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CURRENT INTERVENTIONSListed below are decisions currently pending before a third-party and in which the Office of Personnel Management has intervened, sought reconsideration or judicial review, or filed an amicus curiae brief. Decisions received, as well as other developments since the last report are highlighted in bold. Additional information on each case can be obtained from the Office of Workforce Relations, Employee Relations Branch at er@opm.gov, or (202) 606-2920.1. Von Zemensky v. Department of Veterans Affairs, PH0351980078-I-1, April 28, 1999. On July 19, 1999, OPM intervened in a case involving the rights of Veterans' Affairs health care professionals hired under title 38 who are separated due to reductions in staff levels and/or resources. The initial decision which prompted OPM's intervention held that the agency's termination of the appellant's services due to a reduction in resources was invalid because the agency failed to provide the employee with reduction in force procedures established under 5 USC 3501-04 and 5 CFR part 351. This decision was issued following a remand from the full Board in February 1999 in which the Board held, in response to an interlocutory appeal, that title 38 employees were entitled to reduction in force procedures and rights laid out under title 5. OPM finds no reference within the reduction in force statute or the implementing regulations that would provide coverage for title 38 employees. Congress excluded those employees from the coverage of most of the personnel provisions that cover other employees, including RIF procedures and protections, and the current decision creates an erroneous interpretation of statute and OPM regulations. On April 18, 2000, the Board issued a decision on OPM's intervention. However, the two members could not reach agreement and the February 2, 1999 interlocutory opinion became the final opinion of the Board. On June 19, 2000, the Department of Justice filed a petition for review on OPM's behalf before the U.S. Court of Appeals for the Federal Circuit. 2. Calvin D. Uhlig v. Department of Justice, MSPB Docket No. SE0752950241-A-2, November 24, 1999. This case is one of those stayed a few years ago while the Supreme Court decided in Lachance v. Erickson that Federal agencies could discipline employees for misconduct and also for lying about the misconduct in the course of an agency investigation about the misconduct. In 1995, the appellant in Uhlig was removed from his Special Agent's position at the FBI for misuse of a vehicle and lying in an inquiry about the misuse. A Merit Systems Protection Board administrative judge upheld the vehicle misuse charge but dismissed the lying charge under Board case law later overturned by the Supreme Court. The case law had said that agencies could not charge an employee both with misconduct and lying about the misconduct. The agency went ahead with the lying charge because it knew that the Office of Personnel Management (the Office) was in the process of challenging the Board's position on this issue. The judge mitigated the removal to a 30-day suspension. The judge's decision was upheld by the full Board. Because the appellant retired before the Supreme Court's decision, the Board decided last July that the case was moot and that the appellant could request attorney's fees. As a result, the judge had never ruled on the lying charge and decided the attorney's fees only on the sustained charge of vehicle misuse and its mitigated penalty. The judge determined that the agency "should have known" it couldn't prevail on the lying charge because of the Board case law in effect at the time it removed the appellant. The judge awarded fees of more than $60,000. The agency has filed a petition for review with the full Board challenging the award of attorney's fees. In addition, the Office has filed a petition for review arguing that the appellant was not the "prevailing party" for purposes of being eligible for attorney's fees. The Office also argued that the judge's decision to award fees in the "interests of justice" is in error and violates law and Board precedent. As argued by the Office, the Board ruled on September 26, 2000, that attorney fees were not warranted in the interest of justice. The Board commented that the Supreme Court's decision "effectively vindicated" the agency's decision to charge the appellant with lying. The Board also noted that this appeal was still pending in the Federal Circuit when the Supreme Court accepted and ruled on the key issue of whether an employee could be charged with lying about conduct which itself is the basis for a charge. On November 27, 2000, the appellant filed a petition with the Federal Circuit for review of the Board's September 2000 decision. 3. Augustine v. Department of Veterans Affairs, SF3443000085-I-1, March 14, 2000. On June 1, 2000, OPM intervened in this case to correct the administrative judge's (AJ's) misapplication of the Veterans Employment Opportunities Act (VEOA). The AJ erroneously found that the agency violated the appellant's veterans preference rights when it selected individuals under the Outstanding Scholar appointing authority while not selecting her. He added to this error by ordering her retroactive appointment. All of the appointing authorities under which the agency considered candidates and made selections were valid, separate authorities which allow for appointment without competition. The appellant herself was considered under two such authorities: the authority for 30% or more disabled veterans, and the authority for Veterans Readjustment Act (VRA) eligibles. An agency's right to hire noncompetitively under these authorities is founded in law, executive order, or, in the case of the Outstanding Scholar authority, court order, and VEOA provides no basis for the Board to dispute or limit the agency's discretion. In fact, when the appellant filed her initial complaint with the Department of Labor (DOL), that agency found no violation of her rights under the law. The AJ's remedy is also contrary to law, since the Board has previously acknowledged it lacks authority to order appointment and back pay to an applicant for employment who has not been duly appointed by an authorized appointing official. 4. Max T. Mattern v. U.S. Department of Treasury, DC-0752-98-0264-X-1, March 28, 2000 On July 10, 2000, OPM filed a request for reconsideration to the full Board asking the Board to review its final opinion and order in a back pay compliance case. The appellant in the case, a Secret Service Police Officer, was removed for slapping a juvenile in his custody. The action was reversed and the agency was ordered to restore the employee to duty and provide back pay and benefits. The agency complied but the appellant filed an appeal asking the Board to enlarge its back pay order. The appellant alleged that the agency failed to provide back pay for lost wages during the period of restricted duty prior to removal. The agency had placed the employee on restricted duty while investigating the allegations of misconduct. While in restricted duty, the employee was not allowed to work overtime or to work nights. The administrative judge agreed with the appellant and the full Board sustained the initial decision that ordered the agency to provide back pay for the period of time before the adverse action. OPM challenged the Board's assertion that it could assert jurisdiction over a period of time well before the adverse action occurred. Further, OPM argued that such a decision violated the Back Pay Act in that the Board failed to establish that the placement of an employee in restricted status was an unwarranted personnel action. Without such an action, back pay is not authorized under the Act. 5. Santella/Jech v. Office of Special Counsel/Internal Revenue Service, CB1215910007-A-1 and CB1215910008-A-1, May 9, 2000. On June 13, OPM sought reconsideration of this decision involving an award of attorney fees against the Office of Special Counsel (OSC). This decision involves the first ever award of attorney fees against OSC. This award was based on the Board's conclusion that since the charges of whistleblower reprisal, which the OSC brought against two IRS employees, were not sustained , the two employees should be considered "substantially innocent," and therefore entitled to an award of fees. OPM believes the Board's award fails to recognize the unique role given to the OSC by Congress to prosecute individuals who retaliate against whistleblowers. That unique role requires that a different standard for fee awards be applied to situations when the Special Counsel acts in good faith but does not prevail. OSC should not pay fees unless its action was frivolous, unreasonable, or without foundation. OPM will argue that the Board's decision severely impacts the ability of the OSC to carry out the intent of Congress to vigorously enforce the Whistleblower Protection Act. Contact: er@opm.gov, or (202) 606-2920. 6. Held v. Interior, SF0752000298-I-1, August 18, 2000. On November 2, 2000, OPM intervened in this case arguing that the administrative judge applied the wrong burden of proof to the agency's case. The AJ's error resulted in reinstatement of an employee whose reckless disregard for agency policy resulted in the destruction of 23 homes and other property valued at $20 million. It is important to hold the Board to the appropriate legal standards concerning the respective burdens of proof borne by parties before it. OPM believes failure to correct this analysis places an undue burden on agencies that seek to discipline employees. Appellant was a certified "Burn Boss" qualified to conduct "prescribed fires" for certain designated purposes. Although he testified he was aware of the Agency burn plan, and knew he was expected to follow it in conducting any burn, he failed to consult it in this case, relying instead on his memory, which turned out to be faulty. The result was a fire that destroyed 23 homes and other property valued at $20 million. The agency charged intentional disregard of agency policy and procedures, and the employee denied intent. The judge reversed, saying the agency had failed to provide "compelling evidence" to overcome the appellant's explanation of his "haste, inexperience, and poor oversight," and prove that his actions constituted "reckless disregard" sufficient to satisfy the intent burden. Contact: er@opm.gov or (202) 606-2920. 7. Adzell/Fishman v. Office of Personnel Management, DC300A970368-I-1, Oct. 20, 2000. OPM is seeking reconsideration of the Board compliance order in this case which presents the issue of whether the Board has jurisdiction over the formula OPM uses to score the ALJ examination and whether that formula violates the Veterans' Preference Act. The Board held that it has jurisdiction over the scoring formula under Part 300. The Board found the scoring formula to violate the Veterans' Preference Act because it gives preference eligible veterans a greater benefit than the statute requires. OPM does not agree with the interpretation the Board gave Part 300 in relation to scoring practices. OPM scoring practices are not employment practices within the meaning of Part 300. Furthermore, OPM feels the Board committed a legal error by failing to defer to OPM's reasonable interpretation of the Veterans' Preference Act and OPM's expertise in examining. TOPICAL OVERVIEWReasonable Accommodation: Requests for Medical InformationThere is an ongoing concern regarding how much medical documentation an agency can request from an employee seeking reasonable accommodation. Management officials, employees and physicians who are involved in this process constantly struggle to achieve a balance between protecting an individual's privacy regarding medical conditions and requiring enough medical documentation to meet the legal requirements of reasonable accommodation determinations. On the one hand, management officials and their advisors want enough information to make an informed decision and often use standardized lists of questions for each request. On the other hand, employees and their physicians and advocates often feel these comprehensive lists are overly broad and intrusive. Additionally, a complete response to the generic list is often so time-consuming that a doctor may delay or answer incompletely. Whether a request for medical documentation is in the form of a standard set of questions or is tailored to a specific job and medical condition, managers often find themselves in conflict with an employee who will only provide limited medical information. This quick reference has been prepared to direct agencies to relevant EEOC decisions and enforcement guidance on this subject. Looking at EEOC cases and guidance issued in recent years, the following trends are clear. EEOC has acted to limit the scope of requests by directing agencies to focus medical information requests solely on the condition as it impacts the workplace. Further, EEOC has instructed agencies to respond to reasonable accommodation requests without making repeated demands for medical documentation. Guidance EEOC issued two enforcement guidance documents on this topic: Reasonable Accommodation and Undue Hardship under the American with Disabilities Act (March 2,1999) and Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (July 27,2000). The first document clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship. The latter focuses on the limitations established by the ADA regarding disability-related inquiries and medical examinations during employment. These issuances and others can be obtained by accessing the EEOC website (www.eeoc.gov). Case Law Listed below are some EEOC decisions that can serve as a starting point for research. Following the citation is an explanation of each case. Randle v. U.S. Postal Service, EEOC Appeal No. 01980714 (1999) - agency may not request new medical documentation when existing documentation is sufficient. Lingelbach v. General Services Administration, EEOC Appeal No. 01966290 (1998); See also Winslow v. Department of the Treasury, EEOC Appeal No. 01962309 (1998) - employer need not further accommodate employee when insufficient documentation is provided by employee and physician. Essenfeld v. National Security Agency, EEOC Appeal No. 01961377 (1997) - employee denied reassignment because she provided insufficient information and later failed to comply with agency's medical evaluation process. Hupka v. Department of Defense, EEOC Appeal No. 02960003 (1997) - employee need not provide additional documentation once agency has sufficient information to approve or deny the request. Yuni v. Small Business Administration, EEOC Appeal No. 01990458 (1999)- agency may not ask overly broad questions about medical condition and must participate in interactive process. Kloock v. U.S. Postal Service, EEOC Appeal No. 01974955 (1999) - employee need not provide additional documentation when sufficient medical documentation was already submitted.
Questions or comments may be mailed to the Employee Relations Branch, U.S.
Office of Personnel Management, Room 7425, Theodore Roosevelt Building, 1900 E Street,
NW., Washington, DC 20415-2000. You may call us at (202) 606-2920; fax (202)
606-0967; or email er@opm.gov.
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Created 27 February 2001