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Federal Employees News Digest : March 25, 2013
March 25, 2013 Vol. 62, No. 34 5 Visit us on the Internet at www.FederalDaily.com Unsatisfactory training leaves feds feeling stuck One of the overlooked findings in the Office of Personnel Management's 2012 Annual Employee Survey Results is that many federal employees believe they are going nowhere fast. According to OPM, 39.1 percent of federal employees surveyed said they were satisfied with their opportunities to get a better job in their organization, down from 43 percent the previous year. For a few years now, federal employees' positive responses to this question about advancement opportunities within their organizations have been among the lowest in OPM's annual survey. In addition to this statistic, fewer employees are satis- fied with the training they receive at their current job. In 2012, only 53.2 percent of federal employees gave positive responses to this question, down from 55.6 percent the previous year. It follows to reason that employees who are dissatisfied with the level of training they are receiving should be generally pes- simistic about their intra-agency career advancement oppor- tunities. There are many reasons why federal employees are not receiving what they believe is sufficient training. Limited funding may be one reason; limited resources and poor man- agement may be others. But discrimination and retaliation are also possible causes of a federal employee not reaching his or her full potential. It is not uncommon for a supervisor who holds discriminatory feelings against an employee, or who is upset with an employee who blew the whistle, to punish that person by denying training opportunities. Not surprisingly, a 2010 Merit System Protection Board survey of federal employees who experienced retaliation for blowing the whistle found that 39.8 percent of them said retal- iatory employment actions came in the form of denied train- ing opportunities. Back in 1992, that figure was 19 percent. Some supervisors may believe that compared to other adverse actions such as removal, suspension, or demotion, training denials are of marginal importance. But as the MSPB noted in Special Counsel v. Hathaway (1991), a retaliatory denial or cancellation of a training could qualify as a prohib- ited personnel practice (PPP) if the training would have been "career enhancing." In other words, there must be a reasonable expectation that the training would have resulted in a person- nel action, such as an appointment, promotion, transfer, or reassignment. In Simone v. Dep't of the Treasury (2007), for example, a cus- tomer service representative filed an Office of Special Counsel complaint claiming his agency refused to convert him to a full-time employee and denied him training because he blew the whistle. The OSC declined to pursue the case, prompting the employee to file an individual right of action (IRA) with the MSPB. Initially, an administrative law judge dismissed the case, in part because the employee failed to show the training denial qualified as a PPP. The judge found there was an "absence of evidence that the agency's denial of training could reasonably be expected to lead to a personnel action." On appeal, the board vacated the administrative law judge's decision, finding that the employee's coworkers received the training he was denied and there was "a moderate probability that the training would have resulted in some type of person- nel action." Federal employees who believe they have wrongly been denied training opportunities should consult with an attorney. Depending on the circumstances, a lawyer could help them file an Equal Employment Opportunity (EEO) complaint, an appeal or IRA to the MSPB, or an OSC complaint. By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at firstname.lastname@example.org. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
March 18, 2013
April 1, 2013