By John V. Berry, Esq., www.berrylegal.com
We often represent and defend federal employees and supervisors involved as respondents in Equal Employment Opportunity (EEO) complaints. While many attorneys represent only complainants in EEO complaints, we also represent those co-workers and supervisors accused of EEO misconduct in their defense. In cases where a federal employee or supervisor has been named a respondent in an EEO case by another federal employee, it is very important for them to obtain legal advice and counsel throughout the EEO investigation in order to avoid disciplinary action later. An EEO respondent simply means that the individual has been named as part of the EEO violations or misconduct at issue.
How EEO Complaints Against Supervisors and Co-Workers Arise
EEO complaints in the federal sector arise in any number of ways; too many to name all of the examples here. The most common way in which a federal supervisory EEO complaint occurs is when a new supervisor moves to a new agency or new division within a previous agency and attempts to change practices and procedures. The new supervisor may come into a workplace with a number of past practices and rules about how an agency mission should be accomplished and attempt to implement these new policies and practices. In some instances, this can upset the status quo and lead to employees filing a multitude of different complaints. The next most common basis for an EEO complaint is where a subordinate federal employee has been given a large workload and feels underpaid. Also, a federal supervisor can sometimes expect an EEO complaint if they are in the process of disciplining a federal employee or a low performance rating is imminent.
For co-worker EEO complaints, they usually occur when there is an allegation that the co-worker has engaged in harassment or retaliation against them, in some form, and that their supervisors have not addressed these harms. We have also seen co-worker EEO complaints arise when a co-worker is favored by a supervisor (or appears to be favored) in some aspect of work over the complainant. Sometimes, co-workers receive EEO complaints when they are acting in a lead or temporary supervisor capacity as well.
In either case, an EEO complaint alleges that the federal supervisor or co-worker has violated the Civil Rights Act, which in itself can be the basis of a misconduct charge.
Legal Defense against EEO Complaints
As mentioned above, EEO complaints against federal supervisors or co-workers generally start off in response to a non-EEO issue; for instance, a new supervisor provides a bad performance evaluation to an employee and/or issues a minor (or major) disciplinary action. Typically, it is most often the case that when a federal employee is about to receive an disciplinary action, or has received some sort of performance action that they may file an EEO complaint against their supervisor. They may then request that the supervisor be warned about not engaging in retaliation or request that there be no-contact between the two of them. This can often lead to confusion and lag time between an investigation and a resolution of the issues. Following the filing of an EEO complaint, the EEO process will then unfold. It is important for a federal supervisor to have their own counsel in responding to these allegations at the earliest stage. Doing so can help from becoming steamrolled in the process.
EEO complaints against federal employee co-workers pose special legal defense challenges given that a supervisor may find it easier to agree with a complainant (or want to appease them) and avoid subjecting themselves to the EEO process. A federal employee co-worker accused of misconduct can quickly find themselves without any allies in the EEO process. This is why they also need counsel to advocate for them in the process.
Responding to an EEO Complaint
It is important for a federal employee or supervisor to be prepared when they are facing allegations related to an EEO complaint. We often find that it is helpful to interview the supervisor or federal employee about what the EEO complaint allegations against them may involve, if they have not been notified of the specific allegations. Generally, a federal supervisor or federal employee can guess as to what type of allegation has been brought by their subordinates; in some rare situations this is not the case. It is helpful to go over the facts, the relationship to the EEO complainant and to see what type of alleged conduct one is looking at. Once the factual allegations have been determined, the next step is to defend against the complaint.
The EEO Investigative Process for Federal Supervisors and Employees Accused
Following the initial EEO complaint, there can be a number of different steps in a dealing with a federal employee’s EEO complaint. For instance, the complainant and supervisor/co-worker may elect to engage in mediation, should there be an attempt to resolve the issues before the formal EEO investigation. Additionally, if there are no mediation proceedings, then the most typical next step will be for the EEO investigation to proceed.
Depending on whether the federal supervisor or co-worker is the respondent in the EEO complaint (usually is the case), then the federal supervisor or co-worker will likely have the opportunity to review the subordinate’s EEO claims and will be provided a chance by the EEO investigator to rebut the allegations. The federal supervisor or co-worker may be interviewed and can have counsel represent them during the EEO investigation. The interview is usually mandatory, and the federal supervisor or co-worker is required to be truthful, but it is important to understand that an EEO investigation is different than a misconduct-based investigation.
Typically, EEO investigations vary greatly depending on the investigator assigned to the case. Sometimes they will ask for a brief written response to the allegations, and sometimes they will seek in depth responses during an interview. A misconduct investigation is far more thorough than an EEO investigation. This is a significant variable in these types of investigations. A federal supervisor or co-worker may also be asked to provide documents and undergo a second interview. It is important for these employees to have legal counsel in responding formally to these allegations.
Following the EEO Investigation
When the EEO investigation has been concluded, a Report of Investigation (ROI) will be prepared by the EEO investigator and given to the complainant. The federal supervisor and/or co-worker accused of EEO violations, however, will usually not even be informed that the investigation has been concluded. It is often the case that they will continue to wonder what has transpired in the EEO complaint process. In the ROI, the EEO investigator will reiterate what both the EEO complainant and what the supervisor or co-worker has contended during the investigation and attach other related documents. There will usually not be any conclusions of fact by the EEO investigator. The ROI itself can consist of hundreds of pages of documentation.
The EEO complainant will then have the option to request an Equal Employment Opportunity Commission (EEOC) hearing or request a Final Agency Decision (FAD). Usually, a complainant requests an EEOC hearing because a FAD is an internal agency decision. At that point, a federal supervisor or co-worker is unlikely to hear more about the case unless they have been subjected to a disciplinary action based on the underlying EEO issues or if they have been called for a deposition or other testimony in the case at the EEOC hearing or in court.
Legal Representation During EEO Process
It is important for a federal supervisor or co-worker to keep in mind that during the EEO mediation, investigation and/or hearing process that the agency attorney is not their attorney. The agency attorney, at all stages, represents the agency and their interests. This point can sometimes be confusing for some federal supervisors or co-workers because it may seem like the agency attorney is representing them and the agency, but that is not the case. It is important for a federal supervisor or co-worker, therefore, to have their own attorney. It is not unusual for an agency attorney to attempt to resolve an EEO complaint to the detriment of the federal supervisor or co-worker so it can be important to have your own attorney.
When a federal supervisor or federal employee co-worker is facing accusations of improper EEO misconduct, it is important to obtain legal advice and representation of counsel. Our law firm advises and represents federal employees throughout the country. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.