By Deborah Hopkins, September 19, 2018

For eons (OK, maybe not eons but it sure feels like it), the EEOC has issued decisions that discuss the importance of conducting impartial investigations. In these decisions, the Commission also shares its view of the role of agency defense counsel during EEO pre-complaint and investigation stages. The Commission has repeatedly held that agency defense counsel should not be involved in assisting supervisors during the pendency of these processes. Yet, the sanctions EEOC issues when agency OGC offices do become involved are so weak that, as Ernie Hadley wrote in this newsletter back in 2014, “it should give pause as to how serious the Commission really is about the issue.”

Just a few weeks ago, the Commission tackled the topic yet again in Josefina L. v. SSA, EEOC Appeal No. 0120161760 (July 10, 2018). In this case, the complainant filed a complaint against her supervisor for harassment and discrimination based on sex and disability, alleging a number of discriminatory events that occurred over a 13-month period. You can read the case yourself if you want to get an idea of her claims, but I’ll give you the punchline: Josefina didn’t like it when her supervisor told her what to do, and she let him know that by using sarcasm and/or by not performing the job duties he told her to. The decision is mostly unremarkable, as the Commission found no discrimination based on the merits.

However, the Commission took time to address how an attorney in the agency’s OGC worked closely with the accused supervisor (in the decision, he is referred to as S1) in developing his affidavit for the EEO investigator:

In the email, Counsel told S1 it was great to have spoken with him that morning and requested that S1 provide a copy of his affidavit for review. In an email dated January 5, 2016, Counsel informed S1 that he was “the attorney assigned to assist” him with his affidavit for his EEO complaint, and he was working on revisions and should have them for S1 within the next few days. Counsel further directed S1 “not to discuss OGC’s involvement in this case with the Investigator in any capacity,” and to inform Counsel immediately if the investigator contacted him for other information. Additionally, in an email dated January 7, 2016 to S1, Counsel asked S1 to review OGC’s proposed changes and comments about his draft affidavit statements. Counsel also directed S1 “not to cc [Counsel] on the correspondence to the investigator, or otherwise share [Counsel’s] involvement in this matter,” and to ensure that all his comments were deleted from the final version of his affidavit responses.

It’s clear from the facts above that the attorney absolutely did not want his assistance to S1 to be known. Not good.

The Commission has previously held that an agency representative “should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator.” See Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), recon. denied, EEOC Request No. 0520140438 (June 4, 2015). So it is not surprising that in Josefina L., the Commission found “…that Agency counsel impermissibly interfered with the investigation… We determine that OGC’s actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency’s defensive functions.” The Commission also noted that this agency was recently sanctioned for similar conduct. See Hortencia R. v. SSA, EEOC Appeal No. 0120150228 (May 3, 2017). Strike two.

The Commission, finding improper interference, imposed sanctions on SSA in Josefina L.: EEO managers and OGC personnel were ordered to undergo training on the proper role of OGC in the EEO process. The Commission determined that “OGC’s actions did not impact the investigation or the ultimate determination of Complainant’s case to such an extent that a more severe sanction is warranted.”

If you’re thinking, “That’s it?” you had a similar response as mine when I read this case. If EEOC considers this such a huge injustice, why are the sanctions so weak?

If agencies were to take the Josefina L. decision as an EEO policy, the accused supervisor would be hung out to dry with no help, unless he hired his own attorney to assist during the investigation stage. (A quick look at the Laffey Matrix tells you that’s out of the question for most supervisors.) If agencies were to take the Josefina L. decision merely as a continued expression of the Commission’s wish list or preference, they might not change anything in the way they provide assistance during the investigation.

As far as we are aware, there is no law or regulation that specifically prohibits all agency counsel from providing advice to supervisors during EEO proceedings. But Management Directive 110, Chapter 1, Section IV, says:

Because the agency carries this responsibility of impartially processing discrimination complaints, conflicts of interest can arise when agency representatives in offices, programs, or divisions within the agency with a legal defensive role play a part in the impartial processing. This does not mean that any involvement in the EEO process by the Office of General Counsel or Office of Human Capital automatically creates a potential conflict, but instead refers to impermissible involvement in the EEO process by those employees or units of employees designated to represent the agency in adversarial proceedingsSee Complainant v. Dep’t. of Defense, EEOC Appeal No. 0120084008 (June 6, 2014) (finding that an agency representative should not interfere with the development of the EEO investigative record by “us[ing] the power of its office to intimidate a complainant or her witnesses”); see also Rucker v. Dep’t. of the Treasury, EEOC Appeal No. 0120082225 (Feb. 4, 2011) (stating an agency “should be careful to avoid even the appearance that it is interfering with the EEO process.”) [bold added]

I’m all for an impartial EEO investigation. After all, the law requires it, and it’s only fair. When agency defense counsel is clearly looking to impact the investigation, we have a big problem and a violation of the law. But is impartiality automatically thrown out the window when an agency attorney assists an accused RMO through the process? Not automatically, but it should cause you to pause. Look at the bold text in MD-110. My read says that an attorney who will be defending the agency should not be involved, but it doesn’t say another attorney cannot be involved. A federal supervisor is presumed to be acting on behalf of the agency, so why shouldn’t someone in the agency (perhaps a different attorney, or an L/ER specialist not involved in agency defense) help the supervisor prepare to explain her actions to an investigator?

Is there a happy medium? What if agencies:

1 – Build a wall around an attorney in OGC who can work with the supervisor during the investigation, and then do nothing else on the case (therefore, not become the agency’s “representative”); or

2 – Use an L/ER specialist to work with the supervisor in the investigation stage, so as not to mingle the defense role with the ongoing investigation; or

3 – Hire outside counsel to work with the supervisor during the investigation stage, to assist in the development of the affidavit, and any other related matters.

Would those options make agencies more comfortable while simultaneously making EEOC happy? Your ideas and thoughts are welcome. Hopkins@FELTG.com

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