A federal employee who chose not to participate in her agency's investigation of her EEO complaint found herself without a right to file a lawsuit against the agency because she "failed to exhaust" her required administrative remedies. That was the ruling of the U.S. Court of Appeals for the Fourth Circuit in an unpublished opinion in Austin v. Winter, No. 06-1745, July 11, 2008.
In this case, Ms. Austin was terminated from the Navy Department during her probationary period. After the Merit Systems Protection Board ruled it had no jurisdiction over her termination, Ms. Austin challenged the action through the EEO process. Ms. Austin refused to participate in the fact-finding conference, the method the Navy used to investigate EEO claims. Ms. Austin gave the court "conflicting excuses" as why she did not participate. For example, Ms. Austin claimed the fact-finding conference was "redundant" because she had previously provided statements to an investigator, but later acknowledged that she had never spoken to an investigator.
The federal court noted that, unlike EEO complaints in the private sector, federal employees are required to cooperate in the administrative process. Because Ms. Austin did not participate in the administrative complaint process, the court found that she had not completed the required administrative process. Therefore, a court complaint could not proceed.
The lesson to be derived from this decision is that federal employees must cooperate and participate in the administrative investigation of their EEO complaints. As flawed as the investigation process may be, failure to participate and to cooperate could bar federal employees from later pursuing their discrimination complaints in federal court.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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