Image of DC Circuit Decision Highlights Procedural Complexity of Federal Employee Whistleblower Retaliation and Discrimination Claims

DC Circuit Decision Highlights Procedural Complexity of Federal Employee Whistleblower Retaliation and Discrimination Claims

The DC Circuit’s recent decision in  Schlottman v. Perez underscores the procedural complexity of federal sector employment litigation and the importance of meeting the short deadlines required to perfect EEO rights.  Despite filing claims at the U.S. Office of Special Counsel and the Merit Systems Protection Board and pursuing EEO counseling, Schlottman ultimately was unable to prosecute his Title VII claim.  This post summarizes the procedural history of the cases and the D.C. Circuit’s holding, and offers some lessons learned for federal employees pursuing discrimination or whistleblower retaliation complaints.

In July 2008, Schlottman, a probationary employee at the Department of Labor (DOL) embarked on his journey through the labyrinth of the federal sector EEO process by filing a whistleblower retaliation complaint with OSC.   Four days later, Schlottman initiated the EEO route by contacting an EEO counselor.  Shortly after OSC dismissed his complaint, the EEO counselor notified Schlottman of his right to file a formal EEO complaint within fifteen days.   Schlottman did not file a formal EEO complaint within the fifteen-day deadline, but filed an individual right of action appeal (IRA) with the MSPB in which he alleged whistleblower retaliation, retaliation in violation of Title VII, and discrimination based on marital status and political affiliation.

The MSPB dismissed Schlottman’s IRA for lack of jurisdiction, and he did not appeal the decision.  Schlottman then returned to the EEO route and filed a formal EEO complaint (after the expiration of the 15-day right-to-file notice).   DOL dismissed the appeal as untimely and Schlottman then filed a Title VII action in district court.   The district judge dismissed the appeal on the ground that Schlottman’s individual right of action appeal did not qualify as a “mixed case” complaint.   A mixed case complaint consists of an employee alleging that a personnel action appealable to the MSPB was based on discrimination.

On appeal, the D.C. Circuit held that Schlottman’s EEO claim as untimely because he filed it after the 15-day deadline.  If he had filed a formal EEO complaint with the MSPB within the 15-day deadline, his complaint would have been deemed timely filed under the 5 USC 7702(f) savings clause.

Right of Probationary Employee to Challenge Removal

Schlottman is a helpful reminder of the three avenues available to a probationary employee to challenge or appeal a removal action:

(1)   File an EEO complaint with the agency EEO office at the employing agency.  At the conclusion of the EEO counseling process, the employee will receive a Notice of Final Interview informing the employee of the right to file a formal complaint.  The employee has just 15 days from receipt of the notice to file a formal complaint with the agency.

(2)  If the employee is alleging both Title VII discrimination and marital status or political affiliation discrimination, the employee can file an appeal with the MSPB within thirty days of the effective date of termination.  Note that an employee may not file both a mixed case appeal at the MSPB (alleging that an appealable agency action was effected, in whole or in part, because of discrimination) and a mixed case complaint at an agency EEO office simultaneously.  Whichever claim is filed first is deemed an election to proceed in that forum.

(3)  File a Whistleblower Protection Act complaint with the OSC.  If OSC does not seek corrective action within 120 days of the filing of the complaint; or 2) if OSC closes its investigation of the complaint, the complainant can file an individual right of action (IRA) appeal at the MSPB.  Note that an IRA appeal must be filed 65 days from the date of the written notice from OSC, or 60 days from the date of receipt of the notice, to file an IRA appeal.

Resources Available to Federal Employees to Help Navigate the Procedural Labyrinth

A federal employee who has suffered discrimination or retaliation should carefully consider the options available to seek relief and develop a strategy that will maximize the employee’s recovery.  Fortunately, the agencies that investigate and adjudicate federal sector employment matters have published FAQs and other useful materials.

U.S. Office of Special Counsel

The Office of Special Counsel’s website contains a short pamphlet explaining whistleblower protections and rights , and OSC recently published a summary of federal whistleblower protections, which includes a discussion of key procedural issues in Whistleblower Protection Act cases.

Equal Employment Opportunity Commission

The EEOC has published a concise overview the federal sector EEO complaint process  and tips for contacting an EEO counselor  and filing a formal EEO complaint.  Also, EEOC Management Directive 110  describes the procedures governing the processing of federal employee discrimination complaints.

Merit Systems Protection Board

The MSPB’s website has several helpful FAQs, including a guide to MSPB appeals  and questions and answers about whistleblower appeals.

Guide to the Whistleblower Protection Act

Whistleblower attorneys Eric Bachman and Jason Zuckerman, former senior officials at the U.S. Office of Special Counsel, have released a guide for federal employee whistleblowers titled The Whistleblower Protection Act: Empowering Federal Employees to Root Out Waste, Fraud and Abuse and is available for download by clicking here.whistleblower protection act This guide was edited by lawyers for federal employees. The goal of the guide is to inform federal employees about the whistleblower rights and protections available under the Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act and the Follow the Rules Act.

Drawing on their experience enforcing the WPA at OSC and representing whistleblowers in private practice,  the guide provides an overview of the WPA and offers practical tips for navigating some of the challenging issues that often arise in whistleblower cases.  Topics covered include:

  • What Disclosures are Protected Under the Whistleblower Protection Act?
  • Does the Whistleblower Protection Act Protect Employees Who Exercise an Appeal or Grievance Right?
  • Prohibited Forms of Whistleblower Retaliation
  • Proving Knowledge of Protected Whistleblowing
  • Proving Causation
  • What is an Agency’s Burden to Avoid Liability Once the Whistleblower Has Proved Causation?
  • Seeking Relief from Retaliation
  • Election of Remedies
  • Can OSC Seek a Stay of a Personnel Action?
  • Damages or Remedies for Retaliation
  • Gag Orders and Non-Disclosure Agreements

Experienced Washington DC Whistleblower Protection Act Lawyers

best sexual harassment attorneys Washington DC Maryland VirginiaZuckerman Law has represented whistleblowers before the Office of Special Counsel, Offices of Inspectors General, and Congressional oversight committees.  The firm is uniquely qualified to represent whistleblowers in the federal government because two of the firm’s attorneys served in senior roles at the U.S. Office of Special Counsel.

  • Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs.  During Bachman’s tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.
  • Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations.

The firm has represented whistleblowers testifying before the House Financial Services Committee and vigorously opposed efforts to silence whistleblowers.  The whistleblower protection lawyers at Zuckerman Law have also helped federal employees combat unlawful gag provisions in agency policies or agreements.

If you are seeking representation in a whistleblower protection case, click here, or call us at 202-262-8959 to schedule a free preliminary consultation.

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.