Q&A Session: Submitting a Formal Complaint

Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

A colleague regularly breakes rules from our employee conduct handbook. Several of us have kept notes documenting the incident and have reported it to management. The only incidents that have been addressed have been when one of us agreed to be named as the person that reported the behavior. For those people that fear retaliation because of being a subordinate of the problem employee, is it necessary to make a formal statement before the employee is confronted?

A:

Each federal agency has an obligation to investigate allegations of misconduct against its own personnel, and similarly, federal employees have an obligation to report any known misconduct.  Of course, federal employees also possess many rights in the workplace that often intertwine with these respective obligations.  Specifically, a federal employee may only be disciplined for just cause, and federal employees have the right to reply to any proposed and/or final disciplinary action.  In responding to a disciplinary action, a federal employee may review the evidentiary materials relied upon to support the disciplinary action, and may also present additional evidence to rebut the disciplinary action.  Moreover, the government may only administer disciplinary action against an employee when a preponderance of the credible evidence supports the finding that the employee engaged in the alleged misconduct as charged.  While each case is different, the government would generally require evidence greater than an anonymous allegation to meet its burden of proof to support a disciplinary action (which may explain why you have not seen the Agency respond to you and your colleagues’ complaints in the past).  A written, signed, and certified statement, however, is substantially stronger and more persuasive evidence than an anonymous, verbal complaint.  Accordingly, a signed, certified statement is more likely enough evidence for the government to meet it’s ultimate burden of proof to support a disciplinary action.

While it may be discouraging to you that you are required to make formal complaints of misconduct in writing, it also protects you from facing an administrative investigation or proposed disciplinary action likewise based solely upon an anonymous, frivolous complaint.  Furthermore, the Whistleblower Protection Act, and presumably Agency directive/policy, prohibits retaliation in the workplace against those who report misconduct.  If you believe that you have been retaliated against for reporting your supervisor’s misconduct, you may file an internal complaint within your Agency, or file a formal complaint at the Office of Special Counsel. 

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