No FEAR Act

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 2016......................................................................................7

Planned Actions to Improve the FDIC EEO Complaint Program...............................8

FDIC No FEAR Act Training Plan .......................................................................................8

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...............................................53

No FEAR Act Annual Report to Congress Fiscal Year 2016 i
ii No FEAR Act Annual Report to Congress Fiscal Year 2016
Introduction

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

stability and public confidence in the nation’s financial system by insuring deposits, 

examining and supervising financial institutions for safety and soundness and 

consumer protection, making large complex financial 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 FDIC is pleased to present its Notification and Federal Employee Antidiscrimination 

and Retaliation Act (No FEAR Act) Annual Report to Congress for Fiscal Year 2016. 

This report provides information about administrative complaints of employment 

discrimination and retaliation and cases filed 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 2016 1
Purpose of Report

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

violations of antidiscrimination and whistleblower protection laws. The Act requires 

the FDIC to submit an annual report within 180 days of the end of the fiscal 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. Office of Personnel Management (OPM) regulations also 

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

Specifically, 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 fiscal 

year;

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

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

§ The FDIC No FEAR Act Training Plan.

This report is based on Fiscal Year (FY) 2016 data (October 1, 2015 - September 30, 2016).

2 No FEAR Act Annual Report to Congress Fiscal Year 2016
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); and,

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

national origin, age, disability, marital status, political affiliation, and whistleblowing).

No FEAR Act Annual Report to Congress Fiscal Year 2016 3
No FEAR Act Data and Analysis

EEO Complaint Activity in Federal Court and Disposition

At the start of FY 2016, there were six cases pending in federal district courts and one 

case in an appellate court. Seven new cases were filed in district court and three new 

appeals were filed in appellate court during FY 2016. These 10 cases raised allegations 

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

Rehabilitation Act. Of the 13 cases pending at any time in FY 2016 in district court, one 

case was voluntarily withdrawn, one case was settled, and four cases were decided 

in favor of the agency. Two cases were affirmed at the appellate level in favor of the 

agency. Of the nine remaining cases pending at the end of FY 2016, seven are pending 

in district court and two are pending in appellate court.

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, indefinite 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 is not appropriated by Congress, with the 

exception of the FDIC, Office of Inspector General (OIG). There were no judgments 

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

court in FY 2016. Therefore, no budget adjustments were necessary.

Number of Employees Disciplined and Discipline Policy

During FY 2016, the FDIC did not discipline any employees for discrimination, 

retaliation, harassment, or any violation of the law covered by the No FEAR Act. 

Additionally there no findings of discrimination issued by a Final Agency Decision, the 

EEOC, the Merit Systems Protection Board, the Office of Special Counsel, a federal 

court, or after a management inquiry.

The FDIC has a zero tolerance policy for acts of discrimination, harassment or 

retaliation as stated in the FDIC’s Annual EEO Policy Statement (Appendix A). Training 

is provided to managers and supervisors on the prohibition against discrimination and 

retaliation in its mandatory training “EEO and Diversity for Managers and Supervisors” 

that is delivered bi-annually. 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 No FEAR Act Annual Report to Congress Fiscal Year 2016
A copy of the FDIC’s policies related to Equal Opportunity, Anti-Harassment Program, 

Disciplinary and Adverse Actions, and Whistleblower Protection Rights are included 

under Appendix C.

Trends of Administrative EEO Complaint Activity

Complaint activity can be measured by the number of discriminatory bases and issues 

alleged in complaints. Further, a single complaint can contain multiple bases and 

issues, therefore, the metrics contained in this analysis may overlap.

During FY 2016, there was an increase in the number of administrative EEO complaints 

filed against the FDIC: 33 in FY 2015 and 40 in FY 2016. This represented a 21 percent 

increase from FY 2015. (Figure 1)

0

10

20

30

40

50

60

2011 2012 2013 2014 2015 2016

51

44

48 47

33

40

Administrative Complaints Filed FYs 2011-2016

Figure 1

Of the 40 EEO complaints filed in FY 2016, the top bases were: age at 24 (60 percent); 

race at 22 (55 percent); sex at 20 (50 percent); and reprisal at 16 (40 percent).

There was a decrease in complaints based on disability from 15 in FY 2015 to 11 in FY 

2016 and a decrease in complaints based on reprisal from 18 in FY 2015 to 16 in FY 2016. 

The number of complaints based on age increased from 12 in FY 2015 to 24 in FY 2016 

and complaints based on religion increased from one in FY 2015 to three in FY 2016.

In FY 2016, there were 13 complaints alleging workplace harassment. This was a 62 

percent increase from FY 2015 (eight complaints). Prior to FY 2016, there had been a 

decrease in complaints alleging workplace harassment: from a high of 31 in FY 2013 

to eight in FY 2015. There was also an increase in FY 2016 in complaints alleging: 

promotion/non-selection (11 in FY 2016 compared to seven in FY 2015); disciplinary 

actions (eight in FY 2016 compared to seven in FY 2015); and, appointment/hire (eight in 

FY 2016, compared to four in FY 2015).

No FEAR Act Annual Report to Congress Fiscal Year 2016 5
Additionally, in 85 percent of the harassment complaints (11 complaints), there were 

also issues regarding disciplinary actions and/or performance evaluation/appraisals.

The FDIC’s Anti-Harassment Program allows for harassment claims to be reviewed and 

resolved expeditiously by the Office of Minority Women Inclusion (OMWI), the Labor and 

Employee Relations Section of the Division of Administration, and the Legal Division. In 

FY 2016, there were nine inquiries involving allegations of harassment raised through the 

Anti-Harassment Program. Four inquiries were found to be unsubstantiated; one inquiry 

was withdrawn; one inquiry was discontinued by the employee; and, three inquiries 

resulted in one employee being counseled, one employee given a letter of warning for 

bullying and hostile behavior, and additional training being conducted at a Field Office.

Causal Analysis

The FDIC believes the increase in the number of EEO complaints may be attributed to 

applicants for permanent employment, as well as an increase in training provided to 

employees regarding their EEO rights and responsibilities.

During FY 2016, the number of complaints filed increased from 33 in FY 2015 to 40 in 

FY 2016. In these new filings, eight (20 percent) were filed by job applicants and nonpermanent employees (mostly alleging age discrimination) seeking permanent or 

continued employment with the FDIC. Since 2014, the FDIC has been decreasing its 

non-permanent workforce, through attrition, due to of the declining need to maintain the 

number of non-permanent staff who were hired to support FDIC mission responsibilities 

during the financial crisis. As the financial crisis abated and fewer banks failed, nonpermanent staff’s appointments were allowed to expire at the end of their appointment 

terms. Simultaneously, opportunities for permanent employment and external hiring in 

these important areas were limited, thereby making the hiring process very competitive.

Additionally, in 2016, the FDIC administered its updated EEO training for managers and 

supervisors and its revised No FEAR Act training, conducted webinars for managers, 

supervisors and employees on the anti-harassment policy and on its EEO complaint 

processes, updated and distributed its Whistleblower policy and administered a 

mandatory online Whistleblower training for all employees. Managers, supervisors and 

employees were trained on what constitutes workplace harassment and whistleblower 

activities and notified of their rights and responsibilities under the relevant laws.

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 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.

6 No FEAR Act Annual Report to Congress Fiscal Year 2016
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 actions 

that may be perceived as discriminatory or retaliatory and to encourage 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 2016

The FDIC implemented the following initiatives in 2016:

§ Reviewed internal practices and procedures to improve complaints processing, 

and implemented the quality control recommendations resulting from the third 

party review conducted in 2015, including:

Revising the standard operating procedures for processing complaints

 Improving the management of the complaints processing data base system

 Increasing oversight of the complaints process to improve processing time;

§ Revised and publicized the FDIC’s Equal Opportunity Policy, Discrimination 

Complaint Procedures and the Anti-Harassment Policy;

§ Revised and distributed the 2016 Chairman’s EEO Policy Statement to all employees;

§ Developed frequently asked questions and answers regarding the FDIC’s policies 

on use of official time in the EEO process and on religious accommodation;

§ Drafted guidance on the EEO Alternative Dispute Resolution policy;

§ Updated the No FEAR Act computer-based training and administered the training 

to all employees; and, conducted webinar trainings on the EEO complaints process, 

reprisal and the Anti-Harassment Program policy to managers and employees.

No FEAR Act Annual Report to Congress Fiscal Year 2016 7
Planned Actions to Improve the FDIC EEO Complaint Program

§ Update the OMWI website, EEO posters and other complaint documents to ensure 

compliance with regulatory requirements and provide employees with their rights 

and responsibilities;

§ Finalize the EEO Alternative Dispute Resolution policy;

§ Review internal practices and procedures to identify opportunities to improve 

complaints processing and quality control;

§ Review and update, as needed, the EEO and Diversity training for managers and 

supervisors;

§ Review and update, as needed, the No FEAR Act computer-based training;

§ Conduct webinars on retaliation for managers and supervisors, and 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 2016 – 2017. 

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.

The FDIC No FEAR Act training was updated in FY 2016 to further clarify and expound 

on the recent changes to the EEOC case law. The training includes discussions on the 

Federal anti-discrimination laws, anti-retaliation laws, Executive Orders, whistleblower 

protection laws, and the FDIC mediation program. The training modules are compliant 

with the Rehabilitation Act, Section 508 (i.e., open captioned), and incorporates 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 FDIC’s Corporate University. The FDIC tracks 

the number of employees completing the training and issues notification to those who 

have not completed it within the training cycle. As of February 2017, 5091 employees 

(86 percent) had completed the training for the current training cycle (FY2016-2017). The 

Office of Minority and Women Inclusion monitors the completion status by receiving 

monthly reports noting the number of employees who have completed the training. 

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 2016
No FEAR Act Annual Report to Congress Fiscal Year 2016 9

APPENDIX A

FDIC ANNUAL EEO POLICY 

STATEMENT
13

Federal Deposit Insurance Corporation

550 17th Street NW, Washington, DC 20429 Office of the Chairman

February 21, 2016

MEMORANDUM FOR ALL FDIC EMPLOYEES

From: Martin J. Gruenberg

Chairman

Subject: Equal Employment Opportunity Policy Statement

I am pleased to once again reaffirm the FDIC’s commitment to the principles of equal 

employment opportunity. It is the FDIC’s policy to provide every individual with an equal 

opportunity in all of our employment programs and business activities, and to prohibit 

discrimination in all aspects of our personnel operations (including recruitment, hiring, 

promotions, training, awards, reorganizations and employee retention).

I expect evert FDIC employee-staff and supervisors-to continue our steadfast efforts to 

strengthen and sustain the FDIC’s position as a model workplace and employer of choice. It 

is essential that we continue to cultivate a workplace culture of excellence that is inclusive 

and supportive of diversity, and safe and free from hostility or harassment. Such a 

workplace treats everyone with dignity and respect, embraces our differences, and allows 

the freedom to compete on a fair and level playing field.

I am confident that all of you will become familiar with and adhere to the EEO principles 

and affirm our zero tolerance for prohibited, discriminatory behavior. We must continue to 

conduct ourselves with professional courtesy and advance the principles of workplace 

access and inclusion.

For more information and equal employment opportunity and freedom from reprisal for 

those who engage in protected activity, please take the time to review the FDIC’s updated 

Equal Opportunity Policy (Circular 2710.1 dated November 20, 2015) at 

https://fdicnet.fdic.qov/content/dam/DOA/documents/rimldirectives/2000/2710-1. pdf.

10 No FEAR Act Annual Report to Congress Fiscal Year 2016
No FEAR Act Annual Report to Congress Fiscal Year 2016 11

APPENDIX B

FDIC SUMMARY 

COMPLAINT DATA
12 No FEAR Act Annual Report to Congress Fiscal Year 2016

B-1

Federal Court Data

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

FEDERAL CASES PENDING in FY 2016

Cases pending at any time during the year, including

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

Pending District Court Cases 13

Pending Appellate Court Cases 2

New Cases Filed in District Court 7

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 FY016 0 0 0 0 2 0 5 0 0

Still pending at end of FY2016 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 2016 13
APPENDIX B-2 

EEO Data Posted Pursuant to the No FEAR Act

14 No FEAR Act Annual Report to Congress Fiscal Year 2016
Appendix B-2: Summary Complaint Data - Equal Employment 

Opportunity Data Posted

Pursuant to the No FEAR Act

Data as of 09-30-2016

Complaint Activity 2012 2013 2014 2015 2016

Number of Complaints Filed 44 48 47 33 40

Number of Complainants 37 43 40 29 34

Repeat Filers 2 2 6 4 4

Complaints by Basis

Note: Complaints can be filed alleging multiple bases. 

The sum of the bases may not equal total complaints filed. 2012 2013 2014 2015 2016

Race 25 22 25 17 23

Color 10 12 8 6 11

Religion 0 1 1 1 3

Reprisal 30 35 29 18 18

Sex 17 20 27 15 20

PDA 0 0 0 0 1

National Origin 5 8 6 7 9

Equal Pay Act 0 0 1 0 0

Age 18 20 17 12 24

Disability 13 17 18 10 10

Genetic Information 0 0 1 1 0

Non-EEO 4 3 9 5 4

Number of Complaints Alleging Each Type of Claim

Note: Complaints can be filed alleging multiple issues. The 

sum of the issues may not equal total complaints filed. 2012 2013 2014 2015 2016

Appointment/Hire 12 2 7 4 8

Assignment of Duties 17 15 14 6 6

Awards 6 4 3 2 1

Conversion to Full-time 0 0 0 0 0

Disciplinary Action

      Demotion 1 1 0 0 0

      Reprimand 4 4 1 0 0

      Removal 3 4 5 0 0

      Suspension 0 0 1 3 0

      Other 12 9 4 4 8

No FEAR Act Annual Report to Congress Fiscal Year 2016 15
Duty Hours 3 2 0 0 0

Evaluation Appraisal 17 21 16 9 8

Examination Test 1 2 1 1 1

Harassment

      Non-Sexual 25 29 14 8 13

      Sexual 3 2 3 0 0

Medical Examination 1 2 0 0 0

Pay (Including Overtime) 5 5 4 3 2

Promotion Non-Selection 18 19 11 7 11

Reassignment

      Denied 6 7 2 4 1

      Directed 0 5 1 1 1

Reasonable Accommodation 4 12 4 2 2

Reinstatement 1 0 0 0 0

Religion Accommodation 0

Retirement 0 1 0 0 0

Sex Stereotyping 0

Telework 0

Termination 2 7 9 4 2

Terms/Conditions of Employment 4 6 4 4 2

Time and Attendance 7 10 8 2 6

Training 9 9 5 1 2

Other 9 15 11 9 8

Processing Time

  2012 2013 2014 2015 2016

Complaints pending during fiscal year

      Average number of days

      in investigation 224 220.64 220 178 179

      Average number of days

      in final action 43 118.11 41 45 40

Complaints pending during fiscal year where hearing was requested

      Average number of days

      in investigation 223 233.40 219 190 193

      Average number of days

      in final action 12 30.00 27 33 34

Complaints pending during fiscal year where hearing was not requested

16 No FEAR Act Annual Report to Congress Fiscal Year 2016
      Average number of days

      in investigation 226 211.44 222 148 172

      Average number of days

      in final action 48 143.29 70 48 45

Complaints Dismissed by Agency

  2012 2013 2014 2015 2016

Total Complaints Dismissed by Agency 10 6 8 6 3

Average Days pending prior to dismissal 84 25 75 96 517

Complaints Withdrawn by Complainants

  2012 2013 2014 2015 2016

Total Withdrawn by Complainants 2 4 2 2 3

Total Final Actions Finding Discrimination

  2012 2013 2014 2015 2016

Total Number of Findings 0 0 0 1 0

Without Hearing 0 0 0 0 0

With Hearing 0 0 0 1 

(100%) 0

Findings of Discrimination Rendered by Basis

Note: Complaints can be filed alleging multiple Bases. 

The sum of the bases may not equal total complaints filed. 2012 2013 2014 2015 2016

Total Number of Findings 0 0 0 1 0

      Race 0 0 0 0 0

      Color 0 0 0 0 0

      Religion 0 0 0 0 0

      Reprisal 0 0 0 1 

(100%) 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 0 1 0

      Race 0 0 0 0 0

      Color 0 0 0 0 0

No FEAR Act Annual Report to Congress Fiscal Year 2016 17
      Religion 0 0 0 0 0

      Reprisal 0 0 0 1 

(100%) 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 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

Findings of Discrimination Rendered by Issue

  2012 2013 2014 2015 2016

Total Number of Findings 0 0 0 1 

(100%) 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

Disciplinary Action

      Demotion 0 0 0 0 0

      Reprimand 0 0 0 0 0

      Suspension 0 0 0 0 0

      Removal 0 0 0 0 0

18 No FEAR Act Annual Report to Congress Fiscal Year 2016
      Other 0 0 0 1 

(100%) 0

Duty Hours 0 0 0 0 0

Evaluation Appraisal 0 0 0 0 0

Examination Test 0 0 0 0 0

Harassment

      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

Reassignment

      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 Defined 0 0 0 0 0

  

Findings After Hearing 0 0 0 1 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

Disciplinary Action

      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 0 1 

(100%) 0

Duty Hours 0 0 0 0 0

Evaluation Appraisal 0 0 0 0 0

No FEAR Act Annual Report to Congress Fiscal Year 2016 19
Examination Test 0 0 0 0 0

Harassment

      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

Reassignment

      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 Defined 0 0 0 0 0

  

Findings Without Hearing 0 0 0 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

Disciplinary Action

      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 0 0 0

Duty Hours 0 0 0 0 0

Evaluation Appraisal 0 0 0 0 0

Examination Test 0 0 0 0 0

Harassment

      Non-Sexual 0 0 0 0 0

      Sexual 0 0 0 0 0

20 No FEAR Act Annual Report to Congress Fiscal Year 2016
Medical Examination 0 0 0 0 0

Pay Including Overtime 0 0 0 0 0

Promotion Non-Selection 0 0 0 0 0

Reassignment

      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 Defined 0 0 0 0 0

Pending Complaints Filed in Previous Fiscal Years by Status

  2012 2013 2014 2015 2016

Total Complaints from previous Fiscal Years 46 59 34 41 34

Total Complainants 38 48 33 35 28

Number of Complaints Pending

      Investigation 1 0 0 0 0

      ROI issued, pending Complainant’s action 0 0 0 0 1

      Hearing 14 28 32 41 31

      Final Action 2 0 1 0 3

      Appeal 11 13 8 14 24

Complaint Investigations

  2012 2013 2014 2015 2016

Pending Complaints Where Investigations Exceed Required Time Frames 0 0 0 0 0

No FEAR Act Annual Report to Congress Fiscal Year 2016 21
22 No FEAR Act Annual Report to Congress Fiscal Year 2016

PAGE 

INTENTIONALLY 

LEFT BLANK
No FEAR Act Annual Report to Congress Fiscal Year 2016 23

APPENDIX C

FDIC POLICIES RELATING 

TO NON-DISCRIMINATION
24 No FEAR Act Annual Report to Congress Fiscal Year 2016

C-1

Circular 2710.1 – Equal Opportunity Policy

APPENDIX 
No FEAR Act Annual Report to Congress Fiscal Year 2016 25
Circular 2710.1 2 November 20, 2015

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 

26 No FEAR Act Annual Report to Congress Fiscal Year 2016
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 

No FEAR Act Annual Report to Congress Fiscal Year 2016 27
Circular 2710.1 4 November 20, 2015

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 

28 No FEAR Act Annual Report to Congress Fiscal Year 2016
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

No FEAR Act Annual Report to Congress Fiscal Year 2016 29
Circular 2710.1 6 November 20, 2015

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.

30 No FEAR Act Annual Report to Congress Fiscal Year 2016
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 2016 31
32 No FEAR Act Annual Report to Congress Fiscal Year 2016

C-2

Circular 2710.3 – Anti-Harassment Program

APPENDIX 
No FEAR Act Annual Report to Congress Fiscal Year 2016 33
34 No FEAR Act Annual Report to Congress Fiscal Year 2016
No FEAR Act Annual Report to Congress Fiscal Year 2016 35
36 No FEAR Act Annual Report to Congress Fiscal Year 2016
No FEAR Act Annual Report to Congress Fiscal Year 2016 37
38 No FEAR Act Annual Report to Congress Fiscal Year 2016
No FEAR Act Annual Report to Congress Fiscal Year 2016 39
40 No FEAR Act Annual Report to Congress Fiscal Year 2016
No FEAR Act Annual Report to Congress Fiscal Year 2016 41
42 No FEAR Act Annual Report to Congress Fiscal Year 2016

C-3

Circular 2750.1 – Disciplinary and Adverse Actions

APPENDIX 
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)

No FEAR Act Annual Report to Congress Fiscal Year 2016 43
2

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 

44 No FEAR Act Annual Report to Congress Fiscal Year 2016
3

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 2016 45
4

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 

46 No FEAR Act Annual Report to Congress Fiscal Year 2016
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 2016 47
6

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 

48 No FEAR Act Annual Report to Congress Fiscal Year 2016
7

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:

No FEAR Act Annual Report to Congress Fiscal Year 2016 49
8

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.

50 No FEAR Act Annual Report to Congress Fiscal Year 2016
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 2016 51
10

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.

52 No FEAR Act Annual Report to Congress Fiscal Year 2016
No FEAR Act Annual Report to Congress Fiscal Year 2016 53

PAGE 

INTENTIONALLY 

LEFT BLANK
C-4

Circular 2400.2 – Whistleblower Protection Rights

54 No FEAR Act Annual Report to Congress Fiscal Year 2016

APPENDIX 
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 2016 55
Circular 2400.2 2 June 6, 2001

Definitions

(contʼd)

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;

56 No FEAR Act Annual Report to Congress Fiscal Year 2016
Circular 2400.2 3 June 6, 2001

Procedures

(contʼd)

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.

No FEAR Act Annual Report to Congress Fiscal Year 2016 57
PAGE 

INTENTIONALLY 

LEFT BLANK

58 No FEAR Act Annual Report to Congress Fiscal Year 2016

FDIC-014-2017