should err … on the side of denials.” Egan v. Navy, 484 US 518 (1988).
- The MSPB does not have the authority to review the merits of a security clearance revocation. According to Egan, the Board has no authority to review the merits of an agency’s underlying security clearance determination. The Court stressed that clearance determinations should be made by those with “necessary expertise in protecting classified information.” That job belongs to the agency experts, not the MSPB. The MSPB can only ensure the employee received due process if the agency proposed removal for failing to maintain a security clearance.
- If an agency removes an employee who has lost his clearance, the agency must show the clearance was actually required. According to Egan, there are four elements required for an agency to remove an employee for failing to maintain a security clearance:
- The agency determined that the position required a security clearance,
- The agency revoked or denied the clearance,
- The agency provided the employee adverse action rights, and
- The Deciding Official considered reassignment to a non-sensitive position.
Almost a decade ago, the Board reversed an agency’s removal. The agency did not annotate the PD to show that a security clearance was necessary, did not annotate the SF-50 to show that a security clearance was necessary, and allowed the employee to remain on the job until adjudication of his clearance was completed. Gamboa v. Air Force, 2014 MSPB 13 (2014).
If your agency has employees with security clearances, you shouldn’t miss FELTG’s upcoming two-hour program on Aug. 24 — All Clear? When Employee Security Clearances are Revoked or Suspended. Hopkins@FELTG.com
Marijuana is still a Federally controlled substance and Federal employees are prohibited from purchasing, possessing, using or distributing it in any form. A recent MSPB case highlighted this exact conduct. Read more.
A new NP MSPB case, Petoskey v. VA, SF-3443-16-0808-I-1 (Jun. 21, 2023), has once again affirmed why letters of counseling, caution, warning, and the like are just not worth your time. Read more.
By Deborah J. Hopkins, July 18, 2023
On June 29, the Supreme Court upended decades of precedent in its unanimous decision Groff v. DeJoy, No. 22–174 (Jun. 29, 2023).
Under Title VII, employers are required to accommodate the sincerely held religious beliefs or practices of employees unless doing so would cause an “undue hardship” on the employer. For years, the definition of “undue hardship” for religious accommodation has been “anything more than a de minimis burden,” which is a much lower threshold than proving undue hardship for the purposes of disability accommodation – and, quite recently, pregnancy accommodation.
The new SCOTUS case looked at a USPS mail carrier, Gerald Groff, who requested to be excused from work on Sundays because his religious beliefs required that day to “be devoted to worship and rest.” The agency required Sunday work because of a new partnership with Amazon.
The agency said granting Groff Sundays off would be more than a de minimis burden on his coworkers’ schedules. Also, it would require the USPS to pay overtime, which would be an undue hardship on the agency. After being disciplined for refusing to work on Sundays as ordered, Groff resigned. He filed a failure-to-accommodate religious accommodation claim against USPS.
From the SCOTUS syllabus:
Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.” §2000e(j). Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business…
Title VII requires that an employer “reasonably accommodate” an employee’s practice of religion, not merely that it assesses the reasonableness of a particular possible accommodation or accommodations. Faced with an accommodation request like Groff’s, an employer must do more that conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options would also be necessary. (citation omitted). Having clarified the Title VII undue-hardship standard, the Court leaves the context-specific application of that clarified standard in this case to the lower courts….
While this seems like a major change to the “undue hardship” analysis, there’s a school of thought that indicates this might not actually change much for Federal agencies.
I asked FELTG Instructor Bob Woods, who will present How are Religious Accommodation Requests Different from Disability Accommodation Requests? on August 17, what he thought about Groff. Here’s what Bob said:
[W]hile Groff is clearly an important decision, I don’t think it will have a significant impact on Federal agencies. I don’t have a crystal ball, but I say this based upon the nature of the types of accommodations typically requested in such cases and the EEOC’s existing guidance (in both 29 CFR 1605.2 and EEOC Guidance, Section 12: Religious Accommodation) and their Federal sector caselaw. While the Supreme Court has now clarified its decision in Hardison v. TWA, it also noted that the EEOC already minimized the impact of the term “more than a de minimis cost” in its guidance and decisions. Although the Groff decision does not limit the EEOC to its current guidance, I believe that they already hold Federal agencies to standards that comport with the plain language of the law.
I also note, as does the Court, that the Postal Service went to fairly substantial lengths to accommodate Mr. Groff. The 3rd Circuit found exempting Groff for Sunday work would result in an undue hardship that would clearly be more than a de minimis cost. The Supreme Court has vacated and remanded for “further proceedings consistent with this decision.” Given the asserted impact on the Postal Service discussed in these decisions, it’s possible that the 3rd Circuit may still find an undue hardship.
Agencies would certainly be well advised to review (or create) Religious Accommodation procedures and policies and confer with counsel to review existing/pending complaints of failure(s) to provide religious accommodations to ensure they are not relying upon the concept of de minimis costs. Agencies should also be on the lookout for updated EEOC guidance. As always, we’ll keep you posted on any relevant information that results from this important SCOTUS decision. Hopkins@FELTG.com.
By Deborah J. Hopkins, July 18, 2023
It may be one of the most written-about topics in this newsletter, but we keep writing because we keep seeing cases where employees challenge letters of warning, caution, counseling, and the like, and agencies get tied up in litigation for years as a result.
Look at Shad R. v. USPS, EEOC Appeal No. 2022004404 (May 11, 2023). The complainant in this case was a sales/service/distribution associate at a postal facility. The agency issued him two letters of warning (LOW):
- On 23, 2021, the LOW charged the complainant with “Hazmat Question/Work Performance/Failure to Follow Instructions.” The supervisor said that the complainant “did not ask the Hazmat Question at all, did not give customer his full attention, did not apologize to the customer for making her wait, did not suggest extra services, and did not offer any additional items for the customer. Complainant was also not wearing his uniform, but rather was wearing an apron.”
- On March 6, 2021, the LOW charged “Conduct/Failure to Follow Instructions.” The LOW specified that, the complainant failed to remove his personal items from the retail window and workroom floor, despite an order to do so.
According to the record, the February LOW was rescinded, and the March LOW was grieved and proceeded to arbitration, with the outcome of the arbitration unknown. The complainant filed an EEO complaint over the two LOWs, alleging that the agency discriminated against him and subjected him to a hostile work environment on the bases of:
- Race (Latino),
- National origin (Hispanic),
- Sexual orientation (gay),
- Religion (Satanism),
- Disability (HIV, anxiety, and depression), and
- Reprisal for prior protected EEO activity.
The supervisor (S1) who issued the LOWs “explained that the February LOW resulted from her personal observations of Complainant’s interaction with a customer. S1 also explained that she issued the March LOW because Complainant had multiple personal items in the workplace, including an inappropriate picture of a woman, and he did not remove them.” In his defense, the complainant asserted, among other things, “the March LOW was improper because, as a gay man, he does not objectify women.”
The EEOC affirmed the Final Agency Decision which found no discrimination or harassment. In other words, the agency had a legitimate, non-discriminatory reason for warning the employee. That said, had the warnings been issued orally or via email and NOT put on letterhead, most likely the complainant would not have felt aggrieved for the purposes of filing a union grievance or an EEO complaint. Something about non-disciplinary actions being out on letterhead escalates things to a level where an employee wants to challenge, rather than heed the warning. We’ll discuss this plus a lot more on July 26 during the two-hour virtual training No Need for Fear: A Guide to Navigating EEO Challenges for Supervisors and Advisors. Hopkins@FELTG.com
Note: after publication, FELTG heard from a previous USPS employee who informed us that per its CBA, a Letter of Warning counts as formal discipline for certain USPS employees. The principle about LOWs remains the same, but in the case above it may have counted as discipline.
