Council Meeting

Held Thursday, April 7, 2011

Host: Ms. Bonita V. White

INTRODUCTION

Jorge Ponce, Co-Chair of the Council, opened the meeting with a few remarks and then asked the attendees to give their names, agencies, and positions. He thanked Bonita White, Director, EEO Programs, DHHS, for sponsoring this meeting.

Mr. Ponce said that he had received many questions lately regarding when the Census Bureau was going to issue the 2010 EEO file. He called the Census Bureau, and they told him that the 2010 EEO file would be released in the fall of 2012, and that it would only include data from 2006 through 2010. This EEO file would be derived from the American Community Survey, since the 2010 Census had done away with the long form – where the RNO data was previously collected. In the interim, Jorge said that agencies should continue to use the benchmarks from the 2000 Census.

OGC INTERFERENCE

Mr. Ponce indicated that the Council was privileged to have two distinguished attorneys from the Federal Employment Law Training Group (FELTG) – Gary Gilbert and Ernest Hadley. Both speakers addressed the role that Offices of General Counsel should play in the EEO complaint process in the federal sector, as well as provided an update on cases related to this issue. Mr. Ponce mentioned that the Council had conducted a survey in 2003, which members can view at OGC-EEO Survey. Mr. Ponce stated that although many federal agencies do not face this challenge, there are many that do. He said that even if one federal agency faced this challenge, that was one too many as it undermined the credibility of the EEO Program. While EEOC has addressed this issue in Chapter 1 of Management Directive 110, Mr. Ponce stated that the fact that federal agencies, affinity organizations, and other groups have been clamoring for additional guidance on this issue means that EEOC needs to be more proactive.

After introducing the two guest speakers, Mr. Ponce indicated that the trigger for the Council inviting them was an article that Mr. Hadley authored on the OGC interference issue, which was published in the February issue of the FELTG Newsletter. You can view the article at FELTG Article 2011, as well as a subsequent one at FELTG Article No. 2 2011.

Mr. Hadley stated that he was bothered that we were having a discussion on this issue at this time. He indicated that just five years ago, when Naomi Churchill Earp was EEOC Chair, he was told that issuance of the EEOC guidance on the OGC interference was imminent. Mr. Hadley stated that this long delay was unacceptable, and urged the Council to meet and/or write to the EEOC Chair, the EEOC Commissioners, and the Office of Federal Operations to make it a top priority for EEOC to release this long-waited guidance in FY 2011. Mr. Hadley indicated that the fact that the release of this guidance was imminent five years ago signifies that EEOC has done the bulk of the work already. Consequently, having a 2011 release date for this guidance was not unreasonable.

Mr. Hadley indicated that Offices of General Counsel should maintain always a very limited role in the processing of discrimination complaints in the federal sector – particularly during the agency processing of the complaint prior to the hearing stage. He stated that after an employee contacts the EEO Office, OGC should not conduct its own investigation as it gives the appearance of interfering with the required impartial investigation by the EEO Office. He stressed that when OGC attorneys review, edit, and change the content of affidavits from management officials, they compromise the integrity of the EEO process. This only serves to give the impression that EEO Offices are like the fox guarding the henhouse, and give ammunition to advocates who prefer to take this function away from federal agencies.

Mr. Gilbert shared a story when he was representing a federal agency at an EEOC hearing, and the management official told him before he testified “this is what really happened in this case,” but “you tell me what you want me to say to the EEOC Administrative Judge.” Mr. Gilbert settled the case immediately because he questioned the trustworthiness of the management official.

Mr. Hadley explained that complainants always carry the burden of proof when filing discrimination complaints. Agencies always have to know why their managers took certain actions that triggered discrimination complaints. Since the taking of these actions is a fait accompli, Mr. Hadley questioned the need for these managers to consult OGC. It is what it is.

Mr. Hadley stated that he is often asked if employees can have legal representatives, why not level the playing field and afford the same right to management officials. He responded that Congress, in passing Title VII, acknowledged that EEOC and the U.S. Department of Justice could not be the sole enforcers of civil rights laws. This is why the law provides for attorney’s fees so that private attorneys can have the proper incentives to act as such when enforcing the nation’s civil right laws.

Mr. Gilbert referred to the recent case in Rucker v. Secretary of the Treasury. See Mr. Hadley’s article” where the complainant alleged that the agency’s Office of General Counsel “improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials’ testimony prior to submission to the investigator and for directing management officials to respond to investigator’s question in narrative format [to] portray the Agency’s actions in the most favorable light.” Mr. Gilbert indicated that this is not the role for OGC that Congress had in mind when it drafted the civil rights laws.

Mr. Hadley explained the proper role that Offices of General Counsel should play at the different stages of the EEO complaints process. At the pre-complaint process, OGC should not play any role, except when alternative dispute resolution (ADR) is invoked and used, and when reviewing the legality of settlement agreements. During intake at the formal process, OGC should not give any advice to management officials. However, an impartial attorney from OGC could advise an EEO Office. Co-Chair Delia Johnson indicated that this is where the lines get blurred. Mr. Gilbert agreed, and indicated that to preserve the impartiality of the process, the attorney giving advice should be physically removed from OGC. In other words, he said that if the attorney was housed at OGC, it would be difficult to maintain this impartiality when employees know of discussions that OGC attorneys have when discussing pending cases and when they meet for lunch. Mr. Ponce stated that some EEO Offices have gotten a handle on this issue by employing their own attorney advisors. During the investigation stage, OGC’s involvement should be limited to reviewing settlement agreements and telling management officials to always tell the truth. At the hearing stage, OGC is fully involved in representing the agency. Mr. Gilbert opined that it is a waste of time for agencies to conduct a fact-finding conference before management officials testify at EEOC hearings – as it compromises the trustworthiness of the process. Mr. Hadley indicated that the only way to maintain the credibility of these fact-finding conferences was to have court reporters generate verbatim transcripts of the proceedings – this way, any OGC intrusion would be recorded.

Mr. Gilbert explained that the only role of Offices of General Counsel should play in discrimination complaints is to represent the interests of federal agencies. OGC does not represent management officials. To do otherwise, Mr. Gilbert stated, would represent an ethical violation. Mr. Hadley opined that it would highly unfair for OGC to represent management officials, and for employees to have to pay anywhere from $300 to $500 per hour to hire their own attorney. While Mr. Hadley stated that attorneys need additional guidance from EEOC on this matter, he has no sympathy for attorneys coaching management officials on what they can and cannot say at the various stages of the EEO process. Mr. Gilbert indicated that these violations do happen. For example, he stated that he’s questioned agencies’ lawyers on the stand at least six times since 2010 on their role in coaching management officials. A Council member from the Treasury Department asked whether state bar associations could issue guidance on this issue. Mr. Hadley responded that state bar associations don’t understand that well the federal sector process, and, thus, EEOC should be the agency to issue this guidance.

Mr. Ponce mentioned a case where an attorney from the Office of General Counsel told the EEO Investigator that he could not conduct face-to-face interviews with high-level agency officials – although the EEO Investigator and the high-level agency officials were in the same geographic location -- and, instead, had to submit interrogatories to OGC. Mr. Ponce asked Mr. Gilbert for his reaction to this scenario. Mr. Gilbert responded that when OGC serves as the gatekeeper of the evidence in discrimination complaints, it is entirely inappropriate -- as it is considered an interference with the EEO process.

Mr. Gilbert explained that if management officials need legal representation during a discrimination complaint, they should get their own attorney. They are not entitled to have agency attorneys represent them. He stated that agency attorneys do not have the same obligations as attorneys representing management officials. Agency attorneys should look only after agencies’ interests.

A Council member from FDIC asked what agencies should do when management officials need assistance in answering questions in discrimination complaints. Mr. Gilbert responded that management officials should be told to tell the truth. He stated that a good EEO investigator should be able to answer any questions that management officials have, but not OGC.

Mr. Hadley opined that the last NPRM to improve the discrimination process in the federal sector was a complete embarrassment. He labeled it “idiotic reform,” as it was nothing more than a Band-Aid approach. He stated that the new EEOC Commissioners do not have a strong background in federal sector matters. According to him, it might be better for the EEOC to be run by an agency head for the sake of continuity and to avoid recent problems with lack of a quorum and the Commissioners’ frequent turnover.

Mr. Ponce asked Mr. Gilbert, considering that he had worked at EEOC in the past, why it had taken EEOC so long (eight years) to address this issue. Mr. Gilbert responded that delays are caused by the change of EEOC Commissioners and Chair, as well the priority status assigned to these issues.

Mr. Gilbert indicated that there was nothing wrong for management officials to ask OGC about the legal ramifications of personnel actions before they took them. However, it was inappropriate to inquire to OGC after an EEO complaint had been filed.

CASE UPDATE

Mr. Hadley discussed the case of Butler v. Secretary of Homeland Security, 0720090010, 110 LRP 33524 (2010). This decision dealt with a performance issue that was based on a log book that the agency had destroyed. The EEOC AJ rendered an adverse inference against the agency for violating the record-retention policy and held that the logbook would have shown disparate treatment against complainant. Mr. Ponce asked Mr. Hadley if this case was similar to the one where the former director of the Office of Special Counsel arranged for private computer technicians to scrub his office computer. Mr. Hadley responded that both cases had similarities. Mr. Hadley explained that agencies often equate agency files with official personnel folders, instead of e-mails and personal notes kept on manila folders. He indicated that “all files” mean “all files.”

Next, Mr. Hadley discussed two cases that show the lack of consistency of EEOC decisions. Koudry v. Secretary of Education, 0420100196, 110 LRP 23262 (2010), dealt with an incomplete Report of Investigation. After the agency issued a final agency decision finding no discrimination, EEOC ruled in Complainant’s favor on appeal. When the agency requested reconsideration, EEOC denied it. The Commission retained the finding of discrimination by stating that the ROI was incomplete because it lacked a management articulation, and that the agency should not get a second chance at the apple. Mr. Ponce fully agreed and indicated that it was only fair considering the high attorney’s fees that employees have to pay when litigating their discrimination complaints.

Mr. Ponce indicated that this case reminded him when an employee fails to cooperate at an EEOC hearing, and the AJ remands the complaint to the agency to issue a final agency decision. Mr. Ponce opined that EEOC should issue a decision at the hearing stage. Mr. Hadley indicated that to remand the case to the agency was merely passing the buck.

In Finch v. Secretary of Agriculture, 0120080535, 110 LRP 67174 (2010), EEOC issued summary judgment to the agency, and after complainant appealed, EEOC remanded it back to the agency to supplement the ROI. This decision is the complete opposite of the Koudry decision.

Mr. Hadley suggested that when agencies issue final agency decisions, EEOC should not treat them as de novo cases when appealed. Instead, EEOC should assign de novo treatment to approximately 500 cases. EEOC lacks the staff and the funding to give all appeals the Cadillac treatment. The fact that EEOC is doing this could explain the inconsistency of its own decisions – like the ones in Koudry and Finch. Mr. Hadley compared EEOC with MSPB, and indicated that while MSPB is usually wrong in its decisions, at least it is consistently wrong. He said that we often get from EEOC is “foolish inconsistency,” instead of what everyone looks for in the law -- legal consistency.

Mr. Hadley stressed that the message that most federal agencies have not gotten about the Americans with Disabilities Act Amendment Act (ADAAA) deals with the medical information that they require their employees to submit when requesting reasonable accommodations. What management officials should be asking is what are the functional limitations of employees with disabilities, not their clinical records.

CONTACT INFORMATION

Mr. Hadley’s contact information is echadley@capecod.net, and for Mr. Gilbert is gary@ggilbertlaw.com.