We have previously discussed just how severe behavior must be before it constitutes an unlawful hostile work environment.  Now you can add being the target of projectiles to the list of things that may not constitute a hostile work environment.  In Brooks v. Merit Systems Protection Board, 112 LRP 16856 (D.D.C. 2012), the U.S. District Court, District of Columbia found that an unlawful hostile work environment did not exist where the employee, Ms. Brooks, had been unjustly criticized, marginalized, and humiliated at work over a period of many years, including an incident where her supervisor threw a notebook in her direction.  Ms. Brooks pointed to incidents in which her supervisors raised their voices at her during meetings, placed her in a “Team of One “for four months, gave her periodic negative performance appraisals, and threw a notebook in her direction as evidence her claims of an unlawful hostile work environment.  The Court found that the conduct was not so severe and pervasive as to alter the conditions of Ms. Brooks’ employment, and noted that the courts generally reject hostile work environment claims based on work related actions, such as job assignments and performance appraisals, by supervisors.  Even the incident where a notebook was thrown in her direction was not enough to warrant a finding in Ms. Brooks’ favor.  The Court concluded that Ms. Brooks was subjected to no more than the “ordinary tribulations of the workplace.”  See id., citing Faragher v. City of Boca Raton, 424 U.S. 775, 788 (1998).  

In McGriff v. Department of the Navy, Docket No. FC-0752-09-0816-I-1 (Apr. 26, 2012), the MSPB once again expanded upon the meaning of federal employees’ due process rights in connection with an employee’s indefinite suspension based upon a suspension of access to classified information.  The Board, while specifically noting that it lacks authority to review the merits of a federal employee’s indefinite suspension in connection with a suspended security clearance, vacated an initial decision sustaining an Information Technology Specialist’s indefinite suspension because it found that the Agency failed to provide minimum due process.

Specifically, the Board held that even under circumstances in which the Agency has: (1) provided advanced written notice of the allegations underlying an indefinite suspension; (2) provided an opportunity for the employee to respond to the underling charges; and (3) had reasonable grounds to support the suspension; the Agency may still deprive an employee of his or her constitutional due process rights, if the official designated to make the final determination on the employee’s indefinite suspension lacks the authority to change the initial suspension. 

In McGriff, an Information Technology Specialist’s access to classified information was suspended “until further notice” for, among other charges, his use of government time and resources to secure government contracts for a private business owned by his spouse.  Thereafter, the Agency proposed and effectuated McGriff’s indefinite suspension pending final adjudication of his security clearance eligibility.   McGriff appealed his indefinite suspension alleging, in part, that the Agency denied him due process by failing to provide him a meaningful opportunity to respond because its notice of the allegations underlying his suspension was overly vague.  In the Board’s initial decision, the Administrative Judge sustained McGriff’s suspension finding that the Agency provided McGriff the required procedural rights under 5 U.S.C. § 7513, which requires advance written notice, a reasonable time to respond, option for representation, and a written decision.  

However, on Appeal, the Board found that McGriff’s designating official, made certain assertions, which established that he may have lacked the authority to actually change the outcome of the proposed indefinite suspension, and accordingly, McGriff was not afforded a meaningful opportunity to respond.  Specifically, the deciding official stated that the Agency was unable to reinstate McGriff until his pending security clearance eligibility was adjudicated and that Agency policy prevented his reassignment.  In essence, the deciding official appeared to lack the authority to do anything but act as a rubber stamp affirming the indefinite suspension.  The Board explained “[an] agency does not afford an individual with a meaningful opportunity to respond by merely providing an empty process for presenting [an employee’s] defense against the agency’s adverse action.”   The Board ultimately remanded the case for a determination as to whether the deciding official had the authority to not only affirm, but also change the proposed suspension.

McGriff illustrates that Agencies can no longer use 5 U.S.C. § 7513 as a mere checklist for meeting its procedural due process obligations to employee’s facing indefinite suspensions; if the procedure used is still devoid of a meaningful opportunity for the employee to respond to his or her suspension, an Agency can still fall short of providing required constitutional due process.

Recently, we discussed due process violations and when they will result in an adverse action being overturned.  Now we look at another case where due process violations resulted in the employee’s removal being rescinded.

In Solis v. Department of Justice, 112 LRP 10203 (2012), the agency removed an employee, a criminal investigator, based upon charges of conduct unbecoming a DEA special agent and making false statements. In the notice of removal, the deciding official cited to concerns that the employee’s alleged misconduct might have been criminal, thereby raising Giglio (i.e., fitness for duty) issues.  The employee appealed his removal, noting that these Giglio concerns were not addressed in the notice of proposed removal, and as such he had not been provided with an opportunity to address those concerns, resulting in a denial of the employee’s due process rights.  The MSPB agreed, reversed the employee’s removal and ordered “new constitutionally correct removal procedures.”  The Board noted that, “when an agency intends to reply on aggravating factors as the basis for imposition of a penalty, such factors should be included in advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency’s deciding official,” or else a denial of due process may occur.  The agency failed to do so in Solis’ case: the deciding official did not note in the employee’s proposed removal that he had concerns about the Giglio implications of the employee’s actions, yet he cited to these concerns as aggravating factors in determining that removal was the appropriate penalty under the circumstances.  By failing to notify the employee of the aggravating factors considered in the employee’s removal until after the removal was effectuated, the agency denied the employee his due process rights.  Consideration of aggravating factors, like consideration of factual details, must be included in a proposal to remove to allow the employee to respond, or else the MSPB is likely to find the removal defective.

One of the unique rights many federal employees enjoy is a property right to their employment, which provides them with the opportunity to respond orally and/or in writing to proposed adverse actions, including proposed removals.  When employees exercise their right to respond to the charges against them, the proposing Agency must follow certain procedures, or else a due process violation may occur, and an effectuated adverse action will be overturned.

For example, in Seeler v. Department of the Interior, 112 LRP 13397 (Mar. 16, 2012), the Agency removed an employee from his position as a Park Ranger with the National Park Service for his alleged refusal to attend mandatory Federal Law Enforcement Training (FLETC) required for his position.  The employee argued that he was not aware of the training requirements at the time of his appointment.  In the employee’s removal letter, the Agency’s deciding official twice cited to ex parte (private) communications she had with the employee’s supervisor outside of the employee’s presence as evidence that the employee was aware of the mandatory training requirements.  These communications were not provided to the employee prior to his removal, and therefore he had no opportunity to respond to them.  In appealing the Agency’s decision, the employee alleged, in part, that he was denied due process when the deciding official relied upon evidence that was not provided to him until after the removal was effectuated, thereby denying him his right to respond to the charges and evidence relied upon. 

On appeal, the MSPB concurred with the employee.  The Board relied upon the precedent of Stone v. FDIC, 179 F.3d 1968 (Fed. Cir. 1999), noting that a due process violation has occurred where the deciding official receives new and material information by ex parte communications.  The MSPB noted that not all ex parte communications will result in a denial of due process; only ex parte communications that are “of the type likely to result in undue pressure upon the deciding official to rule in a particular manner” that are “so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances” does a denial of due process occur.  Here, the MSPB found the deciding official specifically relied upon the ex parte communications in coming to her determination to remove the employee, and therefore she relied upon new and material information in coming to her decision, resulting in a denial of due process for the employee.

In Ellis v. Department of Defense, 112 LRP 11624 (2012), an employee argued that the agency had reduced his grade when his position was converted from a NSPS to GS position.  The employee was hired as a YA-0301-02 Range and Training Planner under the NSPS system in April 2009.  In October 2009, the NSPS system was repealed, requiring agencies to convert federal employees’ positions to the GS pay system.  Pursuant to the repeal of the NSPS system, in June 2010, the employee’s position was reclassified as GS-0301-12 Range and Training Planner.   The employee believed that this conversion constituted a reduction in pay and grade, violated the terms of his appointment, and failed to comply with 5 C.F.R. § 9901.372.  The administrative judge disagreed, finding that the employee failed to make a nonfrivolous claim, and dismissed the employee’s case for lack of jurisdiction.  

On appeal, the MSPB affirmed the administrative judge’s finding that the employee failed to state a claim and that the Board did not have jurisdiction over the appeal.  In so finding, the MSPB noted that while, by statute, the Board retains jurisdiction over employees’ reduction in grade, a conversion from the NSPS system to the GS system alone does not constitute a reduction in grade.  See 5  U.S.C.  §§ 7512(3), 7513(d).  As the Board has not been granted jurisdiction over the proper classification of a position, it did not have jurisdiction over the employee’s appeal.  The MSPB distinguished its previous decision in Arrington v. Dep’t. of the Navy, 112 LRP 4310 (2012), in which Board found that it did have jurisdiction over the employee’s appeal of his conversion from the NSPS system to the GS system.  That case was decided under the unique circumstances, however: in Arrington, the employee had previously occupied a GS-13 position prior to conversion to the NSPS system, and after being converted back to the GS system due to the repeal of NSPS, he was assigned to a GS-12 position, an obvious reduction in grade.  As the employee in Ellis was hired under the NSPS system and only then converted to the GS system, the Board held that circumstances in Arrington did not apply.

So what does this mean for the average federal employee hired under NSPS who wishes to appeal her conversion from an NSPS position to a GS position?  Unfortunately, unless the MSPB sees a unique circumstance that will allow it to exert jurisdiction over that appeal, the Board will not hear the merits of the case, and will not provide a remedy to the converted employee.

In Macy v. Department of Justice (Bureau of Alcohol, Tobacco, Firearms, and Explosives), EEOC Appeal No. 0120120821 (2012), an employee brought a complaint against the agency for discriminating against her on the basis of sex, specifically alleging that she was not selected for a position on the basis that she is transgender.  In that case, Mia Macy, a police detective, learned of an open position with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) available in the Walnut Creek crime laboratory.  Pursuant to her interest in that open position, in December 2010 or January 2011, Macy spoke telephonically with the Director at the Walnut Creek lab, discussing her experience, credentials, salary, and benefits.  The Director indicated that Macy should have no problem obtaining the position, so long as there were no issues that arose during her background check.  At the time Macy and the Director spoke, Macy was still presenting as a man.  In January 2011, Macy and the Director spoke again, and again the Director assured her that she would be placed in the position so long as there were no problems with Macy’s background check.   Subsequently, Macy was contacted by the contractor responsible for filling the position, Aspen of DC, and her background check was initiated.

On March 29, 2011, Macy contacted Aspen to inform them that she was in the process of transition from male to female.  She requested that Aspen alert the Walnut Creek lab of this transition, and Aspen confirmed that they had done so on April 3, 2011.  On April 8, 2011, the Director of Operations at Aspen emailed Macy and stated that, due to budgetary restrains, the open position Macy had applied for was no longer available.  Macy initiated EEO counseling and learned that the position had not been cut, but rather that another individual had been hired into the position.  Macy filed a formal EEO complaint, alleging that she had been discriminated against on the basis of her sex, gender identity, and on the basis of sex stereotyping.

The agency, in its letter accepting some of Macy’s claims, implicitly dismissed her claims on the basis of gender identity stereotyping, stating that claims of gender identity stereotyping cannot be adjudicated before the EEOC.  After extensive back-and-forth with the agency to attempt to clarify her claims, Macy filed an appeal with the Commission.  The EEOC found that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition, and may therefore be processed under Part 1614 of EEOC’s federal sector EEO complaints process.”

In so holding, the EEOC relied heavily on the Supreme Court’s landmark decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  In Price Waterhouse, the Court held that Title VII barred discrimination based on not only biological sex, but also on gender stereotyping.  Simply put, employers cannot discriminate against individuals who fail “to conform to any gender-based expectations or norms,” and “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.” See Macy, supra, citing Glenn v. Brumby, 663 F.3d 1312 (11^th Cir. 2011).  The EEOC noted that this is true regardless of whether an employer takes an adverse action against an employee because that employee makes the employer uncomfortable with his or her performance of gender, or if the adverse actions are taken because the employer does not like that the employee is not performing gender in a traditional manner. 

Notably, the EEOC did not reach the merits of Macy’s case; that is, the Commission did not make a ruling regarding whether she prevailed in her case, and simply found that her claims were cognizable under Title VII and could be processed through the EEO process outlined in 29 CFR 1614.

Alongside this important holding, procedurally, Macy highlights the importance of responding to an agency’s framing of a complainant’s claims to ensure that the claims have been properly captured.  Without careful scrutiny of and objection to the Agency’s acceptance letter, which had failed to accurately capture the fact that Macy was challenging the agency’s discrimination of her based on gender identity, Macy would not have had the opportunity to present her full claims, and the EEOC may not have had the opportunity to reach its decision here.

The U.S. Department of Health and Human Services approved an employee’s official travel to Paris, France to attend a medical conference.  Several months prior to his trip, the employee asked his agency travel preparer as to how to go about securing a hotel for the upcoming conference.  By two email messages dated May 5, 2011, the agency travel preparer advised him:

 You can book the room as long as you are going through the housing reservation office connected with the meeting.

 And

 … we will do better cost-wise to make reservations through the organization [the Alzheimer's Association] at what looks like a special rate for attendees. You can do that and send me the information. Use your government credit card.

The agency travel preparer modified her advice the following day, in another email message to the employee, in which she told him that he could not “book just any hotel,” but that it had to be “a meeting-blocked one [by the Conference] or that I have to do it through Omega  [the agency’s travel management center (TMC)].”  In response to a further inquiry from the employee about incurring a cancellation fee, the agency travel preparer advised: “I spoke to the management officer, who said not to worry about it. If we have to cancel your hotel reservation and rebook it, we will reimburse you for the fee.”  Following these instructions, the employee booked his reservation for a “meeting-blocked” room, charging the reservation to his government credit card.

On June 9, 2011, approximately one month before the conference was scheduled to start, the travel preparer informed the employee that she had to make hotel reservations for him through Omega. She stated further that, although she tried to have Omega take over the employee’s reservation, she was unable to keep the hotel reservation he previously booked.  Subsequently, when the employee attempted to cancel his reservation with his previously booked hotel, he was told that the hotel would charge him a cancellation fee equal to 100% of his room rate for the entire five night stay, because the cancellation was after the cutoff date. Ultimately, a cancellation fee was negotiated for 50% of the total, or $838. Thereafter, the employee sought reimbursement from the agency of the reduced $838 cancellation fee. Contrary to earlier assurances, however, his claim was denied by the agency. Consequently, the employee sought review by the Civilian Board of Contract Appeals (the “Board”).

Unfortunately for the employee, the Board has repeatedly held that detrimental reliance on erroneous advice from a government official will not confer on a claimant entitlement to recovery, where there is no authority under statute and regulation for the relief being sought. Kristin L. Loer, CBCA 2155-RELO, 11-1 BCA ¶ 34,700; Carl H. Welborn, Jr., CBCA 2151-RELO, 11-1 BCA ¶ 34,650 (2010); Barbara A. Maloney, CBCA 2023-RELO, 10-2 BCA ¶ 34,593; Romeo Ayalin, III,CBCA 1533-RELO, 09-2 BCA ¶ 34,218. Thus, although the Board found that the employee would not have incurred the cancellation fee in question had it not been for his reliance on clearly erroneous advice provided by the agency’s travel preparer and on her guarantee that any cancellation fee would be reimbursed, the Board held that the agency was correct in denying reimbursement to the employee for the $838 cancellation fee.  In the Matter of Nicholas Kozauer, 112 LRP 1002 (Civilian Board of Contract Appeals, Dec. 20, 2011).

When an initiating an action for unacceptable performance under 5 U.S.C. § 4303, an agency must demonstrate by substantial evidence that the employee’s performance is unacceptable and that the employee was informed as to what is required to reach better than unacceptable performance, otherwise known as marginal performance.   See Van Prichard v. Dep’t of Defense, 111 LRP 70305 (MSPB Nov. 2011).

Before initiating an action for unacceptable performance under 5 U.S.C. § 4303, an agency must give the employee a reasonable opportunity to demonstrate acceptable performance and must show by substantial evidence that: (1) its action was taken under a performance appraisal system approved by OPM; (2) the employee’s performance standards are valid; and (3) the employee’s performance was unacceptable in at least one of his critical elements.  See Van Prichard v. Dep’t of Defense, supra, citing Diprizio v. Dep’t of Transportation, 88 M.S.P.R. 73, ¶ 7 (2011); 5 C.F.R. § 432.104.  In Van Prichard v. Dep’t of Defense, the MSPB clarified that unacceptable performance must in fact be unacceptable, and that, although not ideal, an employee cannot be removed for performance-based reasons if he maintained marginal performance.  In Van Prichard v. Dep’t of Defense, the agency removed the employee even though he had maintained marginal performance and despite the fact that the agency had not informed him what he needed to do to maintain or achieve marginal performance.  Rather, the agency only told him what he needed to do to achieve fully successful performance.  Because the agency did not set forth the minimum level of performance to achieve to avoid removal (i.e., marginal performance), the agency’s performance standards were not valid and the MSPB could not consider the employee’s performance deficiencies.  Accordingly, the MSPB ordered the employee’s reinstatement.

Van Prichard v. Dep’t of Defense, shows that all may not be lost if you are presented with a performance-based removal and that a second look at your agency’s performance standards may be worth your while.

As the year ends, your thoughts naturally go to spending time with family and friends. Going home, even if just for a short visit, may become one of your 2012 resolutions.  But going home may have real consequences when it comes to your access to national security information.

Recent decisions from the Department of Defense (DOD), Defense Office of Hearings and Appeals (DOHA), demonstrate that going home may not be an option for you if you wish to access or maintain access to national security information.  Let’s first look at a case where DOHA granted the applicant’s request for a security clearance.  In the Matter of Applicant for Security Clearance ISCR Case No. 10-07319 (Dec. 9, 2011), the DOHA Administrative Judge granted the applicant’s access to classified information where the applicant was born in Iran but had come to the United States at age 15 or 16, had settled in the Mid-West, where she attended college, and held all of her assets in the United States.  The applicant had, however, renewed her Iranian passport in 2009, prior to her current defense contractor employment, in order to attend her sister’s wedding in Iran; thereby causing, in part, the security concern.  The Administrative Judge noted that Iran “is possibly the most serious threat to the US…sponsors terrorism…[and that] Iran’s security forces often target family members of political prisoners for harassment purposes.”  However, as the Administrative Judge also noted in finding that the applicant had mitigated the security concern, the applicant’s sister did not actually reside in Iran but resided in Australia, her brother resides in the United States, and only the applicant’s two aunts and a cousin reside in Iran.  The Administrative Judge also considered that the applicant had not travelled to Iran since her sister’s wedding and has no intention of doing so, the applicant does not consider herself a dual citizen with Iran, the applicant had surrendered her Iranian passport to her Facility Security Officer (FSO), the applicant had the unqualified support of friends and colleagues and the applicant further had minimal contact with her Iranian relatives.  Accordingly, her access was granted.

Now let’s look at a case where DOHA’s Administrative Judge did not grant the applicants’ access to classified information.  In the matter of Applicant for Security Clearance, ISCR Case No. 11-00561 (Dec. 12, 2011), the applicant was a native of India and a United States citizen, his wife was also a native of India and a United States citizen, their children were United States citizens, and the applicant had supplied reference letters from coworkers who had cited his access to “confidential budgetary, financial and personnel information ‘and had showed the utmost care in safeguarding this information and in being fully compliant with the [agency’s] information security guidelines.” The applicant, however, also maintained weekly contact with his parents who live in India, and noted in his responses to DOHA that, as one of three children, he had an obligation to care for his parents. Further, he maintained monthly contact with those siblings in India and with various in-laws, maintained three bank accounts in India and owned property in India, and held an Overseas Citizen of India (OCI) card granting him certain rights in India.  Finally, he irregularly visited India and intended to one day “go back to” India.  The Administrative Judge considered these ongoing ties with India in addition to recent outbreaks of violence and terrorism in India, illegal export of U.S. restricted, dual-use technology to India and the targeting in India of “unclassified and classified information in a range of sectors,” to ultimately deny the applicant’s access to classified information.

So what do these two different outcomes show?  First, you can go home again.  But, second, if you go home, be prepared to have your access to classified information revisited.  Be further prepared that if you also maintain regular contact with close or immediate family members in your native country, if you maintain assets in your home country, such as bank accounts or property, and if that home country also sponsors or is afflicted by terrorism, you may not be able to access classified information.

No. It’s not Mr. Grinch.  It’s the EEOC.  That’s right, even if you successfully prove that you have been discriminated against, harassed or retaliated against, the likelihood of truly being compensated for that unlawful discrimination, harassment or retaliation is increasingly unlikely.  Last year we told you about McCorvey v. Dep’t of the Air Force, EEOC Appeal No. 0120100908 (Oct. 1, 2010), an EEOC complaint where the Commission found that the Agency had retaliated against the Complainant but failed to award the Complainant compensatory damages. The Commission’s Grinch-like ways have not gotten better in 2011.

For example, in Parsanian v. U.S. Postal Service, EEOC Appeal No. 0120093702 (Jan. 7, 2011), the Commission awarded the Complainant only $1,625 in nonpecuniary compensatory damages after it found that she had been discriminated against on the basis of her disability.  The Commission considered that the Complainant did not socialize as much, she was unhappy, and that she was always crying as a result of the discrimination. The Commission reduced the award by 75% from the $6,500 awarded to the Complainant by the Administrative Judge because her emotional distress was not only caused by the discrimination.

In Mazurek v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720100044 (April 4, 2011), the Commission awarded the Complainant only $2,000 in nonpecuniary damages where he proved his complaint that he had been non-selected due to his sex.  The Commission awarded only $2,000 even though the Complainant showed that he had suffered work-related stress, was inconvenienced in his family life, and could not spend as much time with his family, including his two young children.

The Commission also only awarded in $2,000 in non-pecuniary damages where the Complainant proved his reprisal case.  See Santiago v. Dep’t of Homeland Security, EEOC Appeal No. 0720100038 (Mar. 2, 2011).  In Santiago v. Dep’t of Homeland Security, the Commission based its award on the “general” nature of the Complainant’s claim for damages.  The Commission’s basis for the limited award is somewhat perplexing in that the Complainant not only claimed he had anxiety attacks, profuse sweating, headaches, and pain in his arm, but had his therapist testify as to his significant stress and anxiety.  The Complainant also testified that he went to the hospital with heart attack symptoms, and that he had difficulty sleeping, which affected his relationship with his family. Nevertheless, the Commission found that his testimony alone was not enough to attribute his pain and suffering to his discrimination.

The Commission’s propensity to awarding only limited compensatory damages was further demonstrated in Thompson v. U.S. Postal Service, EEOC Appeal No. 0120100682 (Oct. 21, 2011). There the Complainant requested $40,000 in compensatory damages.  The Postal Service did not contest that the harm that the Complainant suffered was a direct result of unlawful retaliation.  The Complainant could further show that the unlawful retaliation occurred over a period of five months, that he had to see his primary care physician because he was experiencing a rapid heart beat, elevated blood pressure and dizziness.  His primary care physician then referred him to a psychiatrist who diagnosed him as having an adjustment disorder with mixed features, including anxiety and depression as well as occupational problems.  Indeed, Complainant was frustrated, depressed and lacked energy and motivation.  His psychiatrist testified that he reported feeling harassed at work and had begun to isolate himself, did not want to leave home, had insomnia, and was worried, anxious and ruminated.  He was prescribed Wellbutrin and Prozac to treat the depression.  Considering the Complainant’s request for damages and his psychiatrist’s testimony, you may think that a request for $40,000 in compensatory damages is reasonable.  But the Commission would and did disagree.  The Commission upheld the Administrative Judge’s award of only $15,000.  In so finding, the Commission considered the severity of the harm suffered, the length of time that Complainant suffered harm and the Commission precedent.  As we have reported previously, Commission precedent favors small awards, thus the Commission’s reliance on that precedent to whittle down the award is not surprising.  However, it does seem Grinch-like on the part of the Commission to state that the severity of harm here did not warrant a higher award.

In summary, 2011 was another year of limited compensatory damages awards for Complainants.  Perhaps 2012 will bring a change?