Kator, Parks, Weiser & Wright, PLLC

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Due Process and Adverse Actions Taken Against Federal Employees

August 21, 2012 / KPWH / Comments Off

When a federal agency takes an adverse action against a non-probationary federal employee, it must follow basic due process requirements. The ultimate adverse action is subject to being reversed by the Merit Systems Protection Board (MSPB) if due process is not followed. The basic requirements are that non-probationary employees must be provided at least 30 days’ advance written notice of the adverse action as a proposed adverse action unless the “crime provision” exception applies. Adverse actions are generally defined as a suspension for more than 14 days, a demotion or a removal from federal service.

When such an adverse action is proposed, the agency must state the specific reasons for the adverse action in the notice, and the employee must be given an opportunity to review any and all materials relied on in proposing the action. During the advance notice period, the employee must be given an opportunity to respond, both orally and in writing to the proposal notice, and present additional information, including affidavits.

The agency’s deciding official must consider only the reasons stated in the proposal notice, and the employee’s reply. If the agency considers any additional information in reaching the adverse action decision, there is a likely due process violation and the action may be reversed in an appeal filed with the MSPB. Additional new information that relates either to the charged misconduct or to aggravating factors supporting an enhanced penalty could be determined by the MSPB to be constitutionally impermissible if the employee did not have a chance to respond to that information.

If the MSPB concludes that due process was not followed, the Board can reverse the action, and the employee would be entitled to a new and constitutionally correct proceeding.

EEOC Modifies Regulations For Discrimination Cases Filed By Federal Employees

August 6, 2012 / KPWH / Comments Off

After issuing a 2009 notice of proposed rulemaking and receiving comments, the EEOC issued changes to federal regulations on July 25, 2012. These modifications to the federal regulations impact the consideration of discrimination complaints filed by federal employees and applicants. Significant modifications to 29 C.F.R. Part 1614 are discussed below.

Compliance

Federal executive agencies are required to identify and eliminate discriminatory practices and policies. Under the recent modifications of 29 C.F.R. Part 1614, the EEOC will review agency programs for compliance with Civil Rights laws and the EEOC’s Management Directives. If the EEOC determines that an agency’s EEO program is not in compliance, the EEOC will give the agency a reasonable opportunity to cure defects that have been found, provide a reasonable justification for its non-compliance, or establish that its program is in compliance. If an agency fails to satisfy one of these criteria, a notice of non-compliance will be issued. Under the rule, the EEOC Chair has discretion to determine whether a notice of non-compliance should be made public.

Pilot Projects

Under the new rule, the EEOC may allow agencies to conduct pilot programs for procedural complaint processing procedures that vary from the requirements of 29 C.F.R. Part 1614. An approved pilot project can run for two years, and may be extended for an additional year if good cause is shown.

Notice of Rights

Under the EEOC regulations, an agency is required to complete its investigation and notify a complainant that he has the right to request a hearing (or an immediate final decision) within 180 days from the filing of the complaint. The modified regulations now require that if the agency does not complete its investigation within 180 days, the agency must, within 180 days, issue a written notice to the complainant informing him that the agency has been unable to complete its investigation within the required time limits, and the agency must estimate and provide to complainant a date by which its investigation will be completed. The notice must also inform the complainant that if he does not want to wait until the agency complete its investigation, he may instead request a hearing or file a civil action in an appropriate United States District Court. The EEOC, in the explanatory preamble, makes clear that a full range of sanctions are available should an agency not complete its investigation within the required time period, and that these sanctions may be warranted even if the agency issues the required notice under the new final rule.

Retaliation

Under the new rule, the EEOC clarified that federal employees alleging discrimination in proposals to take personnel actions or other preliminary steps to taking personnel actions should be dismissed unless the complaint alleges that the proposal or preliminary step is retaliatory. That is, challenges to proposals or preliminary steps are actionable if the federal employee alleges that the proposal or preliminary step was issued: (1) because the complainant had engaged in prior EEO activity; (2) because the complainant had opposed a practice which he believed violated one of the federal EEO laws; or (3) to dissuade the complainant, or a reasonable person in the complainant’s circumstances, from engaging in protected EEO activity.

Class Complaints

The EEOC’s final rules makes two significant changes to the class complaint process. First, the final rule seeks to shorten the class certification process. An appeal of the acceptance or dismissal of a class complaint will be processed by the EEOC within 90 days. Second, the final rule makes an administrative judge’s decision on the merits of a class complaint a final decision, which the agency can fully implement or appeal in its final action. If the agency does not fully implement the administrative judge’s decision, the agency may appeal the parts of the decision that it wishes to contest.

EEOC Process: Electronic Filing

Agencies are now required to submit appeals and compliant files to EEOC in a digital format. Complainants are encouraged to submit their documentation electronically.

MD-110

In addition to the explicit changes to 29 C.F.R. Part 1614, the EEOC indicated that it will revise Management Directive 110 to provide additional guidance regarding the changes made by the final rule. The EEOC will continue to review the federal sector EEO process in order to improve its quality and efficiency.

FDA Employee Email Surveillance Raises Concerns of Congress and OSC

July 23, 2012 / KPWH / Comments Off

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?

July 11, 2012 / KPWH / Comments Off

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

June 26, 2012 / KPWH / Comments Off

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

June 6, 2012 / KPWH / Comments Off

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?

May 23, 2012 / KPWH / Comments Off

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

April 17, 2012 / KPWH / Comments Off

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

April 4, 2012 / KPWH / Comments Off

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?

March 26, 2012 / KPWH / Comments Off

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 action. See 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.