Federal Employees on Long Island: Discrimination, Retaliation and Whistleblower Claims

A federal employee over 40 who works in Holtsville told a supervisor that a promotion went to a younger colleague with less experience. Three weeks later the employee received a notice proposing a 30-day suspension. The employee’s first instinct was to look up the New York State Human Rights Law. For a federal worker that is the wrong statute, and the clock on the right one is already running.

This guide is for people who work for the United States on Long Island and in New York City: at the Northport VA Medical Center, the Postal Service, TSA checkpoints at JFK, LaGuardia and MacArthur, Social Security, the FAA, the IRS and other agencies. Our Long Island employment law practice handles federal-sector matters under the process below. This is general information, not legal advice for any one case.

Why New York’s employee laws are not the route against a federal agency

Executive Law § 292(5) says “employer” includes “all employers within the state.” Federal law decides whether that reaches a federal agency.

In Brown v. General Services Administration, 425 U.S. 820 (1976), the Supreme Court held that § 717 of the Civil Rights Act of 1964 “provides the exclusive judicial remedy for claims of discrimination in federal employment.” In Elgin v. Department of the Treasury, 567 U.S. 1 (2012), the Court held that the Civil Service Reform Act, a “comprehensive system for reviewing personnel action taken against federal employees,” is the exclusive avenue to judicial review when a covered employee challenges a covered adverse action. New York’s public-employee whistleblower law, Civil Service Law § 75-b, lists no federal body as a public employer.

So the question I’m going to ask you is who your employer is. If it’s the United States, then the New York State Human Rights Law, Labor Law § 215, Labor Law § 740, those are great laws, but they’re not the law that regulates a federal agency. Your claim goes through a different mechanism: the EEO counselor, Merit Systems Protection Board, Office of Special Counsel. That’s your process.

The EEOC’s regulation provides that “No person shall be subject to retaliation for opposing any practice made unlawful by title VII” and the other federal anti-discrimination statutes, and retaliation for whistleblowing is a prohibited personnel practice under 5 U.S.C. § 2302. Consequently, a federal worker punished for complaining has a claim, but it is a federal claim with federal deadlines.

The 45-day clock and the EEO complaint process

In the federal-sector process, an aggrieved person “must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action” (29 C.F.R. § 1614.105(a)(1)). The agency or the EEOC must extend it on certain showings, such as that you were never told of the limit and did not otherwise know of it, and may extend it for other sufficient reasons. Plan on the 45 days.

Don’t sit on your rights. Contact an EEO counselor within 45 days of the discriminatory act or effective date of a personnel action. If the action is a removal or a long suspension, appeal to the Merit Systems Protection Board within 30 days and if it’s a VA action under section 714, do so within 10 business days. Don’t wait for the agency to complete its own review. That is not an excuse for missing the deadline. Call about the forum on the day that you receive the notice.

If counseling does not resolve the matter, the formal complaint is due within 15 days of the counselor’s notice. Only claims raised in counseling, or like or related ones, can go into it. The agency then investigates, and you choose a hearing before an EEOC administrative judge or a decision from the agency; every step and its clock is in the table below.

Age and pay claims have their own doors: an age claimant may sue after a notice to the EEOC instead of filing a complaint, and an Equal Pay Act claim may go straight to court. An age or equal-pay claim therefore calls for a decision about the forum in the first weeks.

When a federal employee can go to court

The regulation opens exits to federal district court: 90 days after a final agency action or EEOC decision, or 180 days after a filing that has gone undecided (29 C.F.R. § 1614.407). Decide within 30 days of a final agency action whether to appeal to the EEOC; the 90-day court deadline runs at the same time.

Removals, long suspensions and the MSPB

Chapter 75 of title 5 covers “a removal,” “a suspension for more than 14 days,” “a reduction in grade,” “a reduction in pay” and “a furlough of 30 days or less” (5 U.S.C. § 7512). The Board treats an involuntary resignation as a removal, and removals are appealable after the probationary period.

The appeal “must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later” (5 C.F.R. § 1201.22(b)(1)).

When an appealable action is also alleged to be discriminatory, it is a “mixed case.” You may file a mixed case complaint with the agency or a mixed case appeal with the Board, “but not both,” and whichever is filed first “shall be considered an election to proceed in that forum” (29 C.F.R. § 1614.302(b)). After the Board rules, you may petition the EEOC or sue in district court. In Kloeckner v. Solis, 568 U.S. 41 (2012), the Supreme Court held that district court is the place even when the Board dismissed the mixed case on procedural grounds.

The decision flow below sorts the three doors.

Consequently, the first question in a federal case is what kind of action it was, because the answer decides whether you have 45 days or 30, and which office gets the filing.

Whistleblowers: the Office of Special Counsel and the individual right of action

The Whistleblower Protection Act forbids a personnel action taken because of “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences” a violation of “any law, rule, or regulation,” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” (5 U.S.C. § 2302(b)(8)). It also protects “refusing to obey an order that would require the individual to violate a law, rule, or regulation” (§ 2302(b)(9)(D)).

Unless the action is directly appealable to the Board, you go first to the Office of Special Counsel, then to the Board in an individual right of action appeal. Under 5 U.S.C. § 7121(g) you elect one route: a Board appeal if one is available, a negotiated grievance, or the Special Counsel.

One limit matters. The Special Counsel “generally does not handle allegations of discrimination or EEO retaliation,” and retaliation for filing your own EEO complaint is outside the individual right of action. Consequently, a worker who reported a safety violation and also filed an EEO complaint may have two claims on two tracks, each with its own clock.

VA employees and 38 U.S.C. § 714

The VA Accountability and Whistleblower Protection Act of 2017 added a separate discipline statute: the Secretary “may remove, demote, or suspend a covered individual who is an employee of the Department if the Secretary determines the performance or misconduct of the covered individual warrants” it. Probationers, senior executives and some other positions are excluded.

An appeal to the MSPB “may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension.” The administrative judge “shall uphold the decision of the Secretary” if it “is supported by substantial evidence” and in that case “shall not mitigate the penalty.” While a Special Counsel corrective-action request is pending, the Secretary needs the Special Counsel’s approval to act under the statute.

In Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021), the court held that the VA’s deciding official must find the charges proved by a preponderance of the evidence, not by substantial evidence, and that the Board “must consider the relevant Douglas factors when reviewing a disciplinary action under section 714.” Consequently, a VA employee should read the proposal notice for the statute it cites, because a § 714 action leaves 10 business days, not 30 calendar days, to appeal.

TSA screeners: a separate personnel system

Under the Aviation and Transportation Security Act, the TSA may, “notwithstanding any other provision of law,” “employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment” of screening personnel.

Since 2012, 5 U.S.C. § 2304 has provided: “Notwithstanding any other provision of law, any individual holding or applying for a position within the Transportation Security Administration shall be covered by” the federal discrimination, whistleblower and reprisal prohibitions. On October 17, 2025, the Eleventh Circuit held in Simone v. Secretary of Homeland Security that “the WPEA abrogated Castro and extended the protections of the Rehabilitation Act to TSA security screeners.” The decision binds courts in the Eleventh Circuit, not New York’s federal courts.

A screener at JFK, LaGuardia or MacArthur should treat the 45-day EEO clock as in force and take the appeal process for discipline from the agency’s notice, because the ATSA clause lets the agency set screener discipline rules apart from the rest of title 5.

Postal Service employees: EEO plus the grievance

The EEOC’s federal-sector rules cover the Postal Service, so the 45-day counselor deadline applies. Board appeal rights are narrower: they reach preference eligibles with a year of current continuous service, and supervisors, managers and certain personnel staff who have “completed 1 year of current continuous service in the same or similar positions” (39 U.S.C. § 1005(a)(4)).

Postal labor relations run under the National Labor Relations Act, not title 5. At an agency outside the title 5 grievance statute, 5 U.S.C. § 7121(d), the EEOC’s rule lets the agency hold the formal-complaint and appeal deadlines in abeyance during a grievance on the same matter only “if the agency notifies the complainant in writing” (29 C.F.R. § 1614.301(c)). That rule does not mention the 45-day counselor deadline. Title 5’s definitions also leave the Postal Service outside the whistleblower statute’s text, so a postal worker should not plan on the Special Counsel route. Accordingly, a postal worker who files a grievance should still contact the EEO counselor within 45 days.

The federal employee deadlines, side by side

Every deadline in this guide is in one place below, with the rule that sets it.

What to do this week

You’ve got to write everything down. Date of action, name of person who took the action, date when you learned about it. Write it out, don’t just remember it. Federal deadlines are based on dates and they’re short. The paper you keep in the first week is the paper that shows that you were on time.

A lawyer asks for these first.

Back to the employee in Holtsville

The employee in Holtsville has two clocks that started on different days. The 45 days run from the promotion decision. The suspension, once effective, is more than 14 days, so the MSPB’s 30 days run from its effective date or receipt of the decision, whichever is later; because the employee calls it retaliation for the age complaint, and the EEOC’s rules treat a retaliation complaint as a discrimination complaint, it is a mixed case, and the first filing chooses the forum.

Private-sector workers have different doors: the EEOC charge practice page, an EEOC charge or a New York lawsuit and the Labor Law § 740 whistleblower page. State and local public employees have the school district employee guide.

Sources

• 29 C.F.R. part 1614, Federal Sector Equal Employment Opportunity
• 5 C.F.R. part 1201, MSPB Practices and Procedures
• 5 C.F.R. part 1209, Appeals and Stay Requests of Personnel Actions Allegedly Based on Whistleblowing
• 5 U.S.C. § 2302, Prohibited personnel practices
• 5 U.S.C. § 2304, Prohibited personnel practices affecting the Transportation Security Administration
• 5 U.S.C. § 1214, Investigation of prohibited personnel practices; corrective action
• 5 U.S.C. § 7121, Grievance procedures
• 5 U.S.C. § 7512, Actions covered
• 5 U.S.C. § 7702, Actions involving discrimination
• 5 U.S.C. § 7703, Judicial review of decisions of the Merit Systems Protection Board
• 38 U.S.C. § 714, Employees: removal, demotion, or suspension based on performance or misconduct
• 49 U.S.C. § 44935 and note (Aviation and Transportation Security Act § 111(d))
• 39 U.S.C. § 1005, Applicability of laws relating to Federal employees
• 42 U.S.C. § 2000e-16, Employment by Federal Government
• Brown v. General Services Administration, 425 U.S. 820 (1976)
• Elgin v. Department of the Treasury, 567 U.S. 1 (2012)
• Kloeckner v. Solis, 568 U.S. 41 (2012)
• Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021)
• Simone v. Secretary of Homeland Security, No. 23-11411 (11th Cir. Oct. 17, 2025)
• EEOC, Overview of Federal Sector EEO Complaint Process
• MSPB, How to File an Appeal
• U.S. Office of Special Counsel, Prohibited Personnel Practices
• New York Executive Law § 292, Definitions
• New York Labor Law § 740, Retaliatory action by employers
• New York Labor Law § 215, Penalties and civil action; prohibited retaliation
• New York Civil Service Law § 75-b, Retaliatory action by public employers

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The employee in Holtsville had two clocks and a choice of forum inside a month. Our Long Island employment law practice reviews the notice and the dates before the first deadline passes.

If you work for a federal agency and received a proposed suspension or removal, or were passed over after a complaint, call (516) 750-0595 with the agency’s notice in hand, or request a free case review.