Post Size Archives - Law Office of Kyle Ingram

Don’t Accept the Agency’s Reason for Not Hiring You

March 1, 2019 by Kyle Ingram

A lot of people learn that they didn’t pass the physical or some other medical examination when after receiving a conditional offer for a federal job. That’s actually a red flag that disability discrimination might be at work. The Nathan case – the FBI rejects an applicant because of monocular vision. Take the case of … Read more

Paternalism & Disability

March 1, 2019February 7, 2019 by Kyle Ingram

Good intentions can be weaponized by a lack of empathy and understanding.

A lot of what constitutes disability discrimination could be see, in some light, as as simply looking out for people and caring. Keeping an employee with a back injury from using a machine that hurt him. Preventing an employee with pregnancy complications from lifting heavy boxes. This is paternalism.

The idea that we know better. But we don’t. Every time we make a decision that diminishes another person’s options because we think it’s too hard or too dangerous, we rob that person of opportunity. If we do it because we think that person has limitations due to a physical or mental condition, that’s frankly illegal discrimination.

You don’t have to be disabled to be treated like you are.

It doesn’t matter if the person is actually disabled. When people consider someone to be disabled, and we stop the person from doing work, that is a form of disability imposed on the individual by us, by our expectations, by our ignorance and hubris, and our lack of empathy.

This isn’t simply academic to the many people who are on the business end of the subtle discrimination of lowered expectations. Good intentions are weaponized by our lack of understanding and empathy.

Federal laws make it illegal for federal agencies not to hire individuals because of a paternalistic view of what that person is capable of. A couple of cases highlight how this works.

EEOC cases focus on what a person can do, not what the agency assumes.

In the recent case, Johana S. v. Department of Agriculture, EEOC Appeal No. 0120131804 (2016), the federal agency prevented one of its criminal investigators who had a severe back injury from working out in the field. Because she was not permitted to do part of her job, the agency lowered her performance evaluation. The EEOC found that this constituted illegal discrimination against the employee.

Even though the back injury itself did not qualify as a “disability” per se under the law, the anti-discrimination laws extend to protect those who are “regarded as” being disabled. This happens when employers believe and act as if the person had a physical or mental impairment that was substantially limiting. The Supreme Court has stated:

Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

It is the reaction of the agency, not the capabilities of the person, that are limiting.

Agencies have to show a high probability of substantial harm before refusing to hire someone.

In an older case, the agency treated an applicant as if he could not work at all for the postal service, despite that the agency’s own doctor examined him and found that he was “normal in every respect” and had “no current physical limitations or restrictions.” Daniel McManaway v. United States Postal Service, EEOC Appeal No. 01993233 (2002). The EEOC found that this was also unlawful discrimination.

The EEOC rejected USPS’s argument that there was a possibility of injury to the applicant, and that was sufficient reason not to hire him. The EEOC instead found that unless an applicant has a “high probability of substantial harm” to himself or others (sometimes known as a ‘direct threat’), the agency is just relying on bare speculation about a future that is unlikely to occur. Part of the reason for the ADA and other anti-discrimination laws is to prevent employers from refusing to hire people because of their assumptions about what a person is capable of.

Paternalism is, unfortunately, alive and well. But every time we take action and do something about it, we shine light on a small corner of darkness.

Fighting Inadequate & Delayed EEO Investigations

March 1, 2019January 25, 2019 by Kyle Ingram

When federal employees file formal EEOC complaints, regulations require that the agency conduct an investigation within 180 days. (29 C.F.R. § 1614.108). The investigation must “develop an impartial and appropriate factual record” that enables the agency to make findings and, in appropriate cases, to award compensation to the victim.

Unfortunately, agencies are responsible for conducting investigations against themselves. Agencies will sometimes delay investigations well beyond the 180 days that they are permitted under the regulations, and/or the agency will conduct an inadequate investigation. Employees become responsible for requiring the agency to conduct the investigation they should be legally entitled to. The cases below show that the EEOC is taking steps to ensure that agencies cannot just ignore employee’s discrimination complaints and attempt to sweep allegations of discrimination under the rug.

Inadequate Investigations

Most investigations are conducted by outside contractors, although many of the DOD components and the VA have internal investigators (who are often quite good, in my experience). Contract investigators often have little incentive to develop evidence on behalf of the complainant employee. Two recent cases highlight how this can become a problem.

The Agency Interviews None of the Employee’s Witnesses

In Julius P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018), a VA employee based in Texas was told that he could no longer use annual leave in place of sick leave, which had been exhausted. He was later told that he could only take leave for service-connected medical appointments. The supervisor began charging him AWOL when he was late to work instead of allowing him to take annual leave. Demoralized by his supervisor’s callous treatment, the employee began missing work, and requested Family and Medical Leave (FMLA). However, the agency charged him with AWOL.

During the investigation, the employee provided the EEO investigator with a list of six witnesses to interview. The investigator failed to interview any one of these witnesses. Instead, the investigator only sought information from the supervisor and other management witnesses.

The EEOC’s regulations require that an investigator identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” In this case, the EEOC found that this investigation “unfairly restricted the [employee’s] ability to prove . . . discrimination[.]” The EEOC noted that:

An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant’s group as compared with the treatment of similarly situated employees . . . and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.”

The EEOC remanded the investigation back to the agency to interview these witnesses and to conduct a thorough investigation as required under federal regulations.

Agencies can Ignore Witnesses only if Interviews are Shown to be ‘Unduly Burdensome’

In a similar case, Emiko S. v. Dep’t of Commerce, EEOC Appeal No. 0120170543 (Apr. 27, 2017), the EEOC reversed the agency’s finding of no discrimination where the agency failed to interview nine of the ten witnesses identified by the complainant employee. The one witness who was interviewed stated that she saw a “downward spiral” in the relationship between the employee and his managers after the employee began to complain about her treatment. Despite this, the investigator claimed that the other witnesses probably did not have relevant information.

The EEOC found instead that there was no basis for the investigator to fail to interview these witnesses identified by the complainant employee. An investigator may only ignore witnesses identified by the complainant employee if contacting the witnesses would have been “overly burdensome”—meaning that information to be provided by these employees was clearly outweighed by the time and effort needed to conduct the interview. The investigator must include a reason why this is the case.

Employees face an uphill battle in getting investigations completed by the agency. Unfortunately, it has in many instances become the job of the employee to hold the agency to account for investigators failing to do their job adequately. Fortunately, the EEOC is policing the agencies and requiring complete investigations.

See also:

Dixie K. v. Dep’t of Justice, EEOC Appeal No. 0120150443 (Feb. 28, 2018)(EEOC ordered the agency and administrative judge to frame complainant’s issues correctly and to address them on remand).
Darius C. v. U.S. Postal Serv., EEOC Appeal No. 0120162461 (Jan. 26, 2018)(EEOC ordered a supplemental investigation by the agency where officials refused to respond to the investigator’s questions).

Delayed Investigations

Another problem that federal employees face is an agency that delays or completely fails to conduct any investigation at all. The agency has a legal obligation under the regulations to conduct an investigation and to do so in a timely manner. Failure to do so not only deprives the employee of the opportunity to obtain evidence to support a discrimination claim, it prevents the EEOC from effectively overseeing federal agencies’ compliance with the anti-discrimination laws.

In Complainant v. Deborah Lee James (Air Force), EEOC Appeal No. 0720090009, the EEOC issued sanctions against the Air Force for delaying in providing the EEOC with the complainant’s file. The agency claimed that it had tried to contact the administrative judge about the case. However, the administrative judge noted that she had been present in the office the entire week and her email and phone number had been provided to the agency’s attorney. The other excuses that the agency provided for its failure to comply with requirements were found not to be a ‘good cause’ for delaying the case.

The EEOC has issued default judgment in certain cases where the agency had no good cause for failing to investigate allegations of discrimination properly. That is, it has found in favor of the employee without allowing the agency to provide evidence in its own favor.

Ross v. USPS, EEOC Case No. 0720180001 (2018)(the availability of discovery to the employee did not cure the deficiencies in the agency’s own investigations, and default judgment was proper).
Candace C. v. GSA, EEOC Case No. 0720160013 (2016)(alleged mail room issue was not addressed until appeal, which was too late).

The EEOC has issued this ultimate punishment in EEOC cases where the agency has simply ignored its obligation to conduct an impartial investigation. Hopefully more cases like these will not have to be decided by the EEOC before the agencies get the message.

Employees need to stay vigilant

The EEOC can only issue sanctions against the agency when the employee comes forward and holds the agency’s feet to the fire. Employees who are facing long waits and uphill battles with agencies should consider filing for sanctions. These cases should provide employees with ammunition to get sanctions and to hold agencies accountable.

Getting Your FMLA Approved: Avoid The ‘Negative’ Forms And Doctor Mistakes, And Get ADA Accommodations To Return To Work

May 29, 2021January 15, 2019 by Kyle Ingram

Many federal employees know that if they (or a family member) gets really sick or goes to the hospital, the FMLA provides protected leave that will cover them even if they don’t have enough sick leave. But before an employee can take FMLA leave, she has to request leave and then provide a doctor’s certification of the need for leave at the employer’s request. (See 29 C.F.R. § 825.301). The Department of Labor provides a certification document that employers and employees can use on its website: https://www.dol.gov/whd/forms/wh-380-e.pdf

A problem can arise if the employee does not get the correct certification from the doctor. FMLA leave can be denied even to a deserving employee if the employee does not get the correct certification. The problem arises when the employee provides her employer with a doctor’s certification, but the certification says the employee does not need to miss work or does not have a “serious health condition.” This is known as a “Negative Certification,” meaning that the doctor certified the opposite of what the employee wanted—that there was no reason for the employee to take leave. Under the FMLA, a negative certification from a doctor means that the employer does not have to provide any FMLA leave.

Here are a couple of case examples where courts reviewing FMLA claims have found that the employee’s own doctor has disqualified them by providing a ‘negative certification.’

In Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 793 (1st Cir. 2011),the court held that the employer “was justified in denying FMLA leave” in part because the employee’s “cardiologist had disavowed the need for any leave.”
In Brady v. Potter, 476 F. Supp. 2d 745, 757-58 (N.D. Ohio 2007), the court held that the employer was permitted to rely on a “negative certification” in denying FMLA leave because the certification “did not indicate a serious health condition that rendered her unable to perform her job functions.”

These examples show what can happen when an employee goes to see the doctor and is not careful to make clear to the doctor what the purpose of the forms is. Moreover, many doctors’ offices will hand off this responsibility to a nurse or other practitioner, who fills out the forms based on little experience with the patient and the doctor simply signs off on it.

Here are some pointers for employees who are getting their FMLA forms filled out.

Make sure the employer has filled out “job functions” accurately. For example, if you are expected to lift 20 pounds at work, and that is why you need to take leave, make sure that the employer has included that information.
Make sure that the doctor identifies in Question 3 all of the ‘essential functions’ that the you (or the patient/family member) cannot perform. Make sure that the language the doctor uses to identify the essential functions matches the employer’s description of the ‘essential functions.’ For example, instead of ‘lifting heavy weight,’ use ‘lift 20 pounds’ to match the employer’s description.
Make sure before leaving the doctor’s office that the entire form is filled out. An employer may reject the form if it is not filled out in full.
Review the FMLA form before giving it to the employer. If the form is filled out incorrectly, then you will need to go back to your healthcare provider and get it corrected.

The cases above highlight what happens when an employee relies on faulty FMLA paperwork. Many employees just assume that the doctor has approved them for the A leave they expected, but the doctor may not have. Ensuring that the forms are filled out correctly in the first place can save you (and your employer and healthcare provider) a lot of trouble down the road.

Medical Certifications that are Only for Intermittent leave

A similar issue can arise where the employee is seeking to take continuous leave, but the doctor only certifies intermittent leave, i.e., that the employee needs to take leave on some but not all days. The FMLA permits employees to take both continuous leave and intermittent leave, depending ont he

This is a ‘negative certification’ of sorts, but it does not mean that the employee is not entitled to leave, only that the leave must be intermittent, not continuous. In a recent case before the federal court in Washington, D.C., Hodges v. Dist. of Columbia, 172 F. Supp. 3d 271 (D.D.C. 2016), Judge Tanya Chutkan found that the employee’s certification for intermittent leave did not meet the requirement for continuousFMLA leave, but did meet the requirement for intermittentleave.

Because the employee had this certification, it triggered a number of requirements for the employer. (See 29 C.F.R. § 825.300). These protections required the employer to notify the employee of his eligibility for FMLA leave, explaining her rights and responsibilities, and to notify the employee of what leave would be designated as FMLA-protected leave. Because the employer did not provide these protections, the court found that it ran afoul the requirements of the FMLA.

Consider ADA Accommodations in Addition to FMLA leave.

Not all conditions require FMLA leave. Many conditions that do not require leave may still qualify as a disability under the ADA, and an employee may be entitled to accommodations for that disability.

As a recent example, the federal appeals court in Virginia found that an employee who had suffered a major, but temporary, injury to his legs was entitled to ADA accommodations. (See Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir., 2014)). In other cases, employees who have disabilities such as severe nearsightedness that do not require leave from the employer are still entitled to accommodations under the ADA. (See Sawhney v. Vocus, Inc., Case No. PWG-11-3328 (D. Md. 2013).

Combining FMLA leave and ADA accommodations can also be a good idea. By asking for ADA accommodations before returning to work from FMLA leave, an employee can ensure that the transition from leave back to work is as painless as possible.

Finding Help

Getting FMLA paperwork filled out correctly certainly does not require a lawyer. But a lawyer familiar with the FMLA and the ADA can help you by reviewing what you are going to present to the employer before it creates any problems. A lawyer can also help you understand whether FMLA leave is the right course of action, or if it would be more advantageous to get an ADA accommodation instead of or in addition to the FMLA leave.

Getting Attorneys’ Fees in Federal Employee Disability Cases (ADA)

March 1, 2019January 8, 2019 by Admin

Civil rights law such as the ADA usually include a provision requiring the Agency to pay attorneys’ fees for successful claims. This means that if there is a final determination that the agency has discriminated against an employee, the employee can normally request for payment of the fees his attorney has incurred in bringing the claim.

There are many cases where employees were awarded attorneys’ fees by the EEOC after winning their claims. Here are two decisions with a discussion of the purpose of the provisions under the law.

Spencer v. Department of the Treasury, EEOC Appeal No. 07A10035 (2003)(federal employee awarded attorneys’ fees for disability claim)
Vindiola v. United States Postal Service, EEOC Appeal No. 07A20046 (2003)(federal employee awarded 27,000 in attorneys’ fees after being fired)

Why is this important? In most kinds of lawsuits, each side pays for its own attorneys whether they win or lose. In the average traffic injury case, the attorney is paid a percentage of what the jury awards, and that is constitutes her fee.

Civil Rights, such as protecting individuals from discrimination, are different from other kinds of cases. In this context, there are “fee-shifting” provisions in the law. ‘Shifting’ in this context refers to ‘shifting the burden’ of paying for an attorney from the employee to the defendant employer. It is important for federal employees to understand how these provisions work before hiring an attorney to represent them.

Civil Rights Cases are Important Enough to Ensure that Federal Employees are Made Whole for the Agency’s Discrimination

We as a society have chosen to ensure that an employee can bring a discrimination claim without fearing that he will end up losing even if he wins. The point is that the employee who brings a claim cannot be “made whole” if he has to pay attorneys’ fees. That is, he cannot be put in the same situation as would have existed if there were no discrimination if he bears the cost of doing so. Forcing an employee to pay for an attorney to right the wrong of discrimination puts the burden of social justice on the person whose rights were violated.

For the individual employee, the point of bringing a claim of discrimination is to stop a wrong and make the situation right again. This means that the employee should be paid wages that he was not able to earn because of the discrimination, and should be compensated for the emotional harms that the discrimination caused. But because there are important civil rights issues at stake, the employee should not have to bear the cost of helping to end discrimination for all of us.

Attorneys’ Fees Encourage Federal Employees to Bring Claims Regardless of the Amount of Money at Stake

Another reason attorneys’ fees are important is that it makes sure that employees bring ADA and civil rights cases even if the issue does not involve a lot of money. We as a society have decided that discrimination, even in small amounts, is still bad, regardless of the dollar cost of that discrimination.

In the ADA context, many employees are discriminated against when they are not given full accommodations as required by the law. Beyond being ungenerous and demeaning, failing to provide a reasonable accommodation impacts the employee’s ability to perform his or her job efficiently. Over the years, the employee may miss out on promotional opportunities, training opportunities, and other benefits that he or she would otherwise enjoy. This is to say nothing of the indignity of an ungenerous agency refusing to provide the minimal accommodation required by the law. But at the moment that the failure to accommodate occurs, there may be next to no measurable cost to the employee.

Discrimination damages our society far beyond what each individual discriminatory act costs. Discrimination tells other people that they are not as valuable, and discourages them from investing in their work. Over time, we all pay the costs of discrimination when this kind of discouragement is pervasive. Small acts of discrimination would never get corrected, and we would all suffer the consequences, without employees being able to get justice for them.

Federal Employees Need to be Able to Afford Justice

Obviously, federal employees often need for attorneys’ fees to be paid because it’s expensive to have an attorney bring discrimination claims against the federal government. Every agency has staff attorneys who handle personnel and discrimination matters. The marginal cost of assigning government attorneys to a discrimination case is almost zero.

But an employee has to seek out someone who has experience in the federal employment field and in particular in EEO cases. This can be expensive, and many employees would have to dip into their savings to be able to afford an attorney. Providing attorneys’ fees to successful litigants ensures that Civil Rights do not become too expensive to enforce.

Federal Employees can Find Attorneys who Work on Contingency

Particularly in the ADA context, as noted before, the dollar amounts at issue may not be very large. For many federal employees, an attorney is simply unaffordable if they have to pay out of pocket. And if they have to rely on the underlying money value of lost backpay or emotional damages, attorneys could only the most egregious cases unless they worked pro bono.

The Civil Rights laws, including the ADA, change this equation. By shifting the cost to employers, the law allows attorneys to be paid for their hard work even if the employee cannot afford it up front. Contingency fee arrangements make it possible for attorneys to take on ADA cases with little or no money being paid by employees. This is particularly important where the employee has lost his or her job and has no income to be able to afford an attorney.

Finding the right Lawyer for an ADA case

Many attorneys (and even some judges) may not be aware that Civil Rights cases provide for payment of attorneys’ fees to employees. That does not mean that all lawyers take ADA cases on contingency, or that a particular ADA claim is right for a contingency arrangement. A client who needs to have a contingent fee arrangement to be able to fund the case may want to ask up front about contingency fees and whether an attorney would consider taking the case on for a contingent fee.