By Deborah Hopkins, February 15, 2017

At FELTG we love to read your emails and are delighted to answer (almost) any question you have as a result of reading our articles. Here’s one we got in response to the December 2016 FELTG Newsletter article, EEO Complaint-ing a PIP? No Dice.

Ms. Hopkins:

Thank you for an interesting article.  You quote the Commission, “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”

So by extension, can an agency dismiss a complaint alleging discrimination in a leave-restriction letter?  How about all proposal notices informing the employee of impending discipline?  These are “preliminary steps,” for sure, and “without further action.”  The employee may well face discipline for violating the LR requirements or for the misconduct identified in the proposal notice, but per se, neither requires “further action.”

Why did the Commission single out only PIP notices?

And our FELTG response:

Dear FELTG Reader:

Thanks for the email. Why did the Commission single out only PIP notices by name? Your guess is as good as ours about the “why,” but here’s what we do know:

Under 29 CFR § 1614.107(a)(5), an Agency may dismiss an EEO claim that alleges a proposal to take a personnel action or other preliminary step to taking a personnel action. The only exception is the situation in which a non-appealable matter is a proposed action, the agency proceeds with the action and that action becomes final, in which case the proposal is said to “merge” with the final action. Wilson v. Dept. of Veterans Affairs, EEOC Appeal No. 0120122103 (Sept. 10, 2012). Keep in mind, though, these preliminary steps can still go in to evidence in a hostile work environment claim, and/or a reprisal claim.

Regarding the LRL, from a read of the cases it seems that placing an employee on a LRL could be considered an adverse action (under EEOC’s definition which is broader than MSPB’s), if placement on the LRL was motivated by discrimination. So yes, the LRL could provide the grounds for an acceptable complaint. See Brand v. Food Safety Inspection Service, EEOC Appeal No. 0120113592 (June 5, 2013).

Hope this helps. [email protected]

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