EEO Law and Personnel Practices, Third Edition

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Nepotism is addressed at prohibited personnel practice number 7. Specific restrictions on the employment of relatives are also set forth at 5 U. The civil service system is based on the idea that employees should be selected through fair and open competition and promoted on the basis of their individual merit. The proscription is not absolute. Rather it tracks the general societal construct that, other than in family-run private businesses, favoritism towards relatives is fraught with potential conflicts that might impede any meritocratic enterprise.

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In order to limit even the appearance of improper favoritism towards relatives, this provision assures that public officials cannot use their influence to advance their relatives in hiring or career advancement. It does not prohibit family members from honorable public service, but simply proscribes improper influence by their relatives in derogation of the merit system. For prohibited nepotism to occur there must be the act of advocacy. For example, in Wallace v. Department of Commerce , M. In other words, the necessary advocacy or act to further the sister's employment was missing from this case.

The Board made a similar finding in Alexander v. Department of the Navy , 24 M. It is, perhaps, interesting to note that the proscription against nepotism, for which the relevant relationships are so clearly defined, does not include some modern relationships which, though not spousal, are similarly close, e. Improper favoritism involving such relationships would be prohibited under some other PPP, e.

Nor does PPP number 7 extend to the hiring of friends and acquaintances. Nichols , 36 M. How does the issue of prohibited nepotism arise in MSPB cases? An example of the latter is Hudson v. Department of Veterans Affairs , M. The case will be heard by an administrative law judge who will make an initial decision that can be appealed to the Board. An individual employee also could raise this provision as an affirmative defense to an adverse action by an agency that is within MSPB's jurisdiction, such as a removal. Absent an otherwise appealable matter, MSPB does not have jurisdiction to hear a claim by an individual as opposed to OSC that prohibited personnel practices have been committed.

What penalties may MSPB impose for violations of this provision? For over 30 years MSPB has surveyed Federal employees to determine their perceptions of the incidence of prohibited personnel practices in the Federal civilian service. Results of survey items pertaining to nepotism were most recently summarized in the report, Prohibited Personnel Practices: Employee Perceptions. According to this report, perceived violations of this provision have decreased steadily in the last 15 years. In , only 1. This may explain the paucity of cases substantively addressing nepotism issues.

All MSPB study reports can be found at www.

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It is codified at 5 U. What is the eighth prohibited personnel practice? Under the law, 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 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 — any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences— a violation of any law, rule, or regulation, or 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.

In addition, even disclosures that are prohibited by law or required to be kept secret are protected if they are made to the Special Counsel or to an agency's Inspector General. What is the purpose of the eighth prohibited personnel practice? Schmittling v. Department of Army , 92 M.

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Serrao v. Merit Systems Protection Board , 95 F. Department of Navy , 87 M.

For example, allegations of reprisal based upon Equal Employment Opportunity EEO or grievance disclosures are not considered whistleblowing within the meaning of the Whistleblower Protection Act and, therefore, are outside the Merit Systems Protection Board's MSPB or the Board individual right of action appeal jurisdiction. Mason v. Department of Homeland Security , M. There are two avenues by which an individual may pursue an alleged violation of section b 8 with MSPB.

Specifically, an appellant may raise a whistleblower claim in the context of an otherwise appealable action or in an Individual Right of Action appeal pursuant to the Whistleblower Protection Act. An affirmative defense is an assertion by the employee that, if proven, constitutes a defense to the charged action even when the charged action is proven. Thus, if an agency removes, suspends or demotes a tenured employee as defined by 5 U. In order to establish a prima facie case of retaliation in the context of an otherwise appealable action, the appellant must show by preponderant evidence that he or she made a protected disclosure and that the disclosure was a contributing factor in a personnel action against him or her.

Department of the Air Force , M. Prima facie means that a party produces evidence that — unless rebutted — is sufficient to prove a particular proposition or fact. Preponderant evidence means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.

The term protected disclosure means a disclosure of information an employee reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. Significantly, however, vague or conclusory allegations of wrongdoing are generally not protected disclosures.

Eeo Law And Personnel Practices Third Edition Gutman Arthur Koppes Laura L Vodanovich Stephen J

Davis v. Contributing factor means any disclosure that affects an agency's decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure. A personnel action means: 1 an appointment; 2 a promotion; 3 an adverse action as defined by section or other disciplinary or corrective action; 4 a detail, transfer, or reassignment; 5 a reinstatement; 6 a restoration; 7 a reemployment; 8 a performance evaluation; 9 a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action; 10 an order for psychiatric testing or examination; and 11 any other significant change in duties, responsibilities, or working conditions.

If I establish a prima facie case of retaliation under section b 8 in an otherwise appealable action, will I prevail? No, not necessarily. Once the appellant establishes a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure.

Department of Agriculture , F. Department of the Army , M.


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Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established; it is a higher standard than preponderant evidence. If the agency fails to demonstrate that it would have taken this action in the absence of the disclosure, then the employee prevails.

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Eeo law and personnel practices third edition

See also www. Yunus v. How do I exhaust my administrative remedies before OSC? To meet the exhaustion requirement, the appellant must prove by preponderant evidence that he or she filed a complaint with OSC and provided OSC with a sufficient basis to pursue an investigation which might have led to corrective action. Briley v. Merit Systems Protection Board , 7 F. The Board will only consider the actual claims the appellant made to OSC in the complaint and not the individual's later characterization of those statements before the Board.

Covarrubias v.


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Social Security Administration , M.