| Comment Number: | OL-10511194 |
| Received: | 3/16/2005 2:26:38 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| No Attachments |
Comments:
5CFR9901.107(d) - Many disputes will enter system through EEOC Mixed Case Complaint route (see 29 CFR 1614.302) with a 45 day initial contact window vs. 20 day appeal under 5 CFR 9901.807(k)(1) The shorter 20 day appeal will cause this to happen more. After the full counselor inquiry, investigation by the DOD Office of Complaint Investigations, and EEO Officer review, the employee would then be given their appeal rights - with 20 days to appeal for MSPB judge hearing. Almost anyone can articulate an EEO discrimination basis for a complaint and thereafter - reprisal will be used to address NSPS adverse actions - appealable or not to MSPB. The EEO route provides a government provided investigation to an employee, many more opportunities to resolve complaints, and will become the "entry" avenue in future performance and disciplinary actions to include Mandatory Removal Actions. It this was is intended? It will, however, be the result. EEO complaint route will also authorize attorney fees more so than the newly limited MSPB route. 5CFR 9901.807(d)(1) one standard of evidence for both performance and discipline cases i.e. preponderance is an improvement. 5CFR 9901.714(a) "Reasonable cause" needs to be defined. Is it arrested, charged/indicted or suspected. "Imprisonment" needs to be defined i.e. prison for felony, jail for a misdemeanor. About every criminal charge will have "imprisonment". Is every alcohol charge, domestic disburbance, simple assault going to result in a reasonable cause termination. Too much discretion for field managers on this one. 5CFR 9901.807(k)(3) There has to early intervention by MSPB judge on discovery. By the time there is a discovery dispute, parties have already invested considerable effort in propounding discovery documents. Further, MSPB judges do not like to adjudicate discovery disputes. Urge an immediate initial conference with the MSPB judge and parties to discuss discovery. Discovery can be a real time waster with no real benefit. Agencies can use it to discourage employees - particularly pro se or non-represented employees. Employees can use it just be cause it is there. Discovery is to discover something that is not currently know to the other party. Urge that discovery for both sides must be approved and have a stated purpose - or you are just going to slow down a system that DOD wishes to speed up.