Thursday, March 31, 2016

“Interim Relief” at the EEOC

In 1989, Congress amended the Civil Service Reform Act with respect to the relief available to employees who appeal their removal to the Merit Systems Protection Board and obtain a decision from the Administrative Judge ordering their reinstatement. Prior to the Amendment, the employee could not be reinstated until any appeal by the agency to the Board was resolved. The Amendment, however, added 5 U.S.C. § 7701(b)(2)(A), which provides as follows:
If an employee or applicant for employment is the prevailing party in an appeal under this subsection, the employee or applicant shall be granted the relief provided in the decision effective upon the making of the decision, and remaining in effect pending the outcome of any petition for review . . .
If the employee returns to duty based on that provision, he or she “shall receive pay, compensation, and all other benefits as terms and conditions of employment during the period pending the outcome of any petition for review . . . .” § 7701(b)(2)(B). If the Agency determines not to return the employee to duty during this period, the employee will receive the pay and benefits anyway. This is known as “interim relief.”

There are several categories of employees (such as probationers and others) who lack the right to appeal their removal or suspension (of 15 days or more) to the MSPB. Many of these employees are permitted to file an EEO complaint regarding their removal or suspension and proceed to a hearing before an EEOC Administrative Judge. Even after Congress authorized the MSPB to grant interim relief, the EEOC lacked authority to grant similar relief to employees who obtained a favorable decision from an EEOC Administrative Judge reversing their removal or suspension.

In 1999, however, the EEOC rectified this oversight and issued a new regulation providing for interim relief. See 29 C.F.R. § 1614.505. The provisions of § 1614.505 are similar to, but at the same time different from, the provisions governing the Board.

Subsection (a)(1) provides that if the agency appeals the Administrative Judge’s decision to the Commission, and that decision orders retroactive reinstatement because of removal, separation, or suspension, the agency must restore the employee “to duty status in the position specified in the decision,” pending the outcome of the appeal.

Subsection (a)(2) provides that if the Commission denies the agency’s appeal, the employee’s service during this interim period “shall be credited toward the completion of a probationary or trial period, eligibility for a within-grade increase, or the service requirement for career tenure . . . .” As a result, if a probationary employee obtains a decision finding his or her removal was discriminatory, given the amount of time it takes the EEOC to decide appeals (over a year, currently), the period of interim relief will almost always be sufficient to satisfy probation.

Subsection (a)(3) provides that during the interim period, the agency must only pay current salary and benefits and need not pay the back pay or damages ordered by the Administrative Judge. However, if the EEOC upholds the decision in the employee’s favor, the agency will have to pay the employee any interest that accrued on the back pay and damages from the date of the Administrative Judge’s decision.

Subsection (a)(4) demands attention. That subsection requires the agency to notify the employee “in writing at the same time it appeals” that it will grant interim relief but will pay retroactive pay and damages with interest if its appeal is denied. The last sentence is no-nonsense: “Failure of the agency to provide [this] notification will result in the dismissal of the agency’s appeal.” The consequences to the agency of a failure to comply with this requirement were starkly underscored in Porter H. v. Johnson, Sec’y of Homeland Security, EEOC Appeal 0720140018, 2016 WL 1085202 (March 16, 2016). In Porter, the agency appealed the Administrative Judge’s decision ordering reinstatement of the employee, but neglected to grant interim relief or notify the employee. The employee moved to dismiss the agency’s appeal (see subsection (b), below).

The agency replied that it had overlooked the requirement, but granted the interim relief as soon as it saw the employee’s motion to dismiss. The agency told the EEOC
that it acted in good faith, and its failure to provide interim relief simultaneously with its notice of appeal was inadvertent. The Agency also maintains that it subsequently “cured” its noncompliance with EEO regulations by providing Complainant with a conditional offer of employment to [a permanent] position. The Agency further maintains that it did not comply with [the regulations] because of “an oversight and failure of communication between various offices of the Agency.”
Porter H., slip op. at *2. The Commission was unimpressed with the agency’s excuses: “[W]e do not find . . . these excuses sufficient justification to warrant a waiver of the applicable regulations. Consequently, the Agency’s appeal is hereby DISMISSED.” Id., slip op. at *3.

Subsection (a)(5) gives the agency providing interim relief the discretion not to return the employee to work if that would be disruptive. However, the Agency must still pay the employee as though he or she was at work.

Finally, subsection (b) provides that an employee requesting the Commission to dismiss an appeal because interim relief was not provided must file that request within 25 days of the date of service of the agency’s appeal.

The EEOC does not deal with many cases involving its interim relief regulations. That may be because employees and agencies have not focused on them, or because the Commission does not regularly deal with claims involving employees who have been removed or suspended for 15 days or more but cannot appeal to the MSPB. Whatever the reason, these regulations provide a potent remedy for employees who prevail on such complaints and, accordingly, are entitled to monetary relief during the agency’s appeal.



This blog was written by George Chuzi.

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