When equal employment opportunity (EEO) complaints are made against an employee of the federal government, the agency in question is required to handle the complaint impartially and with care. In addition, the Equal Employment Opportunity Commission (EEOC) must be able to conduct an independent, unobstructed investigation. However, in some cases, actions by an agency’s Office of General Counsel (OGC) can have an adverse impact on proceedings and potentially harm the defending employee’s case. Here’s what you need to know.
Josefina L. v. SSA, EEOC Appeal №0120161760 (July 10, 2018)
Take the example of the case of Josefina L. v. SSA, EEOC Appeal №0120161760 (July 10, 2018). The complainant filed a complaint against her manager for harassment and discrimination based on disability and gender. After an investigation, the EEOC found no discrimination based on the merits. However, the Commission determined that an attorney of the agency’s OGC had directly influenced the manager’s affidavit — his written testimony for the EEO investigator — by reviewing and revising it. The attorney had even instructed the manager not to mention his involvement in the investigatory committee at all.
In an earlier case, Tammy S. v. Dept. of Defense, Appeal №0120084008 (June 6, 2014), the EEOC had already stated that no agency representative should help shape the testimony of a witness or the evidence gathered by the EEO investigator. Moreover, according to Management Directive 110, Chapter 1, Section IV, involvement by counsel of the agency who is appointed to represent the agency in adversarial proceedings is not permitted, as it can result in conflicts of interest during what should be an impartial process,
Fortunately, in Josefina L. v. SSA, EEOC Appeal №0120161760 (July 10, 2018), the actions of the attorney did not result in negative consequences for the accused manager. Nevertheless, it’s unsurprising that SSA’s EEO managers and OGC personnel were required to undergo training regarding the proper role of OGC in the EEO process.
The implications of Josefina L. v. SSA, EEOC Appeal №0120161760 (July 10, 2018) could be far-reaching for federal employees. First of all, the actions of the attorney in question could have had negative consequences for the manager if the veracity of the affidavit had been called into question, as a result of the integrity of the investigation being compromised. Second, it’s clear that the EEOC won’t tolerate the involvement of OGC during the initial stage of an investigation — also referred to as the informal investigation — which means that employees are on their own. And third, employees can’t count on the fact that the agency’s interests and their own align, especially if the complaint goes to litigation. Since OGC represents the agency, not the employees, it will always do what’s best for the agency.
Agencies that want to play it safe may even choose not to become involved with employees’ defense at all. The only recourse for employees is to hire their own counsel — something that’s extremely costly and can run into the tens of thousands of dollars.
Note that in an EEO complaint, an employee is required to provide a statement under oath within a certain timeframe. Everything he or she says goes on the permanent record — from the informal stage of the EEO process all the way through to the end. In fact, the initial talk with the EEO counselor becomes the first page of the report. Unfortunately, without legal counsel, it happens all too often that employees state something they believe is helpful for their defense, but that actually gives them exposure — and that could have negative consequences further on in the process.
Limiting Exposure with Dedicated Legal Support
The firm Brownell Landrigan provides legal counsel for clients who have Federal Employee Professional Liability Insurance — or FEPLI — coverage with Starr Wright USA and who present claims that fall within the scope of the policy. Once a client receives notice that he or she is being called on to provide a statement, the legal team sits down with the client and determines what his or her role is in the matter — the bad actor, someone who conspired with the bad actor, or just a witness. Then they help the client develop a response that’s relatively neutral with the goal of letting the process resolve itself. If that doesn’t happen and the case moves on to litigation, the agency’s OGC steps in on behalf of the agency and Brownell Landrigan continues its support of the client.
“What’s so important to understand is that during the investigation, a client may be answering questions about any number of different events in the past,” says Bonnie Brownell, President of Brownell Landrigan. “A lot of times the answers to those questions create some exposure. Maybe a client said something wrong or did something that wasn’t in the best judgment. It might not be enough for the EEO claim itself to be merited, but it could get the client in trouble. We’re looking to limit that exposure by helping the client present the facts in the light that’s most favorable for him or her.”
Frequently, employees try to have a conversation with the individual who filed the claim so they can resolve their differences. It might seem like the right thing to do, but it’s considered to be retaliation — and that makes matters even worse, explains Brownell. “There are some mistakes employees can make that have serious repercussions,” she says. “Sometimes matters escalate, and a special counsel or internal affairs gets involved. We aim to eliminate the risk of this happening.”
FEPLI Provides Security
Clearly, especially in today’s volatile social and political atmosphere, it’s critical to have FEPLI coverage. With the experience and expertise provided by the industry-leading team with more than 50 years of experience at Starr Wright USA, and by Brownell Landrigan, you can rest assured you will have the insurance protection needed should you be facing an EEOC complaint.
Article is authored by Starr Wright USA and constitutes the opinions of Starr Wright USA; this article does not constitute as legal advice
Starr Wright USA a marketing name for Starr Wright Insurance Agency, Inc. and its affiliate(s). Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. For more information, visit WrightUSA.com. Starr Wright USA is a division of Starr Insurance Companies, which is a marketing name for the operating insurance and travel assistance companies and subsidiaries of Starr International Company, Inc. and for the investment business of C.V. Starr & Co., Inc.