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Last Chance Agreement Violation With a Side of Fries

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By Deborah J. Hopkins, January 30, 2023

A last chance agreement (LCA) is an alternative disciplinary option for an agency when an employee has engaged in misconduct that warrants a removal, but the agency gives the employee one final opportunity to keep her job. Typically, the LCA is offered after the employee’s response to the proposal and before the decision is due. An LCA generally includes the employee’s promise to follow all the agency’s rules and maintain successful performance for two years. In exchange, the agency agrees to purge the proposed removal from the file upon successful completion of the LCA. If the employee violates the agreement at any time within the two-year period, the agency can remove the employee as quickly as the day of the violation without requiring another proposal. (This is all written into the terms which we’ll discuss in more detail during MSPB Law Week March 27-31).

An LCA can be a marvelous tool for agencies when an employee engages in removable misconduct, but the agency wishes to give the employee one more chance to show she deserves to keep her job. There are multiple reasons why an agency would employ an LCA:

  • The employee engaged in misconduct the agency cannot ignore, but the employee is truly remorseful
  • The employee engaged in substance misuse and agrees to get treatment if the agency gives her another chance
  • The employee has a unique skillset and would be difficult to replace
  • The job exists in a geographic area where employees are difficult to recruit and a vacant position would be highly problematic for the agency
  • The supervisor has reason to believe the employee has learned her lesson

A recent MSPB case, Bollin v. VA, DA-3443-16-0106-I-2 (Jan. 19, 2023)(NP), involved a VA police officer whose removal was proposed based on two charges:

1.    Failure to follow a direct order, and

2.    Failure to follow supervisory instruction.

The deciding official agreed the evidence and penalty assessment supported removal. Prior to the effective date of the removal, the agency and appellant entered into an LCA. Under the terms of the LCA, “the agency agreed to hold the removal action in abeyance for a 2-year period … and purge the removal and agreement from the appellant’s agency file upon completion of the 2-year period … In exchange, the appellant served a 14-day suspension and agreed that, should he ‘engage[] in any substantiated misconduct’ or violate any other term of the agreement within the 2-year period, then the agency would reinstate the removal action and immediately remove him from his position.” Id. at 2.

Several months later, the appellant violated the LCA when he “was 20 minutes late in departing for firearms training and stopped at a McDonald’s drive-thru to purchase food on the way to the training, which constituted an unreasonable delay in carrying out instructions and an unauthorized use of a Government vehicle.” Id. at 3. The agency removed him for these two acts of misconduct. While seemingly minor, the conduct triggered the violation of the LCA.

As these cases go, the appellant filed an appeal to MSPB. The Board found no jurisdiction because the appellant violated the agreement, which had included a provision that he waived his MSPB appeal rights over the initial action. So in the end, Officer Bollin stayed fired.

Other types of misconduct that the Board has agreed violate an LCA include:

  • Referring to a co-worker as a “kiss-ass” in a group email (Reveles v. DHS, DA-0752-08-0306-I-1 (May 30, 2008)(ID)
  • Testing positive for alcohol and marijuana while on duty (Complainant v. USPS, EEOC No. 0120130190 (2014))
  • Possession of marijuana (Bruhn v. USDA, 2016 MSB 42)

Not every LCA violation involves French fries, but this is probably a lesson with details none of us will soon forget. Hopkins@FELTG.com

The State of the Civil Service: 2023 Edition

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By Deborah J. Hopkins, January 17, 2023

Happy new year, FELTG Nation! The previous 12 months have included several milestones and significant changes in the Federal civil service. So, I’m once again using the month of January to share some highlights about exactly where things stand in the world of Federal employment law.

MSPB

I can’t imagine a single FELTG reader doesn’t know that after a 5+-year hiatus, we again have a fully functioning Merit Systems Protection Board. The Acting Chair is Cathy Harris (the Senate still has not confirmed her as Chair, but functionally she is still in charge). The two other members are Ray Limon and Tristan Leavitt.

In 2022, the Board members inherited a backlog of more than 3,600 cases. At latest count, somewhere around 700-800 decisions had been issued, 46 precedential and the rest non-precedential, while new Petitions for Review (PFRs) continue to be filed. So, the number of PFRs awaiting Board adjudication remains well above 3,000.

Two of the most significant new decisions include:

  • Singh v. USPS, 2022 MSPB 15 (May 31, 2022), which clarified who is a comparator for the purposes of Douglas factor 6, and
  • Lee v. VA, 2022 MSPB 11 (May 12, 2022), which clarified requirements for demonstrating unacceptable performance before a PIP (as explained in the March 2021 Federal Circuit decision Santos v. NASA).

The Board is once again able to conduct research. It has identified several topics on its 2022-2026 agenda, including Aligning Workplace Flexibilities with the Future of Work, Correcting Employee Performance and Conduct, and Understanding the Roles of Teams and Team Leaders. We can’t wait to see what they learn after a half-decade research hiatus.

For a case law update on the most consequential decisions over the past few months, join us Feb. 14 for Back on Board: Keeping Up with the New MSPB. For a full class on all things Board-related, register for MSPB Law Week, which will be held March 27 – 31.

EEOC

The Equal Employment Opportunity Commission, which has jurisdiction inside and outside the Federal sector, continues to promote President Biden’s Diversity, Equity, Inclusion and Accessibility (DEIA) agenda. Areas of focus include raising awareness about the harassment, discrimination, and violence against transgender people, updates to COVID-19 issues, changes in Reasonable Accommodations in a post-COVID world, and much more.

To help promote the EEOC’s mission, FELTG is hosting a 32-hour EEO Counselor training later this month and EEOC Law Week in March. And be sure to check out Dan Gephart’s recent interview with EEOC Chief AJ Regina Stephens about the agency’s priorities in 2023, her thoughts on EEOC-ordered training, and more.

FLRA

The Federal Labor Relations Authority has gone from a full complement of three members down to a quorum of two in 2023, as Chair Ernest Dubester’s holdover term expired at the end of the last Congress. The new Chair is a familiar face to many, former MSPB Chair Susan Tsui Grundmann, who was confirmed to the FLRA several months back and joins previous Chair and now-member Colleen Duffy Kiko.

We still await confirmation of a General Counsel, a position that has been vacant for several years. Charlotte Dye is currently in Acting General Counsel capacity, where she may remain for a maximum of 10 months, unless President Biden nominates, and the Senate confirms, a General Counsel before then. With the two current members from opposing philosophies on several areas of labor-management relations and a nominee for the third member yet to be made by the President, we’ll all wait and see how the FLRA is impacted by this change in dynamics.

For a jump start on what you can expect, join former FLRA employee and current FELTG instructor Ann Boehm on Feb. 2 for the 60-minute What Happens Now at the FLRA?

A significant change within the agency occurred last summer when the FLRA and the Union of Authority Employees (the exclusive representative of the FLRA’s bargaining-unit employees) announced they were re-establishing the FLRA’s Labor-Management Forum.

There have also been some important cases altering FLRA precedent, and a recent decision allowing an agency to discipline a union official for exceeding the bounds of robust debate – a topic of discussion in the Jan. 19 training Drawing the Line: Union Representation or Misconduct. Or join us for FLRA Law Week May 1-5, where the entire world of Federal Labor Relations will be discussed in depth. We can promise the 2023 class will be different than the 2022 version, as we keep up with the changes.

OPM Regs, Return to the Work Plans

In December, the Office of Personnel Management issued new regulations on 5 CFR Parts 315, 432 and 752, as a result of Executive Order 14003. If you missed these important updates, check out our 60-minute recording of the significant takeaways.

Among other things, OPM’s 2022 Federal Employee Viewpoint Survey (FEVS) focused on the current state of telework in agencies. After a largely abandoned attempt to return employees to the physical workplace in 2021 – thanks to the Delta and Omicron COVID-19 variants – 2022 was the year that saw increases in office attendance around the country. A full 56 percent of the Federal workforce reported that they telework one or more days per week, and 36 percent of employees reported that they were required to be physically present at their worksite every single day.

There are varying philosophies about the need for in-person collaboration as balanced against the flexibility and productivity that full-time telework provides. Return to the physical workplace has been a key point of negotiation between agencies and unions – and we don’t expect that to change any time soon. As a result, most FELTG’s classes have incorporated strategies and best practices for managing employee issues in a hybrid work environment, whether it’s harassment or employee PIPs, and everything else in between.

Closing Thoughts

I believe 2023 is looking brighter, with a Federal budget approved through September, more people comfortable traveling and meeting in person, and no major national elections (is anyone else thrilled about this one?).

Stick with FELTG this year and we’ll keep you posted on all the happenings. Hopkins@FELTG.com

In-Office Thursdays Only? Some Employees Really Do Need Specific Telework Days

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By Deborah J. Hopkins, January 17, 2023

If your agency has an employee who, as a reasonable accommodation (RA), teleworks three days a week, and reports to the office one day a week, you might think the agency has the right to choose which day the employee reports to the office. And, depending on the scenario, you might be right. But you might not.

Each RA case requires an individualized analysis. Failure to follow the process could result in a finding against the agency – plus potential exacerbation of the employee’s medical conditions.

In a recent EEOC decision, the complainant, who had fibromyalgia, fibromyoma, chronic pain, cancer in remission, and arthritis, received the below accommodations:

  • A maxiflex work schedule;
  • Three days of telework per week (Monday, Tuesday, and Wednesday);
  • A requirement to report to the office on Thursdays; and
  • Fridays off.

On Nov. 21, 2019, the complainant’s supervisor met with her and with the Reasonable Accommodation Coordinator (RAC) about revising the existing RA to:

  • A compressed work schedule (10-hour days Monday – Thursday);
  • Three days of telework per week (Monday, Tuesday, and Thursday);
  • A requirement to report to the office on Wednesdays; and
  • Fridays off.

The complainant objected, explaining the change in schedule was not compatible with her medical limitations. The RAC sought additional medical documentation to support the complainant’s claim that a Thursday “in-office” day was part of her medical treatment plan.

According to the case, “The RAC’s questions included: ‘Is [Complainant] capable of reporting to the office on Wednesdays? If not, provide the specific medical need (with an explanation) that does not allow her to report to the office on this day.’”

The complainant’s physician responded on Dec. 5, 2019, informing the agency the complainant’s medical treatment plan included telework three days a week with Thursday, specifically, as her weekly “in-office” day:

The letter explained why a Thursday “in-office” day benefitted complainant in terms of managing the symptoms of her disabilities and explained how a change to her “in-office day would negatively impact her medi[c]al treatment plan.” The RAC deemed the reference to a medical treatment plan to be too vague, so around Dec. 26, 2019, the RAC sent the complainant’s physician another information request to include a “specific medical reason/need (i.e. include the specific type of medical treatment in your medical plan) that prevents [Complainant] from reporting to the office on Wednesdays.”

On Jan. 20, 2020, the complainant’s physician again responded, informing the agency the treatment plan included medication, therapy, and mandatory extended continuous periods of rest on Fridays, Saturdays, and Sundays, in order to mitigate the complainant’s symptoms.

The documentation further stated the change to Wednesdays “is not advisable” and “would be detrimental to [Complainant’s] treatment and health” because if the schedule changed the complainant would:

  • Experience medical challenges managing the symptom[s] and side effects of her medication;
  • Not [be] able to have the extended period of rest without missing work;
  • Encounter negative impacts managing her pain;
  • Experience intensification in her sleep disturbance, fatigue; and
  • See increases in additional side effects from her medication.

The RAC still deemed the physician’s response insufficient, so she again sent the Dec. 26 request for information about the specific type of treatment that would prevent the complainant from reporting on Wednesdays; neither the physician nor the complainant provided further documentation.

On Mar. 9, 2020, the complainant received a notice from her supervisor, informing her that her existing RA had been modified and that her in-office day would be Wednesdays beginning Mar. 16. The complainant requested the agency reconsider but was denied, so she appealed to the EEOC.

On appeal, the EEOC found that the Dec. 5, 2019, response from the physician “was sufficient to support Complainant maintaining Thursday as her ‘in office’ day” because the physician provided specific rationale, stating the existing treatment plan “has decreased the severity of [Complainant’s] symptoms, stabilized her condition and delayed progression of her medical condition,” and warned that a change in schedule would be “detrimental to her condition, mobility and treatment.”

The Commission also disagreed with the supervisor and RAC’s assessment that the medical documentation supported that the complainant could change her “in-office” day to Wednesday.

While the agency is permitted to ultimately choose an employee’s accommodation, the RA must be effective.

In this case, the Commission said that management’s insistence on moving the in-office day to Wednesday, which resulted in the complainant having to work the next day rather than rest, rendered her reasonable accommodation “far less effective.” In addition, when the supervisor and RAC changed the complainant’s work schedule from maxiflex to compressed, it became impossible for the complainant to “adjust her lunch break to use it in conjunction with her leave for medical appointments or adjust her start or end time to accommodate medical appointments,” which also rendered the accommodation less effective.

The Commission closed by stating, “By modifying Complainant’s long-held accommodations to make them less effective, we conclude the Agency violated its accommodation duties under the Rehabilitation Act.” Cheryl L. v. Treasury, EEOC Appeal No. 2021001710 (Sept. 26, 2022).

For more on this topic, join FELTG on Feb. 16 for the two-hour virtual training Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. Hopkins@FELTG.com

Due Process Lessons From Three New MSPB Cases

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By Deborah Hopkins, December 6, 2022

As we continue MSPB Law Week, I thought I’d share a few of the new Board’s decisions on appellant allegations of due process violations. From my read, the Board seems to be closely following four decades of precedent in its decisions.

Lesson 1: A refusal to extend the response period is not a due process violation.

In proposed removals and other appealable actions, appellants are entitled to a statutory minimum of 7 calendar days to respond to the deciding official (DO) under 5 U.S.C. § 7513(b)(1). In a recent case, the agency’s notice of proposed removal gave the appellant a full 14 days to submit any written or oral responses to the DO. The appellant requested an extension on this 14-day timeline, which the agency denied.

Nevertheless, the appellant sent a written response that the DO received after the 14-day window. According to the case, the DO had already decided that the removal action was warranted, yet she still considered the appellant’s late-filed response. However, it did not change her decision. At that point, because the 14 days has passed, she was under no obligation to consider the appellant’s response. However, having done so, she effectively negated his due process argument. Jones v. VA, CH-0752-15-0286-I-1 (Jul. 21, 2022)(NP).

Lesson 2: Providing fewer than 7 days to respond is not automatically a due process violation.

In this case, the agency proposed a 14-day suspension based on two charges and provided the appellant with 7 days to respond. A few days later, the agency amended the proposal notice to add a third charge and gave the appellant an additional 4 days to respond. Although the 4-day response period was fewer than the 7 days required by statute, “it was not unreasonably short.” Moreover, the DO considered the supplemental written response the appellant provided the day after the 4-day deadline. Because the appellant received notice of the action against her, an explanation of the reasons for the action, and an opportunity to present her response, there was no due process violation.

Another interesting takeaway from this case: The agency did not schedule an oral reply, and the appellant raised a harmful error affirmative defense. The Board held that appellant did not show the lack of scheduling an oral reply constituted harmful procedural error because the appellant was still provided the opportunity to present her side of the case in writing.

For those astute readers wondering how a 14-day suspension ended up before the Board in the first place, the agency split the suspension into two portions to fit around the employee’s 90-day detail to another office and, due to administrative error, the two periods of suspension combined for a total of 15 calendar days, thus constituting an appealable action. Cargile v. Army, CH-0752-14-0056-I-2, CH-752S-13-2680-I-2 (Oct. 3, 2022)(NP).

Lesson 3: Credibility matters in allegations of due process violations.

In this case, the appellant claimed her due process rights were violated on the day she received the notice of proposed removal. On that day, the DO spoke to the appellant’s former coworker and indicated that the agency had terminated the appellant. The appellant claimed the alleged conversation demonstrated that “her subsequent response to the proposed removal was meaningless, rather than meaningful.”

The agency disputed the nature of the conversation and due process claim. According to a sworn statement, the DO spoke with three individuals on the day the appellant received the proposed removal. The DO spoke to a Human Resources point of contact, the appellant’s former Engineering Division Chief, and a former subordinate of the DO who was also friends with the appellant. The DO indicated he spoke to HR about the disciplinary process and the DO’s specific responsibilities, “including those related to the appellant’s due process rights.”

A conflict arose in descriptions of the other two conversations:

  • “According to that former Engineering Division Chief, he specifically remembered asking if the appellant was fired, and the deciding official responding in the negative, instead indicating that the appellant was being given the opportunity to present her case.”
  • “According to that former subordinate of the deciding official and friend of the appellant, the deciding official called him, indicating that the appellant had been terminated earlier that day.”

After weighing the AJ’s credibility determinations, the Board agreed with the AJ that the DO’s version of events was more credible. It denied the appellant’s due process claim. Conde v. DHS, DC-0752-15-1059-I-1 (Nov. 10, 2022)(NP). Hopkins@FELTG.com

 

So, Now Putin Can Claim Whistleblower Reprisal and Get an MSPB Hearing?

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By Deborah J. Hopkins, November 28, 2022

The MSPB’s most recent precedential decision deals with a Federal contractor (Abernathy) who made a protected disclosure in 2012 when he alerted the agency’s Inspector General that agency officials had misappropriated funds. A few weeks later, Abernathy applied and was not selected for a career position within the agency, so he contacted the U.S. Office of Special Counsel, and after exhausting that potential remedy, filed an Individual Right of Action appeal at the MSPB, claiming his nonselection was in reprisal for his whistleblowing activity under 5 USC 2302(b)(8).

As you might imagine, the agency argued there was no MSPB jurisdiction because Abernathy wasn’t an employee or applicant at the time he made the disclosure; the Administrative Judge (AJ) agreed and dismissed the appeal for lack of jurisdiction.

On Petition for Review the Board, saw it differently: “[The] appellant’s disclosures are not excluded from whistleblower protection simply because he was not a Federal employee or an applicant when he made a protected disclosure,” relying on Greenup v. USDA, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), which said the statute does “not specify that the disclosure must have been made when the individual seeking protection was either an employee or an applicant for employment.” This principle was again iterated in Weed v. SSA, 113 M.S.P.R. 221, ¶¶ 8-12 (2010). Despite three nonprecedential decisions from the Federal Circuit which conflict with this reasoning, the Board chose to follow its own precedent and disregard the Federal Circuit, as its NP decisions are not binding on the Board.

In addition, the Board held, “This holding is not limited to Federal contractors, but applies to any individual who makes a whistleblowing disclosure at any time before becoming a Federal employee or applicant for employment.” Abernathy v. Army, 2022 MSPB 37 (Nov. 15, 2022). (bold added)

I was discussing this case with FELTG Founding Father Bill Wiley and he made an astute observation. “Abernathy has the potential to open up a big new world of whistleblower reprisal. A smart person (e.g., Vladimir Putin) could go public with a reasonable belief that some Federal manager has violated a law, then apply for a Federal job for which he ultimately is not selected, and THEN take advantage of the discovery procedures of his MSPB appeal to dispose all sorts of cool management officials.”

While we at FELTG aren’t sure exactly how far these protections might reach, and we hope it wouldn’t extend to someone like Putin, we can only wait to see this challenged in future litigation – perhaps the Federal Circuit will have something precedential to say one day. In the meantime, join us December 5-9, for MSPB Law Week where we’ll have a more in-depth discussion on this case plus all the new Board cases that matter most. Hopkins@FELTG.com

A New Aggravating Job Type Under Douglas Factor 2

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By Deborah J. Hopkins, November 15, 2022

A brand-new precedential MSPB decision has led me to ask FELTG readers: What charge would you draft, and what penalty would you assess, in this case? Here are some facts:

The appellant, a GS-9 Supervisory HR specialist, made several comments and engaged in conduct toward two subordinates over an 18-month period which made them uncomfortable, including:

  • Calling them “sexy” or “beautiful”
  • Commenting on what a subordinate was wearing, including “you look nice,” and you “should wear dresses more often because [she] has nice legs.”
  • Leering
  • Staring at a subordinate’s rear end
  • Continuing to make comments even after the subordinates told him he had crossed a line
  • Making advances and “hitting on” them

In addition to the above, the appellant spent hours in his office, with the door closed, “with a particular female subordinate employee, reportedly engaging in conversations that were personal in nature, and that he, as a supervisor, should have recognized that his actions could be construed as favoritism and were disrupting his office.” This caused a disruption because the appellant “was often unavailable to assist other [employees].”

A few of the aggravating factors identified in the case:

  • One subordinate employee would hide out of sight in a co-worker’s office when the appellant was around
  • The appellant’s supervisor spoke to him “numerous times” about his inappropriate behavior
  • A 13-day suspension a few years previously for sending pornographic emails using his government-issued computer to another female subordinate employee
  • Disruption in the workplace

And mitigating factors:

  • His length of service and “good performance”
  • The appellant’s claims that he was suffering from stress and tension in the workplace due to his relationship with his supervisor
  • The appellant’s claims that he was suffering from depression

The agency removed the appellant for conduct unbecoming a supervisor, with two specifications — one for his unwelcome conduct toward his subordinates including calling them “beautiful” and “sexy” and the other for his closed-door conduct in his office with the subordinate.

Despite upholding both specifications and thereby affirming the charge, the AJ found removal too severe and mitigated the penalty to a 14-day suspension and demotion, primarily because the conduct did not include “more serious charges such as sexual harassment, making sexual advances, or inappropriate conduct” towards female subordinates.

On PFR, the Board disagreed with the AJ’s characterization of the misconduct and held the AJ “erred in limiting the specification to two instances of the appellant calling female subordinates ‘beautiful,’ and in doing so, trivialized the severity of his behavior.”

The appellant’s misconduct actually spanned several months and went well beyond two instances.

In its review, the Board looked at Douglas factor 2, job level and type, holding in line with MSPB precedent that “because supervisors occupy positions of trust and responsibility within an agency, the agency has a right to expect a higher standard of conduct from them.” Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010). But then it continued:

Furthermore, while the appellant’s misconduct would be serious in any context, when considered in the context of the appellant’s position as a Supervisory Human Resources Specialist, we find his misconduct to be exceptionally serious. The importance of a healthy and effective human resources department for an agency cannot be overstated … Human resources employees, such as the appellant, play crucial roles in maintaining the quality of public service, because it is the responsibility of the human resources component of an agency “to retain Governmentwide approaches, authorities, entitlements, and requirements” in areas including “[a]ccountability for adherence to merit system principles” and “[e]mployee protection from prohibited personnel practices.” [bold added]

The Board held that the appellant’s conduct was “antithetical” to his responsibilities as a Supervisory Human Resources Specialist and “strikes at the very core of his job duties to assist in protecting the merit systems principles and prevent prohibited personnel practices.” Therefore, removal was within the bounds of reasonableness. Thomas, IV v. Army, 2022 MSPB 35 (Oct. 20, 2022).

The big takeaway from this case is that in addition to supervisors, LEOs, and SESers, HR employees may also be held to a higher standard under Douglas factor 2.

We discuss this case and others in detail during MSPB Law Week, December 5-9. Hopkins@FELTG.com

EEO Reprisal is (Unfortunately) Alive and Well

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By Deborah J. Hopkins, November 15, 2022

Reprisal, or retaliation, is alleged in about half of all EEO complaints. It is the most common basis of discrimination in findings against agencies. Let’s look at a few situations where the EEOC has issued findings of EEO reprisal: reassignment, discipline, and retaliatory harassment.

Reassignment

An agency is permitted to reassign an employee for any legitimate, business-based reason, such as employee performance or agency business needs. But reassigning an employee that management views as a problem because of her EEO activity is not permitted under the law.

A Federal Bureau of Prisons medical officer complained about harassment “in the form of harsh supervision, denial of adequate staff assistance, daily intimidation, differential treatment, inappropriate schedule changes, and desecration of her religious practices.” According to the Commission, management reprised against the complainant when they told her she was “the problem” and “the one causing all of the drama” and that “problems always surround her.”  The AJ also found the complainant was subjected to reprisal when management reassigned her to a different work location. Gwendolyn G. v. BOP, EEOC Appeal No. 2021001396 (Oct. 18, 2021).

Disciplinary action

An agency is permitted to discipline an employee for misconduct as long as there is a nexus between the misconduct and the efficiency of the service, and provided the discipline is not motivated by that employee’s protected category or activity.

A program analyst filed an EEO complaint against two supervisors alleging hostile work environment harassment on Aug. 12, 2016. On Aug. 29, the supervisor reprimanded the complainant for discourteous behavior that occurred between the complainant and her supervisor on Aug. 10. The supervisor never put the reprimand in the complainant’s eOPF despite her statement she intended to do so.

The EEOC found a causal connection between the complainant’s protected activity and the agency’s disciplinary action because of the “close temporal proximity” between the two events. The AJ concluded, and the EEOC agreed, the reprimand was issued for the purpose of chilling the complainant’s EEO activity. Karolyn E. v. HHS, EEOC Appeal No. 2021003151 (Oct. 19, 2021).

Retaliatory harassment

Creating a hostile work environment because a complainant engaged in protected activity also violates the EEO statutes.A supervisory criminal investigator claimed retaliatory harassment when he was warned he “better be careful” and that if he continued to file EEO complaints “they will come after him.” An agency management official also confirmed that she informed the complainant about the comments and management’s attempts to legally “stop” his EEO activity. On top of that, another management official stated he believed the complainant’s EEO complaints were “ridiculous.” Also, agency management failed to timely approve or acknowledge the complainant’s leave requests, denied his telework request, and issued him a counseling memorandum without following the agency’s discipline policy. The EEOC found this conduct was motivated by the complainant’s protected activity and constituted unlawful retaliatory harassment. Terrance A. v. Treasury, EEOC Appeal No. 2020002047 (Sept. 13, 2021), request for reconsideration denied, EEOC Request No. 2022000139 (Feb. 9, 2022).

Reprisal is something easily avoided if you have the proper training and awareness. We’ll be teaching EEO counselors how to identify potential reprisal during our Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training Jan. 23-26, 2023. Hopkins@FELTG.com

How Do You Feel About This 2-1 MSPB Decision?

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By Deborah Hopkins, October 24, 2022

FELTG Nation, we have our first 2022 MSPB decision with a dissent! Let’s take a look.

The appellant was a GS-14 Security Specialist at DTRA. One morning, he put food from the cafeteria’s self-serve breakfast buffet in a container, paid for it, and put the container in a bag. He then returned to the breakfast buffet, removed the container from the bag, put more food in the container, and returned the container to the bag. He then left the cafeteria without paying for the additional food, which was valued at $5.

A cafeteria employee who witnessed the incident reported it to her supervisor, and the matter was referred to the OIG. Investigators interviewed the appellant and the cafeteria employee, reviewed the video surveillance footage, and concluded that the appellant “knowingly took food from the cafeteria without rendering payment.”

The agency proposed removal based on a charge of larceny in violation of 18 U.S.C. § 661. The Deciding Official (DO) upheld the removal.

On appeal, the appellant claimed his failure to pay for the second helping of food was inadvertent and occurred as a result of his Type 2 diabetes. He stated that he urgently needed to eat because his blood sugar level was low, and that his fixation on eating caused him to lose focus on paying for the additional food.

The Administrative Judge (AJ) assessed the appellant’s credibility and determined the blood sugar argument was not convincing. The judge also noted the appellant failed to exhibit a clear, direct, or straightforward demeanor during his testimony. In addition, his testimony was not consistent with the record evidence, including the cafeteria video footage.

On PFR, Members Harris and Limon held that the DO failed to appropriately consider all relevant Douglas factors in determining the penalty.

The de minimis nature of the theft. The DO said that “what matters is the action,” and someone who would steal “has a character flaw” and “should not be working as a senior security professional … with a security clearance in the Department of Defense.”

The appellant’s 30 years of discipline-free service and the appellant’s outstanding performance record.

The DO referenced these factors as “NEUTRAL” and at hearing that she considered these factors irrelevant because stealing “shows a character flaw.”

The Board majority said the DO should have considered those factors as mitigating, rather than neutral.

Another interesting piece of the case: Although not addressed by the DO or the AJ, the Board held that the appellant did not have custody or control over the stolen items as part of his official duties. The Board considered this a mitigating factor as well. The outcome: “A 90-day suspension recognizes the seriousness of the offense and its severity.”

Member Leavitt disagreed with his colleagues. In the dissent, he said the agency should have received penalty deference. His explanation relied on video evidence of the appellant that indicated he was hiding from a police officer in the cafeteria and, therefore, was aware of his actions. In addition, the appellant initially answered the OIG investigator’s question denying the conduct, then changed his story when shown the security video.

Member Leavitt also wrote that he believed the DO considered all the DFs, and properly determined that the mitigating factors were outweighed by “the level of responsibility, the fiduciary responsibilities, and the expectation of exemplary personal conduct.” His impression of the penalty: “To me, the deciding official clearly demonstrated that she considered all specific, relevant mitigating factors before determining the penalty and showed that the agency’s judgment to impose a removal did not clearly exceed the limits of reasonableness.”

Chin v. DOD/DTRA, 2022 MSPB 34 (Oct. 7, 2022).

In speaking with students and with other FELTG instructors about this case, I’ve concluded that not everyone will agree with the outcome.

  • Some of you will agree with the Board because a removal seems too severe for such a small amount of money.
  • Others of you might think that removal was warranted given that the conduct violated the law.
  • Some of you might personally disagree with the removal but acknowledge that the agency should receive deference on the penalty, as it was not outside the bounds of reasonableness.
  • And others might think a different penalty was appropriate.

Let’s continue the discussion December 5-9 during MSPB Law Week. Hopkins@FELTG.com

Why F-Words Get Agencies in Trouble

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By Deborah Hopkins, October 18, 2022

For as long as we’ve been a company (since 2001, in case you’re wondering), FELTG has taught agency reps and supervisors that if you’re charging misconduct that begins with an f-word (falsification, fraud, false _______, etc.), you’d better make sure you have evidence the employee intentionally provided false information. Otherwise, you will lose the charge, which often means losing your case.

So, it was no surprise to see a recent MSPB decision, Conaway v. Commerce, CH-0752-16-0166-I-2 (Sept. 22, 2022)(NP), that overturned an agency’s discipline because of an f-word the agency couldn’t prove. The real heartbreaker is that this case cost the agency eight years and more than a quarter million in back pay, thanks to the lack of quorum at the MSPB. And to be fair, it also dragged out for eight years on the appellant’s side which is no picnic either.

In Conaway, the agency removed the appellant, a Census Bureau GS-6 Field Supervisor, on one charge of providing false information regarding Census Bureau questionnaires, with one specification regarding a March 24, 2014, interview.

The MSPB equates this type of charge to one of falsification. In order to have a falsification charge upheld, the agency must prove the following by preponderant evidence:

  • the appellant supplied incorrect information; and
  • did so knowingly with intent to defraud, deceive, or mislead the agency for her own private material gain.

Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014).

The basic premise of Conaway’s misconduct was that she entered information into a survey form she had obtained in a months-earlier interview with a questionnaire respondent, even though procedures required her to ask the respondent questions and enter information in the current interview (held March 24, 2014). At hearing, Conaway presented unrebutted testimony that the respondent had provided her with information during an interview weeks prior to the March 24 interview, and had told her that “nothing had changed” during her phone conversation with the respondent about the March 24 questionnaire.

Here’s how the case fell apart for the agency, according to MSPB:

[While] the record clearly established that the appellant entered information into the survey …that she did not obtain from the March [24], 2014 interview, the agency has not provided any evidence suggesting that this information was incorrect, as required to prove a charge of falsification. To the contrary, it is likely this information is correct given the appellant’s unrebutted testimony…

Moreover, even if this information was incorrect, we find that the appellant had a reasonable good faith belief in the truth of the information, which precludes a finding that she acted with deceptive intent. Therefore, we find that the agency has not proven a charge of falsification.

Although the appellant’s handling of the … survey may have been contrary to established procedures or otherwise improper, the agency did not assert such a charge against her. Rather, as stated above, the agency charged her with providing false information … The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency and may not substitute what it considers to be a more adequate or proper basis. Therefore, we cannot sustain a charge of failure to follow survey procedure against the appellant, and such failure cannot serve as a basis to sustain a charge of falsification. In light of the foregoing, we reverse the initial decision in part and do not sustain the appellant’s removal. (Citations omitted.)

I talked to FELTG Founder Bill Wiley about this case. He believes the agency made two notable mistakes, both of which FELTG addresses in our training:

  1. If you charge The Effing Word (Falsification), you have to prove, inter alia, that the information provided is false. That’s straight from the Charges day of MSPB Law Week, next held December 5-9. Here, although the employee did not follow procedures, the actual information provided was in fact true. Therefore, bye-bye Effing charge.
  2. The agency did a decent job of describing how the employee failed to follow procedures. However, they did that in some sort of “Background” section rather than in the “Charge” section of the proposal. Agency representatives who attend FELTG’sMSPB Law Week and learn not to waste words in a Background section hardly ever have to tell payroll to cut a backpay check for over a quarter of a million dollars.

We hope this helps you think twice before the next time you charge an F-word. Lots to learn from these new Board cases, and lots of lessons re-affirmed too.

Don’t Forget the Accommodation of Last Resort

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By Deborah Hopkins, October 18, 2022

In our Reasonable Accommodation training classes, we at FELTG focus on the framework set out in the law. It’s the best way to ensure your agency is handling every request appropriately. Here’s the basic approach once it’s been established the employee is a qualified individual with a disability. This is the approach that FELTG founding father Bill Wiley calls the Accommodation Three-Step:

  1. Look for a reasonable accommodation that will allow the employee to perform the essential functions of the job (by engaging in the interactive process) without causing an undue hardship.
  2. If accommodation is not possible, consider the accommodation of last resort: a reassignment to a vacant, funded position for which the employee is qualified, at the current grade level.
  3. If nothing is available at the employee’s grade level, look for a vacant, funded position at a lower grade level.

A recent case, Shanti N. v. IHS, EEOC Appeal No. 2019004882 (Sept. 14, 2021), illustrates how problematic it can be when an agency stops at Step 1. In Shanti N., the employee, a GS-9 staff analyst, requested full-time telework to accommodate her medical conditions (TBI, PTSD, and pregnancy). Her supervisor denied the request because in 2017 when the events of this case occurred, staff analysts were required to be in the office full-time because of the customer service nature of their positions.

(This might be a good time to mention that things have changed since then, and FELTG is holding a class on November 17 titled Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, where we’ll discuss how telework has altered Reasonable Accommodations – and much much more.)

Back to Shanti N. Once her telework request was denied, she requested a reassignment to a telework-friendly position. Her supervisor agreed, but then made no effort to conduct a search for a vacant, funded position.

According to the case, agency HR “experienced difficulties in completing the reassignment process because [the agency] had a policy of giving absolute hiring preference to Native Americans and Alaskan Natives and Complainant was neither.” The supervisor then explained that it would be difficult to reassign the complainant to another position in the agency because the complainant would have to compete for a vacant position and would be discounted by a candidate with “Indian Preference.”

On the alternative side, the complainant exercised her diligence and actually identified several positions for reassignment in another subcomponent of the agency. When she made these suggestions, the agency indicated it would be unable to complete the reassignment, and that it was on the complainant to obtain and secure the  reassignment on her own.

As you can imagine, the EEOC did not take this well. They found the agency did not meet its obligation to identify vacant reassignment positions, or to confirm whether the Indian Preference policy would actually prevent a reassignment.

In addition, the EEOC found that the agency had not shown that reassigning the complainant would be an undue hardship, and it failed to engage in a good faith search for a reassignment, which violated the Rehabilitation Act.

A simple mistake that ended up being quite costly, not just to the agency but to the employee as well. Don’t let it happen to you. Hopkins@FELTG.com