§ 293.307 Disposition of folders of former Federal employees.
(a) Folders of persons separated from Federal employment must be retained by the losing agency for 30 working days after separation, and may be retained for additional 60 days (90 days where administratively necessary, e.g., where an appeal or an allegation of discrimination is made or where an employee retires or dies in service). Thereafter, the OPF must be transferred to the General Services Administration, National Personnel Records Center (Civilian Personnel Records), 111 Winnebago Street, St. Louis, Missouri 63118.

(b) When a former Federal employee is reappointed in the Federal service, the National Personnel Records Center (Civilian Personnel Records) shall, upon request, transfer the OPF to the new employing agency.

Anyway...nothing from management on this person until the person filed an EEO complaint on another matter...then 12 days later the roof fell in. Pretty classic reprisal case. The agency admitted that we met the first 3 elements of reprisal: 1. participation in protected activity, 2. managers knew about it, 3. adverse action followed, but element 4. "causal nexus" was the sticking point. Of course we say 12 days between protected activity and adverse action screams for an inference of a causal nexus by temporal proximity. The agency says we have no "direct evidence" of the nexus WHAT? That old dog won't hunt; we don't need direct evidence and if we had it... we wouldn't be using the prima facie analysis. Wish us luck.

When a complainant alleges that a single incident is part of a pattern of harassment, the case does not become moot even when the agency entirely
rescinds its action. For example, in Bonk v. Secretary of Transportation, 01945736, 4409/D4 (1995), the complainant alleged that a proposed one–day
suspension was part of a pattern of harassment. Thereafter, the agency notified the complainant that it had decided not to suspend her and that the proposal to suspend would not become part of her official personnel file. The Commission reversed the agency’s subsequent decision to dismiss the complaint as moot because the agency’s actions did not address the allegation of a pattern of harassment.
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In Endyke v. Secretary of Homeland Security, 0120080195 (2008), the Commission reversed the agency’s dismissal of a claim as moot where she alleged that she was told she would not graduate from Phase II of Air Marshall training. The agency claimed the complaint was moot because the complainant subsequently graduated from the training. The Commission noted that the complainant alleged that there remained negative comments in her training records about her abilities. The Commission found those negative comments, if they existed, could impact future employment opportunities and, thus, constituted an alleged injury in fact.
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Performance and other Work Appraisals
In Wilson v. Secretary of Veterans Affairs, 01961159 (1997), the Commission held that dismissal of the appellant’s claim that he was denied a performance appraisal for mootness was improper, despite appellant’s subsequent retirement from the agency. The Commission reasoned that the appellant’s ability to successfully seek reemployment may be impaired by the lack of a performance appraisal.
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In Janet M. Clark v. Department of the Army, supra, the particular claim stemmed from the failure of the agency to provide a performance appraisal. The Commission specifically found that appellant's complaint remained viable after her removal because of the possible negative residual effect on her future employment resulting from the agency's failure to provide an appraisal.
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Glad you could use some of those cases Mike.

Withdrawal of accommodation under ADA raises issue of pretext.
Withdrawal of a reasonable offer of accommodation after it has been accepted gives rise to an inference of pretext and intentional discrimination under the ADA. Valentine v. American Home Shield Corp., __ F. Supp. __, No. C 95-3030-MWB, 1996 WL 506506 (N.D. Iowa Aug. 30, 1996).

Here I am, waiting for the coffee...going to go to the office and, like all of you, try to enforce Title VII. So, I check the board and what do I find? Slingshot as inundated it with good, solid, precedent that I am copying at this moment and that I will place in my notebook and when the time is right I will take it out and pop a discriminating manager with it right between his baby blues. Thanks again Sling!

I've had an interesting case recently; an employee was thought to be falsifying 1260s and a 3971. Now, what do they do? Do they approach the person FIRST and ask for a clarification according to the Privacy Act? No. OIG put a tail on this unfortunate one and made a film they considered to be conclusive proof. Then...nothing for over 5 months, not a word. This person was not told, was not accused, was not taken off work. The person even worked high dollar transactions at the window. More latwer gotta run. Keep working folks!

That a personnel action is no longer involved in the complaint does not necessarily mean that no injury currently exists. For example, the maintenance of derogatory employment information in agency records may “not only adversely and permanently affect appellant’s future employment opportunities with the agency, but it could also have such an affect on any other…employment opportunities that might arise for appellant.” Dunn v. Veterans Administration, 01852046, 1592/G5 (1987). The maintenance of such records constitutes sufficient harm to warrant the continued processing of the complaint.
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In Ness v. Postmaster General, 01981368 (2000), the Commission ordered that the agency headquarters investigate the processing of EEO complaints at a district office based on the instant complaint, as well as other complaints lodged with the EEOC’s district office. The Commission also ordered that an investigation of the actual complaint in Ness be conducted by another office:

States Postal Service, EEOC Appeal No. 01951567 (March 10, 1998), the Commission notes that based on the record of the agency’s non-processing or mis–processing of complainant’s EEO claim, it is unclear whether the above represents a systemic problem within the agency’s Gateway District EEO office. The Commission takes judicial notice that a number of other complaints which have been processed through our hearings unit in the St. Louis District Office corroborate complainant’s allegation of a dysfunctional EEO process in the Gateway District. We also take judicial notice of Congressional inquiries concerning labor management relations and other problems related to the treatment of individuals with disabilities at complainant’s facility.

We remind the agency of its obligation to process EEO complaints of discrimination in a manner consistent with the EEOC Regulations. In this respect, we note that 29 CFR § 1614.102(a)(2) provides that agency’s shall “[p]rovide for the prompt, fair, and impartial processing of complaints in accordance with this part and the instructions contained in the Commission’s Management Directives.” Moreover, the Commission has held that:

The agency has a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. This duty extends 142 Guide to EEO Law and pr act ice ch apter 3 to every aspect of agency personnel policy and practice in the employment, advancement, and treatment of employees. Agencies shall, among other things, insure that managers and supervisors perform in such a manner as to effectuate continuing affirmative application and vigorous enforcement of the policy of equal opportunity.

See George v. United States Postal Service, EEOC Request No. 05980451 (October 8, 1998) quoting Crespo v. United States Postal Service, EEOC Request No. 0592084 2 (September 17,1993). Here, the record demonstrates the EEO office in the Gateway District did not effectuate vigorous enforcement of the policy of equal opportunity, and, contrary to 29 CFR § 1614.102(a)(2), failed to provide for prompt, fair and impartial processing of complainant’s complaint.

Edited by author 11-18-2009 03:47 PM
In order to establish a viable allegation of a continuing violation, the complainant must demonstrate some temporal proximity between the events that occurred in the past and the timely allegation of discrimination. When the events are separated by the passage of too much time, there is no demonstrated nexus between the events and, as a result, no actionable claim of a continuing violation. As the Commission explained in Muhomen v.
General Services Administration, 05990049 (2001):

We find that complainant failed to establish a continuing violation due to the significant break in temporal proximity between the 1990 and 1991 nonselections with the accepted 1995 nonselection. This temporal break indicates a lack of nexus. Furthermore, we note that complainant does not seek to pursue the 1990 and 1991 nonselections as separate claims, but rather to use them as background in the presentation of his case on the 1995 nonselection. It is well–settled that past alleged discriminatory events, which were not the subject of timely complaints, may be used as background evidence for a timely complaint, although they otherwise have no legal consequences under Title VII. See United Airlines v. Evans, 431 U.S. 553, 558 (1977). Consequently, complainant may use the 1990 and 1991 claims as background for his accepted 1995 claim.
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Likewise, an analogous theme sufficient to constitute a continuing violation was expressed where the complainant allegedly received a poor performance evaluation because of the agency’s refusal to reasonably accommodate his mental disability. In Silva v. National Credit Union Administration, 01960852(1997), the Commission found that the complainant’s allegations regarding accommodation of his mental disability and his allegation regarding a low performance appraisal were “inextricably intertwined” and constituted a continuing violation:

We note that appellant has, in essence, argued a continuing violation. A review of the record reflects that appellant based his complaint on a series of events and actions directly and indirectly related to his performance evaluation, which the agency issued on December 3, 1993. The record further reflects that appellant detailed numerous incidents between 1992 and 1994. Specifically, appellant alleged that after submitting medical documentation from a psychologist regarding his mental disability, the agency failed to provide the requested accommodation within a reasonable time, hence, the reason for his “Minimally Successful” performance appraisal. Appellant, moreover, alleged that after receiving the performance appraisal the agency monitored his work too closely.
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However, it is not necessary for the complainant to demonstrate a continuing violation in order to proceed on the theory that several independent acts constitute a pattern of discrimination or harassment. The continuing violation theory is only invoked where some of the complaints about specific incidents would otherwise be untimely. See McConnell v. Postmaster General, 05910462, 3060/G5 (1991).
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Edited by author 11-15-2009 12:32 PM
Snowed /m6306

Do you contact your local OWCP office?(not teh post office once) try to call they, no case number needed.

SFO-General /m6308

got it, its 20 business day.

bigmikec /m6305

Do I have to requested to be provide within 15 days? 30 days? are there any time limited they must reply?
thanks