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anon911  
#1 Posted : Wednesday, October 9, 2019 4:33:37 PM(UTC)
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Has anyone ever negotiated a clean record settlement agreement after filing an EEO complaint? How does that work? Are you still required to disclose termination or removes on an OF-306 or other government applictions? If so, what is the point of the clean record?
DroneBee  
#2 Posted : Thursday, October 10, 2019 3:02:07 AM(UTC)

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I thought clean record was a thing of the past: See https://www.whitehouse.g...merit-system-principles/

Sec. 5. Ensuring Integrity of Personnel Files. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.
frankgonzalez  
#3 Posted : Thursday, October 10, 2019 4:22:29 AM(UTC)
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Originally Posted by: DroneBee Go to Quoted Post
I thought clean record was a thing of the past: See https://www.whitehouse.g...merit-system-principles/

Sec. 5. Ensuring Integrity of Personnel Files. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.
The part is bold seems to be the key aspect. Once you get to a hearing (or perhaps district court), it ceases to be an administrative challenge, and so, this EO does not apply. YMMV though.

You should have voted Cthulu...the greatest of all Evils
Small Agency Oversight  
#4 Posted : Sunday, October 13, 2019 2:13:26 PM(UTC)
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My agency’s DOJ attorney felt that District Court was the only way to settle it with a clean record because then it was the US Attorney’s Office defending the case.
DroneBee  
#5 Posted : Monday, October 14, 2019 12:45:31 AM(UTC)

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Originally Posted by: Small Agency Oversight Go to Quoted Post
My agency’s DOJ attorney felt that District Court was the only way to settle it with a clean record because then it was the US Attorney’s Office defending the case.

Yes - agree. You may have to pay ($500 or something) to file in Court. Note that the agency is no longer represented by the agency's attorneys - only the DOJ attorneys represent the government in court. Hopefully the agency was on the level, will settle, and provide you a clean record.

God Bless!

Small Agency Oversight  
#6 Posted : Friday, January 3, 2020 12:10:51 PM(UTC)
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Coming back with a happy ending (knock on wood, settlement is supposed to be done this month). I had to file in federal court (unfortunate as anyone can now find the complaint) but the agency is in fact providing a clean record. They cannot clean the record in administrative proceedings but they can in a lawsuit. Agency was on the level. I am out ~10k (attorney spent nearly this filing in court due to volume of my EEO casefile - I can't begin to guess how much money I saved by doing this myself, special thanks to Frank and others on this board. My legal fees were nearly 40k and agency paid 30k).

However, I received a retroactive promotion and a performance appraisal (agency refused to issue one previously). They also agreed to a neutral/positive employment reference. Hopefully I will be able to return to federal employment in the future (if any agency ever posts a job that's open to external candidates...how are they allowed to limit their applicant pools the way they do?).

I think I could have had a better outcome had I retained a different law firm at the outset. I can't completely fault them since agency counsel was a nutjob and the clean record matter did mess things up. In the end, my attorney got me 10k more than what agency initially offered, so they did deliver some value. It's not the ideal outcome, but it's certainly not the worst and I think this qualifies as a success story. This took two years and would have been settled sooner had my attorney not told me it wasn't worth filing an EEO complaint. Thank god I paid for a second opinion from Tully Rinckley. (Their advice was to file my own EEO complaint...this eventually provided the mechanism for settlement via federal court.)
thanks 2 users thanked Small Agency Oversight for this useful post.
GSBS on 1/4/2020(UTC), SD Analyst on 2/13/2020(UTC)
DroneBee  
#7 Posted : Sunday, January 12, 2020 9:16:11 AM(UTC)

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Originally Posted by: Small Agency Oversight Go to Quoted Post
the agency is in fact providing a clean record. ... I am out ~10k (attorney spent nearly this filing in court due to volume of my EEO casefile ... received a retroactive promotion and a performance appraisal (agency refused to issue one previously). They also agreed to a neutral/positive employment reference.


Great! I'm so happy for you!


Originally Posted by: Small Agency Oversight Go to Quoted Post
Hopefully I will be able to return to federal employment in the future (if any agency ever posts a job that's open to external candidates...how are they allowed to limit their applicant pools the way they do?).


I'm sorry that it appears you are unemployed - all the best!


mallen  
#8 Posted : Sunday, January 12, 2020 12:24:15 PM(UTC)

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Do you still work there? We're you removed? Quit? If you left under "adverse conditions" then you still have to list it. At least that's my take. Erasing a record of something happening does not erase the fact that the event happened. So unless the for specifically says you don't have to list it, then you have to list it if it falls under the description of what's asked for. And they are deliberately broad. But if you won a favorable decision again at them, then went to court to get it removed from your personel file, you should be good, because the evidence shows you were not the one in the wrong. At least as far as background checks go, they don't look at sf85 or 86 and go, "he answered yes to question x, so he's out", they investigate each item and send all the facts to an adjudicator. One would expect that the fact that the process was decided in your favor would support your narrative of the events and I doubt anyone would second guess the results.

On the other hand, suppose you don't list it. Then they go talk to your boss, who explains what happens. Perhaps he gives his side, the poor manager, just trying to do his job, and the evil employee ,lazy and incompetant wanting a free ride on the government's dime. Well, now they start out with HIS side of it, and YOU are trying to convince them HES the one who is deceiving them. It's allways better to get ahead of things.

Edited by user Sunday, January 12, 2020 12:34:53 PM(UTC)  | Reason: Not specified

DroneBee  
#9 Posted : Saturday, January 18, 2020 3:34:39 AM(UTC)

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I think Mallen is not correct - a clean record is just that - the issue is expunged and you would only answer what is provided on your corrected SF-50s, etc. When the adjudicator calls, etc., the agency is required by law to provide the neutral/positive response. All is well Small Agency Oversight! You received a win! Congrats!
Small Agency Oversight  
#10 Posted : Wednesday, February 5, 2020 11:33:38 AM(UTC)
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I spoke too soon. The US Attorney's Office has rejected my settlement agreement. This is obviously ridiculous and my attorney is filing a motion for enforcement of the settlement in District Court.

To respond to Mallen: my supervisor gave me a "Notice of Proposed Removal" in January 2018. It was preposterous and obviously retaliatory. I got an attorney. 4 months later, my supervisor was pushed out and the agency issued a 2-week suspension (maximum penalty without giving me MSPB appeal rights: they thought I wasn't a whistleblower). I appealed to OSC (which was useless) and a year and a half later, an MSPB judge finally agreed to grant a hearing in my case. At that point, the agency agreed to settle to avoid discovery. Their DOJ attorney in the MSPB case told my attorney that the agency would clean my record in DISTRICT COURT because this was a LAWSUIT rather than an ADMINISTRATIVE PROCEEDING and for this reason, they could include a clean record provision in the settlement terms. I withdrew an EEO complaint in order to proceed with an instant lawsuit in District Court.

(To clarify, they can still clean my record if they admit fault - but they refuse.)

You're mistaken about the adjudicator. I was going to transfer to another federal agency but they decided they didn't want to wait for an investigation and because I had to check a box that there was a disciplinary action in my personnel file, they gave the job to their next choice. I left in September 2018, voluntarily, after accepting a job in the private sector.

The US Attorney's Office is refusing to accept my settlement agreement even though the defendant agency indicated multiple times IN WRITING that they agreed to my settlement requests. It's absolutely ridiculous and this will be a precedential case if the judge rules against our motion to enforce the settlement.
DroneBee  
#11 Posted : Monday, February 10, 2020 3:46:11 AM(UTC)

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Oh no! This is worse than you originally stated.

Originally Posted by: Small Agency Oversight Go to Quoted Post
The US Attorney's Office has rejected my settlement agreement. ...Their DOJ attorney in the MSPB case told my attorney that the agency would clean my record in DISTRICT COURT because this was a LAWSUIT rather than an ADMINISTRATIVE PROCEEDING and for this reason, they could include a clean record provision in the settlement terms. I withdrew an EEO complaint in order to proceed with an instant lawsuit in District Court.


You are confusing the two processes - the EEO and MSPB are administrative processes and the attorneys are from the Agency. Only DOJ attorneys go to real Court - once you leave the administrative process, it's a whole new ball game and nothing agreed upon in the administrative process holds. In short, you were duped.

Originally Posted by: Small Agency Oversight Go to Quoted Post
I was going to transfer to another federal agency but they decided they didn't want to wait for an investigation and because I had to check a box that there was a disciplinary action in my personnel file, they gave the job to their next choice. I left in September 2018, voluntarily, after accepting a job in the private sector.


I didn't know this - you are out and the Agency won.

Originally Posted by: Small Agency Oversight Go to Quoted Post
The US Attorney's Office is refusing to accept my settlement agreement even though the defendant agency indicated multiple times IN WRITING that they agreed to my settlement requests. It's absolutely ridiculous and this will be a precedential case if the judge rules against our motion to enforce the settlement.


No - you are incorrect. No settlement from the administrative process carries over to Court. New attorneys for the government (DOJ), new venue (Court), new everything. Sorry to be the one to tell you the truth, but you have to move on. You will not recoup your attorneys fees - just be happy you have a job and forget this - move on for the benefit of yourself. (Jesus was betrayed years before you - it's not something new.)

The EEO & MSPB processes are not processes - they are ways to kill the complainant - spiritually, physically, mentally, financially. The Agency doesn't care about Court - the DOJ will finish off the Complainant (if the Complainant gets that far). I've been through it all - I was totally duped that there was justice.

God Bless.

TheRealOrange  
#12 Posted : Monday, February 10, 2020 4:31:47 AM(UTC)
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Originally Posted by: DroneBee Go to Quoted Post
You are confusing the two processes - the EEO and MSPB are administrative processes and the attorneys are from the Agency. Only DOJ attorneys go to real Court - once you leave the administrative process, it's a whole new ball game and nothing agreed upon in the administrative process holds.

I have just one comment to address the language in bold. While it's true that executive agencies are generally required to use attorneys from DOJ/U.S. Attorney's Office, some agencies have independent litigating authority, and their court cases may or may not involve attorneys from DOJ/U.S. Attorney's Office. I used to go into "real Court" all the time, including to litigate EEO cases, and no DOJ/U.S. Attorney's Office attorneys were involved.
Small Agency Oversight  
#13 Posted : Monday, February 10, 2020 7:34:39 AM(UTC)
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Dronebee seems to be confused. The agency had a DOJ attorney assigned for my MSPB case. When I filed my EEO case, their DOJ attorney said they wanted a global settlement, and that they would be able to grant one in a LAWSUIT, since the executive order prohibits clean records in ADMINISTRATIVE proceedings (EEO and MSPB are ADMINISTRATIVE proceedings). I filed a LAWSUIT in District Court. At that time, the agency was assigned a SECOND attorney from the USAO.

We negotiated a settlement agreement with their counsel from USAO. USAO's supervisors nixed the settlement deal (because they did not want to agree to the clean record provision), which as far as we can tell is unprecedented. A judge in District Court will rule on my attorney's Motion to Enforce Settlement Agreement.

The agency did not win. They tanked my federal transfer through sheer incompetence and goofiness on the part of their counsel, not through malice, and were unable to settle because *I* insisted on a clean record when the executive order was issued after our first settlement agreement fell apart. They wanted me gone because they realized they could not do anything to me. They did not interfere with my attempts to find work, they gave me concessions so that I would accept the new job instead of staying, and they are giving me *everything* that I wanted in the settlement agreement. And their phone is ringing with inquiries from a Senator about why they won't just admit fault to clean my record and settle this out of court, now that the USAO is being ridiculous.

Don't get me wrong, it has completely sucked to be carrying around this level of credit card debt (defending this has cost ~40k) but I had great credit before so it's all been financed with like, 4% balance transfers between 0 interest cards. I also have a supportive spouse. This has been a terrible experience but many on this board have far worse. I have landed on my feet at a great company and am making more money. I am only fighting for the clean record because I don't want it to interfere with a federal opportunity in the future.
DroneBee  
#14 Posted : Thursday, February 13, 2020 2:28:44 AM(UTC)

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I stand corrected! Agencies do not have to use the DOJ attorneys for real court and the EEO process is fair and the "agency [does] not win." So, anyone who wants to submit an EEO, please do so! Submit two! It's a great process and all stand up for the whistleblower. There are no downfalls to submitting. The complainants win 99% of the time!

Oh, wait... that doesn't occur and the facts prove it. Even with all my advice - to not do so, but instead get a job elsewhere - my colleague submitted an EEO complaint and is now, yes, $50k in debt (at least), spending every weekend and night reading agency responses, etc. I've been through all of this - because I am a whistleblower. I never had a bad appraisal, was sent to all kinds of programs, received awards, etc. My issue? I just uncovered information that was damaging and tried to fix the problem for the benefit of the American people. If I had known the outcome, I would have NEVER have disclosed the damaging info, looked the other way, applied for any job at a different department, and high-tailed it out!

God Bless all!
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