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Federal Employees: You be the Judge


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joyofliving  
#1 Posted : Monday, April 21, 2008 11:31:30 AM(UTC)

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I filed an EEO complaint in March 2007. The EEO office said that I amended the complaint twice, the second time was October 2007. As I understand the laws, the Agency should have investigated the complaint within 180 days. It is a formal complaint and I complied with all of the timeliness deadlines. As of today, April 21, there has been no investigation.

The EEO office has gone without a complaint's manager for over two years. They are currently operating with one full time employee, one employee working from home three hours a day and a stay in school assistant. There has been no EEO Director for two years. The EEO Investigations manager just left. They say that the Agency has a hiring freeze on the Director's position and the complaint's manager position. They didn't even budget for one of the positions.

I would love opinions, information and of course welcome advice! Thanks!

Does anyone know about sanctions taken against agencies? I heard that the EEOC can restrict the Agency's witnesses.
luvdata  
#2 Posted : Monday, April 21, 2008 12:02:01 PM(UTC)

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Yours is not an unusual situation. I recently wrote about a case where the agency took ten years to issue a final agency decision. (The man died a year and half after being terminated, leaving me struck with both sorrow and curiosity about his final days.)

There are no checks and balances for the EEOC process, and there is no accountability. I too am waiting for a year-old investigation to be finished, and my case is already at MSPB.
joyofliving  
#3 Posted : Tuesday, April 22, 2008 1:01:04 AM(UTC)

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Charlotte, what a blessing you are. Thank you so much for your website. I'm speechless and still reading.
luvdata  
#4 Posted : Tuesday, April 22, 2008 2:12:34 AM(UTC)

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I read some of your past posts. Don't file with EEO for a hearing. File with MSPB for a mixed case appeal. Your 120 days have passed, although the agency will try to argue that it hasn't. If you file for an EEO hearing however, it will lower your chances of having the case heard at MSPB first.
Whipping Boy  
#5 Posted : Tuesday, April 22, 2008 2:23:17 AM(UTC)

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Ironic you mention the lack of funding. I just noted a position opening up in San Diego for a local director/investigator. It opened on 4/10 and closes on 4/24. Good chance they already have someone in mind for the position (no - really!), but some funding is available for these positions. I may just throw my hat into the ring.
luvdata  
#6 Posted : Tuesday, April 22, 2008 2:25:57 AM(UTC)

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I should clarify that further. File with MSPB first. It's up to you whether you want it to be a mixed case or not (containing elements of both appealable action - i.e. discharge - and EEO discrimination). If you can refute the agency's argument without EEO, you can try to get the MSPB admin. judge to keep it strictly an appealable action case. Sometimes, they'll decide to make it a mixed case on their own, however. Read Chris Attig's blog posting on mixed case appeal to see how these two courts can cross with each other, and where disputes can arise. (the game for MSPB and EEO administrative judges is to get it thrown to the other court so that they will have less work)
joyofliving  
#7 Posted : Tuesday, April 22, 2008 8:25:33 AM(UTC)

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I'm a little confused. I filed the EEO complaint over a year ago. I'm not going to file an EEO for the discharge. I'm going to the MSPB. I first filed and OSC and had 65 days to go to the MSPB. I'm planning to file it within a week or so.
Could you clarify more?

Thanks so much.
luvdata  
#8 Posted : Tuesday, April 22, 2008 8:52:27 AM(UTC)

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If you are not a probationary employee and were discharged, then you have the right to have your case heard at MSPB. If you file at EEO first and claim discharge, then MSPB will try to get EEO to hear your case instead.

You stated that you are not filing for an EEO hearing. This takes care of the matter altogether. Hope that helps.
rabbitdog99  
#9 Posted : Friday, May 02, 2008 11:09:50 AM(UTC)

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I'm assuming you are through the EEO Counseling and informal complaint resolution process and have filed the formal complaint.

After 180 days you can request an EEOC hearing. The agency will not be able to provide a report of investigation if they haven't done one. The EEOC will order them to send one to them. They will not be able to provide it since they don't have one. At that point the EEOC judge can do all kinds of things include making the agency pay for an investigation you have done yourself. Even giving a summary disposition in your favor. Check out EEO MD-110, Chapter 7, Section III. Also check out Chapter 6, Section XII.
thanks 1 user thanked for this useful post.
believer on 5/15/2018(UTC)
BIGPAPPA  
#10 Posted : Sunday, February 15, 2009 11:10:21 PM(UTC)

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Hi,

If you are still in this case I would sit back request the hearing and hope the agency never responds to the court orders and win.
hablo  
#11 Posted : Monday, February 16, 2009 1:00:49 AM(UTC)

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quote:
The agency's acknowledgment must also advise the complainant that when a complaint has been amended, the agency must complete the investigation within the earlier of: (1) 180 days after the last amendment to the complaint; or (2) 360 days after the filing of the original complaint. A complainant may request a hearing from an EEOC AJ on the consolidated complaints any time after 180 days from the date of the first filed complaint. 29 C.F.R. Section 1614.106(e).


http://www.eeoc.gov/federal/fedprocess.html
Nuit Noel  
#12 Posted : Monday, February 16, 2009 9:32:12 AM(UTC)
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The agency knows at this point that they must provide the documents or acknowledge that they lost them. MD 100 states that all documents are part of the file. So' I'm sitting and waiting for them to provide all the documents. It's been months. As far as the motion for sanctions, it's been five months since I submitted the motion and the AJ has not acted on the motion. The Agency filed a motion to request the AJ not impose sanctions and the AJ has not responded to that motion either. This is quite a scenario.

The agency did send me some documents, 309 in all..only thing is that they seem to be in triplicate which accounts for 309 pages that really are only about 103 pages. What a mess!

During my MSPB hearing, the agency testified that I had an abundance of training to perform my job. When I request proof of this training under discovery for the EEO complaint, the agency then wrote that they had no records of my training and could not verify whether I had any training. This was great because I can use it as significant new evidence for the Petition for Review with the MSPB. The ALJ concurred that I had abundance of training....now I wonder what evidence he based that on?
maxketter  
#13 Posted : Monday, February 16, 2009 10:40:16 AM(UTC)

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Sounds like an another disgruntled employee unable to perform the task and their supervisor or the agency is at fault
Mugician  
#14 Posted : Monday, February 16, 2009 10:58:28 AM(UTC)

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quote:

During my MSPB hearing, the agency testified that I had an abundance of training to perform my job. When I request proof of this training under discovery for the EEO complaint, the agency then wrote that they had no records of my training and could not verify whether I had any training. This was great because I can use it as significant new evidence for the Petition for Review with the MSPB. The ALJ concurred that I had abundance of training....now I wonder what evidence he based that on?


This is a petty argument. You should show that you requested training and was denied.
BIGPAPPA  
#15 Posted : Wednesday, February 25, 2009 1:27:09 PM(UTC)

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OK the MSPB case is another matter... If you are still in the EEO case.... and you are beyond 180 days by now you should have requested the hearing.. After that the EEOC will request the agency to hand over the complaint file with the ROI... Based on you have said so far they have not done an investigation. The EEOC Judge will therefore order the agency to do an investigation.. Failure to comply could result in sanctions.. Let the agency goof around and not do the investigation. That is great for you. Sit back and watch time click away..

This is how I won my case with EEOC by default Sanction.
joyofliving  
#16 Posted : Thursday, February 26, 2009 9:28:21 AM(UTC)

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I filed the complaint in March 2007. It wasn't investigated until August 2008. As soon as the investigation was completed, I filed for a hearing with the EEOC. The AJ ordered the agency to give me the complete complaint file in July 2008. I received an incomplete file and waited. In October I filed a motion for the judge to compel the agency to give me the entire file. I also requested the judge set sanctions. Of course,neither was done. In January, there was an unscheduled three way conversation between the AJ, agency attorney and me. The AJ and attorney disputed my interpretation of the complete file. I then wrote to every EEOC office in the country to get their opinion. I was right, everything I sent was supposed to be part of the file. The agency left out over 100 pages of documentation. I still don't have the complete file and the AJ still has not acted on my motion from October, which is four months now.

I'm in no hurry and they all know it. Sooner or later there will be a hearing. I've prepared myself for all sorts of game playing. This entire process taught me to listen carefully and to read every word in documents I received.

As far as the MSPB, I'm submitting the Petition for Review. I'm feeling confident about this because of all the errors that were made. I've been able to prove there were no laws, rules or regulations that I violated. I made three clerical errors in transcribing information and corrected those errors within 21 minutes. They were never an issue. I had a 99.99% accuracy rate. The errors caused no loss to government and no harm to employees. Error rates were not a part of my performance plan. The agency, in reviewing my email while I was on administrative leave, decided to charge me with misconduct for those errors, in spite of the fact that they were corrected. The errors: I had the three employees in the wrong organization and had the wrong income listed on three employees. My supervisor used the rationale that I had no authority to change the employee status, even though I recognize my error and corrected it.

Now I know there will be opinions that maybe this was really critical info. No way. I used a worksheet that was just a checklist I created to approve employee child care subsidies. The checklist was faxed to the contractor to make payments. We caught the error, no payments were made, no harm to govt and the employee was never harmed since it did not affect their child care subsidy. So out of perhaps 600 employees, I made 3 clerical errors. This is a hard case for misconduct.

My petition goes out on Monday. I requested two extensions and the MSPB approved those extensions.

Maybe there is a very low success rate for the federal employee. I'll prepare myself for it. In the meantime, I still have the MSPB and federal court. For the EEO, I still have the EEOC and federal court. There is only one Higher Power, one Great Spirit, and one Authority who knows how this will turn out. I trust Him. Either way, whether I win or lose, I did my best to fight back.
jersey123  
#17 Posted : Wednesday, March 04, 2009 1:28:17 PM(UTC)

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Joyofliving, It doesn't matter if they do an investigation the file will be full of documents that don't even pertain to your case. Affidavits that don't answer your filed complaints- I called this Clinton Truth. One of my complaints was that I had a document thrown at me and it struck me. I never said where. The investigative officer worded the response as: "...." denie*****ting complaintent in the FACE with document.

The cover up goes on and on. You have deadlines, they don't comply with any deadlines and no one does anything. Not even the AJ. As far as the EEOC manual; it is there to appease Congress.

My case ended with a settlement and the agency did not comply. I lost my job to PTSD, took the agency to court on my own for BREACH OF CONTRACT and after 7 years, tons of paper I did get part of the money promised with a wapping 4% interest. There is no make whole or justice and worse you are harrassed because you filed a complaint.
maxketter  
#18 Posted : Thursday, March 05, 2009 12:02:06 PM(UTC)

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PTSD for a Federal Job you have got to be kidding!!!!!!!!!!
luvdata  
#19 Posted : Thursday, March 05, 2009 12:32:28 PM(UTC)

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I don't want to laugh at your hardship, but I did have to laugh at the fact that they denied hitting you in the face when you never stated they hit you in the face. . .as in . . .oops, was I NOT supposed to know that?

(Although I know many smart federal employees, the "other" ones outnumber them many times over)
joyofliving  
#20 Posted : Friday, March 06, 2009 1:53:30 PM(UTC)

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Well, actually, the EEO file has only two documents that aren't mine. The affidavits by my first and second line supervisors and true to their demeanor, there are numerous contradictions. One example is that my supervisor stated that I resisted training. Well, discovery proves I was never offered training. The second line supervisor stated that he didn't know about my health problems until 1/08 when evidence proves he knew about it in July 07 when the problems began to escalate.

Funny, the first line supervisor threw papers at me too! For me though, there were four witnesses and his apology is digitally recorded.

Who knows how this will turn out? It's been a remarkable and enlightening experience for me. I'm challenged by all of it, not at all depressed over it. My former supervisor used to call me relentless and he was annoyed that I asked questions. (in writing too). According to him, my questions were annoying and constant. I would ask for clarifications and this bothered him. I have an education background, both undergraduate and graduate. Seems to me, we encourage people to ask questions for clarification. Good supervisors know that too. We're the chosen few who get challenged with supervisors who are bullies, demi-gods, tornadoes ripping through their subordinate staff's lives causing havoc and frustration until we reach our limit and files complaints against them. I have documents where my supervisor complains about the disclosures I made, particularly since I went outside the division to the OIG and GAO. He wrote that I chose to go outside the organization. Now, he should know that I have the same rights (I hope) that all employees have. I don't need his permission to file disclosures.

Yeah, these supervisors are powerful and seemingly more credible than we are. But, at the same time, they make a lot of mistakes; they contradict themselves; they lie; they forget; they fabricate. We need to learn to document, document, document. Keep the brain going and the memory active. Take notes, journal, save email, and ASK QUESTIONS!
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