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After issuing a 2009 notice of proposed rulemaking and receiving comments, the EEOC issued changes to federal regulations on July 25, 2012.  These modifications to the federal regulations impact the consideration of discrimination complaints filed by federal employees and applicants.  Significant modifications to 29 C.F.R. Part 1614 are discussed below.

Compliance

Federal executive agencies are required to identify and eliminate discriminatory practices and policies.  Under the recent modifications of 29 C.F.R. Part 1614, the EEOC will review agency programs for compliance with Civil Rights laws and the EEOC’s Management Directives.  If the EEOC determines that an agency’s EEO program is not in compliance, the EEOC will give the agency a reasonable opportunity to cure defects that have been found, provide a reasonable justification for its non-compliance, or establish that its program is in compliance.  If an agency fails to satisfy one of these criteria, a notice of non-compliance will be issued.  Under the rule, the EEOC Chair has discretion to determine whether a notice of non-compliance should be made public.

Pilot Projects

Under the new rule, the EEOC may allow agencies to conduct pilot programs for procedural complaint processing procedures that vary from the requirements of 29 C.F.R. Part 1614.  An approved pilot project can run for two years, and may be extended for an additional year if good cause is shown.

Notice of Rights

Under the EEOC regulations, an agency is required to complete its investigation and notify a complainant that he has the right to request a hearing (or an immediate final decision) within 180 days from the filing of the complaint.  The modified regulations now require that if the agency does not complete its investigation within 180 days, the agency must, within 180 days, issue a written notice to the complainant informing him that the agency has been unable to complete its investigation within the required time limits, and the agency must estimate and provide to complainant a date by which its investigation will be completed.  The notice must also inform the complainant that if he does not want to wait until the agency complete its investigation, he may instead request a hearing or file a civil action in an appropriate United States District Court.  The EEOC, in the explanatory preamble, makes clear that a full range of sanctions are available should an agency not complete its investigation within the required time period, and that these sanctions may be warranted even if the agency issues the required notice under the new final rule.

Retaliation

Under the new rule, the EEOC clarified that federal employees alleging discrimination in proposals to take personnel actions or other preliminary steps to taking personnel actions should be dismissed unless the complaint alleges that the proposal or preliminary step is retaliatory.  That is, challenges to proposals or preliminary steps are actionable if the federal employee alleges that the proposal or preliminary step was issued: (1) because the complainant had engaged in prior EEO activity; (2) because the complainant had opposed a practice which he believed violated one of the federal EEO laws; or (3) to dissuade the complainant, or a reasonable person in the complainant’s circumstances, from engaging in protected EEO activity.

Class Complaints

The EEOC’s final rules makes two significant changes to the class complaint process.  First, the final rule seeks to shorten the class certification process.  An appeal of the acceptance or dismissal of a class complaint will be processed by the EEOC within 90 days.  Second, the final rule makes an administrative judge’s decision on the merits of a class complaint a final decision, which the agency can fully implement or appeal in its final action.  If the agency does not fully implement the administrative judge’s decision, the agency may appeal the parts of the decision that it wishes to contest.

EEOC Process: Electronic Filing

Agencies are now required to submit appeals and compliant files to EEOC in a digital format.  Complainants are encouraged to submit their documentation electronically.

MD-110

In addition to the explicit changes to 29 C.F.R. Part 1614, the EEOC indicated that it will revise Management Directive 110 to provide additional guidance regarding the changes made by the final rule.  The EEOC will continue to review the federal sector EEO process in order to improve its quality and efficiency.

The Washington Post reported that, according to Congressional investigators, the Food and Drug Administration’s Chief Counsel’s office authorized the agency to secretly monitor the emails and online activity of FDA scientists who were potentially engaged in protected whistleblowing activity. Since January 2012, Sen. Charles E. Grassley and the Senate Judiciary Committee have been investigating the FDA’s recent admission that, beginning in 2010 it authorized the surveillance of employees’ government computers and even personal email accounts. The FDA has claimed it began the surveillance solely for the purpose of determining whether the scientists had improperly leaked confidential and trade secret protected information for a 2010 New York Times article about the FDA’s review procedures for medical imaging devices. In that article, the scientists took issue with FDA’s process, alleging that it led to the improper approval of devices which exposed patients to dangerous radiation. The FDA’s surveillance, conducted by a third-party contractor, cataloged the activity of dozens of employees, media outlets, and elected officials, including members of Congress. The contractor also collected protected communications between employees and their attorneys, as well as drafts of employee grievances and complaints, and disclosures made to members of Congress.

In addition to the Senate Judiciary Committee, the Office of Special Counsel has also been investigating the FDA’s surveillance efforts to determine whether FDA violated federal anti-whistleblowing laws.  Several of the scientists being monitored filed employee grievances and a federal lawsuit, and were either fired or passed over for promotions after the surveillance program began.  OSC made an initial determination that the employee’s grievances about whistleblowing warranted a full investigation.  OSC Special Counsel Carolyn Lerner issued a warning to federal agencies in June 2012, stating that while monitoring federal employee’s official government emails and computers is in some cases permitted, it violates the law if the intent of the surveillance is to retaliate against whistleblowers.  The White House re-issued OSC’s warning across the government, indicating there are limits on employee surveillance, particularly when protected whistleblowing activity is involved.

If you believe you have been retaliated for protected whistleblowing, contact Kator, Parks, and Weiser.  Our firm has experience protecting and defending the rights of federal employees.

Federal employees are protected from retaliation for protected whistleblowing activity.  But what evidence do you need to support a whistleblower retaliation case?  A recent decision by the Federal Circuit helps clarify what evidence should be reviewed.

What is Whistleblowing?

Whistleblowing means disclosing information that an employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

Whistleblower Protection Act

In 1989, Congress enacted the Whistleblower Protection Act, which, among other provisions, prohibits retaliation for whistleblowing.  See 5 U.S.C. § 2302(b)(8).  In order for an employee or applicant to prove retaliation for whistleblowing, the courts have employed a burden-shifting scheme, where the employee or applicant must prove by a preponderance of the evidence that he or she made a protected disclosure that was a contributing factor in the personnel action threatened, taken, or not taken against the employee or applicant.  If the employee or applicant is able to establish that the protected disclosure was a contributing factor, the Merit Systems Protection Board (“MSPB”) will order corrective action unless the agency can demonstrate by clear and convincing evidence that it would have taken “the same personnel action in the absence of such disclosure.”  5 U.S.C. § 1221(e).  The clear and convincing standard of proof is higher than the preponderance of the evidence standard.

Under Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), the MSPB must weigh three factors in making a determination whether an agency has met the clear and convincing standard of proof: (1) the strength of the agency’s evidence in support of its personnel action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers.

Whitmore Decision

In a recent case, the United States Court of Appeals for the Federal Circuit, the court stated that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.”  Whitmore v. Department of Labor, No. 2011-2084 (Fed. Cir. May 30, 2012).

In Whitmore, the Federal Circuit reviewed an appeal from a former employee who challenged the Department of Labor’s decision to remove him for his allegedly disruptive and insubordinate behavior.  The MSPB affirmed the agency’s removal decision, and held that the employee did not prove his affirmative defense that the removal constituted unlawful retaliation for making protected disclosures.  The Federal Circuit reversed the MSPB decision, and remanded the case for further fact finding.

The court stated that the MSPB excluded or ignored evidence offered by the employee that was necessary to adjudicate his claim of whistleblower retaliation.  Specifically, the MSPB failed to evaluate all the relevant evidence in the aggregate, as the MSPB focused solely on the evidence that supported the agency’s removal decision.  The court also found that the MSPB erred when it excluded witnesses from the hearing who could have supported the employee’s claim of whistleblower reprisal.  And the court found the MSPB’s interpretation of “similarly situated” employees who were not whistleblowers to be unduly restrictive, as the required degree of similarity between employees cannot be read so strictly that the only evidence helpful to the inquiry is completely disregarded.

The court reaffirmed the vital role that whistleblowers play in society and the critical need to protect them:

“Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate.  Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation.”

The attorneys at Kator, Parks & Weiser have extensive expertise in representing federal employees who allege retaliation for making protected whistleblowing disclosures.  Contact us today for a free consultation.