1. Prepared by: Naval Office of EEO Complaints Management & Adjudication
No Fear Act: Notification and Federal Employee Anti-Discrimination and Retaliation Act of Training Module
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Welcome to No Fear Act instruction.
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Box 2 You may navigate this session by utilizing the navigation keys (insert flashing arrow pointing to navigation keys).
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You may click on CC for closed captioning of this training.
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Click on the next arrow to proceed.
Prepared by:
Naval Office of EEO Complaints Management & Adjudication

2. Agenda Overview of No Fear Act
Equal Employment Opportunity (EEO) Discrimination Complaint Process
Whistleblower Protection Act
Freedom From Reprisal
Links and Locations for additional information

3. Overview of No Fear Act
Title: Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002 (effective 10/01/03)
Purpose
Parts of the No Fear Act
Policy on Discrimination
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Let’s begin with an overview of the No Fear Act.
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The No Fear Act title is - Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002 (effective 10/01/03)
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Roll your pointer of the each of the three items to review the overview information of the No Fear Act.
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Rollover Box 1 – Purpose
The Act requires that “Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.”
The Act also requires that DON inform current employees, former employees and applicants for employment, of the rights and protections available under Federal antidiscrimination, whistleblower protection and retaliation laws.

4. Purpose of Act
The Act requires that “Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.”
The Act also requires that DON inform current employees, former employees and applicants for employment, of the rights and protections available under Federal antidiscrimination, whistleblower protection and retaliation laws.

5. Three Parts of the No Fear Act
Three titles:
Title I – General Provisions
Title II – Federal Employee Discrimination and Retaliation
Title III – EEO Complaint Data Disclosure
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As part of the overview, let’s look at the three parts of the No Fear Act in more detail.
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Roll your pointer of the each of the three items to review the overview information of the No Fear Act.
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Title I: General Provisions
The No Fear Act was enacted because Congress found that the Federal agencies could not be run effectively if agencies practiced or tolerated discrimination. Congress heard testimony and became aware of several lawsuits based on discrimination and believed that notifying Federal employees at their rights under discrimination and whistleblower laws would increase agency compliance with the law.
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Title II: Federal Employee Discrimination and Retaliation
The No Fear Act requires Federal agencies to repay the Department of Treasury’s judgment fund out of its operating budget for judgments, awards, and settlements reached at Federal District Court. The No Fear Act also requires agencies to notify employees, former employees and applicants for employment of their rights and to report complaint data to Congress, the Equal Employment Opportunity Commission and the Attorney General.
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Title III: Equal Employment Opportunity Complaint Data Disclosure
The No Fear Act requires that each Federal agency must post EEO complaint data on its public website.

6. Policy
“A Federal agency may not discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status or political affiliation.
Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b) (1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. 2000e-16.

7. What are Your Rights? Existing Rights Unchanged
Pursuant to section 205 of the No FEAR Act, neither the Act nor any notice issued in compliance with the Act, creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).
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8. EEO Discrimination Complaint Process
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9. EEO Statutes Title VII of the Civil Rights Act of 1964
Prohibits discrimination based on race, color, religion, sex, and national origin.
Age Discrimination in Employment Act of 1967
Prohibits discrimination on the basis of age (40 years and older).
The Rehabilitation Act of 1973
Prohibits discrimination on the basis of mental and physical disability.
Equal Pay Act of 1963
Prohibits sex-based wage discrimination.
All statutes prohibit reprisal or retaliation against individuals exercising their rights under the statutes.
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Here is a list of the Statues that support the No Fear Act. Let’s take a moment to review.

10. EEO Discrimination Complaints
If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin, age, disability or reprisal, you must contact a DON EEO Counselor:
Within 45 calendar days of the alleged discriminatory action; or,
In the case of a personnel action, within 45 calendar days of the effective date of the action.
Every individual alleging discrimination must first go through the pre-complaint or counseling phase of the DON EEO discrimination complaint process.
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If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin, age, disability or reprisal, you must:
Contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action; or,
In the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with your agency. See, e.g., 29 CFR 1614.
Every individual alleging discrimination must first go through the pre-complaint or counseling phase of the DON EEO discrimination complaint process.

11. PRE-COMPLAINT PROCESS Election of Alternative Dispute Resolution (ADR)
Alleged
Discriminatory
Event
Occurs
Case
Resolved?
ADR
Elected
Conduct
ADR
Yes
Pre-Complaint Process
Box for: Alleged Discriminatory Event Occurs – If you believe you have been discriminated against you must contact a Department of Navy (DON) EEO Counselor within 45 days of the alleged discriminatory act or within 45 days of gaining knowledge of the alleged discriminatory action. Also, you must contact a DON EEO counselor within 45 days of the effective date of the alleged discriminatory action.
Box for: Initial Contact with an EEO Counselor – Once an employee contacts the EEO Counselor he/she will be advised of the EEO complaint process and advised of their Rights and Responsibilities.
Box for: Election of Alternative Dispute Resolution (ADR) or Traditional Counseling – Suggested wording for ADR:
“Alternative Dispute Resolution,” or “ADR,” refers to voluntary methods to resolve the issues without the need for investigations or other administrative process.
The most common method is “mediation,” which features:
A person called a “mediator” who helps the participants get issues on the table, share information, and consider solutions;
Confidentiality protection under the Administrative Dispute Resolution Act; and,
You still retain all of your rights under the EEO process.
Suggested wording for Traditional Counseling: Traditional Counseling refers to the process in which the EEO Counselor conducts fact finding on the claims of alleged discrimination.
Box for: Conducting Traditional Counseling – As part of the EEO Counselor’s fact finding the Counselor will interview witnesses, collect documents and work with the parties to resolve their complaint.
Box for: Case Resolved? ADR – If the ADR event is successful and the complaint is resolved the complaint is closed. If the ADR event was not successful the EEO process continues.
Box for: Case Resolved? Traditional Counseling – If during the traditional counseling process the complaint is resolved either through a settlement agreement or a withdrawal of the complaint, the complaint is closed. If traditional counseling does not result in the resolution of the complaint the EEO process continues.
For the ADR Elected Box:
An ADR intake person - called a "convener" - will work with all concerned parties to explain ADR and help in the decision to use it. Typically, the parties sign an agreement to use ADR to make it clear that the confidentiality rules apply and to ensure that everybody understands the process. The document does not waive any rights and it is not a settlement agreement. A party may withdraw from the ADR process at anytime because participation is voluntary.
For the ADR Conducted Box:
There are several general types of ADR processes, and one of the most common is mediation. Mediation is an informal process that uses a neutral third party to help the parties' resolution of the dispute. The Department of the Navy provides certified mediators at no charge to the employees. The mediator has no power to make a decision or force one on any party; instead, the mediator works with all parties to reach a voluntary agreement of their own making.
Box for: Final Interview – During the final interview the Counselor will inform the employee of the results of their fact finding and provide the employee with a Notice of Right to file a Formal EEO Complaint. If an employee decides to file a formal EEO complaint they must do so within 15 calendar days of receipt of the Notice of Right to File a Formal EEO Complaint. No
Election of Alternative
Dispute Resolution (ADR)
or Traditional
Counseling
Final Interview –
Employee
Issued
Notice of
Right to
File a Formal
Complaint
Initial
Contact
With EEO
Counselor
Case
Ends No
Traditional
Counseling
Elected
Conduct
Traditional
Counseling
Case
Resolved?
Yes

12. Request Final Agency Decision Decision w/EEOC Hearing
FORMAL PROCESS
All
Claims of
Discrimination
Dismissed
Appeal
To EEOC Office of
Federal Operations
Formal
Complaint
Filed
Report of
Investigation
(ROI)
Received by
Agency
Agency issues
Final Agency Decision
Claims of
Discrimination
Accepted
Investigation
Held
Agency
Requests
Investigator
Formal Complaint Process
Box for: Formal Complaint Filed – Formal Complaint must be filed within 15 calendar days of receipt of the Notice of Right to File an EEO Complaint.
Box for: Claims of Discrimination Acceptance - After a formal complaint is filed the agency will notify the complainant of receipt of the complaint and then will make a determination to accept or dismiss a claim of discrimination. If the claims are accepted a request for an investigation will be made. Please note that ADR can be used at any part of the EEO process. This also pertains to the formal complaint process.
Box for: All Claims of Discrimination Dismissed – Claims of discrimination may be dismissed for a limited number of reasons outlined in federal regulation. If the complaint is dismissed the employee receives appeal rights to the EEOC Office of Operations.
Box for: Agency Requests Investigator – Investigations in the EEO process are conducted by the Department of Defense, Civilian Personnel Management Service, Investigation and Resolution Division (IRD).
Box for: Investigation held: The investigation of an EEO complaint may be conducted in a number of ways to include: in person investigations, investigations over the phone or through written statements (i.e. interrogatories or affidavit).
Box for: Report of Investigation (ROI) Received by Agency - When the investigation is complete the investigator will provide the agency with a ROI. The employee will be provided a copy of the ROI and an opportunity to identify deficiencies in the ROI.
Box for: Complaint Elects a Final Agency Decision with or without a hearing – After the investigation is completed the employee will be given an option to request a Final Agency Decision (FAD) on the merits of the complaint from the Secretary of the Navy or request a hearing before an EEOC Administrative Judge.
Box for: Request Final Agency Decision without a hearing – If the employee requests a FAD without a hearing the complaint will be forwarded for issuance of a FAD from the Secretary of the Navy.
Box for: Agency Issue Final Agency Decision – If the employee does not agree with the FAD the employee is entitled to appeal the decision to the EEOC Office of Federal Operations.
Box for: Request Final Agency Decision with/ EEOC Hearing – If the employee requests a hearing before an EEOC Administrative Judge, the employee must make their request with the EEOC and provide a copy of the request to the agency. The agency will then forward the case file to the EEOC.
Box for: EEOC Hearing – During the hearing the employee will present case facts before an EEOC Administrative Judge. After the hearing the Administrative Judge will issue a recommended decision on the merits of the complaint.
Box for: Agency Issues Final Order: The Administrative Judge’s decision is forwarded to the employee and the Agency for the Agency to issue a Final Order either implementing the decision or not implement the decision. If the Agency does not implement the Administrative Judge’s decision the Agency must file an appeal with the EEOC Office of Federal. If the employee disagrees with the Agency’s Final Order they may also file an appeal with the EEOC Office of Federal Operations.
Box for: Appeal to EEOC – If an employee or the Agency appeals to the EEOC Office of Federal Operation, the EEOC will issue a decision on the appeal. If the employee or the agency disagrees with the EEOC decision they may request reconsideration. If the employee disagrees with the EEOC decision on the request for reconsideration they may file a lawsuit in Federal District Court.
Request Final Agency Decision
w/o Hearing
Complainant
Elects a Final
Agency Decision with
or without a
Hearing
Request Final Agency
Decision w/EEOC Hearing
EEOC Hearing
Agency Issues
Final Order

13. Other Circumstances
If you believe that you have been the victim of unlawful discrimination on the basis of age, you may either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discriminatory action.
If you are alleging discrimination based on marital status or political affiliation, you may file a written complaint with the U.S. Office of Special Counsel (OSC). In the alternative (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through your agency's administrative or negotiated grievance procedures, if such procedures apply and are available.

14. Who Do You Contact? Local EEO Office Office of Special Counsel
Contact information can be found on official bulletin board.
Office of Special Counsel
U.S. Office of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC or online through the OSC Web site —
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Please take a moment to review the contact information.

15. Whistleblower Protection Act

16. Whistleblower Protection Laws
The Whistleblower Protection Act prohibits Federal agencies from retaliating against employees, former employees, or applicants for employment for whistle blowing. Whistleblower reprisal refers to the actual taking, failure to take, or threatened taking of a personnel action in retaliation for a protected disclosure of information that is reasonably believed to evidence:
violations of law, rule or regulation;
gross mismanagement;
gross waste of funds;
an abuse of authority;
a substantial and specific danger to public health or safety.
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The Whistle blowing Protection Act prohibits Federal agencies from retaliating against employees, former employees, or applicants for employment for whistle blowing. Whistleblower reprisal refer to the actual, taking, failure to take, or threatened taking of a personnel action in retaliation for a protected disclosure of information that is reasonably believed to evidence:
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violations of law, rule or regulation;
gross mismanagement;
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Gross Mismanagement
An action that creates a risk of significant adverse impact on the accomplishment of an Agency’s mission.
gross waste of funds;
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Gross Waste of Funds
More than a debatable expenditure that is significantly out of proportion to the benefits reasonably expected to be provided to the government.
an abuse of authority;
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Abuse of Authority
An arbitrary or capricious exercise of power that injures another, or benefits the abuser or others.
or a substantial and specific danger to public health or safety,

17. Whistleblower Protection Laws
Generally, a protected disclosure can be to anyone in a position to correct the alleged wrong doing, except the wrongdoer. However, a disclosure is not protected, where the disclosure is specifically prohibited 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, unless it is disclosed to the office of Special Counsel or the Inspector General.
The Whistleblower Protection Act does not require an employee to go through his or her Chain of Command.
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18. Whistleblower Protection Laws
Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8).
To report whistleblower retaliation, you may file a written complaint (Form OSC-11) with the U.S. Office of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC or online through the OSC Web site:
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19. Office of Special Counsel Role in Whistleblower Protection
The Office of Special Counsel (OSC) provides a secure channel through which current and former federal employees and applicants may make confidential disclosures. 
OSC evaluates the disclosures to determine whether there is a substantial likelihood that one of the conditions has been disclosed. 
If such a determination is made, OSC has the authority to require the head of the agency to investigate the matter.
To make a disclosure contact:
U.S. Office of Special Counsel 1730 M Street, N.W., Suite 218 Washington, DC
Phone: (202)
Toll Free:
Hearing and Speech Disabled: Federal Relay Service
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20. Merit System Principles
Recruit, select, and advance on the basis of merit after fair and open competition.
Provide equal pay for equal work; reward excellent performance.
Maintain high standards or integrity, conduct and concern for the public interest.
Use human resources effectively and efficiently.
Retain or separate employees on the basis of their performance.
Provide employees with effective training and education.
Protect employees from reprisal for lawful disclosures.
Protect employees from improper political influence.
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Merit System Principles
Personnel management is based on and embodies the Merit System Principles. The merit system principles are the public’s expectations of a system that is efficient, effective, fair, open to all, free from political interference, and staffed by honest, competent, and dedicated employees. As the Department of Navy experiences continued change in the management of human resources (centralization, deregulation, delegation, etc.), it becomes increasingly important that line supervisors and managers incorporate the merit system principles into every decision process they use.
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Take a moment to review the Merit Systems Principles on this slide.

21. 12 Prohibited Personnel Practices
Generally stated, § 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:
Discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
Solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
Coerce the political activity of any person;
Deceive or willfully obstruct anyone from competing for employment;
Influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
Give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
Engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
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Prohibited Personnel Practices
Prohibited personnel practices are those things a Federal employee with personnel authority may not do. A Federal employee has personnel authority if they can take, direct others to take, recommend, or approve any personnel action. This includes appointments, promotions, discipline, details, transfers, reassignments, reinstatements, or any decisions concerning pay, benefits, training, and any decision to order psychiatric testing or examination. A personnel action includes any significant change in duties, responsibilities, or working conditions which is inconsistent with the employees salary or grade. People with personnel authority – managers and supervisors – are charges with avoiding prohibited personnel practices.
Dialog Box 2
Take a moment to review the 12 Prohibited Personnel Practices on this slide.

22. 12 Prohibited Personnel Practices
Continued:
Engage in reprisal for whistleblowing;
Take, fail to take, or threaten to 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;
Discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others; or
Take or fail to take, recommend, or approve a personnel action, if taking or failing to take such an action would violate a veteran’s preference requirement; and
Take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.
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23. Freedom from Reprisal

24. Applicable Regulations
No person shall be subjected to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of the administrative or judicial proceedings under those statutes.
29 CFR § (b)
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25. Elements of Reprisal Claim
First Element:
Individual expressed opposition to discriminatory practice; or,
Individual participated in the discrimination complaint process
Second Element:
Agency (Management) aware of protected activity.
The individual who the complainant alleges reprised against them must have knowledge of their protected activity.
Third Element:
Agency must have taken an adverse action after the complainant engaged in the protected activity
Examples of Adverse Action: Denial of promotion, award, position; disciplinary action; negative evaluation or, harassment.
Fourth Element:
Complainant must demonstrate a “Causal Connection” between the adverse action and the protected activity.

26. Elements of Proof for Whistleblower Reprisal
To establish whistleblower reprisal, an employee must show:
Element One – A protected disclosure of information he or she reasonably believes to evidence: a violation of law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific damage to public health and safety
Element Two – A personnel action was taken, not taken or threatened.
Element Three – Those responsible for reprisal have actual or constructive knowledge of the protected disclosure
Element Four – The protected disclosure was a contributing factor in the personnel action.
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A protected disclosure of information that is reasonable, believed to evidence a violation of law, rule regulation, gross mismanagement, abuse of authority or a substantial and specific danger to the public health.
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A personnel action was taken, not taken, or threatened.
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Actual or constructive knowledge at the protected disclosure.
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The protected disclosure was a contributing factor in the personnel action.

27. Protected Activity: Opposition to Discriminatory Practice
Opposition to a discriminatory practice .
The anti-retaliation provisions make it unlawful to discriminate against an individual because s/he has opposed any practice made unlawful by Title VII, the ADEA, the EPA, or the Rehab Act.
A complaint amounts to protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination.
The opposition clause does not require the person be correct in their belief that the agency’s employment practice they opposed actually violated Title VII, the ADEA, the EPA, and/or the Rehab Act.
The opposition clause protects the individual provided that they had a good faith and reasonable belief that a violation of the EEO statutes had or was occurring.

28. Protected Activity: Participation in the EEO Process
Participating in the EEO process.
Title VII, the ADEA, the EPA, and the Rehab Act make it unlawful to discriminate against any individual because s/he has filed a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under any of the anti-discrimination statutes.
While the opposition clause applies only to those who protest practices that they reasonably and in good faith believe are unlawful, the participation clause applies to all individuals who participate in the EEO complaints process.
An agency can be found liable for retaliating against an individual for filing an EEO complaint regardless of the merits or reasonableness of the original complaint.

29. Retaliation for Engaging in Protected Activity
A Federal agency may not retaliate against an employee or applicant because that individual exercises his or her rights under any of the Federal anti-discrimination or whistleblower protections laws listed above.
If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the anti-discrimination law and whistleblower protection law sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy.
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30. Disciplinary Actions
Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee who has engaged in discriminatory or retaliatory conduct, up to and including removal.
If OSC has initiated an investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 1214(f), agencies must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation.
Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination.
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31. Additional Information
For further information regarding the No FEAR Act regulations:
Refer to 5 CFR 724
EEO Office servicing your location
Website:
Additional information regarding Federal antidiscrimination, whistleblower protection and retaliation laws can be found at:
EEOC Website:
OSC Website:
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32. Additional Information
ADR Web Site:
(DON ADR Website)
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Dialog Box 1
Thank you for completing this learning session on the No Fear Act: Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002.
The next slide will provide links and locations for additional information regarding the No Fear Act.