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FedCO1102  
#1 Posted : Tuesday, February 23, 2021 2:57:36 PM(UTC)
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This is probably the opposite of what's posted here. Just a disclaimer, I've worked with disabled employees in every position I've had and it's never been an issue, I hope the below text doesn't make it seem like I'm attacking disabled employees and the issue could easily be with a non-disabled employee as well.

___

I, a new supervisor, have a disabled employee who seems unable to perform her function anymore. I have made sure she has all the reasonable accommodation possible, we seemed to be on the same page workload wise, and tend to get along. However, she's recently reached out to EEO and union reps stating that she's overwhelmed and can't meet the expectations we agreed upon just last week. Obviously, she didn't bring any of this to to me. One of the expectations was that she provide status updates on her workload, this was apparently a large concern.

I'm at the point now where I don't feel I can assign any work to this employee because I can't even ask what the status of her work is now. I've been told that EEO office suggested disability retirement and she refused.

How far does reasonable accommodation extend really? Am I just SOL since the union seems to be taking her side (they say the status updates are too much to do and are demoralizing?).
frankgonzalez  
#2 Posted : Wednesday, February 24, 2021 4:22:21 AM(UTC)
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Originally Posted by: FedCO1102 Go to Quoted Post
This is probably the opposite of what's posted here. Just a disclaimer, I've worked with disabled employees in every position I've had and it's never been an issue, I hope the below text doesn't make it seem like I'm attacking disabled employees and the issue could easily be with a non-disabled employee as well.

___

I, a new supervisor, have a disabled employee who seems unable to perform her function anymore. I have made sure she has all the reasonable accommodation possible, we seemed to be on the same page workload wise, and tend to get along. However, she's recently reached out to EEO and union reps stating that she's overwhelmed and can't meet the expectations we agreed upon just last week. Obviously, she didn't bring any of this to to me. One of the expectations was that she provide status updates on her workload, this was apparently a large concern.

I'm at the point now where I don't feel I can assign any work to this employee because I can't even ask what the status of her work is now. I've been told that EEO office suggested disability retirement and she refused.

How far does reasonable accommodation extend really? Am I just SOL since the union seems to be taking her side (they say the status updates are too much to do and are demoralizing?).
Welcome to supervisor world!

I'll start at the end and work backwards.

Do you require status updates from all your employees? If not...then you CANNOT require it of your disabled employee. If yes, then carry on requiring it.

Is the employee able to do the essential elements of the job? If not, then you document it (work with your Labor/Employee Relations Office on how the process goes), then move to a Performance Demonstration Period (AKA PIP) which MSPB has rarely required it to be more than 30 days (unless there are extenuating circumstances, such as a scientist waiting for an experiment to mature, and they are documenting the progress during this time and it will be done in 2 months or so). If they fail the "PIP", then you move to removal, and then they are gone. Again, the Labor/Employee Relations folks will assist you in this.

DO NOT engage with the union without the Labor Relations officer present/involved!!!

The union's role is to represent the employee. So they are looking to things they can lock onto (in this case the status updates). If you are holding this employee to the same requirements as your others (all do status updates), then don't worry about the grievance or EEO complaint. If you are treating the employee different than the others by requiring only this one do the updates...then you need to stop it and talk to your labor relations folks ASAP.

Engage the Accommodations folks for your agency (in some agencies, they are in the EEO office, other agencies have them in HR) to ensure you have properly documented the accommodation and have properly identified the essential elements of the job (status updates may not be an essential element of the job, but could be a reasonable expectation...again, talk to your EEO and accommodation experts in your agency, to include your labor law attorneys in your general counsel's office). You are not required to eliminate an essential element or a performance standard as an accommodation (and I highly advise supervisors to not do so!).

There are many times an employee is unable to to their job any more and are too stubborn or proud to admit it, and will file EEO complaints and/or grievances to fight the inevitable. Some supervisors will back down due to the pressure from the union or an EEO complaint, and that shows the other employees you are willing to do the right thing, but will only do the easy thing.

That said...if after you talked to your agency SMEs on Accommodations, and your labor relations team (to include the labor law attorney...best to set up a meeting with them all at once to discuss this situation so everyone hears everything at the same time), then decide what you need to do. In the mean time, let the employee have a 30-60 respite in the status updates until you have a chance to consult your experts. If they say you should require the updates, then the short respite will not create any harm, but if they say you shouldn't require the updates, you will have mitigated the issue immediately.

Beyond this, do not stop being the supervisor. Assign work as you always have done and treat the employee as you do the others. DO NOT TREAT THEM DIFFERENTLY BECAUSE THEY INVOLVED THE UNION AND/OR EEO!!! This way leads to confirmed Reprisal claims!

Just my nickel's worth (as a 20+ year EEO Specialist/Manager).

Edited by user Wednesday, February 24, 2021 4:24:36 AM(UTC)  | Reason: Not specified

You should have voted Cthulu...the greatest of all Evils
thanks 1 user thanked frankgonzalez for this useful post.
FrankJr on 4/2/2021(UTC)
frankgonzalez  
#3 Posted : Wednesday, February 24, 2021 4:27:33 AM(UTC)
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Forgot to add...the accommodation of last resort if they cannot perform their job is reassignment to an open position in the agency. It may be at the same grade or lower. If there is no open positions they qualify for (this is the key part...they must qualify for the position!), then they are removed for inability to perform. Disability Retirement looks really good at that point if you are in this position.
You should have voted Cthulu...the greatest of all Evils
Mcalisda49  
#4 Posted : Thursday, July 1, 2021 8:10:04 AM(UTC)
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Frank Gonzalez - can you elaborate on the regular update requirement?

I am a non-union employee who is being placed on a PIP 3 months after 18 years of
service and 3 years of consecutive 5.0 evaluations (due to performance issues as a result of declining health).

This is the requirement that has been established. And yes.... it is demoralizing after so many years of service
and fulfillment of my job along with 2 collateral duties that are now becoming a higher grade billet.

Any help is appreciated.
frankgonzalez  
#5 Posted : Thursday, July 1, 2021 8:56:48 AM(UTC)
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Originally Posted by: Deborah Go to Quoted Post
Frank Gonzalez - can you elaborate on the regular update requirement?

I am a non-union employee who is being placed on a PIP 3 months after 18 years of
service and 3 years of consecutive 5.0 evaluations (due to performance issues as a result of declining health).

This is the requirement that has been established. And yes.... it is demoralizing after so many years of service
and fulfillment of my job along with 2 collateral duties that are now becoming a higher grade billet.

Any help is appreciated.
First..have you requested an accommodation for your disability? If not...shame on you. Do it ASAP. If the accommodation allows you to do your work at an acceptable level, the PIP may not be needed or it will simply show you just needed an accommodation.

Otherwise, this article may help (it is written as advice to the supervisor, but the info is useful for everyone:
https://feltg.com/lets-address-t...-about-poor-performance/

You should have voted Cthulu...the greatest of all Evils
Mcalisda49  
#6 Posted : Thursday, July 1, 2021 9:48:07 AM(UTC)
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frank gonzalez - I received an email entitled "Performance Discussion". The details of the update outlined are:

"Effective immediately, you shall send me a note of the work plan for the entire week, due every Monday (or Tuesday if Monday is a holiday). The scheduled work shall be tied directly to your performance elements. You will then provide a recap of what you accomplished, or didn’t, and the reason why something wasn’t accomplished, as a part of your weekly work plan on the following weekly update."
TheRealOrange  
#7 Posted : Thursday, July 1, 2021 10:44:00 AM(UTC)
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Originally Posted by: Mcalisda49 Go to Quoted Post
frank gonzalez - I received an email entitled "Performance Discussion". The details of the update outlined are:

"Effective immediately, you shall send me a note of the work plan for the entire week, due every Monday (or Tuesday if Monday is a holiday). The scheduled work shall be tied directly to your performance elements. You will then provide a recap of what you accomplished, or didn’t, and the reason why something wasn’t accomplished, as a part of your weekly work plan on the following weekly update."

In a typical situation, as @frankgonzalez initially mentioned, a supervisor cannot require status updates from an employee with a disability if that is not a requirement of all employees under his/her supervision. That would be a clear indication of disparate treatment discrimination based on the employee's disability. It appears that your situation is different. That is because you apparently are already in the Performance Demonstration Period (PIP). As a part of that process, I think it's pretty typical to require work plans and periodic, e.g., weekly, status updates/accomplishment reports. If you need an accommodation to satisfactorily perform the essential functions of your job, you definitely should make the request. While it doesn't in any stop the PIP or any potential related disciplinary action, you may be able to perform better with an accommodation in place. That might permit you to "pass" the PIP and avoid possible disciplinary action based on poor performance. Best of luck to you.
frankgonzalez  
#8 Posted : Thursday, July 1, 2021 1:13:24 PM(UTC)
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Originally Posted by: Mcalisda49 Go to Quoted Post
frank gonzalez - I received an email entitled "Performance Discussion". The details of the update outlined are:

"Effective immediately, you shall send me a note of the work plan for the entire week, due every Monday (or Tuesday if Monday is a holiday). The scheduled work shall be tied directly to your performance elements. You will then provide a recap of what you accomplished, or didn’t, and the reason why something wasn’t accomplished, as a part of your weekly work plan on the following weekly update."
Unless you have a specific outline of what the critical element you are failing on, what the expectation is to be considered acceptable performance, you are not on a PIP (or more correctly termed "Performance Demonstration Period"). However, this can be a precursor to one.

I would follow the instructions in the email and also schedule a meeting with my supervisor to discuss what their concerns are with my performance. There could easily be other reasons for this request/instructions beyond you not meeting performance standards, and as it stands, there is no way to identify what they are looking for exactly.

In my office, we all do a biweekly report of our activities (the highlights) for the past 2 weeks, what we have coming up in the next 2 weeks, things we are working on that are long term projects, and what impacts we have on our abilities to get things done. (we call it a quad report as these 4 areas are in different quadrants of the report). Allows myself as the Dep Director and my boss, the Director, to know what is going on within our office and how much bandwidth we have to take on new work, and what can be dropped if necessary. As you can see...we all provide almost the same thing you were asked to provide, just on a bi-weekly basis vs weekly.


You should have voted Cthulu...the greatest of all Evils
Mcalisda49  
#9 Posted : Saturday, July 3, 2021 1:45:36 PM(UTC)
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To those who have responded - thank you! And please forgive me ignorance on this topic. I have performed at a top level (employee of quarter and meritorious civilian service medal) for my tenure with this agency.
Understanding all of this is a tad overwhelming. My case is pretty complex and this is not the appropriate thread to share all of those details. Here are a few facts in my story pertinent to the current thread and question.

* requested RA in Oct of 2020 and was told that it wasn't necessary because I was in a telework status

* I replied detailing why I need to seek an RA and requested accommodation beyond TW. I requested that the marginal functions of my job be removed and/or reassigned. i.e. lighten this ridiculous load that is further exacerbating my condition.

* To that I received a flat out NO. Because my boss is in a high level "hold people accountable" type of job I trusted that he was justified in denying me and gave up hope.

* At the end of the rating period I gave an honest appraisal of my shortfalls - all were a result of my medical condition.

* My supervisor gave me a 5.0 eval. When I questioned him- he claimed he did not want to ruin my career. And then awarded me 8 hours leave - vice the 40 hours I received on the previous 2 evals at the same grade.

* 3 months later we had an office function. For a variety of reasons I was almost 1.5 hours late. Health condition related. He called me after the event demanding to know why I was late and specifically said (on phone and in writing) that
my health problems are affecting my job and dependability. I should prepare to receive a communication from him on this matter. That was when I got the email entitled "Performance Discussion" detailing my obligation to submit a weekly
report and verbally share with our office at our weekly meeting every Tuesday.

My first plan it to use the JAN.org site to assist me in resubmitting my RA and contact a disability attorney. At this point - I feel as if this has become an EEO matter.
Would you all agree? I hope I have provided enough detail for some sage counsel from the gurus. Thank you all for the help!


frankgonzalez  
#10 Posted : Saturday, July 3, 2021 3:37:13 PM(UTC)
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Originally Posted by: Mcalisda49 Go to Quoted Post
To those who have responded - thank you! And please forgive me ignorance on this topic. I have performed at a top level (employee of quarter and meritorious civilian service medal) for my tenure with this agency.
Understanding all of this is a tad overwhelming. My case is pretty complex and this is not the appropriate thread to share all of those details. Here are a few facts in my story pertinent to the current thread and question.

* requested RA in Oct of 2020 and was told that it wasn't necessary because I was in a telework status

* I replied detailing why I need to seek an RA and requested accommodation beyond TW. I requested that the marginal functions of my job be removed and/or reassigned. i.e. lighten this ridiculous load that is further exacerbating my condition.

* To that I received a flat out NO. Because my boss is in a high level "hold people accountable" type of job I trusted that he was justified in denying me and gave up hope.

* At the end of the rating period I gave an honest appraisal of my shortfalls - all were a result of my medical condition.

* My supervisor gave me a 5.0 eval. When I questioned him- he claimed he did not want to ruin my career. And then awarded me 8 hours leave - vice the 40 hours I received on the previous 2 evals at the same grade.

* 3 months later we had an office function. For a variety of reasons I was almost 1.5 hours late. Health condition related. He called me after the event demanding to know why I was late and specifically said (on phone and in writing) that
my health problems are affecting my job and dependability. I should prepare to receive a communication from him on this matter. That was when I got the email entitled "Performance Discussion" detailing my obligation to submit a weekly
report and verbally share with our office at our weekly meeting every Tuesday.

My first plan it to use the JAN.org site to assist me in resubmitting my RA and contact a disability attorney. At this point - I feel as if this has become an EEO matter.
Would you all agree? I hope I have provided enough detail for some sage counsel from the gurus. Thank you all for the help!


if you requested a RA in writing (emails count) and it was denied without interactive discussion with you (or at least requesting info from your doc on what the6 recommend), you may have a very viable EEO complaint. I would Immediately send an email to your EEO office to ensure you get it started ASAP.

You should have voted Cthulu...the greatest of all Evils
thanks 1 user thanked frankgonzalez for this useful post.
GWPDA on 7/3/2021(UTC)
GWPDA  
#11 Posted : Saturday, July 3, 2021 4:37:07 PM(UTC)
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"if you requested a RA in writing (emails count) and it was denied without interactive discussion with you (or at least requesting info from your doc on what the6 recommend), you may have a very viable EEO complaint. I would Immediately send an email to your EEO office to ensure you get it started ASAP"

BELIEVE THIS. DO IT.

No fooling. This is a long weekend. Submit your paperwork NLT Tuesday.
Mcalisda49  
#12 Posted : Saturday, July 3, 2021 7:31:27 PM(UTC)
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thank you all for the help! I will keep you all posted on how things go.
Glad I have the long weekend to get my act together.

Edited by user Saturday, July 3, 2021 7:34:31 PM(UTC)  | Reason: Not specified

Mcalisda49  
#13 Posted : Friday, July 23, 2021 12:02:51 PM(UTC)
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UPDATE: I wanted to post an update to let you all know how things were going.

Regretfully I was given the EEO runaround for over a week. In sheer frustration I contacted an employment attorney.
She reviewed my case with me and was concerned that my PCM only requested telework and did not mention the removal
of my marginal functions. It was her opinion that an EEOC judge would frown upon this an it weakend my case. She said
I was an excellent candidate for disability retirement and recommended I apply for both RA and FMLA as I go through the
retirement application process.

I am in the process of submitting my RA and was able to confirm through the RA manager that my supervisor NEVER submitted
my request in November of last year. I also confirmed that his email communication was not "formal" and considered a counseling.
Yet, I am still required to do these weekly reports that are exclusive to me.

I am relieved to be moving towards the disability process, but I can't help but feel angry that he denied me my rights and has now
set a requirement for me exclusively. Am I wrong to think that I still have an EEO case?

Further complicating the matter - I received my step increase with noted acceptable performance on it. Should I just ride it out
and hope for retirement or push through the case?
frankgonzalez  
#14 Posted : Sunday, July 25, 2021 8:45:14 AM(UTC)
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Originally Posted by: Mcalisda49 Go to Quoted Post
UPDATE: I wanted to post an update to let you all know how things were going.

Regretfully I was given the EEO runaround for over a week. In sheer frustration I contacted an employment attorney.
She reviewed my case with me and was concerned that my PCM only requested telework and did not mention the removal
of my marginal functions. It was her opinion that an EEOC judge would frown upon this an it weakend my case. She said
I was an excellent candidate for disability retirement and recommended I apply for both RA and FMLA as I go through the
retirement application process.

I am in the process of submitting my RA and was able to confirm through the RA manager that my supervisor NEVER submitted
my request in November of last year. I also confirmed that his email communication was not "formal" and considered a counseling.
Yet, I am still required to do these weekly reports that are exclusive to me.

I am relieved to be moving towards the disability process, but I can't help but feel angry that he denied me my rights and has now
set a requirement for me exclusively. Am I wrong to think that I still have an EEO case?

Further complicating the matter - I received my step increase with noted acceptable performance on it. Should I just ride it out
and hope for retirement or push through the case?
If you were suddenly expected to provide weekly reports right after requesting an RA...yep...definitely meets the prima facie needs to file a complaint.

You should have voted Cthulu...the greatest of all Evils
frankgonzalez  
#15 Posted : Monday, July 26, 2021 3:45:16 AM(UTC)
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I forgot to add, you need to talk to your attorney and point out you requested an RA and had it denied without any of the interactive process occurring. And so, while you received a good appraisal, your TOA was lowered, and your boss stated he "didn't want to hurt your career." and so acknowledged your performance has declined. And subsequently, when you were late (due to your disability) to a function, you were suddenly put on this requirement that others are not required to do (disparate treatment based on your disability).

And go back to your doctor to get better documentation (provide them with a full list of your duties, broken up into two categories: Essential Elements and Marginal/Collateral Duties. And work with them to identify what you can or cannot do with each list, and what accommodations will allow you to do the Essential Elements.
You should have voted Cthulu...the greatest of all Evils
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