Tips from the Other Side: February 2019

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By Meghan Droste, February 13, 2019

The EEO process, which should be your valentine, does not end when an agency issues a Report of Investigation. It often continues in front of an EEOC administrative judge, which means both sides spend a fair amount of time requesting, producing, and reviewing information in discovery. For the next few Tips from the Other Side, I am going to share some tips that should make the discovery process more efficient and less painful for you.

The first discovery tip is to avoid boilerplate objections.  It is not enough to simply say that a request is vague, or overly broad, or unduly burdensome.  If any of these things are true about a request from the other side, be sure to explain exactly what the issue is — what part of the request is vague, in what way (scope, time period, etc.) is the request overly broad, or why would responding to the request actually be burdensome? You should also keep in mind that a boilerplate objection that the requests are not likely to lead to the discovery of admissible evidence is not going to get you very far.  See Petty v. Dep’t of Defense, EEOC App. No. 01A24206 (July 11, 2003) (finding that objections about the likelihood of leading to admissible evidence are largely unhelpful and improper because “questions of evidentiary admissibility are rarely implicated in federal sector hearings”).

Boilerplate objections are objectionable (yes, pun intended) for two main reasons.  The first is that they are a waste of time.  They do not assist the parties in resolving any discovery disputes and instead lead to unnecessary correspondence and motions that could be avoided with more meaningful objections.  The second reason is that they may very well backfire against the party raising them.  Some courts have held that not only will they overrule boilerplate objections, but they will also find that the party making them has waived all objections and therefore must respond fully to the original request.  See, e.g., Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 247 (M.D.N.C. 2010) (“By failing to present valid objections to these discovery requests, Plaintiff ‘waived any legitimate objections [they] may have had.’”); Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWL, 2005 U.S. Dist. LEXIS 16946, at *31 (D. Kan. Aug. 12, 2005) (“Defendant . . . fails to explain how the request is overly broad and any alleged overbreadth is not apparent on the face of the request.  The court, then, must overrule the objection.”).  In order to preserve your right to object, as well as your time and resources, you should be as specific as possible in your objections.  Leave the boilerplate language for the printing presses where the term may have originated. Droste@FELTG.com

(The EEO) Process is My Valentine

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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

Tips From the Other Side: January 2019

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By Meghan Droste, January 23, 2019

The first Tips from the Other Side for 2019 comes to you from one of my cases.  One of my colleagues and I filed a formal complaint on behalf of a client last spring.  We didn’t hear a peep in response and after 180 days passed, we filed a request for hearing along with a motion for sanctions.  In the motion, we requested the Commission enter default judgment in favor of our client because the agency clearly failed to meet its deadline for investigating her complaint and issuing a report of investigation.  After we filed the request for hearing and motion, the agency finally acknowledged receipt of the formal complaint and indicated that it would begin processing it.

I have seen this happen several times before — after a complainant requests a hearing, the agency, I assume in an attempt to mitigate its earlier inaction, jumps to investigate the claims.  Unfortunately for the agency, it no longer has jurisdiction over the complaint once the complainant has requested a hearing. See Jones-Sims v. U.S. Postal Serv., EEOC App. No. 01A50251 (March 15, 2006) (“Once a hearing request was made, the AJ had sole jurisdiction over the matter.”).

A complainant has no obligation to participate in the investigation at this point.  See Koch v. Sec. & Exchange Comm’n, EEOC App. No. 01962676 (March 6, 1997) (“An agency may not require a complainant to continue to participate in the agency’s internal investigation of an EEO complaint after the expiration of 180 days from the filing of a complaint.”). If the complainant does not provide information the investigation may be of little value, as the other witnesses may not have much to respond to other than the basic outline of the claims in the formal complaint.

I understand the impulse to try to fix the situation by putting together something, but agencies should also keep in mind that once they have missed that 180-day deadline, they may face default judgment regardless of whether they have produced an ROI.  If you find yourself in this situation, you should keep in mind that you should not dismiss the complaint if the complainant refuses to participate and you should start thinking about what your response will be if asked why the Commission should not issue sanctions for the untimely investigation. Droste@FELTG.com

 

Tips From the Other Side, Part 12

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By Meghan Droste, December 18, 2018

One common theme in a few of my articles this year has been timeliness, such as the timely filing of formal complaints and the timely completion of investigations.  One key question in all timeliness issues is: How do you calculate deadlines? After all, how do you know if something is untimely if you don’t know what the deadline is?  This week’s Tips from the Other Side come from two cases in which the agencies incorrectly deadlines, which led them to improperly dismiss complaints as untimely. [1]

In Janay H. v. Army, EEOC App. No. 0120143216 (Feb. 5, 2015), the agency issued the Notice of Right to File on July 18, 2014 and the complainant filed her formal complaint on August 4, 2014. The agency then dismissed the complaint, in part because it deemed it to be untimely. The agency asserted in the dismissal and during the appeal that the 15-day deadline to file a formal complaint was August 2, 2014 and, therefore, the complaint was two days late.  The agency failed to note, however, that August 2 fell on a Saturday and the complainant filed her formal complaint on the first business day after the deadline.  In its decision reversing the dismissal and remanding the complaint for processing, the Commission reminded the agency that when a deadline falls on a weekend or federal holiday, it is automatically moved to the first business day following the deadline. The complaint was timely, the Commission found, because the complainant filed her formal complaint on the Monday following the Saturday deadline.

In Takako Y. v. Army, EEOC App. No. 012016159 (Oct. 19, 2016), the complainant filed multiple motions to amend while her initial complaint was pending the assignment of an administrative judge for one year.  Once the Commission assigned the case to a judge, the judge denied the motions to amend and remanded the new claims to the agency for processing.  The complainant contacted an EEO counselor 14 days after the judge denied the motion to amend.  The agency then dismissed all of the claims as untimely.  In doing so, the agency calculated the 45-day deadline from the date of each incident, and not the date of the judge’s ruling. In its opposition to the appeal of the dismissal, the agency argued that because the Commission had not yet assigned the initial EEO complaint to an administrative judge, the complainant should not have filed motions to amend instead of new complaints. The Commission disagreed and reversed the agency’s dismissal of the claims. It found that the administrative judge erred in not instructing the agency to use the date of remand as the date of EEO contact, and the agency erred in failing to do so on its own.   When confronted with the task of determining whether a complaint, or any other document, is timely filed, be sure to double or even triple check the regulations and a calendar if needed.  While dismissing the complaint might save some time at the outset, it will ultimately create more work once the agency has to respond to an appeal. Droste@feltg.com

[1] Full disclosure: I represented the complainants in both of the featured cases.

How Do You Solve a Problem Like a Breach?

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By Meghan Droste, December 18, 2018

This month’s earworm comes to you from The Sound of Music. Although not a seasonally relevant film, it has been stuck in my head for weeks. That’s why when I read this month’s recent case, I thought of the song “Maria.” In the song, the nuns discuss how to pin down Maria, whose head is always in the clouds. The EEOC’s decision in Shaniqua W. v. U.S. Postal Service, EEOC App. No. 0120182033 (Sept. 11, 2018) left me thinking about what parties can do to pin down a way to specifically perform the terms of an agreement when one party does the very thing they agreed not to do.

In Shaniqua W., the agency and the complainant reached an agreement that included a provision regarding the supervisor’s handling of emails from the complainant. The parties agreed that if the complainant sent an email to her supervisor, the supervisor would not forward the email to other coworkers.  Just over one month after the parties entered into the agreement, the complainant sent an email to her supervisor alerting him to an issue with two of her coworkers. The supervisor then forwarded the complainant’s email to the two coworkers at issue. When the complainant notified the agency of the breach of several provisions of the agreement, the agency determined that the supervisor did violate the agreement but found it had already cured the breach.  The agency stated in its Final Agency Decision that the supervisor “realize[d] the magnitude of the mistake and has assured that this type of error was a single occurrence and will not be repeated.”  The complainant was dissatisfied with the agency’s FAD and filed an appeal.

In its decision on the appeal, the Commission agreed with the finding that the supervisor had violated the agreement.  Unlike the agency, however, it was not persuaded that the supervisor’s assurances were sufficient to cure the breach.  The Commission noted that the breach occurred just over one month after the parties signed the agreement. It also found the supervisor’s lack of explanation for his breach to be concerning. Ultimately the Commission concluded that the supervisor’s “remorse [was] insufficient to demonstrate that the breach was cured.”  It ordered the agency to either reinstate the complaint or specifically perform the terms of the agreement.

When I reached the end of the Commission’s analysis, but before I continued on to the specific terms of the order, I wondered how the agency would be able to specifically perform the term that the supervisor had already breached, particularly when the supervisor’s promise not to do it again was insufficient. It’s not quite as hard as keeping a wave on the sand, but it does seem a little difficult to pin down. The Commission addressed the question by ordering the agency to issue a written counseling to the supervisor, with a copy to the complainant, reminding him of his duty to abide by the agreement. We don’t have a way to know whether the complainant chose specific performance or reinstatement of the complaint, but hopefully either option addressed her concerns and didn’t leave her feeling like she was trying to catch a moonbeam in her hand. Droste@feltg.com

Affirmative Defenses: The Sequel

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By Meghan Droste November 14, 2018

In April, I shared the Commission’s decision in Jenna P. v. Department of Veterans Affairs, EEOC App. No. 0120150825 (Mar. 9, 2018), which addressed what happens when an agency fails to make a complainant whole after a report of harassment.

The complainant’s first line supervisor sexually harassed her for several months, escalating from inappropriate comments to sharing sexually explicit videos he filmed with another agency employee.  After her second line supervisor learned of the harassment, he took immediate action, including removing the harasser’s supervisory duties, scheduling training, and initiating an investigation.  Within two days the harasser resigned.

Although the agency took several key steps to address the harassment — and did so promptly — the Commission concluded that the agency was unable to establish its affirmative defenses because it failed to make the complainant whole when it did not restore her sick leave and pay the back pay for the leave without pay the complainant used as a result of the harassment. This decision is a good reminder of why it is so important to determine the full extent of the harm and then address it.

I thought the Commission’s decision in Jenna P. was fairly straightforward and reasonable. However, the agency appears to have taken a different view because it filed a request for reconsideration. Jenna P. v. Dep’t of Veterans Affairs, EEOC Req. No. 0520180337 (Aug. 2, 2018). In its request, the agency argued that it should not be liable for the harassment because the complainant took an unreasonably long time to report it, waiting more than seven months from the initial harassing conduct. The agency also questioned the finding that the complainant found the harassment unwelcome, arguing that she only seemed to object after her fiancé discovered the sexually explicit videos the supervisor sent to her. Finally, the agency argued that the Commission’s decision did not fully address that the harm was flawed because the complainant did not request the restoration of her sick leave or request back pay for the leave without pay until well after the agency had initiated its response to the report of harassment.

When the Commission denies a request for reconsideration, it generally does so in a paragraph or two. It will usually remind the parties of the very limited circumstances in which it will grant such a request and then state the request does not fall within one of the categories.  We get a bit more detail in Jenna P. The Commission reminds the agency that it knew, before it learned of the supervisor harassing the complainant, that the supervisor had an “unprofessional interest in his female coworkers.” The Commission also relies on the complainant’s probationary status and the “egregious” nature of the harassment to dispose of the agency’s argument that she should have reported the harassment earlier.  The fact that the harassment increased in severity from complimenting the complainant’s appearance to homemade pornography weighed heavily in the complainant’s favor and made it reasonable and understandable that she did not report the harassment immediately.

The facts in this case — a supervisor who repeatedly harasses his subordinate, escalating from comments to sexually explicit material, while reminding her of the significant power imbalance between them and that he holds her job in his hands — unfortunately are not uncommon. I encourage you all to review the Commission’s unusually detailed decision and consider it when addressing reports of harassment. Droste@FELTG.com

Tips from the Other Side, Part 11

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By Meghan Droste November 14, 2018

Parties in EEO cases have to make many decisions throughout the process — from the complainant deciding at the outset whether to remain anonymous during the counseling period to the agency deciding whether to accept or reject an administrative judge’s findings.  One of the earliest decisions for an agency is whether to accept a complainant’s claims for investigation. In my experience, the answer is usually yes. The agency will accept most, if not all, of the claims and the complaint moves forward. Sometimes, however, an agency will decide to dismiss an entire complaint at the beginning for failing to state a claim.  While the EEOC’s regulations require agencies to do so when appropriate, this decision has the potential to trip up an agency because it can lead to inappropriate weighing the merits of the complaint.

Two recent decisions from the Commission illustrate potential pitfalls in dismissing a complaint for failure to state a claim. In Vickey S. v. U.S. Postal Service, EEOC App. No. 012018055 (Aug. 15, 2018), the complainant asserted that she felt forced to resign when she experienced retaliation for speaking with a union steward, and when her supervisor slammed keys down in front of her, required her to drive in a vehicle with no heat, and threatened to remove her; the complainant alleged that all of these incidents occurred after she notified her supervisor that she was pregnant. The agency dismissed the claim, finding that the complainant was not aggrieved and the incidents were not sufficiently severe or pervasive. The Commission reversed, as it often does when an agency determines at such an early stage that a claim is not sufficiently severe or pervasive.

In Mack R. v. Department of Agriculture, EEOC App. No. 0120181607 (Aug. 3, 2018), the complainant alleged the agency discriminated against him when it issued a Letter of Warning (LOW) to him.  The LOW included a statement that the agency would not place it in the complainant’s official personnel file. As a result, the agency dismissed the complaint, finding that it did not state a claim because the complainant had not articulated a harm or loss.  In its decision reversing the decision, the Commission noted that if the agency had reduced the LOW to a discussion and expunged the LOW from the complainant’s record there would be no harm. As the agency did not do so, and the LOW still existed in the agency’s files, albeit not in the complainant’s OPF, the complainant could allege that he suffered a harm or loss.

While agencies certainly have an obligation to dismiss complaints that do not state a claim, such as claims that allege violations of laws that are not under the EEOC’s jurisdiction, I recommend erring on the side of caution when the concern is not that the complaint could not possibly state a claim, and instead that it could not state a strong claim. Droste@FELTG.com

The #MeToo Movement by the Numbers

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By Meghan Droste October 17, 2018

This year, I have logged thousands of miles traveling to various parts of the US and Japan to teach courses on several different topics.  One area that I have covered in nearly every course is sexual harassment — what it is, when an employer is liable for it, and what agencies can do to address and prevent it. I am frequently asked if there has been a change in the number of reports of harassment or the number of cases alleging sexual harassment since the rise the #MeToo movement last October. Until now, I have had to answer the question with anecdotal evidence from my practice and stories of others in the field. It has generally felt that more people are willing and able to come forward now to report what has happened to them and to press employers to hold harassers accountable.

The EEOC recently released numbers that back up the general feeling that there are more reports of sexual harassment. As the Commission notes, in the past year “the country heard story after story of sexual harassment that just one year before might never have been told.” In What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment, the Commission provides statistics from Fiscal Year 2018 that demonstrate just how much the legal landscape has changed.

Although the report does not include numbers from the federal sector, we can see a noticeable change in the numbers of charges and lawsuits filed.  The Commission observed a 12 percent increase in the number of sexual harassment charges filed in the private sector.  There was also a 50 percent increase in the number of sexual harassment lawsuits the EEOC filed. Sexual harassment cases made up more than 60 percent of the cases the Commission filed in FY18.  The Commission also recovered almost $70 million for victims of sexual harassment through litigation and administrative enforcement.

The public’s interest in information regarding sexual harassment also increased during the past fiscal year. The Commission reported that the hits on the sexual harassment page of its website more than doubled. Requests for training by the EEOC also increased across the country [Editor’s Note: as has also happened at FELTG.]

It is still too early to tell what the lasting impact of the #MeToo movement will be. It is encouraging, however, to see that in just the last 12 months, it has made a difference. You can read more about the FY18 numbers on the EEOC website. The EEOC has also issued press releases about several of the harassment suits it has filed this year, which you can read here and here. Droste@FELTG.com

Tips from the Other Side, Part 10

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By Meghan Droste October 17, 2018

The idea of how to substantiate a claim of harassment is never far from my mind as a complainant-side attorney.  I have to consider from the very beginning what evidence a potential client has and what evidence we are likely to develop during the course of an investigation and litigation.  One of the most important considerations is credibility because harassment claims almost always come down, at least on some level, to a comparison of the victim’s statement to that of the alleged harasser. Who is a judge more likely to believe?  If I do not believe a potential client, there is no chance I can convince a judge to believe that person.

Agencies should also be concerned about credibility determinations.  One of the first things an agency should do after learning of a complaint of harassment is to investigate the allegation. The administrative investigation, which is different and separate from an investigation of a formal EEO complaint, is essential to determining what, if anything, happened and what the agency needs to do to address it. The investigation should also be the start of determining whether the complainant and the accused are credible. If the story of the alleged harasser doesn’t make sense, that is a huge red flag that you ignore at your own peril.  Too often it seems like agencies are willing to dismiss an allegation simply because there are no other witnesses, even in the face of clearly questionable testimony from an alleged harasser.

How do we determine credibility?  It’s not an exact science, even for veteran investigators and others who have significant training in evaluating testimony.  The Commission has identified a few facts that agencies should consider.  First, is the testimony believable? Does it make sense on its face? Second, how did the person act when giving his or her testimony? Does the witness display a demeanor that indicates that the testimony is true? Or is there something in the way the person responds to the questions that makes you question if he or she is lying? Third, does the witness have a motive to lie? The witness’s role in the incident, and her connection to the victim or the harasser, may make it more likely that the witness is not telling the truth. Fourth, is there any evidence, either other testimony or documentation, that corroborates the story? And fifth, does the accused individual have a past record of similar behavior? As the Commission notes, none of these factors alone are determinative.  The lack of physical evidence or witnesses does not mean that an event did not occur.  The fact that the accused employee has engaged in similar behavior in the past does not prove that harassment occurred this time. The agency should consider all of these factors as a whole.

No one expects you to be the next Sherlock Holmes. But you should be mindful of the evidence before you when determining the agency’s next steps.

Send questions or topics for future Tips from the Other Side column to Droste@FELTG.com.

Gender Disparities in Federal Sector Public Safety Occupations

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By Meghan Droste, September 19, 2018

Summer is a slow time. I generally find that my office phone rings far less often during the summer and the pace of work is just a little different.  It appears that the same may hold true for EEOC decisions. Checking for recent decisions to write this article, I found that either the EEOC did not issue any last month, or the folks at Lexis are a bit behind in posting them. Either way, my search for an update for you all led me away from OFO decisions and instead to the EEOC’s June 2018 report Recruitment & Hiring Gender Disparities in Public Safety Occupations.  While it might not seem like a page turner from the title (which, I would also add, should refer to sex rather than gender) the report genuinely is interesting.

The EEOC examined employment data for 10 public safety position categories at 14 agencies. The positions included correctional officers, park rangers, fire protection and prevention, and border patrol agents. The agencies included the Department of Agriculture, the Department of the Interior, the Department of Homeland Security, and the Environmental Protection Agency. The report examines both recent and historical hiring data for these positions at these agencies. The EEOC also conducted focus groups of representative female employees and individuals in the position to impact recruitment.

The Commission found a 1% decrease in the percentage of public safety positions held by women from 2012 to 2016, going from 14% to 13% across the relevant agencies.  Customs and Border Patrol had the lowest number of female employees in the examined positions, with women comprising only 5% of border patrol agents, and no women serving in border protection interdiction positions.  The Fish and Wildlife Service in contrast, received high praise from the EEOC. This agency, which I had the privilege of visiting last week, has implemented several outreach initiatives to recruit women.  Sixty-six percent of their park rangers are women, a number that exceeds those for other agencies and the overall numbers in similar non-federal positions.

After reviewing the data, the EEOC presented several recommendations for improving recruitment of women for public safety positions.  The suggested initiatives include expanding recruitment efforts to all-female colleges and universities, as well as increasing the visibility of female recruiters.  The Commission also suggested developing outreach programs for elementary, middle and high school students to encourage a wide range of children to consider careers in public safety.

The summer sadly is over and the pace of work is starting to pick up in my office in a noticeable way.  Even if you find yourself in the same position, I encourage you to take a few minutes to read the Commission’s report. Droste@FELTG.com