2010-31311. 2011 Notice of Rights and Protections Available Under the Federal Antidiscrimination and Whistleblower Protection Laws

Monday, November 29, 2010.

AGENCY:

Office of the Secretary, DOT.

ACTION:

No FEAR Act Notice.

SUMMARY:

This Notice implements Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No Fear Act of 2002). It is the annual obligation for Federal agencies to notify all employees, former employees, and applicants for Federal employment of their rights and protections available to them under the Federal Anti-discrimination and Whistleblower Protection Laws.

FOR FURTHER INFORMATION CONTACT:

Caffin Gordon, Associate Director of Policy, Education, and Quality Control Division, S-35, Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W78-312, Washington, DC 20590, 202-366-4648. You can also reach Caffin Gordon by e-mail at [e-mail], or else via TTY/TDD at [phone].

SUPPLEMENTARY INFORMATION:

Electronic Access

You may retrieve this document online 24 hours a day 365 days a year through the Federal Document Management System (FDMS) at http://www.regulations.gov. Electronic retrieval instructions are available under the help section of the Web site. An electronic copy is also available for download from the Government Printing Office's Electronic Bulletin Board at http://www.nara.gov/​fedreg and the Government Printing Office's web page at http://www.access.gpo.gov/​nara.

No Fear Act Notice

On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” now recognized as the No FEAR Act (Pub. L. 107-174). One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws” (Pub. L. 107-174, Summary). In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination” (Pub. L. 107-174, Title I, General Provisions, section 101(1)). The Act also requires the Agency to provide notice to all its Federal employees, former Federal employees, and applicants for Federal employment. This notice is to inform you of the rights and protections available to you under Federal antidiscrimination and whistleblower protection laws.

Antidiscrimination Laws

A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions, or privileges of employment because of race, color, religion, sex (including equal payment of wages and benefits, and pregnancy), national origin, age (40 and over), disability, marital status, or political affiliation. Discrimination under these bases is strictly prohibited by the following statutes: 5 U.S.C. 2302(b)(1) 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 206(d), and 29 U.S.C. 79142 U.S.C. 2000e-16.

If you believe you have been the victim of unlawful discrimination on the bases of race, color, religion, sex (including equal payment of wages and benefits, and pregnancy), national origin, age (40 and over), and/or disability you must contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action. In the case of a personnel action, you must contact the counselor within 45 calendar days of the effective date of the action to try and resolve the matter informally, before you can file a formal complaint of discrimination with your agency (See, e.g., 29 CFR part 1614).

If you believe that you have been the victim of unlawful discrimination based on age, you must contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 calendar days of the alleged discriminatory action. As an alternative to filing a complaint pursuant to 29 CFR part 1614, an aggrieved individual may file a civil action in a United States District Court under the Age Discrimination in Employment Act (ADEA) against the head of an alleged discriminating agency after giving the Commission not less than 30 days notice of the intent to file such an action. File such notice in writing with the EEOC at P.O. Box 77960, Washington, DC 20013, or deliver the notice by personal/courier delivery or by facsimile within 180 days of the occurrence of the alleged unlawful practice.

If you are alleging discrimination based on marital status or political affiliation, you can file a complaint with the U.S. Office of Special Counsel (OSC) (See Contact information below). In the alternative (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through your agency's administrative or negotiated grievance procedures, if such procedures apply and are available (Contact Information: Form OSC-11 is available to be filled out online at the OSC Web site (http://www.osc.gov/​index.htm, under the filing tab). Alternatively, download the form from the same filing tab, under the OSC Forms tab, fill it out, and mail it to the Complaints Examining Unit, U.S. Office of Special Counsel at 1730 M Street, NW., Suite 218 Washington, DC 20036-4505. You also have the option to call the Complaints Examining Unit at [phone] for additional assistance.

Whistleblower Protection Laws

A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless the disclosure of such information is specifically prohibited by law and such information is specifically required by Executive Order to be kept secret in the interest of national defense or in the conduct of foreign affairs.

5 U.S.C. 2302(b)(8) prohibits retaliation against an employee or applicant for making a protected disclosure. If you believe you have been the victim of whistleblower retaliation, you have the right to file a written complaint with the U.S. Office of Special Counsel's Complaints Examining Unit (OSC Form 11, Complaint of Prohibited Personnel Practice), at 1730 M Street NW., Suite 218, Washington, DC 20036-4505. OSC Form 11 can be downloaded from the OSC Web site at http://www.osc.gov (from under the filing tab), or you may contact the Complaints Examining Unit (CEU) at 1-800-872-9855 or the Disclosure Unit (DU) Hotline at 1-800-572-2249 directly.

In addition, you may also alert the OSC to possible wrongdoing in a Federal agency through a whistleblower disclosure form (OSC Form 12, Whistleblower Disclosure). An employee who believes he or she has suffered reprisal for whistleblowing may elect to file both OSC Form 11, to report reprisal, and OSC Form 12, to disclose the underlying wrongdoing.

The OSC does not have authority to investigate the disclosures that it receives. The law provides that OSC (a) refer protected disclosures that establish a substantial likelihood of wrongdoing to the appropriate agency head, and (b) require the agency head to conduct an investigation, and submit a written report on the findings of the investigation to the Special Counsel.

If OSC finds no substantial likelihood that the information discloses one or more of the categories of wrongdoing, the Special Counsel must: (a) Inform the whistleblower of the reasons why the disclosure may not be acted on further; and (b) direct the whistleblower to other offices available for receiving disclosures.

Retaliation for Engaging in Protected Activity

A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under any of the Federal antidiscrimination or whistleblower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the Antidiscrimination and Whistleblower Protection Laws sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy.

Disciplinary Actions

Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee who has engaged in conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection laws up to and including removal. If OSC has initiated an investigation under 5 U.S.C. 1214, according to 5 U.S.C. 1214(f) agencies must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation. Nothing in the No FEAR Act alters existing laws, or permits an agency to take unfounded disciplinary action against a Federal employee, or to violate the procedural rights of a Federal employee accused of discrimination.

Additional Information

For more information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate office(s) within your agency (e.g., EEO/civil rights offices, human resources offices, or legal offices). Additional information regarding Federal antidiscrimination, whistleblower protection, and retaliation laws are located on the EEOC Web site at http://www.eeoc.gov and the OSC Web site at http://www.osc.gov.

Existing Rights Unchanged

Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands, or reduces any rights otherwise available to any employee, former employee, or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).

Issued in Washington, DC, on November 29, 2010.

Camille Hazeur,

Director, Departmental Office of Civil Rights, United States Department of Transportation.