Federal Employees: Know Your Rights And Job Protections

Federal employees enjoy unique job protections. Most federal employees have the right to challenge personnel actions, such as removals (terminations), suspensions of over 14 days, forced retirements, whistleblower retaliation, denial of within grade increases, reductions in force, and reductions in grades. These claims can be challenged in an administrative court called the Merit Systems Protection Board (MSPB). Personnel actions can also be filed with the Equal Employment Opportunity Commission (EEOC) when they have occurred for discriminatory reasons. However, the MSPB can hear claims involving a personnel action in which discrimination is alleged (referred to as a mixed case) or in which discrimination is not alleged.

Jurisdiction

The MSPB is an administrative forum that has original and appellate jurisdiction. In order to hear your claim, the MSPB must have jurisdiction. 5 CFR §1201 sets forth the scope of MSPB jurisdiction. The majority of claims relating to personnel actions that are filed before the MSPB are “appeals,” which challenge disciplinary actions, such as removals or suspensions of more than 14 days. The MSPB also has “original” jurisdiction over actions brought by the Office of Special Counsel, removals from Senior Executive Service for performance deficiencies, and certain actions taken against administrative law judges.

Protect Yourself

The best way to protect yourself as a federal employee is to know your rights. If you have been subjected to disciplinary action or believe that you are being targeted for removal, contact us. We can discuss your rights and options that are available to you.

Tips and Tricks for Challenging Disciplinary and Performance Actions

Benjamin E. Wick will be giving a virtual presentation on November 21, 2024 titled Tips and Tricks for Challenging Disciplinary and Performance Actions Issued to Employees. The seminar will cover employee rights to challenge proposed and effectuated disciplinary actions, including those based on performance or conduct. It will also provide an overview of the available rights and strategies for addressing disciplinary actions issued to public and private employees. This presentation is being offered by the Colorado Bar Association, Labor and Employment Section.

Registration is available at:

https://www.cobar.org/Calendar/Event/sessionaltcd/LAB112124

Federal Employee Primer: Allegations of Discrimination Relating to Union Grievances in the EEO Process

Generally, the EEOC holds that a complainant alleging discrimination associated with a union’s grievance proceeding constitutes a collateral attack on a union proceeding and, therefore, is not a claim within its jurisdiction. See Les B. v. U.S. Postal Serv., EEOC App. No. 2023002819 (Oct. 5, 2023) (holding agency properly dismissed complainant’s claim that agency violated a union grievance settlement because it was a collateral attack on another proceeding); Complainant v. U.S. Postal Serv., EEOC App. No. 2020002501 (Sept. 10, 2020) (dismissing as a collateral attack complainant’s “complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO activity under when, on September 6, 2019, highly restricted EEO affidavits were submitted into a grievance file to be used against her.”).

However, the Commission recently held that there are “limited circumstances” in which a complainant’s complaint regarding a union grievance proceeding does state a claim. Fawn G. v. U.S. Postal Serv., EEOC App. No. 2024002899 (Aug. 27, 2024). In Fawn G. v. United States Postal Service, the complainant alleged that the agency subjected her to retaliation when management failed to comply with a pre-arbitration settlement agreement that resolved a union grievance and, as a result, the complainant did not receive a return to work date. The agency dismissed the complainant’s complaint for failure to state a claim, reasoning it was a collateral attack on the grievance process. On appeal, the complainant explained that she believed she was subjected to retaliation because two of her coworkers who were subject to the same pre- arbitration settlement agreement but who had not engaged in prior protected EEO activity had been returned to work. On appeal, the Commission reversed the agency’s decision to dismiss the complainant’s complaint. It held that the complainant’s claim fell within the “limited circumstances” where the Commission has jurisdiction over a claim related to a union grievance process. The Commission explained that the complaint was “not challenging [the] validity of the grievance process or the terms of the Pre Settlement Agreement,” but rather “challenging the Agency's implementation of the Agreement.” As a result, it held that, “[a]n allegation that the negotiated grievance process was applied discriminatorily by the agency while the grievance decision was still within its control is clearly a cognizable claim before the Commission because it alleges discrimination by the agency concerning a term, condition or privilege of employment.”

Can A Federal Government Employee File An EEO Complaint For Retaliation Against Another Person?

Yes. A federal employee can bring a claim for so called third-party retaliation, which has also been referred to as third-party reprisal, retaliation by association or associational reprisal.

The EEOC has repeatedly explained that it unlawful to retaliate against an employee due to their association with another individual. The EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016) explains that an employer may not take action against an employee for engaging in protected activity by harming a third party who is closely related to or associated with the employee. Under such circumstances, both the employee who had engaged in prior protected activity and the third party who was harmed as a result may bring claims. See Kristie L. v. United States Postal Service, EEOC App. No. 2020001506 (March 12, 2020).

Third-party retaliation claims are available to a third party who has a close relationship with the individual who engaged in the protected activity. In fact, the “EEOC's Compliance Manual, § 8-II.C.3 (May 20, 1998), expressly prohibits retaliation against another employee who is closely related to Complainant or associated with Complainant to the extent that the Agency's action against the relation or associate would discourage a person from pursuing their EEO rights. As an example, the Compliance Manual advises it is illegal for an employer to retaliate against an employee because a spouse, who is also an employee, filed an EEO charge. It advises that either spouse could bring retaliation claim.” See Harry E. v. United States Postal Service, EEOC App. No. 2020000585 (February 26, 2020). Although these claims are most commonly brough by spouses, a claim brought by a family member, close friend, or close relative might also be viable if they are in the “zone of interest.” See Thompson v. N. American Stainless, LP, 562 U.S. 170, 131 S. Ct. 863, 178 L. Ed. 2d 694 (2011).

If you have been subjected to retaliation or have questions about other employment matters, please contact us at 720-999-5390 or ben@wick-law.com.

Merit Systems Protection Board Basics

Navigating the Merit Systems Protection Board can be challenging for federal employees. Some basic guidance on the process can be found at MSPB Basics. For more information or if you have an MSPB case that you would like to discuss, contact us at Ben@wick-law.com or 720-999-5390.

The Wick Law Office Wins EEOC Appeal Against Homeland Security

The Wick Law Office won an important victory for our Client against the Department of Homeland Security (DHS), Customs and Border Protection (CBP) Agency. At the time of the issues in her case, our Client needed a location to express milk for her son who was still nursing. CBP failed to provide a lactation room that was private and free from intrusion. Employees who were not lactating had keys to the lactation room provided by CBP. This resulted in another employee entering the room while our Client was using it to express milk and seeing her half-naked body. Even after complaining to her supervisors about this incident, the Agency failed to obtain keys from the other employees. Although the lock was eventually changed, CBP retaliated against our Client by requiring her to request the key for the room from a male employee who would ask questions about her breastfeeding and by implementing a sign in/out log to track her and another lactating employee. The key also was not readily and regularly available, resulting in several humiliating incidents where our Client’s breastmilk leaked through her shirt and was visible to other employees.

 The EEOC found that DHS discriminated against our Client based on her sex when it failed to provide a her a private space to express milk and inhibited her access to designated areas to express milk. It also found DHS discriminated against her when it unlawfully sent her home from work for approximately two weeks and failed to accurately process her June 2016 leave request.

If you have questions about this decision, or the impact of it on other cases, please contact Holly V. Franson at Holly@wick-law.com.

The MSPB's Electronic Filing System Is Being Updated

The Merit Systems Protection Board (MSPB) will be transitioning from its current e-Appeal Online system to a new system. The MSPB’s current online filing system, e-Appeal Online, will be shutting down on Friday, September 8, 2023. Users will not be able to file into the system between September 9, 2023 and October 1, 2023. As a result the MSPB is suspending processing of all cases during that period and extending all filing and processing deadlines that occur during that period by 28 calendar days. The new e-Appeal Online is expected to go live on Monday, October 2, 2023.

More information can be found on the MSPB’s website at https://www.mspb.gov/e-appeal/index.htm

NLRB General Counsel Issues Guidance On Impermissible Non-Compete Agreements

The General Counsel for the National Labor Relations Board, Jennifer A. Abruzzo, recently issued a memorandum addressing non-compete agreements that violate the National Labor Relations Act. That memorandum explains that non-compete agreements are unlawful “when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs.” The General Counsel did note that employer concerns about proprietary or trade secret information could be addressed through a “narrowly tailored” agreement specifically focused on those issues, instead of using a broad non-compete agreement.

That memorandum can be found here.

Favorable MSPB Decision For Our Client Against US Customs and Border Protection

The Wick Law Office recently received a precedential decision from the Merit Systems Protection Board (MSPB) on a Petition For Review (PFR) that has been pending for over five years. Our client, a management-level employee with the US Department of Homeland Security, Customs and Border Protection (CBP), was suspended for 30 days and subsequently demoted. We filed a direct appeal with the MSPB challenging the actions and raising numerous affirmative defenses, including whistleblower retaliation and EEO discrimination. Prior to our involvement, our client also discussed the adverse actions with the Office of Special Counsel (OSC) because she had an ongoing OSC complaint and sought OSC's assistance in staying the adverse actions. The MSPB Administrative Judge ruled that she had elected OSC as the forum in which to challenge the adverse actions and, therefore, the MSPB lacked jurisdiction over all issues other than whether the adverse actions occurred in retaliation for her protected whistleblowing activity. We filed a PFR challenging the Administrative Judge's ruling on jurisdiction. 

In its recent decision, the Board vacated the Administrative Judge's decision and remanded the appeal back to the Administrative Judge. Consistent with a non-precedential decision of the Federal Circuit issued during the pendency of the PFR, the Board held that a supervisory or management level employee is not included in the definition of “employee” under 5 U.S.C. § 7103(a) such that supervisors and managers are exempt from the election of remedies provision under 5 U.S.C. § 7121. As a result, a supervisory/management employee can file both an OSC complaint and a direct adverse action appeal with the MSPB over the same matter; they are not limited to picking one forum or another.

We are very pleased with this decision, which has been a longtime coming for our client. We also had a pending PFR with the MSPB over the merits of the Individual Right of Appeal, as the Administrative Judge ruled in the Agency's favor in that appeal despite a strong body of evidence that their actions were retaliatory for engaging in whistleblowing activity. The Board issued a non-precedential decision in that appeal finding that the Administrative Judge abused his discretion in denying our Motion to Compel and remanding the appeal for further processing. Both decisions can be found at the links above.

If you have questions about these cases or your rights as a federal government employee, please contact us at ben@wick-law.com or 720-999-5390.

EEOC Private Sector Cases Are Processed In 69 Days On Average

The US Government Accountability Office (GAO) has found that the EEOC averages 69 days to process a discrimination claim. The GAO review looked at cases between 2011 and 2021. More information can be found at:

https://valawyersweekly.com/2022/11/08/eeoc-must-track-intake-timing-by-field-office/

If you are thinking of filing a charge of discrimination before the EEOC, feel free to contact us to discuss your claims and options for processing.

Award Of Over $500,000 To Wick Law Office’s Client In EEOC Case Against Department of Veterans Affairs

The Wick Law Office recently obtained an award well in excess of half a million dollars for a client who was subjected to ongoing harassment because of her sex. Our client’s coworker subjected her to unwelcome contact in an effort to rekindle a prior consensual romantic relationship. Although she made clear to him that she did not want him to contact her any longer, he was relentless, contacting her over 2,000 times during an approximately two-year time period. Although she repeatedly reported the harassment to her management chain and the VA’s human resources office, they refused to take her complaints seriously, at one time even assigning the harasser as her acting supervisor.

At the conclusion of a 3-day hearing with 10 witnesses, an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) issued a decision finding fully in our client’s favor. The AJ also awarded all of the remedies requested, including the statutory maximum of $300,000 in non-pecuniary damages, reimbursement of out-of-pocket costs and back pay associated with our client’s relocation to escape the harassment, in addition to reimbursement of costs our client incurred for therapy, prescription medications, and related mileage expenses. In terms of non-monetary damages, the AJ awarded our client reimbursement of leave and 8 hours of training for the involved management and human resources officials. He also ordered the VA to reimburse attorneys’ fees and costs our client incurred in bringing the case.

Each situation is different. If you believe you may have experienced discrimination or harassment in the workplace, the attorneys of The Wick Law Office may be able to help.

Disability Retirement for Federal Employees

Did you know that as a federal employee you may be eligible for disability retirement benefits? In order to be eligible, there are certain specific requirements that must be met. Our guidance on disability retirement can be found at Disability Retirement for Federal Employees. If you have questions or would like assistance in the disability retirement process, please contact us at ben@wick-law.com or 720-999-5390.

The MSPB Finally Has A Quorum

For the first time since 2017, the Merit Systems Protection Board (MSPB) has a quorum. The MSPB is the Board that serves as an appellate court issuing precedential and non-precedential decisions when reviewing initial decisions of MSPB administrative judges. When all seats are occupied, the Board has three sitting members. Although only two of the three seats presently are filled, having two members allows for the quorum needed to issue decisions.  

Because there was no quorum between 2017 and 2022, there is a backlog of approximately 3,600 appeals awaiting a decision from the MSPB. In addition to any new cases filed with the MSPB, the two members of the Board will have to issue decisions on the backlogged cases. Although this will be a time consuming process, it is long overdue.

If you have questions about the MSPB, or other employment rights of federal employees or applicants, please contact Ben Wick at ben@wick-law.com or 720-999-5390.

COVID 19 “Long-haulers” May be Entitled to ADA and Rehabilitation Act Protections

The Department of Justice (DOJ) and the Department of Health and Human Service (DHHS) have released guidance addressing protections under the Americans with Disabilities Act (ADA) and the Rehabilitation Act for COVID-19 “long-haulers.” Symptoms of “long-COVID” can range from joint pain to neurological damage and may persist for months after the initial onset of symptoms. In short, “long-COVID” may be a protected disability under the ADA or Rehabilitation Act if the associated physical or mental impairment substantially limits one or more major life activities or major bodily functions. Each situation is different and should be analyzed based on the individual. However, the guidance provided by DOJ and DHHS clarifies that COVID “long-haulers” may be entitled to reasonable accommodations in the workplace and other legal protections pursuant to the ADA and Rehabilitation Act. The guidance can be found at:

https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html

If you have questions about the protections for individuals with disabilities pursuant to the ADA or Rehabilitation Act, please contact the Wick Law Office at 720-999-5390 or ben@wick-law.com.

Federal Employees: Additional Whistleblower Protections Proposed

The House recently proposed additional protections for federal whistleblowers, including broadening the scope of covered employees. The proposal contains clarifications for prohibitions on retaliation and for the definition of retaliation. The bill also includes provisions designed at speeding the processing of whistleblower complaints and ensuring full relief for employees, including that the prevailing employee would be entitled to attorneys’ fees. More information can be found at:

https://www.fedweek.com/fedweek/broadened-whistleblower-protections-proposed/

For questions about whistleblower retaliation or the Whistleblower Protection Enhancement Act of 2012, please contact the Wick Law Office at 720-999-5390 or ben@wick-law.com

The Wick Law Office Wins Important Victory Against the United States Postal Service

The Wick Law Office recently obtained an import victory in a discrimination case against the United States Postal Service for an federal employee whose case began in 2014. The Postal Service failed to accommodate our client for a period of approximately 18 months and intentionally violated her medical restrictions. USPS also subjected her to retaliation and harassment, including when it referred her for investigation to the Office of Inspector General (OIG), delayed the processing a request for Family and Medical Leave Act (FMLA) leave, delayed her claim for workers’ compensation benefits, and paid her incorrectly. Throughout the time period when the discrimination was occurring, her supervisor made demeaning and derogatory comments about her medical conditions and her need for reasonable accommodations. Based on the evidence and testimony at hearing, an EEOC Administrative Judge issued a decision fully in favor of our client and ordered the Agency to pay a substantial monetary award to our client for her lost wages, damages, and attorneys’ fees. This victory should serve to send a message to USPS that discrimination and retaliation, particularly against individuals with disabilities, will not be tolerated by the Equal Employment Opportunity Commission.

If you are the victim of discrimination, please contact us at 720-999-5390 or https://www.wick-law.com. An award in the case is not an indication of future results or an outcome of any other case. 

VA Class Action

The Wick Law Office is the representative for a class certified against the Department of Veterans Affairs. If you are a current or former VA employee of the Eastern Colorado Healthcare System, you may have received notice about the class action. If you have questions or would like additional information, please contact us at: Amelia@wick-law.com or 720-636-3969.

Supreme Court Establishes Burdens of Proof for Federal-Sector Age Discrimination Claims

On April 6, 2020, the Supreme Court issued its decision in Babb v. Wilkie, Secretary of Veterans Affairs, which addresses the burdens of proof and available remedies for federal government applicants and employees that allege an agency subjected them to age discrimination. The Court ruled that to prevail on a claim of age discrimination, an applicant or employee does not need to show that his or her age is a “but-for” cause for the agency taking the action at issue. Rather, a federal applicant or employee need only show that his or her age was an adverse consideration in the agency’s decision-making process. However, to obtain anything other than injunctive or forward-facing relief, such as reinstatement to a position or compensatory damages, the federal applicant or employee does need to show that his or her age was the but-for cause for the agency’s discriminatory decision.

If you are a federal government applicant or employee who believes you have been subjected to discrimination, The Wick Law Office can help.

Sexual Harassment Claims Frequently Brought Against The Federal Government

The United States Commission on Civil Rights recently released information regarding the number of sexual harassment complaints filed by federal government employees between 2015 and 2018. Overall, federal government employees, more than 4 out of 5 of whom were woman, filed sexual harassment complaints with their respective federal agencies at a rate of 1.5 complaints per day. For more information regarding the Commission’s findings, see https://www.courthousenews.com/sex-harassment-claims-pile-up-for-uncle-sam-1-5-a-day/.

If you are a federal government employee who has been subjected to sexual harassment or other discriminatory behavior, The Wick Law Office is here to assist you.

Court Determines That The MSPB Can Review The VA’s Choice Of Penalty Against Its Employees.

Recently, the Federal Circuit Court of Appeals released an important decision for employees of the Department of Veterans Affairs who may find themselves the subject of disciplinary action. In 2017, Congress made effective the Department of Veterans Affairs Accountability and Whistleblower Protection Act, which made it easier for the VA to terminate its employees and also made more difficult employees’ ability to challenge their terminations with the Merit Systems Protection Board (MSPB). In Sayers v. Department of Veterans Affairs, the VA terminated Dr. Sayers from his position in 2017 for conduct that occurred in 2016. He challenged his termination with the MSPB. The MSPB applied the standards in the Department of Veterans Affairs Accountability and Whistleblower Protection Act when deciding to uphold Dr. Sayers’s removal from the VA. The Federal Circuit ruled that the MSPB could not rely on the Department of Veterans Affairs Accountability and Whistleblower Protection Act in deciding whether the VA properly removed Dr. Sayers because the conduct for which Dr. Sayers was removed occurred prior to the enactment of the Act and the Act cannot be applied retroactively. Importantly, the Court also made clear that the MSPB is not bound by the VA’s choice of penalty and can instead choose to impose a lesser penalty. As the Court explained, “When correctly interpreted, § 714 [of the Act] requires the Board to review whether the Secretary had substantial evidence for his decision that an employee’s actions warranted the adverse action. The Board cannot meaningfully review that decision if it blinds itself to the VA’s choice of action. Deciding that an employee stole a paper clip is not the same as deciding that the theft of a paper clip warranted the employee’s removal.” A full copy of the Court’s decision is available here: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-2195.Opinion.3-31-2020_1560799.pdf

If you are a federal government employee who has been proposed for discipline or already disciplined, The Wick Law Office can help.