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To Err Is Human — And Maybe Also a Reason to Change a Personnel Record?

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By Meghan Droste, May 20, 2020

As many of you are aware, the work of negotiating settlement agreements became more difficult on May 25, 2018, with the issuance of Executive Order 13839. Section 5 orders agencies not to “Erase, remove, alter, or withhold form another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records … as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.”  Up to that point, clean records — taking out proposed or final actions from an employee’s OPF — had been a valuable tool for both agencies and complainants in negotiating settlements.

OPM subsequently issued guidance clarifying how to apply the EO.  According to the guidance, agencies “are permitted to take corrective action on information contained in a personnel record that is not accurate or records an action taken by the agency illegally or in error.”  See Haywood C. v. Dep’t of Homeland Sec., EEOC App. No. 2019003137 (March 3, 2020). (For more discussion of the OPM guidance, check out Bill Wiley’s comments from October 2018.)

Agencies and complainants have been struggling to understand the application of the EO when it comes to settling cases.  What exactly constitutes an error? Is it OK to include the removal or change of documents in a settlement agreement if the agency decides there was an error? The Commission recently tackled a case involving these questions, and while it did not provide clear guidance, there are some interesting breadcrumbs for us.

In Haywood C., the complainant alleged that the agency was in breach of a settlement agreement because it had not removed documents related to a proposed removal from his OPF. The agency argued that it could not do so because of the EO. In looking at the case, the Commission cited both the EO and the OPM in its decision. And then it decided that it was not going to determine whether or not the EO or the OPM guidance applied to the specific agreement at issue. This isn’t exactly helpful for other cases, but I do think it is interesting and noteworthy that the Commission specifically pointed to the OPM guidance, even though it decided not to determine whether or not the guidance applied. I might be reading too much into this, but I think the Commission’s decision to draw attention to the guidance might be a signal that it would apply it in the future and uphold settlement agreements that remove or change documents if the parties agree the agency put the documents in an OPF in error or they contain incorrect information. Droste@FELTG.com

Tips From The Other Side: Provide an Effective Accommodation and Follow Up

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By Meghan Droste, May 20, 2020

As we continue into what feels like the third year of quarantine (but is really just getting to the end of month two, at least in the Washington, DC area), I have a bold prediction for my fellow employment law practitioners: I expect we are going to see an increase in requests for accommodations in the coming months, if you haven’t already. (I know, I know, this isn’t exactly groundbreaking, but I’m sticking to it.) In anticipation of this, it is a good time to go over some of the basics for accommodations.

The first, and possibly most important, is to remember that if an employee is entitled to an accommodation, the agency must provide an effective accommodation.  While it is often said that an employee is not entitled to the accommodation of his or her choice, the same is true in a way for agencies — an agency cannot simply offer an accommodation and call it a day. It has an obligation to ensure that the accommodation it provides actually helps the employee perform the essential functions of the position at issue, and if it doesn’t, it needs to find a new accommodation.  Without providing an effective accommodation, the agency has not provided a reasonable accommodation.

The Commission’s recent decision in Kristopher M. v. Department of the Treasury, EEOC App. No. 2019001911 (March 3, 2020), provides a good example of this.  In this case, the complainant experienced paralysis in one arm and, therefore, requested dictation software to assist with performing his duties. The agency agreed to install Dragon software on his computer and provide training.  At this point — before the complainant had the training or attempted to use the software — the reasonable accommodation coordinator considered the case closed. She testified at hearing that simply providing the software, regardless of whether it functioned properly, was sufficient to meet the agency’s obligations. Unfortunately for this complainant, the software was not compatible with several programs he needed to use and he spent two years trying to find a way to make it work.  His efforts to make the accommodation actually effective took significant time away from his work. Also, working without an effective accommodation caused pain in his other arm.

Unsurprisingly, the Commission upheld the administrative judge’s decision that the agency had failed to accommodate the complainant during the time that the software did not work. This resulted in the agency having to pay damages, but it also kept an employee from successfully performing his job. If the agency had stayed on top of the request and worked more diligently to address the software issues, it could have avoided the judgment against it, but more importantly it could have had a productive employee focused on his work and not the failure to provide accommodations. So, as you encounter the increase in requests for accommodations, be sure to slow down and make sure the accommodations you provide are effective before considering a request closed and moving on to the next one. Droste@FELTG.com

Note: For more on this, join FELTG June 16-17 for the virtual training event Reasonable Accommodation Spotlight: Challenges and Trends in Federal Agencies.

The Value of Forgiveness (of Student Loans)

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By Meghan Droste, April 15, 2020

If you graduated well before 2007, or are among the lucky few who graduated since then without any student loan debt, Public Service Loan Forgiveness (PSLF) might not mean much to you.

If you’re a Millennial (those far more likely to have graduated from an undergraduate or graduate program with at least some debt), you are probably very familiar with the PSLF program and may be counting the payments until you can take advantage of it.

For those who have never heard of it, the PSLF program forgives the student loan balances of employees of government agencies and certain non-profits and not-for-profit organizations after they make 120 qualifying payments while working for a qualified employer (i.e. pay their loans for at least 10 years while in a public service position). The loan balance is forgiven rather than discharged, a very important distinction.  For those who do not qualify for the PSLF program and have their loans discharged after 25 years of reduced payments based on income, the balance of the loan is considered taxable income.  For those who receive loan forgiveness under the PSLF program, the balance simply goes away as a thank you for your public service. This might not seem like a huge difference, but having a discharged balance of more than $100,000 treated as income will make for a very noticeable tax liability.

Why am I explaining all of this to you? I promise, it’s not just so you have a better understanding of what those of us with student loan debt (thanks, law school) are facing. It’s so you understand the value of having the documentation to back up eligibility for the PSLF program (hint: it is extremely valuable). And why does that matter?  Well, it helps explain why I find the Commission’s decision in Lazaro G. v. Department of Commerce, EEOC App. No. 0120181501 (Feb. 21, 2020), so interesting.

The back and forth between the agency, the complainant, and the Commission leading up to the Commission’s recent decision is a bit convoluted, but for our purposes can be distilled to the following: The complainant alleged that the agency discriminated against him when it did not select him as a patent examiner.

In its Final Agency Decision, the agency found in the complainant’s favor.  As part of the damages he sought, the complainant requested employment certifications for the period of retroactive employment or reimbursement for the amount that would have been forgiven after 10 years of federal service.

The agency argued the complainant was not entitled to recover costs related to his loans for various reasons, including that he “did not prove any pecuniary losses related to the student-loan program was caused by the Agency’s discriminatory actions.”

In its decision, the Commission ordered the agency to determine whether the complainant would have received employment certifications for the PSLF had it selected him for a position in September 2012. If he would have, the Commission also ordered the agency to retroactively provide all of those certifications — in other words, truly placing him in the position he would have been in but for the agency’s discriminatory non-selection. If he would not have received the certifications, the Commission ordered the agency to determine whether the complainant had established that he is entitled to monetary compensation related to the PSLF program.

This might not seem like much if you don’t a large amount of student loan debt. However, I cannot stress enough how valuable more than six years of certifications can be to someone seeking forgiveness under the PSLF. Keep this in mind when making damages determinations or engaging in settlement discussions in cases involving retroactive instatement or reinstatement. Droste@FELTG.com

Tips from the Other Side: Practicing Employment Law Virtually

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By Meghn Droste, April 15, 2020

Much  has changed since our last FELTG newsletter. Many of us are staying at home now and with that, far more employees are teleworking than probably any other time before.  All of this teleworking brings new questions, more challenges, and a lot of differences in how we all work. In light of all of these changes, I have compiled some tips and pointers to consider as you move your practice into the virtual world.

First, before you follow any of my tech suggestions, please check with your agency to ensure that these options are approved and available to you.  Security issues and other concerns vary from agency to agency, and your agency may already have technology in place that can be used to address some of these issues.  For example, if your agency already uses Microsoft products exclusively, you may have access to Teams for meetings and calls, while another agency might rely on Google products and, therefore, have access to Google Meet.  (If none of these terms are familiar to you, I strongly recommend checking with your manager and/or IT team to determine what resources you can tap during this time.)

With that disclaimer out of the way, here are some things you may want to consider to keep your cases moving. One thing that might not change for you much is how often you are on the phone. For those who regularly interact with witnesses, opposing counsel, and others in different locations, you may be used to doing much of your work by phone rather than in person. The challenge may be in how to do so if you do not have an agency-issued phone that you can use at home. I prefer not giving out my personal cell phone number for work calls so I created a free Google Voice account, which gives me access to a local number that I can use through my cell phone. It allows me to make and receive calls without having to give out my regular number.  You might also want to consider using Zoom, Microsoft Teams, or Google Meet without the video option for calls.

And that brings us to the now ubiquitous video chats. It really does seem that everyone is doing them (including some preschool play groups – the one to two-year-old set is now getting in on the fun!). Video calls can seem overwhelming right now, but they can be very helpful for preparing witnesses for depositions or hearings, and for conducting depositions. It’s not the same as being in the same room with the witnesses, but as the Commission has recognized, being able to see a witness can be crucial to gauging credibility. Of course, video meetings can come with some risks. (Type “zoombombing” into your search engine of choice if you don’t know what I’m referring to.)  You can minimize if not eliminate these risks by ensuring that you require each caller to use a password to enter the chat, require the host to initiate the call and individually approve attendees to enter the virtual room, and disable features like recording so that there are no recordings stored on cloud servers.

As state and local governments across the country extend their stay-at-home orders, we may have to address some of these issues in conducting hearings before the EEOC as well. Since 2006, the Commission has prohibited administrative judges from conducting hearings entirely by phone except when circumstances make in-person or video testimony impossible, or both parties request it. If you have a hearing scheduled in the next few months, I encourage you to explore options for video testimony that do not require participants to travel to locations with VTC equipment.

Finally, be sure to take confidentiality concerns into account when you are using phone or video calls to conduct interviews, depositions, and possibly hearings. I know it can be hard to find a private space when everyone is at home, so you may want to invest in a white noise machine or a white noise app for your phone to make sure no one else can hear you as you talk.

Good luck out there and be sure to take some mental health breaks when you can to stay sane during these challenging times! Droste@FELTG.com

You and What Army?

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By Meghan Droste, March 19, 2020

Way back in January 2018, which feels like a lifetime ago at a time when every day brings at least 20 urgent news alerts and many more times as many things to worry about, I wrote my first article for this newsletter. I discussed the Commission’s decisions in a case in which the agency repeatedly refused to comply with orders from OFO.  (The decisions are in the Selene M. v. Tennessee Valley Authority case, Appeal No. 0720150024, Request No. 0520170121, and Petition No. 0420170027, if you’re curious.) The agency repeatedly explained why it was not complying with the Commission’s orders, and the Commission repeatedly told the agency to do it anyway.

When I bring this case up during classes, I get questions about the Commission’s ability to enforce its decisions. After all, the Commission, like other judicial bodies, can only do so much when it tells a party what to do (or not do). The Commission has no army to compel agencies to comply. Does that mean agencies get a free pass?  Not quite, as we can see in the recent decision in Alma F. v. Department of the Army, EEOC Pet. No. 2019004337 (Feb. 4, 2020).

The administrative judge found in the complainant’s favor and ordered various types of relief.  The agency appealed the characterization of backpay as pecuniary damages.  The Commission agreed, holding that back pay was equitable relief, and ordered the agency to comply with the order and file documentation outlining its compliance.  All of that took place in 2015.  By June 2016, six months after the Commission’s decision, the agency had failed to file any documentation or respond to the Commission’s requests for evidence of compliance. As a result, the Commission opened a petition for enforcement.  In January 2017, the Commission again ordered the agency to comply and submit documentation.  The agency again failed to respond, resulting in the February decision.

Remarkably, the Commission noted in its decision that the agency failed to provide evidence of compliance in 19 other cases, all with petitions for enforcement from 2019.  The Commission reminded the agency that failure to comply with its orders could result in any of the measures outlined in 29 C.F.R. § 16414.503, including a show cause order to the head of the agency or certification to the Office of Special Counsel. It then ordered the agency to comply with the previous orders and provide a report with an analysis of “Agency-wide EEO reporting on compliance with EEOC orders to identify problem areas,” and a “detailed action plan setting forth how the problems identified in its analysis will be corrected, delays ended, and compliance reporting brought in accordance with EEOC regulations.”

With the Commission seemingly lacking a method to force compliance, it might be tempting to take a “you and what army?” approach.  However, as you can see from the potential repercussions, I definitely would not recommend that. Droste@FELTG.com

Tips from the Other Side: March 2020

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By Meghan Droste, March 19, 2020

I imagine many of you are spending fair amount of time right now refreshing your online news source of choice for updates on COVID-19. There’s no doubt that this is a stressful and possibly scary time, with a lot of unknowns about how and for how long this pandemic will impact our day-to-day lives. If you are concerned, I completely understand.

In this stressful time, I want to take a moment to remind you about improper medical inquires.  In short: Don’t make them!  Slightly longer advice: Be mindful of when you can ask employees for medical information or documentation.  A global pandemic does not suspend the application of the Rehabilitation Act or the Americans with Disabilities Act, so it is important to remember that agencies may only request medical information in very specific circumstances.

Employers may only ask current employees for medical information or documentation if it is job-related and consistent with business necessity. This means that in many (but not all) circumstances, an agency may request medical documentation to support a request for reasonable accommodations. It also means that an agency cannot request medical documentation because it is curious and wants to know if an employee has a medical condition.  If one of your employees shows up with the sniffles in the next few weeks, you should not automatically demand a letter from their doctor establishing that it is seasonal allergies and not something worse.

Agencies may also request medical information when there is a concern an employee will pose a direct threat while performing the essential functions of their position due to a medical condition. Be careful with these inquiries as well. An agency may not request all medical records, just those related to the specific condition at issue, and the request must be based on an individualized assessment and on reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence. That Facebook post you just saw about the symptoms of COVID-19?  It’s not objective evidence. The musings of a health expert on TV?  Also not objective evidence.

Tread carefully out there and when in doubt, check with knowledgeable folks at your agency before asking an employee to reveal information about their health.  (Also, wash your hands!) Droste@FELTG.com

A Valentine to Not Being Creative

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By Meghan Droste, February 19, 2020

 “Learn the rules like a pro, so you can break them like an artist.”

– (Possibly) Pablo Picasso

It’s Valentine’s Day as I write this column for you, dear readers.  And so it is with great love for my fellow practitioners, the EEO process, and (of course) the rules that I have to share that while creativity is wonderful, sometimes it’s a terrible litigation strategy. I truly admire great artists and creative types, and creativity can be helpful in our line of work, such as in coming up with out-of-the-box ideas during settlement discussions. But there are times when it can go too far.

I have been doing this (researching, litigating, teaching) long enough that I am rarely surprised by arguments employers raise to avoid liability.  Leon B. v. Department of State, EEOC App. No. 012018144 (Nov. 5, 2019), is one of the exceptions. The claims are fairly run of the mill: The complainant alleged that the agency discriminated against him on the basis of race, color, age, and disability when it did not select him for a special agent position.

The complainant made it through the initial stage of the application process, including an oral assessment conducted by two agency employees.  Following the assessment, the agency notified the complainant that he failed to meet the cut off score and, therefore, was not eligible to continue.

During the investigation of the formal complaint, the investigator asked the agency to provide documents regarding the scoring process, and asked both of the employees who conducted the assessment for information on what questions they asked and how the complainant’s answers compared to those of other employees. The investigator also asked the agency for information on the other candidates who were selected and those who also failed to meet the cutoff for the scoring of the oral assessment.

The agency refused to provide the requested information.

Why? Well, here comes the creative part: The agency asserted that the information was exempt from disclosure under the Freedom of Information Act, specifically exemption (k)(6).  (Notwithstanding the statements by at least one of the employees who conducted the assessment, the agency appears to be relying on the Privacy Act and not FOIA.)

This exemption allows agencies to withhold information regarding testing material in responding to Privacy Act requests when providing the materials would compromise the objectivity or fairness of the selection process.

You can probably guess that this did not end well for the agency. Because the agency failed to produce any specific information as to why the complainant did not score high enough to advance in the process, the Commission found that the agency could not articulate a legitimate, non-discriminatory reason and therefore the complainant prevailed.

The Commission ordered the agency to assign the complainant the same score as the highest scoring candidate and then continue the application process. Assuming the complainant received a clearance and passed the medical exam, the Commission also required the agency to put the complainant in a special agent position.

In your brushes with the EEO process, it is probably best to ignore Picasso’s advice in most circumstances and leave your creativity and artistry to other pursuits. Droste@FELTG.com

Tips From the Other Side: February 2020

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By Meghan Droste, February 19, 2020

When counseling clients on how to proceed in their cases, I recommend requesting a hearing rather than a Final Agency Decision (FAD) far more often than not. Why? Well, as I point out to my clients, a FAD is an agency deciding whether or not it violated the law, and how often do any of us want to publicly admit that we did something wrong? It often feels like a foregone conclusion that no matter the evidence, the agency will issue a FAD finding no liability.

I get it. Although the offices issuing FADs are, of course, intended to be neutral, and I’m sure the people drafting FADs make every effort to be unbiased – and many do a great job, at the end of the day, the agency is rendering a decision based on (sometimes limited) information collected by the agency.

This month my tip to you is to recognize that, in some cases, the evidence compels a decision in favor of the complainant.

The recent decision in Felton A. v. U.S. Postal Service, EEOC App. No. 0120182134 (Dec. 17, 2019) is a great example of when the agency should not have issued a FAD finding in its own favor. The complainant alleged that the agency discriminated against him when it barred him from entering an agency facility while representing another agency employee in the coworker’s EEO complaint. According to the complainant, his supervisor told his union steward that the complainant was not permitted in the facility because the complainant was on the “Threat Assessment List” due to his PTSD.

At various times during the investigation, the supervisor denied that a Threat Assessment List existed and testified that the complainant could not enter the facility due to a Threat Assessment.  The supervisor also denied being aware of the complainant’s disability, despite documents in the record establishing that the supervisor had knowledge prior to barring the complainant from entering. Finally, the supervisor could not specifically say what she said to the union steward regarding the complainant. The agency failed to interview the union steward in its investigation, leaving the record without a clear picture of the crucial conversation.

The supervisor’s internally inconsistent testimony, which directly contradicted the documents, should have raised a red flag for the agency when drafting the FAD. The lack of testimony from the union steward also should have been an issue. The agency would have been better served to order a supplemental investigation rather than issuing a FAD based on an incomplete record.  Ultimately the Commission reversed the FAD and entered a finding of discrimination, ordering the agency to conduct a supplemental investigation on damages.

When drafting FADs, I encourage you to look critically at the record and issue findings of liability when supported by the report of investigation.  Droste@FELTG.com

Please Mr. (Sometimes Electronic) Postman: How Do You Determine Receipt?

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By Meghan Droste, January 15, 2020

Happy New Year to our wonderful FELTG community!  With the holidays, and their many related treats behind us, it’s time to get back to work. I decided to follow the example of my swim class coach and ease all of you back into things this month with a return to some fundamentals (unlike in my class, I promise not to make you break a sweat with these).

We talk a lot about deadlines when it comes to the EEO process. I have covered many different ones in this column. It may seem repetitive in a way, but really, they are so important to ensuring the integrity of the EEO process that it’s worth returning to them with some frequency. One key part of handling deadlines correctly is knowing what it takes to trigger them. After all, if the agency doesn’t send something to a complainant or their representative, the clock never starts running. Two relatively recent Commission decisions highlight the ways a small error can end up in a reversal of an agency’s decision.

In Orson R. v. Department of Veterans Affairs, EEOC App. No. 2019005308 (Oct. 2, 2019), the complainant initially made EEO contact without a representative. During the process of scheduling mediation, the complainant verbally notified the agency that he had retained counsel, and his attorney emailed the EEO program manager. The complainant’s attorney attended the mediation, which ultimately did not result in a resolution. When the agency subsequently mailed the notice of right to file (NRTF), it sent it only to the complainant. Three months later, the complainant’s attorney reached out to the agency for an update and learned about the NRTF. The complainant’s attorney then filed a formal complaint, which the agency immediately dismissed as untimely. In response to the complainant’s appeal, the agency argued that the complainant had failed to properly notify the agency that he was represented, because he did not send a written notification that included the attorney’s contact information. The Commission reversed the decision finding that the agency had notice that the complainant was represented and the clock starts from when the attorney, and not the complainant, receives the NRTF.

In Scarlet M. v. Department of Veterans Affairs, EEOC App. No. 2019005240 (Oct. 31, 2019), the agency sent the NRTF to both the complainant and the complainant’s representative via email on May 13, 2019. The complainant’s representative filed the formal complaint on May 29, 2019. In response to the agency’s request for an explanation for the apparently untimely complaint, the complainant’s representative acknowledged that although she opened the email on the day the agency sent it, the complainant was unable to open the email until May 15, 2019.  The agency dismissed the complaint as untimely. Based on the Orson R. decision, you probably expect the agency to prevail in this case — the complainant’s representative received the email on May 13, but did not file the complaint until 16 days later. There is one key difference here: The complainant’s representative in Scarlet M. was not an attorney. As a result, the clock started running when the complainant and not the representative received the NRTF. In this case, the agency did not receive a read receipt from the complainant so it could not prove that she opened the email before May 15. The Commission reversed the dismissal.

While I doubt that any of you are spending time waiting at a mailbox for formal complaints, particularly as so much happens electronically these days, I do encourage you to spend an extra minute or two triple checking your files before sending out notices and before dismissing complaints so that you can avoid a reversal by the Commission. Droste@FELTG.com

Tips From the Other Side: January 2020

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By Meghan Droste, January 15, 2020

In addition to representing federal employees (and having the pleasure of teaching many courses with FELTG), I spend about half of my time representing private sector and local government employees.  This gives me an interesting comparison of how attorneys and judges handle cases in federal court with how agency attorneys and administrative judges handle cases before the Commission.  I am happy to report that the experience before the Commission is often more pleasant. Things (generally) move more quickly, although I know that might be difficult to imagine, and the formal complaint process creates a record from the start, avoiding some of the hassles of fighting over information in discovery. 

There is one notable difference that makes things more difficult in the federal sector process and I hope you will indulge my moment on the soapbox discussing it. In several recent cases, I have found that agency attorneys are not producing emails from key witnesses as part of their document productions. I always ask for at least some emails in every case. I have yet to see a case where nothing was discussed over or sent by email. Unlike in my other types of cases, it seems that the attorneys on the other side in federal sector cases do not even think about checking with witnesses or even named harassers when gathering responsive documents. As a result, we end up spending unnecessary time on deficiencies letters and phone calls, and sometimes even motions to compel, to get documents that are clearly relevant to a complaint. If any of this sounds familiar to you, I strongly encourage you to reconsider your discovery practices.

As a quick reminder, the Commission considers discovery and the hearing process in general to be an extension of the investigation.  That means that parties are entitled to obtain “relevant information” for a “reasonable development of evidence on issues raised in [a] complaint.”  See EEOC Management Directive 110, Ch. 7, § IV(A)(1). If witnesses, harassers, or management officials have discussed the issues in the complaint (or, in some cases, engaged in harassment) by email, those emails are relevant.  You should be issuing litigation holds to anyone who might have relevant information at the outset of a case and also gathering emails from them as part of your normal litigation practice.  Even if a complainant does not request emails in discovery, you should still be gathering them for yourself so you know what is out there and to avoid any surprises when witnesses testify during a deposition or at hearing. Droste@FELTG.com