NBC News Baltimore affiliate WBAL reported on the class actions that KPWH continues to fight on behalf of African American males at the Headquarters of the Social Security Administration. Click here to view the report.
For more information about the SSA class actions, click here.
Contact Kator, Parks, Weiser & Harris for a free consultation to discuss your own potential legal matter.
The EEOC certified a class action filed by Kator, Parks, Weiser & Harris, challenging the selection process for CBP Officer positions. The class action alleges that the physical fitness test for CBPO positions discriminates against female candidates.
Learn more about the CBP Officer class action by clicking here.
Kerrie Riggs and Cathy Harris of Kator, Parks, Weiser & Harris, PLLC proudly represented Dr. Patricia Kinne, a lesbian psychiatrist at the VA, in her complaints before the U.S. Office of Special Counsel and the EEOC. The case was recently settled with the help of the Office of Special Counsel, with Dr. Kinne receiving essentially full relief, including compensatory damages and attorneys fees. Dr. Kinne was discriminated against when she was threatened with removal after patients complained that she had disclosed she was a lesbian or referred to her wife. The patients cited Dr. Kinne’s sexual orientation as a basis for discontinuing their treatment with her. VA management at the Louisville VA Medical Center (VAMC) in Kentucky stated that Dr. Kinne’s disclosure of “personal information” was harmful to the doctor-patient relationship and warned she might be terminated. OSC investigated and found that while there were several hundred change-of-provider requests from patients against psychiatrists during the relevant time period, only two requests – the ones related to Dr. Kinne’s sexual orientation– were treated as potential corrective or disciplinary issues. In their OSC interviews, VA management officials were unable to distinguish their treatment of Dr. Kinne’s conduct from others who had received complaints, and provided inconsistent reasoning to support their actions. Dr. Kinne is a well-regarded psychiatrist with no other reported performance or conduct issues, and was complimented by the VA in 2013 for having relatively few patient complaints. The case settled just before an EEOC hearing on Dr. Kinne’s discrimination claims.
A June 2013 order from the EEOC found that the Drug Enforcement Administration engaged in class-wide discrimination against female DEA Special Agents. The EEOC ordered that separate hearings be conducted to determine the extent of monetary damages due to class members, damages that are expected to be in the tens of millions of dollars. KPW has proudly represented the class of female DEA Special Agents for decades. To learn more about the case, click here.
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.
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.
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.
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.
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.
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.
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.
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.
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.