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Tools of the Trade

Tools of the Trade. Case Examples.

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Tools of the Trade

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  1. Tools of the Trade

  2. Case Examples • The complainant alleged the agency discriminated against her on the bases of race, color, disability, age and reprisal for EEO activity when it took various actions, including not selecting her for six positions and giving her an undeserved performance evaluation. The EEOC AJ rejected the claims of race, color and disability discrimination, but found age discrimination for two of the disputed positions and reprisal. The EEOC found the AJ's findings of age discrimination were not supported by the record. However, the EEOC awarded attorney's fees of $88,197.48 and compensatory damages of $13,025 for the agency's reprisal • Conrad v. Department of Justice $100,000 non-pecuniary reprisal-based harassment, removal from supervisory duties. The reprisal occurred over a period of at least 19 months and had a continuing impact on the complainant. Statements from the complainant, a number of family members, a coworker, and doctors established that the complainant suffered major depression that required hospitalization and medication. He experienced anxiety, diminished enjoyment of life, difficulty with his family relationships, loss of his marriage, sleeplessness, loss of concentration, loss of memory, and weight fluctuations. His professional reputation was damaged and a doctor described him as a "beaten man who has not fully emerged from the cloud surrounding his humiliation in his work as an Assistant U.S. Attorney."

  3. (1) discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation; (10) discriminate based on personal conduct which is not job-related and does not adversely affect the on-the-job performance of an employee, applicant, or others; (2) request or consider employment recommendations based on factors other than personal knowledge or records of job- related abilities or characteristics; (4) deceive or willfully obstruct anyone from competing for employment; (5) influence anyone to withdraw from competition in an effort to improve or injure the employment prospects of any person; (6) give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant; (7) engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives); GROUP 1 Discrimination } GROUP 2 Hiring Practices 13 Prohibited Personnel Practices1, 2, 4, 5, 6, 7 and 10

  4. } (8) engage in reprisal for whistleblowing – generally, a person with personnel authority cannot take or fail to take a personnel action with respect to an employee or applicant because of a disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. The prohibition does not apply, however, if the disclosure is barred by law or is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs, except when such a disclosure is made to the Special Counsel, the Inspector General, or a comparable agency official. (13) implement or enforce a nondisclosure agreement or policy lacking notification of whistleblower rights. GROUP 3 Whistleblower Protections 13 Prohibited Personnel Practices8 and 13

  5. (3) coerce the political activity of any person; (9) take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law; (11) take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement; or (12) take or fail to take a personnel action, if taking or failing to take the action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301. GROUP 4 Retaliation GROUP 5 Catch-All 13 Prohibited Personnel Practices3, 9, 11 and 12

  6. Must file with OSC first, unless there is a direct appeal right for the alleged prohibited personnel practice to the MSPB. • OSC takes the case and the Agency refuses to settle, than the OSC will refer the matter to the MSPB and give it’s recommendation. The employee does not need to file anything extra. • OSC fails to complete investigation in the designated time period, individual can file an Individual Right of Action case with the MSPB. • OSC makes a preliminary determination that the allegations cannot be substantiated and deny the case, then the individual can file an Individual Right of Action with the MSPB. Getting to the MSPBPPP/Individual Right of Action (IRA)

  7. OSC investigation leads to more expansive telework policy at U.S. Department of Defense. An Attorney Advisor with the Department of Defense, Defense Finance and Accounting Service alleged that the agency unlawfully prevented employees from participating in telework based on their marital status. According to the employee, the agency’s policy of limiting telework to those employees who were separated from a spouse or minor child as a result of the Office of General Counsel’s permanent change of duty station was discriminatory. As a result of OSC’s investigation, the agency took action to change the policy to allow all eligible employees to telework, subject to the discretion of the employees’ supervisors. OSC negotiates $126,000 settlement in case involving improper termination of U.S. Coast Guard employee. An employee of the U.S. Coast Guard alleged that he was improperly terminated during his probationary period in violation of his due process rights. In his removal letter, the agency stated that the employee was required to serve a new probationary period when he accepted the position of Construction Inspector, and as such, he was not entitled to due process rights. The employee had signed a statement agreeing to a new probationary period when he took the new position. OSC determined, however, that the employee did not waive his due process rights by signing the probationary statement. The Coast Guard agreed to: 1) give the employee a monetary settlement of $126,000, and 2) issue the employee an SF-50 reflecting that he voluntarily resigned from his position. Noteworthy Cases www.osc.org Recent Decisions

  8. Noted Exceptions: In certain circumstances you may be able to file these actions simultaneously regarding the same facts, including: • ULP + Grievance • OSC + EEOC. • Be sure to consult with your local General Counsel before advising an employee on this undertaking. TAKE AWAY MESSAGE: In most circumstances, you will only be able to choose one complaint path, so choose wisely. Be sure to choose the path that best encapsulates the goals of the employee. Tools of the Trade

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