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Ask FELTG: What’s the Best Way to Calculate Non-pecuniary Compensatory Damages in an EEO Case?

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February 28, 2023

Thanks for the question. The best way to determine appropriate compensatory damages in cases where agencies are found liable for discrimination, harassment, reprisal, or a failure to accommodate is to look at the harm the employee endured. It’s difficult to put a dollar value on non-tangible things like anxiety, fear, loss of sleep, and the like, so researching cases where the facts are similar will help you determine what amount of damages the Commission would consider appropriate.

According to instructor Bob Woods, “EEOC has provided that an award should reflect the nature and severity of the harm to the complainant and the duration or expected duration of the harm. They have specifically stated that they will attempt to make awards that are consistent with awards in similar cases.”

In addition, we’ve done training on the topic and a recording of the recent webinar Damages and Remedies in Federal Sector EEO Cases is available in the FELTG store. Or, join us during EEOC Law Week March 13-17 for a live discussion on this topic and more.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles Accommodation Request for Inability to Commute

January 24, 2023

Here’s a question that recently came into FELTG’s mailroom:

In granting or denying a reasonable accommodation request for telework, does it make any difference if the employee’s only disability-related problem is his commute to work? Hypothetically, he does not have any problem performing his job once he gets to work.

And our reply:

Thanks for your email; we get various versions of this question quite a lot (see a recent Ask FELTG about accommodating an individual with telework because the Metro station near his home was closed). In recent years, EEOC has given us clear guidance on the topic.

To be entitled to 100 percent telework as a reasonable accommodation, the employee must show:

1. Their disability makes it impossible for them to get to the physical work site, and

2. The essential functions of their position can be performed from home.

Here are a couple of cases to get you started:

Lavern B v. HUD, EEOC No. 0720130029 (2015): EEOC “precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act.” This doesn’t mean the employee will always be granted telework, but this means the agency is obligated to go through the reasonable accommodation process with the employee who is requesting telework or an alternate work location because the commute exacerbates his medical condition. In this case, EEOC found that commuting to work is a major life activity. Because of the complainant’s spinal condition, the agency was required to consider accommodating his physical inability to commute the longer distance to the office.

Doria R. v. NSF, EEOC Appeal No. 0120152916 (2017): “[P]roviding disabled employees with the reasonable accommodations [sic] of telecommuting is consistent with the Rehabilitation Act’s goal of assuring ‘equality of opportunity, full participation, independent living, and economic self-sufficiency’ for individuals with disabilities.” In this case, the employee had cancer that metastasized to her bones. Driving or riding in a car was deemed by her physician to be too dangerous because of the condition of her skeleton, and the agency erred by not considering her request for 100 percent telework.

We’ll be tackling this topic in more detail on Feb. 16 during the two-hour class Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. We hope you’ll join us!

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: How Exactly Did Union Rep Cross Line Into Misconduct?

January 9, 2023

An item in our weekly email generated the following question:

You mentioned in one of your recent newsletters that an FLRA decision illustrated union activity “that very clearly crossed the line.” As our relationship with the union here is standoffish in its best moments, I’d like to know what exactly the union did to cross that line so that a union rep could be disciplined.

Dear loyal FELTG reader,

First, thank you for subscribing to our weekly email and monthly newsletter.

What you read was a teaser, enticing you to register for Ann Boehm’s two-hour training session Drawing the Line: Union Representation or Misconduct on Jan. 19 at 1 pm ET. In that training session, Ann will discuss every angle of this topic, from determining what kinds of union activity are protected to how to discipline disruptive behavior that is not protected. And she’ll discuss the arbitrator and, eventually, FLRA decision in Bremerton Metal Trades Council, 73 FLRA 90 (2022).

So, you want to know: What did the union rep do in Bremerton that warranted discipline?

Well, the union rep, according to statements obtained by the agency, used the following words to describe colleagues — ’r—ard,’ ‘stupid,’ ‘slow,’ ‘f—king p—sy,’ ‘f—king idiot,’ and ‘god d—n r—ard.’ The rep created a toxic and uncomfortable work environment. The rep’s behavior was so bad, it caused a chief steward to experience three panic attacks over a one-month period, with the last one landing him in the hospital.

The arbitrator sided with the agency’s decision to discipline the rep for her “confrontational and bullying” behavior because the conduct was “flagrant or otherwise outside the bounds of protected activity.” The arbitrator also noted that the bullying behavior was for the grievant’s own benefit, and it was not provoked. The FLRA concurred.

For more about this case, read Ann’s Good News column from last August and join her on Jan. 19.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What do OPM’s new regulations say about clean record agreements?

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December 14, 2022

OPM’s new regulations on 5 CFR parts 432 and 752, which went into effect Dec. 12, 2022, removed the 2020 regulations’ prohibition on clean record agreements. Agencies are once again free to use clean record settlements. This was probably the most contested portion of the 2020 regulations, which had incorporated President Trump’s E.O. 13839 prohibitions on clean record settlements.

OPM explains that clean record agreements “should be an option for agencies to resolve informal and formal complaints when the agency deems it is in the best interests of effective and efficient management to achieve the agency’s mission,” and that clean record agreements provide agencies with an important tool and flexibility, consistent with the policies of President Biden’s E.O. 14003, Protecting the Federal Workforce.

OPM identified some of the disadvantages to prohibiting clean record agreements:

  • Reduced likelihood of parties reaching a mutually agreeable resolution of informal or formal complaints
  • Increase of costly litigation and arbitration
  • Crowding of the dockets of third-party investigators, mediators, and adjudicators
  • Cases languishing impact the agency’s credibility, supervisor morale, and efficient execution of the agency’s mission

OPM’s rescission does not take a position on whether any particular case should be settled, as it acknowledges that settlements, which through lessening a penalty or permitting resignation, may in certain circumstances:

  • Lessen the risk of outright reversal with its high costs without benefit, or
  • May adversely affect governmental interests.

Agencies are still required to be truthful to Federal investigators in connection with background investigations, and may not agree to withhold information about an individual’s departure from the agency. In addition, the requirement for agencies to be truthful applies also to suitability determinations and other inquiries related to vetting for personnel security.

The rescission of clean record restrictions applies to

  • 432.108 (performance-based actions)
  • 752.104 (discipline for whistleblower retaliation)
  • 752.203 (short suspensions)
  • 752.407 (appealable actions)
  • 752.607 (SES adverse actions)

If you missed our recent webinar Implementing New OPM Regs for More Effective Disciplinary and Performance Actions, the recording is available in the FELTG store. [email protected]

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: If Metro is Closed, Is Telework a Reasonable Accommodation?

October 31, 2022

We recently received the following question: If a Metro station is closed for construction, does our agency have to accommodate a disabled employee who usually takes the Metro to work by granting temporary telework?

Thanks for the question. As in every reasonable accommodation case, the agency should follow the framework we teach in our classes, which mirrors the requirements of the law:

  1. Does the individual have a disability?
  2. Are they a qualified individual?
  3. Did they request accommodation?
  4. Did the agency engage in the interactive process?
  5. If there is a feasible accommodation, will it impose an undue hardship on agency operations?

There’s a fairly recent case in which this exact issue came up, Orlando O. v. USPS, EEOC Appeal No. 2020003910 (Dec. 7, 2021).

The complainant suffered from ulcerative colitis, which required him to be able to access a restroom with minimal notice. He took the subway to work every day, but the subway line he used would be closed for four months and the shuttle service that replaced the subway service did not provide restroom accommodations. The agency denied the telework request. It ordered the complainant to either report to the workplace or take sick leave. Because he was unable to come into work, he used 456 hours of sick leave, and reported back to work the day the subway re-opened. The EEOC found improper unnecessary delay of RA and that the agency failed to show granting telework would have caused an undue hardship.

We have no doubt your agency is dealing with other new, untested RA challenges. Join FELTG for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency November 17 for a lively discussion on how to address these challenges legally and efficiently.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Can Comments About Church Attendance State a Viable Claim of Hostile Work Environment Harassment?

October 10, 2022

Stating a claim is much easier than proving hostile work environment harassment. As we teach in EEOC Law Week, in order to prove a hostile work environment, the complainant must show she was subjected to unwelcome conduct, based on a protected EEO category (such as religion), and that the conduct was so severe or pervasive it altered the terms, conditions and privileges of employment to create a hostile or abusive work environment.

The best way to answer your question is to look at a case involving this very topic, Ricky S. v. USPS, EEOC Appeal No. 2019005078 (Sept. 30, 2019). In this case, the complainant alleged:

(1) The postmaster yelled and accused him of requesting medical (FMLA) leave to miss work on Sundays in order to really go to church;

(2) The postmaster threatened to send Postal Inspectors to his church to verify his presence in the services;

(3) The complainant was given a pre-disciplinary interview during which the postmaster yelled at him and accused him of missing work to go to church, and warned him that he could get fired for doing so; and

(4) The postmaster commented about the complainant on the work floor in front of co-workers, “I will work him so much that he won’t be able to pray!”

The agency initially did not accept the complaint, but the EEOC remanded and ordered the agency to accept the claim because, when viewing all of the complainant’s allegations together and assuming they occurred as alleged, the complainant stated a viable claim that the agency was required to investigate.

Remember, stating a claim doesn’t mean that hostile work harassment has been proven, it just means the agency must conduct an investigation – the next step in the EEO process. For more on this timely topic, join FELTG tomorrow (October 12) for a 60-minute session on The Latest in Religious Harassment and Discrimination Cases.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles Two Questions About Reasonable Accommodation

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Q: An employee claims to have a family member with an underlying medical condition that makes him susceptible to severe COVID. May the agency ask for medical documentation about the family member’s condition, if that’s why the employee is seeking telework as a reasonable accommodation?

A: If the employee does not have a disability, then any step toward granting telework, including requesting medical documentation, is not part of the reasonable accommodation process because only qualified employees (or applicants) with disabilities are entitled to RA. See Key-Scott v. USPS, EEOC Appeal No. 0120100193 (2012).

You’ll need to check your agency’s policy for guidance about what is required to allow telework flexibilities for employees who live with individuals with underlying health conditions.

Q: If the agency grants telework as a provisional accommodation and it’s clear the accommodation is not working, how does the agency change the accommodation if the medical documentation states that telework is the recommended accommodation?

A: If the medical documentation recommends telework, the agency is not bound to provide telework if there is another affective accommodation that allows the employee to perform their job within their medical restrictions. If an accommodation is not working, then it is not an effective reasonable accommodation.

In a case where medical documentation recommends telework, at the outset the agency should request additional medical information related to the functional limitations the employee has, so that the agency can determine if an accommodation other than telework is appropriate.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Can employee use sick leave for family member with health condition without invoking FMLA – and then PPL?

May 24, 2022

We receive a lot of questions about leave through Ask FELTG, and each situation seems to have its own unique challenge. The subscriber who asked this question further explained that the hypothetical employee was the father of a newborn.

FELTG Senior Instructor and resident Federal leave authority Barbara Haga jumped in to answer this one, and suggested we start first with the basics.

FMLA is a separate entitlement apart from sick leave. It doesn’t limit in any way an employee’s ability to use sick leave. Use of sick leave doesn’t detract from the number of hours in the FMLA or PPL (Paid Parental Leave) entitlement.

For family care, there are two sets of limits on how much leave the employee could use. These numbers assume an 80-hour pay period.

1. An employee can use up to 13 days or 104 hours in a leave year for care of a family member with a non-serious condition, such as seasonal flu, colds, allergies, etc.

2. An employee can use up to 480 hours in a leave year for care of a family member with serious health condition, such as cancer, stroke, or heart attack. Pregnancy and childbirth are considered serious health conditions. The leave year maximum is 480 hours, so any use from the 104-hour category must be deducted.

Barbara continued:

For use of family care sick leave, the employee must be caring for the individual with the medical condition. If the father in this scenario wanted to use sick leave, he could do so to care for the mother during her recuperation period. That time could not be used for care of a healthy child. The mother likely would have a 6- or 8-week recovery period, but the question would be for what portion of that period she would require care from the father. The agency has the right to ask for medical documentation to establish the need for care because this is a serious health condition. See 5 CFR 630.405(c).

Here are two scenarios. We’re using rough dates rather than counting out the actual hours as you would obviously have to do. These scenarios assume the father won’t exceed the limit due to any other use of family care sick leave at any other point in the leave year.

The mother’s due date is April 1, 2022. The father requests six weeks of sick leave to care for the mother immediately after the birth of the child.

Scenario 1. Medical documentation is requested, and the health care provider indicates the mother would require physical care for three of the six weeks. The father could use sick leave from April 1 to 22. He could invoke FMLA to begin the next workday (Apr 25) for 12 weeks and substitute 12 weeks of PPL. This would extend through roughly July 25. Total paid time off is 15 weeks.

Scenario 2. This time the health care provider indicates the mother will need care for the full six weeks. The scenario would change as follows: The father could use sick leave from 4/1 through roughly 5/16. The father could invoke FMLA with PPL substitution for 12 weeks beginning 5/17 which would run through roughly 8/17. Total paid time off is 18 weeks.

For guidance on how to handle all absence-related challenges, including those related to COVID-19, join us for FELTG’s Absence, Leave Abuse & Medical Issues Week June 5-9, 2023. Classes run from 12:30-4:30 pm ET every day. Register by May 26 for Early Bird pricing.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: If an employee with a disability can perform his job at the worksite, why would telework as a reasonable accommodation be necessary?

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It wouldn’t be necessary, though the agency could still choose to grant telework as the accommodation if it wanted to. EEOC guidance suggests that the employee’s preference on accommodation should be considered, but ultimately the agency gets to choose the accommodation. See Complainant v. Army, EEOC Appeal No. 0120122847 (2014); Jordan v. Secretary of Navy, EEOC Appeal No. 0120110907 (2012)

The only time an agency must grant telework as an accommodation is if:

1. The essential functions of employee’s job can be performed from home,

2. There is no other effective accommodation that would allow the employee to perform the job within their medical restrictions, and

3. Granting telework is not an undue hardship on the agency.

EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation; see also Dahlman v. CPSC, EEOC Appeal No.0120073190 (2010); Lavern B. v. HUD, EEOC Appeal No. 0720130029 (2015).

There may be times when an agency chooses to grant telework even though there might be an effective accommodation available at the worksite. For example, let’s say an employee has irritable bowel syndrome. The agency could provide the employee with a workstation close to the restroom, which would be an effective accommodation.

However, taking into account the fact that the restroom is not single-use and the fact that the employee needing to use the facilities in front of the employee’s coworkers might cause embarrassment, the agency might choose to grant the employee telework instead.

For more guidance, join Attorney at Law/FELTG Instructor Ann Boehm on May 11 for Managing Post-pandemic Reasonable Accommodation Requests and Medical Documentation, the second part of our three-part webinar series Navigating the Return to the Post-pandemic Federal Workplace.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles Calendar Days in Suspensions and Holidays in FMLA and PPL

March 8, 2022

Sometimes to understand Federal employment law, you need an old-fashioned print calendar by your side, as these two recent Ask FELTG submissions illustrate.

We know that suspensions must be served as calendar days, not workdays, but how can we ensure that a suspension maximizes the workdays covered? Can we require that a suspension begin on a Monday so that a, say, 6-day suspension covers 5 workdays?

In the decision letter, the Deciding Official should state the specific date(s) the suspension will be effective, so beginning a suspension on a Monday is no problem at all as long as the letter indicates so.

For expert guidance on all things related to discipline, as well as performance and whistleblowing, register for one or more days of FELTG’s MSPB Law Week, held virtually March 28 – April 1. Register here.

Meanwhile, another reader asked about holidays while on Paid Parental Leave.

I read your post Ask FELTG: Are holidays counted as hours for Paid Parental Leave? Someone recently advised me that at my agency FMLA only gives us 12 administrative weeks and that they are counted towards holidays. When I returned from my PPL, I lost three days of PPL to holidays during my leave. What is the next step in addressing this? Is there an OPM hotline?

We huddled with FELTG Senior Instructor and FMLA expert Barbara Haga to offer further guidance to our reader.

FMLA (and, thus by extension, PPL) is only charged for days when employees are scheduled to work. Holidays do not count toward the 12-week entitlement if the employee is not scheduled to work on Federal holidays. Here is the regulation:

5 CFR 630.1203(e)

(1) Family and medical leave under this subpart is available to full-time and part-time employees. The entitlement to a total of 12 administrative workweeks of leave in connection with leave granted under paragraph (a) of this section must be converted to hours or days, as provided in paragraphs (e)(2) and (e)(3) of this section. Leave under paragraph (a) allows an employee to be absent during the employee’s scheduled tour of duty established for leave charging purposes. Such leave is not applied to days designated as holidays and other nonworkdays when the employee would be excused form duty. [Emphasis added.]

OPM has no role in adjudicating FMLA claims, and as far as we know they don’t have a hotline to report such concerns.

If showing this to the HR folks does not resolve the issue, an employee would have the ability to raise this through the relevant grievance procedure. If they are in a bargaining unit, they would file under the negotiated procedure if the CBA allowed it. If not covered by a bargaining unit, then the employee would use whatever administrative grievance process their agency provides.

Meanwhile, mark your calendar now for FELTG’s Absence, Leave Abuse & Medical Issues Week June 13-17.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.