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Federal Employees: You be the Judge


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nightchop  
#21 Posted : Thursday, January 24, 2019 5:36:35 PM(UTC)

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Originally Posted by: CATXBruiser Go to Quoted Post
With the shutdown in process and Agencies such as the MSPB completely shutdown, I expect every month of the shutdown will lead to an additional several months delay.



Use the time to your advantage. Look up existing case law that supports your claims. Talk to attorneys about your case. Please don't fall into the defeatist attitudes that ruin people before they begin. The process is long as is designed to wear you down. You have to show them you will not give up. Many people lose because they stop trying.
thanks 1 user thanked for this useful post.
CATXBruiser on 1/24/2019(UTC)
nightchop  
#22 Posted : Thursday, January 24, 2019 5:56:00 PM(UTC)

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Originally Posted by: DroneBee Go to Quoted Post
Don't worry about "terminate without cause" because the agency will just make up stuff and throw it at you. The agency may even do this so you have to spend your time putting in new complaints, grievances, etc. This will drain you of everything you have.


Yep. Agency just knew I was going to amend my complaint when they gave me the proposed removal. Nope. Let's do this. After that strategy failed, they did everything they could to punt the case back to the EEOC. Because they're used to controlling the EEOC and having the case sit for a decade.

Maybe they'll think twice (or at least make sure they have a viable case) before they pull that stunt on someone else.
CATXBruiser  
#23 Posted : Thursday, January 24, 2019 6:08:00 PM(UTC)
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Thank you, Sir. I am an old guy with a lot of battle scars from 'round the World.
I don't see every issue as a battle to be fought or a war to win. Like marriage,
no one goes into one thinking about divorce.

Having put up with almost four years of "no, you can't do this or that" and rampant discrimination,
I decided to make my allegations formal.

Reality checks:
At almost 64, time is not on my side - even with outstanding health.

In the last decade, the private databases that can identify your State and age
from your name and last four of your SSN are the norm.

Once in the career-permanent GS12 world, outside education and experience no longer
count. This is in the OPM Field Guide. So, changing from a Series 0501 to an 1164
without starting over as a GS7, is almost impossible.

The "system" is bigger and wealthier, and longer lived than I.

If the Agency wants to (no pun intended) trump up charges, or more likely, allege
insufficient work to keep me based loosely on my SCD; even if an obvious wrongful
termination - expressly forbidden while an EEOC case is in process; I could be
forcibly removed (if they wanted to cite security issues), etc. I would then
have both no recourse AND no income because, again per Federal law, you may not sue
in District Court until the EEOC process is finished.

I am in this to the end - no matter what. I am not going to hire an attorney - makes no sense
especially since the published "win" rate is under 1% and the win rate for the Appellate
level is 1/10th of that. Most cases average 10 years from initial complaint to final
decision. Also, besides being old, I am a WIC (white, Irish, Catholic). No one is
interested in me or my cause but myself, spouse and kiddo. Maybe the cat...

I was thinking about claiming to be a one-armed, Black, Jewish trans-gender F18E fighter
pilot from Angola (at least for the day); but the Complaint form doesn't have the right
boxes to check :-)

If I give up now, after over a year, only two things will happen for sure: the Agency
will do their victory dance, and, they fire me in the most shameful manner. With continuing to fight,
they may have to take some time to consider exactly how and what they are going to
do it.

Edited by user Thursday, January 24, 2019 6:10:52 PM(UTC)  | Reason: Typos.

nightchop  
#24 Posted : Thursday, January 24, 2019 6:24:50 PM(UTC)

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I hear ya. There are a lot of lurkers on Federal Soup, and there are people who join to specifically discourage those of us with cases in the pipeline to give up. They do this by posting all their "woe is me" stories and planting seeds how difficult the process is. I don't know your story or whether it's true, but to anyone in the former category: your best bet is to hope this shutdown lasts a very long time.
CATXBruiser  
#25 Posted : Thursday, January 24, 2019 6:44:12 PM(UTC)
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Agreed -

Just FYI, I am in one of those very specialized roles certifying nuclear parts for the DoD. I live by (and many in my directorate
think I am THE SME) documentation/traceability. Every allegation is supported by multiple occurrences, backed by data, the writings of the offenders
and chapter & verse of 29 CFR 1614 and EEOC Management Directive 110. My Supervisor has remarked (also in writing) that he stopped
questioning my recollections when presented with copies of his own emails kept in one of my many folders.

Regardless, just like the Republicans, I won't be able to sway hearts and minds with just raw data.
It will continue to be a long, ugly and treacherous road populated with people who are the collective poster children of an
evil-filled swamp.
nightchop  
#26 Posted : Thursday, January 24, 2019 6:56:20 PM(UTC)

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Maybe you won't be able to sway hearts and minds with raw data, but raw data = evidence. It's kind of hard for the agency to argue against that, especially if any contradictory data is in the form of their own supervisor's words. Bonus when those words contradict prior written statements by the same supervisor, AND the agency's official policies.

That's another reason people lose. They don't have sufficient evidence. Lucky for me, I got a bad feeling very early. I would be up a creek if I didn't get a hunch and start documenting immediately. I look back and am amazed at the foresight. Or maybe my supervisors were just too arrogant, discriminatory, and inexperienced for their own good.

Good luck with your case, and hang in there. Here's to hoping you make it to retirement first, rendering this nonsense null and void.
frankgonzalez  
#27 Posted : Friday, January 25, 2019 12:55:42 PM(UTC)
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Originally Posted by: CATXBruiser Go to Quoted Post
UPDATE -

In order that future readers may understand the process better and perhaps shorten their cycle time & lessen frustration;
I'll use this topic as sort of a running diary...

I know that many posts across social media are full of speculation, misinformation and down-right lies. I am in one of those
highly specialized areas where (allegedly), the facts are all that counts. In line with the "clean hands" legal doctrine;
at the end of any day, facts are all I have.

I just received an email last night from the Investigator in my Agency's IG unit who stated that after allegedly speaking to his Supervisor
(who allegedly spoke to the DoD IG's Office; declined to investigate my concerns regarding the conduct and actions of our EEO.
Instead, referring me to the US EEOC (meaning, of course, the US EEOCs IGth division). The only good news from this is that it took
just a month for them to get to that point.
What you described is a called a collateral attack on the process. I see why your agency IG declined to investigate. I doubt the EEOC IG will take it either (same reasons). The correct forum to address the actions of an EEO counselor or office director is via the hearing AJ (who happen to be part of the EEOC). If they find a harmful error occurred, they can find that alone constitute a violation of the law and you win. This could also be found to compound the harm of the initial issues the complaint claims, and so increase the penalty for non-pecuniary damages. And so on.

You should have voted Cthulu...the greatest of all Evils
CATXBruiser  
#28 Posted : Friday, January 25, 2019 1:49:14 PM(UTC)
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Thanks, Frank -
I have a good legal background and had to lookup the collateral reference.
My 'logic' is to make sure that ALL the possible Reviewers know I am in the
hunt for justice. I remember one of my law professors saying that: "In the Halls
of Justice, there is only justice in the halls."

I carefully reviewed all of the last ten years of Federal Court decisions on discrimination
with regards only to 29 CFR 1614 (Federal employees), to make sure I had no defects in
my Complaint. However, when it was clear that the Agency's own EEO had failed to
follow do the ROI properly, and then compounded it with violations of 29 CFR 1614 and MD 110; I believed
it was a necessary part - with an eye on the ALJ Hearing - to give the various IGs Offices
the opportunity to step-up and intervene. The Agency IG declined and the DoD IG declined
and I have that email. Again, documentation for the ALJ to show I went 'above and beyond'
to make my case and settle it in-house.

To give you just three examples that are documented in writing:
1. Affidavits compiled in the ROI are unsigned and uninitialed.
2. The Agency EEO Chief refused to consolidate the collateral claims into the existing Case.
3. The Agency EEO Chief refused to respond to the above - as required by 29 CFR 1614

As I posted earlier, I am well aware that the Agency is looking for ways to terminate me and bury
the problem. Likewise, the process will take at least two years before the Hearing is even assigned
a trial date. And "yes", I knew before I started that no unit in my Agency would go against the
3-star who runs it; and the DoD likewise would avoid involvement.

That is exactly what happened when I challenged USAJobs (CPAC) as to why I was rated as one of the most highly
qualified, in my Series, and yet had not received an interview. Their written answer: "for the safety
of the Hiring Official, we can provide no further details."

So, I have obtained every single handbook, directive, tasker, etc. All part of the discovery process for the
ALJ. God grant me good health and decent employment so I can present this to the Judge. If he/she rules
against me, I'm done unless I file a civil pet in US District Court. Etc.
CATXBruiser  
#29 Posted : Friday, January 25, 2019 4:09:41 PM(UTC)
CATXBruiser

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In some posts around FedSoup, there has been allegations that the US EEOC has no authority to force an Agency to comply.
Simple research shows that is not true, so I offer the following from:

Lissette Sanchez,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120122273
Agency No. P-2010-0240

From Page 6 on the Decision (in favor of Complainant):

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency's report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission's order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission's order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled "Right to File a Civil
Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U .S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
DroneBee  
#30 Posted : Wednesday, January 30, 2019 10:35:14 AM(UTC)

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Thanks for Sanchez v. Holder, see https://www.afge.org/con...anchez--williamsburg.pdf

Don't confuse EEOC with the Office of Federal Operations (OFO). If the complainant "wins" in the EEOC (2% chance), then the agency issues a Final Agency Decision (FAD), but the agency doesn't have to comply with the administrative judge (AJ). If the FAD is not in compliance with the EEOC AJ's decision, then the complainant can file in the OFO. (You can imagine how long this process takes in total.)

The 2012 example you gave was different than this process - the agency made a decision without a hearing. The complainant then went to the OFO which sided with the complainant - note that the OFO decision states: "If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order." The terror never ends. Note that Sanchez's issues started in "July 2009" - this decision is dated 10/12/2012 - some 3+ years later. With today's backlog, I couldn't even guess how long it would take now.
frankgonzalez  
#31 Posted : Wednesday, January 30, 2019 11:10:43 AM(UTC)
frankgonzalez

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Originally Posted by: DroneBee Go to Quoted Post
Thanks for Sanchez v. Holder, see https://www.afge.org/con...anchez--williamsburg.pdf

Don't confuse EEOC with the Office of Federal Operations (OFO). If the complainant "wins" in the EEOC (2% chance), then the agency issues a Final Agency Decision (FAD), but the agency doesn't have to comply with the administrative judge (AJ). If the FAD is not in compliance with the EEOC AJ's decision, then the complainant can file in the OFO. (You can imagine how long this process takes in total.)

The 2012 example you gave was different than this process - the agency made a decision without a hearing. The complainant then went to the OFO which sided with the complainant - note that the OFO decision states: "If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order." The terror never ends. Note that Sanchez's issues started in "July 2009" - this decision is dated 10/12/2012 - some 3+ years later. With today's backlog, I couldn't even guess how long it would take now.
You do know the OFO is part of the EEOC, right?

You should have voted Cthulu...the greatest of all Evils
frankgonzalez  
#32 Posted : Wednesday, January 30, 2019 11:18:18 AM(UTC)
frankgonzalez

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Originally Posted by: CATXBruiser Go to Quoted Post
I carefully reviewed all of the last ten years of Federal Court decisions on discrimination
with regards only to 29 CFR 1614 (Federal employees), to make sure I had no defects in
my Complaint.
While I have no doubt you did plenty of research, I doubt you read all of the Federal Court decisions of the last ten years...in addition to still working, sleeping, etc. It would likely take you several years to do so with the sheer volume, even keeping with just those on federal employment only! Heck...restrict it to just the VA and USPS and you'd have a full time job!

If you are doing this pro se, Cyber Feds is a good resource (but has a cost..they focus on federal labor law, so can be better in some ways that Lexis or other law search tools simply because the search is already limited to the federal cases). Also, a subscription comes with access to the electronic version of the "Hadley" (the book all EEO lawyers and practitioners of any worth reference) as well as some other useful tools.

You should have voted Cthulu...the greatest of all Evils
DroneBee  
#33 Posted : Sunday, February 10, 2019 4:00:44 AM(UTC)

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Originally Posted by: frankgonzalez Go to Quoted Post
Originally Posted by: DroneBee Go to Quoted Post
You do know the OFO is part of the EEOC, right?

Yes, OFO is part of the EEOC - I agree Frank, every level of the EEOC is a complete sham.

I was trying to relay the process and that the OFO decision is AFTER all the "lower" EEOC stuff (inept "investigators," horrible agency attorneys, corrupt AJs). Then, after all of this, the complainant can go to Court because s/he's exhausted the process. In Sanchez, the lawyers wanted to quicken the process and skip the AJ (who is just a government attorney hired off the street (not an ALJ or confirmed)) useless processes and ask for an FAD so that it could go to EEOC/OFO and get a decision to take to Court quicker.

So, for all those who want to file an EEOC is (roughly) - I'm using "you" for complainant interchangeably:
1) Complainant is treated so horrendously by the agency that s/he files an EEOC complaint.
2) Complainant communicates with the EEOC handler - this may be the same person who has been working with your agency to give you improper disciplinary actions, etc. - or will do so now that you've filed.
3) The EEOC handler tells the agency you've filed a complaint.
4) The agency starts going after you MORE because you've filed a complaint.
5) The EEOC assigns an "investigator" (maybe a GS-7 or GS-9) who can't spell, doesn't listen, etc. One of mine teleworked all the time and a dog was continuously barking whenever she called me.
6) You supply reams of evidence to the "investigator" who loses it, etc., but also gives this all to the agency so that the agency can counter immediately, or create/change documents to counter your evidence.
7) The "investigator" contacts whomever you state are witnesses. These people will lie to save their jobs (understandably) or have the worst memories in history (I don't recall, doesn't sound familiar, I don't know, etc.).
8) The "investigator" will ask for more time, and, because you want to seem cooperative, you grant this - BIG MISTAKE!!! Don't give them any more time - I wouldn't and the supervisor (a male) called me to bully me.
9) The "investigator" will produce the Investigation File (IF), also incorrectly called a Report of Investigation (ROI) but the ROI is just a part of the IF.
10) The IF will be so large it will take hours and hours to go through, but you must because it is riddled with falsehoods that must be addressed.
11) You will write up a response to the IF which the "investigator" will throw in a circular file, never to be seen again.
12) (During this process, the agency will do every stall tactic known to man - ADR (which will go nowhere), requests for more time, switching AJs (mine switched more than 4 times during the process), etc.)
13) In a few years, you will have a hearing in front of the AJ (again, just a government attorney, who most likely worked at one time for your agency). You will have lots of stuff beforehand to do - discovery, etc. If you want to have depositions, each one will cost thousands of dollars.
14) The AJ will rule against you.
15) The agency will issue a FAD agreeing with the AJ.
16) You will file an appeal with the EEOC/OFO.
17) The agency will file a response - these responses may go back and forth between you and the agency.
18) The OFO will rule against you.
19) You've passed go and can now go to Court, to lose more money.

I've been through it all and worse. Betrayal, lies, etc., just because I believed that the EEOC was a safe place. It is not.

God bless.

CATXBruiser  
#34 Posted : Sunday, February 10, 2019 6:52:06 AM(UTC)
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So, I am done with Step 11. All true. I did not expect anything different, but there is no other process to follow.
I simply hope my Agency will leave me alone until I can retire in 7 years (the process won't be done by then and all the
"offenders" will already be gone (in which case, the case is over since they cannot be compelled to respond once they are
out of the GOV.

It's fight & lose (I am only going up to the point where a civil suit is the only remedy remaining - I already went down that road fighting
an evil and narcissistic ex with a truly (on the record in court) despicable judge making new law from his bench); or,
don't fight and live with the 'shame' of letting "them" tell the universe "you" were a bad employee.
frankgonzalez  
#35 Posted : Monday, February 11, 2019 5:03:58 AM(UTC)
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Of course, Dronebee neglects to point out that plenty of us end up resolving our complaints and are happy with the outcome. Granted the agency I filed against waited until after the depositions to decide they wanted to settle (I'd offered to try ADR from day 1, but the EEO counselor was new and there were plenty of screw ups by the whole EEO community from day...but as I had worked as one of them for many years, and knew the law and agency regs, I was able to address their incompetence at each stage). I was pro se up until filing for a hearing and then hired a lawyer. What is sad, is the agency's refusal to settle early ended up costing them over $20k in legal fees on top of my damages..which also would have been lower if they had been willing to discuss settling earlier.

I ended up at a better agency and can say I have been through the process from almost all perspectives...as a counselor, investigator, mediator, and complainant.



You should have voted Cthulu...the greatest of all Evils
CATXBruiser  
#36 Posted : Monday, February 11, 2019 7:45:46 AM(UTC)
CATXBruiser

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Hi Frank -

As I pointed out, I understand the risks. It is a very tough road I'm traveling. It is not hopeless.
I also understand that no one in the process is advocating for me.

Regardless, I've got a great legal background (I just filed something in our local District Court.
Had three attorneys review it since it involves a 7 figure claim. One said it was so well done that he
asked if I was interested in part-time work as a paralegal. It was a personally satisfying remark.)

The facts are on my side by the virtue of their creation in writing by the 1st parties.
That includes my formal notices to my Agency's EEO and IG and the DoD IG regarding specific EEO errors and omissions.

Frankly (no pun intended), the partial shutdown was a great excuse for the entire swamp to introduce several
new months of delays. Apparently there is a math equation for this: 30 days = 180 days. :-(

Unlike you, Frank, I don't have any additional dollars to hire an attorney for a Hearing; though I am confident I
can handle it on my own with enough background prep since the case are recorded and transcribed. So, I'll get a few
recent transcripts on my topic and get a good feel for what the ALJ asks.

Again, once this process is started formally, it is shear suicide to back down IMHO.

V/r,

B
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