The process governing federal employees' rights to have their discrimination complaints adjudicated is very different than the process governing their private sector counter-parts. Federal employees can elect to have their cases heard by an Administrative Law Judge ("ALJ") or a Federal Judge. If a federal employee elects to have his or her case by an ALJ, if he or she is not happy with the result, the employee has a right of appeal to the Equal Employment Opportunity Commission ("EEOC").
In Malek v. Leavitt, a federal employee elected to proceed before an ALJ. He eventually won his discrimination claim. The EEOC ordered the employing agency (HHS) to make the employee whole by awarding him reinstatement, back pay, and attorney's fees. The employee later complained to the EEOC that HHS failed to fulfill the EEOC's make whole remedy. The EEOC disagreed and found that HHS had complied with the order.
Still unhappy, the employee file a claim in Federal Court. He sought an enforcement order compelling HHS to make him whole for its discrimination. The Court ruled however that it did not have jurisdiction to hear his claim. According to Federal Regulations, the Court only has jurisdiction to hear such a case when the EEOC first has determined that the Agency is not complying with its make whole order. Because the EEOC held that the Agency was complying with its order, the employee had not right to seek enforcement in federal court.
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