Telework As A Reasonable Accommodation For Federal Employees

Federal employees with disabilities who need to work from home due to a disability can be provided telework or remote work as a reasonable accommodation. The EEOC long has made clear that performing work in-person is not an essential function for someone in a position whose work can be performed entirely remotely. Complainant v. Department of Housing and Urban Development, EEOC App. No. 0720130029 (Feb. 12, 2015), req. recons. den., EEOC Req. No. 0520150357 (Oct. 1, 2015). As a result, a federal agency wanting to have an employee with a disability appear in person just to see the employee to attend meetings is not a basis for denying a reasonable accommodation. In fact, the Commission has long held that face-to-face interactions are not essential and can be accommodated. As the EEOC reiterated in Harvey G. v. Dep’t of the Interior, EEOC App. No. 0120132052 (Feb. 3, 2016): “We note that in allowing an employee to telework an employer ‘may need to reassign some minor job duties or marginal functions (i.e., those that are not essential to the successful performance of a job) if they cannot be performed outside the workplace . . . .’ (Work at Home/Telework as a Reasonable Accommodation, Question 4, available at http://www.eeoc.gov/facts/telework.html (last modified October 27, 2005). We further note that an employer should not, however, deny a request to telework as a reasonable accommodation solely because a job involves some contact and coordination with other employees. Id. Frequently, meetings can be conducted effectively by telephone and information can be exchanged quickly through e-mail. Id.”

 

However, an employee with a disability is not entitled to telework as a reasonable accommodation if there are other effective accommodations available. The Rehabilitation Act requires that employers provide effective reasonable accommodations to qualified employees with disabilities, but it does not entitle the employee to receive the reasonable accommodation they prefer. See, e.g. Castaneda v. U.S. Postal Serv., EEOC App. No. 01931005 (Feb. 17, 1994); see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) at Ques. 9. As such, if the employee’s disability-related needs can be accommodated in the workplace, such as through a private office, noise or light reduction, and reduced physical interactions, telework may not be required as a reasonable accommodation. In contrast, if the symptoms of the disability cannot be effectively accommodated in the office, telework should be provided as a reasonable accommodation.

 

If you have questions about this or other employment matters, please contact us at 720-999-5390 or ben@wick-law.com.

 

The Wick Law Office Wins Case Against US Department of Labor

The Wick Law Office recently won an important victory for a federal employee in a disability discrimination case against the United States Department of Labor (DOL). Our client was a veteran and an individual with a disability who worked for DOL. He requested a hardship transfer from one geographic location to another because the symptoms of his disabilities were exacerbated by the climate at his duty location. Despite repeatedly making clear that the reason for his transfer request was his disabling medical conditions, DOL refused to process his request as a reasonable accommodation. The failure to process his reasonable accommodation request resulted in an unnecessary delay in approving his transfer, during which time his medical conditions worsened. The EEOC Administrative Judge issued a decision in our client’s favor finding that the Agency unreasonably delayed in approving his request for a hardship transfer as a reasonable accommodation. She found DOL had vacant, funded positions available in a warmer climate to which our client could have been reassigned months earlier. As a result of the finding of discrimination, DOL was ordered to pay compensatory damages and back pay, reimburse attorneys’ fees and costs associated with the case, provide training to Agency employees, and post a notice in the workplace that discrimination had been found.

 

If you have questions about this decision, or the impact of it on other cases, please contact Holly V. Franson at Holly@wick-law.com.

Attorney Holly Franson Discusses the Federal Employee Deferred Resignation Offer with the Denver Post

Attorney Holly Franson spoke with the Denver Post about the deferred resignation offer for federal employees from the Office of Personnel Management (OPM). “There is a lot of confusion on everyone’s behalf,” said Holly Franson, a partner with the Wick Law Office in Denver who represents federal workers. “This is not a buyout. This is a way of culling the size of the government workforce without complying with the rules and regulations in place to protect workers.”

https://www.denverpost.com/2025/02/04/colorado-federal-workers-resignations-downsizing/

Recent Executive Orders Impacting Federal Employees

In recent days, there have been many Executive Orders issued that impact federal employees in a variety of ways. The Wick Law Office is experienced in representing federal employees and can answer questions related to these Executive Orders and other associated communications you may have received. If you are a federal employee who is concerned about your employment due to President Trump’s Executive Orders, contact us at 720-999-5390 or ben@wick-law.com.

Federal Employees: Know Your Rights And Job Protections

Federal employees enjoy unique job protections. Most federal employees have the right to challenge personnel actions, such as removals (terminations), suspensions of over 14 days, forced retirements, whistleblower retaliation, denial of within grade increases, reductions in force, and reductions in grades. These claims can be challenged in an administrative court called the Merit Systems Protection Board (MSPB). Personnel actions can also be filed with the Equal Employment Opportunity Commission (EEOC) when they have occurred for discriminatory reasons. However, the MSPB can hear claims involving a personnel action in which discrimination is alleged (referred to as a mixed case) or in which discrimination is not alleged.

 

Jurisdiction

The MSPB is an administrative forum that has original and appellate jurisdiction. In order to hear your claim, the MSPB must have jurisdiction. 5 CFR §1201 sets forth the scope of MSPB jurisdiction. The majority of claims relating to personnel actions that are filed before the MSPB are “appeals,” which challenge disciplinary actions, such as removals or suspensions of more than 14 days. The MSPB also has “original” jurisdiction over actions brought by the Office of Special Counsel, removals from Senior Executive Service for performance deficiencies, and certain actions taken against administrative law judges.

 

Protect Yourself

The best way to protect yourself as a federal employee is to know your rights. If you have been subjected to disciplinary action or believe that you are being targeted for removal, contact us. We can discuss your rights and options that are available to you.


 

Tips and Tricks for Challenging Disciplinary and Performance Actions

Benjamin E. Wick will be giving a virtual presentation on November 21, 2024 titled Tips and Tricks for Challenging Disciplinary and Performance Actions Issued to Employees. The seminar will cover employee rights to challenge proposed and effectuated disciplinary actions, including those based on performance or conduct. It will also provide an overview of the available rights and strategies for addressing disciplinary actions issued to public and private employees. This presentation is being offered by the Colorado Bar Association, Labor and Employment Section.

Registration is available at:

https://www.cobar.org/Calendar/Event/sessionaltcd/LAB112124

Federal Employee Primer: Allegations of Discrimination Relating to Union Grievances in the EEO Process

Generally, the EEOC holds that a complainant alleging discrimination associated with a union’s grievance proceeding constitutes a collateral attack on a union proceeding and, therefore, is not a claim within its jurisdiction. See Les B. v. U.S. Postal Serv., EEOC App. No. 2023002819 (Oct. 5, 2023) (holding agency properly dismissed complainant’s claim that agency violated a union grievance settlement because it was a collateral attack on another proceeding); Complainant v. U.S. Postal Serv., EEOC App. No. 2020002501 (Sept. 10, 2020) (dismissing as a collateral attack complainant’s “complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO activity under when, on September 6, 2019, highly restricted EEO affidavits were submitted into a grievance file to be used against her.”).

 

However, the Commission recently held that there are “limited circumstances” in which a complainant’s complaint regarding a union grievance proceeding does state a claim. Fawn G. v. U.S. Postal Serv., EEOC App. No. 2024002899 (Aug. 27, 2024). In Fawn G. v. United States Postal Service, the complainant alleged that the agency subjected her to retaliation when management failed to comply with a pre-arbitration settlement agreement that resolved a union grievance and, as a result, the complainant did not receive a return to work date. The agency dismissed the complainant’s complaint for failure to state a claim, reasoning it was a collateral attack on the grievance process. On appeal, the complainant explained that she believed she was subjected to retaliation because two of her coworkers who were subject to the same pre- arbitration settlement agreement but who had not engaged in prior protected EEO activity had been returned to work. On appeal, the Commission reversed the agency’s decision to dismiss the complainant’s complaint. It held that the complainant’s claim fell within the “limited circumstances” where the Commission has jurisdiction over a claim related to a union grievance process. The Commission explained that the complaint was “not challenging [the] validity of the grievance process or the terms of the Pre Settlement Agreement,” but rather “challenging the Agency's implementation of the Agreement.” As a result, it held that, “[a]n allegation that the negotiated grievance process was applied discriminatorily by the agency while the grievance decision was still within its control is clearly a cognizable claim before the Commission because it alleges discrimination by the agency concerning a term, condition or privilege of employment.”

Can A Federal Government Employee File An EEO Complaint For Retaliation Against Another Person?

Yes. A federal employee can bring a claim for so called third-party retaliation, which has also been referred to as third-party reprisal, retaliation by association or associational reprisal.

 

The EEOC has repeatedly explained that it unlawful to retaliate against an employee due to their association with another individual. The EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016) explains that an employer may not take action against an employee for engaging in protected activity by harming a third party who is closely related to or associated with the employee. Under such circumstances, both the employee who had engaged in prior protected activity and the third party who was harmed as a result may bring claims. See Kristie L. v. United States Postal Service, EEOC App. No. 2020001506 (March 12, 2020).

 

Third-party retaliation claims are available to a third party who has a close relationship with the individual who engaged in the protected activity. In fact, the “EEOC's Compliance Manual, § 8-II.C.3 (May 20, 1998), expressly prohibits retaliation against another employee who is closely related to Complainant or associated with Complainant to the extent that the Agency's action against the relation or associate would discourage a person from pursuing their EEO rights. As an example, the Compliance Manual advises it is illegal for an employer to retaliate against an employee because a spouse, who is also an employee, filed an EEO charge. It advises that either spouse could bring retaliation claim.” See Harry E. v. United States Postal Service, EEOC App. No. 2020000585 (February 26, 2020). Although these claims are most commonly brough by spouses, a claim brought by a family member, close friend, or close relative might also be viable if they are in the “zone of interest.” See Thompson v. N. American Stainless, LP, 562 U.S. 170, 131 S. Ct. 863, 178 L. Ed. 2d 694 (2011).

If you have been subjected to retaliation or have questions about other employment matters, please contact us at 720-999-5390 or ben@wick-law.com.

Merit Systems Protection Board Basics

Navigating the Merit Systems Protection Board can be challenging for federal employees. Some basic guidance on the process can be found at MSPB Basics. For more information or if you have an MSPB case that you would like to discuss, contact us at Ben@wick-law.com or 720-999-5390.

The Wick Law Office Wins EEOC Appeal Against Homeland Security

The Wick Law Office won an important victory for our Client against the Department of Homeland Security (DHS), Customs and Border Protection (CBP) Agency. At the time of the issues in her case, our Client needed a location to express milk for her son who was still nursing. CBP failed to provide a lactation room that was private and free from intrusion. Employees who were not lactating had keys to the lactation room provided by CBP. This resulted in another employee entering the room while our Client was using it to express milk and seeing her half-naked body. Even after complaining to her supervisors about this incident, the Agency failed to obtain keys from the other employees. Although the lock was eventually changed, CBP retaliated against our Client by requiring her to request the key for the room from a male employee who would ask questions about her breastfeeding and by implementing a sign in/out log to track her and another lactating employee. The key also was not readily and regularly available, resulting in several humiliating incidents where our Client’s breastmilk leaked through her shirt and was visible to other employees.

 The EEOC found that DHS discriminated against our Client based on her sex when it failed to provide a her a private space to express milk and inhibited her access to designated areas to express milk. It also found DHS discriminated against her when it unlawfully sent her home from work for approximately two weeks and failed to accurately process her June 2016 leave request.

If you have questions about this decision, or the impact of it on other cases, please contact Holly V. Franson at Holly@wick-law.com.

The MSPB's Electronic Filing System Is Being Updated

The Merit Systems Protection Board (MSPB) will be transitioning from its current e-Appeal Online system to a new system. The MSPB’s current online filing system, e-Appeal Online, will be shutting down on Friday, September 8, 2023. Users will not be able to file into the system between September 9, 2023 and October 1, 2023. As a result the MSPB is suspending processing of all cases during that period and extending all filing and processing deadlines that occur during that period by 28 calendar days. The new e-Appeal Online is expected to go live on Monday, October 2, 2023.

More information can be found on the MSPB’s website at https://www.mspb.gov/e-appeal/index.htm

NLRB General Counsel Issues Guidance On Impermissible Non-Compete Agreements

The General Counsel for the National Labor Relations Board, Jennifer A. Abruzzo, recently issued a memorandum addressing non-compete agreements that violate the National Labor Relations Act. That memorandum explains that non-compete agreements are unlawful “when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs.” The General Counsel did note that employer concerns about proprietary or trade secret information could be addressed through a “narrowly tailored” agreement specifically focused on those issues, instead of using a broad non-compete agreement.

That memorandum can be found here.

Favorable MSPB Decision For Our Client Against US Customs and Border Protection

The Wick Law Office recently received a precedential decision from the Merit Systems Protection Board (MSPB) on a Petition For Review (PFR) that has been pending for over five years. Our client, a management-level employee with the US Department of Homeland Security, Customs and Border Protection (CBP), was suspended for 30 days and subsequently demoted. We filed a direct appeal with the MSPB challenging the actions and raising numerous affirmative defenses, including whistleblower retaliation and EEO discrimination. Prior to our involvement, our client also discussed the adverse actions with the Office of Special Counsel (OSC) because she had an ongoing OSC complaint and sought OSC's assistance in staying the adverse actions. The MSPB Administrative Judge ruled that she had elected OSC as the forum in which to challenge the adverse actions and, therefore, the MSPB lacked jurisdiction over all issues other than whether the adverse actions occurred in retaliation for her protected whistleblowing activity. We filed a PFR challenging the Administrative Judge's ruling on jurisdiction. 

In its recent decision, the Board vacated the Administrative Judge's decision and remanded the appeal back to the Administrative Judge. Consistent with a non-precedential decision of the Federal Circuit issued during the pendency of the PFR, the Board held that a supervisory or management level employee is not included in the definition of “employee” under 5 U.S.C. § 7103(a) such that supervisors and managers are exempt from the election of remedies provision under 5 U.S.C. § 7121. As a result, a supervisory/management employee can file both an OSC complaint and a direct adverse action appeal with the MSPB over the same matter; they are not limited to picking one forum or another.

We are very pleased with this decision, which has been a longtime coming for our client. We also had a pending PFR with the MSPB over the merits of the Individual Right of Appeal, as the Administrative Judge ruled in the Agency's favor in that appeal despite a strong body of evidence that their actions were retaliatory for engaging in whistleblowing activity. The Board issued a non-precedential decision in that appeal finding that the Administrative Judge abused his discretion in denying our Motion to Compel and remanding the appeal for further processing. Both decisions can be found at the links above.

If you have questions about these cases or your rights as a federal government employee, please contact us at ben@wick-law.com or 720-999-5390.

EEOC Private Sector Cases Are Processed In 69 Days On Average

The US Government Accountability Office (GAO) has found that the EEOC averages 69 days to process a discrimination claim. The GAO review looked at cases between 2011 and 2021. More information can be found at:

https://valawyersweekly.com/2022/11/08/eeoc-must-track-intake-timing-by-field-office/

If you are thinking of filing a charge of discrimination before the EEOC, feel free to contact us to discuss your claims and options for processing.

Award Of Over $500,000 To Wick Law Office’s Client In EEOC Case Against Department of Veterans Affairs

The Wick Law Office recently obtained an award well in excess of half a million dollars for a client who was subjected to ongoing harassment because of her sex. Our client’s coworker subjected her to unwelcome contact in an effort to rekindle a prior consensual romantic relationship. Although she made clear to him that she did not want him to contact her any longer, he was relentless, contacting her over 2,000 times during an approximately two-year time period. Although she repeatedly reported the harassment to her management chain and the VA’s human resources office, they refused to take her complaints seriously, at one time even assigning the harasser as her acting supervisor.

At the conclusion of a 3-day hearing with 10 witnesses, an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) issued a decision finding fully in our client’s favor. The AJ also awarded all of the remedies requested, including the statutory maximum of $300,000 in non-pecuniary damages, reimbursement of out-of-pocket costs and back pay associated with our client’s relocation to escape the harassment, in addition to reimbursement of costs our client incurred for therapy, prescription medications, and related mileage expenses. In terms of non-monetary damages, the AJ awarded our client reimbursement of leave and 8 hours of training for the involved management and human resources officials. He also ordered the VA to reimburse attorneys’ fees and costs our client incurred in bringing the case.

Each situation is different. If you believe you may have experienced discrimination or harassment in the workplace, the attorneys of The Wick Law Office may be able to help.