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Small Agency Oversight  
#1 Posted : Tuesday, February 19, 2019 1:49:03 PM(UTC)
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Hi everyone, first-time poster, long-time reader. My agency has ignored federal appraisal policies for years. My entire division did not have performance plans and my supervisor claimed that the agency did not "do" midyears. I am in the investigation stage of my EEO complaint and am looking for opinions, because I see that agencies can claim that "similarly situated" employees were not treated differently. If I were their counsel, I guess I would claim that since *no one* got a performance plan or a midyear, that it wasn't discrimination?

Just wondering if anyone thinks that an AJ would issue sanctions for a complete failure to follow appraisal policies across the board.

I worked for agency for three years, and only received one annual appraisal in that time.

I made general counsel aware that my supervisor was ignoring these policies, they all but told me they didn't care, then cooperated with supervisor to issue a proposed removal (this is all documented via email). I had that reduced to a two-week suspension, but am still fighting to have the suspension removed. (I do have proof that my supervisor violated reasonable accommodation policies, and that he brought punitive actions against me within a short period of my having requested RA. Supervisor is retired and will likely decline to complete an affidavit.)

Is this case even worth pursuing given the line of defense I outlined above?

Edited by user Tuesday, February 19, 2019 3:41:46 PM(UTC)  | Reason: Not specified

frankgonzalez  
#2 Posted : Wednesday, February 20, 2019 4:13:28 AM(UTC)
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Drop the appraisal aspect if this is across the board. Discrimination requires you being treated differently. If everyone is treated the same (no matter if it is all badly), then discrimination is not found. An EEOC AJ will not sanction an agency for not following appraisal policies across the board. If you have a bargaining unit (union), then the union could file with the FLRA after filing a grievance for failure to follow said policies.

Now the Reasonable Accommodation issues sound like a potential line of defense depending on how long "short period" actually is.
You should have voted Cthulu...the greatest of all Evils
thanks 1 user thanked frankgonzalez for this useful post.
Small Agency Oversight on 2/20/2019(UTC)
Small Agency Oversight  
#3 Posted : Wednesday, February 20, 2019 7:11:08 AM(UTC)
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Thanks Frank. It was just one department ignoring the policies, but it was done across the board in our department. I have included it because I asked questions about the policy along with my questions about how to file an EEO complaint for the other matter - and the proposed removal followed very quickly.

I think the timeline is pretty strong - I asked for an accommodation in September/October that was rejected (agency did not follow its RA policies - rejected it without telling me my appeal rights, didn't refer me to an iterative process, claimed I had to request a specific accommodation to begin the process). In November, my boss blocked my grade level promotion (despite allowing a step increase to go through. I'm the only person who's had a promotion blocked). In December, I requested a second reasonable accommodation (in response, he reassigned my duties). In January, he proposed my removal.

They did refuse to give me an annual appraisal after I filed an EEO complaint. I'm the only person at the agency who didn't receive one.
frankgonzalez  
#4 Posted : Wednesday, February 20, 2019 9:30:26 AM(UTC)
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Originally Posted by: Small Agency Oversight Go to Quoted Post
Thanks Frank. It was just one department ignoring the policies, but it was done across the board in our department. I have included it because I asked questions about the policy along with my questions about how to file an EEO complaint for the other matter - and the proposed removal followed very quickly.

I think the timeline is pretty strong - I asked for an accommodation in September/October that was rejected (agency did not follow its RA policies - rejected it without telling me my appeal rights, didn't refer me to an iterative process, claimed I had to request a specific accommodation to begin the process). In November, my boss blocked my grade level promotion (despite allowing a step increase to go through. I'm the only person who's had a promotion blocked). In December, I requested a second reasonable accommodation (in response, he reassigned my duties). In January, he proposed my removal.

They did refuse to give me an annual appraisal after I filed an EEO complaint. I'm the only person at the agency who didn't receive one.
They have a slight point in that they need you to suggest (or your medical provider) to suggest what would work as an accommodation to begin the interactive process. If I have someone simply say "I need an accommodation for my disability." and then declined or neglected to provide what they were seeking after asking them, I'd provide a letter for them to take to their provider (doctor, etc) with an attachment of the essential duties of the position, and ask the doctor to provide it to our medical review provider (every agency this is a different office...in the military, it was someone in the medical corp, my current agency, we use a Fed Occupational Health doctor) to review, coordinate and make recommendations. Most times, this is a concur opinion of the employee's doctor, but on occasion, the the request is out there and requires eliminating the essential elements of the position and the agency doctor makes their recommendation based on the medical issue at hand. Either way, not engaging at all could be found to be a violation of the Rehab Act. The reality is, there are no forms or paperwork required to initiate a request for a reasonable accommodation. All that is needed is an employee saying they are having difficulty with performing the job and it may be due to a medical issue they have. THAT would be enough at agencies I have been in charge of the RA process to initiate the conversation. Then again, I make certain my HR and managers are trained. If nothing else, they know to call my office to get advice if this occurs.

You might have a whistleblower claim with regard to the appraisal policy and lack of compliance, but if all you spoke to was your leadership about the appraisal issue, it won't go far. If you talked to the agency IG, OPM, etc, then OSC would be the place to go to.

The refusal to promote...50/50 on whether that goes anywhere. But it may help establish a pattern of reprisal for requesting an accommodation.

Reassigning duties in response to a RA request, and termination soon after....not looking good, but I'd have to see the specific claims and ideally the counselor's report or Report of Investigation to really see how weak or strong a case is.
You should have voted Cthulu...the greatest of all Evils
FrankJr  
#5 Posted : Wednesday, February 20, 2019 10:26:47 AM(UTC)
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More details associated with the removal would be helpful. Two sides to the story. Same for the EEO complaint. The old supervisor is gone but do the issues continue with the new supervisor? Same issues with multiple supervisors is a good indication the issue is not with the supervisor. As noted, is the position represented by a union?
Small Agency Oversight  
#6 Posted : Wednesday, February 20, 2019 10:38:20 AM(UTC)
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Originally Posted by: FrankJr Go to Quoted Post
More details associated with the removal would be helpful. Two sides to the story. Same for the EEO complaint. The old supervisor is gone but do the issues continue with the new supervisor? Same issues with multiple supervisors is a good indication the issue is not with the supervisor. As noted, is the position represented by a union?


No union. It's an obscure small agency with about 25 FTE. Zero issues with new supervisor. A specific reasonable accommodation was requested - they rejected it out of hand, and didn't offer me information about appeal rights. (This is documented in email.) I offered to provide medical documentation for years and was told it was unecessary. They claimed that I hadn't mentioned my disability before, but they hired me under Schedule A (and I have evidence that the deciding official also knew about my disability)!

Forgot to mention too that when I asked about filing an EEO complaint, I was told that I would have to speak with my supervisor, who was apparently the EEO director. This was very improper as HR reported to him.

Agency does not have an IG - I spoke to HR, general counsel, and the executive director about the lack of compliance. GC completely went around HR to collaborate with offending supervisor on the proposed removal - HR was pissed about the whole thing, especially the fact that the supervisor was designated as the EEO officer when HR reported to him. Any chance I could get sanctions for that bit of noncompliance?

Sadly, OSC declined to investigate my case, people on this forum are 100% correct that they just rubberstamp management, and in my case, they didn't even read the entire file. I'm sure everyone says that, but I think it's true in my case. I have involvement from a senator and the House Oversight Committee, who are trying to get OSC to request an investigation of my other disclosures (which I made after receiving their initial decision not to investigate). OSC said that failure to follow federal appraisal law wasn't a PPP, which is headscratching since surely my report of noncompliance should constitute a violation of law.

I have counsel for my IRA with MSPB, which I plan to file at the end of next month if the agency won't settle with me via EEO before then. I am pro se on the EEO matter. My counsel was always skeptical about my EEO case, but a friend who works in HR law at a large agency has always maintained that that's how I would win, so I have a bit of free friendly advice. It's too bad that blanket noncompliance with federal appraisal law might not be sufficient.

The whole agency is a cluster*****, and I caution feds against accepting positions with small agencies. The lack of IG oversight is a known issue. Proposed removal is a longer post, will come back this evening.

Edited by user Wednesday, February 20, 2019 10:50:42 AM(UTC)  | Reason: Not specified

FrankJr  
#7 Posted : Wednesday, February 20, 2019 10:53:31 AM(UTC)
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Originally Posted by: Small Agency Oversight Go to Quoted Post
Originally Posted by: FrankJr Go to Quoted Post
More details associated with the removal would be helpful. Two sides to the story. Same for the EEO complaint. The old supervisor is gone but do the issues continue with the new supervisor? Same issues with multiple supervisors is a good indication the issue is not with the supervisor. As noted, is the position represented by a union?


No union. It's an obscure small agency with about 25 FTE. Zero issues with new supervisor. A specific reasonable accommodation was requested - they rejected it out of hand, and didn't offer me information about appeal rights. I offered to provide medical documentation for years and was told it was unecessary. They claimed that I hadn't mentioned my disability before, but they hired me under Schedule A (and I have evidence that the deciding official also knew about my disability)!

Forgot to mention too that when I asked about filing an EEO complaint, I was told that I would have to speak with my supervisor, who was apparently the EEO director. This was very improper as HR reported to him.

Proposed removal is a longer post, will come back this evening.


Lost in the weeds? At three years the two year Schedule A probation period and the three year career conditional to career are not factors. The issues with the old supervisor no longer exist with the new supervisor. No offense, but what exactly is the problem?
Small Agency Oversight  
#8 Posted : Wednesday, February 20, 2019 11:22:19 AM(UTC)
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Originally Posted by: FrankJr Go to Quoted Post
Lost in the weeds? At three years the two year Schedule A probation period and the three year career conditional to career are not factors. The issues with the old supervisor no longer exist with the new supervisor. No offense, but what exactly is the problem?


The problem is that I have a two-week suspension on my record. That suspension cost me a transfer to another agency last year. I'm working now in the private sector, but I want to get back into the feds. A job offer was rescinded last year by the background check people because of the pending suspension, and the hiring manager told me to get the suspension cleared so that I can apply for other vacancies in his office. There are a few retirements coming up and I need to get this sorted out ASAP so that I can get back in at another agency.

This situation is so dumb. They gave me a performance award after the two-week suspension, but refused to give me an annual appraisal. So that's an issue too, as the jobs require my most recent appraisal, which doesn't exist.

Edited by user Wednesday, February 20, 2019 11:23:25 AM(UTC)  | Reason: Not specified

frankgonzalez  
#9 Posted : Wednesday, February 20, 2019 11:23:44 AM(UTC)
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The fact that your supervisor was the EEO director made it a conflict of interest case and should have been handed off to another agency to counsel and process your complaint. The fact HR also reported to them is an additional issue (but not as bad as if the EEO director reported to HR!). My experience has been that small agencies will either contract out the EEO functions or have an MOU or agreement with another agency (typically a much larger one they work with frequently) to handle their EEO complaints. I've worked conflict of interest case for other agencies in the past (typically higher level SES were either the complainant or the named management official or both on occasion!).

This may lead to sanctions, especially if they failed to separate the functions, and if the person overseeing the EEO complaint was also the person named in the complaint...well, the EEOC doesn't like that! And if the agency counsel advising the agency on the case was also involved in the processing of the complaint (ie reviewing whether it should be accepted or dismissed, assisting management with statements, etc), then I'd be asking for sanctions on that alone!
You should have voted Cthulu...the greatest of all Evils
Small Agency Oversight  
#10 Posted : Wednesday, February 20, 2019 11:53:09 AM(UTC)
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Originally Posted by: frankgonzalez Go to Quoted Post
The fact that your supervisor was the EEO director made it a conflict of interest case and should have been handed off to another agency to counsel and process your complaint. The fact HR also reported to them is an additional issue (but not as bad as if the EEO director reported to HR!). My experience has been that small agencies will either contract out the EEO functions or have an MOU or agreement with another agency (typically a much larger one they work with frequently) to handle their EEO complaints. I've worked conflict of interest case for other agencies in the past (typically higher level SES were either the complainant or the named management official or both on occasion!).

This may lead to sanctions, especially if they failed to separate the functions, and if the person overseeing the EEO complaint was also the person named in the complaint...well, the EEOC doesn't like that! And if the agency counsel advising the agency on the case was also involved in the processing of the complaint (ie reviewing whether it should be accepted or dismissed, assisting management with statements, etc), then I'd be asking for sanctions on that alone!


Sorry, my post may have been confusing. I was told by HR that to begin the EEO process, I needed to speak with my supervisor, who was the RMO in my complaint. He was apparently the EEO Director and also supervised HR.

I didn't initiate the process because I decided to try to walk away after reading this forum, and was hoping he would just let things lie. Instead, he escalated with the NPR after I requested a desk audit and information about how to file an EEO complaint. I had requested RA to perform my "other duties as assigned," which were completely outside my PD and took up over 80% of my time. In addition to the RA issue, he verbally told me that he was assigning me these duties (running the entire agency purchase card program) because I spoke Spanish, which he said would be useful in coordinating deliveries (I claimed that as national origin discrimination).

He denied my reasonable accommodation, which had to do with running the purchase card program. He hid behind the FAR, saying that it requires comparison shopping for every item, and that this was my job. (He was making me comparison shop for $4 items. No kidding. I disclosed that as a FAR violation when I complained to the agency director - MSPB says this is a "policy dispute" and therefore not a protected disclosure. Interestingly, they didn't make me comparison shop when repeatedly awarding work below the micropurchase threshold to a personal friend of the agency director...or buying furniture from Pottery Barn for the director's office)

Around the same time he issued the NPR, they entered into a contract with an external agency to provide EEO services. This contract SHOULD have been in place beforehand and the RMO should never have been designated as the EEO Director. When RMO retired, they reassigned the EEO duties to another department head who did not supervise HR.

Do you still think I can get sanctions? Thanks for understanding what I am actually asking - I'm looking for a strategy to get sanctions imposed at the earliest stage possible so that I can avoid as much of the MSPB expense as possible.


Also, is there anything specific I should look for in the counselor's report? It was just a report of what I said vs what the agency's counsel said. They accepted all of my charges and also told me that I had a cognizable claim of harassment, and tacked that on the end. Not sure if there is any info to glean from that.

Edited by user Wednesday, February 20, 2019 12:39:45 PM(UTC)  | Reason: Not specified

frankgonzalez  
#11 Posted : Wednesday, February 20, 2019 12:34:36 PM(UTC)
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The issue isn't what is right now, but what existed at the time of the complaint. AND, you never have to talk to the RMO to initiate the complaint.

You can request sanctions ONCE you get to the hearing stage and get assigned an AJ. That can take 2 to 3 years AFTER the you file your formal complaint (you can't request a hearing until 180 days have passed since you filed your formal complaint. If you did not amend your formal complaint, the investigation should be completed NLT 180days after you filed, and you should receive the Report of Investigation (ROI). If 180 days have passed and you don't have the ROI by the 180 day mark, request a hearing (you file with the EEOC, but must also notify the agency you have requested a hearing). They should complete the investigation at that point ASAP as the AJ will want to see it. When you file for a hearing, if you don't have the ROI (and hadn't amended the complaint...if you did, the agency gets to add time to the investigation period based on when you filed the amendment, but no investigation can take more than 360 days, not matter how many times you amend your complaint), request for summary judgement in your favor as a sanction for failing to properly investigate your complaint in a timely fashion. Add in all the other failures of process you had to support the requested sanction.

As for the Counselor's report. Sometimes the RMO and/or witnesses say something that supports your claims or provides evidence that there is more to be found. Or they may even contradict evidence you have (such as they say one thing, but the voicemail you saved and the emails from them say another). ie. "we had no clue the complainant had a disability." You can point out that they hired you using schedule A because you qualified for that hiring authority due to your disability. Also, you requested an accommodation twice, so even if they were not aware the first time you requested, they were fully aware at the time of your second request.

And so on. My ROI had lots of good information that supported my claims (whether it was intentional or not to provide it), and I used that when the investigation came around to steer the investigator to the correct places to look for the evidence. If they had not gathered the correct stuff, then I would have asked for sanction based on an insufficient investigation (either summary judgment in my favor or a presumption the evidence I provided could not be refuted (ie they couldn't then bring in other witnesses in discovery to try and contradict what I had). As it happens, the investigation was done well, and at the end of discovery the agency decided they needed to settle. So we did. But this was over 2 years after I initially filed my formal complaint.
You should have voted Cthulu...the greatest of all Evils
Small Agency Oversight  
#12 Posted : Wednesday, February 20, 2019 12:47:14 PM(UTC)
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thanks, this is really good information. yes, I think I did get some ideas from the counselor's report and I was able to include additional evidence for the ROI, after having the harassment claim accepted, that contradicted their statements. most of their false statements were already on the record with the NPR and the FAD.

the issue here seems to be the general counsel's ignorance about settlement agreements. for example, they were willing to remove the discipline from me OPF, but said they couldn't remove it from the internal agency file because of "records schedules." that's what scuttled my transfer. they are now hiding behind the executive order on clean record agreements - but this was not in place when they first bungled our negotiations. (btw, the NPR was served January 2018...I contacted EEO 44 days after the FAD, issued in April, which mitigated to a 14-day suspension.)

we've just passed the year mark and I'm now at the investigation stage. my affidavit had nearly 200 questions and ended up being 62 pages long. my friend who practices this kind of law said this is atypical, so perhaps my investigator is serious about doing a good job.
frankgonzalez  
#13 Posted : Wednesday, February 20, 2019 1:05:25 PM(UTC)
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Originally Posted by: Small Agency Oversight Go to Quoted Post
we've just passed the year mark and I'm now at the investigation stage. my affidavit had nearly 200 questions and ended up being 62 pages long. my friend who practices this kind of law said this is atypical, so perhaps my investigator is serious about doing a good job.
Length of affidavits means little. Some complaints are very clear and so need little, and some are very complicated and take more to explain. Some witnesses/complainants can be succinct and some give 100s of pages saying very little or complete nonsense.

You say you have just passed the year mark. A year from when? When you filed formal? If so...file for a hearing. Even if you amended your complaint, the max time allowed to investigate is 360 days.

As far as the Executive Order goes...there is a loophole, and if they are willing to throw the RMO under the bus, they simply need to say the agency made a mistake, and the actions were done in violation of policy, etc, and therefore to correct the record, in the interest of justice, etc, a clean record is required. If the RMO is no longer with the agency (especially if they have retired), this would be an easy thing to do for an agency, and be part of a larger settlement that makes multiple actions go away.
You should have voted Cthulu...the greatest of all Evils
Small Agency Oversight  
#14 Posted : Wednesday, February 20, 2019 2:03:30 PM(UTC)
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Originally Posted by: frankgonzalez Go to Quoted Post
You say you have just passed the year mark. A year from when? When you filed formal? If so...file for a hearing. Even if you amended your complaint, the max time allowed to investigate is 360 days.

As far as the Executive Order goes...there is a loophole, and if they are willing to throw the RMO under the bus, they simply need to say the agency made a mistake, and the actions were done in violation of policy, etc, and therefore to correct the record, in the interest of justice, etc, a clean record is required. If the RMO is no longer with the agency (especially if they have retired), this would be an easy thing to do for an agency, and be part of a larger settlement that makes multiple actions go away.


passed a year since the RMO's illegal NPR. I filed with EEO in June 2018, and agreed to an extension of counseling, as the agency was hiring for the position that would serve as the EEO coordinator for the agency. had to amend my complaint in September due to an error by the initial counselor. should I refuse to extend the investigation if the investigator asks for one? there seems to be contradicting advice on the forum.

I'm aware of the loophole, and have an email from a congressional representative's chief of staff confirming (they sent me a writeup of conversations they had with OPM to confirm that 1) the agency can pay my attorney's fees in settlement (their counsel denied this) and 2) that they can clean the record with the loophole you described). I don't understand why they won't throw the RMO under the bus since he's retired.

they are not behaving rationally - my attorney said the same thing you did and has been shocked at every step of the way by the agency's conduct (including the initial NPR, which they said was among the weakest they'd ever seen). the agency received a second congressional inquiry in mid-December and they have ignored requests from the chief of staff to respond. they have also ignored the EEO investigator, who I had contact them in early February to request that we return to mediation because I'm interested in a settlement....

for anyone reading - my best plays so far have been with the congressional inquiries. they did try to settle in order to have me withdraw my "complaint" (their quotes) with my senator but we came to an impasse because of the RA (this was last spring, prior to OPM's enumeration of the loophole this past October). I was able to leverage that inquiry, and an external job offer, into strong-arming them to converting me from my Schedule A appointment to the civil service - they were refusing, saying that the conversion was "discretionary." the new manager was able to persuade the executive director to approve my conversion/career tenure in exchange for my resignation.

I have also been successful in getting a House committee to take my disclosures of fraud, waste and abuse seriously...OSC has been an uphill battle but their investigator is supposedly speaking to my Hill contacts this week so perhaps they will change their tune. GAO was interested in my complaint but said it was outside their ability to investigate - they did refer to DOJ for a criminal investigation of some of the other matters I raised, but that's been a very slow process (and was only initiated by the House committee). I hope that when the agency realizes that I've sent them bigger problems than my EEO complaint, that they'll cry uncle, but I'm not holding my breath. I honestly think their general counsel has been underutilized for years and is enjoying the fight.
Small Agency Oversight  
#15 Posted : Wednesday, February 20, 2019 2:10:25 PM(UTC)
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As far as the NPR: I was responsible for managing a software application that contained emails sent by agency staff. I accidentally received an email from a staff member who was engaged in obviously illegal contracting behavior. I reported it to an agency ethics officer, then went into the database to ensure that the staff member had not managed to delete the evidence. I told the EO what I had done, and she told me to stop "investigating." I went and conducted routine quality control checks of the software (checks which I was often unable to conduct because of proven reliability/downtime issues with the software).

The general counsel, in collusion with my boss, decided to "investigate" my use of the system, and wrote an entire memo claiming he had conducted "forensic analysis" (lol) of my system usage and that "circumstantial evidence" proved that I had misused it. Yes, he said IN his report that "based on circumstantial evidence," it was likely that I didn't have a legitimate reason for using the system.

The system had no access policy. I had blanket authorization to access the system. I had received no training in the appropriate vs inappropriate use of the system, but was disciplined retroactively for work done in the database *8 months prior* to the verbal instruction by the EO. They also invented an agency disciplinary policy (one did not previously exist) 7 whole business days before issuing the NPR.

They cited an agency-wide ETHICS training as proof that I had been trained in appropriate use of government property (they proposed my removal on the basis of having "misused a government computer" - which isn't even the correct charge). It was completely ridiculous and pretextual, and despite the pessimism on these forums I think I might actually have a case if I can get MSPB to accept my claim. But, this forum has been correct that OSC is a sham...so I'm not too excited about spending even more money to pursue this via MSPB....
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