Attorney Gregory A. Hall has been representing federal employees since 1995. He represents federal employees from many states on various types of administrative and judicial claims. In addition to representing OWCP claimants, Mr. Hall takes EEO, MSPB and OPM disability cases. He has an active state and federal court practice as well.

For information go to: WWW.DENVEROWCPATTORNEY.COM

Gregory A. Hall
A Federal Workers’ Comp Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

]]> http://adenverlawyer.com/blog/2009/05/04/denver-owcp-attorney/feed/ 0 http://adenverlawyer.com/blog/2009/05/04/federal-employees-filing-a-discrimination-claim-understanding-the-federal-sector-eeo-process/ http://adenverlawyer.com/blog/2009/05/04/federal-employees-filing-a-discrimination-claim-understanding-the-federal-sector-eeo-process/#comments Mon, 04 May 2009 04:55:30 +0000 Greg http://adenverlawyer.com/blog/?p=64 When a federal employee believes s/he has been the subject of discrimination or retaliation, s/he must go through an administrative process in an attempt to resolve the situation. To start the EEO complaint process the employee must contact the Agency’s EEO counselor within 45 days of the last discriminatory or retaliatory incident.

An employee who misses the 45 day deadline can attempt to have the time limit extended by showing that 1) s/he was not notified of the time limits and were not aware of them, 2) s/he did not and reasonably should not have known that the discriminatory matter occurred; or 3) despite due diligence, s/he was prevented by circumstances beyond his or her control from contacting the EEO counselor within the 45 day time limit (for example, because of being hospitalized). Be advised, it is extremely difficult to prove that a person who misses any deadline should be granted an extension. Keep in mind, the EEO counselor works for the Agency against whom the complaint is being filed.

If you are a federal employee and you file an EEO Complaint, you are referred to as the Complainant. After you make contact with the EEO Couselor, within a few days the counselor is supposed to meet with you to discuss your claims. The counselor may have you fill out what is called pre-complaint paperwork. Keep in mind that everything you write down can be used against you, so before you start filling out paperwork it might be in your best legal interest to consult with a qualifed lawyer. The counselor is supposed to advise you about the EEO process, but is not supposed to give legal advice. After learning about your complaint, the counselor is supposed to speak to management about your concerns and attempt to resolve the complaint. Only rarely are complaints resolved in the counseling stage, but it does happen. EEO counseling is supposed to last 30 days, but it often takes longer. Sometimes the Agency will ask that you extend the counseling period.

ADR stands for alternative dispute resolution, which involves mediation. It may be to your benefit to resolve a complaint before the working relationship becomes strained over the litigation, since an early resolution will typically allow both parties to move on and save face. However, mediation will only work both parties commit to getting the complaint resolved, which means that both parties need to make reasonable demands.

After the counseling period, the counselor issues the employee a Notice of Right to File a Formal Complaint, along with a complaint form. The employee has 15 days from receipt of the Notice to file a formal complaint. The complaint needs to contain enough information so that the facts alleged support what is called a prima facie case of discrimination. If you do not include enough material allegations, your complaint could be dismissed. Besides setting forth sufficient facts to support a claim, you need to indicate the bases of discrimination (for example, sex (female), disability (asthma), and retaliation (prior EEO activity)). The complaint should describe discriminatory incidents, including retaliation. Your description should include dates and identify key persons who may have observed the discriminatory conduct. The complaint should name the individuals alleged to be responsible for the discrimination or retaliation, also called the Responsible Management Officials (RMOs). The complaint should state the remedy requested. It is sufficient to state: “I’m requesting all relief to which I am entitled to under law, including compensatory damages, attorney’s fees and costs.”

After filing the formal complaint, the Agency may issue an acceptance letter, an acceptance and partial dismissal letter, or a dismissal letter, accepting or denying the claims in the formal complaint. It is important that you, as the Complainant, review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allotted, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but the issue will be preserved for appeal or trial. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.

If the Agency accepts the complaint, it assigns an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The investigator is supposed to impartially gather relevant facts concerning the allegations raised in the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written affidavits. The investigator usually starts the investigation by interviewing the Complainant. It is very important that you give a full and complete version of the facts during the investigation. Be sure to describe how you were treated differently or harassed, including comparing yourself to others outside your protected class. You need to show how others outside your protected class were treated more favorably, how, by whom, and when. You are better off being concise in all your statements, since the more you say, the more you have to defend. You must also provide the investigator with any relevant documents that support your case, even if the investigator does not request it. Notify the investigator in writing of any supportive witnesses, summarizing for the investigator the anticipated testimony of each witness. Notify the investigator in writing of any supportive documents that you know about but are not in your possession.

Typically, after obtaining information from the Complainant, the investigator then questions the management witnesses and the discriminating official. After the investigator gathers information from management witnesses, the investigator often gives the Complainant a chance to rebut management’s allegations. If given the opportunity, you should rebut as many relevant allegations you can, point-by-point. At the end of the investigation the EEO Investigator generates an “Investigative File” (IF) or “Report of Investigation” (ROI), which contains the documents generated during the investigation. Usually, the ROI is the only information the Administrative Judge (AJ) will have regarding your case until hearing, assuming you get to a hearing. That is why it is so critical that the Complainant ensures that the EEO Investigator is provided complete and quality information about the case. On rare occasion the EEO Investigator will produce a quality ROI, but be forewarned, usually the investigation is bare bones and favors the Agency.

The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the receipt or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, setting forth many important deadlines, with which the parties must comply or risk prejudicing their case. The order specifies the deadlines for discovery. Discovery includes interrogatories, requests for production, requests for admissions, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyers for each side asking the deponent about the case. Transcripts from depositions can be used at hearing.

It is the Complainant’s burden to prove his or her case. The evidence must convince the AJ that a motivating factor of the decision maker was based on an illegal reason; e.g., the Complainant’s gender. Generally speaking, the Judge will follow the McDonnell-Douglas framework in determining whether or not the Complainant has met his or her burden of proof. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). The three part McDonnell-Douglas test is:

1. The complainant bears the burden of production to show a ‘prima facie’ case of discrimination;

2. If the complainant shows a ‘prima facie’ case, the burden of production shifts to the Agency to show that they had a legitimate non-discriminatory reason for the action complained of;

3. If the Agency shows a legitimate non-discriminatory reason for its action, the burden of production shifts back to the complainant to show what is called ‘pretext’.

It is important to note, however, that in the law there is a large difference between a “burden of production” and a “burden of persuasion”. The burden of production means only that the party must put forth evidence of the particular element. If the Complainant produces circumstantial evidence that discrimination occurred, then the Agency responds by offering evidence that no discriminatory act occurred, which is called a legitimate non-discriminatory reason.

In an EEO case, the Complainant has the burden of persuasion on each claim made asserted by the Complainant. The Agency only has the burden of persuasion if it asserts an affirmative defense. The burden of persuasion, on the other hand, means that the Complainant must persuade the finder-of-fact (in Federal Employee EEO cases, this is the EEOC AJ) that his or her evidence is superior to the Agency’s and is sufficient to prevail on each element of every claim. In other words, when there is conflicting evidence on an issue, the AJ decides who to believe. There are many human factors that go into making credibility determinations that will dictate the outcome of the case.

You can file a federal court lawsuit if one of the following conditions are present:

1) 180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.

2) You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.

3) You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency.

You have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.

If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.

Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

The information on this blog or website is not legal advice. For more information about the federal sector EEO process go to the EEOC’s web site at: http://www.eeoc.gov/facts/fs-fed.html

Contact Denver EEO Attorney Gregory A. Hall to set up an appointment for a legal consultation: WWW.DENVEREEOLAWYER.COM

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Pursuant to the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16, persons have the right to equal federal employment opportunities regardless of their race, color, sex, national origin, religion, age, disability, or prior EEO activity. This includes protection against illegal harassment.

45 Days to File a Discrimination Claim

The federal government’s EEO process differs sharply from the private sector’s. See the EEOC’s website for more information at http://www.eeoc.gov/facts/fs-fed.html

A federal employee has only 45 calendar days to contact a designated EEO counselor at their agency to file an informal complaint of discrimination from the date of discrimination. The regulations provide that initial EEO counseling is to be completed within 30 days unless the employee agrees to an extension of time or agrees to submit their complaint to an agency alternative dispute resolution process, which will extend the EEO counseling process for an additional 60 days. If the complaint isn’t resolved within that time, then the employee will be issued a written notice of the right to file a formal EEO complaint within 15 calendar days of receiving that notice.

Once a formal EEO complaint is filed, the employee’s agency will accept or dismiss the complaint, in whole or in part. If accepted, the agency will conduct an investigation into the accepted issues. The regulations provide that the investigation is to be completed within 180 calendar days from the date on which the formal complaint was filed. The agency investigation consists of some sort of fact-finding. At the conclusion of the investigation, the agency will issue a report of investigation that includes all the evidence gathered by the EEO investigator. The employee has three options:

1. request a hearing before an EEOC administrative judge;
2. have the employing agency issue a written final decision; or
3. opt out of the administrative process and file a civil action in federal district court

The employee may appeal the final agency decision (issued either after or instead of the EEOC hearing) to the EEOC headquarters in Washington, D.C. and may file their civil action in federal court at any time after the formal complaint has been pending for more than 180 days (even after the EEOC’s final appellate decision is issued).

Since 1995 Attorney Gregory Hall has represented federal employees before the EEOC. He has represented clients throughout the EEO process, from filing complaints with the EEO counselor to filing complaints in Federal District Court. The information on this blog or website is not legal advice. Contact Mr. Hall to set up an appointment to evaluate your case.

Denver EEO Attorney: http://www.denvereeolawyer.com

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Internal Revenue Service
Whistleblower Office
SE:WO
1111 Constitution Ave., NW
Washington, D.C. 20224

FULL DISCLOSURE

If the whistleblower withholds available information, the whistleblower bears the risk that withheld information may not be considered by the Whistleblower Office in making any award determination.

If the documents or supporting evidence are known to the whistleblower but not in his/her possession, the whistleblower should describe these documents and identify their location to the best of his or her ability.

Except in the most unusual cases involving boxes of data, the whistleblower should include the evidence with the initial submission. Contact the Whistleblower Office for guidance if there is a question on what to submit. Under no circumstance does the IRS expect or condone illegal actions taken to secure documents or supporting evidence.

No specific format is required; howevever, an index to exhibits, particularly when they are voluminous, is always helpful.

Examples of claims that will not be processed under 7623(b) include:

• The informant is an employee of the Department of Treasury, or is acting within the scope of his or her duties as an employee of any Federal, State, or local Government.
• The individual is required by federal law or regulation to disclose the information, or the individual is precluded by federal law or regulation from making the disclosure.
• The individual obtained or was furnished the information while acting in his or her official capacity as a member of a State body or commission having access to such materials as Federal returns, copies or abstracts.
• The individual had access to taxpayer information arising out of contract with the federal government that forms the basis of the claim.
• The claim is found to have no merit or the claim lacked sufficient specific and credible information.
• The claim was submitted anonymously or under an alias.
• The claim was filed by a person other than an individual (e.g., corporation or partnership)
• The alleged noncompliant taxpayer is an individual whose gross income is below $200,000.

Examples of claims that will not be processed under 7623(a)

• The individual is an employee of the Department of Treasury, or is acting within the scope of his or her duties as an employee of any Federal, State, or local Government.
• The individual is required by federal law or regulation to disclose the information, or the individual is precluded by federal law or regulation from making the disclosure.
• The individual obtained or was furnished the information while acting in his or her official capacity as a member of a State body or commission having access to such materials as Federal returns, copies or abstracts.
• The individual had access to taxpayer information arising out of contract with the federal government that forms the basis of the claim.
• The claim is found to have no merit or the claim lacked sufficient specific and credible information.
• The claim was submitted anonymously or under an alias.
• The claim was filed by a person other than an individual (e.g., corporation or partnership)

To talk to a whistleblower lawyer about your potential Award contact Whistleblower Attorney Gregory A. Hall at: WWW.AWHISTLEBLOWERLAWYER.COM

Gregory A. Hall
A Colorado Personal Injury Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Prior to the enactment of this law, injured people were at a huge disadvantage in bringing claims against insurance companies, largely because the cost of bringing the lawsuit outweighed the potential benefits of obtaining a recovery. House Bill 08-1407 gives people the power to take legal action when insurance companies fail to pay their claims in a reasonable and timely manner. Potential remedies under the law include past benefits owed, double damages, and attorneys’ fees. So if you have a claim worth $35,000.00, and you prove the insurance company unreasonably delayed or denied paying the claim, then under House Bill 08-1407 you could receive double the $35,000.00, plus your attorney’s fees.

If you believe an insurance company has unreasonably delayed or denied your claim please contact: WWW.ADENVERPERSONALINJURYATTORNEY.COM

Gregory A. Hall
A Colorado Personal Injury Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Title VII, the ADA, the ADEA, and the PDA protect employees from unlawful discrimination and harassment based on:

• Age
• Race, color or national origin
• Gender or pregnancy
• Religious affiliation
• Marital status
• Disability

Employers with 15 or more employees (20 or more for age discrimination), employment agencies, unions, local, state and federal agencies must obey these laws.

Some race claims can also be filed under 42 U.S.C. § 1981.

RETALIATION

Title VII makes it is illegal for employers to retaliate against employees who:

• Engage in protected activity by opposing discrimination in the workplace
• Engage in protected activity by participating in the discrimination process

Some retaliatory claims can also be filed under 42 U.S.C. § 1981.

FAMILY AND MEDICAL LEAVE ACT (FMLA)

An eligible employee may take up to 12 weeks of leave per year without the fear of losing his or her job for several reasons, including: (i) To care for a newly born baby or adopted child; (ii) To obtain treatment for a serious illness or injury, or to recover from a serious illness or injury; (iii) To provide care to a close family member who has a serious ailment or health condition.

There are other laws that protect:

• Whistleblowers
• People who assert their rights for overtime pay
• People who file a claim for worker’s compensation
• People who participate in other lawful activities not related to work, such as political activity

If you believe you have been discriminated against, retaliated against, or had other civil rights violated, you should consult with a qualified civil rights attorney so that you can not only inform yourself of your rights, but also of your obligations under the law. Many times employees compromise their claims against the employer because they do not understand their obligations under the law.

EXHAUSTATION OF ADMINISTRATIVE REMEDIES

In most circumstances, any person who intends to file a lawsuit based on discrimination must first exhaust their administrative remedies by filing a charge of discrimination with Equal Employment Opportunity Commission (EEOC) the Colorado Civil Rights Division (CCRD). A person should not delay in filing the charge, since if the discrimination occurred in Colorado, the charge must be filed within 300 days from the date of when the discrimination occurred. In some states the time for filing a charge is only 180 days. Federal employees are required to contact the proper EEO Counselor within 45 days.

CHARGE OF DISCRIMINATION

Information about filing a charge of discrimination can be found at http://eeoc.gov. Before filing a charge, or contacting an EEO Counselor, a person will be well advised to first consult with a qualified civil rights attorney if time allows. Keep in mind that employment law is highly specialized, so make sure any lawyer you consult with or retain has the necessary expertise.

If you need legal counsel, contact Denver Civil Rights Attorney Gregory A. Hall at http://denvertitleviilawyer.com

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

IMMEDIATELY report all serious injuries to your supervisor. If you have suffered a traumatic injury file a Form CA-1. If you have suffered an occupational illness, then file a Form CA-2.

Obtain current OWCP forms at http://www.dol.gov/esa/owcp/dfec/regs/compliance/forms.htm

When submitting documentation, either to the OWCP or your employing agency, you need to prove that you actually submitted it, so keep a date stamped copy or some other type of receipt, such as a fax confirmation.

If you are hurt on the job, you have the RIGHT to choose your own doctor. Choosing your own doctor is in some ways the most critical choice you make in terms of advancing your OWCP claim. Having a doctor you trust is critical. Your doctor decides whether your injury is work-related and how serious it is. Moreover, if the OWCP sends you to a second opinion or referee examination, it is only your doctor who is in a position to respond to the OWCP’s doctors. Management cannot dictate which doctor you see for treatment, nor does management have a legal right to speak with your doctor without your permission.

If you receive treatment at an emergency room, when you are released insist on choosing your own doctor. Management, or the emergency room staff, may try to steer or force you to see a contract doctor or clinic. These doctors or clinics are under contract with the employing agency. Do not let this happen, do not accept the referral, but instead insist on picking your own doctor.

If you are able to return to work with restrictions, then you need to have your doctor complete a work restriction OWCP Form 5a, 5b, or 5c. In addition, have your employing agency prepare a Form CA-17 for your doctor’s consideration. The CA-17 describes your usual work activities and management is required to complete “Side A” of the form. Once “Side A” has been completed, make sure it is accurate. If it is accurate, then take it to your doctor who then then should complete ALL items on “Side B” of Form CA-17.

If your injury is serious and you have problems returning to work after a few weeks, then you should seek legal counsel from a federal workers’ comp attorney: http://www.federalworkerscomplawyer.com

Gregory A. Hall
A Federal Workers’ Comp Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

For more information about the OWCP claims process, read the Injury Compensation for Federal Employees Publication CA-810 which you can find at: http://www.dol.gov/esa/owcp/dfec/regs/compliance/DFECfolio/agencyhb.pdf

Case Summary: In response to questions from an official of respondent local government (Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes, but soon fired Crawford, alleging embezzlement. She filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes’s behavior, in violation of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any … employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter” (opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The court granted Metro summary judgment, and the Sixth Circuit affirmed, holding that the opposition clause demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation, and finding that the participation clause did not cover Metro’s internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.

Held: The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford’s statement is thus covered by the opposition clause, as an ostensibly disapproving account of Hughes’s sexually obnoxious behavior toward her. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question. Metro unconvincingly argues for the Sixth Circuit’s active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to enquiries. Employers, however, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 , and Faragher v. Boca Raton, 524 U. S. 775 , hold “[a]n employer … subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with … authority over the employee.” The Circuit’s rule could undermine the Ellerth-Faragher scheme, along with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses. Because Crawford’s conduct is covered by the opposition clause, this Court does not reach her argument that the Sixth Circuit also misread the participation clause. Metro’s other defenses to the retaliation claim were never reached by the District Court, and thus remain open on remand. Pp. 3–8.

211 Fed. Appx. 373, reversed and remanded.

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.

For legal counsel on your retaliation or civil rights case, contact Denver Civil Rights Attorney Gregory A. Hall at:

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

]]> http://adenverlawyer.com/blog/2009/01/28/supreme-court-issues-nearly-unanimous-decision-on-title-vii-retaliation/feed/ 0 http://adenverlawyer.com/blog/2009/01/25/owcp-faq/ http://adenverlawyer.com/blog/2009/01/25/owcp-faq/#comments Sun, 25 Jan 2009 04:28:07 +0000 Greg http://adenverlawyer.com/blog/?p=22

FEDERAL WORKERS’ COMP FAQ’S

OWCP LAWYER GREGORY A. HALL

WHAT IS THE FEDERAL EMPLOYEES’ COMPENSATION ACT (“FECA”)?

The Federal Employees’ Compensation Act (FECA), 5 USC Chapter 81, provides compensation benefits to Federal employees for work-related injuries or illnesses, and to their surviving dependents if a work-related injury or illness results in the employee’s death.

WHO ADMINISTERS THE FECA?

The FECA is administered by the Department of Labor, Office of Workers’ Compensation Programs (OWCP). The 12 OWCP district offices adjudicate the claims and pay benefits, and the costs of those benefits are charged back to the employing agency.

IF I AM HURT ON THE JOB DO I GET TO PICK MY OWN DOCTOR?

Absolutely! Many injured workers are directed by management to clinics or doctors who are under contract with the employing agency. Seeing one of these contract doctors is typically a huge mistake. Help your claim by picking your own doctor. You may want to visit an archived article on this federal worker’s compensation forum entitled a “Guide for Injured Federal Workers” to read more about selecting your own doctor and some other potential pitfalls.

WHERE DO I GET ALL THE OWCP FORMS I NEED?

Most forms can be found at this OWCP website: forms website. If the form is not on this website, then you need to obtain the form from the OWCP District Office handling your claim or from your employing agency.

HOW DO I FILE AN OWCP CLAIM?

You need to complete and submit either the CA-1, “Federal Employee’s Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation” or the CA-2 “Notice of Occupational Disease and Claim for Compensation”. A traumatic injury is one that can be pinpointed to have occurred during one particular work shift – falling down the steps for example. If the injury or medical condition developed over two or more work shifts, it’s an occupational disease claim. Both the CA-1 and the CA-2 can be found at OWCP’s forms website.

If you are submitting a CA-2, you also need to complete the appropriate CA-35 “Evidence Required in Support of a Claim for Occupational Disease” form/checklist. There are several of these detailing the different sorts of documentation to be submitted depending on the type of occupational disease. They are all included in one document at the aforementioned site.

If you are still employed by the Federal agency where you worked when the injury occurred, submit the requested documentation to your employing agency. Be sure to keep a copy of everything for your records. Your agency will complete their portion of the CA-1 or CA-2 and submit the entire packet to the Office of Workers’ Compensation Programs (OWCP) district office. OWCP will advise you of the claim number which has been established. The district office will review the information submitted and will determine if there is sufficient information to adjudicate the claim. If there is, they will issue a decision on whether they can accept the claim or not. If there is insufficient information to adjudicate the claim, they will send you a letter advising of the additional information needed.

If you are no longer employed by the Federal Agency send the completed claim form along with supporting documentation directly to the OWCP district office. District office jurisdiction is determined by where you live. A listing of the district offices is on line. Include a cover letter advising that you are no longer employed by the agency. OWCP will contact your former agency regarding the completion of their portion of the claim form. OWCP will advise you of the claim number which has been established and will advise if additional information is needed to adjudicate your claim.

For more information about the OWCP claims process, read the Injury Compensation for Federal Employees Publication CA-810 which you can find at: http://www.dol.gov/esa/owcp/dfec/regs/compliance/DFECfolio/agencyhb.pdf

WHAT BENEFITS DOES FECA PROVIDE?

If you are a federal employee and have suffered a work related injury, you may be entitled to one or more of these benefits:

• Medical
• Wage loss
• Schedule award for a permanent injury to specific limbs or organs
• Death benefits
  

HOW SHOULD I HAVE MY MEDICAL CARE PAID FOR?

If the OWCP accepts your claim it is important that you make sure that your medical care providers bill the OWCP for your care, as opposed to your health insurance provider. For one thing, with the OWCP you there is no co-pay, so that saves you money. Additionally, to keep your claim open administratively you must make sure that the OWCP receives bills for treatment on a regular basis. Under the OWCP your treatment options are typically greater than under most health insurance policies.

HOW DO I REQUEST WAGE LOSS COMPENSATION?

If you have a loss of wages and are in Leave Without Pay (LWOP) status as a result of the accepted condition(s) on your claim, you need to file a CA-7 “Claim for Compensation” with your agency. If the period claimed on the CA-7 is intermittent, you need also to complete a CA-7a “Time Analysis Form”. These forms are available on the OWCP’s webiste: forms website. You need to provide medical documentation supporting any periods of disability claimed. Your agency will complete their portion of the CA-7 and submit it and the medical documentation to OWCP. OWCP will determine if there is sufficient information on file to pay compensation for the periods claimed or if further information/development is needed.

DO I NEED TO HIRE AN OWCP LAWYER?

Most claims do not require you to hire a lawyer. However, if your injury is serious and you have problems returning to work after a few weeks, then you should probably seek legal counsel from a federal workers’ comp attorney: http://www.federalworkerscomplawyer.com

Keep in mind that the FECA is highly specialized, so make sure any lawyer you consult with or retain has the necessary expertise.

Gregory A. Hall
A Federal Workers’ Comp Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

A whistleblower discloses information concerning a violation of any law, rule or regulation, or concerning gross mismanagement, a gross waste of funds, fraud, an abuse of authority, or a substantial and specific danger to public health or safety. There a multitude of laws protecting whistleblowers. This information pertains to Whistleblower complaints filed by federal employees over which the Merit Systems Protection Board (“Board”) has jurisdiction. The information contained herein is not exhaustive, nor does it constitute legal advice, but is intended to provide an overview of whistleblower protections. Whistleblowers should consult with a whistleblower lawyer to obtain legal advice.

WHISTLEBLOWER PROTECTION ACT

On July 9, 1989, the Whistleblower Protection Act of 1989 (Public Law 101-12) became effective. Congress enacted this law to strengthen protections for Federal employees, former employees, and applicants for employment who claim that they have been subject to personnel actions because of whistleblowing activities. The 103rd Congress further expanded whistleblower protections by enacting Public Law 103-424, which became effective October 29, 1994, making additional personnel actions subject to coverage and extending whistleblower protections to employees of Government corporations and to employees in the Veterans Health Administration.

The Merit System Protection Board has jurisdiction over some whistleblower claims made by federal employees or applicants for employment with federal agencies; e.g., different rules and procedures apply to FAA employees. Regulations governing the BOARD appeals process are contained in Title 5 of the Code of Federal Regulations (CFR), Chapter II, Part 1201. In addition to Part 1201, whistleblower appeals are governed by regulations found at 5 CFR 1209: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=275131&version=275443&application=HTML.

WHISTLEBLOWER APPEALS BEFORE THE BOARD

It is a prohibited personnel practice for an agency to subject you to a personnel action if the action is threatened, proposed, taken, or not taken because of whistleblowing activities. You are protected if you make such a disclosure to the Special Counsel, the Inspector General of an agency, or another employee designated by an agency head to receive such disclosures. You are also protected if you make such a disclosure to any other individual or organization (e.g., a congressional committee or the media), provided that the disclosure is not specifically prohibited by law and the information does not have to be kept secret in the interest of national defense or the conduct of foreign affairs.

The Office of Special Counsel has jurisdiction over prohibited personnel practice complaints with respect to a broad range of personnel actions, including appointments, promotions, details, transfers, reassignments, and decisions concerning pay, benefits, awards, education, or training. A whistleblower may file a complaint with the Special Counsel with respect to most personnel actions allegedly based on whistleblowing. Prior to the Whistleblower Protection Act, if a whistleblower filed a complaint with the Special Counsel and the Special Counsel did not seek corrective action from the Board, no further recourse was available, unless the action was directly appealable to the Board.

Under the Whistleblower Protection Act, a whistleblower may appeal directly to the Board if he first complains to the Special Counsel and the Special Counsel does not seek corrective action on his behalf. This right exists with respect to any personnel action that can be the subject of a prohibited personnel practice complaint to the Special Counsel, even though the action may not be directly appealable to the Board.

A whistleblower has the right to appeal directly to the Board if he is subject to a personnel action that is appealable to the Board. The Whistleblower Protection Act does not change that. Actions that are directly appealable to the Board include adverse actions, performance-based removals or reductions in grade, denials of within-grade salary increases, reduction-in-force actions, and denials of restoration or reemployment rights.

TWO KINDS OF WHISTLEBLOWER APPEALS

There are two kinds of whistleblower appeals. The principal difference between the two is in the way they reach the Board.

1. Otherwise Appealable Action: In the first kind of case, the individual is subject to a personnel action that is directly appealable to the Board, and the individual claims that the action was taken because of whistleblowing. This kind of case is referred to by the Board as an “otherwise appealable action,” and the individual may file an appeal directly with the Board after the action has been taken.

2. Individual Right of Action: The second kind of case was created by the Whistleblower Protection Act and is referred to as an “Individual Right of Action.” In this kind of case, the individual is subject to a personnel action and claims that the action was taken because of whistleblowing, but the action is not one that is directly appealable to the Board. In this kind of case, the individual can appeal to the Board only if he files a complaint with the Special Counsel first and the Special Counsel does not seek corrective action on the individual’s behalf.

An individual who is subject to a personnel action that is directly appealable to the Board, and who claims that the action was taken because of whistleblowing, may choose to file a complaint with the Special Counsel rather than appeal to the Board. If the Special Counsel does not seek corrective action on his behalf, the individual may then appeal to the Board. While this is considered an “otherwise appealable action,” the time limits for filing are the same as for an “individual right of action.”

Questions and Answers

1. Who may file whistleblower appeals with the Board?

The right to file an individual right of action appeal with the Board is determined by the employee’s eligibility under the “Prohibited Personnel Practices” statute (Title 5 of the United States Code, section 2302) to file a complaint with the Special Counsel alleging that a personnel action was taken because of whistleblowing. Covered employees include:

* Competitive service employees;
* Most excepted service employees in Executive agencies;
* Employees of Government corporations who allege whistleblower reprisal;
* Employees of the Government Printing Office; and
* Former employees of and applicants for employment with covered agencies.

Employees specifically excluded from coverage are those in the General Accounting Office, the FBI, and various intelligence agencies. A covered employee who files a whistleblower complaint with the Special Counsel becomes eligible to file an individual right of action appeal with the Board only if the Special Counsel does not seek corrective action on his or her behalf.

In the case of an otherwise appealable action, any employee eligible to appeal the particular action can appeal directly to the Board. The regulations applying to the particular action being appealed govern who may appeal that action. In general, competitive service and preference-eligible employees (e.g., veterans) have Board appeal rights with respect to most appealable actions. Most excepted service employees may appeal adverse actions and performance-based actions. Former employees and applicants for employment can appeal some actions.

If there is any question as to whether you come under the jurisdiction of the Special Counsel with respect to complaints of personnel actions allegedly based on whistleblowing, or under the Board’s jurisdiction with respect to actions that may be appealed directly to the Board, you should file your complaint or appeal with the Board in order to preserve your appeal rights.

2. How do I file a whistleblower appeal with the Board?

You must file your timely appeal in writing with the Board’s regional or field office serving the area where your duty station was located when the action was taken. This requirement applies to all whistleblower appeals, both otherwise appealable actions and individual right of action appeals. Appeals may be filed online via the MSPB eAppeal system or via paper form. See the Filing an Appeal section of this web site for links to eAppeal and the appeal form.

Your appeal must contain the following:

• All of the information required by the Board’s regulations at Title 5 of the Code of Federal Regulations, Part 1201, for other types of appeals, including the signature of the appellant or the appellant’s representative and a certificate of service stating how and when a copy of the appeal was served on the agency.

• A description of the whistleblowing disclosure and a chronology of facts concerning the personnel action–including the name and position of the person(s) taking the action.

• An explanation as to why you believe the personnel action is in reprisal for whistleblowing and any supporting evidence you have.

• In the case of a threatened action not yet taken, the specific indications giving rise to your apprehensions.

• If you have sought corrective action from the Special Counsel first, evidence that your appeal is being filed within the required time limits.

• Appeals may be filed by mail, by facsimile, by commercial overnight delivery, or by personal delivery. The date of filing by mail is considered to be the postmark date. The date of filing by facsimile is the date of the facsimile. The date of filing by commercial overnight delivery is the date you deliver the appeal to the commercial overnight delivery service.

3. What are the required time limits for filing a whistleblower appeal?

The time limits are different for an otherwise appealable action and for an individual right of action appeal.

Otherwise Appealable Action: You must file within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later. (If the filing deadline falls on a Saturday, Sunday, or Federal holiday, the filing deadline is extended to the next working day.) However, if you have been subjected to an otherwise appealable action and you choose to seek corrective action from the Special Counsel first, the time limits for appealing to the Board are the same as for an individual right of action appeal.

Individual Right of Action: The time limits for filing an individual right of action appeal depend on what the Special Counsel does with your complaint:

• If the Special Counsel notifies you that the office is terminating its investigation of your complaint, you have 65 days from the date of the Special Counsel’s written notice, or 60 days from your receipt of the notice, whichever is later, to file an individual right of action appeal with the Board.

• If 120 days pass after you file a complaint with the Special Counsel and that office has not notified you that it will seek corrective action on your behalf, you may file an individual right of action appeal with the Board anytime thereafter.

4. What is a “stay” and how does it apply to whistleblower appeals?

A stay orders the agency to suspend the personnel action being appealed. You may file a stay request with the Board in connection with either kind of whistleblower appeal–an otherwise appealable action or an individual right of action appeal. You may file a stay request at any time after you become eligible to file your appeal, but no later than the time limit the judge sets for close of discovery in the appeal. You may file a stay request before, at the same time as, or after you file your appeal. If you file the stay request first, you must file your appeal within 30 days after the judge rules on the stay request.

5. How do I file a stay request with the Board?

You file a stay request in writing with the same Board regional or field office where you file your appeal. You may file the request by personal delivery, by facsimile, by commercial overnight delivery, or by mail.

Your stay request must contain the following information:

• Your name and the names and addresses of the agency and your representative, if you have one.
• A chronology of the facts, including a description of the whistleblowing disclosure and the personnel action that the agency has threatened, taken or failed to take.
• An explanation as to why you believe the personnel action is based on whistleblowing. You should support your explanation with documentary proof because a stay will be granted only if you show a “substantial likelihood” that your appeal will succeed.
• An explanation as to how long the stay should remain in effect and whether the stay will cause a hardship on the agency.
• If you first sought corrective action from the Special Counsel, evidence that the request is timely filed.

6. How does the Board decide on a stay request?

After you have filed your stay request, the Administrative Judge will allow the agency an opportunity to comment and submit evidence. After considering all the arguments and evidence, the administrative judge will either grant or deny your request.

If your stay request is granted, the administrative judge will specify the time period during which the agency must suspend the personnel action. A typical stay order will suspend the personnel action indefinitely, until it is later modified or vacated by another Board order.

If your stay request is not granted, you may file a written request with the administrative judge asking that he refer your request and his decision denying your request to the Board members in Washington, D.C. for their review. This is called “petitioning” the administrative judge to “certify” his decision as an “interlocutory appeal.” The Board’s regulations regarding interlocutory appeals are found at Title 5 of the Code of Federal Regulations, Part 1201.

7. What are the burden of proof and degree of proof in whistleblower appeals?

In whistleblower appeals, you have the burden of proving by a preponderance of the evidence that whistleblowing was a contributing factor in the personnel action threatened, taken, or not taken against you. The Board will order the agency to correct the action if you demonstrate that the whistleblowing was a contributing factor in the personnel action. You may demonstrate that the whistleblowing was a contributing factor by showing that the official taking the action knew about the whistleblowing and that the action occurred within a time period such that a reasonable person would conclude that the whistleblowing was a contributing factor in the personnel action.

The Board will not order corrective action, however, if the agency demonstrates by clear and convincing evidence that it would have taken the same action in the absence of the whistleblowing. The clear and convincing standard of proof is a higher standard than the preponderance of the evidence standard that you must meet.

8. If I file a whistleblower appeal with the Board after the Special Counsel has terminated an investigation of my complaint, will that termination influence the Board’s decision?

No. Under the Whistleblower Protection Act, when the Board considers your appeal, it may not take into account the Special Counsel’s decision to terminate an investigation of your complaint. Moreover, if you file your appeal because 120 days have passed without your being notified that the Special Counsel will seek corrective action on your behalf, the Special Counsel may not proceed to seek corrective action without your permission. Furthermore, the Special Counsel may not intervene in your appeal before the Board without your permission.

9. What can I do if I am not satisfied with the administrative judge’s decision on my whistleblower appeal?

As is the case with other decisions on appeals to the Board, you have the right to ask the 3-member Board in Washington to review the initial decision of the administrative judge. You do this by filing a petition for review in accordance with the Board’s regulations at Title 5 of the Code of Federal Regulations, Part 1201. If no party files a petition for review, the initial decision of the administrative judge becomes final 35 days after it is issued. If a petition for review is filed, the decision issued by the Board becomes the final decision.

You may request judicial review of a final Board decision on your whistleblower appeal–either an initial decision of an administrative judge that has become final or the Board’s decision on a petition for review–by the U.S. Court of Appeals for the Federal Circuit. The court must receive your request for review within 60 days of your receipt of the Board’s final decision. The court normally will not waive this time limit and filings that do not meet the deadline will be dismissed.

To talk to a lawyer about your whistleblower claim contact Whistleblower Attorney Gregory A. Hall at: WWW.AWHISTLEBLOWERLAWYER.COM

Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue
Denver, CO 80206
Phone: 303-320-0584