Kalpana Kotagal, the most recent addition to the Equal Employment Opportunity Commission, has vast experience in DEIA issues, including co-authoring the Oscar ceremony-famous “Inclusion Rider.” Learn more.
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By Dan Gephart, March 11, 2024
With the constant changes in Federal employment law over the last several years, it’s sometimes easy to forget not only how useful the Douglas factors are when determining a reasonable penalty for employee misconduct, but also how long we’ve had these factors.
The Douglas factors turn 43 next month. The same day the decision in Douglas v. VA, 5 MSPB 313 (1981) was published, many Americans were turning (literally and physically) their television sets to CBS to watch brand new episodes of Dukes of Hazzard and Dallas.
Considering a large portion of the Federal workplace couldn’t tell Boss Hogg from Rosco or venture a guess at who shot J.R., let’s just say it’s been a while. To help keep your Douglas skills and knowledge sharp, consider these few tips.
1 – Make sure you’re spending a reasonable amount of time and effort on your Douglas analysis. How much is reasonable? In her upcoming (April 24) class Do You Really Know How to Use the Douglas Factors?, FELTG Instructor Ann Boehm suggests: “Usually, half of the effort that goes into defending a misconduct removal should be devoted to the agency’s Douglas Factor analysis.”
The safest way to handle the Douglas Factor analysis is to complete a Douglas Factor Worksheet, attach that worksheet to the proposal notice, and then in the body of the proposal notice, include a sentence that says this: “In selecting a penalty, I relied on the assessment of the relevant penalty selection factors as described in the attached Douglas Factor Worksheet.”
This has been standard FELTG advice for a long time now. As FELTG President Deborah J. Hopkins once wrote on the topic: “We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.”
2 – Use the Merit Systems Protection Board’s example. The MSPB rarely independently evaluates the Douglas penalty assessment factors. Instead, the Board generally sticks to evaluating the agency’s evaluation of the factors. Even if the Board members might not fully agree with the penalty, MSPB must defer to the agency’s decision as long as the agency proves its charge(s) and shows the penalty was “within the bounds” of reasonableness.
But then came Purifoy v. VA, CH-0752-14-0185-M-1 (2022)(NP). You probably noticed the parenthesized “NP” at the end of the case citation. Yes, this is a nonprecedential decision. But it is, also, to use Deb’s word — consequential.
Why the lofty word choice for a non-precedential decision?
Purifoy is, we think, the first time the current Board independently assessed the Douglas factors on its own. Read the case and think about the Board’s reasoning. You will be in much better shape to defend the agency’s penalty selection for years into the future.
3 – Consider both aggravating and mitigating Douglas factors and include them in the proposal notice. Some will tell you that only aggravating factors belong in the proposal notice. After all, while most all adverse actions have some mitigating factors, it’s usually the aggravating factors that control the outcome, and only aggravating factors are required at the proposal stage.
However, former FELTG President and founder Bill Wiley had this to say about that: “Do you REALLY want to bet your case on defending the evaluation of whether a specific factor is aggravating or mitigating? Length of Service can be either aggravating or mitigating, depending on how long the employee has been a civil servant. We have to consider both aggravating and mitigating factors in the final decision. Why would we not put them all in the proposal so that the employee knows what we’re doing and why? Maybe we’ve forgotten something (e.g., military service) that is required to be considered. The employee should have the opportunity to know this stuff so she can respond and defend herself completely.”
Join us April 15-19 for MSPB Law Week, where you can get the most effective guidance and up-to-date information via an engaging week of training focusing on the legal requirements and best practices for penalties and much more. [email protected]
Comments can be, at the very least, disrespectful, disillusioned, and highly uneducated. In this case, they showed a complete misunderstanding of the agency mission and a mistrust of government, in general. Read more.
By Dan Gephart, February 20, 2024
If it feels like a dangerous time for Feds, that’s because it is. Attorney General Merrick Garland warned earlier this year about a “deeply disturbing spike” in threats against Federal workers.
A few weeks after Garland’s announcement, the unimaginable happened. A 32-year-old man killed and decapitated his father in their Bucks County, Pa. home. The man then posted a 14-minute YouTube video in which he held up his father’s decapitated head and called him a traitor. Why, according to the son, was the father a traitor? Because he was a Federal employee. The man then urged others to commit similarly violent acts against government officials. Police recovered a USB device that allegedly contained pictures of Federal buildings and instructions on how to make an explosive device.
Meanwhile, it’s election season when the discourse about Federal employees often turns ugly. This year, the rancor is uglier. It’s also quite dangerous. It was this election season, after all, when a major presidential candidate, who has since dropped out, promised, if elected, to “start slitting throats” in the Federal workplace.
We don’t want to be alarmist, but we do want to ensure your agency is as prepared as possible if violence shows up at the office, whether it’s caused by a current or former employee, a family member of an employee, a customer, or someone unknown to the agency.
FELTG instructor Shana Palmieri provides the following guidance (and much more) during her Assessing Risk and Taking Action: Threats and Violence in the Federal Workplace training (next held on April 3.) [Editor’s note: To have Shana teach this class directly to your agency, contact [email protected].]
You should have a set of policies and procedures in place, and they should be accessible to all employees. Those policies and procedures need to include:
- How the agency handles any incident of threatening or inappropriate behavior.
- The process for reporting the behavior (incident reporting).
- How the agency handles each type of violence.
- Training that will be provided to staff.
- The assessment protocol once an incident report has been submitted.
- Who is responsible for the assessment process.
- Who is responsible for the development of the management plan.
- How staff will be notified of the management plan if there is a potential risk.
You should also have a prevention strategy that includes:
- An effective incident reporting process. This process should encourage employees to submit concerns.
- A relationship with local law enforcement. Does your agency receive reports from local law enforcement of potential risks within the community?
- Effective protection. Physical security alarm systems, security staff, building access, sign-in processes for the general public.
- An effective automated warning system.
Another key component of prevention strategy is take all threats of violence seriously. And take immediate action when those threats come from current employees. Remember, a threat of violence is misconduct. Work your way through the Douglas factors, of course, and determine whether the threats warrant a suspension or removal.
There are numerous cases where removal for threats have been upheld – even as a first offense. In Robinson v. USPS, 30 M.S.P.R. 678 (1986), the MSPB found an employee’s verbal threat to a supervisor warranted removal despite the employee’s lack of prior discipline and four years of service. Per the Board: Such behavior affects the agency’s obligation to maintain a safe workplace for its employees, thus impinging upon the efficiency of the service.
The Federal Circuit echoed those thoughts in 2010 and reiterated them more recently in Jolly v. Department of the Army, No. 2017-1919 (Fed. Cir. Sept. 11, 2017):
“Where an employee makes ‘threats … against her supervisor [that are] unprofessional and inappropriate, and . . . they adversely affect the work atmosphere,’ the penalty of removal is ‘within the permissible range of reasonableness.’” [email protected]
Board Chairman/Chief Executive Officer Vincent Logan is a member of the Osage (Tribal) Nation and the agency’s first openly LGBTQ+ Board Chairman and CEO. Here’s why he has made DEIA a priority.
By Dan Gephart, January 17, 2024
Over the last several years, agencies have paid more particular attention to harassment, including the non-EEO kind. This has led to a greater general awareness of hostile work environment. Unfortunately, while more people are aware of HWE, there are way too many who don’t understand exactly what it is.
Much of the misunderstanding is on the part of employees who define the term “hostile” way too broadly, Ann Boehm wrote late last year. However, those who should know better are not immune to confusion when it comes to recognizing and addressing an actionable hostile work environment.
Most EEO and HR professionals can recognize verbal and physical behavior that is unwelcome, and most can discern if the conduct was based on the employee’s protected status. But confusion rears it head when discussion turns to the third part of the elements of proof – determining if the conduct was sufficiently severe or pervasive to alter the terms, conditions, and privileges of employment.
There is no simple rule or guideline for determining hostile work environment, as it often depends on the unique circumstances of each case. Here are five points to help you make the appropriate determination.
- Remember that it’s severe or pervasive – not and.
- This means a single incident, if severe enough, can create a hostile work environment.
- The EEOC found sufficient evidence to support a finding that a manager came up to the complainant while she was at her workstation, grabbed her around the waist, and kissed her on the neck. Trina C. v. USPS, App. No. 0120142617 (2016).
- A male coworker pushed the complainant’s hair back and stuck his tongue in her ear. Hayes v. USPS, No. 01954703 (1999).
- On the flip side, a single incident that is not severe would not be an HWE. Here’s an example from a Supreme Court case:
An employee met with her male supervisor and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.” The supervisor read the comment aloud, looked at the employee and stated, “I don’t know what that means.” The male employee then said, “Well, I’ll tell you later,” and both men chuckled. The Supreme Court ruled: “Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in employment terms and conditions.” Clark County School District v. Breeden, 532 U.S. 268 (2001).
- However, non-severe conduct could create a hostile work environment if it is frequent or pervasive. Some of the actions in Gillespie v. McHugh, App. No. 0120080758 (2012), are not severe alone, but when viewed together, it’s another story. Over time, the supervisor:
- Told the complaint that she was not an expert on regulatory matters and that the districts didn’t come to her for advice.
- Gave the complainant a lower performance rating than she had received previously, and one lower than all other attorneys in her group.
- Told the complainant she was not qualified to be on the Chief Counsel’s Management Partners’ Group.
- Told the complainant she didn’t know how to brief people.
- Sent an email to a Regulatory Appeals Officer apologizing for inadvertently sending out a draft for others to review, while blaming the complainant for the mistake.
- Chastised the complainant for not volunteering to work on a project.
- Acted in a hostile and demeaning manner towards the complainant during a meeting.
- Accused the complainant of being condescending, rude and in violation of her oversight responsibility.
- Intentionally refused to select the complainant to represent the Office of Counsel at weekly meetings.
- Blocked an on-the-spot award that a district wanted to give the complainant.
- And much more.
On their own, some of the bullets above appear to be standard supervisory actions. And as we know from the numerous emails we’ve received (and the article Deb wrote last year), some overly sensitive employees are confusing basic supervisory functions with harassment.
In Gillespie, however, the pervasiveness of the evidence along with witness statements led to the EEOC overturning its administrative judge’s ruling that sided with the agency.
“It was a very nasty tone,” a co-worker testified about one of the meetings. “That’s what made me feel sick … And since [the complainant] is a good coworker and team player and has always been helpful, I was thinking, well, how can I reiterate to [the supervisor] that [the complainant] did everything she was supposed to do for my team . . . and make sure [the supervisor] understood that.”
In Gillespie, the EEOC not only overturned the AJ’s decision, but it also found the agency liable. While it directed the agency to secure training for the supervisor, the EEOC also strongly recommended discipline.
- When making determinations about a hostile work environment, always consider the following:
- Frequency and duration of conduct
- Vulnerability of the victim
- Makeup of the workforce
- Relative positions of the perpetrator and harassed employee
If you’re looking for more guidance on hostile work environments, join us on Feb. 20 for the two-hour virtual training Navigating Complex Hostile Work Environment Harassment Cases. [email protected]
Welcome to another year-end News Flash, where we reveal the two most popular FELTG newsletter stories (based on the number of reads and forwards) for each month of 2023. Let’s dive in.
By Dan Gephart, November 13, 2023
I used to be skeptical when people talked about generational differences in the workplace. I thought it was an over-generalization. I’ve since gained an appreciation for the data and how it can improve everything from performance feedback to workplace logistics.
The American workplace is going through a generational shift. Millennials (born 1980-1994) are now the largest generational workgroup, followed closely by Gen X (1965-1979) and Baby Boomers (1946-1964). In the Federal workplace, Gen X still holds an edge, but the percentage of Millennials continues to grow. Understanding the differences between these groups is as important as ever.
Oh, and look out: Gen Z (1995-2009) is expected to make up more than a quarter of the overall workplace within two years.
But that’s not all. An understanding of generational differences is important to address the following workplace situations.
- Remember that “OK, Boomer” slam? Do you still joke about everybody-gets-a-trophy Millennials? Luckily, the rancor of a few years ago has died down. Unfortunately, a lot of inter-generational mistrust continues to exist in the workplace.
- Major workplace change (offices to cubicles, cubicles to open spaces, open spaces to remote work) has often been mired in generational conflict. Understanding generational needs will help your agency in its current transition to a permanent hybrid workforce.
- The Biden Administration continues to stress DEIA (diversity, equity, inclusion, and accessibility). Age and experience are key diversity factors.
- And, finally, there’s the performance As a group, Federal supervisors have gotten better at performance feedback. But too many supervisors still struggle.
There is no one way to provide employee feedback. It depends on the relationship between the employee and the rater, according to FELTG Instructor Susan Schneider. [Editor’s note: Susan presents Successfully Leading a Multi-generational Team on March 12. Register now.] She offered this overview:
- “Generally, Gen Zs prefer feedback delivered in a variety of ways,” Susan said. “Gen Zs, like Boomers, prefer direct and actionable feedback. Ideally, the feedback is tailored to their individual needs.”
- Millennials prefer timely, specific, continuous feedback given in a collaborative and supportive way.
- Gen Xers prefer regular direct and honest feedback. “For both Gen Xers and Gen Zs, keeping their individual needs and goals in mind is the best approach,” she said.
- Boomers are geared to formal feedback sessions like most Federal organizations’ annual or half-yearly sessions. Specific and actionable feedback is ideal.
Those differences are well-researched, with the general conclusion that Millennials need “frequent, VERY frequent, feedback.” Should supervisors really consider a person’s generation before sharing feedback?
“Perhaps, as a start,” Susan said. “Management starts with communication. Well, management IS communication. So, yes, communicate differently if personally and organizationally possible.”
Susan has taken a particular interest in the fast-growing Gen Z.
“Gen Zs flourish in diverse workplaces,” she said. “They are practical, and, of course, digitally fluent. Gen Zs want a culturally competent manager, stability, competitive wages, and mentorship. Their communication style is face-to-face and video chats with friends.
“When I think about our Gen Zs onboarding during COVID, I’m concerned. How can their co-workers, including managers, provide (or simulate) face-to-face communication? I have anecdotal evidence; a mentor/protégée pair told me they met in person outside during COVID.”
Back to my original skepticism of the topic. I asked Susan how she’d respond to someone saying generational differences are over-generalizations or worse stereotypes.
“Generation is one way to understand peoples’ life experiences and what makes each of us who we are,” Susan told me. “Aspects of a person, such as life stage (such as becoming a parent) or military service, first-generation college, living abroad, first language learned, or where we grew up are all within us. Learn about people and accept that human beings are formed by many influences. Respect personal boundaries, and don’t accept your first impression as fact.”
“Diversity of thought is a huge asset for an organization.” [email protected]
OPM Deputy Director Rob Shriver took time to talk with FELTG this month about the proposed rule that could make it very difficult for future administrations to revive Schedule F. Read more.
By Dan Gephart, October 16, 2023
Sen. Joni Ernst is clearly not a fan of remote work. She recently accused Federal teleworkers of “fraud.” Dig beyond the headline and you’ll see many of Ernst’s claims were based on outdated reports. But she may have been onto something when she asked how many Feds were still getting location-based pay and Washington, D.C., wages while teleworking from elsewhere.
We now know of at least one remote worker whose actions fit that description. And while those actions were not outright fraudulent, they did show a lack of candor, according to a recent initial decision by a Merit Systems Protection Board administrative judge (AJ). In Atterole v. VA, PH-0714-23-0184-I-1 (Sept. 7, 2023)(ID), the Veterans Benefits Administration removed the appellant for failure to follow the agency’s telework policy and lack of candor.
The appellant’s duty station was Baltimore. In the early days of the pandemic, she (like most of her Federal colleagues) was granted 100 percent telework. In December 2020, citing the deaths of her mother and brother-in-law, she requested to work from Port Charlotte, Fla. She said she’d work in Florida from Jan. 4 through March 4, 2021, and return sooner if needed.
The VA Telework policy did not require employees to change their duty station when they are working outside of their geographic region for fewer than six months and their absence is related to medical or other personal reasons. However, the employee was still working and living in Florida seven months later.
She failed to provide a Baltimore address to leadership and didn’t update her telework agreement – violations of agency policy.
Meanwhile, the VBA, concerned about allegations that employees were living in states other than their duty station of record and improperly receiving locality pay, appointed an investigatory board. And the employee’s sworn testimony before that board made matters worse.
At first, the appellant invoked her Fifth Amendment right, then stated that she had “permission to be in a different state but that’s all I’m going to say on the matter.” She also told investigators that “there was no expiration, [that she was] waiting on stuff to handle some personal matters …,” before testifying that other people on the staff were working from different locations than their geographical region. When asked to identify those people, she admitted that she knew of no one else beyond herself.
The AJ noted that while lack of candor doesn’t require intent to deceive, an “element of deception must be demonstrated,” and, in this case, the appellant knowingly gave “evasive and incomplete answers … with the intent to mislead the agency.”
The employee countered that the agency failed to reasonably accommodate her disability and retaliated against her for that activity. Her request to work from home 100 percent of the time was denied. However, the agency granted her numerous accommodations including a light above her desk, a space heater, stand-up desk, ergonomic chair, designated parking space and, in the event her office temperature couldn’t be regulated, the option to work from home temporarily. When the pandemic hit, she was granted 100 percent telework.
The AJ found the employee’s “vague assertions” failed to show by a preponderance of evidence that the EEO activity was either a motivating factor in or a but-for cause of her removal. The AJ concluded that the deciding official properly considered the relevant Douglas factors and found removal to be an appropriate and reasonable penalty. [email protected]
