By Barbara Haga, February 10, 2021
A case caught my eye earlier this week. I was reading through another newsletter focused on the Federal workplace and saw this headline: Air Force EEO Director Removed Following Investigation. Of course, I had to read that article. Discipline among HR practitioners doesn’t come up all that often, and certainly doesn’t make the news.
The article was about the director of EEO at Hill Air Force Base (AFB), which is located near Ogden, Utah. It was written by an attorney who had represented one of the whistleblowers involved in the case.
The EEO director was removed after an Office of Special Counsel (OSC) investigation into whistleblower allegations regarding how EEO complaints were handled at the base, according to the article. The Special Counsel and the Air Force looked into the claims and determined that, among other things, the director “… actively discouraged employees from filing EEO complaints, improperly modified and rejected EEO complaints and allegations, provided false and misleading information about the EEO process, and failed to identify conflicts of interest by management during the EEO mediation process.” There were also findings related to improper actions by military attorneys at the base.
The article was focused on the fact that the whistleblowers were successful in getting the issue in front of the OSC and agency officials, who took action to fix the process. Certainly, that’s an outcome we would hope for. Yet, I had to know more.
If you’ve never used the OSC site to read about their investigations before, be aware that there is a lot of information there. Under Press Releases you will find notices when the OSC has made a finding on a particular matter, when they are announcing details about case processing, or making an interpretation that they want to make available to the public. You will find Hatch Act interpretations and notices about cases like the one that is the subject of this column there. Under Public Files you can read case documents, which is where we begin to look at the Hill AFB case.
The initial report of investigation prepared by the Air Force, after the case was referred to them by OSC, includes background information relevant to this discussion. That initial referral took place in September 2018. The Air Force response of 139 pages is dated Dec. 9, 2019. The letter from OSC to the President advising that the whistleblowers’ allegations were substantiated was dated Dec. 22, 2020.
The EEO office was responsible for the implementation of federal laws and USAF policy to eliminate unlawful discrimination and sexual harassment for the 21,000 military and civilian employees at Hill AFB.
The EO director was the head of an office that included 5 EEO specialists and an EEO superintendent. (The director is not identified by name, but in some of the statements is referred to as “she,” so I will do the same.)
The director had previously been an active-duty military equal opportunity specialist from 1994 to December 2007 when she retired from active duty. She had worked as a civilian EEO specialist from 2008 until August 2016, when she took over as the EO director. She had served as the ADR program manager prior to becoming the EO director. From the information I could glean from the report, this position would be the equivalent of a GS-13.
Air Force Findings
The allegations the Air Force investigated are listed below. I have very briefly summarized the findings:
1 – Whether the EO director actively discouraged employees from filing EEO complaints.
Substantiated. One of the whistleblowers was in the informal step regarding a sexual harassment complaint. The EO director advised the employee could not file because some incidents were outside of the 45-day window, even though there were continuing violations, and that her case wouldn’t go anywhere. The EO director said to the employee that because there were no witnesses, the claim “wouldn’t carry any weight.”
2 – Whether the EO director inappropriately modified or rejected EEO complaints and/or allegations.
Substantiated. The EO director negligently performed both the EEO counseling and the acceptance/dismissal functions for one of the whistleblower’s complaints in violation of regulations regarding timeliness and dealing with patterns of behavior in sexual harassment and hostile work environment claims. In addition, there were incidents where records were not complete about why issues were dismissed in certain cases.
3 – Whether the EO director gave employees false and/or misleading information about the EEO process.
Substantiated. The EO director improperly advised employees that a) complaints could not be amended when they could have, and b) an employee in a sexual harassment complaint did not have an option to remain anonymous in the informal stage. The director also advised a contractor that he/she could not file a complaint without doing due diligence to determine if the contractor would be considered an employee.
4 – Whether the EO director failed to identify conflicts of interest by management during the EEO mediation process.
The EO director did allow management officials to be involved in settlements in cases they were involved in, but the investigation found that no law, rule or regulation was violated.
The agency was directed to look at whether the EO director engaged in gross mismanagement. The Air Force did not find evidence of mismanagement.
This is scary stuff. The person entrusted with management of the system that allows employees to bring issues of illegal discrimination forward is making serious mistakes that deprive employees of their rights. The 2019 Air Force report indicated that the subject of the investigation would be referred to appropriate officials for consideration of any appropriate disciplinary action. The letter to the President explained what action was taken. The Air Force committed to revising training requirements for EEO personnel, to issue new policies regarding conflicts of interest, and they referred the issues related to the two military attorneys to the Judge Advocate General Corps.
The EO director was removed from her position and reassigned to another office with no involvement and influence over EEO filings and issued a Letter of Counseling. I’m still scratching my head over this one. More next time. Haga@FELTG.com