GREAT ARTICLE! FEDERAL EMPLOYEES BE AWARE OF THE CHALLENGES YOU FACE
OAJ Employment Law Section Article July 2014
An Overview of the Federal Sector Administrative Remedy in Employment Discrimination
Claims
By Alissa Sammarco Magenheim, Esq.
The area of Federal Sector Employment Law and the Administrative Remedy that
precedes litigation is a niche practice in which I find myself engaged. In preparing to draft my
introductory article to the Ohio Association of Justice as the new Chair of the Employment Law
Committee, I felt that this little known area needed attention.
First, Federal Sector employees include many people we see every day, for example, our
Letter Carrier, the Federal Court Staff, the Veteran’s Admiration doctors, nurses, and
administrators. It is during the administrative process where employees are often left without
representation, and give up or lose without a hearing. It is key to develop the record during the
administrative process and that the claims be made to include a variety of related matters.
Title 29 of the CFR, Part 1614, governs the administrative process and has its own set of
time restraints. Part 1614 is intended to implement the Government’s policy to provide equal
opportunity in employment for all persons, to prohibit discrimination based on race, color,
religion, sex, national origin, age, disability or genetic information, and to prevent retaliation for
opposing any practice made unlawful by Title VII, the ADEA, the Equal Pay Act or GINA, or
for participating in the administrative process. 29 CFR 1614.101. This part applies to employees
of Military departments as defined in 5 USC 102, Executive agencies as defined in 5 USC 105
which include Employees of the Justice Department, The United States Postal Service, Postal
Rate Commission and Tennessee Valley Authority, All units of the judicial branch of the Federal
government having positions in the competitive service, except for complaints under the
Rehabilitation Act, The National Oceanic and Atmospheric Administration Commissioned
Corps, The Government Printing Office except for complaints under the Rehabilitation Act; and,
The Smithsonian Institution. 29 CFR 1614.103(b)(1).
However, Part 1614 does not apply to Uniformed members of the military departments
referred to in paragraph (b)(1) of 1614.103, Employees of the General Accounting Office,
Employees of the Library of Congress, Aliens employed in positions, or who apply for positions,
located outside the limits of the United States; or Equal Pay Act complaints of employees whose
services are performed within a foreign country or certain United States territories as provided in
29 USC 213(f) .
The short time limitations are rolling and strictly complied with as jurisdictional. The
employee must make a pre-complaint claim of discrimination within 45 days of each discrete act
of discrimination. 29 CFR 1614.105 (a). If it is a “continuing action” or “harassment” claim, the
employee must be careful to allege it as such. In order to succeed on such a claim, the employee
must demonstrate that similar actions were frequent and regular, and involved the same
managers. (See the three factors of consideration stated in National R.R Passenger Corp. v.
Morgan, 563 US 101, 117.) Although under Morgan, 536 US 101, 122 S.Ct. 2061 (2002), each
of the discrete acts of discrimination must be administratively exhausted, the continuing
violation doctrine remains alive upon consideration of those three factors. Semsroth v. City of
Wichita, 304 Fed.Appx. 707, 722 (10th Cir. 2008).
Under 29 CFR 1614.106 (d), if the new allegations are like or related to claims raised in
counseling, the pending complaint can be amended and no additional counseling is required. A
new allegation is like or related to the initial complaint if it adds to or clarifies it, or could
reasonably be expected to grow out of the initial complaint. See Scher v. Postmaster General,
05940702 (1995). If the new issues are not like or related to the matters that were raised in
counseling, the complaints should be consolidated for processing under 29 CFR 1614.606. There
is little practical difference between amending a complaint to include additional claims and
consolidating complaints. See Porter v. Secretary of Defense, 02965323 (1997); Lee-Buhl v.
Secretary of Defense, 01966748 (1997).
The pre-complaint process may include Redress or Mediation at the employee’s option.
If no resolution results, than the Agency must notify the employee of their rights, the time
restraints and issue a Notice of Right to File Formal Complaint. The Formal Complaint must be
mailed within 15 days of the employee’s receipt. 29 CFR 1614.106(b).
If new claims are alleged in the Formal Complaint, and are not like or related to the
claims made at the counseling stage, those allegations may be dismissed and not accepted for
investigation. Subsequently, they may be denied for adjudication, either by the ALJ or by Judge
for failure to exhaust the administrative remedy.
At this point, the agency is required to conduct an impartial and appropriate investigation
of the complaint. Once the investigation is completed (between 180 and 360 days), the
employee has 30 days to request a Hearing before an ALJ with the EEOC. In the alternative, the
employee can request or wait for an Agency Decision on the record and then has 90 days from
the date of the Decision to file a civil lawsuit.
Research your case carefully. Justice Department Employees may not have a right to file
a Bliven’s Action. See Blade v. US Bankruptcy Court 1009 F.Supp.2d 872 (SD Ohio 2000)
(Judicial employees do not have a Bliven’s Action).
Whether you choose to litigate before the EEOC or the Federal Court depends on your
client and your case. If you choose the EEOC, the ALJ will issue a Scheduling Order with right
to limited discovery. This is shorter and less costly, but does not provide for a jury trial.
Development of the record is key at the administrative level as the record follows the case into
Court if you file a civil lawsuit.
The main point I want to make is that development of evidence is key and will make or
break the case. This starts in the administrative process
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