UNITED STATES
OFFICE OF PERSONNEL MANAGEMENT
WASHINGTON. D.C. 20415
FEB 17 1994
MEMORANDUM FOR HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS
FROM:
JAMES B. KING /s/ JBK
DIRECTOR
SUBJECT:
Discrimination Based on Non-Job-Related Conduct
We have received a number of inquiries about the attached 1980 memorandum from then
OPM Director Alan K. Campbell, and the appropriate avenues of redress for matters
governed by this policy. We have been asked to forward the following material to
departments and independent establishments for clarification.
The 1980 memorandum continues to reflect the Federal Government's long-standing policy
on the matter of discrimination based on non-job-related conduct. An allegation that an
agency official committed a prohibited personnel practice under 5 U.S.C. 2302(b) may be
raised in several ways, depending on the circumstances. If the allegation results from an
agency action against the employee that is appealable to the Merit Systems Protection
Board (MSPB), the employee may raise it as a challenge to the agency action. in the
appeal to MSPB. Actions appealable to the MSPB include major personnel actions such
as removals, lengthy suspensions or performance-based actions.
In addition, an employee who claims to have been subjected to a prohibited personnel
practice may file a complaint with the Office of Special Counsel (OSC) whether or not the
agency's action is otherwise appealable to the MSPB. The OSC is an independent agency
authorized to investigate and seek corrective action from MSPB concerning allegations of
prohibited personnel practices.
Other remedies may be available within the employing agency. In general, a bargaining
unit employee may grieve through a Negotiated Grievance Procedure (NGP) "any
claimed violation, misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment." This language from the Civil Service Reform Act of
1978, is intentionally broad. Occasionally, some collective bargaining agreements name
specific matters (for example, short suspensions) that the parties have agreed to exclude
from the NGP. In such cases, the employee may file an administrative grievance with the
agency, as discussed below. If the matter is grievable through the NGP, but is also
appealable to the MSPB, the employee must choose one forum or the other.
Most agencies also have an agency grievance system to resolve disputes that fall outside
other formal review channels. In general, these systems will attempt to achieve a
relatively informal resolution between the immediate parties before elevating the dispute to
higher levels of management. Specific procedures vary greatly from agency to agency,
and an employee contemplating such a grievance should read the rules governing the
agency's system.
Finally, an employee's allegation of discrimination based upon non-job-related conduct
could be reviewed by the agency Office of Inspector General if the conduct was part of an
alleged overall pattern being disclosed as fraud, waste, and/or abuse.
We hope this information is useful to you. If you have questions about this memorandum
or its attachment, please contact the Office of Labor Relations and Workforce
Performance on telephone extension (202) 606-2920.
PERCEIVED INJUSTICE:
Discrimination based on race, color, religion, sex, age, national origin, or disability.
PROCEDURE TO PURSUE:
EEO Complaint Processing System
PERCEIVED INJUSTICE:
Discrimination not listed above, but on the basis of conduct that does not adversely affect the performance of employees or applicants.
PROCEDURE TO PURSUE:
Violations should be reported to: U.S. Office of Special Counsel, 1120 Vermont Avenue, NW., Suite 1100, Washington, DC 20005-3561. Phone
Toll Free: 1-800-872-9855* or (202) 653-7188* or (202) 653-7193