By Bill Bransford
Q&A Session
March 15th, 2010 | Uncategorized
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.
Q: I was the respondent in an EEO (Equal Employment Opportunity) discrimination complaint. I gave testimony and provided evidence in my defense. I was not found in any way to have discriminated against anyone. However, I raised some issues about my superior and her mismanagement and her “threat” made to me. I also did not like the way the EEO investigators conducted themselves, though I was not found to have discriminated.
Since the investigation, Ii have been retaliated against by my boss. She issued me a warning memo for events spanning 21 months prior, the most current was 15 months ago. EEO has entertained more complaints against me that are non EEO and I was brought up on disciplinary charges on hearsay. Can I claim retaliation as I did cooperate in an EEO investigation, though I was the respondent?
A: Retaliation in EEO Investigations
The complainant, the subject and any witnesses in an EEO investigation are protected from any retaliatory action for cooperating with an investigation. In order to prove retaliation, an employee needs to show a causal connection between his or her cooperation with the EEO investigation and the adverse employment action. One way to establish an inference of retaliation is to show that there was a close period of time between the protected activity (cooperation with the EEO investigation) and the adverse employment action. Generally, this will be difficult if an adverse action occurred over a year after the protected activity for which an inference of retaliation is being sought. Previously planned activity by higher management also can not be used to infer retaliation. In other words, if a letter of admonishment was being prepared or in the planning stages prior to the protected activity, then it will be difficult to show the letter of admonishment was retaliation.
In sum, to determine whether there has been retaliation, the employee should focus on the facts. Why did the adverse action occur now? Why at all? Why or why not to others in similar situations? Was previously tolerated behavior suddenly found unacceptable after participation in EEO activity? These questions go to the ultimate issue of whether the Agency was motivated by the employee’s protected activity when deciding to take the adverse action.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Tags: EEO, EEO investigation, retaliation
Q&A Posts
March 15th, 2010 | Uncategorized
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.
Q: In an appeal to the MSPB (Merit Systems Protection Board), can the employee ask for money damages? That is, if the board decides the employee’s argument(s) prevail, can they award him money in lieu of getting his job back?
A: Remedies Available at the MSPB
If an employee prevails in an MSPB appeal, the MSPB administrative judge has the authority to award a range of remedies designed to make the employee “whole,” that is, to place the employee in the situation he or she would be in if the adverse action had not taken place. Remedies an administrative judge may award include reinstatement, back pay with interest, reversal of a demotion or an increase in previously reduced pay, restoration of lost benefits, a purging of records of the adverse action, and if the appellant prevails in an EEO claim, compensatory damages of as much as $300,000.
The MSPB judge’s discretion is related to the job and while the judge can order reinstatement, back pay, lost benefits and attorney’s fees, the judge may not order money compensation in lieu of a return to the job. Such a result, however, can be obtained through settlement if both the appellant and the agency agree.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Tags: MSPB, MSPB appeal
Q&A Session
March 12th, 2010 | Uncategorized
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.
Q: Please let me know what constitutes sick leave abuse.
A: Sick Leave Abuse Explained
Sick leave abuse is a broad and controversial subject that unfortunately is pervasive in the federal workplace. It occurs when an employee misrepresents that either he or she or a family member have an illness or medical condition that requires the employee to be absent from the workplace on an approved leave status to care for him or herself or the family member. Typical examples include employees claiming day-long medical appointments or being ill but instead wanting a long weekend, claiming a full day of sick leave when the medical appointment is for only one hour and employees can report back to work, claiming they are unfit to perform their duties due to an illness or impairment when they are not impaired, and substituting annual leave with sick leave for a non-medical absence just because annual leave is exhausted.
Most managers suspect sick leave abuse only once it becomes a pattern, such as when employees habitually use sick leave for frequent absences, request sick leave near or on work deadlines, or submit sick leave requests near the weekends or to extend pre-scheduled vacations. In those cases, it is usually best for managers to first monitor the employee’s use of sick leave and give closer scrutiny to the supporting medical documentation (which may be required for more than three days of sick leave). If the absences continue, the next step is placing the employee on leave restriction with a formal written notice outlining specific time and attendance and leave requirements, including providing medical documentation for every unscheduled absence.
Sick leave abuse is a serious offense and should be addressed head-on by management. Besides stealing time from the federal government under false pretenses and causing a disruption to the workplace, sick leave abuse sets a bad example for others in the office and can adversely affect morale. Managers should consult with their human resources office as early as possible and before taking action to ensure that they are following rules and receive advice on how best to address the issue with the employee.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Tags: sick leave
Q&A Session
March 12th, 2010 | Uncategorized
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.
Q: I have a pending case before the EEOC pertaining to disability discrimination in the Federal Sector. My understanding is that when the statutory time has elapsed I may pursue my case in Federal District Court. I have read that under the Rehabilitation Act I may be entitled to have an attorney appointed by the Judge to represent me. Can you advise me further regarding this entitlement?
A: Pursuing an EEO Case in Federal District Court
Your understanding is right! If your EEO complaint is pending before an EEOC administrative judge (AJ), you can withdraw your hearing request and file a civil complaint in federal district court after 180 days have passed since the request was filed. The same applies to appeals of EEOC AJ decisions or final agency decisions (FADs) pending at the EEOC appellate level, known as the Office of Federal Operations. Once 180 days have expired from the filing of the appeal and no final decision has been issued, you can withdraw the appeal and then file a civil action in the appropriate federal district court. In either instance, you need to file a written notice with the EEOC (and send a copy to the agency’s representative), and then an order will be issued dismissing your case. After receipt of that order, you then have 90 days to file in the appropriate federal district court.
Some may ask why go to federal district court if you already chose the EEOC? Reasons include extricating yourself from long delays and contentious discovery disputes that sometimes occur at the EEOC, compelling the testimony of retirees and contractors not possible at the EEOC, having your case heard by a jury, and the ability to recover attorney’s fees in federal court for age discrimination claims that are not recoverable at the EEOC.
Plaintiffs who file a Rehabilitation Act (or even a Title VII, Age Discrimination Employment Act, or other employment based civil action) case in federal district court are not “entitled” to a court-appointed legal representative. You can apply for one with the judge, but counsel at no charge are usually only appointed for indigent plaintiffs who are unemployed and have no other source of income or other personal finances. The 90 day clock for filing the civil action continues while the application is pending or otherwise searching for an attorney.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Tags: district court, EEO complaint, EEOC
Q&A Session
March 12th, 2010 | Uncategorized
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that may be of interest to the entire audience.
Q: Good evening, I am an SSA employee. I have been on medical leave and exhausted all my annual leave and sick time. My manager has informed me they have no choice but to charge me absent without leave (AWOL). I will submit medical documentation to continue my leave without pay (LWOP), but my question is: Should I go to work on even without my doctors authorization? I have a pending immediate disability retirement claim at the reconsideration level and a SSA disability claim. I filed for workers comp and my claim was denied. I was issued a reprimand due to my use of the Family and Medical Leave Act (FMLA) — they said I was rude to management, but that is not true. I need help.
A: Sick Leave Gone and Still Sick? What’s Allowed and What’s Not.
This reader’s question is about employee rights and management obligations when sick leave has been exhausted, annual leave has been used up and the sickness and resulting need to be absent from work continues.
Some agencies will authorize leave without pay in these situations and do expect that to receive it the employee will provide medical documentation. There are also the options of advanced sick leave, donated sick leave and sick leave banks, but these vary from agency to agency and are not absolute rights.
Essentially, when an employee runs out of sick leave the employee can be put in an AWOL status except as outlined below. Sometimes, the employee can receive LWOP or advanced sick leave when such benefits are given to other employees in similar circumstances. The employee may also be entitled to Family Medical Leave for LWOP absences of up to 12 weeks a year for serious illnesses. To obtain FMLA leave the employee must submit medical documentation and, according to OPM regulations, must submit the FMLA request in advance to the extent practicable and, if not practicable, within two days after return from the absence for which the Family Medical Leave is sought. As a matter of practice, most agencies will approve LWOP for employees who submit medical documentation supporting the need to be absent while a disability retirement application is pending. But an agency does not have to do this and can put the employee on an AWOL status unless there is some right or expectation to authorized leave, including LWOP.
Whether an employee goes to work when still sick or disabled should be decided between the employee and the doctor, particularly when working could threaten the employee’s health or the health of others. The remedy, as this reader points out, is disability retirement if the worker has been a federal employee for at least 18 months and has a disability likely to last at least a year. When disability retirement is approved by OPM, an annuity payment is made back to the point that an employee went into a non pay status, whether AWOL or LWOP.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Tags: AWOL, disability retirement, FMLA, LWOP
Documents boost EEO defense
February 21st, 2010 | Uncategorized
Any manager who has ever gone to the agency’s human resources office to get help with a problem employee has heard the question, “Where’s your documentation?”
Documentation is just as important for a manager who has been or who might be accused of discrimination in an equal employment opportunity case, but there’s a twist.
In the EEO arena, the manager is in a reactive mode. There are times and methods and uses of documenting in an EEO case that can significantly decrease the likelihood that a manager will be found guilty of discrimination.
The fundamental difference between taking a disciplinary or adverse action against a problem employee and defending an EEO case lies in the burden of proof. In an adverse action, the manager must prove by a preponderance of the evidence that the adverse action was justified. In an EEO case, a manager need only state legitimate, business reasons for a decision that becomes the subject of an EEO complaint.
The manager has no burden of proof, but only a burden of articulation. The employee can prevail only if he or she can show that the manager’s articulated business reason was a pretext for discrimination. However, the manager’s credibility is demonstrated and strengthened through the effective use of documentation.
Let’s examine the use of documentation in a nonselection-for-promotion case, one of the more frequent reasons for the filing of an EEO complaint.
The first step for a manager is putting something in writing as soon as possible detailing the reason for the selection decision. The more contemporaneous a document, the more credible it will be. The initial documentation can be informal via an e-mail from the selecting manager to him or herself giving reasons for the selection. The e-mail can also be sent to the HR office. The format matters less than the timing and level of detail.
A manager who makes a controversial promotion selection decision is well-advised to put down specific reasons for the selection of one candidate over others. The following types of statements are not sufficient: “Three candidates were referred to me, and I was told I could select any of them, and I chose John” or “John interviewed better than Mary” or “In my opinion, John was more qualified than Mary.”
Instead, give detailed reasons why John’s experience, knowledge or demonstrated abilities showed him to be the better candidate. No one will argue with or dispute a truthful, detailed reason for a decision.
A manager who fails to document the reasons for a nonselection or other personnel action that is later the subject of an EEO complaint will receive a second chance. Within about a month and a half of the selection, the selecting official will receive a call from the EEO counselor requesting a meeting or telephone conference to discuss the selection decision. The manager should then prepare a detailed memo justifying the selection.
The manager need not show the memo to the EEO counselor, but in discussion with the counselor should give reasons that are consistent with the memo. The manager should prepare a document summarizing the discussion with the EEO counselor, keeping in mind that the counselor will also be preparing a report about the meeting that the manager may never see.
At later stages in the EEO process, the manager will be asked to make a statement to an investigator and to testify at a deposition and hearing or trial. A prudent manager will review the earlier documentation at each of these steps to assure consistency in testimony.
Human memories fade and change over time. A manager who makes good, well-documented decisions may, years later, remember details in a different way.
The lawyer on the other side may then impeach the manager by showing inconsistencies with earlier statements.
Remember: Early, detailed documentation that is maintained, easily located and reviewed will assure credible consistency and the likelihood of prevailing in an EEO case.
Bill Bransford is managing partner of Shaw, Bransford & Roth in Washington. He serves as general counsel to the Senior Executives Association, Federal Managers Association and other professional associations. He co-hosts the “FEDtalk” program on Federal News Radio on 1500AM in the Washington, D.C., area. E-mail your legal questions to lawyer@federaltimes.com and view his blog at blogs.federaltimes.com/federal-law.
Ask the Lawyer Changes Hands in 2010
February 18th, 2010 | Uncategorized
In 2010, the Ask the Lawyer column will be written by Bill Bransford, managing partner of Shaw, Bransford & Roth, P.C.
For more information on Bill or the law firm, please visit http://www.shawbransford.com/.
Archived columns written by Greg Rinckey will still be available on this blog in the section below.
Avoid the pitfalls of holiday office parties
November 30th, 2009 | Uncategorized
Throwing an office holiday party can be a welcome time to boost employee morale, but be mindful of the legal pitfalls that can lurk in the holiday cheer. From the punch bowl to the dance floor, liabilities exist for you as a federal supervisor, even if the event is held outside the workplace and the workday.
Take precautions to prevent harassment at your party. Work with your agency’s human resources department to ensure that all employees are well versed in your agency’s anti-harassment policies before the party occurs.
The key for you as a supervisor is to know that your agency can be liable and you can be disciplined if an employee of yours proves that he or she was the victim of unwanted conduct of a harassing nature, based upon his or her race, sex, national origin, age, religion, veterans or union status, sexual orientation or prior complaint activity.
If you witness a subordinate being harassed during the festivities, you have an obligation to stop that harassment. Ignoring it, or failing to inform a higher authority about the incident, could subject you to discipline and make your agency liable.
Even if the party is off work premises and after duty hours, your agency has jurisdiction to investigate any claims and take appropriate disciplinary action against those involved.
Holiday parties may also put the spotlight on consensual romantic relationships within the workplace. There is no governmentwide policy limiting the rights of workers to date each other. It is up to each agency to formulate its own policy, if any, on intraoffice relationships.
However, as a supervisor, if you bring a subordinate as your date, you have several reasons to be concerned about your job. Be aware of how third parties may perceive an intraoffice relationship, especially in the context of a social event. The Equal Employment Opportunity Commission has said that sexual favoritism can create a discriminatory environment if subordinates could claim you are giving preferential treatment to your mate. Also, if your relationship goes sour, there is the risk that your mate could claim the relationship was not consensual, which could lead to discipline against you for harassment.
In order to have alcohol at your party, special authority must be given by the head of your agency. The request must be reviewed and approved by your agency’s designated ethics official. Even if your party is off site, as a supervisor, you may have to enforce your agency’s alcohol and substance abuse policy. If an employee is obviously intoxicated and planning to drive, you should call a cab or ensure in another way that the employee does not drive. If possible, stop serving alcohol at least an hour before the party ends. Also, provide water, soda and other alternatives to alcohol.
Other concerns that could pose legal issues.
Any kind of contribution from employees for the holiday party must be voluntary. Any employee who chooses not to contribute monetarily should not be excluded from a celebration that happens in the office during business hours.
Door prizes or drawings could be considered prohibited gambling. Clear any such ideas with your agency’s ethics officials.
Generally, employees should not use an agency vehicle to attend a party held outside of work. Participation at social events is generally considered personal, and use of a government vehicle to or from the event would be unauthorized.
“Secret Santa” and other gift exchanges need to be in compliance with employee ethics and conduct standards. Pay attention to where the presents are coming from and to whom they are going. Employees are generally prohibited from giving presents to their supervisors, or receiving a gift from someone at a lower pay grade. If the gift is coming from a contractor or contractor employee or another person or organization that has, or plans to have, business dealings with your department, the exchange of gifts is prohibited.
With all that in mind, office holiday parties can be great morale boosters for your employees. Enjoy them, but keep in mind your responsibilities as a federal manager. Happy Holidays.
— Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.
Tags: alcohol, harassment, holiday, liabilities, office, party
Managing employee sick leave
September 21st, 2009 | Uncategorized
Part of your job as a supervisor is to enforce sick leave policies and procedures. And sometimes, that means taking steps to ensure your employees don’t not to abuse this benefit. So here’s what you need to know.
Full-time federal employees accrue sick leave at the rate of four hours per pay period — or 13 days annually. Federal employees can carry over unused sick leave from year to year and there is no limit on how much an employee can accumulate.
An employee can take sick leave when he is ill or injured; to care for an injured or ill family member; to attend or arrange a family member’s funeral; to receive optical, dental or medical treatment; if he thinks he may have been exposed to a contagious disease; or if he’s adopting a child.
Use of sick leave is subject to management approval. The requirements for requesting and granting leave differ from agency to agency. For example, some agencies may require that employees request the use of sick leave for medical appointments in advance.
Supervisors have the right to require employees to produce evidence of illness, injury, treatment or examination to support a request for sick leave. A doctor’s certificate or note is generally acceptable for these instances. If a manager requests this, federal rules require the employee to provide documentation certifying illness within 15 calendar days — or up to 30 days under an extension, if warranted — of the request.
Documentation supporting a sick leave request must provide sufficient detail to determine whether and to what extent the employee was incapacitated. If the documents appear suspicious or vague, then request further information. Requests for additional documentation should be coordinated through the agency’s human resources department to ensure proper procedures are followed.
Unless an employee has shown a pattern of sick leave abuse, then require written evidence of illness only in cases where an absence totals three days or more. If the leave is less, then the employee’s word should suffice — requiring documentation in unwarranted circumstances can lead to allegations of discrimination or harassment.
If you suspect an employee is abusing sick leave, proceed with care. An employee may view harsh enforcement of sick leave regulations as harassment or discrimination.
A pattern of abuse can usually be identified through suspicious requests for sick leave, such as those that fall on a day for which the employee was denied annual leave, or a day when the employee was supposed to do an unpopular work assignment, or a day that extends a holiday or weekend. Such requests, if made repeatedly, warrant scrutiny.
If you note a pattern of leave that indicates abuse, counsel the employee on the legitimate purposes of sick leave and on disciplinary action that could result from abuse. Once reasonable suspicion has been established and documented, then it is appropriate to request documentation supporting sick leave for even a single day’s request.
Sick leave abuse sometimes stems from an employee’s personal problems, including substance abuse. If an employee says a personal problem is the underlying reason for taking sick leave, refer him to the Employee Assistance Program. Be sure to document the counseling and, in the event of future abuse, apply the next disciplinary steps.
Don’t allow employees to disregard request procedures. A lenient demeanor will inevitably lead to difficulty when a case of serious abuse occurs. And don’t ignore patterns of sick leave abuse. These issues don’t correct themselves and will affect the overall productivity of your department.
— Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.
Avoiding national origin discrimination
August 3rd, 2009 | Uncategorized
As a federal manager, you are on the front line in protecting your agency against equal employment opportunity complaints under Title VII of the Civil Rights Act.
To prevent discrimination in the workplace, you must understand what qualifies as an act of discrimination or harassment. The category causes the most confusion is discrimination based on national origin.
According to the Equal Employment Opportunity Commission, national origin discrimination occurs when equal employment opportunities are denied to an individual based on the country where he or she was born or from which his or her ancestors came. More specifically, EEOC prohibits discrimination based on the “physical, cultural or linguistic characteristics of a person’s national origin group.”
Two types of national origin discrimination tend to cause the most confusion: language and accent discrimination.
Supervisors have no right to expect that employees who speak a language other than English speak only English while on duty or break. Some supervisors think t English-only rules eliminate resentment that may result when they or their employees feel shut out of conversations they don’t understand. But the attempt to eliminate languages other than English will likely result only in one employee’s resentment and an EEO complaint.
This doesn’t mean that an English-only rule is never acceptable. But the rule must be justified by a clear business necessity. For example, it would be acceptable to expect an employee whose main responsibility is to interact directly with a predominantly English-speaking public to speak only English while on duty.
Accent discrimination isn’t as clear-cut. The short of it is that federal employees cannot be denied job positions or growth opportunities because of an accent. But EEOC has found that employees must be able to communicate effectively in order to do their jobs. This means that management actions such as reassignment or removal are permissible if it is established that an employee’s accent or lack of English comprehension prevents him from performing his job.
Managers must consider a few factors when evaluating the impact of an employee’s accent on job performance. The first is the frequency and complexity of oral communication required. If the employee’s main job function is to staff a call center, a heavy accent could be of concern. Second, evaluate the relative gravity of miscommunication. If the employee is responsible for providing oral instructions in the event of an emergency, serious safety issues could come into play.
When looking at these factors, you should not consider only your own difficulty understanding the individual, but the difficulty for co-workers and the public as a whole. If it’s determined that the problem lies in the individual’s overall ability to adequately communicate in English, an adverse personnel action may be justified.
Generally, to establish a discrimination complaint an employee must demonstrate that the agency’s actions resulted in worse treatment for him in comparison to the treatment of employees of other races, color or national origin. However, the employee does not have to prove that the discrimination was intentional. Any personnel decision that you’re unable to justify with explicit reasoning could be established as a pretext for discrimination. And evidence of derogatory remarks toward the complainant’s group or other discriminatory views, no matter if they were made jokingly, will likely discredit any justification you may have.
To protect your career and the agency’s reputation from the effects of a discrimination complaint, ensure personnel decisions are clearly documented and made for specific, identifiable reasons.
Never dismiss derogatory remarks, jokes or symbols as unimportant. Jokes that seem inoffensive to you may be offensive to someone else.
A visit to your human resources department, EEO specialist or private counsel before taking action against an employee can go a long way in avoiding an EEO complaint.
— Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.