Kator, Parks, Weiser & Harris, PLLC

A Washington, D.C. based law firm with a civil practice in employment law

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FDA Employee Email Surveillance Raises Concerns of Congress and OSC

The Washington Post reported that, according to Congressional investigators, the Food and Drug Administration’s Chief Counsel’s office authorized the agency to secretly monitor the emails and online activity of FDA scientists who were potentially engaged in protected whistleblowing activity. Since January 2012, Sen. Charles E. Grassley and the Senate Judiciary Committee have been investigating the FDA’s recent admission that, beginning in 2010 it authorized the surveillance of employees’ government computers and even personal email accounts. The FDA has claimed it began the surveillance solely for the purpose of determining whether the scientists had improperly leaked confidential and trade secret protected information for a 2010 New York Times article about the FDA’s review procedures for medical imaging devices. In that article, the scientists took issue with FDA’s process, alleging that it led to the improper approval of devices which exposed patients to dangerous radiation. The FDA’s surveillance, conducted by a third-party contractor, cataloged the activity of dozens of employees, media outlets, and elected officials, including members of Congress. The contractor also collected protected communications between employees and their attorneys, as well as drafts of employee grievances and complaints, and disclosures made to members of Congress.

In addition to the Senate Judiciary Committee, the Office of Special Counsel has also been investigating the FDA’s surveillance efforts to determine whether FDA violated federal anti-whistleblowing laws.  Several of the scientists being monitored filed employee grievances and a federal lawsuit, and were either fired or passed over for promotions after the surveillance program began.  OSC made an initial determination that the employee’s grievances about whistleblowing warranted a full investigation.  OSC Special Counsel Carolyn Lerner issued a warning to federal agencies in June 2012, stating that while monitoring federal employee’s official government emails and computers is in some cases permitted, it violates the law if the intent of the surveillance is to retaliate against whistleblowers.  The White House re-issued OSC’s warning across the government, indicating there are limits on employee surveillance, particularly when protected whistleblowing activity is involved.

If you believe you have been retaliated for protected whistleblowing, contact Kator, Parks, and Weiser.  Our firm has experience protecting and defending the rights of federal employees.

 

What Evidence Do You Need to Support a Whistleblower Retaliation Claim?

Federal employees are protected from retaliation for protected whistleblowing activity.  But what evidence do you need to support a whistleblower retaliation case?  A recent decision by the Federal Circuit helps clarify what evidence should be reviewed.

What is Whistleblowing?

Whistleblowing means disclosing information that an employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

Whistleblower Protection Act

In 1989, Congress enacted the Whistleblower Protection Act, which, among other provisions, prohibits retaliation for whistleblowing.  See 5 U.S.C. § 2302(b)(8).  In order for an employee or applicant to prove retaliation for whistleblowing, the courts have employed a burden-shifting scheme, where the employee or applicant must prove by a preponderance of the evidence that he or she made a protected disclosure that was a contributing factor in the personnel action threatened, taken, or not taken against the employee or applicant.  If the employee or applicant is able to establish that the protected disclosure was a contributing factor, the Merit Systems Protection Board (“MSPB”) will order corrective action unless the agency can demonstrate by clear and convincing evidence that it would have taken “the same personnel action in the absence of such disclosure.”  5 U.S.C. § 1221(e).  The clear and convincing standard of proof is higher than the preponderance of the evidence standard.

Under Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), the MSPB must weigh three factors in making a determination whether an agency has met the clear and convincing standard of proof: (1) the strength of the agency’s evidence in support of its personnel action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers.

Whitmore Decision

In a recent case, the United States Court of Appeals for the Federal Circuit, the court stated that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.”  Whitmore v. Department of Labor, No. 2011-2084 (Fed. Cir. May 30, 2012).

In Whitmore, the Federal Circuit reviewed an appeal from a former employee who challenged the Department of Labor’s decision to remove him for his allegedly disruptive and insubordinate behavior.  The MSPB affirmed the agency’s removal decision, and held that the employee did not prove his affirmative defense that the removal constituted unlawful retaliation for making protected disclosures.  The Federal Circuit reversed the MSPB decision, and remanded the case for further fact finding.

The court stated that the MSPB excluded or ignored evidence offered by the employee that was necessary to adjudicate his claim of whistleblower retaliation.  Specifically, the MSPB failed to evaluate all the relevant evidence in the aggregate, as the MSPB focused solely on the evidence that supported the agency’s removal decision.  The court also found that the MSPB erred when it excluded witnesses from the hearing who could have supported the employee’s claim of whistleblower reprisal.  And the court found the MSPB’s interpretation of “similarly situated” employees who were not whistleblowers to be unduly restrictive, as the required degree of similarity between employees cannot be read so strictly that the only evidence helpful to the inquiry is completely disregarded.

The court reaffirmed the vital role that whistleblowers play in society and the critical need to protect them:

“Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate.  Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation.”

The attorneys at Kator, Parks & Weiser have extensive expertise in representing federal employees who allege retaliation for making protected whistleblowing disclosures.  Contact us today for a free consultation.

Coerced Political Activity of Federal Employees Is Prohibited

Congress specifically focused on eliminating coerced political activity in structuring the federal civil service system. United States Code, Title 5, Section 2302(b) says that federal employees are protected against “coercion for partisan political purposes.” This protection extends to most employees and applicants for employment in Executive Branch agencies.

There are two procedural circumstances in which the prohibited personnel practice (“PPP”) of coerced political activity can be asserted by an employee: as an affirmative claim or as a defense to an adverse action.

Affirmative Claim to OSC

If a federal employee or applicant believes that a PPP has occurred, the employee may file a complaint with the U.S. Office of Special Counsel (“OSC”). OSC may investigate and prosecute coerced political activity under both the PPP provision of Title 5 and the Hatch Act.

After receiving a complaint of coerced political activity, OSC will conduct an investigation into the allegation. The investigation may include a review of records and interviews of the complaining employee and witnesses. Based on OSC’s investigation, OSC can seek corrective action, disciplinary action, or both. If an agency refuses to take action recommended by OSC, the matter can be brought before the MSPB.

With an affirmative claim of PPP coerced political activity (where the MSPB would not otherwise have jurisdiction over the claim), individual employees or applicants cannot bring a legal claim on their own behalf. The claim can only be brought before the MSPB by OSC.

As Defense to Personnel Action

An employee subject to an adverse action over which the MSPB has jurisdiction may claim that coerced political activity was a motivating factor in the agency’s action. For example, employees have claimed that termination actions were motivated by the employees’ refusal to engage in coerced political activity. OSC has the authority to delay an agency’s proposed personnel action if the action resulted from coerced political activity. If coerced political activity is raised as an affirmative defense in an MSPB appeal of an adverse action, the employee must produce evidence to support the claim.

If you have been subjected to coerced partisan political activity, contact KPW today to discuss your legal options.

Cases Considered by the MSPB

The Merit Systems Protection Board (MSPB) hears certain appeals and complaints filed by federal government employees.  The attorneys of Kator, Parks & Weiser have extensive experience handling cases before the MSPB.  Contact KPW today for a free consultation regarding your claims.

The MSPB hears appeals of certain disciplinary actions.  An employee who qualifies for civil service protection may appeal any termination, demotion, furlough for less than 30 days, or suspension of more than 14 days, to the MSPB for adjudication before an independent Administrative Judge.  The adverse action notice from the agency must set forth the applicable deadline, and will provide information about filing the appeal with the MSPB.

An important component of civil service protection is that management may not impose an unduly harsh punishment.  The MSPB has developed a list of factors that management and MSPB judges must consider in determining the appropriateness of a given punishment in a particular case.  Because the MSPB has authority to reduce a serious disciplinary action, an employee may want to pursue an MSPB appeal to fight for a reduced punishment, even if the employee admits to misconduct.

KPW’s MSPB practice group is chaired by Jessica Parks.  Ms. Parks served as an MSPB Administrative Judge, and was later appointed by the President as a Member and then Vice Chair of the MSPB.  Contact KPW today for a free consultation.

The MSPB also hears cases filed under the Whistleblower Protection Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Veterans Employment Opportunities Act (VEOA).

Whistleblowing means disclosing information that you reasonably believe is evidence of a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.  In most cases, a federal employee who believes he/she was subjected to retaliation for any such disclosure, must first go to the Office of Special Counsel (OSC), before filing an appeal with the MSPB.

An employee alleging a violation of his/her rights under USERRA, following service in a uniformed service may file an appeal with the MSPB.  USERRA protects the rights of veterans of the uniformed services to return to their work assignments, and protects from discrimination based on being a member or veteran of the uniformed services.

VEOA guarantees veterans’ preference in applications for certain federal civil service positions.  Procedural steps must be taken, including a timely filing with the Department of Labor, before a claim may be filed with the MSPB.

We strongly encourage anyone presented with notice of a proposed adverse action, or anyone considering a claim of whistleblower retaliation, violation of USERRA or violation of VEOA, to seek guidance and assistance immediately from an attorney experienced in handling federal employee adverse actions.  Contact KPW today to discuss your legal options.

I’m a Federal Employee who has just been handed a proposed disciplinary action: What Should I Do?

As a federal employee, you hope to avoid ever receiving the dreaded “proposed disciplinary action.” But you should be prepared to know what to do in the event that you face such a situation.

Contact Kator, Parks & Weiser today for a free consultation if you are a federal employee facing a proposed disciplinary action.

Federal employees may face proposed disciplinary action for a slew of reasons. Some of the most common accusations are:

• Leave and attendance policy violations, such as time card fraud or misrepresentation, absence without leave (AWOL), unavailability to work for medical or other reasons, or misrepresentation of working hours;
• Sexual misconduct, such as inappropriate sexually-based behavior in the workplace, sexual harassment, perpetuating a hostile work environment on the basis of sex, inappropriate sexual comments, or unwanted sexual touching;
• The ever-vague “conduct unbecoming a federal employee;” which agencies use to cover virtually any kind of behavior that your supervisor finds annoying, inappropriate, or irritating;
• Insubordination, disrespectful conduct toward a supervisor, failure to carry out supervisory instructions, or other charges relating to not listening to a supervisor;
• Charges relating to off-duty conduct, such as arrests, convictions, or outside employment;
• Failure to maintain a requirement for a position, such as a license, security clearance, privilege, credentials, or training;
• Ethics violations, such as conflicts of interest, use of government office for private gain, or inappropriate transactions with government contractors;
• Lack of candor or false statements in a government investigation or to a supervisor;
• Falsification or misrepresentation charges, such as resume fraud, misrepresentations on a security clearance questionnaire, or any other government form;
• Misuse of government property, including vehicles (GOVs), computers, cell phones, telephones, pagers, copiers, or mail;
• Drug and alcohol related offenses, such as failing to pass a drug test, substitution of a sample during a drug test, intoxication at work, or illegal drug sales, possession or distribution.

The above list is not exhaustive– Human Resource specialists and government lawyers who draft these charges can be quite creative in their phrasing. The proposed disciplinary action can range from a reprimand to a removal from the federal service. In between are suspensions, demotions, and reassignments.

If you receive a proposed disciplinary action, you should take it very seriously. Even a proposed reprimand could be the first step in management’s plan to eventually fire you. What you choose to include in your reply to the proposed disciplinary action involves many complicated considerations, including:

• Whether the deciding official will be receptive to your defenses, or whether you want to save some or all of your defenses for an appeal;
• Whether your statements in the replies could be used against you;
• Whether you want to admit or deny the proposed charges;
• Whether you want to raise any affirmative defenses, such as discrimination on the basis of sex, race, color, national origin, disability, sexual orientation, veteran status, marital status, or retaliation for EEO activity or whistleblowing;
• Whether you want to include witness statements that help your case;
• What arguments you might want to present in favor of mitigation of the penalty.

We strongly suggest that you seek guidance and assistance from an attorney experienced in representing federal employees in disciplinary matters.

The attorneys at Kator, Parks & Weiser have been successful in representing federal employees at every level of the disciplinary process. In representing federal employees at their oral and written replies to proposed discipline, we have succeeded in getting proposed disciplinary actions completely dismissed or mitigated to a lesser penalty. For example, in a recent matter, the attorneys at KPW got a proposed demotion reduced to a written reprimand. In other instances, we have successfully represented federal employees in appeals of disciplinary actions to the Merit Systems Protection Board (MSPB). In one recent case, an employee represented by KPW was terminated for misconduct relating to a random drug test, but was reinstated after the MSPB reversed the removal. In another recent case, the attorneys at KPW won a victory for a terminated employee at the Court of Appeals for the Federal Circuit.

Kator, Parks & Weiser’s MSPB practice group is led by former MSPB Vice Chair and Administrative Judge Jessica Parks. Contact Kator, Parks & Weiser today for a free consultation if you are a federal employee facing a proposed disciplinary action.

KPW Argues Key Case Before D.C. Circuit Court of Appeals

On April 9, 2012, Michael Kator, Chair of KPW’s appellate practice section, argued a highly anticipated case that will help determine the legal requirements for discrimination claims.  KPW represents Jorge Ponce, a federal employee who claims to have been discriminated against because of his race when he was not selected for a position at the Library of Congress.  At trial, the District Court for the District of Columbia informed the jury that it could not rule in Mr. Ponce’s favor unless he showed that the illegal discrimination was the “sole” reason for the selection decision.  On appeal, KPW argues that the court’s jury instruction was in error, as it is inconsistent with the anti-discrimination laws and Supreme Court precedent.  KPW was supported by amicus briefs filed by the AARP and the Metropolitan Washington Employment Lawyers Association.

If you have a discrimination case that is on appeal or may be appealed, contact KPW by clicking here for a free consultation.

Federal Employees Must Act Quickly to File an EEO Complaint

The law protects federal employees or job applicants from discrimination on the basis of race, color, national origin, gender, religion, pregnancy, age (40 or older), disability or genetic information. The law also protects federal employees from retaliation if they oppose employment discrimination, file a complaint of discrimination, or participate in the EEO complaint process in any way.  However, if you wish to file a discrimination complaint, you must act quickly to preserve your rights.

The first step in preserving your rights is to contact an EEO Counselor at your federal agency.  Finding an EEO Counselor at the federal agency should be relatively easy. Most federal agencies have posters and information on their web sites about how to contact an EEO Counselor.  Some agencies have centralized their EEO counseling, and provide a toll-free number by which to contact an EEO Counselor. If you cannot figure out how to locate an EEO Counselor, call the office at the Agency’s headquarters that is responsible for administering the Agency’s EEO complaints program.  The office may be called the Office of Equal Employment Opportunity, the Office of Civil Rights, or some variation.

Generally, you are required to contact the EEO Counselor within 45 calendar days of the date that the discrimination occurred. For example, if you learn that you were not selected for a job, and believe that your non-selection was due to discrimination, you should contact an EEO counselor within 45 calendar days of learning of the non-selection.  There are some narrow exceptions that would allow an EEO complaint to go forward even when an EEO counselor is contacted more than 45 days after the discrimination occurred.

Once you have contacted an EEO counselor, the counselor should interview you to discuss the particulars of your complaint of discrimination.  A counselor is not supposed to dissuade you from filing an EEO complaint.   A counselor is supposed to advise you about the EEO complaint process, and also explain the agency’s alternative dispute resolution (ADR) program. The EEO Counselor should explain that if the ADR program is available, you can choose whether to seek resolution of your discrimination complaint through the ADR process or through the traditional EEO counseling process. The EEO Counselor should also determine what claims you might have (i.e., non-selection, hostile working environment/harassment, denial of award, etc), and what bases of discrimination you have raised (i.e., gender, race, age, etc). The EEO Counselor should discuss with you issues relating to the timeliness of your EEO Counselor contact, but should not decline to meet with you if the counselor thinks you are late in contacting a counselor.  The counselor should also try to achieve a resolution of your complaint. If resolution is unsuccessful at this early stage, the counselor is supposed to advise you of your right to file a formal EEO complaint. You must meet all applicable deadlines in order to proceed in your EEO complaint.  Last, the counselor is supposed to prepare a report documenting all of the work that the counselor did during the EEO counseling process, and to discuss any jurisdictional questions, such as timeliness, that arise.

Although many employees and job applicants proceed through EEO counseling without contacting an attorney, we urge you to do so as soon as you suspect that you have been discriminated against.  Although the EEO Counselor is supposed to help frame your complaint accurately, we have seen many instances where the EEO Counselor does not correctly capture all of the issues that you have raised at the counseling stage.  In addition, although the EEO Counselor may suggest a potential settlement of your informal complaint, the EEO Counselor is not your advocate. To be able to fully explore the pros and cons of your case, and evaluate whether an early resolution is acceptable to you, you may wish to have your case evaluated by an attorney.

The attorneys at Kator, Parks & Weiser have extensive experience in representing federal employees at the earliest stages of discrimination complaints.  Indeed, we prefer to hear from you as soon as you suspect that you have been discriminated or retaliated against.  If we undertake representation of you at this early stage, we can help you cast your complaint in the most advantageous light, assist you in evaluating any early settlement offers, advocate for you in the early EEO counseling stage, and help you decide whether to proceed with formal EEO counseling or ADR.  In addition, we can also evaluate whether there are any exceptions that would excuse you from contacting an EEO counselor within 45 days of the occurrence of the discrimination.

Contact us today for a free consultation by clicking here.

EEO Complaint or Grievance for a Federal Employee?

Something discriminatory has happened to you in the federal workplace, and you don’t know whether to file an EEO complaint or a grievance about the matter.  Here are some things to consider in making the decision about which route to choose.

Under the EEOC’s regulations, a federal employee may file either an EEO complaint or a grievance under the negotiated grievance procedure about a discriminatory action.  However, an employee cannot file both an EEO complaint and a grievance about the same action.  For instance, once an employee chooses to file grievance on an action, the employee cannot also file an EEO complaint about the same matter.  Similarly, once an employee files a formal written EEO complaint about an action, the employee may not file a grievance about the same matter.   This is called an election of remedies—an employee must choose which route he or she would like to take to challenge the discriminatory action.  Further, withdrawing a grievance that has already been filed under the negotiated grievance procedure does not negate the election of remedies.  As such, an employee may not file a grievance, then withdraw the grievance and file an EEO complaint.   This rule is contained at 29 C.F.R. § 1614.301.

This “election of remedies” rule does not apply to certain federal employees, such as employees of the United States Postal Service.  USPS employees may file both a grievance and an EEO complaint about the same actionSee Strickland v. U.S.P.S., EEOC Appeal No. 01974724, Agency No. 1-H-342-1236-95 (Sept. 2, 1998).  Also, the “election of remedies” rule only applies to negotiated grievance procedures.  It does not apply to administrative grievance procedures established by an agency.

Before deciding which challenge to file to discriminatory activity, contact Kator, Parks & Weiser for a free consultation.

Recent Decision Strengthens Due Process for Federal Employees

The Merit Systems Protection Board (MSPB) has again strengthened due process protections for federal employees, when it cancelled the removal of a federal employee because the agency considered aggravating penalty factors which had not been  disclosed to the employee.  The employee was a criminal investigator who had been terminated from federal service by the Department of Justice on charges of “Conduct Unbecoming a DEA Special Agent” and “Making False Statements.”   Solis v. Department of Justice, 2012 MSPB 21, issued February 28, 2012.

After considering the employee’s reply, the agency decision sustained the penalty of removal. The deciding official found that the charges could be considered  criminal in nature and affect the investigator’s credibility if he testified in criminal prosecutions, raising Giglio issues.  As the MSPB noted, the Supreme Court case of Giglio v. United States, 405 U.S. 150 (1972), requires investigative agencies to turn over to prosecutors any potential impeachment evidence that might affect the credibility of agents involved in that case.   As a result, the investigator’s testimony might have marginal value and the government’s prosecution could be adversely affected in criminal cases.

In the employee’s appeal to the MSPB, it was determined that the Giglio issue, on which the deciding official relied, had never been raised with the employee.  Therefore, the employee was denied his constitutional due process right to respond to that penalty issue.  The MSPB found that the agency’s failure to inform the employee was substantial.  The Solis case notes the factors that the MSPB considers when deciding whether an ex parte communication is constitutionally impermissible: “(1) whether the ex parte communication merely introduces ‘cumulative’ information or new information;  (2) whether the employee knew of the information and had a chance to respond to it; and (3) whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner.”

In Solis, the MSPB found that the deciding official made it clear in his decision that he relied on the Giglio factor when he set the removal penalty.  The MSPB found that the agency’s failure to inform the employee of this information and allow him to respond was a due process violation,  reversing the removal and ordering payment of  back pay.  The Board noted that the employee would be “entitled to a new constitutionally correct removal proceeding.”

Disability Retirement for Federal Employees

Federal disability retirement is a benefit accorded to all federal employees under either the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS).  Certain minimum requirement must be met in order for an federal employee to be eligible under CSRS or FERS.

  • First, for CSRS employees, he or she must have a minimum of five years of service.  For FERS employees, he or she must have a minimum of 18 months of service.
  • Second, the employee must have become disabled while employed in a position subject to the retirement system, such that the disability results in deficient performance, conduct, or attendance that is incompatible with the employee continuing to perform useful and efficient service in his or her job.
  • Third, a physician must certify that the disability is expected to last a year or more.
  • Fourth, the employee’s agency must be unable to accommodate the disability in the employee’s current job or in an existing vacant position at the same grade or pay and in the same commuting area.

To be eligible for disability retirement, an employee does not have to be disabled for any employment at all.  Rather, eligibility requires only that the employee is unable to perform the job to which he or she was assigned, or a job at the same pay in the same commuting area.

Once an employee has met these minimum requirements, an application for disability retirement should be filed (1) with the employing federal agency before separation or (2) with the Office of Personnel Management (“OPM”) within one year of the date of separation from employment.  Additionally, under FERS, an employee must simultaneously apply for social security disability benefits.  OPM will dismiss the FERS disability retirement application should the employee withdraw his or her application for social security disability benefits for any reason.

Should OPM approve the employees application for disability retirement, OPM may require the employee to undergo periodic medical evaluations, the cost of which are the employee’s responsibility, in order to continue receiving benefits.

If OPM denies the application at the initial stage, the employee may seek reconsideration of the initial decision.  If reconsideration does not lead to the application being approved, the employee may file an appeal with the Merit Systems Protection Board (MSPB), which will evaluate and decide the case de novo (without deference to OPM’s decision).

The attorneys of Kator, Parks & Weiser have assisted numerous federal employees with all aspects of the disability retirement process, from compiling the initial submission to MSPB appeals.  To learn more about whether disability retirement is right for you, contact Kator, Parks & Weiser today.

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