What to consider when filing a grievance

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Federal workers are fortunate. They have several legally defined processes available to them to complain about workplace treatment, theoretically free from reprisal. Most employees in the private sector have none. For complaints made by employees in the private sector regarding hours of work, office location, a work assignment, or a colleague or supervisor who is treating you disrespectfully, the usual response is: “If you’re not happy here, you can leave.” Feds have multiple processes and forums to lodge workplace complaints. One such process, the administrative grievance process, has been viewed poorly by feds in the past. But I think it works, — sometimes.

The administrative grievance process is available to employees who are not in a bargaining unit. For those in a bargaining unit, the grievance process is defined by the Collective Bargaining Agreement. I’m talking here only about the administrative grievance process.

Here’s generally how it works:. Agencies each have a written directive or policy outlining its grievance process. These grievance procedures uniformly define what events are covered and what are not. It’s easy to learn first what workplace events are covered by accessing your agency’s administrative grievance procedures and reading the section on covered versus exempt matters.

Second, is timing. Every grievance procedure sets a timeframe by which you must file your grievance. The timeframe runs from the “effective date” of the action (if you are grieving a suspension or reassignment for example) or from the date on when you learned of the matter being grieved, which is earlier. Timeframes generally run from seven to 14 days, depending on your agency. But don’t take my word. Once something occurs that you believe is unfair, read the procedures to determine how long you have to file a grievance. Often I speak with employees who are upset about a workplace occurrence, but have waited too long to file a grievance.

Because the equal employment opportunity (EEO) process has a longer timeframe (45 days from the date of occurrence), it tends to be a process employees view as easier to access. But accessing the EEO process versus the grievance process can be a critical misstep depending on your situation.

First, the most essential difference is the element of proof. If, for example, you are upset with a reassignment, and invoke the EEO process, you now have the added burden of proving that the reassignment was because of a personal category protected by law, such as your race, color, gender, religion, etc. Proof of an illegal motive is difficult, and in almost all cases in the EEO process fails. However, trying to convince the agency that it made a wrong decision to reassign you because it’s “a do nothing job” designed to punish you because you got into an argument with your boss, or some other unfair reason (not an EEO reason) is easier to prove.

Second, the EEO process can be an abyss. It starts with the “informal” EEO counseling process that usually lasts 90 days and often produces no resolution for the employee. From there it moves to the filing of a formal complaint to be investigated and then to the EEOC for a hearing if it remains unresolved. It could be one to two years before anyone in management is willing to deal with your EEO complaint, and by then your life has changed and you may not even be in the same job. In contrast, the administrative grievance process, when not being abused by management, can respond to your grievance in a few weeks to months.

Third, if you have a good substantive basis for challenging a workplace event, and not just argument on procedural or technical missteps, then you have a shot at prevailing. Often employees lose grievances over a letter of reprimand or a suspension because they focus on one or more missteps by the agency in how it dealt with their disciplinary action. Those arguments always fail. If, however, you address the underlying event or conduct candidly and with accountability, my experience is one in which agencies are willing to consider what you have to say. All in all, the administrative grievance process when used appropriately is worth consideration.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington DC. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk“ program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com. View her blog at blogs.federaltimes.com/federal-law.

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Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

1 Comment

  1. “…,theoretically free from reprisal.” I worked for HUD for 20 years and reprisal was ubiquitous. Managers have no fear of being disciplined for their actions, so there is nothing to prevent them from doing as they please.

    Even when they are found to have violated an employees rights through the EEOC process, they have no concern about being disciplined. Neither the EEOC, nor the MSPB, have the authority to order that disciplinary action be taken against a responsible management official who has been found guilty. It is up to the agency to determine whether to impose disciplinary action. At HUD, managers were never disciplined.

    My experience is described below:

    http://emailwire.com/release/114403-Mirza-Orriols-ne-NegronMorales-HUDs-Deputy-Regional-Administrator-for-New-York-Found-Guilty-by-EEOC-of-Repeatedly-Intentionally-Discriminating-Against-an-Employee-in-Her-Department.html

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