By Barbara Haga, March 16, 2021

This month, I’m going to focus on how an agency might deal with the situation described in last month’s column.

Just a quick recap: An IG investigation resulting from an OSC complaint found that the head of the EO Office at an Air Force Base had “ … 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.”

The Air Force reassigned the EO Officer to another office with no involvement and influence over EEO filings and issued a Letter of Counseling.  Apparently, that was sufficient to  satisfy OSC.

Let’s say that this wasn’t an OSC/IG issue where other people are looking over your shoulder about a remedy.  You have a manager on the phone who is telling you that they have the results of a pre-action investigation that show that his/her employee has “… improperly and unlawfully handled complaints involving sexual harassment and discrimination.”  (Those were OSC’s words in the Dec. 22, 2020 press release, not mine.)

What do you advise?

When these types of errors occur, which tools make sense? Should this type of situation be dealt with using performance procedures or conduct procedures?

Performance Errors

These are performance errors from what I can see. There is nothing mentioned in any of the documents that I read that indicated that the EO Officer gave this bad advice for some nefarious reason or received any benefit from doing so. I read the report to say that the person believed that her actions were proper. She was wrong. These are mistakes. Horrible mistakes.

What do you do with performance mistakes under normal circumstances? You would probably talk about providing a chance to improve the performance. But is that always the best answer?  Sometimes a performance approach doesn’t make sense.

Let’s revisit the facts of this case. 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. Here’s my first question about a performance approach: Does an opportunity to demonstrate acceptable performance make sense when you are talking about someone who has been in the program for 20 years who doesn’t understand these fundamental principles? The areas where mistakes were made were not fine points from some recent case. These were extremely basic issues including interfering with the right to file a complaint, not identifying conflicts of interest,  and more.

If you were to advise that an Opportunity to Demonstrate Acceptable Performance (ODAP) was the recommended course of action, how would you advise management to handle it? You have the most senior person in the function who is failing. Who would be the ODAP reviewing official who would assess the work? It certainly wouldn’t be the military officers who were the likely superiors of this position. How could you do it? I suppose you could bring someone in from the headquarters for 30 days (or 60 or 90 since EO 14003) so that you had a technical expert who could evaluate the work. How could you maintain the EO Officer’s ability to perform in a normal setting with this HQ person around looking over her shoulder? The EO Officer supervised five EEO specialists and an EEO superintendent. How can a manager be expected to effectively continue to supervise the work of her own subordinates when her technical skills fall so short?

What is the risk to the agency to allow the person to continue to do this work during an ODAP?

What if the reviewing official is not aware of some decision made by the EO Officer or advice given on a particular complaint, or misses an error in the processing of a complaint during the review process? What if that complainant challenges that down the road?

Are you looking at accepting a complaint well after it should have been untimely, with attendant problems gathering evidence and potential costs and attorney fees?

The EO office in this case was responsible for EEO programs for 21,000 military and civilian employees. There could be a lot of complaints.

Maybe this is a little too close to home since we are talking about a practitioner in our business and it’s hard to step back from that. But let’s say instead that your deputy director calls you and tells you that he/she has the results of a pre-action investigation that shows that the head of contracting has “improperly and unlawfully handled certain aspects of contracts.” What if a district manager for Social Security has “improperly and unlawfully handled certain Social Security applications?” What do you advise?

When I worked for the Navy, I did a performance action from a regional level office on an HR Director at a location many states away. I racked up a lot of frequent flyer miles working on that case. He was ultimately removed. He reported to a civilian technical director whose expertise was in aircraft testing and design; however, in this case, the issues that the HR director was having were that he was not being responsive to managers (including the technical director) on required actions and was not properly carrying out management responsibilities for his own staff. It wasn’t a question of the quality of his work – when he did it. There was no problem in that case with the non-HR supervisor judging whether the HR Director succeeded during the ODAP. Things would have been quite different if he were giving bad advice or directing his staff to do things that didn’t comply with law, regulation, policy, and I needed someone to judge whether the work was technically correct. d

Given the information published by OSC on this case, I don’t see how 432 procedures would work here.

Performance Errors and Conduct

It’s important to remember that performance errors don’t have to be intentional to be actionable under conduct procedures. There are many cases where employees have been negligent or did their work carelessly where actions were taken under conduct procedures and upheld by the Board. We’ll talk about how those concepts apply to this case next month. Haga@FELTG.com

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