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Sexting on an Agency Cell Phone: Prompt Action Required

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By Deborah J. Hopkins, June 14, 2023

A new case from the EEOC on hostile work environment harassment illustrates the importance of an agency’s actions in not only avoiding liability, but also (and more importantly) in protecting the victim from continued unwelcome conduct. Joan V. v. VA, EEOC Appeal No. 2022002963 (Apr. 20, 2023). In this case, the agency was dinged for failing to “properly address” a situation where a complainant was receiving multiple unwanted sexually explicit text messages from an unknown source, on her government-issued cell phone. The messages included “multiple specific references to female genitalia and acts to be performed to male genitalia.”

The complainant requested a new phone number on March 25, 2021. On March 29, the IT Service Desk denied the request, responding via email: “‘Each phone comes with a SIM card that supports a number. We pay for each number we receive. We can’t change out your number due to too many calls and text messages … The cost does not outweigh the benefit.’”

Over the next several weeks, the complainant made multiple additional attempts to get a new phone or phone number. She was given what we Midwesterners call the “run-around.” She finally received a new phone number on May 21 — eight weeks after her initial request.

Unfortunately, the sexually explicit messages began coming to her new number. Over the course of the next several weeks, her number was changed yet again. In August 2021, five months after the initial request, the complainant received a third new phone number and requested that the “number not be placed in the Global Address Listing (GAL).” The agency granted her request and this resolved the problem. She finally stopped receiving unwanted text messages. The case does an excellent job setting out the legal standard for HWE claims: To establish a claim of harassment, the complainant must show:

  • she is a member of a statutorily protected class;
  • she was subjected to unwelcome verbal or physical conduct involving the protected class;
  • the harassment complained of was based on the protected class;
  • the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
  • there is a basis for imputing liability to the employer.

[Citation omitted.]

Based on the number, duration, and egregious nature of the text messages, the EEOC found the first four elements satisfied. The discussion on element 5 – agency liability – took into consideration the agency’s delay in providing prompt, effective correction action:

The Agency is under an obligation to do “whatever is necessary” to end harassment, to make a victim whole, and to prevent the misconduct from recurring… The ongoing nature of the harassing behavior demonstrates that actions taken by the Agency were not effective in alleviating the harassment. As such, we find that Complainant established that she was subjected to harassment based on sex for which the Agency is liable.

The moral of the story: It shouldn’t take five months to provide prompt, effective corrective action to a victim of harassment. For more on harassment and other challenging EEO issues, join FELTG on July 12-13 for Advanced EEO: Navigating Complex Issues. Hopkins@FELTG.com

A Painful (and Costly) Lesson About Last-Minute Probationary Removals

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By Deborah J. Hopkins, June 14, 2023

We get a lot of questions about probationary periods. There can be confusion if employees switch agencies, are rehired after a break in service, or have veterans’ preference.

The end date of an employee’s initial appointment probationary period, however, is not a mystery. The probationary period lasts one year; it ends when the appointee completes his scheduled tour of duty on the day before the anniversary date of his appointment. 5 C.F.R. § 315.804(b). Therefore, an agency can pinpoint the exact moment the probationary period ends, and they can do so from the very first shift the employee works.

A recent MSPB case (Stewart v. DOT, 2023 MSPB 18 (May 16, 2023)) reinforces a lesson that’s important to share with all supervisors, advisors, and agency leaders: If you want to remove a probationary employee, do NOT wait until the very end of the probationary period to do so. Give yourself a cushion of at least a few days.

Here’s a timeline to help clarify what happened in the case:

  • The appellant began working for the Department of Transportation as a career-conditional GS-12 Safety Recall Specialist on Jan. 22, 2017. His regular work schedule was Monday through Friday, 7 a.m. to 3:30 p.m.
  • On Jan. 11, 2018, his Division Chief recommended that he be terminated for post-appointment reasons.
  • Also on Jan. 11, the Division Chief informed the appellant that, unless he resigned his position on or before Jan. 15, he would be terminated.
  • On Jan. 16, the appellant tendered his letter of resignation, to be effective Monday, Jan. 22.
  • HR advised the division chief that Jan. 22 was AFTER the end of the probationary period, so the Division Chief requested the appellant change his resignation date to Friday, Jan. 19, his last scheduled workday before the expiration of his probationary period. The appellant declined, yet he returned his laptop and PIV at the end of his tour Jan. 18.
  • On Jan. 19, HR “obtained the signatures from the relevant officials and completed the paperwork necessary to effect the termination action.”
  • Also on Jan. 19, the appellant was out on previously scheduled sick leave so the agency sent the termination notice “effective at the close of business on January 19, 2018” to his work email address, and by overnight delivery to his home address.

Do you see a problem yet?

According to the Board, “we find that a termination at the end of a probationer’s final tour of duty does not satisfy the regulatory requirement that a termination be effected before the end of his final tour of duty. See 5 C.F.R. § 315.804(b).” [bold added]

Even if the appellant had somehow logged in to his work email at some point before 3:30 p.m. on Jan. 19, which is disputed as he had returned his laptop the day before, the language in the letter controls. The appellant was clearly informed he was being separated after his probationary period was completed. And because he was no longer a probationer, he was removed without due process.

Thanks to the lack of quorum at the MSPB, this case sat in the stack of PFRs for more than five years, until last month when the Board ordered the agency to restore the appellant to his previous position and pay five-plus years of back pay, plus other costs.

For more on this topic, join us on Aug. 1 for Everything You Need to Know About Probationary Periods – a comprehensive one-hour virtual training.

Hopkins@FELTG.com

 

Supporting the Deciding Official – Even if You Disagree With the Penalty

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By Deborah J. Hopkins, May 22, 2023

A recently issued non-precedential MSPB case caught my attention: an appeal involving a proposed removal that the Deciding Official (DO) mitigated to a demotion. In most cases, if a DO mitigates a proposed removal, it’s because the DO doesn’t sustain some of the charges or thinks a removal penalty is too severe in light of the misconduct and the aggravating factors. In this case, though, I think most FELTG readers would agree the misconduct the DO sustained is egregious – and yet the DO still decided removal was not appropriate. Ditch v. FDIC, DE-0752-15-0022-I-1 (Feb, 28, 2023)(NP).

The DO sustained ten specifications of conduct unbecoming a supervisor against the appellant, a GS-13 Supervisory Examiner:

  1. The appellant had sex with a subordinate female employee, off duty, on two occasions.
  2. The appellant, the subordinate female employee, and another employee whom the appellant supervised went to a bar and drank during duty hours.
  3. While at the bar, the appellant insisted that the subordinate female employee drink a shot of whiskey, saying, “drink it, come on, don’t be a p*ssy.”
  4. The appellant and the subordinate female employee kissed while at the bar.
  5. The appellant certified the subordinate female employee’s timesheet for that day as working her regular 8-hour shift, instead of accounting for the time she spent with him at the bar.
  6. Despite the subordinate female employee advising the appellant she was only interested in a professional relationship, on two occasions while they both were on duty, the appellant expressed his continued romantic feelings to her.
  7. The next day, the appellant sent the subordinate female employee a text message also saying that he had feelings for her.
  8. The appellant stated he was going to find a way to reassign the subordinate female employee.
  9. Two weeks later, the appellant instructed the subordinate female employee to meet with him during duty hours, at which time he asked her if they had a chance for a personal relationship and if she had feelings for him.
  10. The appellant, during duty hours, told another subordinate employee of his romantic feelings for the subordinate female employee and that he had slept with her.

According to the case, the DO considered the Douglas factors and found “the appellant’s misconduct very serious as it caused ‘significant disruption to the efficiency of the Denver’ office, particularly because as a supervisor the appellant was entrusted with significant responsibilities, including acting as a role model, demonstrating good judgment, developing members of his team, fostering a positive workplace culture, and promoting teamwork.” Id. at 10.

But the DO also found significant mitigating factors, including that the appellant had “no past disciplinary record, he had 25 years of service, he got along with fellow workers, he was dependable, and, due to his 25 years of satisfactory performance as a Bank Examiner, she believed that he had the ability to perform in that position.” Id.

If you’re like me, you might look at these facts and think the DO got it wrong, and that her view of holding a supervisor to a higher standard is different than yours. But if you, like me, are an advisor to supervisors in agency actions, then you also know that, according to 5 CFR § 752 (and most likely, your agency’s policy), it’s the supervisors and managers who make these decisions. Your role is limited to providing advice on legality and options, leaving the decision up to the DO. The Board found the penalty to be within the bounds of reasonableness and upheld the demotion.

I won’t get on a soapbox here, but I would be remiss if I didn’t mention the potential liability for a finding of a hostile work environment in this case if the suspension did not promptly correct this offensive behavior, but that’s a different article for a different day.

For more on this topic, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our brand-new five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. Hopkins@FELTG.com

The Board Saves the Deciding Official; Agency Prevails Despite DO Mistakes

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By Deborah J. Hopkins, May 16, 2023

As we work our way through all the cases coming out of MSPB’s backlog, some catch our attention more than others, including Lott v. Army, SF-0752-16-0490-I-1 (Apr. 10, 2023)(NP).

In this decision, the material facts were not in dispute. The appellant suspected that her husband was having an affair with a soldier in his unit. She improperly accessed agency databases containing Personally Identifiable Information (PII) to track down information on the soldier. She then passed along the PII to a colleague and asked the colleague to investigate whether the affair was occurring.

After a falling out with the appellant, the colleague reported the appellant’s conduct in accessing the PII. The agency investigated and removed the appellant for “unacceptable and inappropriate conduct from an HR employee.”

The Board upheld the appellant’s removal despite the Deciding Official making multiple mistakes:

  1. The DO inappropriately held the appellant to a higher standard based on perceived fiduciary responsibility. At the hearing, the DO “testified that she believed the appellant held fiduciary responsibilities, despite not being entrusted with anything related to the agency’s finances, by virtue of her access to employees’ personal information.” The Board clarified that fiduciary responsibilities under the Douglas factors only apply to an employee who has access or responsibility to an agency’s finances in some capacity – not PII.
  2. The DO wrongly concluded the agency’s Criminal Investigation Command (CID) determined the appellant had committed a crime. Both the PO and DO relied on information that CID determined the appellant committed a criminal offense. In reality, CID only found that it had probable cause to believe the appellant committed crime but did not have enough evidence to actually prosecute. Therefore, it was error to consider the appellant “actually committed” a criminal
  3. The DO improperly found the appellant’s remorsefulness was not mitigating because the appellant argued that similarly situated employees were not similarly disciplined. Among her defenses, the appellant attempted to blame the coworker who printed out the PII, as well as the colleague who took the envelope of PII to look into the information. According to the Board, “it is generally inappropriate to use an employee’s attempts to defend herself in disciplinary proceedings as an aggravating factor or an indication that she lacked remorse.” While the AJ found the DO did not view the appellant’s “finger pointing” as an aggravating factor but instead merely viewed it as a factor relevant to determining the degree of mitigation to warrant her remorsefulness, the Board disagreed and found “that the deciding official inappropriately viewed the appellant’s attempt to defend herself as an aggravating factor.”
  4. The DO failed to give considerable mitigating weight to the appellant’s mental health conditions. The appellant asserted that, at the time of her misconduct, she was “extremely distressed” and dealing with depression and insomnia, and that she made a “rash and impractical decision” as a result. The Board found that this medical condition could have played a part in the charged conduct, and that the DO did not give it considerable weight as a mitigating factor.

Those four mistakes aside, the Board also held that removal was within the bounds of reasonableness. Because the nature and seriousness of the offense is the most important Douglas factor, the Board agreed with the AJ who “noted the deciding official’s testimony that she considered the appellant’s misconduct to be a serious offense that went to the core of her duties as an HR employee.”

In addition, the “appellant herself testified that, as an HR employee, she was responsible for protecting PII.”

The Board also identified several mitigating factors:

  • The appellant had 15 years of Federal service.
  • She consistently received the highest performance ratings.
  • She had never been disciplined.
  • Her depression may have played a part in the misconduct.
  • Difficulties in her marriage and personal life played a central role in her decision to engage in the misconduct.
  • She expressed remorse for the misconduct.

In addition, based in part upon demeanor evidence, the Board deferred to the AJ’s credibility assessment “that the appellant could not be trusted to maintain her professional judgment in the event she again suffered difficulties in her personal life.”

Therefore, the Board upheld the appellant’s removal despite the mitigating factors and the error made by the PO and DO.

For more on drafting legally sufficient disciplinary charges and making defensible penalty determinations, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. Hopkins@FELTG.com

Applicant Failed Polygraph, But Agency Failed to Provide EEO Process Info

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By Deborah J. Hopkins, May 16, 2023

A new case from the EEOC reminds us it’s important to notify applicants about the EEO process. Lela B. v. DHS/USSS, EEOC Appeal No. 2023000348 (Apr. 20, 2023).

The complainant applied for a Uniformed Division Officer position at the U.S. Secret Service. As is mandatory for such a position, she was required to undergo a polygraph examination, which she failed on Nov. 8, 2021, “based on an inquiry regarding illegal drugs.” She was then notified she was no longer being considered for the position.

She contacted an EEO counselor on April 22, 2022. After an unsuccessful attempt at informal resolution, she filed a formal EEO complaint on June 7, 2022, alleging the agency discriminated on the bases of race (African American) and sex (female) when:

  1. On Nov. 8, 2021, the two agents who conducted the complainant’s polygraph hindered her from obtaining a job in her career field through coercion and deceitful tactics during her test that rendered a false result.
  2. On Nov. 8, 2021, the two agents who conducted Complainant’s polygraph coerced her into writing a false statement following her polygraph.
  3. The Assistant to the Special Agent in Charge released false information to a subsequent potential employer, a local Sheriff’s Office, regarding selling illegal drugs. Complainant stated, on April 21, 2022, the Sheriff’s Office informed her via email that she had “permanent disqualifiers” from employment with them, and suggested she resolve the matter with the agency.

Unsurprisingly, the agency dismissed claims (1) and (2) for untimely EEO contact, as the complainant contacted the EEO counselor months after the 45-day time limit. See 29 C.F.R. § 1614.105(a)(1). The agency also dismissed claim (3) for failure to state a claim.

The EEOC was compelled by the complainant’s argument she was not aware of the 45-day statutory timeframe because she was merely an applicant and not an employee, and “there is no evidence that she was aware of the 45-day time frame through training, posters and other information.”

Regarding claim 3, the EEOC found the agency erred in dismissing the claim, and that “the alleged actions render Complainant aggrieved” because she “alleged that the Agency manipulated the polygraph results and provided a negative reference to her potential employer because she is an African American woman.”

As a result, the EEOC remanded the case back to the agency. Properly accepting claims will save your agency countless time and resources over a remand like this  – and FELTG can help. In October, we’re holding the virtual training Get it Right the First Time: Accepting, Dismissing and Framing EEO Claims – but we can bring this to your agency sooner if you have any interest. Just let us know. Hopkins@FELTG.com

 

Can an Agency Constrain Official Time for EEO Complainants?

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By Deborah J. Hopkins, April 17, 2023

A few years ago, a client asked me what to do in this scenario: The employee did not show up to work for two weeks and did not respond to her supervisor’s phone calls, text messages, or emails. On the day the employee returned to work, the supervisor asked the employee where she had been. The employee said she had “been taking official time for my EEO complaints.”

EEOC’s regs at 29 CFR § 1614.605 establish that if the complainant “is an employee of the agency, she is entitled to a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information … The agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer.” [bold added]

There has been much litigation over what amount of official time is considered reasonable, and also over how much control an agency has over the complainant’s use of official time. EEOC recently addressed official time in Aline A. v. USDA/ARS, EEOC Appeal No. 2022003111 (Mar. 8, 2023). The case discusses EEOC’s long-held position that there’s not a set amount of official time designated for an EEO complaint. Also, the number of hours to which a complainant is entitled will vary based on factors including the complexity of the complaint, the agency’s mission, and the agency’s need to have its employees available to perform their normal duties on a regular basis.

Regardless of the details surrounding the complaint, “the Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed, so an agency may restrict the overall hours of official time afforded.” Referring to my client’s scenario above, we know reasonable does not include an AWOL employee claiming 80 hours after the fact, without making a request.

In Aline A., the complainant alleged the agency violated the law by denying her a reasonable amount of official time for her EEO complaint when:

  • On Aug. 5, 2019, she was denied six hours of overtime pay, for official time.
  • On Oct. 25, 2019, she requested three hours of official time and was denied.
  • On Dec. 19, 2019, management denied her sufficient time (six hours) to meet with her designated representative regarding her pending EEO complaint.

The agency’s position was that it did not violate the complainant’s right to official time because:

  • On Aug. 5, 2019, the supervisor stated the complainant claimed six hours of overtime for her EEO activity (premium pay) without pre-approval. The supervisor disapproved the overtime pay but provided the complainant with six hours of credit time.
  • On Oct. 25, 2019, the supervisor had already scheduled the complainant’s performance evaluation. He denied her request due to the conflict but approved three hours of official time for Oct. 30, 2019. (The complainant was scheduled for leave on Oct. 28 and 29, 2019.)
  • On Dec. 19, 2019, the complainant’s request for six hours of official time included four hours of driving and two hours for the meeting with the representative. The agency did not think it was reasonable to provide official time for all the travel, but still granted four hours of official time, to include one leg of travel.

The Commission sided with the agency on all three official time claims and found the complainant “did not establish that the Agency improperly denied her official time for her EEO activity.” Specifically on the Oct. 25 denial, the commission ruled: “[T]he Agency reasonably delayed Complainant’s request for three hours of official time to balance her need with business reasons,” namely the performance evaluation.

Other recent cases have discussed official time including:

  • Complainants are not entitled to unlimited officialEEO time, just because they request it. Jeanie G. v. USDA/ARS, EEOC No. 2021003820 (Feb. 28, 2023).
  • A supervisor requiring a complainant to obtain approval prior to every official timerequest does not violate 29 CFR Part 1614. Angela R. v. DOD/NGA, EEOC No. 2022002317 (Feb. 21, 2023).
  • A supervisor requiring advance requests of EEO meetings related to official time, when the supervisor does not ask details about where the complainant was specifically going and with whom the complainant was meeting, does not violate 29 CFR Part 1614. Bryan F. v. Army, EEOC No. 2022002206 (Feb. 16, 2023).

Hope this helps. Hopkins@FELTG.com

Is Three-strikes Progressive Discipline a Thing of the Past?

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By Deborah J. Hopkins, March 15, 2023

A recent MSPB nonprecedential decision has me scratching my head, as the outcome appears to go against over 40 years of case precedent. I wrote about the facts of the case in a previous newsletter article, so if you’d like the specific details please check that out. A quick recap though: The agency removed an employee based on three charges: (1) lack of candor; (2) disregard of directive; and (3) unauthorized absence. The MSPB only sustained charge 2, disregard of directive, because the appellant did not follow appropriate leave request procedures.

Because the agency only proved one of three charges, the Board mitigated the removal to a 7-day suspension. That may not sound odd to you, but here’s where I’m stuck: if you look at Board’s view of the Douglas factors analysis on pages 9-10 in the case, the appellant “was previously reprimanded and served a 3-day suspension for failure to follow the agency’s leave procedures.”

A principle that has been around for longer than the Civil Service Reform Act, progressive discipline stands for the proposition that for minor misconduct, Federal employees are generally given a “three strikes and you’re out” opportunity to learn from conduct-based mistakes. Progressive discipline, which we’ll discuss in more detail during MSPB Law Week March 27-31, typically looks like this:

  • First offense of misconduct: Reprimand
  • Second offense of misconduct: Suspension of 1-14 calendar days
  • Third offense of misconduct: Removal

Progressive discipline is not mandatory, most recently confirmed during OPM’s discussion of its updated regulations at 5 CFR §752.202.

There are times agencies remove an employee for a first offense (see, e.g., Pinegar v. FEC, 2007 MSPB 140), and there are times they give more than three strikes – sometimes a lot more (see, e.g., Blank v. Army, 85 MSPR 443 (2000)). And that is absolutely up to the agency. But past discipline has almost always been a significant aggravating factor, and for over four decades the Board has generally upheld removals for a third offense of any misconduct. See, e.g., Grubb v. DOI, 96 MSPR 361 (2004).

If the Board were to follow its own precedent in the current case, the agency should have received penalty deference and the Board should have upheld the removal. Instead, the Board found other factors to be mitigating:

  • The appellant worked for the agency for six years and did not have any performance problems during that time.
  • The appellant was not a supervisor.
  • The appellant contacted the agency “to inform his supervisor that he would be absent, albeit not in the way in which he was instructed.”
  • The appellant claimed he and his wife were having relationship troubles.
  • The appellant claimed he was experiencing pain because of a disability.
  • The agency’s table of penalties recommended a “5-day suspension to removal for a third offense of failure to request leave according to established procedures.”

If removal was appropriate according to the table of penalties, why did the Board mitigate?

I will admit, proving only one specification of one charge does make one consider whether the penalty is unreasonable; in essence the agency only proved a third of its case. That said, because of the weight past discipline usually holds, I am a little surprised the Board did not defer to the agency’s penalty. I wonder if the outcome would have been different if there was language in the decision letter that any charge standing alone would warrant removal? See, e.g., Sheiman v. Treasury, SF-0752-15-0372-I-2 (May 24, 2022)(NP).

This is one of the few cases under this Board where a Member dissented from the majority; Tristan Leavitt noted a dissent but without opinion, so it’s anyone’s guess as to why. Perhaps it’s for the very reason outlined above. Ortiz v. USAF, DE-0752-22-0062-I-1 (Jan. 25, 2023)(NP).

At first I was thinking this might be an outlier, but two subsequent cases have seen the same mitigation despite of past progressive discipline: Spivey v. Treasury (IRS), CH-0752-16-0318-I-1 (Feb. 15, 2023 )(NP) and Williams v. HHS, DC-0752-16-0558-I-1 (Feb. 25, 2023)(NP). Read on for Bill Wiley’s take on these cases and on why agencies discipline at all. Hopkins@FELTG.com

Three Costly Lessons on Reasonable Accommodation

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By Deborah J. Hopkins, March 6, 2023

There are always two sides to a reasonable accommodation (RA) case: the agency’s side and the complainant’s side. While a lot of our training programs at FELTG focus on avoiding agency liability, there’s another aspect to this that’s important to mention, and that’s doing the right thing for the employee who requests accommodation. We see too many instances where an agency handles an RA request improperly, and it exacerbates the employee’s medical condition, causing further harm.

The goal should always be to process RA requests according to the law. One way to ensure that happens is to look at cases to see what agencies did correctly, and also cases where they could have handled requests better. Today I want to highlight three important lessons from fairly recent RA cases.

1. If an accommodation is working, don’t change it. Every now and then we see a scenario where an employee is on a long-term RA, and a new supervisor comes in and revokes the RA, thus causing problems for the complainant and the agency. Once such case involved a technical editor who suffered from irritable bowel syndrome. She was on 100 percent telework with a flexible schedule for several years. She had been performing her duties, preparing manuscripts and various administrative oversight functions, at an acceptable level throughout this time.

A new supervisor took over the department and cancelled all existing telework agreements, including the complainant’s. The complainant notified the supervisor she needed telework to accommodate her disability and she requested the RA be granted back to her. The agency refused and, among other things, claimed the complainant’s job was not telework eligible, despite the fact that she’d been performing the work from home for several years. As a result of the accommodation denial, the complainant stopped coming to work. The EEOC found that the agency failed to provide an RA. It ordered the agency to offer the complainant a retroactive reinstatement, with appropriate back pay and benefits, and to investigate the complainant’s claim for damages. Sandra A. v. Navy, EEOC Appeal No. 2021002132 (Sept. 16, 2021), request for recon. denied, EEOC Request No. 202200276 (Mar. 7, 2022).

2. Don’t skip the interactive process. In this case, the complainant was a food inspector who developed asthma. The chemical sprays used to wash animal carcasses in his work area exacerbated his condition, so he provided a medical note to inform his agency of the issue. Rather than consider the medical note as an RA request, the agency considered the note as evidence the complainant could not work in his designated area and sent him home. The EEOC found this particular conclusion to be rational at the time.

From home, the complainant again requested an RA – specifically, the use of a certain type of respirator his physician recommended that would filter out the workplace chemicals that irritated his respiratory system. The agency denied this request, claiming “there is no evidence that demonstrates significant inhalation exposure to the employees at the establishment.” The complainant continued to make requests. After a few weeks, the agency informed him that he could use a different type of respirator than the one his doctor had ordered. However, this respirator did not filter out the chemicals that caused the complainant respiratory distress, so he again requested to use the respirator the physician recommended. He was denied because, according to the agency, it “would be an undue burden because it is a safety hazard while performing his animal slaughter duties as well as concerns with complying with OSHA’s regulatory requirements.”

EEOC noted that by requesting use of the respirator, the complainant requested the interactive process: “This informal, interactive process should be a problem-solving approach that includes: an analysis of the job to determine its essential functions; consultations with the complainant; an assessment of the effectiveness of potential accommodations; and consideration of the complainant’s preferences. 29 C.F.R. pt.1630, app. § 1630.9.”

The EEOC held the agency failed to engage in the interactive process because it did not “participate in this necessary exchange of information, which resulted in the improper denial of a reasonable accommodation.” The EEOC ordered the agency to consider the complainant’s request for compensatory damages. Tyson A. v. USDA, EEOC Appeal No. 2020000972 (Aug. 16, 2021).

3. After receiving sufficient medical documentation, don’t ask for more. The complainant in this case was injured at work. As a result, she required surgery and reasonable accommodations. She provided sufficient medical documentation to substantiate her FMLA and RA requests, but the supervisor still contacted the complainant’s medical provider without the complainant’s permission to make further inquiries about the complainant’s medical restrictions.

The supervisor was unable to explain why she needed additional medical documentation, so the EEOC found the agency committed a per se violation of the Rehabilitation Act by conducting an unlawful disability-related inquiry. EEOC remanded the case for a back pay award and a compensatory damages assessment. Eleni M. v. Army, EEOC Appeal N. 2020001903 (Sept. 7, 2021), request for recon. denied, EEOC Request No. 2021005193 (Feb. 22, 2022).

We’ll be addressing these issues and more during EEOC Law Week next week, on June 14 in Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, and as part of the updated Reasonable Accommodation in the Federal Workplace in 2023 webinar series, beginning July 20. Hopkins@FELTG.com

Masks and Tests: Here Come the COVID Discipline Cases

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By Deborah J. Hopkins, February 14, 2023

It took less than a year of a quorum at the MSPB before we got our first two cases involving agency discipline related to COVID-19 – consequently, both from the Air Force. In one case, the agency prevailed. In the other, the Board mitigated the appellant’s removal to a seven-day suspension. Let’s take a look.

Opposed to Wearing a Mask

The appellant was a GS-06 pharmacy technician whose job duties included filling and refilling prescriptions, entering orders into a medical database, checking medication stock, inspecting the pharmacy, and consulting with patients and physicians. In March 2020, the agency imposed a mask mandate for anyone entering the medical center, including employees. The agency stationed personnel at the building’s entry to enforce its mask policy, and to screen would-be entrants for fever. Once inside the facility, employees were permitted to remove their masks if they were able to keep physically distanced from other people.

In September 2020, the appellant was stopped twice at the entryway for not wearing a mask. The appellant subsequently informed agency officials she had “a sincerely held religious belief that precluded her from wearing a mask or other face covering.” In November 2020, the agency imposed a more stringent mask policy, which required individuals in the building to be masked at all times unless they were alone in a room and behind closed doors. The next day, the appellant was told that if she did not wear a face covering, she would not be able to enter the building and report for duty.

The appellant contacted the EEO office and “began to absent herself from work in order to avoid the mask requirement.” She exhausted her leave and remained absent from work for several weeks. In January 2021, the agency proposed her removal for (1) unauthorized absence and (2) failure to comply with established leave procedures. The removal was implemented in April 2021.

In her appeal of the removal, the appellant alleged affirmative defenses of religious discrimination and EEO reprisal. The AJ held – and the Board affirmed – the appellant did not prove her affirmative defenses: “[A]lthough the appellant’s religious beliefs, her refusal to wear a mask, and the absences underlying her removal are linked, a finding that the appellant was removed for either unauthorized absences or failure to follow masking policy does not entail a finding that the removal was motivated by the appellant’s religious beliefs.”

The case includes a discussion of the agency’s exhaustive efforts to consider a religious accommodation, and it’s worth a read if you have any role in processing (or defending against) religious accommodation requests. In the end the Board sustained the removal. Davis v. USAF, DA-0752-21-0227-I-1 (Feb. 2, 2023)(NP).

Fabricating Wife’s COVID-19 Diagnosis

The appellant in this case was a WG-10 composite/plastic fabricator. On April 28, 2021, he reported to the agency his daughter was exhibiting symptoms of COVID-19. The next day, he reported his daughter had tested positive for COVID-19, so the agency ordered him to stay home for 14 days.

The day before he was scheduled to return to work, he reported that his wife had just tested positive for COVID-19. He was ordered to stay home an additional 14 days. He finally returned to work on May 27, and “later submitted to the agency photos of two COVID-19 home testing kits, appearing to have positive results, with his wife and daughter’s names written on the test cards.”

On June 10, the appellant’s friend called the agency and requested a day of LWOP for the appellant because he “ was incoherent due to medications he was taking.” The agency, concerned for the appellant, requested the police perform a wellness check.

The police found the appellant wasn’t home. After the wellness check, the appellant’s second-level supervisor called the appellant’s wife to inquire further. The appellant’s wife stated her daughter had an exposure to COVID-19 at school but that “[n]o other Covid incidents happened,” which contradicted the appellant’s version of April events.

Over the next several days, the appellant was absent from work multiple times. He provided a note from a chiropractor to cover the absences. His supervisor, suspicious about the authenticity of the notes, called the medical office to confirm. The supervisor learned the appellant had not seen the chiropractor on at least two dates for which he provided medical notes. Also, he was not given a note excusing him from work.

As a result, the agency proposed removal, with three charges: (1) lack of candor; (2) disregard of directive; and (3) unauthorized absence. The deciding official sustained all three charges. The appellant filed a Board appeal but did not request a hearing, so the AJ issued an initial decision based on the written record, sustaining charges 1 and 2 but not charge 3. The AJ also denied the affirmative defenses of disability discrimination under the theories of disparate treatment and failure to accommodate. The AJ upheld the removal.

On PFR, the Board scrutinized the credibility of the evidence and the witness testimony. The Board held the agency did not prove Lack of Candor because, among other things:

  • The statements about COVID-19 made by the appellant’s wife were recounted secondhand by agency officials.
  • When the appellant’s wife spoke to agency officials, she was angry about being asked for personal medical information.
  • While some of the appellant’s statements are not entirely consistent, “we find that as a whole, the agency has presented insufficient evidence to prove by preponderant evidence that the appellant’s statements regarding his wife and daughter testing positive for COVID-19 were untruthful.”
  • While the appellant has admitted he added an additional date to the medical note, he claimed his doctor authorized him to do so.
  • There was conflicting evidence within the chiropractor’s office about whether the appellant was seen on a particular date.

Because all three specifications failed, the agency did not prove Lack of Candor. The Board held the agency proved one specification of Disregard of Directive related to the appellant’s improper leave request procedures.

Because the agency failed to prove Charges 1 and 3 and only proved one specification of Charge 2, the Board found removal to be unreasonable and mitigated the penalty to a 7-day suspension.

The Board’s brief Douglas analysis relied on mitigating factors, including that “the appellant made contact with the agency to inform his supervisor that he would be absent, albeit not in the way in which he was instructed” and that “[the appellant] and his wife were having relationship troubles.” It gives insight into the Board’s reasoning, so it’s worth a look. Ortiz v. USAF, DE-0752-22-0062-I-1 (Jan. 25, 2023)(NP).

While these cases are nonprecedential, they include a number of important takeaways and lessons about the current Board, which we’ll discuss in more detail next month during MSPB Law Week. Join us March 27-31 on Zoom and we’ll fill you in on everything you need to know. Hopkins@FELTG.com

Is This a New Type of Tangible Employment Action?

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By Deborah J. Hopkins, February 14, 2023

When we discuss tangible employment actions in our EEO classes, we usually focus on facts in existing case law: a supervisor takes a pay-related action (such as a suspension, or non-selections) against an employee because of the employee’s response to the supervisor’s unwelcome sexual advances.

The Supreme Court has ruled that a tangible employment action constitutes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

A fairly new case from EEOC has seemingly broadened the type of action considered a “tangible employment action” in Federal agencies and has also included actions motivated not by an employee’s responses to sexual overtures but by a supervisor’s distaste for a complainant because of the complainant’s sexual orientation. In this case, the complainant accused his supervisor of creating a hostile work environment based on sex, citing several examples over a span of four years. The complainant claimed his supervisor:

  • Made negative comments about the complainant’s sexual orientation in a chat message with a coworker.
  • Was condescending to the complainant in emails.
  • Verbally attacked the complainant about his breaks and lunch periods.
  • Informed the complainant that he could only use certain doors when arriving to and leaving the workplace, making the door closest to the supervisor’s workstation off-limits.
  • Told the complainant that he was no longer allowed to “loiter” in the parking lot after work hours.
  • Required the complainant to inform her when he was coming and going from the workplace, despite a maxi-flex schedule.
  • Excluded the complainant from office discussions in an effort to get him to resign.

The agency asserted it was not liable because it exercised reasonable care to prevent and promptly correct the harassing behavior when:

  • It followed its internal workplace harassment policy once the complainant made a claim of harassment.
  • It allowed the complainant to maximize telework in order to avoid the supervisor while the agency worked to resolve the situation.
  • It eventually transferred the supervisor to a lower-graded position within the agency.

In its FAD, the agency found the supervisor created a hostile work environment but argued there was no agency liability because the “[s]upervisor’s actions did not result in a tangible employment action.”

On appeal, EEOC disagreed and found the agency was liable:

Despite this approved [maxi-flex] work schedule, Supervisor made it clear to Complainant that he was only allowed strict break and lunch times. Additionally, despite his maxi-flex schedule, Complainant was informed that he was to notify Supervisor any time that he was leaving his workspace. Lastly, Supervisor acknowledged that she informed Complainant that he was only allowed to use certain doors for exiting and entering. We find these actions constitute tangible employment actions as they altered the terms and conditions of Complainant’s employment. [bold added]

Nathanial P. v. NPS, EEOC Appeal No. 2021000613 (Jan. 13, 2022).

We discuss the ever-changing world of hostile work environment harassment as part of our comprehensive EEOC Law Week, next held March 13-17. Join us for the day or the week; we’ll be happy to have you there. Hopkins@FELTG.com