Once you pass through the looking glass into the world of federal employment, all the normal employment rules change.  While on the one hand federal employees are afforded more procedural protections than employees in the private sector; on the other, they are subject to a bewildering array of regulations and agencies invested with power to decide the fate of their careers.

Described below are some of the avenues that federal employees can pursue to seek relief from discrimination and adverse personnel actions.  Bear in mind that this is general information, does not apply to every case or every federal employee, and that it is no substitute for seeking the advice of an attorney as soon as it becomes apparent that you are likely to have a problem at work. 

One thing to remember is that most cases are resolved through a negotiated settlement at some point before a hearing or a trial.  This saves the employee money and provides for sure relief, and it is almost always the best option if the Agency will agree to reasonable terms.  Sometimes, however, Agencies are not reasonable, and those are the cases that you need to win at a hearing or a trial. Remember, it is the result that is important, not the case. Understand, however, that deciding whether to settle your case is up to you, not your attorney.

complaints at the Agency Level

EEO complaints and Agency investigations

Employees who believe that they have been subjected to an unlawful and discriminatory personnel action or harassment on the basis of their race, color, sex, national origin, religion, age, disability, or because they have opposed discrimination in the past must contact an EEO counselor within 45 days if they wish to pursue a complaint of employment discrimination.(Please note that an EEO counselor, particularly at larger agencies, is often not the same person as the Agency's EEO director.)

After you make contact with the EEO counselor, the Agency has thirty days to try to resolve the complaint with you informally, either through the EEO counselor or through Agency mediation (although this period may in some cases be extended).  If the case is not resolved, the Agency will then issue a Notice of Right to File a formal, written EEO complaint.  You must do this within 15 days or your complaint will be dismissed as untimely.

The Agency then has 180 days to investigate your complaint of discrimination and issue a Report of Investigation.  Once the Agency issues its report, you have 30 days to Request a Hearing from the Equal Employment Opportunity Commission (EEOC) (or in some cases involving suspensions of more than 14 days, demotions, or terminations, the Merit Systems Protection Board. (MSPB))  You also have options to let the Agency decide your case or to take your case directly to the U.S. District Court.

Note that in some cases within the MSPB's jurisdiction, you may have a right to appeal directly to the MSPB within 30 days. Alternatively, you may be able to appeal an Agency's action either through the Agency's administrative grievance process or, if you are a member of a union, through the union's negotiated grievance process pursuant to the Collective Bargaining Agreement (CBA).  Be very careful, however, because once you select any one of the above options, you have "elected a remedy" and don't usually get to go back and choose a different option.  An attorney versed in federal employment law can explain the pros and cons of each process and help you make the right decision.

Office of Inspector General

Unlike the EEOC and the MSPB, Agency Inspectors General are charged with ferreting out "waste, fraud, abuse" rather than dealing with issues of discrimination or adverse personnel actions.  Whether you are contemplating making a disclosure to the OIG or have been contacted by OIG with a request for an interview as part of an investigation, an attorney can help guide you through the process and protect your rights, including your right to be free of retaliation and, in certain rare cases, your right not to testify.

Employee Grievance Process

In the case of Agencies with a federal employee union, employees in the bargaining unit can often take advantage of the negotiated grievance process under the CBA.  This has the advantage that usually you will receive free representation as opposed to having to hire an attorney.  In addition, the Agency does not ultimately get to decide your grievance if the union is willing to take it to arbitration.  For cost reasons, unions are often unwilling to take cases to arbitration, so you need to understand your union's position before you commit yourself.  Grievances usually have very tight time limits, so you need to get good information from your union right away.  If you file a negotiated grievance, you will not longer be allowed to file an EEO complaint over the same issue (and vice versa)

As an alternative to the negotiated grievance process, most Agencies also have an administrative grievance process.  Unlike the negotiated grievance process, administrative grievances are an option for non-bargaining unit employees.  In general, they also do not necessarily preclude you from filing an EEO complaint.  However, you need to understand exactly what you are doing when you file a complaint or grievance. The biggest disadvantage of administrative grievances is that they generally are decided within the Agency, so you do not get a hearing from an independent tribunal.

Special Rules for Veterans Affairs Medical Personnel

Doctors and nurses at the Department of Veterans Affairs are governed by Title 38 of the United States Code, unlike most federal employees, who are covered by Title 5.  As a result, their rights are more limited than those of most members of the civil service, including long probationary periods and limited recourse for personnel actions.  In addition, personnel actions based on "clinical care or competence" can have an impact on providers' licenses and may result in reports to the National Practitioners Database and State Licensing Boards.  In light of limited avenues for recourse and potentially severe consequences, medical personnel should seek out an attorney experienced in dealing with the VA at the earliest sign of trouble.

The Administrative Process

One you have cleared whatever procedures you are required to complete at the Agency, you may have a right to take your case to a hearing before an Administrative Judge.  A hearing is very much like a trial in court, except that it is decided by an Agency judge rather that a judge in a court, and the rules of evidence are generally somewhat relaxed.  There are advantages and disadvantages to choosing the administrative process over going to court; consult your attorney about your options.

Equal Employment Opportunity Commission

In discrimination cases, once you have been issued a notice of right to request a hearing from the EEOC (which you must do within 30 days), the EEOC Administrative Judge will at some point issue an Acknowledgment and Order beginning the case at the EEOC.  There will then follow a period of discovery, in which you will be able to ask the Agency written questions (Interrogatories), ask for documents (Request for Documents), and ask the Agency to admit certain facts (Requests for Admissions).  In addition, you may take depositions of federal employees and officials. At a deposition, your attorney meets with the person being deposed (the "deponent"), the Agency's attorney, and a court reporter.  You should also be present to observe and help your attorney. The deponent must answer your attorney's questions under oath, and the answers are recorded by the court reporter for later use in the case.  Sometimes depositions are also videotaped (at additional cost).

Of course, the Agency has the same rights to obtain information from you and your witnesses that you have to obtain information from them and will use the same procedures.  One sure way to lose a case and perhaps face additional penalties is to lose, destroy, or conceal evidence.  Never to do this! In addition, be sure that you tell your attorney about every bit of evidence you have.

After discovery, the Agency will usually file a Motion for Summary Judgment asking the judge to throw out your case, which the judge will do if the facts are not disputed and the law goes against you.  Hearings are an opportunity for the judge to find out the facts and test the credibility of the witnesses.  If there is no dispute over the facts, then there is no point in a hearing.

Finally, if the Judge denies the Agency's Motion for Summary Judgment, you will get your hearing.  You, your witnesses, and the Agency's witnesses will get to testify, and you and the Agency may submit documents and other evidence in support of your respective cases, subject to the Rules of Evidence.

Merit Systems Protection Board

The MSPB also provides hearings to eligible employees who have been suspended for more than 14 days, demoted, or terminated.  In addition, MSPB jurisdiction also includes reprisal for whistleblowing and violation of the rights of members of the armed services under USERRA. Once you appeal to the MSPB, it is up to you to demonstrate that the MSPB has jurisdiction over your appeal, and in many cases the judge will require you to do so. If you requested a hearing when you appealed and the judge finds jurisdiction, then you will usually have a period of discovery and then a hearing. (There is no such thing as a Motion for Summary Judgment at the MSPB.)

Office of Special Counsel

The Office or Special Counsel is entrusted with receiving certain kinds of whistleblower information (disclosures of waste, fraud and abuse), protecting employees from retaliation for whistleblowing, and addressing Prohibited Personnel Practices. In certain kinds of cases, you may or must go to OSC before taking a case to MSPB.

Security Clearances

Appeals of security clearances have special and very restrictive rules.  If you have a security clearance issue, seek out an attorney with extensive experience in security clearance matters. (I refer these cases to attorneys with this kind of expertise.) If you are applying for a clearance or a renewal of a clearance, tell the truth to the interviewer.  If you have doubts about whether there are issues that you can or should disclose, consult an experienced security clearance attorney first.

The Federal Courts

In EEO cases involving employment discrimination, you have a right to take your case to U.S. District Court after you complete the Administrative Process (see above) and "exhaust your remedies," either before or after you take your case to EEOC or the MSPB.  In other kinds of personnel cases at the MSPB, you usually have a right to have a U.S. Court of Appeals review the Board's decision (after you appeal an Administrative Judge's decision to the full Board at the MSPB).

Taking your case to federal court is not a decision to be made lightly, as the costs, the risks, and possibly the rewards are greater than at EEOC or MSPB.  Also, whether to go to EEOC or US District Court is often a decision that you should make after you take into account the records of both the courts and the administrative tribunals in your jurisdiction when it comes to deciding employee cases.  Court cases are more complex and the rules of evidence and procedure are stricter, but you also have greater opportunities to require the other side to make witnesses and evidence available.  Once again, deciding where to bring your case is a decision best brought in close consultation with an attorney you trust.

© Charles Williamson Day, Jr., 2016. All rights reserved.

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