Legalized Lying

By William Wiley

Consider this scenario:

• Jane writes a letter to the director of human resources at her agency (or files an Inspector General complaint, or blows the whistle with the Office of Special Counsel, or writes to her Congressman). In that letter, she accuses her supervisor of forcing her to have sex with him or be fired during probation. Above her signature she appends the old penalty-of-perjury statement and swears on all that is holy that she is telling the truth.
• John writes a letter to the HR director saying he saw the incident occur. Same truthfulness attestation.
• The supervisor denies the allegation. However, because it’s two witness to one, the agency believes Jane and John. It fires the supervisor.
• The supervisor’s wife becomes aware of the charge and leaves him, taking both kids and the dog with her (not the dog!).
• Both Jane and John testify under oath at the supervisor’s MSPB hearing that their original statements are true.
• Subsequently, it’s determined that both Jane and John had acted in bad faith and lied, that they made up their story to get the supervisor in trouble because they did not like him.
• The agency restores the supervisor to his old job, pays his back pay and attorney fees. The wife moves back in, but the couple needs months of marriage counseling to heal things. But the dog – the poor dog – just cannot put all of this behind him, and barks incessantly every time the supervisor comes home.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  Yes. Making false statements, lying under oath; that’s some serious stuff. Probably a felony; e.g. 18 USC 242, 1621, or 1622. Removal is no doubt a defensible penalty.

OK, similar scenario, except this time, instead of writing a letter to HR, Jane says the same thing in the filing of a sexual harassment discrimination complaint. John’s statement is given to the EEO investigator. Both testify before an EEOC judge.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  No, if the agency is located in Richmond or New Orleans. Yes, if the agency is located in Chicago. Probably not if the agency is located in DC. See Egel v. DHS, Slip op 15-434 (US District Court, District of Columbia) (June 24, 2016).

You see, there’s something at play in this second scenario called the Pettway Rule (Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5^th Cir. 1969)). That rule is based on the analysis that since Title VII of the Civil Rights Act prohibits an agency from taking an adverse employment action because an employee has made a charge or testified in an EEO proceeding (the “opposition” and “participation” clauses), Jane and John cannot be fired because their false statements were made in that context. The Fifth and Fourth Circuit Courts of Appeal have adopted this rule (New Orleans and Richmond), but the Seventh Circuit has squarely rejected it (Chicago).  A single district court judge believes that the DC Circuit is in favor of it (Egel, above) and the rest of us court-watchers are waiting for an answer. EEOC appears to adopt it, but of course it’s the courts we care about if push comes to shove.

Those courts that have adopted the rule reason that to do otherwise would have a chilling effect on the rights of employees to file discrimination complaints. They conclude that statements made in EEO proceedings cannot be the basis for discipline even if those statements are false, malicious, or defamatory. The Seventh Circuit, on the other hand, concludes that only “reasonable” EEO complaint statements made “in good faith” are protected from discipline. Judge Posner from that circuit stated that he “can’t actually believe that forging documents and coercing witnesses to give false testimony are protected conduct.” See Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741 (7^th Cir. 2010).

Wow. Talk about a clash of societal values. On one hand, we don’t want discriminated-against employees to be afraid to file EEO complaints. On the other hand, we don’t tolerate lying very much. Here at FELTG, if we were splitting this baby, we’d come down on the side of saying that conclusory statements in EEO complaints are protected (e.g., “He sexually harassed me.”), but false statements of fact are not (e.g., “He forced me to have sex with him.”). Of course, we don’t adjudge anything here and you know what you’re paying for our opinions.

So develop your own opinion on this issue, then write to your member of Congress. Or get elected yourself. Or appointed to the bench. These cases don’t come up very often, but the answer is of fundamental importance to who we are as a society of laws. Do we want federal employees to be able to attack their supervisors by lying about them in EEO complaints? You be the judge. Wiley@FELTG.com