Author Archive for Allison B. Eddy

Security Clearances in Federal Employment

Many federal government employees are required to hold or be eligible to hold security clearances due to the nature of their work.  In the federal government, security clearances add an additional layer of complication to workplace requirements, and when employees are faced with an allegation that may affect their continued ability to hold a security clearance, lots of questions and confusion are bound to arise.

For Department of Defense employees, the Department of Defense Consolidated Adjudication Facility (DoDCAF) is primarily responsible for issuing security clearances to employees.  In making security clearance determinations, the DoDCAF relies upon certain adjudicative guidelines pertaining to certain types of behavior that may give rise to a concern about a person’s ability to hold a security clearance.  The adjudicative guidelines include Personal Conduct, Financial Considerations, Alcohol Consumption, Drug Involvement, Criminal Conduct, and a number of other items.  If the DoDCAF determines that one or more adjudicative guidelines may be applicable to a certain employee or applicant, the DoDCAF will issue a “Letter of Intent” to revoke or deny the person’s security clearance eligibility.  Every Letter of Intent includes a “Statement of Reasons” specifying the adjudicative guidelines that are called into question and the facts giving rise to the Letter of Intent.  The employee is then given the opportunity to respond in writing to the Letter of Intent by explaining any and all mitigating conditions and providing relevant documentation to support a finding that any security concern has been sufficiently mitigated.

If the DoDCAF ultimately decides to revoke or deny a person’s security clearance eligibility, the person will typically be able to elect to proceed to a personal appearance before an Administrative Judge who works for the Defense Office of Hearings and Appeals (DOHA).  The assigned Administrative Judge will then conduct a hearing and render a recommendation to the DoD Personnel Security Appeals Board (PSAB), which will then make a final determination regarding the person’s eligibility to hold a security clearance.

It is important to take the security clearance process very seriously from start to finish, as an employee’s ability to hold a security clearance is often a condition of their employment.  If the DoDCAF issues a final decision ultimately revoking or denying an employee’s security clearance eligibility, such a decision can lead to adverse action procedures within that employee’s federal employment.

If you have been issued a Letter of Intent to revoke or deny your security clearance eligibility and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

The Golden Rule: “Obey Now, Grieve Later”

It can be difficult to follow an instruction from a supervisor that an employee strongly believes is incorrect, unwarranted, or not applicable to the duties of his or her assigned position. However, for federal government employees, it is usually best to follow the adage, “Obey now, grieve later.” If a federal government employee does not follow an instruction, direction, or order of a supervisor in his or her chain of command, that employee can be subjected to possible disciplinary action. Charges such as “insubordination,” “failure to follow a direct order,” and “failure to follow instructions” are common charges levied on federal government employees in disciplinary proceedings based on allegations that the employee refused to follow a supervisor’s instruction. Even if the basis for the supervisor’s instruction was completely meritless, an employee can still be subject to discipline for not following the supervisor’s instruction. See AFGE, Local 1367 and Lackland Air Force Base (Fed. Arb. 01/26/2011) (arbitration decision upholding a five-day suspension against an employee who did not follow his supervisor’s instructions due to his belief that the instructions were not in accordance with the collective bargaining agreement or past practices).

Even though employees should not typically refuse to obey instructions, an employee usually can express dissent, in a professional manner, with the instruction and not be subjected to discipline so long as the employee still obeys the instruction. For instance, if a supervisor assigns an employee a work task that would typically be handled by an employee at a higher grade level, the assigned employee may express to the supervisor her belief that the assigned work task is outside of her position description. As long as the employee does not refuse to perform the work task, she should not be disciplined simply for advising the supervisor of her belief.

An exception to the “obey now, grieve later” rule exists with regards to instructions that, if followed, could result in irreparable harm such as imminent physical danger. See Larson v. Dep’t of Army, 91 MSPR 511 (MSPB 2002). However, the vast majority of instructions issued by supervisors are not the kinds of instructions that would lead to irreparable harm. In those instances in which the employee does not have a reasonable safety concern, the “obey now, grieve later” doctrine will typically apply.

Following an instruction that seems wasteful, wrong, or outside the scope of the assigned employee’s duties can understandably be frustrating. However, if an employee follows the “Obey Now, Grieve Later” rule of thumb, the negative consequences are more likely to fall upon the employing Agency instead of the employee. For example, if a supervisor were to instruct an employee to work overtime without corresponding compensation, this can lead to a grievance to recoup the back pay the employee deserves for working the overtime. If an employee is instructed to use annual leave in order to meet with a Union steward when the employee should have been carried in an “official time” status for the meeting, a grievance can be filed to reimburse the employee for the annual leave used. Therefore, in nearly every circumstance, an employee is much better off following the “obey now, grieve later” rule than risking potential discipline for refusing to follow an instruction.

If you have an employment matter and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

MSPB Reverses Five-Year Enforced Leave Suspension

Although the Merit Systems Protection Board (MSPB or Board) is currently suffering from a lack of quorum and resulting inability to issue new decisions (Read the Press Release about the lack of quorum Here), the Board appears to have been very busy during the holiday season issuing decisions prior to the departure of MSPB Chairman Susan Tsui Grundmann.

In one Nonprecedential Final Order from the Board, issued December 20, 2016, the MSPB reversed the enforced leave suspension of a postal employee who had been placed in an enforced leave suspension status nearly five (5) years earlier. The Appellant, represented by Bonney, Allenberg, & O’Reilly, P.C. for the entire five (5) year process, had been placed on enforced leave and effectively prohibited from working starting at the beginning of 2012. The Agency’s argument for placing the employee on enforced leave was because the Agency believed the employee’s medical restrictions did not permit her to work any more than six (6) hours per day.

The employee filed an appeal to the MSPB Washington Regional Office in 2012 based on her placement on enforced leave, but the appeal was dismissed by an Administrative Judge for lack of jurisdiction. After further appeal (called a “Petition for Review”) to the full Board, the MSPB issued a decision remanding the appeal back to the Washington Regional Office and finding that the employee’s placement on enforced leave constituted a suspension status over which the MSPB had jurisdiction. Abbott v. U.S. Postal Service, 121 MSPR 294 (2014). This decision was discussed in a Prior Blog Post.

On remand, the Administrative Judge affirmed the Agency’s suspension action, and a second Petition for Review was filed with the MSPB. Finally, after nearly five (5) years of litigation, the Board agreed that the Agency’s placement of the employee on enforced leave was not supported by the evidence. While the Agency had argued that the employee’s medical restrictions did not permit her to work an 8-hour day, the Board pointed out that the Agency disregarded information from the employee’s doctor to the contrary. The MSPB therefore reversed the enforced leave suspension action “because the agency did not prove by preponderant evidence that the appellant could only work a 6-hour day.” Abbott v. U.S. Postal Service, DC-0752-12-0366-B-1 (Nonprecedential), at ¶19. Read the Full Final Order Here.

If you feel you have been subjected to an unwarranted personnel action and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND CASE RESULTS FROM ONE CASE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE. 

Reasonable Accommodation in the Workplace

The phrase “reasonable accommodation” tends to be something many employees have heard before, but its meaning is not always clear.

Reasonable accommodation requests can arise in two different types of situations: (1) When an employee or job applicant suffers from a physical or mental disability and requires certain adjustments to the work environment to accommodate that disability; or (2) When an employee or job applicant’s sincerely-held religious beliefs and/or practice require an adjustment to certain working conditions in order to accommodate the individual’s religious beliefs and/or practice.

In disability cases, the employer is permitted to ask questions and seek supporting medical documentation to clarify the individual’s disabling medical condition and the requested reasonable accommodation. This is part of the interactive process, which an employer is required to partake in upon receiving a reasonable accommodation request. If the employee or applicant fails or refuses to provide the requested medical information, it is easier for the employer to deny the accommodation request without fear of negative repercussions. Therefore, if a certain type of accommodation is needed in order for the employee or applicant to be able to accomplish the essential functions of his or her job, it is very important to provide the employer with the medical information requested, so long as the medical information sought by the employer is reasonably connected to the particular disability and accommodation request in question.

Religious accommodation cases are slightly different, as the EEOC generally recommends that because the definition of religion is so broad, employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. EEOC Compliance Manual, Section 12: Religious Discrimination (https://www.eeoc.gov/policy/docs/religion.html). The interactive process in religious accommodation cases therefore tends to be less cumbersome than in disability accommodation cases. However, if the individual seeking the accommodation has behaved in a way that is markedly inconsistent with his or her professed religious belief, or if the particular accommodation sought appears to be beneficial to the individual for purely secular reasons, this might give rise to the employer questioning whether the individual really holds the professed sincerely-held religious belief and whether the requested religious accommodation is truly necessary.

Once the employee or applicant establishes that an accommodation is necessary for him or her to be able to carry out the essential functions of the position, the employer will typically only be allowed to completely deny providing reasonable accommodation where the reasonable accommodation will cause an undue burden to the employer. Assessing whether an accommodation is unduly burdensome typically becomes an economic question, and the EEOC will explore how costly the accommodation would be to the employer in reaching a conclusion as to whether or not the denied accommodation was unduly burdensome.

One area of contention in reasonable accommodation cases tends to be the type of accommodation ultimately granted to an employee or applicant. While qualified individuals have the right to request and secure reasonable accommodation so long as it is not an undue burden to the employer, oftentimes the reasonable accommodation granted to an employee is not necessarily the same accommodation that was requested by the employee. For instance, a disabled employee who seeks telework as a reasonable accommodation to accommodate a disability that affects his ability to drive might be alternatively granted an accommodation whereby the employer allows him a flexible starting and/or ending time for work that coincides with public transit or available carpool schedules. Similarly, if an employee whose position requires her to be on-call on weekends seeks a religious accommodation that permits her to have every Sunday off for religious service, but the religious service she attends is over by 1:00 p.m., she may be granted an accommodation whereby she is not on call for the specific period of time in which she attends religious services rather than for the entire day.

The EEOC’s website contains a significant amount of guidance regarding reasonable accommodations for disabilities and for religious reasons. For example, see EEOC Compliance Manual, Section 12: Religious Discrimination (https://www.eeoc.gov/policy/docs/religion.html), and the EEOC website’s overview of Disability Discrimination (https://www.eeoc.gov/laws/types/disability.cfm). Additionally, the Job Accommodation Network (JAN) (www.askjan.org) can be a terrific resource for employees with disabilities to explore and discover potential accommodations that may help them to be able to accomplish their essential job functions.

If you are seeking or have been denied a reasonable accommodation from the federal government and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

Proposed Disciplinary Action Proceedings in Federal Employment

 Sometimes, a federal government employee will find himself or herself in the unfortunate situation of receiving a proposed disciplinary action. For most tenured civil service employees, no discipline affecting the employee’s pay may be issued without first providing the employee with notice of a proposed disciplinary action and an opportunity to respond to the proposal.

The law firm of Bonney, Allenberg & O’Reilly regularly represents individuals in replying to proposed disciplinary actions. If you are issued a proposed disciplinary action and would like to consult with an attorney, you should schedule a legal consultation immediately, as most proposed disciplinary actions set out a very short reply period.

Most proposed disciplinary actions also provide information about who to contact to request an extension for purposes of replying to the proposal, and who to contact to request documentation relied upon in proposing disciplinary action. Employees faced with proposed disciplinary actions should always request all of the materials being relied upon in the disciplinary proceeding, although if you are represented by counsel, this is something to discuss with your attorney. In order to be able to fully reply to the proposal, you should have access to all of the information being used against you. While this may seem like common sense, all too often, employees do not exercise the full extent of their rights, and either do not reply at all to the proposal, or do not request to review the materials being relied upon for the proposed disciplinary action.

Just because a certain type of disciplinary action is proposed does not necessarily mean that particular disciplinary action will be imposed. The employee’s right to reply is a very important component of the disciplinary process in federal employment. It should be taken very seriously both by the employee replying to the proposed discipline and by the deciding official who will ultimately make a decision as to what, if any, disciplinary action will be imposed.

A decision on the proposed disciplinary action is typically issued in writing and mailed, e-mailed, or hand-delivered directly to the employee. If the decision being issued upholds the charge and imposes disciplinary action, the decision letter should provide notice to the employee of his or her appeal and/or grievance rights.

Every case is different, and for most people in their probationary periods, the employing Agency is not usually required to issue a proposal and offer the employee the opportunity to respond. Additionally, the Agency’s requirements tend to be different for Non-Appropriated Fund (NAF) employees, whose employment status does not normally entitle them to an appeal before the Merit Systems Protection Board (MSPB) in the event they are faced with a major adverse action.

If you have received a proposed disciplinary action and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

 

Arbitration Award for Air Reserve Technician (ART) Bargaining Unit Employees of NAIL Local 7

In National Association of Independent Labor (NAIL), Local 7 and U.S. Department of the Air Force, 4th Fighter Wing, Seymour Johnson Air Force Base, North Carolina, FMCS No. 16-51813 (August 11, 2016), the National Association of Independent Labor (NAIL), represented at arbitration by Bonney, Allenberg & O’Reilly, P.C., received an arbitration award that prevents the Air Force from requiring that Air Reserve Technicians (ARTs) wear their military uniforms while in civilian employment status.  The arbitration decision found the Air Force’s requirement that the ARTs wear their military uniforms while in civilian employment status to be contrary to 10 U.S.C. Section 772.  Arbitrator Ellen Saltzman wrote, in part, that the Agency was to “immediately cease and desist requiring ARTs to wear a military uniform while working in their civilian job.”  The full text of the arbitration award can be read by clicking on the following link: NAIL, Local 7 and U.S. Dep’t of Air Force, 4th Fighter Wing, SJAFB, FMCS No. 16-51813 (August 11, 2016).

If you are a federal government employee in need of legal representation and would like to discuss your situation with an attorney from our office, please call the law firm of Bonney, Allenberg & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.  CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND CASE RESULTS FROM ONE CASE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE. 

Retaliatory Reassignments: Where an employee is involuntarily moved or reassigned because he or she engaged in protected EEO activity, the Agency’s action may be viewed as retaliation.

Many federal government employees who have engaged in the EEO process know all too well that EEO activity may be received negatively by their chain of command. Most federal government employees who engage in the EEO process are also aware that they have the right to file an EEO complaint based on retaliation in the event they feel their management has taken a materially adverse action against them because of their EEO activity. One form of retaliation may be an involuntary reassignment to a different position, schedule, or work location. When reassigning an employee who has engaged in protected EEO activity, managers will often use the rationale that they are reassigning the employee away from whatever co-worker or supervisor was named in the employee’s EEO complaint as a way of “protecting” that employee. In reality, these types of involuntary reassignments may be viewed as punitive in nature, especially where the employee who engaged in EEO activity is moved to a less desirable work location or given less desirable duties.

Even if an Agency claims that a reassignment of an employee is intended to protect the employee rather than retaliate against the employee for having filed an EEO complaint, the involuntarily reassigned employee may have a viable EEO complaint that the reassignment was actually based on retaliation for the employee’s protected EEO activity. In Moore v. Department of Education, EEOC Appeal No. 0120111258 (August 15, 2013), the Complainant was detailed to an undesirable work assignment after filing an EEO complaint alleging, in part, sexual harassment. The Complainant’s third-level supervisor stated that after being informed of the EEO complaint, the Complainant was reassigned to “protect her” in the event her allegations of sexual harassment proved to be true. The EEOC found that detailing Complainant was not appropriate corrective action for the sexual harassment she suffered, explaining “that a complainant should not be involuntarily transferred or otherwise burdened, because such measures could constitute unlawful retaliation.” The EEOC concluded that the Complainant’s transfer in that particular case “was due to retaliation for Complainant’s claims of sexual harassment.”

Similarly, in Abrigo v. Department of Homeland Security, EEOC Appeal No. 0120064230 (September 15, 2008) (which was cited in the Moore decision), the Agency changed the Complainant’s schedule “to protect” her while investigating her sexual harassment claims. Even though the EEOC affirmed a finding of no discrimination as to the sexual harassment claims, the EEOC found that the subsequent schedule change was retaliatory. The EEOC concluded that the Agency failed to articulate a legitimate nondiscriminatory rationale for the schedule change, holding “that the undisputed record supports the finding that the agency engaged in reprisal toward complainant on the basis of her prior protected EEO activity when it changed her schedule.”

If you feel you have been subjected to retaliation for engaging in protected EEO activity and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

A Suspension By Another Name Is Still A Suspension

Sometimes, federal agencies will place an employee out of work without pay against the will of the employee. This happens primarily in situations where the employee has been suspended from work for any host of reasons, usually involving some finding of misconduct by the employer. In the federal government, most civil service employees cannot be suspended unless and until they are provided with due process – namely, written notice of a proposed disciplinary action and an opportunity to respond orally and in writing to that proposed disciplinary action.

However, in some circumstances, the employing agency will effectively suspend an employee by placing him or her out of work without pay, but will not call the action a “suspension.” When an Agency makes an employee choose between using her paid leave or being carried in a Leave Without Pay (LWOP) or Absent Without Leave (AWOL) status, it is called “enforced leave.”

In Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987), the U.S. Court of Appeals for the Federal Circuit held that an agency placing an employee on enforced leave due to a medical condition constituted an appealable suspension of more than fourteen (14) days. More recently, in Abbott v. U.S. Postal Service, 121 MSPR 294 (2014), the Merit Systems Protection Board (MSPB) confirmed the longstanding ruling from Pittman that an agency’s placement of an employee on enforced leave for more than 14 days constitutes a suspension that can be appealed to the MSPB.

Even more recently, in Martin v. U.S. Postal Service, 2016 MSPB 6 (2016), the Postal Service placed an employee in a Leave Without Pay (LWOP) status without her consent for a retroactive period of time, which the MSPB found to be an appealable suspension action. Because the Agency had never given the employee notice of a proposed suspension and an opportunity to respond, the MSPB reversed the LWOP status entirely by finding that the Agency suspended the employee without due process.

In cases like Abbott and Martin, the employing agency did not necessarily refer to the employment actions it took against those employees as being “suspensions,” but the MSPB still found that the Agency had effectively suspended the employees, requiring the Agency to carry the same burden of proof and provide the same due process guarantees as are required in any other suspension of greater than 14 days. (Suspensions for 14 days or less are typically not appealable to the MSPB.)

If you have been involuntarily placed out of work without pay and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

EEO Investigations, Part 2 of 2: Think About the End Before You Amend When it Comes to EEO Complaints

Any time a federal government worker is thinking about filing an EEO complaint, some of the most significant considerations involve the potential relief or remedy you could receive if you are successful in your EEO complaint.  Two of the most important questions to ask yourself are: (1) What do I want to happen as a result of my EEO complaint? and (2) What relief am I likely to get if I succeed in my EEO complaint?  An attorney specializing in federal employment law can likely assist with the second question, but only you can answer the first question.  If you have already become involved in the EEO complaint process and are considering filing an amendment to your EEO complaint based on subsequent discrimination against you, it is important to once again consider these two questions.

When trapped in a difficult work environment, it may seem like second nature for a federal employee to pick up the phone and call the EEO office whenever a possible discriminatory act is taken against them.  Federal employees certainly have the right to file EEO complaints when they feel that have been subjected to unlawful discrimination, and the EEOC takes the prohibition against reprisal for engaging in EEO activity very seriously.  However, it is important to consider your ultimate potential relief for each issue prior to amending an existing EEO complaint.

Within the federal government, EEO contact must be made within 45 calendar days of the discriminatory action, even if you already have an ongoing EEO complaint as to a previous matter.  If you have previously initiated EEO contact based on discrimination, and a subsequent discriminatory action is taken against you, you have the right to seek to amend your EEO complaint to include the subsequent discriminatory action.

In some cases, the employee is left with virtually no choice but to amend his or her EEO complaint.  As an example: an employee files an EEO complaint based on a discriminatory performance appraisal, and, while her EEO complaint is being investigated, she is subsequently reassigned to undesirable duties outside of her position description. If the employee (the “complainant”) amends her EEO complaint to include the issue of being tasked with undesirable duties, she will be able to request to have the reassignment canceled or reversed as potential relief through a successful EEO complaint.  By amending her complaint during the investigation stage, the complainant typically implicitly agrees to extend the timeframe to have her EEO complaint investigated.  Normally, the Agency is allowed 180 days after the date of the Complainant’s formal complaint of discrimination to investigate the complaint (see Part 1 for a discussion of the 180-day investigation timeframe).  However, if a Complainant amends her complaint, the Agency is typically afforded an additional 180 days after the date of the amendment to complete its investigation.  Specifically, when an amendment is filed, the Agency is required to complete the investigation within the earlier of 180 days after the filing of the last amendment or not later than 360 days after the filing of the original formal complaint of discrimination.  Amendments can therefore lead to delays in the EEO process by allowing the Agency more time to investigate.

For some people and in some situations, being able to amend their EEO complaints to include a subsequent discriminatory action is worth the extended investigation period.  In the example of the complainant who was subjected to the undesirable reassignment, if she did not amend her EEO complaint, she would not have the right to seek a reversal of the reassignment as part of her relief through the EEO process.  However, in a case where the subsequent discriminatory actions are not as egregious, there may be limited additional relief that can be awarded, or no additional relief at all, if the EEO complaint is amended.  It is therefore important to think seriously about what your additional relief may be when deciding whether to amend your EEO complaint to include a new issue.  If your ultimate decision is to amend your EEO complaint based on a new discriminatory incident, make sure to file the amendment within 45 calendar days of that new discriminatory incident.

If you are engaged in EEO activity, are considering filing an EEO complaint, or are considering filing an amendment to an existing EEO complaint and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

EEO Investigations, Part 1 of 2: Keep the Agency Accountable for 180-day Investigations in EEO Cases

In EEO cases filed against federal government agencies, the EEOC allows for a 180-day investigation period starting from the date the complainant files his or her formal complaint of discrimination.  Specifically, the 180-day timeframe is set out in the EEOC’s Management Directive 110 (MD-110), which sets out policies, procedures, and guidance for federal sector discrimination complaints.  The MD-110 was recently revised, but still maintains the same 180-day timeframe in which to conduct the investigation into formal complaints of discrimination against federal agencies.

The MD-110 explains, “Agencies are responsible for conducting an appropriate investigation of complaints filed against them.”  This means that when a federal employee or applicant files a formal complaint of discrimination against a particular government agency, that agency is responsible for conducting and completing the investigation of the discrimination complaint.  Once the investigation has been completed, or once 180 days have passed since the complainant filed his or her formal discrimination complaint, the complainant then has the opportunity to request a hearing before an EEOC Administrative Judge.

The MD-110 obligates the responsible Agency to complete the investigation with 180 days of the formal complaint being filed.  The 180-day timeframe can be extended by up to 90 days if the complainant agrees to such an extension.  The 180-day timeframe can also be extended by up to an additional 180 days in the event the complainant files an amendment to his or her complaint during the investigation phase (see Part 2 for a discussion of EEO amendments).  If an Agency fails to meet its deadline to complete the investigation, once a hearing request is filed and an Administrative Judge is assigned to the case, the Judge can potentially order sanctions against the Agency for failing to timely complete the investigation.  Sanctions can range in severity, and in a number of cases, EEOC Administrative Judges and the EEOC itself have found the most severe form of sanction – a default judgment in the complainant’s favor – to be warranted against the Agency.

In an attempt to avoid potentially severe sanctions, agencies often will request that complainants agree to extend the investigative period.  While every case is different, in many circumstances, it does not benefit the complainant to agree to an extension.  When (1) the complainant does not agree to the investigation, (2) no amendment has been filed during the applicable time frame (see Part 2 for a discussion of EEO amendments), and (3) the Agency still does not complete the investigation within the allotted 180 days, the complainant may be able to make a motion for the EEOC Administrative Judge to impose sanctions against the Agency for the untimely investigation.

If you have questions about the federal sector EEO complaint process that you would like to address with one of our attorneys, please call the law firm of Bonney, Allenberg& O’Reilly, P.C., to schedule an initial consultation.