By Deborah Hopkins, May 5, 2020

One of the most intensely debated topics in the EEO realm for years, has been the proper role of agency defense counsel in agency EEO investigations. Indeed, we’ve written articles in this newsletter about the topic. One of the more recent, hotly discussed cases was the July 2018 issuance of Josefina L. v. SSA, EEOC Appeal No. 0120161760. In this case, the Commission determined “… 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.”

Despite all the discussion about Josefina L., we didn’t really learn anything new or significant from the case. 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). Josefina L. brought the debate to the front burner, yet again, and the SSA was slapped with a mild sanction, despite EEOC’s chiding in the case.

One of the problems we’ve had with understanding the EEOC’s position over the years is the weak sanctions they’ve issued when they found agency defense counsel to have crossed the line. Time and again, they issued decisions where the words seemed to say “I’m really mad,” and the actions seemed to say “But I’m not really that mad.”

Interference in the EEO process is one thing – and it’s a problem. But there is no law or regulation that specifically prohibits every single agency attorney from providing advice to supervisors during EEO proceedings, so long as the involvement does not impact the “impartial processing” of the case. Management Directive 110, Chapter 1, Section IV.

So where is the line between permissible and impermissible involvement? Practitioners for years have begged the Commission: PLEASE let us know, definitively, where the bright line can be located.

While the EEOC still hasn’t given us a bright line, the answer to the level of involvement permissible recently got a little bit closer to definitive in a recent case:

[W]e expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant’s approval of such changes. [bold added]

Annalee D. v. GSA, EEOC Request No. 2019000778; App. No. 0120170991 (November 27, 2019).

This is yuuuuuuuge. For the past several years, the Commission has sanctioned agencies whose counsel were involved in almost any way. You’d find the occasional case that went the other way, but again the problem was no bright line. Sometimes interference was okay, as long as it wasn’t too much interference; other times, it wasn’t okay.

In the Annalee D. case, the EEOC had originally sanctioned the agency simply because the agency defense counsel was involved – without ever looking at the merits of the involvement. But to its credit, EEOC reversed itself, after the agency requested reconsideration: “In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process.”

Look at some of the other language form this case:

  • “Our decision in [Annalee D.] appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters…There is no ‘bright line’ regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process.”
  • “[N]othing contained in MD-110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances.”
  • “In recognizing the disparate yet vital responsibilities of the EEO Office and agency defense counsel, MD-110 recognizes that these entities will inevitably interact with each other. MD-110 sets out the parameters for these interactions and seeks to ensure that neither entity inappropriately interferes with the functions of the other.”

This is the best guidance we’ve seen from the Commission on the topic to date – well, it’s good if you’re on the agency side, anyway. And it clarifies the extent to which an agency can support a supervisor who has been accused of discrimination, and needs help understanding the process. Come to our virtual training class Conducting Effective Harassment Investigations May 18-20, or to EEOC Law Week in Washington, DC, in August (if the country is open by then) or September if you want to learn more about this topic, plus a whole lot more. Hopkins@FELTG.com

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