District of Columbia government employees and applicants enjoy job protections from unfair or discriminatory personnel decisions. If you feel that you are facing a wrongful employment practice, you might be able to file with the D.C. Office of Employee Appeals (OEA), a discrimination claim with the EEOC or the DC Office of Human Rights, or, in some cases, a union grievance.
Office of Employee Appeals
The D.C. Office of Employee Appeals (OEA) is an independent agency of the District government charged with ensuring that District agencies follow the law when they discipline their employees. OEA will hear employee appeals of adverse employment actions, such as:
(a) A performance rating which results in removal of the employee;
(b) An adverse action for cause which results in removal;
(c) A reduction in grade;
(d) A suspension for ten (10) days or more;
(e) A reduction-in-force; or
(f) A placement on enforced leave for ten (10) days or more.
Importantly, the OEA will not hear claims of discrimination or retaliation.
In general, before a D.C. government agency takes action to correct an employee’s misconduct or poor performance, the agency has to give the employee advance notice and an opportunity to respond.
If an agency of the D.C. government issues a decision taking an adverse employment action that is appealable to OEA, the agency is required to issue the decision in writing with a notice of the employee’s right of appeal, the rules for filing an appeal, an appeal form, a notice of rights under a union contract, and notice of the right to be represented by an attorney. Employees must then file their appeals within thirty (30) days of receipt of the decision notice.
The OEA often looks to its federal counterpart, the Merit Systems Protection Board, for guidance. Like the MSPB, OEA will consider mitigating and aggravating circumstances when it evaluates whether an agency’s chosen discipline, such as removal, is appropriate under the circumstances. When it comes to issuing reasonable penalties, the agency has to consider twelve (12) factors, called the Douglas Factors.
- The seriousness of the offense;
- The employee’s position, including fiduciary or supervisory role;
- The employee’s past disciplinary record;
- The effect of the offense on the employee’s ability to perform satisfactorily or upon supervisor’s confidence in the employee’s ability to perform;
- The employee’s past work record, including length of service, job performance, and dependability;
- The consistency of penalty with those imposed in other similar situations;
- The consistency of penalty with the agency’s table of penalties;
- The notoriety of the offense;
- The clarity with which employee was on notice of rules or policies allegedly violated;
- The employee’s potential for rehabilitation and to learn from his or her mistakes;
- Mitigating circumstances, such as unusual job tensions, personality problems, bad faith, or malice;
- The adequacy of alternative sanctions to deter future misconduct.
However, unlike the MSPB, OEA will not consider whether an agency discriminated against or retaliated against an employee. This means, for example, that if your agency fires you and you think it was discriminatory, you can’t pursue your discrimination claim at OEA. Instead, you have to file a discrimination claim through the EEOC or the D.C. Office of Human Rights. If you’re covered by a union agreement, you might have an option to file a union grievance.
D.C. Employees Discrimination Complaints
If you are a District employee or applicant and you wish to file a complaint alleging discrimination or a complaint concerning reprisal for engaging in protected EEO activity, you can file a complaint with the Equal Employment Opportunity Commission or with a certified D.C. Equal Employment Opportunity counselor (followed by a formal complaint filed with the D.C. Office of Human Rights). If you’re covered by a union agreement, you might have an option to file a union grievance.
Each of these options – the EEOC, the DC Office of Human Rights (OHR), and union agreement – have different factors to consider, such as deadlines, the kinds of discrimination that is prohibited, and the personnel actions that are considered. For example, under the EEOC rules, a D.C. employee has 300 days to file a charge of discrimination, but under DC OHR, the employee has only 180 days and must initiate with a certified DC EEO counselor.
Both the DC Human Rights Act and the federal civil rights acts prohibit employment discrimination on the basis of race, color, national origin, religion, age disability, and genetic information. The DC Human Rights Act, (DCHRA) however, also prohibits employment discrimination based on:
- Marital Status
- Personal Appearance
- Sexual orientation
- Gender Identity
- Familial Status
- Family Responsibilities
- Political Affiliation
- Source of Income
- Credit Information
- Criminal background
- Employment status
If you are a DC government employee, or you were an applicant, and you think you’ve been discriminated against by the DC government, talk with a lawyer to learn you rights and obligations.
Union Grievance Processes
If you are a District employee, and if you are covered by a union contract, you may have the option of filing a grievance which could result in an arbitration hearing. Depending on what your union’s contract allows, you might be able to file a grievance concerning unfair personnel decisions like demotions and terminations, discrimination, or whistleblowing reprisal. The first step is to talk with your union representative and to read your agreement.
We are experienced labor attorneys and can help you understand the risks and benefits of pursuing your claims through your union agreement as opposed to the other options that may be available to you. To learn more about how we might be able to help you with your union grievance, call us.
D.C. Government Whistleblowing Rights
The DC whistleblower protections apply to all District government agencies, including independent agencies, DC Public Schools, the University of D.C. Board of Trustees and the DC Housing Authority.
The DC Whistleblower Protection Act is designed to protect employees of the District government who “report waste, fraud, abuse of authority, violations of law, or threats to public health or safety” from retaliation and reprisal. DC Official Code § 1-615.51 et seq. In fact, the law requires DC employees to disclose violations concerning misuse of resources, fraud, waste, abuse of authority or a substantial and specific danger to the public health and safety. Supervisors are also required to make disclosures and failure to make the disclosure could subject the supervisor to discipline.
The law protects people who disclose wrongdoing by prohibiting a supervisor from taking or threatening to take an action against an employee because of the employee’s protected disclosure or because the employee refused to comply with an illegal order. The law also prohibits retaliatory procurement actions against contractors seeking to do business with the DC government.
There are several ways an employee might be able to file a complaint under DC’s whistleblower protection law. If the DC agency took a negative action that can be appealed through the DC Office of Employee Appeals, the employee can usually raise their whistleblower claim in their appeal of the underlying action to OEA. Similarly, the employee might be able to file under a union agreement, if the agreement provides protections for whistleblowing reprisal. Finally, the employee can probably also file a complaint in D.C. Superior Court. Each of these options involves different deadlines.
It’s important for an employee to know each option they might have, and the benefits, risks and costs of each option before choosing one. If the employee chooses to file under one option, they likely can’t file under another – so it’s important to make a wise choice. What’s best for one person might not be the right approach for someone else. If you think you’ve been a victim of whistleblowing reprisal, talk with one of our lawyers to learn your options and which might be best for you under your circumstances.