UNITED STATES DEPARTMENT OF AGRICULTURE
OFFICE OF HUMAN RESOURCES MANAGEMENT
WASHINGTON, D.C. 20250
PERSONNEL BULLETIN NO. 752-1
SUBJECT: Reprisal Actions Against Employees and Others
Attached and incorporated into this bulletin are the Department's policy
against reprisal and procedures to follow when employees have engaged in reprisal
actions against others. This bulletin results from recommendations made by the
Secretary's Civil Rights Action Team. Mission Areas and Agencies must meet
their bargaining obligations.
/s/
Roger L. Bensey
Director
Office of Human Resources Management
Attachment
INQUIRIES: Employee Relations and Development Division, Dave Spradlin,
(202) 690-3089, Room 47-W, Jamie L. Whitten Building
DISTRIBUTION: All DPM Holders
BULLETIN EXPIRES: December 31, 1998
********************************************************
DEPARTMENT OF AGRICULTURE
OFFICE OF HUMAN RESOURCES MANAGEMENT
POLICY ON REPRISAL
BULLETIN: 752-1
I. INDEX
Subpart A -- General Provisions
Sec.
752-101 Definitions.
752-102 Redelegation.
752-103 Informing employees.
Subpart B -- Reprisal
752-201 Prohibited conduct.
752-202 Reporting and investigating reprisal.
752-203 Reprisal panel.
752-204 Employee relations.
Appendix A -- Defining Reprisal
Appendix B -- Excerpt from USDA Guide for Disciplinary Penalties
Appendix C -- Roles and Responsibilities for the Reprisal Panel
II. POLICY
Subpart A -- General Provisions.
752-101 Definitions.
(a) "Agency" means a constituent Agency of a Mission Area
of the Department.
(b) "Agency Head" means the Administrator or Chief of an
Agency.
(c) "Department" means the United States Department of
Agriculture.
(d) "Head of Office" includes an "Agency Head," "Staff Office
Director," and an Under or Assistant Secretary of Agriculture.
(e) "Mission Area" means those components of the Department
that report to an individual Under or Assistant Secretary of Agriculture.
(f) "Reprisal" includes within its meaning the word "Retaliation."
A prima facie case of reprisal should be defined as determined by applicable law. For more,
see Appendix A, "Defining Reprisal."
(g) "Staff Office" means an Office not reporting to a Mission Area
or Agency (but which may receive administrative services from a Mission Area).
(h) "Staff Office Director" means the head of a Staff Office.
752-102 Redelegation.
Unless otherwise stated, any authority delegated in this Bulletin may be redelegated to a
level of management that has the experience and/or training to administer the delegation.
752-103 Informing employees.
(a) Within 30 days of publication of this Bulletin or subsequent
changes to it, Agencies will issue each employee a copy or notice of where the employee
can review it.
(b) Each new employee shall be furnished, at the time of hiring, a
copy of this Bulletin.
(c) With his/her copy of this Bulletin, each employee will receive
notification where to direct any questions about the Bulletin.
Subpart B -- Reprisal.
752-201 Prohibited Conduct.
(a) This Bulletin is limited to reprisal already made unlawful
under a statutory or regulatory provision. It is not intended to create any additional
right for employees.
(b) No employee may take reprisal against another, by word
or action:
(i) for filing complaints about safety problems;
(ii) for filing grievances under either negotiated or administrative grievance systems;
(iii) for filing complaints of discrimination;
(iv) for assisting investigators of the Department, Mission Areas, Agencies, or Staff
Offices; or
(v) for engaging in any other protected activity.
(c) No employee may take reprisal against a non-employee (a
"customer"), by word or action:
(i) for exercising his or her right to file an application for assistance of any kind or
to seek business of any kind with the Department;
(ii) for filing any complaint against an employee or against the Department, including
but not limited to a complaint of discrimination in program administration; or
(iii) for engaging in any other activity or relationship with the Department that is
granted by, or protected by, law or regulation.
(d) Nothing in (b) or (c) above shall be construed to limit or
hinder any employee in the exercise of his or her rights in response to accusations that
he or she engaged in acts of reprisal.
752-202 Reporting and investigating reprisal.
(a) Each employee of the Department is required to report
actions by other employees that he or she knows, or has a reasonable basis to believe,
are prohibited acts of reprisal.
(b) Each Mission Area shall establish one office at the
Headquarters level and such field offices as required for efficiency of operations to
receive allegations of prohibited acts of reprisal other than allegations of reprisal
arising from Equal Employment Opportunity (EEO) complaints that are addressed
below in 752-203. These offices will receive allegations from employees within the
Mission Area and from within any Staff Office to which the Mission Area provides
administrative services. Each Mission Area will publish to its employees the
existence of these offices and how the employees may contact them. It shall be the
responsibility of each head of such offices to evaluate each allegation and to:
(i) Conduct such administrative inquiry as required to determine if the allegation
warrants further investigation;
(ii) Terminate inquiry on allegations determined not to have merit, with
documentation showing the basis for the determination;
(iii) As needed, refer allegations for further investigation to an appropriate
investigative function;
(iv) Refer completed investigations to the servicing employee relations office
of the employee accused of the prohibited reprisal; and
(v) Maintain complete records of allegations received, inquiries terminated,
investigations conducted, and actions taken on the basis of investigations,
for purposes of making such reports as may be required by the Office of Human
Resources Management (OHRM).
( c) OHRM will develop forms for reporting information required
from the Mission Areas in (b) above and will consolidate the reports in a Department
Personnel Bulletin annually in January for the preceding calendar year.
752-203 Reprisal panel.
(a) Each Mission Area will establish one Reprisal Panel at its
headquarters. Reprisal Panels are concerned only with reprisal allegations arising from
EEO complaints. If consistent with efficiency of operations, an Under or Assistant
Secretary of Agriculture will establish one Reprisal Panel for separate geographic areas.
An Under or Assistant Secretary may organize the Reprisal Panels on a Mission
Area-wide basis, or he/she may require subordinate Heads of Office to organize them
within their respective organizations. Reprisal Panels will not have overlapping
designated geographic areas. Each Reprisal Panel will work independently of all others.
There will not be a hierarchy of Reprisal Panels, and one Reprisal Panel will not review
the work of any other Reprisal Panel. The Assistant Secretary for Administration will
establish a Reprisal Panel to consider allegations of reprisal made against a Head of
Office. Allegations of reprisal made against the Assistant Secretary for Administration
will be considered by a Reprisal Panel of officials from other Mission Areas.
(b) Each Reprisal Panel will consist of three persons:
(i) A Federal employee who should be from outside the Mission Area, Agency,
or Staff Office of the employee alleging reprisal and who should, if possible, be
trained in dispute resolution.
(ii) A Personnel Officer or other named representative of the Head of Office;
and
(iii) An employee named by the Union when the Reprisal Panel is formed at the
level of recognition of a bargaining agent (union) under the Federal Labor-
Management Relations Statute, or otherwise an employee named by majority
agreement of presidents of local chapters of all employee organizations. An
"employee organization" is one that has met the requirements of Department
Personnel Manual Chapter 252, Subchapter 1, "Professional Associations
and Other Organizations." "Local chapter" means the part of an employee
organization in the geographic area served by the Reprisal Panel.
(c) Reprisal Panels may be "standing" panels with
permanent membership or on an "as needed" basis.
(d) When the Office of Civil Rights (OCR) issues a Notice
Of Right To File A Formal Complaint (Notice) to an employee, it will provide a
copy to the appropriate Mission Area Personnel Officer and Head of Office of the
employee and supervisor.
(e) Within 45 days of receipt of the Notice from the
counselor, the Reprisal Panel shall complete the following actions:
(i) Review the counselor's notice;
(ii) Conduct such inquiry as it deems necessary to determine if there is a prima
facie case of reprisal made out and to determine whether the working conditions
of the employee should be adjusted while the equal employment opportunity
complaint is processed; and
(iii) Make such recommendations to the Head of Office or designee as the Panel
may deem appropriate under the given facts, and may include, but is not limited to,
the following:
(A) Recommending that the complaint of reprisal has no basis and should not
receive further administrative consideration by the Panel;
(B) Recommending that the employee and the supervisor or manager be
separated from working together during the processing of the equal employment
opportunity complaint;
(C ) Recommending that the Mission Area, Agency, or Staff Office consider
disciplinary action against the supervisor/manager in accordance with the USDA
Guide for Disciplinary Penalties (See Appendix B); and
(D) Recommending such other administrative actions as the Panel may deem
appropriate.
(f) The Reprisal Panel may base recommendations only
upon the record it develops.
(g) The Agency Head or his designee shall accept the
recommendation of the Reprisal Panel unless to do so would require the Agency
to violate law or existing regulation. The Secretary or designee of the Secretary
may review and revise or overturn a recommendation of the Reprisal Panel under
the following conditions:
(i) A request for review is signed by the Agency Head and Under Secretary/
Assistant Secretary to which the Agency Head reports, or by the Staff Office
Director;
(ii) The request is based on adverse impact of the recommendation on
efficiency of operations or budgetary constraints; and
(iii) The request fully sets forth, in writing, the facts supporting a review
and does not consist merely of conclusive statements.
(h) The processes followed by the Reprisal Panel are
separate from, and in addition to, EEO processes. No employee shall be denied
any right because of the operation of the Reprisal Panel. However, the Reprisal
Panel shall provide a copy of its file and recommendations in each case to OCR.
(i) Panel members may require instruction both as to the
requirements of this procedure and as to how to evaluate reprisal allegations. It
shall be the responsibility of Heads of Offices to ensure that appropriate
instruction is provided. This may be accomplished individually or by groups,
and in the manner most conducive to mission operations. For more on the Reprisal
Panel, see Appendix C.
(j) For record keeping purposes, all recommendations made
by Reprisal Panels will be submitted to the appropriate office established in accordance
with 752-202(b).
(k) Authority for Reprisal Panel activities terminates upon
the expiration date of this Bulletin. At or before the expiration of this Bulletin, activities
of the Reprisal Panels will be evaluated with reauthorization or modification of the
Reprisal Panels dependent upon the results of the evaluation.
752-204 Employee relations.
(a) The employee relations function within each Mission Area
Personnel Office shall be responsible for analyzing investigations of alleged acts of
prohibited reprisal, including recommendations from the Reprisal Panels, and for initiating
such disciplinary or adverse actions as are appropriate.
(b) Employee relations offices shall process disciplinary and
adverse action cases based on allegations of reprisal on a priority basis, ahead of all other
types of cases except violence in the workplace cases involving danger to employees and
Department property and ahead of other assigned employee relations functions.
(c) Employee relations personnel will process cases as close as
possible to the minimum time frames permitted by adverse action statute and regulations,
except where decisions of the Merit Systems Protection Board would dictate other practice.
(d) Each employee relations function shall maintain accurate
records of all cases it receives in accordance with this Bulletin and report on its actions to
the investigative office established under 752-202(b) above.
(e) OHRM will provide technical leadership to Mission Area
Personnel Offices in processing disciplinary or adverse action cases based on allegations
of prohibited reprisal.
APPENDIX A
PROHIBITING AND DEFINING "REPRISAL AND RETALIATION"
Note: The information in this Appendix is not a complete list of relevant
statutory and regulatory provisions.
I. PROHIBITIONS AGAINST REPRISAL AND RETALIATION
A. Federal Employment (29 C.F.R. 1614.101(b)).
No person shall be subject to retaliation for opposing any practice made
unlawful by Title VII of the Civil Rights Act (title VII) (42 U.S.C. 2000e et seq.), the Age
Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act
(29 U.S.C. 206(d)) or the Rehabilitation Act (29 U.S.C. 791 et seq.) or for participating
in any stage of administrative or judicial proceedings under those statutes.
B. Other unlawful employment practices (42 U.S.C. 2000e-3(a)).
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment, for an employment agency,
or joint labor-management committee controlling apprenticeship or other training or
retraining including on-the-job training programs, to discriminate against any individual,
or for a labor organization to discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.
C. Inspector General Act of 1978 ( 7(c )).
Any employee who has authority to take, direct others to take, recommend,
or approve any personnel action, shall not, with respect to such authority, take or
threaten to take any action against any employee as a reprisal for making a complaint
or disclosing information to an Inspector General, unless the complaint was made or
the information disclosed with the knowledge that it was false or with willful disregard
for its truth or falsity.
D. Voluntary Leave Bank Program (5 U.S.C. 6370).
(a) An employee may not directly or indirectly intimidate, threaten, or
coerce, or attempt to intimidate, threaten, or coerce, any other employee for the
purpose of interfering with any right which such employee may have with respect
to contributing, receiving, or using annual leave under this subchapter.
(b) For the purpose of subsection (a) the term "intimidate, threaten,
or coerce" includes promising to confer or conferring any benefit (such as an
appointment, promotion, or compensation), or effecting or threatening to effect
any reprisal (such as deprivation of appointment, promotion, or compensation).
E. Family and medical leave (5 U.S.C. 6385).
(a) An employee shall not directly or indirectly intimidate, threaten, or
coerce, or attempt to intimidate, threaten, or coerce, any other employee for the
purpose of interfering with the exercise of any rights which such other employee
may have under this subchapter.
(b) For the purpose of this section---
(1) the term "intimidate, threaten, or coerce" includes promising to
confer or conferring any benefit (such as appointment, promotion, or compensation),
or taking or threatening to take any reprisal (such as deprivation of appointment,
promotion, or compensation) . . . .
F. Merit system principles (5 U.S.C. 2301(b)(9)).
Employees should be protected against reprisal for the lawful
disclosure of information which the employees reasonably believe evidences---
(A) a violation of any law, rule, or regulation, or
(B) mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.
G. Prohibited personnel practices (5 U.S.C. 2302(b)).
Any employee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not, with respect to such
authority --
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
(3) coerce the political activity of any person (including the providing
of any political contribution or service), or take any action against any employee
or applicant for employment as a reprisal for the refusal of any person to engage
in such political activity;
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
(8) take or fail to take, or threaten to take or fail to take, a personnel action
with respect to any employee or applicant for employment because of --
(A) any disclosure of information by an employee or applicant which
the employee or applicant reasonably believes evidences . . .
(i) a violation of any law, rule, or regulation, or . . .
(ii) gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety, --- if such
disclosure is not specifically prohibited by law and if such information is not
specifically required by Executive Order to be kept secret in the interest of national
defense or the conduct of foreign affairs; or
(B) any disclosure to the Special Counsel, or to the Inspector General
of an agency or another employee designated by the head of the agency to
receive such disclosures, of information which the employee or applicant
reasonably believes evidences --
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety,
(9) take or fail to take, or threaten to take or fail to take, any personnel
action against any employee or applicant for employment because of---
(A) the exercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation;
(B) testifying for or otherwise lawfully assisting any individual
in the exercise of any right referred to in subparagraph (A);
(C ) cooperating with or disclosing information to the Inspector
General of an agency, or the Special Counsel, in accordance with applicable
provisions of law; or
(D) for refusing to obey an order that would require the individual
to violate a law; . . . .
Appendix B
Excerpt from USDA Guide for Disciplinary Penalties
PENALTY FOR PENALTY FOR
TYPES OF MISCONDUCT FIRST OFFENSE SUBSEQUENT
OFFENSE
11. DISCRIMINATORY PRACTICES (Penalty should take into consideration whether violation is
willful/deliberate, or careless/negligent.)
b. Any reprisal or retaliation action
against an individual involved in the
EEO compliant process. 5-Day Suspension to Removal Removal
13. PROHIBITED PERSONNEL PRACTICES (NOT ELSEWHERE COVERED.)
Abuse of authority and commission
of a prohibited personnel practice
covered by 5 U.S.C. 2302 Letter of Reprimand to Removal Removal
APPENDIX C
ROLES AND RESPONSIBILITIES FOR THE REPRISAL PANEL
Once an employee has been issued a Notice Of Right To File A Formal EEO
Complaint (Notice), the role of this panel is to review the complaint of reprisal
against USDA employees. The panel members should be unbiased and neutral.
If panel members are unable to be neutral for a specific case, they should decline
to review the case.
Panel members should review all documentation received from OCR in making
a determination. Please note that panel members are not investigators. If
additional information or clarification is deemed necessary, the panel members
are responsible for the fact-finding necessary for a fair and equitable decision.
The purpose of this panel is mainly fact-finding so as to come to a decision for
the possible separation of employees from one another or the adjustment of
working conditions to alleviate volatile or stressful situations. A reprisal panel,
in making its recommendation, may rely on any information it obtains, both from
the ongoing investigation of the EEO complaint or any other source. Reprisal
panel members are not to wait for the completion of the EEO complaint to make
a recommendation, but should do so within 45 days of receipt of a copy of the
counselor's Notice, as provided in 752-203(e). The decision of the panel is
binding except as provided in 752-203(g).
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Personnel Bulletin No. 752-1