By Meghan Droste, January 23, 2019
Happy new year, FELTG readers! If any of you are looking for new things to pick up in the new year, I strongly recommend podcasts. If you already listen to some, pick out a new show. I am lucky enough to be able to walk to work, and I listen to a variety of podcasts during my commute. By the time I arrive at the office, I feel very accomplished, I’ve gotten exercise, and I’ve learned something from one of my (somewhat nerdy) podcasts. The title of this article comes from one of the more recent additions to my rotation, a podcast hosted by three women from the national security field who unpack national security and defense issues with a side of pop culture. They regularly say that process is their valentine — meaning that following the established process is an important part of the development and implementation of any new policy or strategy. If we ignore the process, bad things can happen.
The Commission’s decision in Annalee D. v. General Services Administration, EEOC App. No. 0120170991 (Oct. 10, 2018) is a good reminder of why the EEO process should be every agency’s valentine. As anyone who has read a decision in which the EEOC granted sanctions against an agency can tell you, one of the most important factors in the Commission’s view is the effect of the sanctionable conduct on the integrity of the EEO process. Part of the integrity of the process is that the investigation of a formal complaint must be impartial and should not be an adversarial process. As a result, there must be a firewall between the EEO process and any subsequent defense of the agency if the complaint moves into litigation. Unfortunately, the agency in the Annalee D. case did not respect that part of the process.
As the Commission describes in its decision, an attorney from the agency’s Office of General Counsel was present during the EEO investigator’s interview of the complainant’s supervisor. This attorney stated during the interview that she/he represented the supervisor (rather than the agency). The Commission also noted that attorneys for the agency “clearly assisted [a]gency witnesses with their affidavit responses during the investigation before they submitted responses to the investigator.” The Commission found the agency’s overall intrusion into the EEO process, which was apparently standard practice, was “extraordinarily bold and egregious.”
The Commission ordered the agency to provide at least four hours of training to EEO personnel and the Office of General Counsel to remind them how to properly process complaints and the proper role of the agency’s attorneys. In its decision, the Commission noted that the intrusion did not impact the outcome of the matter so it is reasonable to assume that the sanctions could have been more severe if it had. As an early valentine to your agency, you should consider reminding everyone about the importance of the integrity EEO process so you do not find yourself receiving sanctions instead of chocolates or flowers next month. Droste@FELTG.com