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Kristin Alden
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Kristin Alden’s Answers

28 total

  • Is a Federal agency EEO counselor legally required to respond to my request for an extension to answer Interrogatories?

    I filed an EEO Complaint against my employer, a federal government agency, for Disability discrimination including violations of the Americans with Disability Act. A consulting physician for the agency confirmed that I am disabled under the provi...

    Kristin’s Answer

    I'm a little confused about where you are in the process because the EEO counselor is not usually the same person as the EEO investigator, and both issue reports (but the reports are very different).

    The process is: first an EEO Counseling phase during which the EEO counselor may try to informally resolve the dispute. If that is unsuccessful, then the EEO office issues a Notice advising that you have to file a Formal Complaint within 15 days. After you file the complaint, the EEO counselor has to issue a Counselor's Report within 15 days. After you file the complaint, the agency assigns an investigator to conduct an investigation and issues a Report of Investigation (ROI) within 180 days.

    At the EEO counseling phase, the EEO counselor talks with you and management, sees if the dispute can be easily resolved, and if not, issues an EEO counselor's report summarizing the issue. If this is the report you're talking about, you can: a) send the EEO office a letter/email outlining each discrepancy in the report, and the EEO office should include your letter in the ROI or b) address the discrepancies during the investigation.

    If you're talking about discrepancies in the ROI, you have several options if you request a hearing before an EEOC administrative judge. After filing the hearing request you can address the ROI's inaccuracies in discovery, in a supplement that you file with the Judge (and the agency - never send the judge something without sending it to the agency), in a motion filed with the judge (such as a motion for sanctions), and/or at hearing. Additionally, you can notify the Judge of your attempts to get the agency to correct the deficient ROI.

    You have also asked if you are entitled to an extension of time to respond to interrogatories. The regulations do not give an easy answer to this. If the EEO counselor issued the interrogatories to you, you can ask for an extension in which case the agency will probably ask for an extension of the 30-day period by which they are supposed to complete the EEO counseling. If the investigator issued the interrogatories, the regulations say that you are entitled to 15 days to respond to an investigator's request for information and the regulations do not mention extensions. In our experience, it is very rare (but not unheard of) for investigators to deny extensions of time. However, the agency is required to produce the ROI within 180 days after you filed your formal complaint (or longer if you amended your complaint). If your extension will threaten the agency's ability to meet its 180 deadline, you should anticipate that the agency will be reluctant to give you an extension unless you also agree to extend the investigative period.

    If the investigator did not include your evidence in the ROI, you can submit it to the judge (after requesting the hearing). You may also have grounds to file a motion for sanctions against the agency. A consultation with an attorney who specializes in federal sector employment law can advise you on whether a motion for sanctions would be prudent in your circumstances.

    You also mention that the agency has initiated removal proceedings. If those proceedings are still on-going, we encourage you to consult with an attorney right away, as you usually have a brief period of time to challenge the notice of proposed removal. If the agency decides to remove you, you might have a right to appeal to the MSPB. If you think you have MSPB appeal rights (and/or union rights), you should consult with your union and/or an attorney to determine which path -- EEO, MSPB or union grievance - is best for challenging the removal, as you can only choose one.

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  • Employer forcing me to exhaust all leave before returning back to modified duty status? Federal Government Position.

    I have been on a modified duty status, light duty, since a work place injury in January of 2015. My injury was intensified by an out of work accident, preventing me from returning to normal duty status earlier. Since the first, work place injury, ...

    Kristin’s Answer

    Your situation may trigger several different possibilities, including FMLA leave, reasonable accommodations, FECA/OSHA, discrimination under the Rehabilitation Act, and reprisal/retaliation. Because you are a federal employee, the avenue for pursuing each of these possible claims may require following different regulations and rules. If you have any EEO claims (and at first blush, it appears you likely do), your deadlines may be very short. If you are a member of a union or are covered by a collective bargaining agreement, you may have even more options. Typically you cannot simultaneously pursue all possible option and you have to choose one. To make sure you pursue the strongest claims and don't miss any deadlines, we recommend you consult with an attorney familiar with federal sector employment matters.

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  • Background checks for employment - Suitability Determination

    I am a contractor receiving a suitability determination letter. There are two things (misuse of a government computer and AWOL) they want me to answer on the eQip. This is due to my filing an EEO against my former agency. The former agency removed...

    Kristin’s Answer

    If i understand correctly, you work for a federal agency who is conducting a suitability determination. The suitability background investigation raised two issues and the agency is giving you an opportunity to provide additional information before the agency decides whether to grant suitability.

    The grant/denial of suitability will likely determine whether you keep your job. Thus, it is important that you provide clear and convincing evidence to dispel the agency's concerns. We recommend you at least consult with an attorney or firm knowledgeable of federal sector employment matters who can read and interpret the agency's notice and help you respond -- either through an attorney or on your own.

    Whether you choose to meet with an attorney or not, we recommend that you also learn more about the process before responding. Review the OPM website page on suitability information and suitability referrals (google OPM suitability regulations). Review the regulations as well. Look at the referral guidelines and the referral chart. Look at the Douglas Factors (google search again) and incorporate them into your written response to the agency. Again, we recommend that you consult with an attorney AND review this information. This is a complicated area of law and knowledge is power in this kind of situation.

    If the agency denies suitability, the agency will probably fire you. It is unclear whether you had any appeal rights at your first agency and whether those rights followed you to your second agency. A recent SF-50 would likely answer this question. If you have appeal rights and if the agency fires you, you can appeal to the Merit Systems Protection Board. If you do not have appeal rights, and if there is reason to think that the suitability determination (and hence the termination) are the result of EEO reprisal, you can pursue remedies through an EEO complaint. If both EEO and Merit Systems apply to you, you should consult with an attorney before making any decisions on how to address the termination, as a wrong decision may cause delay and/or inadvertent waiver of rights/claims.

    When you talk with an attorney, be sure to bring with you all the documents relating to your situation including and most importantly a copy of what you provided your second agency for the background investigation. Also bring information concerning your first EEO, the proposed removal, the AWOL, the refunding of the AWOL, the suspension, the resignation, a copy of the resignation SF-50 and your appointment SF-50 at the second agency, and your correspondence with the BI investigator. All this information will help the lawyer advise you.

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  • I caught my manager shaving my hours and using my vacation hours to cover it up. Should I hire an attorney?

    I've been working with this organization since May 2014. A co-worker brought it to my attention that her hours was being shaved in June 2014. Soon after she made the complaint, I noticed that my time was being changed as well. For example, I worke...

    Kristin’s Answer

    Your short question is "should i hire an attorney?". The answer is: absolutely. An attorney can walk you through the total possible recovery for what's and advise you on the best course. Good luck.

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  • My EEO Discrimination Complaint is over 180 days. What are my options moving forward?

    Sept. 29, 2014 is when my complaint was accepted to be investigated by EEO. As of today, I still don't have an investigator assigned to my case. In Jan 2015 I removed myself from the hostile work environment and am now working with a different a...

    Kristin’s Answer

    At this time, you have four (4) options. 1. Do nothing and let the agency finish the investigation at their convenience. Because the investigative report may have valuable information which may be useful to proving your claim (and evaluating whether you should and want to file in court), if you intend to go to court, you should consult with an attorney before taking this path. 2. Do nothing and wait for the investigative report and, after you receive the report, still do nothing. If you follow this path, the agency will issue a Final Agency Decision. Upon receipt of the Decision, you can either file in federal court to pursue a trial or seek an appeal at the EEOC's appellate division. If you choose this option and are dissatisfied you cannot later choose option 3 (an AJ hearing). 3. Request a hearing before an EEOC administrative judge (AJ), which is similar to a trial in federal court in many ways, but it is confidential and, typically, less expensive. Depending of where you are located, an AJ hearing may be much faster -- or much slower -- than a court suit. If you choose this path, and if you are dissatisfied with the AJ's decision, you can appeal the AJ's decision to the EEOC's appellate division and/or you can file in federal court and pursue a trial there. If you choose the AJ hearing path, you can also ask the AJ to punish/sanction the agency for its failure to conduct an investigation. Some AJs are more likely than others to grant this kind of motion. A sanctions motion can be very helpful to your case. 4. File in federal court immediately without the benefit of the report of investigation. To learn more about the pro's, con's, and strategies associated with each option, you should talk with a lawyer who knows the process well enough to help you weigh each option. The costs to pursue the case depend on many factors and cannot be answered without more information.

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  • Does a Plaintiff need to file a some sort of dispositive motion in federal appeals court or just the Defendant?

    The Plaintiff has a Title VII - 'failure to exhaust administrative remedies' case in federal appeals court. The court mentioned a due date for dispositive motion. Should the Plaintiff file a dispositive motion or is this for the Defendant to file...

    Kristin’s Answer

    The issue -- whether you have exhausted your administrative remedies -- can be a complex one in federal court, especially if you brought some, but not all, of your claims to the attention of the EEO office, and depending on how the EEO office addressed those claims.
    Usually when there is an issue about failure to exhaust, the government/defendant raises the issue that the employee/plaintiff failed to exhaust and so, it would seem that the government would file a dispositive motion. However, the Judge could also raise the issues and concerns about exhaustion and could ask both parties to file motions. It's not clear what stage of litigation you are in, what your case is about, and whether you exhausted your admin remedies. To get a better idea of your obligations under the Judge's order, it's best to contact a lawyer. Bring with you all your communications with the EEO office so the lawyer can review the evidence on the exhaustion office. Also bring with you the report of investigation if you want the lawyer to give you an evaluation of the merits of your claims.

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  • What is the recourse for federal employee not provided a Notice of Right to File, regarding a Title VII claim?

    I understand that a federal employee has the right to file a compliant if he or she believes they have been discriminated or retaliated against in federal employee. I understand the EEO Counselor must inform the employee in writing of his right to...

    Kristin’s Answer

    You are right. You can file a formal complaint without receiving the notice of right to file (assuming you have not agreed to an extension of the informal process). In the federal government process (which is different from state, DC and private employment), you have to initiate your informal EEO within 45 days of the discriminatory event. Thirty days after you initiate your informal discrimination complaint, the EEO counselor is supposed to give you a Notice of Right to File a formal complaint (which might come under a different name). You must file the formal complaint within 15 CALENDAR days of receipt of the Notice. The Notice should identify where you file the formal complaint and other technical requirements (post-mark, addresses, etc.).
    When you initiate the EEO informal, the EEO office should have given you a notice of "EEO Rights and Responsibilities." The R&Rs identify information, deadlines, and references about your rights and obligations in the process. If you did not get one, you can find a standard template on line.
    If the agency did not issue a right to file, you can file your formal EEO complaint with the agency's office (keep a copy for yourself and keep proof of filing date). The agency has an obligation to investigate your claim within 180 days (assuming you do not amend or grant an extension). Even if the agency has not finished the investigation, you are entitled to file a request for a hearing before an EEOC judge on the 181st day. (You can also file a complaint in federal court, but you should talk with an attorney before filing anything in federal court). The R&Rs advises you where to file the hearing request. If the agency fails to investigate your claims within the deadlines, you might have an argument to seek sanctions against the agency. Assuming you dont talk with an attorney before the 180th day, it's best to consult with an attorney when you receive the investigative report or when you file the hearing request (whichever is sooner). An attorney can give you guidance on the strengths/merits/weaknesses of your claim and make recommendations on how to proceed.

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  • CAN A FEDERAL JUDGE ORDER A PROMOTION FOR AN EEO REPRISAL CASE WHERE EMPLOYER'S REFERRAL COST ME A PROMOTION?

    I work for the US Navy as a civilian. I applied for a position and got it at the Dept. of Energy (PROMOTION & SALARY INCREASE). The Dept. of Energy contacted the Dept. of Navy for a referral. My boss (who I filed an EEO case against) said false...

    Kristin’s Answer

    Without more information it is difficult to give an accurate answer, but it is theoretically possible that you might be able to get relief from EITHER Navy or Energy, depending on how things play out. If you think discrimination or EEO reprisal is at play, it's critical to notify the EEO office within 45 days to initiate a new EEO complaint. It's a complicated procedural process when two agencies are involved because you dont yet know exactly who did what. You can learn more about what happened through the EEO investigation. If you think your supervisor tainted the process, we recommend you talk with an attorney/firm well versed in federal sector processing to learn cost-effective ways of learning more about whether the case is worth pursuing.

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  • Is accrued leave legally comparable to a salary?

    Does accrued leave of a federal employee receive similar protections to compensation. That is to say, can it be taken away on a whim of the employer?

    Kristin’s Answer

    Sort of. If you are a federal employee, typically you can roll-over up to 240 hours of annual leave at the end of each year. If an employee has more than 240 hours, the employee will likely lose the excess if they don't use it by 12/31. According to the OPM website: An agency may consider restoring annual leave that was forfeited due to an exigency of the public business or sickness of the employee only if the annual leave was scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year. When you leave the federal government, you can have your annual leave balance cashed-out. For sick leave, there is no maximum carry-over limitation and typically sick leave can be credited to your service comp date when you retire from the government. But if you leave the gvt without retiring, you cannot be cashed out for sick leave. OPM has a decent website that addresses many questions relating to leave.

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  • In a proposed termination from federal employment, what are the typical hearing rules and procedures? Witnesses? Cross?

    Can one call witnesses, such as character witnesses, and cross examine hostile witnesses? MOST IMPORTANTLY, how does one get their hands on the rules and procedures of the agency's hearing in order to prepare and find out who the decision makers ...

    Kristin’s Answer

    • Selected as best answer

    There are rules that apply to most civil service employees who passed their probationary period (competitive service - typically 1 year) or trial period (excepted service - typically 2 years). Under the rules, the employee is entitled to a notice of their alleged misconduct and the evidence the agency relies upon in proposing the removal, an opportunity to respond in writing and/or orally (i.e., the hearing), and the opportunity to consult with a lawyer. If you ask for the evidence, the agency is required to give it. If you ask for a "hearing", you get an in-person meeting with the person tasked with deciding whether the proposed termination will happen. This person will be identified in the proposal.
    The agency must prove the charges/specifications identified in the proposal and, in addition, that the proposed penalty (e.g., termination) is appropriate under the circumstances.
    Each agency has a set of rules, typically referring to "Chapter 75" actions or Adverse Actions. You might be able to find them with a google search (e.g., "your AGENCY" & "adverse action" or "table of penalties") or you can ask your HR office for a copy of the rules. You can also ask for the agency's regulations when you ask for the evidence the agency relies on.
    The employee may gather their own evidence and get statements and affidavits from others, but there is no right to examine witnesses during the pre-decisional "hearing" phase. When the federal employee argues the penalty issue, it's important to discuss the "Douglas Factors" (which can also be found on the WWW). These are 12 factors that help determine if the standard penalty in the table of penalties should be reduced or increased.
    If fired, many federal employees have the right to appeal their termination to the Merit Systems Protection Board (www.mspb.gov). The termination letter should (but does not always) advise of deadlines to file at the MSPB. If the employee appeals to the MSPB, the employee usually may then conduct discovery (i.e., obtain evidence and witness testimony) and have a "hearing" (like trial without a jury) before an administrative judge who will determine if the agency met its burden and if there are any other factors (such as discrimination or whistleblowing reprisal).
    These are the typical rules, but any of these rules may or may not apply depending on the kind of employee you are, whether you are covered by a union contract, the kind of agency you work for, and several other factors. To know whether these rules apply to you, you may want to talk with a lawyer well versed in federal sector employment law and try to bring an SF-50 with you, which will help the lawyer figure out if you are covered by these rules.

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