No FEAR Act 

FISCAL YEAR 2017 

ANNUAL REPORT TO CONGRESS 

Federal Deposit Insurance Corporation 

Table of Contents 

Introduction...........................................................................................................................1 

Purpose of Report...............................................................................................................2 

No FEAR Act Legal Coverage .........................................................................................3 

No FEAR Act Data and Analysis....................................................................................4 

EEO Complaint Activity in Federal Court and Disposition ............................................4 

Judgment Fund Reimbursements and Budget Adjustment .........................................4 

Number of Employees Disciplined and Discipline Policy ..............................................4 

Trends of Administrative EEO Complaint Activity .........................................................5 

Causal Analysis ...................................................................................................................6 

Practical Knowledge Gained through Experience..........................................................6 

Actions Planned/Taken to Improve FDIC EEO Complaint Program..............................7 

Actions Taken During FY 2017...........................................................................................7 

Planned Actions to Improve the FDIC EEO Complaint Program ...................................7 

FDIC No FEAR Act Training Plan .......................................................................................7 

Appendix A FDIC ANNUAL EEO POLICY STATEMENT ........................................9 

Appendix B FDIC SUMMARY COMPLAINT DATA................................................11 

B-1 Federal Court Data .....................................................................................................12 

B-2 EEO Data Posted Pursuant to the No FEAR Act .....................................................14 

Appendix C FDIC POLICIES RELATING TO NON-DISCRIMINATION ............23 

C-1 Circular 2710.1 – Equal Opportunity Policy .............................................................24 

C-2 Circular 2710.3 Anti-Harassment Program...........................................................32 

C-3 Circular 2750.1 – Disciplinary and Adverse Actions...............................................42 

C-4 Circular 2400.2 – Whistleblower Protection Rights...............................................54 

No FEAR Act Annual Report to Congress Fiscal Year 2017

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i 
ii No FEAR Act Annual Report to Congress Fiscal Year 2017
Introduction 

The mission of the Federal Deposit Insurance Corporation (FDIC) is to maintain 

stability and public confdence in the nation’s fnancial system by insuring deposits, 

examining and supervising fnancial institutions for safety and soundness and 

consumer protection, making large and complex fnancial institutions resolvable, and 

managing receiverships. To achieve its mission, the FDIC believes that its employees 

are its most valued asset and is committed to ensuring that its workplace is free 

from discrimination, harassment and retaliation. The Director of the FDIC’s Offce 

of Minority and Women Inclusion (OMWI) has been delegated overall responsibility 

for diversity and inclusion, civil rights, and minority and women outreach programs. 

These programs seek to ensure that the FDIC workplace is inclusive, free from unlawful 

discrimination and harassment, and provides equal opportunity and access to all 

employment and business activities. 

The FDIC is pleased to present its Notifcation and Federal Employee Antidiscrimination 

and Retaliation Act (No FEAR Act) Annual Report to Congress for Fiscal Year 2017. 

This report provides information about administrative complaints of employment 

discrimination and retaliation and cases fled and pending in the Federal courts. It also 

includes the FDIC’s annual EEO Policy Statement, information on actions taken and 

planned to improve the FDIC’s EEO Complaint program, the training of its employees 

on No FEAR Act requirements, and copies of current FDIC policies relating to 

discrimination, anti-harassment, whistleblower protection rights, and disciplinary and 

adverse action. 

No FEAR Act Annual Report to Congress Fiscal Year 2017 1 
Purpose of Report 

No FEAR Act Annual Report to Congress Fiscal Year 2017

The No FEAR Act (Pub. L. No. 107-174) requires Federal agencies to be accountable for 

violations of anti-discrimination and whistleblower protection laws. The Act requires 

the FDIC to submit an annual report within 180 days of the end of the fscal year to the 

Speaker of the House of Representatives, the President Pro Tempore of the Senate, 

the Committee on Governmental Affairs of the Senate, the Committee on Government 

Reform of the House of Representatives, each committee of Congress with jurisdiction 

relating to the FDIC, the U.S. Equal Employment Opportunity Commission (EEOC), and 

the Attorney General. The U.S. Offce of Personnel Management (OPM) regulations also 

require the submission of this report to the Director of OPM. 

Specifcally, the No FEAR Act Annual Report must provide the following information: 

§§The number, status, and disposition of Federal court cases arising under the laws 

covered by the No FEAR Act; 

§§ Judgment Fund reimbursements and adjustments to the FDIC budget to meet 

reimbursement requirements; 

§§ The number of employees disciplined for discrimination, retaliation, or 

harassment, and the FDIC policies relating to appropriate disciplinary action; 

§§ Final year-end summary data related to FDIC EEO complaint activity for the fscal 

year; 

§§ An analysis of trends, causation, and practical knowledge gained through 

experience; 

§§ Actions planned or taken to improve the FDIC EEO complaint program; and, 

§§ The FDIC No FEAR Act Training Plan. 

This report is based on Fiscal Year (FY) 2017 data (October 1, 2016 - September 30, 2017). 

2 
No FEAR Act Legal Coverage 

The FDIC presents the following information to meet the reporting requirements of the 

No FEAR Act and its implementing regulations. 

The laws covered by the No FEAR Act include: 

§§ Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 (race, 

color, religion, sex, and national origin). 

§§ The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a 

(age). 

§§ The Equal Pay Act of 1963, 29 U.S.C. § 206(d) (gender-based wage differentials). 

§§ Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 

(disability). 

§§ The Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233 

(genetic information). 

§§ Prohibited Personnel Practices, 5 U.S.C. §§ 2302(b) and (d) (race, color, religion, 

sex, national origin, age, disability, marital status, political affliation, and 

whistleblowing). 

No FEAR Act Annual Report to Congress Fiscal Year 2017 3 
No FEAR Act Data and Analysis 

No FEAR Act Annual Report to Congress Fiscal Year 2017

EEO Complaint Activity in Federal Court and Disposition 

During this reporting period, there were nine cases pending in district courts and four 

cases pending in appellate court. There were two new cases fled in district court and 

two new cases fled in appellate court. These four newly fled cases raised allegations 

of discrimination under Title VII, the Age Discrimination in Employment Act, and the 

Rehabilitation Act. Of the nine cases pending at any time in district court, six cases were 

closed (one case was settled, one case was voluntarily withdrawn, and there were four 

fnal judgments issued in favor of the agency). Of the four cases pending in appellate 

court, three cases were affrmed in favor of the agency, and the fourth case is pending. 

Judgment Fund Reimbursements and Budget Adjustment 

The Judgment Fund was established to pay court judgments and Justice Department 

compromise settlements of actual or imminent lawsuits against the government. It 

is a permanent, indefnite appropriation, administered by the U.S. Department of the 

Treasury and is available to pay judicially and administratively ordered monetary 

awards against the United States. The No FEAR Act requires federal agencies to 

reimburse the Judgment Fund for personnel discrimination payments made. 

The FDIC is an independent agency and with the exception of the FDIC’s Offce of 

Inspector General (OIG), is not appropriated by Congress. There were no judgments 

against the FDIC, including the OIG, from cases pending or resolved in federal district 

court in FY 2017. Therefore, no budget adjustments were necessary. 

Number of Employees Disciplined and Discipline Policy 

During this reporting period, there were no fndings of discrimination issued by a Final 

Agency Decision, the EEOC, the Merit Systems Protection Board, the Offce of Special 

Counsel, or a federal court. 

The FDIC Chairman’s Annual EEO Policy statement emphasizes the agency’s 

commitment to EEO principles and a zero tolerance for discriminatory behavior. FDIC 

managers and supervisors receive mandatory training on the prohibition against 

discrimination and retaliation as part of the in-house “EEO and Diversity for Managers 

and Supervisors” biennial course. During FY 2017, two separate webinars on 

retaliation were conducted for employees and managers and supervisors. 

Additionally, the FDIC has a Disciplinary and Adverse Action policy that fosters positive 

and effective relationships between managers and employees through open and direct 

communication and, when necessary, to administer disciplinary and adverse actions in 

a fair and consistent manner. 

4 
The FDIC also allows for harassment claims to be raised through its Anti-Harassment 

Program. These claims are reviewed and resolved in an accelerated process by 

OMWI, the Labor and Employee Relations Section of the Division of Administration, 

and the Legal Division. In FY 2017, there were nine inquiries involving allegations of 

harassment raised through the Anti-Harassment Program. Five inquiries were found 

to be unsubstantiated; one inquiry was discontinued by an employee; one inquiry is 

ongoing, and two inquiries resulted in one employee received a Letter of Warning and 

one employee being suspended. 

A copy of the FDIC’s policies related to Equal Opportunity, the Anti-Harassment 

Program, Disciplinary and Adverse Actions, and Whistleblower Protection Rights are 

included under Appendix C. 

Trends of Administrative EEO Complaint Activity 

During FY 2017, there were 30 administrative EEO complaints fled, which is a decrease 

from the 40 complaints fled in FY 2016. This represents a 25 percent decrease from FY 

2016 (Figure 1). This also represents a continued downward trend when compared to 

FY 2013 and FY 2014 (Appendix B-2). The number of repeat flers decreased from four 

during FY 2016 to two during FY 2017. 

In FY 2017, of the 30 complaints fled, the most frequently fled bases were race (17), sex 

(17), reprisal (14), and disability (12). The most frequently fled bases in FY 2016 were 

age (24), race (22), sex (20), and reprisal (16). Age as a basis decreased signifcantly. 

The most frequently raised issues were harassment (16), performance evaluation/ 

appraisal (10), time and attendance (nine) and terms/conditions of employment (eight). 

In FY 2017, the number of complaints alleging terms and conditions of employment 

increased from prior years (six in FY 2015, and fve in FY 2014). 

Figure 1

0

10

20

30

40

50

2012 2013 2014 2015 2016 2017

44 48 47 

33 

40 

30 

Administrative Complaints Filed 2012 - 2017

No FEAR Act Annual Report to Congress Fiscal Year 2017 5 
 

Causal Analysis 

No FEAR Act Annual Report to Congress Fiscal Year 2017

The decrease in the number of formal complaints fled in FY 2017 suggests a positive 

trend. The low number of complaints fled during FY 2017 makes it challenging to do a 

comprehensive causal analysis. However, we have observed the following: 

We noted that there was a decrease in complaints alleging appointment/hire (three 

complaints in FY 2017 compared to eight complaints in FY 2016) and promotion/nonselection (seven complaints in FY 2017 compared to 11 complaints in FY 2016). However, 

there were increases in complaints alleging terms and conditions of employment (eight 

complaints in FY 2017, up from three complaints in FY 2016); telework (four complaints in 

FY 2017, up from zero in FY 2016); and time and attendance (nine complaints in FY 2017, 

up from six complaints in FY 2016).

 While there are no associated causes for the noted increase or decrease in specifc 

issues, the FDIC continues to monitor all allegations to identify trends and implement 

any necessary corrective measures needed to comply with all EEOC and FDIC 

regulations and policies. 

In FY 2017, the EEO training for managers and supervisors was updated and the updated 

training will be implemented in FY 2018. Additionally, Frequently Asked Questions 

(FAQs) were developed on Offcial Time and Religious Accommodation to provide 

guidance to employees, managers and supervisors, and these FAQs were posted on the 

internal OMWI web page.

 As part of a continuing education series on EEO topics, the FDIC conducted a retaliation 

webinar for managers and supervisors and a separate retaliation webinar for employees. 

The webinars topics included: “What is retaliation;” “Why is retaliation such a problem in 

the workforce;” “What are the preliminary steps needed to avoid retaliation;” and “What 

steps should be taken if retaliation should occur.” 

Practical Knowledge Gained through Experience 

It is anticipated that the FDIC’s non-permanent workforce will continue to decrease 

and that its permanent workforce will continue to stabilize. Thus, there will be 

fewer opportunities for external hiring. However, the FDIC continues to provide 

career counseling assistance to its non-permanent workforce whose temporary 

appointments will be expiring. The career counseling assistance includes resume 

writing, interview skills, the Federal application process and USAJobs, and other 

assistance in locating employment. 

It is also clear that, as employees understand their rights and responsibilities under 

the Equal Employment Opportunity and Whistleblower Protection Laws, the potential 

for exercising those rights increases. At the same time, managers and supervisors 

have become more aware of their responsibilities to ensure workplace practices 

and the work environment are free from discrimination, harassment and retaliation. 

Continued training will be provided so that all employees may recognize behaviors and 

6 
actions that may be perceived as discriminatory or retaliatory, and to encourage their 

prevention and early resolution. 

Actions Planned/Taken to Improve FDIC EEO Complaint 

Program 

The FDIC has a longstanding commitment to prohibiting discrimination and harassment 

in its workplace, and in all of its programs and activities. To support this commitment, 

the FDIC makes continuous efforts to improve its programs, policies, and procedures, 

and to adhere to the laws and regulations that protect the rights of its employees. 

Actions Taken During FY 2017 

§§Diversity and Inclusion external web page redesign was drafted for approval to 

improve available content and page aesthetic. 

§§ EEO poster update was completed and approved. 

§§ Reviewed internal practices to identify opportunities to improve complaints 

processing and quality control. 

§§ Revised and distributed Complaints of Discrimination Processing standard 

operating procedures. 

§§ Updated the EEO and Diversity training for managers and supervisors, which now 

includes a mediation module. 

§§ Reviewed and updated the No FEAR Act computer-based training. 

§§ Conducted separate retaliation webinars for managers and supervisors and 

employees. 

Planned Actions to Improve the FDIC EEO Complaint Program 

§§ Update OMWI’s internal web page to improve the layout and fow of information 

provided. 

§§ Finalize the EEO Alternative Dispute Resolution policy. 

§§ Distribute EEO poster to all FDIC work locations. 

§§ Publish updated EEO poster on internal and external web pages. 

§§Administer the No FEAR Act computer-based training to all employees. 

FDIC No FEAR Act Training Plan 

The FDIC adheres to the requirements of the No FEAR Act to provide biennial training 

for all employees. A global message is issued to all employees announcing the 

beginning of the biennial training cycle. The training cycle for this reporting period 

is 2018 – 2019. Annually, the FDIC issues its No FEAR Act Notice to all employees to 

inform them of the available rights and protections under Federal anti-discrimination 

and whistleblower protection laws. 

No FEAR Act Annual Report to Congress Fiscal Year 2017

 

7 
The FDIC No FEAR Act training will be updated in FY 2018 to further clarify and 

expound on the recent changes to the EEOC case law. The training will include 

discussions on the Federal anti-discrimination laws, anti-retaliation laws, Executive 

Orders, whistleblower protection laws, and the FDIC mediation program. The 

training modules will be compliant with the Rehabilitation Act, Section 508 (i.e., open 

captioned), and incorporate various techniques to reach different learning styles, 

including multimedia. The FDIC’s No FEAR Act training is administered through 

FDICLearn, the learning management system implemented and maintained by the 

FDIC’s Corporate University. The FDIC will track the number of employees completing 

the training and issue notifcations to those who have not completed it within the 

training cycle. OMWI will receive monthly reports noting the number of employees 

who have completed the training. 

No FEAR Act Annual Report to Congress Fiscal Year 2017

New FDIC employees are advised during the New Employee Orientation Program of the 

requirement to complete the No FEAR Act Training within 90 days after their start date. 

In addition to the No FEAR Act training, FDIC managers and supervisors are required 

to complete a mandatory EEO and Diversity classroom training biennially, which is 

designed to promote the prevention and elimination of discriminatory practices in the 

workplace. 

8 
No FEAR Act Annual Report to Congress Fiscal Year 2017

APPENDIX A 

FDIC ANNUAL EEO POLICY 

STATEMENT 

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10 No FEAR Act Annual Reportto Congress Fiscal Year 2017 
No FEAR Act Annual Report to Congress Fiscal Year 2017

APPENDIX B 

FDIC SUMMARY 

COMPLAINT DATA 

11 
12 No FEAR Act Annual Report to Congress Fiscal Year 2017

B-1 

Federal Court Data 

APPENDIX 
Appendix B-1: Summary Complaint Data-Federal Court Data 

FEDERAL CASES PENDING in FY 2017 

Cases pending at any time during the year, including 

those fled during the year, and those disposed of during the year 

Pending District Court Cases 9 

Pending Appellate Court Cases 4 

New Cases Filed in District Court 2 

ALLEGING A VIOLATION OF 

Antidiscrimination Laws Whistleblower Protection Laws 

5 USC 29 USC 42 USC 5 USC 

§ 2302(b)(1) § 2302(b)(9) § 206(d) § 631 § 633a § 791 § 2000e-16 § 2302(b) 

(8) 

§ 2302(b) 

(9) 

1. Pending Cases 

Disposed of during FY017 0 0 0 0 2 0 5 0 0 

Still pending at end of FY2017 0 0 0 0 4 1 5 0 0 

2. Disposition of Cases (including dismissals) 

Settlements 0 0 0 0 0 0 1 0 0 

Withdrawals 0 0 0 0 1 0 0 0 0 

Final Judgment for Complainant 0 0 0 0 0 0 0 0 0 

Final Judgment for Agency 0 0 0 0 1 0 4 0 0 

Reimbursement to Judgment Fund 0 0 0 0 0 0 0 0 0 

Remand of appellate cases to District Court 0 0 0 0 0 0 0 0 0 

Reimbursement to Judgment Fund For Attorney’s 

Fees (where separately designated) 0 0 0 0 0 0 0 0 0 

3. Number of Employees Disciplined In Connection With Federal Court Litigation For Violating Antidiscrimination and Whistleblower Protection Laws 

Reprimand 0 0 0 0 0 0 0 0 0 

Suspension without pay 0 0 0 0 0 0 0 0 0 

Reduction in grade or pay 0 0 0 0 0 0 0 0 0 

Removal 0 0 0 0 0 0 0 0 0 

4. Aggregate Number of Employees Disciplined In Accordance With FDIC Policies for Conduct That Is Inconsistent With Federal Anti-discrimination Laws And 

Whistleblower Protection Laws Whether Or Not In Connection With Federal Court Litigation 

Reprimand 0 

Suspension without pay 0 

Reduction in grade or pay 0 

Removal 0 

No FEAR Act Annual Report to Congress Fiscal Year 2017 13 
No FEAR Act Annual Report to Congress Fiscal Year 2017

APPENDIX B-2 

EEO Data Posted Pursuant to the No FEAR Act 

14 
Complaint Activity 2013 2014 2015 2016 2017 

Number of Complaints Filed 48 47 33 40 30 

Number of Complainants 43 40 29 34 28 

Repeat Filers 2 6 4 4 2 

Note: Complaints can be fled alleging multiple bases. The 

sum of the bases may not equal total complaints fled. 2013 2014 2015 2016 2017 

Race 22 25 17 23 17 

Color 12 8 6 11 3 

Religion 1 1 1 3 0 

Reprisal 35 29 18 18 14 

Sex 20 27 15 20 17 

PDA 0 0 0 1 1 

National Origin 8 6 7 9 3 

Equal Pay Act 0 1 0 0 3 

Age 20 17 12 24 10 

Disability 17 18 10 10 12 

Genetic Information 0 1 1 0 0 

Non-EEO 3 9 5 4 3 

Note: Complaints can be fled alleging multiple issues. The sum 

of the issues may not equal total complaints fled. 2013 2014 2015 2016 2017 

Appointment/Hire 2 7 4 8 3 

Assignment of Duties 15 14 6 6 5 

Awards 4 3 2 1 0 

Conversion to Full-time 0 0 0 0 0 

Disciplinary Action

      Demotion 1 0 0 0 0

      Warning 0 0 0 0 4

      Reprimand 4 1 0 0 1

      Removal 4 5 0 0 0 

No FEAR Act Annual Report to Congress Fiscal Year 2017

Appendix B-2: Summary Complaint Data - Equal Employment 

Opportunity Data Posted 

Pursuant to the No FEAR Act 

Data as of 09-30-2017 

15 
No FEAR Act Annual Report to Congress Fiscal Year 2017

  

 Suspension 0 1 3 0 1

 Other 9 4 4 8 2 

Duty Hours 2 0 0 0 0 

Evaluation Appraisal 21 16 9 8 10 

Examination Test 2 1 1 1 0 

Harassment

 Non-Sexual 29 14 8 13 15

 Sexual 2 3 0 0 1 

Medical Examination 2 0 0 0 0 

Pay (Including Overtime) 5 4 3 2 3 

Promotion Non-Selection 19 11 7 11 7 

Reassignment

 Denied 7 2 4 1 0

 Directed 5 1 1 1 2 

Reasonable Accommodation 12 4 2 2 4 

Reinstatement 0 0 0 0 0 

Religion Accommodation 0 0 

Retirement 1 0 0 0 0 

Sex Stereotyping 0 0 

Telework 0 4 

Termination 7 9 4 2 3 

Terms/Conditions of Employment 6 4 4 2 8 

Time and Attendance 10 8 2 6 9 

Training 9 5 1 2 4 

Other 15 11 9 8 2 

2013 2014 2015 2016 2017

      Average number of days

 in investigation 220.64 220 178 179 197

      Average number of days

 in fnal action 118.11 41 45 40 38

      Average number of days

 in investigation 233.40 219 190 193 213

      Average number of days

 in fnal action 30.00 27 33 34 11 

16 
      Average number of days

      in investigation 211.44 222 148 172 173

      Average number of days

      in fnal action 143.29 70 48 45 48 

2013 2014 2015 2016 2017 

Total Complaints Dismissed by Agency 6 8 6 3 8 

Average Days pending prior to dismissal 25 75 96 517 360 

2013 2014 2015 2016 2017 

Total Withdrawn by Complainants 4 2 2 3 0 

2013 2014 2015 2016 2017 

Total Number of Findings 0 0 1 0 0 

Without Hearing 0 0 0 0 0 

With Hearing 0 0 1 

(100%) 0 0 

Note: Complaints can be fled alleging multiple Bases. The sum 

of the bases may not equal total complaints fled. 2013 2014 2015 2016 2017 

Total Number of Findings 0 0 1 0 0

      Race 0 0 0 0 0

      Color 0 0 0 0 0

      Religion 0 0 0 0 0

      Reprisal 0 0 1 

(100%) 0 0

      Sex 0 0 0 0 0

      National Origin 0 0 0 0 0

      Equal Pay Act 0 0 0 0 0

      Age 0 0 0 0 0

      Disability 0 0 0 0 0

      Genetic Information 0 0 0 0 0

      Non-EEO 0 0 0 0 0 

Findings After Hearing 0 0 1 0 0

      Race 0 0 0 0 0

      Color 0 0 0 0 0

      Religion 0 0 0 0 0 

No FEAR Act Annual Report to Congress Fiscal Year 2017

  

  

  

17 
 Reprisal 0 0 1 

(100%) 0 0

 Sex 0 0 0 0 0

 National Origin 0 0 0 0 0

 Equal Pay Act 0 0 0 0 0

 Age 0 0 0 0 0

 Disability 0 0 0 0 0

 Genetic Information 0 0 0 0 0

 Non-EEO 0 0 0 0 0 

18 

2013 2014 2015 2016 2017 

No FEAR Act Annual Report to Congress Fiscal Year 2017

Findings Without Hearing 0 0 0 0 0

 Race 0 0 0 0 0

 Color 0 0 0 0 0

 Religion 0 0 0 0 0

 Reprisal 0 0 0 0 0

 Sex 0 0 0 0 0

 National Origin 0 0 0 0 0

 Equal Pay Act 0 0 0 0 0

 Age 0 0 0 0 0

 Disability 0 0 0 0 0

 Genetic Information 0 0 0 0 0

 Non-EEO 0 0 0 0 0 

Total Number of Findings 0 0 1 

(100%) 0 0 

Appointment/Hire 0 0 0 0 0 

Assignment of Duties 0 0 0 0 0 

Awards 0 0 0 0 0 

Conversion to Full-time 0 0 0 0 0

 Demotion 0 0 0 0 0

 Reprimand 0 0 0 0 0

 Suspension 0 0 0 0 0

 Removal 0 0 0 0 0 
      Other 0 0 1 

(100%) 0 0 

Duty Hours 0 0 0 0 0 

Evaluation Appraisal 0 0 0 0 0 

Examination Test 0 0 0 0 0

      Non-Sexual 0 0 0 0 0

      Sexual 0 0 0 0 0 

Medical Examination 0 0 0 0 0 

Pay Including Overtime 0 0 0 0 0 

Promotion Non-Selection 0 0 0 0 0

      Denied 0 0 0 0 0

      Directed 0 0 0 0 0 

Reasonable Accommodation 0 0 0 0 0 

Reinstatement 0 0 0 0 0 

Retirement 0 0 0 0 0 

Termination 0 0 0 0 0 

Terms/Conditions of Employment 0 0 0 0 0 

Time and Attendance 0 0 0 0 0 

Training 0 0 0 0 0 

Other - User Defned 0 0 0 0 0 

Findings After Hearing 0 0 1 0 0 

Appointment/Hire 0 0 0 0 0 

Assignment of Duties 0 0 0 0 0 

Awards 0 0 0 0 0 

Conversion to Full-time 0 0 0 0 0

      Demotion 0 0 0 0 0

      Reprimand 0 0 0 0 0

      Suspension 0 0 0 0 0

      Removal 0 0 0 0 0

      Other 0 0 1 

(100%) 0 0 

Duty Hours 0 0 0 0 0 

No FEAR Act Annual Report to Congress Fiscal Year 2017 19 
No FEAR Act Annual Report to Congress Fiscal Year 2017

Evaluation Appraisal 

Examination Test 

Non-Sexual 

Sexual 

Medical Examination 

Pay Including Overtime 

Promotion Non-Selection 

Denied 

Directed 

Reasonable Accommodation 

Reinstatement 

Retirement 

Termination 

Terms/Conditions of Employment 

Time and Attendance 

Training 

Other - User Defned 

0 0 0 0 0 

0 0 0 0 0

0 0 0 0 0

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0

0 0 0 0 0

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

Findings Without Hearing 

Appointment/Hire 

Assignment of Duties 

Awards 

Conversion to Full-time 

Demotion 

Reprimand 

Suspension 

Removal 

Other 

Duty Hours 

Evaluation Appraisal 

Examination Test 

Non-Sexual 

Sexual 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0

0 0 0 0 0

0 0 0 0 0

0 0 0 0 0

0 0 0 0 0

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0 

0 0 0 0 0

0 0 0 0 0

0 0 0 0 0 

20 
Medical Examination 0 0 0 0 0 

Pay Including Overtime 0 0 0 0 0 

Promotion Non-Selection 0 0 0 0 0

      Denied 0 0 0 0 0

      Directed 0 0 0 0 0 

Reasonable Accommodation 0 0 0 0 0 

Reinstatement 0 0 0 0 0 

Retirement 0 0 0 0 0 

Termination 0 0 0 0 0 

Terms/Conditions of Employment 0 0 0 0 0 

Time and Attendance 0 0 0 0 0 

Training 0 0 0 0 0 

Other - User Defned 0 0 0 0 0 

2013 2014 2015 2016 2017 

Total Complaints from previous Fiscal Years 59 34 41 34 49 

Total Complainants 48 33 35 28 37 

Number of Complaints Pending

    Investigation 0 0 0 0 0

    ROI issued, pending 

Complainant’s action 0 0 0 1 0

    Hearing 28 32 41 31 46

    Final Action 0 1 0 3 0

    Appeal 13 8 14 24 11 

2013 2014 2015 2016 2017 

Pending Complaints Where Investigations Exceed 

Required Time Frames 0 0 0 0 0 

No FEAR Act Annual Report to Congress Fiscal Year 2017

  

  

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INTENTIONALLY 

LEFT BLANK 
No FEAR Act Annual Report to Congress Fiscal Year 2017

APPENDIX C 

FDIC POLICIES RELATING 

TO NON-DISCRIMINATION 

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APPENDIX C-1 

Circular 2710.1 – Equal Opportunity Policy 
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Policy (cont.) equal pay, gender identity, and sexual orientation), national 

origin, disability (physical and/or mental), age (40 years or older), 

genetic information (information about an individual’s genetic 

tests; or information about the genetic tests, or the manifestation 

of a disease or disorder in the individual’s family members), 

status as a parent, and retaliation (for participating in the EEO 

complaint process or opposing discriminatory practices). 

All employees have a responsibility to implement this policy by 

their conduct, decisions, and actions. Further, every effort shall 

be made to resolve complaints at the lowest level possible. 

The FDIC is fully committed to removing any unlawful, or 

otherwise prohibited discrimination from its employment and 

personnel policies, procedures, programs, practices, and 

operations. All aspects of personnel operations, (including 

recruitment, hiring, promotions, training, awards, reorganizations, 

and retention of employees) shall be conducted consistent with 

equal employment opportunity principles, FDIC policies, 

applicable Federal laws, regulations, and executive orders. 

Any unlawful or improper conduct that undermines the FDIC’s 

efforts to prohibit discrimination will not be tolerated. Employees 

who commit such acts of prohibited discrimination may be subject 

to disciplinary action up to and including termination from 

employment. Moreover, supervisors or managers who fail to take 

appropriate disciplinary action against subordinates who commit 

acts of prohibited discrimination, including retaliation against or 

harassment of employees who engage in activity protected by 

this policy statement, are also subject to disciplinary action. 

It is the policy of the FDIC to promote diversity in its workforce 

and inclusion in all of its programs and activities and provide 

employees with a work environment that embodies excellence 

and that acknowledges and honors the diversity of its employees. 

The FDIC is fully committed to utilizing consistent standards and 

procedures to ensure the fair inclusion and utilization of MWOBs 

and SDBs in FDIC procurement opportunities and business 

activities, to the maximum extent possible. 

6. Authorities The sources of authority for the FDIC’s equal opportunity policy 

may be found in the following Federal statutes, regulations, and 

executive orders: 

a. Federal Statutes 

(1) Title VII of the Civil Rights Act of 1964, as amended, 

makes it unlawful for a Federal employer to discriminate 

against an employee (or applicants for employment) based on 

Circular 2710.1 2 November 20, 2015 

26 
Circular 2710.1 3 November 20, 2015 

Authorities (cont.) race, color, religion, sex (including pregnancy), national origin, 

or retaliation, 42 U.S.C. §2000e-16; 

(2) Equal Pay Act of 1963, as amended, protects men and 

women who perform substantially equal work within the same 

organization from sex-based wage discrimination, 29 U.S.C. 

§206(d); 

(3) The Rehabilitation Act of 1973, as amended, makes it 

unlawful to discriminate or retaliate against qualified 

individuals with disabilities including Federal employees, 

applicants for employment or the public and requires Federal 

agencies to provide reasonable accommodations and 

accessibility to all FDIC programs and activities including 

employment and facilities, 29 U.S.C. §791; 

(4) The Age Discrimination in Employment Act of 1967, as 

amended, makes it unlawful to discriminate or retaliate against 

an employee (or applicant for employment) who is 40 years of 

age or older, 29 U.S.C. §621; 

(5) Section 1216(a) and (c) of the Financial Institutions 

Reform, Recovery, and Enforcement Act of 1989, as 

amended, applies Executive Order 11478, as amended, to the 

FDIC, 12 U.S.C. §1833e(a) and provides for a Minority and 

Women Outreach Program to ensure inclusion, to the 

maximum extent possible, of minorities and women, and 

entities owned by minorities and women in all contracts 

entered into by the FDIC; 

(6) Titles I and V of the Americans with Disabilities Act of 

1990, as amended, define “a qualified individual with a 

disability” for purposes of the Rehabilitation Act of 1973, as 

amended, and excludes individuals engaged in the illegal use 

of drugs, 42 U.S.C. §§12102, 12114; 

(7) Civil Rights Act of 1991, as amended, provides monetary 

damages for employees (and applicants for employment) in 

cases of intentional employment discrimination based on race, 

color, religion, sex, sexual harassment, national origin, or 

disability, 42 U.S.C. §1981a; 

(8) Notification and Federal Employee Antidiscrimination and 

Retaliation Act of 2002, (the No FEAR Act) requires each 

Federal agency to post summary statistical data pertaining to 

complaints of employment discrimination filed against it by 

employees and applicants for employment, 5 U.S.C. §2301; 

(9) Americans with Disabilities Act Amendments Act of 2008, 

expands the definition of a disability by reinstating a broad 

scope of protection to be available under the Americans with 

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Authorities (cont.) Disabilities Act, 42 U.S.C. §12101; 

(10) Title II of the Genetic Information Nondiscrimination Act 

of 2008, makes it unlawful for an employer to discriminate 

against an employee (or applicants for employment) based on 

genetic information (information about an individual’s genetic 

tests; or information about the genetic tests, or the 

manifestation of a disease or disorder in the individual’s family 

members, 42 U.S.C. §2000ff; 

(11) Section 342 of the Dodd-Frank Wall Street Reform and 

Consumer Protection Act of 2010, provides for the 

development of standards for equal employment opportunity 

in the FDIC workforce, increased participation of MWOBs in 

FDIC programs and activities, and assessing the diversity 

policies and practices of entities regulated by the FDIC. 

b. Federal Regulations 

(1) 5 C.F.R. Part 724, U.S. Office of Personnel 

Management’s No FEAR Act notice posting and training 

requirements; 

(2) 12 C.F.R. Part 361, FDIC’s minority and women outreach 

program contracting guidelines; 

(3) 12 C.F.R. Part 352, FDIC’s nondiscrimination on the basis 

of disability guidelines; 

(4) 29 C.F.R. Part 1604, Equal Employment Opportunity 

Commission’s (EEOC) sex discrimination guidelines; 

(5) 29 C.F.R. Part 1605, EEOC’s religious discrimination 

guidelines; 

(6) 29 C.F.R. Part 1606, EEOC’s national origin 

discrimination guidelines; and 

(7) 29 C.F.R. Part 1614, EEOC’s federal sector EEO 

guidelines including No FEAR Act public website postings. 

c. Executive Orders. These are orders issued by the President 

pursuant to the Constitution and other Federal statutes which 

may be applicable to the FDIC. 

(1) Executive Order 11478 (1969), as amended, prohibits 

discrimination against Federal employees (and applicants for 

employment) based on race, color, religion, sex, age , national 

origin, disability, sexual orientation, gender identity, or status 

as a parent; 

(2) Executive Order 13087 (1998), prohibits discrimination 

Circular 2710.1 4 November 20, 2015 

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Circular 2710.1 5 November 20, 2015 

Authorities (cont.) against Federal employees (and applicants for employment) 

based on sexual orientation; 

(3) Executive Order 13145 (2000), prohibits discrimination 

against Federal employees (and applicants for employment) 

based on genetic information; 

(4) Executive Order 13152 (2000), prohibits discrimination 

against Federal employees (and applicants for employment) 

based on the individual’s status as a parent; 

(5) Executive Order 13160 (2000), prohibits discrimination 

based on race, color, religion, sex, national origin, disability, 

age, sexual orientation, or status as a parent in federally 

conducted education and training programs; 

(6) Executive Order 13163 (2000), increases employment 

opportunities in the Federal Government for 100,000 

individuals with disabilities; 

(7) Executive Order 13164 (2000), requires Federal agencies 

to establish procedures to facilitate the provision of 

reasonable accommodation for individuals with disabilities; 

(8) Executive Order 13166 (2000), improves access to 

Federal programs and activities for persons with limited 

English proficiency; 

(9) Executive Order 13171 (2000), improves the 

representation of Hispanics in Federal employment; 

(10) Executive Order 13548 (2010), increases Federal 

employment of individuals with disabilities; and 

(11) Executive Order 13583 (2011), requires Federal 

agencies to develop and implement a more comprehensive, 

integrated, and strategic focus on diversity and inclusion. 

7. Accountability and 

Monitoring 

Each Division and Office has a continuing responsibility to identify 

and implement strategies for achieving and maintaining a diverse 

workforce at all levels. These strategies shall be developed in 

concert with OMWI and the Division of Administration (DOA), 

Human Resources Branch, consistent with the FDIC’s Affirmative 

Employment Program, whenever it has been determined that a 

statistically significant imbalance exists in a Division or Office 

work force. Each division and office must review its workforce 

statistics at least annually and adjust its strategies as appropriate. 

Managers and supervisors must work toward developing and 

implementing positive initiatives that achieve measurable results 

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Accountability and 

Monitoring (cont.) 

with regard to workforce diversity and contracting. Managers and 

supervisors are assessed regarding their performance in these 

areas. 

An assessment of the workforce profile will be prepared and 

disseminated annually by OMWI to Division and Office Directors 

and to the Office of the Chairman. Upon availability of contract 

management data, the Acquisition Services Branch, DOA, will 

prepare quarterly statistical charts on the use of MWOBs and 

SDBs for contracting and disseminate this information to the 

Office of the Chairman and to Division and Office Directors. 

8. Guidelines and 

Procedures 

a. The procedures for initiating and processing EEOC complaints 

of alleged employment discrimination are contained in FDIC 

Circular 2710.2, EEOC Discrimination Complaint Process. 

b. The procedures for initiating and processing FDIC complaints 

of alleged employment discrimination are contained in FDIC 

Circular 2710.4, FDIC Discrimination Complaint Process. 

c. The procedures for initiating a complaint of harassment 

discrimination are contained in FDIC Circular 2710.3, AntiHarassment Program. 

d. The FDIC’s Equal Employment Opportunity Program ensures 

equal access to employment for all qualified individuals through 

the implementation of the EEOC’s Management Directive 715, 

and the U.S. Office of Personnel Management’s Disabled 

Veterans Affirmative Action Program. These programs assist in 

the identification and elimination of barriers to recruitment, hiring, 

retention, and promotion of women, minorities, individuals with 

disabilities, and disabled veterans. 

e. The procedures for providing reasonable accommodation to 

individuals with disabilities are contained in FDIC Circular 2710.5, 

Procedures for Providing Reasonable Accommodation to 

Individuals with Disabilities. 

f. Information on the FDIC’s Contracting Outreach Program is 

available in FDIC Circular 3700.16, FDIC Acquisition Policy 

Manual (APM) and the FDIC’s Guide for Outside Counsel. 

g. The FDIC’s Minority and Women Outreach Program may be 

amended from time to time to establish rules and strategies for 

achieving diversity in the awarding of contracts to MWOBs and 

SDBs. See 12 C.F.R. Part 361, § 342 Dodd-Frank Act, and FDIC 

Circular 2710.14, Corporate Outreach Program. 

Circular 2710.1 6 November 20, 2015 

30 
Circular 2710.1 7 November 20, 2015 

9. Principal OMWI 

Officials 

Questions relating to complaint processing, Affirmative 

Employment, Diversity and Inclusion, and/or the Minority and 

Women Outreach Program: 

a. Chief, Complaints Processing Branch 

(703) 562-6073 or for TTY (703) 562-2473 

b. Chief, Diversity and Affirmative Employment Section 

(703) 562-6062 

c. Chief, Minority and Women Business and Diversity and 

Inclusion Branch (703) 562 2623 

10. Effective Date The provisions of this Circular are effective immediately. 

No FEAR Act Annual Report to Congress Fiscal Year 2017

 

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APPENDIX C-2 

Circular 2710.3 – Anti-Harassment Program 
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36 No FEAR Act Annual Report to Congress Fiscal Year 2017
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38 No FEAR Act Annual Report to Congress Fiscal Year 2017
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40 No FEAR Act Annual Report to Congress Fiscal Year 2017
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42 No FEAR Act Annual Report to Congress Fiscal Year 2017

APPENDIX C-3 

Circular 2750.1 – Disciplinary and Adverse Actions 
FEDERAL DEPOSIT INSURANCE CORPORATION 

DIRECTIVE SYSTEM 

TYPE AND NUMBER 

Circular 2750.1 

CONTACT TELEPHONE NUMBER 

Mary Laverty (703) 562 2171 

DATE 

January 22, 1999 

DATE OF CANCELLATION (Bulletins Only) 

TO: All Employees 

FROM: John W. Lynn, Acting Director 

Division of Administration (DOA) 

SUBJECT: Disciplinary and Adverse Actions 

1. Purpose. To establish policy and issue information and guidance 

on disciplinary and adverse actions, to include performance based 

actions, and their use at the FDIC. 

2. Scope. This circular applies to all FDIC employees, including 

both competitive service as well as excepted service employees, with 

the exception of presidential appointees and re-employed annuitants. 

The applicability of the provisions of this circular to bargaining 

unit employees has been negotiated with the National Treasury 

Employees Union (NTEU). Where the provisions of this circular differ 

from the terms of other negotiated agreements with NTEU, the terms of 

the NTEU negotiated agreements shall take precedence, provided they 

conform to Federal law. Therefore, any other negotiated agreements 

should be read in conjunction with this circular. 

Note: The Office of Inspector General (OIG) is in the process of 

establishing a Personnel Services Office that will handle disciplinary 

and adverse actions involving OIG employees. Upon transfer of 

operational personnel authority to the OIG, actions involving OIG 

employees will be carried out in accordance with policies established 

by the OIG Human Resources Branch and OIG Counsel’s office. 

3. Authority. Primary sources providing the authority for, and 

guidance on disciplinary and adverse actions are contained in 5 U.S.C. 

Chapter 75 and 5 C.F.R. 752. 

4. Action. All employees are encouraged to review this directive 

carefully and retain it for future reference. 

5. Policy. It is the policy of the FDIC to foster a positive and 

effective relationship between management and employees through 

communication, and when necessary, administer disciplinary and adverse 

actions in a fair and consistent manner. 

FDIC 1212/03 (6-95) 

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No FEAR Act Annual Report to Congress Fiscal Year 2017

6. Definitions 

a. Adverse Action. Suspensions from duty and pay for more

than 14 calendar days, indefinite suspensions, reductions in grade, 

reductions in pay, removals, and furloughs of 30 days or less 

constitute adverse actions. An adverse action can be imposed for 

conduct or performance problems. 

b. Appeal Rights. Employees generally have the right to 

appeal a personnel action taken against them to a third-party. 

Examples of such third parties include the Merit Systems Protection 

Board (MSPB) or the Equal Employment Opportunity Commission (EEOC).

Further, NTEU may elect to make an appeal to a grievance arbitrator 

on behalf of a bargaining unit employee. However, employees serving 

in their probationary period or trial period have limited appeal

rights, as discussed in paragraph 10., below. Additionally, excepted 

service employees, as defined in 5 C.F.R. 213, who are non-preference 

eligibles, do not obtain full rights of appeal until they have

completed two years of service. Excepted service preference eligible 

employees must complete one year of service before obtaining full 

appeal rights. (For further information refer to 5 U.S.C. 7511.) 

c. Day. The reference to a day for purposes of disciplinary 

and adverse actions means a calendar day. For computing periods of 

time, days are full calendar days and include weekends unless 

otherwise specified. 

d. Deciding Official. The management official with delegated 

authority to render the decision on a proposed disciplinary or 

adverse action. The deciding official must not have been involved in 

any aspect of the penalty determination at the proposal stage, in 

order to be considered impartial, but may have general knowledge of 

the action taken by the proposing official. 

e. Disciplinary Action. Letters of admonishment, letters of 

reprimand, and suspensions from duty and pay of 14 calendar days or 

less constitute disciplinary actions. Disciplinary action may only

be taken as a result of conduct problems. 

f. Douglas Factors. The twelve factors which the MSPB has 

determined are relevant in the deciding official’s determination 

regarding the appropriateness of a penalty imposed against an 

employee. (See paragraph 9., below.) 

g. Indefinite Suspension. Usually invoked against an employee 

who is the subject of a criminal investigation for which a period of

incarceration may result. The criminal investigation may be related 

to on or off duty conduct. Additionally, indefinite suspension may 

also be invoked pending other agency investigation, inquiry, or 

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agency action. This suspension is used to place the employee in a 

non-duty, non-pay status pending further investigation and/or 

resolution of the criminal charges against the employee. 

h. Oral Reply. A verbal response by an employee, or his/her 

representative, to a notice of proposed disciplinary or adverse 

action. Oral replies are typically made to the deciding official in 

the action. The purpose of the oral reply is to give the employee an 

opportunity to make an oral plea in an attempt to sway the decision 

in his/her favor. The oral reply is not a hearing and the testimony 

of witnesses is not permitted. 

i. Performance Improvement Plan (PIP). A written notice to an 

employee outlining performance deficiencies. The PIP is issued when 

counseling has not resulted in an improvement in performance, and can 

be issued at any point during the year. The PIP provides a formal 

plan of expectations for improvement of performance. In addition, a 

PIP is required to be issued when an employee has received an overall 

summary rating of Unacceptable, or has received two consecutive 

Marginal ratings. 

j. Proposing Official. The management official with delegated 

authority to issue the notice to an employee that a disciplinary or 

adverse action is proposed against him/her. The proposing official 

is generally the management official with some degree of direct 

knowledge regarding the misconduct or performance deficiencies. 

k. Written Reply. A written response by an employee or 

his/her representative to a notice of proposed disciplinary or 

adverse action. The written reply may include affidavits and other 

documentary evidence in support of the employee’s argument. 

7. Responsibilities 

a. The Personnel Services Branch (PSB) is responsible for 

interpreting and providing guidance to managers and supervisors on 

discipline and adverse actions and the policies and procedures 

contained in this directive. Additionally, PSB is responsible for 

informing affected employees of their rights and entitlements. In 

accordance with the delegations of authority, PSB will provide 

concurrence on behalf of DOA for all disciplinary and adverse 

actions. PSB will obtain concurrence from the General Counsel and, 

when appropriate, the Ethics Counselor.

b. Managers and supervisors are responsible for documenting 

the facts and circumstances warranting consideration of a 

disciplinary or adverse action, and for consulting their servicing 

PSB to obtain advice and assistance before initiating a disciplinary 

or adverse action. After obtaining guidance and advice, it is the 

managers’ and supervisors’ responsibility to follow through in a 

No FEAR Act Annual Report to Congress Fiscal Year 2017 45 
No FEAR Act Annual Report to Congress Fiscal Year 2017

timely manner with corrective steps if improvement in the employee’s 

conduct or performance does not occur. As circumstances warrant, 

managers and supervisors are responsible for referring employees to

the Employee Assistance Progam (EAP). 

8. Procedures 

a. Informal Actions. Once the supervisor has identified 

a problem relating to the employee’s conduct or performance, the 

supervisor must inform the employee of the existence of the 

problem and state his/her expectations for improvement. This 

can be achieved by oral counseling, written counseling, a letter

of warning, or a combination of oral and written communications. 

The distinction between a letter of counseling and a letter of 

warning is that the warning includes a notice that disciplinary 

action will be taken if the employee fails to correct the noted 

deficiencies. 

b. Disciplinary Actions. Disciplinary actions imposed are 

expected to be corrective in nature and consistent with penalties 

imposed for similar infractions. All disciplinary actions require

concurrence by the Director, Division of Administration and the 

General Counsel, or their designees, prior to issuance to an 

employee. Additionally, concurrence by the Ethics Counselor, or 

his/her designee, shall be obtained, as appropriate. The employee 

will be asked to sign a statement, acknowledging receipt of any 

written notice and the date of receipt. The following describes the 

various types of disciplinary actions: 

(1) Letter of Admonishment: A letter of admonishment is 

issued by the management official with delegated authority, as a 

result of employee misconduct. This is the least severe formal 

disciplinary action. A letter of admonishment is usually issued when 

prior informal efforts have not corrected the misconduct, or when the 

misconduct is considered sufficiently serious to warrant issuance 

without prior warning. The letter of admonishment shall be placed in 

the employee’s Official Personnel Folder (OPF) for a period of one

year, or as dictated by the applicable NTEU agreement. The employee 

has a right to make a written reply to the letter of admonishment, 

subsequent to its issuance. The employee’s written reply will be

attached to the letter of admonishment when it is filed in the OPF. 

The letter of admonishment is grievable. 

(2) Letter of Reprimand: A letter of reprimand is issued 

by the management official with delegated authority, as a result of 

employee misconduct. A letter of reprimand is usually issued when

prior informal efforts have not corrected the misconduct, or when the 

misconduct is considered sufficiently serious to warrant issuance 

without prior warning. The letter of reprimand is placed into the 

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5

employee’s OPF for a period of two years, or as dictated by the 

applicable NTEU agreement. The employee has a right to make a 

written reply to the letter of reprimand, subsequent to its issuance. 

The employee’s written reply will be attached to the letter of 

reprimand when it is filed in the OPF. The letter of reprimand is 

grievable. 

(3) Suspension of 14 Calendar Days or Less: A suspension 

is proposed by the management official with delegated authority, as a 

result of employee misconduct, and decided by a management official 

at a higher level than the proposing official. The employee is 

entitled to an advance notice period before a suspension can be 

effected against him/her. The employee will be provided with a 

written proposal and has a right to review the material relied upon 

by management in proposing the suspension. The employee also has a 

right to reply orally and/or in writing to the proposal before a 

decision is made regarding the suspension, and a right to 

representation. 

Upon request to and approval from their immediate supervisor, 

employees will be granted a reasonable amount of official time to 

prepare and present their replies. An oral reply is generally made 

to the deciding official. The deciding official may request 

clarification from the proposing official regarding the notice of 

proposal or the material relied upon. However, the proposing 

official may not provide the deciding official with any new adverse 

information. A suspension will result in a loss of pay for scheduled 

workdays, and become a permanent documented part of the employee’s 

OPF. A suspension of 14 calendar days or less is grievable. 

c. Adverse Actions. Adverse actions imposed are expected to 

be reasonable with regard to penalty and consistent with penalties 

imposed for similar infractions. All adverse actions require 

concurrence by the Director, Division of Administration and the 

General Counsel, or their designees, prior to issuance to an 

employee. Additionally, concurrence by the Ethics Counselor, or 

No FEAR Act Annual Report to Congress Fiscal Year 2017 47 
No FEAR Act Annual Report to Congress Fiscal Year 2017

his/her designee, shall be obtained, as appropriate. The employee 

will be asked to sign a statement acknowledging receipt of any 

written notice and the date of receipt. 

All adverse actions (suspension for more than 14 calendar days, 

indefinite suspension, reduction in grade or pay, and removal) 

utilize the following procedures: 

(1) The adverse action is proposed by the management 

official with delegated authority, and normally decided by a 

management official at a higher level than the official who issued 

the proposal. The employee is entitled to thirty (30) days advance

written notice of the proposed adverse action. Note, however, that 

the 30-day advance notice period may be shortened when there is 

reasonable cause to believe that an employee has committed a crime

where imprisonment may be imposed. 

(2) The advance written notice shall inform the employee 

of the specific reasons for the proposal, their right to representation, and their right to reply to the proposal orally and/or in 

writing. The employee has a right to review the material relied upon

in proposing the adverse action. Upon request to and approval from 

their immediate supervisor, employees will be granted a reasonable 

amount of official time to prepare and present their replies. An 

oral reply is typically made to the deciding official. A written 

reply will be submitted to the individual specified in the proposal. 

(3) The deciding official may request clarification from 

the proposing official regarding the notice of proposal or the 

material relied upon. However, the proposing official may not 

provide the deciding official with any new information. The decision 

must be based upon a preponderance of the evidence provided to the 

deciding official and must be for such cause as will promote the 

efficiency of the Federal service. If any of the charges cited in 

the proposal notice are not sustained by the preponderance of the 

evidence, those charges may not be relied upon in effecting the 

action. The deciding official must then determine which charges are

sustained, and whether the sustained charges warrant the action 

proposed. The deciding official must consider the Douglas Factors in 

rendering the decision on the penalty proposed. The deciding

official has the authority to reduce any proposed penalty, but may 

not impose a more severe action than that proposed. 

(4) The written decision must contain the employee’s right 

to appeal the decision to the MSPB or to file a complaint of 

discrimination, along with the appeal time frames, the MSPB address,

appeal form, and regulations. If the employee is in a bargaining 

unit position covered by a negotiated grievance procedure covering 

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adverse actions, the decision notice will also advise of his/her 

option to file a grievance. 

d. Performance Based Actions 

When an employee’s performance is less than satisfactory, management 

will initiate action to assist the employee with improving his/her 

performance. This may include counseling orally and/or in writing. 

Continued deficient performance may necessitate more formal actions. 

However, prior to initiating an adverse action based on 

unsatisfactory performance, the employee will be provided with a 

performance improvement plan (PIP) and a reasonable opportunity to 

raise his/her performance to a satisfactory level before any action 

to remove him/her from his/her current position is proposed. The PIP 

will clearly state the specific performance deficiencies and the 

supervisor’s expectations for improvement. The plan establishes a 

period for improvement, generally 90 days. The supervisor must also 

offer meaningful assistance to the employee during the improvement 

period, which may include closer supervision and/or providing 

appropriate training. The supervisor should closely monitor the 

employee’s work and must provide written feedback regarding the 

employee’s performance at specified intervals during the performance 

improvement period. 

At the end of the performance improvement period, the supervisor will 

prepare a written summary of the employee’s performance in the 

identified areas. If the performance has improved, the employee will 

be advised that should his/her performance fall below the 

satisfactory level within one year from the start of the PIP, action 

will be taken to remove the employee from his/her current position 

without providing another performance improvement opportunity. If 

the performance has not improved, the supervisor should take 

appropriate action, such as reassignment, demotion, or removal from 

Federal service, to remove the employee from his/her current 

position. 

The procedures described in subparagraph 8.c., above, shall be 

followed for performance based actions once a determination has been 

made that an adverse action is warranted. 

9. Penalty Determination. The MSPB has established mitigating and 

aggravating factors, referred to as Douglas Factors, that must be 

considered in reaching a decision on a penalty in an adverse action. 

Not all of the following factors will apply in every case, but all of 

the relevant factors in any given situation should be considered. The 

deciding official’s analysis of these factors will be incorporated

into the adverse action decision letter. The 12 Douglas Factors are 

as follows: 

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No FEAR Act Annual Report to Congress Fiscal Year 2017

a. The nature and seriousness of the offense, and its relation 

to the employee's duties, position, and responsibilities, including 

whether the offense was intentional or technical or inadvertent, or 

was committed maliciously or for gain, or was frequently repeated. 

b. The employee's job level and type of employment, including 

supervisory or fiduciary role, contacts with the public, and 

prominence of the position. 

c. The employee's past disciplinary record. 

d. The employee's past work record, including length of

service, performance on the job, ability to get along with fellow 

workers, and dependability. 

e. The effect of the offense upon the employee's ability to 

perform at a satisfactory level and its effect upon the supervisor's 

confidence in the employee's ability to perform assigned duties. 

f. Consistency of the penalty with those imposed upon other 

employees for the same or similar offenses. 

g. Consistency of penalties with applicable table of 

penalties. 

Note: There is no FDIC table of penalties. 

h. The notoriety of the offense or its impact upon the 

reputation of the agency. 

i. The clarity with which the employee was on notice of any 

rules that were violated in committing the offense, or had been 

warned about the conduct in question. 

j. Potential for the employee's rehabilitation. 

k. Mitigating circumstances surrounding the offense such as

unusual job tensions, personality problems, mental impairment, 

harassment, or bad faith, malice or provocation on the part of others 

involved in the matter. 

8

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9

l. The adequacy and effectiveness of alternative sanctions to deter 

such conduct in the future by the employee or others. 

10. Probationary/Trial Period Employees. The one-year probationary 

or trial period imposed upon new employees serves as a means to 

review the employees’ conduct and performance so that an informed 

decision can be made regarding their ability to meet expectations. 

When an employee does not demonstrate acceptable conduct or 

performance during this period, action should be taken to discharge 

the employee from the Federal service. In cases where problems have 

been identified, it is incumbent upon the supervisor to take 

corrective action well in advance of the expiration of the 

probationary or trial period. This action will afford the employee 

sufficient time to correct the problem before management is required 

to make the decision regarding completion of the period. In most 

cases, the supervisor should start by orally counseling the employee 

when problems are discovered. If the counseling fails to bring the 

necessary improvement, a letter of warning should be issued, 

notifying the employee that failure to meet expectations will result 

in discharge from the Federal service. 

Failure to improve will necessitate the issuance of a written notice 

of discharge, outlining the basis for the termination, the effective 

date, and the employee’s rights of appeal. It is key to note that 

discharge from a probationary or trial period must be effected before 

expiration of the one year period, (i.e., before the end of the 

employee’s scheduled tour of duty the day before the anniversary date 

of the employee’s appointment). If the discharge has not been 

effected against the employee prior to the probationary or trial 

period expiration date, disciplinary and adverse action procedures 

must be followed. Thus, early identification and correction of 

problems are crucial. 

Probationary or trial period employees in the competitive service 

have limited appeal rights. An appeal regarding their discharge from 

Federal service may be filed with the MSPB only if that action was 

taken on the basis of the employee’s marital status or partisan 

political affiliation. However, if the basis for the termination, in 

whole or in part, relates to conditions arising prior to employment, 

the employee may file an MSPB appeal on the grounds that the 

termination was not effected in accordance with the proper procedural 

requirements. Further, allegations of discriminatory termination may 

be filed only if the employee first has the basis to file an appeal 

due to his/her marital status or partisan political affiliation. 

Excepted service, non-preference eligible, employees who are 

discharged during their trial period do not have the right to appeal 

to the MSPB. 

No FEAR Act Annual Report to Congress Fiscal Year 2017 51 
No FEAR Act Annual Report to Congress Fiscal Year 2017

11. Employee Assistance Program. FDIC Circular 2821.1, FDIC’s 

Employee Assistance Program, was established to assist employees with 

personal problems that may affect conduct or performance on the job.

The program includes the availability of counseling services. 

Regardless of the nature of the employee’s conduct or performance 

problem, managers have the obligation to refer the employee to the 

Employee Assistance Program. The referral should be included in 

written counseling memoranda, letters of warning, or other 

appropriate written notices regarding conduct or performance 

deficiencies. 

12. Questions. Any questions concerning the disciplinary and

adverse actions process should be directed to the Division of 

Administration, Personnel Services Branch. 

13. Effective Date. This circular is effective immediately. 

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C-4 

Circular 2400.2 – Whistleblower Protection Rights 

54 No FEAR Act Annual Report to Congress Fiscal Year 2017

APPENDIX 
No FEAR Act Annual Report to Congress Fiscal Year 2017 55 

FDIC 1212/03 (6-99)

TYPE AND NUMBER

Circular 2400.2

CONTACT TELEPHONE NUMBER

Eileen Halpin (703) 562-2173

DATE

June 6, 2001

DATE OF CANCELLATION (Bulletins Only)

TO: All Employees

FROM: Arleas Upton Kea 

Director, Division of Administration (DOA)

SUBJECT: Whistleblower Protection Rights

1. Purpose To inform employees of their rights and remedies under Federal 

whistleblower protection laws.

2. Scope This circular applies to all current and former FDIC employees 

and applicants for employment at the FDIC. Where the terms of 

a negotiated agreement differ from the provisions of this circular, 

the negotiated agreement is applicable, provided it conforms with 

Federal law. Any negotiated agreement should be read in 

conjunction with this circular.

3. Background The Whistleblower Protection Act (5 U.S.C. 2302(b)(8)) protects 

Federal employees and applicants for employment from 

retaliatory action or reprisal for whistleblowing. 

Additionally, FDIC employees are protected from reprisal for 

whistleblowing activities under 12 U.S.C. 1831j.

The Inspector General Act (5 U.S.C. Appendix 3, § 7) prohibits 

reprisal against any employee for making a complaint or 

disclosing information to an Inspector General.

4. Definitions Terms specific to this circular are defined below:

a. Office of Special Counsel (OSC). An independent 

investigative and prosecutorial agency within the Executive 

Branch that receives and investigates complaints alleging 

prohibited personnel practices, including those involving reprisal 

for whistleblowing.

FEDERAL DEPOSIT INSURANCE CORPORATION

DIRECTIVE SYSTEM

*Name and telephone number has been changed to reflect the new Contact.
No FEAR Act Annual Report to Congress Fiscal Year 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Definitions 

(cont’d) 

b. Whistleblowing. When a Federal employee or applicant for 

employment discloses information to the OSC, the Inspector 

General, or other comparable agency official, which the individual 

reasonably believes evidences: 

(1) a violation of law, rule, or regulation; 

(2) gross mismanagement; 

(3) a gross waste of funds; 

(4) an abuse of authority; or 

(5) a substantial and specific danger to public health or 

safety. 

5. Policy a. Under the Whistleblower Protection Act, it is prohibited for a 

Federal official or employee to take, fail to take, threaten to take, 

or threaten to fail to take a personnel action against an employee 

or applicant because of protected whistleblowing activities. 

Whistleblowing is protected unless the disclosure is prohibited by 

law or required by Executive Order to be kept secret for national 

security or foreign affairs reasons. Employees, former 

employees, and applicants may appeal a suspected reprisal for 

whistleblowing. 

b. Under 12 U.S.C. 1831j, FDIC employees may not be 

discharged or discriminated against with respect to 

compensation, terms, conditions or privileges of employment 

because the employee (or an individual acting at the request of 

the employee) provided information to any Federal banking 

agency, bank or to the Attorney General regarding any possible 

violation of law or regulation, gross mismanagement, a gross 

waste of funds, an abuse of authority, or a substantial and 

specific danger to public health. 

c. Under the Inspector General Act, it is prohibited to take or 

threaten any action against an employee as a reprisal for making 

a complaint or disclosing information to the Inspector General, 

unless the complaint was made, or information disclosed, with 

knowledge of (or with willful disregard for) its falsity. 

6. Procedures Individuals seeking protection under the Federal whistleblower 

laws shall select one of the following filing remedies. 

a. A complaint with the Office of Special Counsel for 

investigation; 

Circular 2400.2 2 June 6, 2001 

56 
Circular 2400.2 3 June 6, 2001 

Procedures 

(cont’d) 

b. A grievance under the FDIC negotiated grievance procedures 

(if the employee is in a bargaining unit); 

c. A lawsuit in Federal Court under 12 U.S.C. 1831j; or 

d. An appeal with the Merit Systems Protection Board. 

7. Contacts Questions regarding Whistleblower Protection Rights or filing 

procedures should be directed to the local Labor and Employee 

Relations representatives, DOA, Personnel Services Branch. 

Individuals also may contact the Office of Special Counsel at 

(1-800-572-2249) for information regarding whistleblower 

disclosures and/or procedures for filing a complaint with the OSC. 

8. Effective Date The provisions of this circular are effective immediately. 

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