1. LGBT S & P ROHIBITED P ERSONNEL P RACTICES : A N U PDATE FROM THE O FFICE OF S PECIAL C OUNSEL A PRIL 28, 2015 Emilee Collier, Investigation and Prosecution Division

2. 2  OSC is an independent federal agency charged with, among other things, safeguarding the merit system by protecting federal employees and applicants from prohibited personnel practices (PPPs)  OSC receives about 3,000 PPP complaints each year, of which only a small fraction deal with discrimination based on sexual orientation or gender identity. Office of Special Counsel (OSC)

3. 3 Authorized to —  Investigate prohibited personnel practices and other activities prohibited by civil service law, rule, or regulation  Seek corrective action for victims of prohibited personnel practices  Seek disciplinary action against officials who commit prohibited personnel practices Office Of Special Counsel (OSC) 5 U.S.C. §§ 1211-19; 5 C.F.R. P ART 1800

4. 4 Authorized to —  Provide safe channel for whistleblower disclosures  Advise & enforce Hatch Act provisions on political activity by federal, state, and local government employees  Protect reemployment rights of federal employee military veterans and reservists under USERRA Office Of Special Counsel (OSC) 5 U.S.C. §§ 1211-19; 5 C.F.R. Part 1800

5. 5  No statute of limitations to file with OSC  OSC may informally resolve complaints during investigation or mediation  OSC may file PPP reports  OSC may file formal complaints before the Merit Systems Protection Board (MSPB) PPP Complaint Process – Generally

6. 6 Prohibited Personnel Practices: Overview 13 PPPs —four general categories:  Hiring practices that offend merit system  Catch-all: violation of law, rule, or regulation that implements merit system principles  Retaliation for protected activity (including whistleblowing)  Discrimination

7. 7 Political Activity Prohibited Personnel Practice to:  Coerce political activity of any person (including providing any political contribution or service)  Reprising against an employee or applicant for employment for the refusal of any person to engage in political activity 5 U.S.C. § 2302(b)(3)

8. 8  Obstructing the right to compete  Influencing withdrawal from competition  Unauthorized preferences  Nepotism  Considering improper job references  Knowingly violating veterans’ preference 5 U.S.C. § 2302(b)(2); (b)(4); (b)(5); (b)(6);(b)(7); (b)(11) Hiring Offenses

9. 9 Most common violations:  Deceiving/willfully obstructing right to compete for employment — 5 U.S.C. § 2302(b)(4)  Influencing withdrawal from competition to improve or injure employment prospects of another — 5 U.S.C. § 2302(b)(5)  Granting unauthorized preference or advantage to improve or injure the prospects of any particular person for employment — 5 U.S.C. § 2302(b)(6) Hiring Offenses

10. 10 Common misconception:  Not prohibited to act upon preconceived idea that one person may be best selectee for particular position (“ preselection ”)  To violate the law there must be — The grant of some illegal advantage An intentional and purposeful manipulation of the system to insure that one person is favored and another is disadvantaged Hiring Offenses

11. 11 A GS-11/13 vacancy is announced. A candidate, whose mother works for the agency, applies at the GS-13 level only and an HR specialist finds her unqualified at that level. Supervisor reviews the application and overrules HR specialist’s initial determination. The candidate is hired as a GS-13. The HR specialist states that her supervisor told her the candidate’s hiring was political, since her mother worked in the front office. Hiring Offenses - Hypothetical

12. 12 Catchall Prohibited Personnel Practice Taking or failing to take personnel action, in violation of a law, rule, or regulation that implements or directly concerns a merit system principle 5 U.S.C. § 2302(b)(12)

13. Nondisclosure Agreements—New Whistleblower Protection Enhancement Act (WPEA) PPP  Nondisclosure agreements, policies or forms must include a statement clarifying that agency restrictions on disclosures are superseded by statutory whistleblower rights.  Implementing or enforcing a nondisclosure agreement that fails to provide this required notification of whistleblower rights is a PPP. 5 U.S.C. § 2302(b)(13) 13

14. 14 Retaliation 5 U.S.C. §§ 2302(b)(8), (b)(9) Taking, failing to take, or threatening to take or fail to take personnel action for ―  Protected whistleblower disclosures  Protected activity

15. 15 Elements of Proof: Retaliation Claims 5 U.S.C. §§ 1214(b)(4)(a)-(b), 1221(e) Must show —  Protected disclosure of information under 5 U.S.C. § 2302(b)(8) or protected activity under 5 U.S.C. § 2302(b)(9)  Personnel action taken, not taken, or threatened  Actual or constructive knowledge of protected disclosure or protected activity  Protected disclosure or protected activity was contributing factor in personnel action

16. 16 Protected Activity 5 U.S.C. § 2302(b)(9) ELEMENT No. 1  Exercise of appeal, complaint, or grievance rights  Testimony or other assistance to person exercising such rights  Cooperation with or disclosures to Special Counsel or Inspector General  Refusal to obey an order that would require violation of law

17. 17 Protected Whistleblower Disclosures 5 U.S.C. § 2302(b)(8) ELEMENT No. 1 Disclosure Categories  Violation of any law, rule, or regulation  Gross mismanagement: substantial risk of significant impact on mission  Gross waste of funds: more than debatable expenditure  Abuse of authority  Substantial & specific danger to public health & safety  Censorship related to scientific research or analysis (scientific integrity)

18. 18  Generally protected when made to any person  Need not be accurate to be protected  Protected if employee reasonably believes that it is true — test is both objective and subjective Protected Whistleblower Disclosures ( cont’d) 5 U.S.C. § 2302(b)(8)

19. 19  No requirement to go through chain of command  Whistleblower’s personal motivation does not negate reasonable belief  Employee or applicant protected if employer mistakenly believes he or she is a whistleblower Protected Whistleblower Disclosures ( cont’d) 5 U.S.C. § 2302(b)(8)

20. Disclosure does not lose protection because:  disclosure made to person who participated in the wrongdoing;  disclosure revealed information that had previously been disclosed;  disclosure made while off duty; or  disclosure made during the employee's normal course of duties. 20 Protected Whistleblower Disclosures - WPEA 12/27/2012 5 U.S.C. § 2302(b)(8)

21. Retaliation-Elements 2 & 3 Once element 1 (protected disclosure/activity) is established, must establish elements 2 & 3: 2. Personnel Action 3. Actual/Constructive Knowledge 21

22. 22 Retaliation-Element 4 Element 4 — Contributing Factor Any factor which alone or in connection with others tends to affect in any way the outcome of the personnel action at issue Exception: one type of protected activity must still meet significant factor test- 5 U.S.C. § 2302(b)(9)(A)(ii) (exercise of appeal,complaint, or grievance right other than complaints remedying protected whistleblowing)

23. 23 Retaliation-Element 4 Contributing Factor Can be established by knowledge and timing alone Often established by circumstantial evidence

24. 24 Clear and Convincing Evidence (Agency Defense) Agency must show — by clear and convincing evidence — that it would have taken same action absent protected whistleblower disclosure and/or protected activity Factors:  Strength of evidence in support of personnel action  Existence & strength of motive to retaliate  Treatment of similar employees who did not engage in protected whistleblowing or protected activity

25. 25 Retaliation – Hypothetical Employee testifies to Congress about agency backlog in treating PTSD patients. Soon after, ten percent of her duties change due to patient complaints about her demeanor, her new supervisor rates her lower than the previous year, and she claims harassment (i.e., critical comments, close scrutiny of her actions during her shifts).

26. 26 Discrimination Prohibited Personnel Practice to discriminate:  Based on race, color, nationality, religion, sex, handicapping condition, age, marital status, or political affiliation  OSC generally defers to EEO process for Title VII discrimination claims  Exception: sexual orientation and gender identity claims 5 U.S.C. § 2302(b)(1)

27. 27 Discrimination Prohibited Personnel Practice to discriminate under section 2302(b)(10): ● Based on “conduct which does not adversely affect the performance of the employee or applicant, or the performance of others,” including sexual orientation and gender identity ● Protection extends to LGBT individuals under long-standing positions of OPM, DOJ, and White House 5 U.S.C. § 2302(b)(10)

28. 28 Discrimination  Federal employees and applicants have the right to file sexual orientation and gender identity complaints under two separate provisions:  Discrimination based on…sex. 5 U.S.C. § 2302(b)(1).  Discrimination based on conduct that does not adversely affect job performance. 5 U.S.C. § 2302(b)(10).

29. 29 Discrimination – Case Example  An employee alleged that her supervisors discriminated against her when they discovered she was married to a woman.  She was subjected to a significant change in duties, given a written reprimand and a proposed 5-day suspension.  OSC negotiated a settlement that included relief for the employee and training for agency supervisors.

30. 30 Discrimination – Case Example  A transgender employee alleged that she was subjected to harassment, including not being permitted to use the restroom associated with her gender identity and being repeatedly called by the wrong pronouns.  OSC issued a PPP report finding discrimination. The agency agreed to take full corrective action, including training for staff.

31. 31 Discrimination – Case Example  An employee alleged that he was terminated because his coworkers discovered his anonymous social media posts, which mentioned his sexual orientation.  OSC issued a PPP report and negotiated both individual and systemic corrective action.  Agency changed outdated regulation used to terminate the employee.

32. 32 Discrimination – Case Example OSC can seek informal and formal stays of personnel actions while we investigate.  A medical professional alleged discrimination when her agency threatened to remove her if she disclosed her sexual orientation to patients.  The agency agreed to informally stay the removal while OSC investigated the case.

33. 33 Filing Options  Employees may file both EEO and OSC complaints.  May wish to seek advice before filing a union grievance, MSPB appeal, or OSC complaint, as the law generally requires an employee to choose one of these three options.

34. 34 OSC Phone / email contacts Complaints Examining Unit: (202) 254-3670 (800) 872-9855 Disclosure Hotline: (202) 254-3640 (800) 572-2249 Hatch Act Unit: (800) 85-hatch (202) 254-3650 hatchact@osc.gov USERRA Unit: (202) 254-3620 USERRA@osc.gov OSC Speakers/2302(c) Certification Program/ Outreach Requests: (202) 254-3684 2302c@osc.gov