1. Other Complaint Processes

2. Appeal Processes Other presentations this week: Other presentations this week: Grievance (NGP) Grievance (NGP) Negotiations Negotiations Unfair labor practice filed with Federal Labor Relations Authority (FLRA) Unfair labor practice filed with Federal Labor Relations Authority (FLRA) This presentation: This presentation: EEO complaint process EEO complaint process Whistleblower complaint Whistleblower complaint Merit systems protection board (MSPB) Merit systems protection board (MSPB) Office of Special Counsel (OSC) Office of Special Counsel (OSC) Other appeals processes, e.g. OPM Other appeals processes, e.g. OPM

3. EEO Complaint Process

4. Discrimination Complaints Bases for EEO complaints: Bases for EEO complaints: RaceColor RaceColor SexNational Origin SexNational Origin Age (over 40)Religion Age (over 40)Religion DisabilityReprisal DisabilityReprisal Other discrimination complaints, such as sexual orientation, genetic information, political affiliation, and marital/family status, cannot be appealed to EEOC. But, these may be prohibited personnel practices (PPPs). If so, they can be the base for a grievance or a complaint filed with OSC. Other discrimination complaints, such as sexual orientation, genetic information, political affiliation, and marital/family status, cannot be appealed to EEOC. But, these may be prohibited personnel practices (PPPs). If so, they can be the base for a grievance or a complaint filed with OSC.

5. Remedies to EEO Complaints: Stopping the specific discriminatory practices involved. Stopping the specific discriminatory practices involved. Nondiscriminatory placement in the position the victim would have occupied if the discrimination had not occurred. Nondiscriminatory placement in the position the victim would have occupied if the discrimination had not occurred. Compensatory damages - back pay (with interest if applicable) and lost benefits. Compensatory damages - back pay (with interest if applicable) and lost benefits. Make whole remedies only, therefore, no punitive awards, no punishment of the perpetrator.

6. EEO Pre-Complaint Process (Informal Complaint) Contact with EEO counselor must be made within 45 days of the incident. Contact with EEO counselor must be made within 45 days of the incident. Counseling period ends 30 days after contact, unless complainant agrees to extend up to 60 days. Counseling period ends 30 days after contact, unless complainant agrees to extend up to 60 days. USDA requires that ADR be offered during the counseling period. (Up to 90 days allowed.) USDA requires that ADR be offered during the counseling period. (Up to 90 days allowed.) If not resolved at end of the counseling or ADR period, employee receives a written Notice of Final Interview giving him or her the right to proceed with a formal complaint.. If not resolved at end of the counseling or ADR period, employee receives a written Notice of Final Interview giving him or her the right to proceed with a formal complaint.. Note: Meetings about informal EEO complaints are not considered formal meetings.

7. Role of EEO Counselor Facilitate the informal resolution of the issues raised in the complaint, based on fact-finding. Facilitate the informal resolution of the issues raised in the complaint, based on fact-finding. Address the claim, concerns and questions, and inform employee of their rights. Address the claim, concerns and questions, and inform employee of their rights. Provide the employee the opportunity to elect informal EEO counseling or the alternative dispute resolution process. Provide the employee the opportunity to elect informal EEO counseling or the alternative dispute resolution process. Issue a notice of the right to file a formal complaint if the matter is not resolved. Issue a notice of the right to file a formal complaint if the matter is not resolved. If a formal complaint is filed, upon request, provide an informal counseling report. If a formal complaint is filed, upon request, provide an informal counseling report.

8. Formal EEO Complaint Process Within 15 days of receiving the notice of right to file, an employee can file a formal EEO complaint. Within 15 days of receiving the notice of right to file, an employee can file a formal EEO complaint. Agency has 180 days to complete an investigation (extension may be granted). Agency has 180 days to complete an investigation (extension may be granted). After receiving report of investigation, the complainant has 30 days to choose: After receiving report of investigation, the complainant has 30 days to choose: An agency decision on the record; An agency decision on the record; An agency decision based on the recommendation of an EEOC administrative law judge (ALJ). An agency decision based on the recommendation of an EEOC administrative law judge (ALJ).

9. Formal Complaint Filed with USDA USDA Investigation If investigation is not completed and reported in 180 days, the employee may wait for ROI, request AJ hearing, or file civil suit. Investigative file to employee w/ notice of right to request Agency decision or AJ hearing. Employee requests AJ hearing Final agency decision (employee may elect to appeal to EEOC or civil court) Appeal to EEOC Civil Lawsuit 30 days Anytime after 180 days have passed No timeframe Decision to accept, reject or modify Employee may appeal to EEOC or civil court <=180 days >180 days Wait for ROI, no timeframe AJ Decision Employee requests immediate Agency decision 30 days 90 days 30 days 90 days 60 days 180 days 40 days 30 days Accept or Modify Reject or Modify USDA EEO Formal Complaint Process

10. Appeal of EEO decision After the Agency decision, an employee may: After the Agency decision, an employee may: appeal decision to EEOC (copy of appeal must go to USDA) within 30 days; appeal decision to EEOC (copy of appeal must go to USDA) within 30 days; file a civil action in federal court within 90 days. file a civil action in federal court within 90 days. If employee appeals to EEOC, they may subsequently go court within 90 days of receiving the EEOC’s decision. If employee appeals to EEOC, they may subsequently go court within 90 days of receiving the EEOC’s decision. If the Agency does not issue a decision within 180 days of the formal complaint, the employee may go to court. If the Agency does not issue a decision within 180 days of the formal complaint, the employee may go to court.

11. Union representation in EEO Union officials may represent the employee throughout the EEO process. Union officials may represent the employee throughout the EEO process. EEO forms ask for an individual name, rather than “the Union.” (But be sure to identify yourself as a Union representative.) EEO forms ask for an individual name, rather than “the Union.” (But be sure to identify yourself as a Union representative.) Meetings to discuss/resolve formal EEO complaints are formal meetings under the labor statute, and the Union has a right to be present. Meetings to discuss/resolve formal EEO complaints are formal meetings under the labor statute, and the Union has a right to be present.

12. Comments on the EEO Process No cost to the complainant, win or lose. No cost to the complainant, win or lose. Must be timely. Must be timely. Can’t file a grievance and an EEO complaint. Can’t file a grievance and an EEO complaint. Don’t need an attorney for most cases. Don’t need an attorney for most cases. Experienced, competent Union representatives are helpful. Experienced, competent Union representatives are helpful. Union does not have to represent BUEs, but generally does represent MEMBERS. Union does not have to represent BUEs, but generally does represent MEMBERS. Can take a long time; emotions run high, try to achieve an early (but good) settlement. Can take a long time; emotions run high, try to achieve an early (but good) settlement.

13. Merit Systems Protection Board (MSPB) ”The MSPB is an independent quasi-judicial agency established to protect Federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for employees against abuses by agency management.” ”The MSPB is an independent quasi-judicial agency established to protect Federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for employees against abuses by agency management.”

14. MSPB Jurisdiction MSPB will adjudicate appeals of: MSPB will adjudicate appeals of: Adverse actions. Adverse actions. Removals Removals Suspensions of more than 14 days Suspensions of more than 14 days Reductions in grade or pay Reductions in grade or pay Furloughs of 30 days or less Furloughs of 30 days or less Performance-based removals or reductions in grade. Performance-based removals or reductions in grade. Denials of within-grade salary increases. Denials of within-grade salary increases. Reduction-in-force actions. Reduction-in-force actions. Denials of restoration or reemployment rights. Denials of restoration or reemployment rights. Terminations of probationary employees for partisan political reasons or marital status or improper removal due to conditions arising prior to employment. Terminations of probationary employees for partisan political reasons or marital status or improper removal due to conditions arising prior to employment.

15. Further MSPB Jurisdiction OPM determinations in retirement matters. OPM determinations in retirement matters. OPM suitability determinations. OPM suitability determinations. OPM employment practices. OPM employment practices. USERRA – Uniformed Services Employment and reemployment act (38 USC 43). USERRA – Uniformed Services Employment and reemployment act (38 USC 43). VEOA – Veterans Employment Opportunities Act (5 USC 33). VEOA – Veterans Employment Opportunities Act (5 USC 33). Appeal of Grievance/Arbitration decision on cases involving EEO matters. Appeal of Grievance/Arbitration decision on cases involving EEO matters.

16. Agency notification of MSPB jurisdiction When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following: When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following: (a) Notice of the time limits for appealing to the Board, the requirements of § 1201.22(c), and the address of the appropriate Board office for filing. (a) Notice of the time limits for appealing to the Board, the requirements of § 1201.22(c), and the address of the appropriate Board office for filing. (b) A copy, or access to a copy, of the Board's regulations. (b) A copy, or access to a copy, of the Board's regulations. (c) A copy of the appeal form in appendix I of this part. (c) A copy of the appeal form in appendix I of this part. (d) Notice of any right the employee has to file a grievance. (d) Notice of any right the employee has to file a grievance.

17. Comments on MSPB Complaints Need to pay strict attention to timeliness. Need to pay strict attention to timeliness. No cost to complainant, win or lose. No cost to complainant, win or lose. Can’t file a grievance and a MSPB complaint. Can’t file a grievance and a MSPB complaint. Employee may represent herself, or have any other representative. Employee may represent herself, or have any other representative. Quite legalistic – for important matters, for example a removal, it is often best to be represented by an experienced and competent Union rep. or attorney. Quite legalistic – for important matters, for example a removal, it is often best to be represented by an experienced and competent Union rep. or attorney.

18. Office of Special Counsel

19. Office of Special Counsel www.osc.gov OSC is an independent federal investigative and prosecutorial agency. OSC is an independent federal investigative and prosecutorial agency. Primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices committed by management, especially reprisals for whistleblowing. Primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices committed by management, especially reprisals for whistleblowing. Investigates and prosecutes Hatch Act violations. Investigates and prosecutes Hatch Act violations.

20. OSC Process for Complaints Complaint must include: Complaint must include: Name and contact info of person filing complaint. Name and contact info of person filing complaint. Name, address location of agency involved. Name, address location of agency involved. Title, grade of affected employee(s). Title, grade of affected employee(s). Type of complaint. Type of complaint. Statement of relevant facts. Statement of relevant facts. For PPP: For PPP: Description of PPP with dates. Description of PPP with dates. Whether complainant is covered by CBA. Whether complainant is covered by CBA. Whether other complaint/appeal has been filed. (Must pick one route of complaint.) Whether other complaint/appeal has been filed. (Must pick one route of complaint.)

21. OSC Process for Complaints Complaint is received into the complaints examining unit. Complaint is received into the complaints examining unit. Complaint is investigated. Complaint is investigated. If there appears to be merit to the complaint, it will be referred to the Investigation and Prosecution Division. If there appears to be merit to the complaint, it will be referred to the Investigation and Prosecution Division. OSC will work with the Agency to remedy the situation. OSC will work with the Agency to remedy the situation. If the Agency refuses to implement OSC’s remedy, the OSC may prosecute before the MSPB. If the Agency refuses to implement OSC’s remedy, the OSC may prosecute before the MSPB.

22. Whistleblower complaints through OSC Disclosure through OSC. Disclosure through OSC. Violations of law, rule or regulation; Violations of law, rule or regulation; Gross mismanagement; Gross mismanagement; Gross waste of funds; Gross waste of funds; Abuse of authority; and Abuse of authority; and Substantial and specific danger to public health and safety. Substantial and specific danger to public health and safety. OSC will examine the disclosure to see if there is a substantial likelihood that the allegation is true. OSC will examine the disclosure to see if there is a substantial likelihood that the allegation is true. 1 st hand knowledge of the allegation? 1 st hand knowledge of the allegation? Enough information to support the claim? Enough information to support the claim? OSC will refer the claim to the head of the agency for investigation and report. OSC will refer the claim to the head of the agency for investigation and report. Agency report goes to Presidential and Congressional oversight committees. Agency report goes to Presidential and Congressional oversight committees.

23. Comments on OSC Complaints No time limit on filing, but “cold cases” may be hard to prove. No time limit on filing, but “cold cases” may be hard to prove. Can’t file a grievance and an OSC complaint. Can’t file a grievance and an OSC complaint. No cost to complainant, win or lose. No cost to complainant, win or lose. Representative not necessary – OSC investigates and prosecutes. (Union reps often provide advice.) Representative not necessary – OSC investigates and prosecutes. (Union reps often provide advice.) OSC has a small staff, they’ll often only take “big” and easily proven cases – and even then, the wait can be substantial. OSC has a small staff, they’ll often only take “big” and easily proven cases – and even then, the wait can be substantial. May result in corrective action, disciplinary action, or both. May result in corrective action, disciplinary action, or both.

24. Other Whistleblower Complaints GAO - Fraudnet (http://www.gao.gov/fraudnet.htm) GAO - Fraudnet (http://www.gao.gov/fraudnet.htm) reporting of allegations of fraud, waste, abuse, or mismanagement of federal funds. reporting of allegations of fraud, waste, abuse, or mismanagement of federal funds. USDA OIG (http://www.usda.gov/oig) USDA OIG (http://www.usda.gov/oig) reporting criminal activity, mismanagement/ waste of funds, workplace violence, employee misconduct, conflict of interest. reporting criminal activity, mismanagement/ waste of funds, workplace violence, employee misconduct, conflict of interest.

25. Other Appeals Office of Personnel Management (OPM) – Generally can only go to OPM if the topic is excluded from the grievance procedure: Office of Personnel Management (OPM) – Generally can only go to OPM if the topic is excluded from the grievance procedure: Exempt/non-exempt status under Fair Labor Standards Act; Exempt/non-exempt status under Fair Labor Standards Act; http://www.opm.gov/flsa/index.asp http://www.opm.gov/flsa/index.asp Classification appeals. Classification appeals. Government Accountability Office (GAO) – Government Accountability Office (GAO) – $$ appeals: $$ appeals: Employee working for more than 120 days on a detail at a higher grade; Employee working for more than 120 days on a detail at a higher grade; Travel pay. Travel pay. Waivers of overpayment. Waivers of overpayment. Protests related to contracting processes (A-76). Generally, the Union does not have appeal rights (so far). Protests related to contracting processes (A-76). Generally, the Union does not have appeal rights (so far).