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On April 9, 2012, Michael Kator, Chair of KPW’s appellate practice section, argued a highly anticipated case that will help determine the legal requirements for discrimination claims.  KPW represents Jorge Ponce, a federal employee who claims to have been discriminated against because of his race when he was not selected for a position at the Library of Congress.  At trial, the District Court for the District of Columbia informed the jury that it could not rule in Mr. Ponce’s favor unless he showed that the illegal discrimination was the “sole” reason for the selection decision.  On appeal, KPW argues that the court’s jury instruction was in error, as it is inconsistent with the anti-discrimination laws and Supreme Court precedent.  KPW was supported by amicus briefs filed by the AARP and the Metropolitan Washington Employment Lawyers Association.

If you have a discrimination case that is on appeal or may be appealed, contact KPW by clicking here for a free consultation.

The law protects federal employees or job applicants from discrimination on the basis of race, color, national origin, gender, religion, pregnancy, age (40 or older), disability or genetic information. The law also protects federal employees from retaliation if they oppose employment discrimination, file a complaint of discrimination, or participate in the EEO complaint process in any way.  However, if you wish to file a discrimination complaint, you must act quickly to preserve your rights.

The first step in preserving your rights is to contact an EEO Counselor at your federal agency.  Finding an EEO Counselor at the federal agency should be relatively easy. Most federal agencies have posters and information on their web sites about how to contact an EEO Counselor.  Some agencies have centralized their EEO counseling, and provide a toll-free number by which to contact an EEO Counselor. If you cannot figure out how to locate an EEO Counselor, call the office at the Agency’s headquarters that is responsible for administering the Agency’s EEO complaints program.  The office may be called the Office of Equal Employment Opportunity, the Office of Civil Rights, or some variation.

Generally, you are required to contact the EEO Counselor within 45 calendar days of the date that the discrimination occurred. For example, if you learn that you were not selected for a job, and believe that your non-selection was due to discrimination, you should contact an EEO counselor within 45 calendar days of learning of the non-selection.  There are some narrow exceptions that would allow an EEO complaint to go forward even when an EEO counselor is contacted more than 45 days after the discrimination occurred.

Once you have contacted an EEO counselor, the counselor should interview you to discuss the particulars of your complaint of discrimination.  A counselor is not supposed to dissuade you from filing an EEO complaint.   A counselor is supposed to advise you about the EEO complaint process, and also explain the agency’s alternative dispute resolution (ADR) program. The EEO Counselor should explain that if the ADR program is available, you can choose whether to seek resolution of your discrimination complaint through the ADR process or through the traditional EEO counseling process. The EEO Counselor should also determine what claims you might have (i.e., non-selection, hostile working environment/harassment, denial of award, etc), and what bases of discrimination you have raised (i.e., gender, race, age, etc). The EEO Counselor should discuss with you issues relating to the timeliness of your EEO Counselor contact, but should not decline to meet with you if the counselor thinks you are late in contacting a counselor.  The counselor should also try to achieve a resolution of your complaint. If resolution is unsuccessful at this early stage, the counselor is supposed to advise you of your right to file a formal EEO complaint. You must meet all applicable deadlines in order to proceed in your EEO complaint.  Last, the counselor is supposed to prepare a report documenting all of the work that the counselor did during the EEO counseling process, and to discuss any jurisdictional questions, such as timeliness, that arise.

Although many employees and job applicants proceed through EEO counseling without contacting an attorney, we urge you to do so as soon as you suspect that you have been discriminated against.  Although the EEO Counselor is supposed to help frame your complaint accurately, we have seen many instances where the EEO Counselor does not correctly capture all of the issues that you have raised at the counseling stage.  In addition, although the EEO Counselor may suggest a potential settlement of your informal complaint, the EEO Counselor is not your advocate. To be able to fully explore the pros and cons of your case, and evaluate whether an early resolution is acceptable to you, you may wish to have your case evaluated by an attorney.

The attorneys at Kator, Parks & Weiser have extensive experience in representing federal employees at the earliest stages of discrimination complaints.  Indeed, we prefer to hear from you as soon as you suspect that you have been discriminated or retaliated against.  If we undertake representation of you at this early stage, we can help you cast your complaint in the most advantageous light, assist you in evaluating any early settlement offers, advocate for you in the early EEO counseling stage, and help you decide whether to proceed with formal EEO counseling or ADR.  In addition, we can also evaluate whether there are any exceptions that would excuse you from contacting an EEO counselor within 45 days of the occurrence of the discrimination.

Contact us today for a free consultation by clicking here.

Something discriminatory has happened to you in the federal workplace, and you don’t know whether to file an EEO complaint or a grievance about the matter.  Here are some things to consider in making the decision about which route to choose.

Under the EEOC’s regulations, a federal employee may file either an EEO complaint or a grievance under the negotiated grievance procedure about a discriminatory action.  However, an employee cannot file both an EEO complaint and a grievance about the same action.  For instance, once an employee chooses to file grievance on an action, the employee cannot also file an EEO complaint about the same matter.  Similarly, once an employee files a formal written EEO complaint about an action, the employee may not file a grievance about the same matter.   This is called an election of remedies—an employee must choose which route he or she would like to take to challenge the discriminatory action.  Further, withdrawing a grievance that has already been filed under the negotiated grievance procedure does not negate the election of remedies.  As such, an employee may not file a grievance, then withdraw the grievance and file an EEO complaint.   This rule is contained at 29 C.F.R. § 1614.301.

This “election of remedies” rule does not apply to certain federal employees, such as employees of the United States Postal Service.  USPS employees may file both a grievance and an EEO complaint about the same action.  See Strickland v. U.S.P.S., EEOC Appeal No. 01974724, Agency No. 1-H-342-1236-95 (Sept. 2, 1998).  Also, the “election of remedies” rule only applies to negotiated grievance procedures.  It does not apply to administrative grievance procedures established by an agency.

Before deciding which challenge to file to discriminatory activity, contact Kator, Parks & Weiser for a free consultation.