Overlapping Issues in Federal Sector Equal Employment Opportunity (EEO) Complaints
Employees and applicants of the federal government have different avenues in which to address allegations of discrimination. The most common way to raise claims of discrimination is by filing an EEO complaint. This guide discusses the overlap of EEO complaints with claims in other forums.
Overlap with Office of Workers' Compensation Programs (OWCP)OWCP is part of the Department of Labor, and processes claims of injury compensation for workplace injuries and occupational diseases. Although OWCP does not address discrimination complaints, there may be overlap between an OWCP claim and a discrimination complaint.
For example, where a federal government employee is injured on the job and files an OWCP claim, he or she also may be entitled to a reasonable accommodation under the Rehabilitation Act if the injury rises to the level of a disability under the Act. If the agency were to deny the employee's request for reasonable accommodation, the employee may have a basis to file an EEO complaint.
Relatedly, where an agency employee has experienced ongoing discrimination in the workplace that has led to an occupational disease, such as major depression, and the employee has filed an EEO complaint related to the discrimination, he or she also may have grounds to file an OWCP claim seeking compensation for the occupational disease.
Although a federal employee may simultaneously have an ongoing EEO complaint and a pending OWCP claim, it is important not to confuse the purposes of the EEO process and OWCP. The Equal Employment Opportunity Commission (EEOC), which decides complaints of discrimination filed by federal agency employees, is clear that filing a claim for workers' compensation does not constitute protected EEO activity for purposes of anti-retaliation protection. Additionally, the EEOC is hesitant to decide claims alleging that the Agency interfered with the processing of an employee's OWCP claim, even if the employee alleges that the interference occurred because of unlawful discrimination. Therefore, if a federal government employee believes he or she is being discriminated against and the allegations of discrimination overlap with the employee's OWCP claim, the employee should be conscious of these limitations.
Overlap with the Family and Medical Leave Act (FMLA)The FMLA allows eligible employees to take up to 12 weeks of unpaid leave for pregnancy, childbirth, adoption of a child, or a serious health condition of the employee or an immediate family member. The EEOC cannot decide claims alleging that the Agency violated the FMLA. Such claims can be raised with the Department of Labor or filed in federal district court. However, in certain situations, there can be overlap between requests for leave under the FMLA and EEO complaints.
if an employee requests leave under the FMLA and that leave request also amounts to a request for a reasonable accommodation for the employee's disability, there may be a basis to file an EEO complaint if the agency denies the employee's request for leave as a reasonable accommodation. As an additional example, an employee may allege that an agency denied his or her request for FMLA for discriminatory reasons.
Like OWCP claims, the EEOC generally shies away from deciding claims that raise allegations related to the FMLA. However, there are exceptions to this general rule and an attorney with experience representing federal government employees can counsel an employee on these exceptions.
Overlap with Disability RetirementDisability retirement is a benefit available to qualifying federal government employees who, while employed by a federal agency, become unable to work because of a disabling medical condition. Among other requirements, the disabling medical condition must be expected to continue for at least one year and must render the employee unable to contribute to government service. The Office of Personnel Management (OPM) makes the initial determination as to whether an individual qualifies for disability retirement. If the outcome through OPM is unfavorable, the individual ultimately can challenge OPM's decision by appealing to the Merit Systems Protection Board (MSPB). If an applicant is approved for disability retirement, he or she receives compensation of 60% of his or her average pay for the first year, and then 40% of his or her average pay each year until reaching the age of 62. Once the applicant reaches age 62, the annuity is recalculated.
Disability retirement generally overlaps with an employee's EEO complaint in one of two ways. First, it may overlap because the employee has requested a reasonable accommodation for his or her disability and the agency asserts that no effective reasonable accommodations are available that do not pose an undue hardship to the agency. As a result, the agency may take steps to remove the employee from federal government service and the employee may apply for disability retirement based on the agency's statement that he or she cannot be accommodated. Second, an employee may file for disability retirement while his or her EEO complaint is pending. Where such an action occurs, the employee would be benefited by contacting an attorney experienced in representing federal government employees, as the application for disability retirement may impact the damages to which the employee is entitled if he or she ultimately prevails in the EEO complaint.
Overlap with the Office of Special Counsel (OSC) and Office of Inspector General (OIG)The OSC is a government agency that investigates complaints of prohibited personnel practices or other prohibited activities. Prohibited personnel practices include the same unlawful discrimination subject to EEO complaints. Similarly, most agencies have an OIG or similar office that investigates allegations of waste, fraud, abuse, or misconduct. An employee also can raise allegations of discrimination by filing with OIG.
As a result, an employee may have pending complaints of discrimination with both the EEOC and the OSC and/or OIG. However, both the OSC and OIG investigate only a portion of the complaints filed with their offices. As a result, the OSC or OIG may decline to investigate an employee's allegations of discrimination when the same allegations already are being addressed through the EEO process.
Overlap with Union GrievancesIf an employee is a member of a union, he or she often has the ability to file a union grievance to challenge adverse actions, such as formal discipline. Based on the language of the applicable master agreement or collective bargaining agreement, the employee also may be able to raise allegations of discrimination through the grievance process. If an employee has the option to file allegations of discrimination through the union process, the employee should carefully consider his or her options prior to doing so. That is because the EEOC generally will dismiss a complaint raising claims of discrimination that the employee already raised through the union grievance process.
Overlap with the Merit Systems Protection Board (MSPB)Perhaps the most common, and most complex, overlap with the EEO complaint process is where an employee is subject to disciplinary action that also is appealable to the MSPB. Employees with MSPB rights who are subject to an adverse action appealable to the Board who believe the action is the result of unlawful discrimination have the choice of either filing an EEO complaint or an MSPB appeal regarding the adverse action, but not both. If the employee first files a formal EEO complaint challenging the action, this is referred to as a mixed-case complaint. If the employee first files a MSPB appeal challenging the action, this is referred to as a mixed-case appeal. There are complex procedural requirements associated with both processes, and federal government employees who find themselves in these situations would be well-served by contacting an attorney experienced in representing federal government employees.
ConclusionThere are various avenues through which an employee of a federal agency can raise allegations of discrimination. Additionally, there are numerous other processes, such as OWCP claims, requests for leave under the FMLA, and filing for disability retirement, that may impact an agency employee's ongoing EEO complaint. A firm experienced in representing federal government employees in federal sector discrimination complaints, such as the Wick Law Office, can help an employee navigate these processes.