Discrimination?

Pursuant to 29 C.F.R. Section 1614.108, federal agencies are required investigate EEO complaints within 180 days of the date the complaint was filed. The EEO investigation is a critical period of time because during this time the EEO investigator gathers evidence from the complainant, the complainant’s witnesses, and the agency’s witnesses.

EEO investigators usually prepare short affidavits for complainants explaining their claim of discrimination and may ask the complainant to identify documents and witnesses which may support the complaint. Having a representative who can examine the complainant’s affidavit and who knows what kind of evidence EEO investigators and EEOC administrative judges look for is prudent. However, several pointers are in order for complainants seeking to undergo the EEO investigation on their own.

Although there is no standard length for an EEO affidavit, a detailed affidavit is rarely less than 15 pages double- spaced. The affidavit should contain three subparts. The first subpart explains the complainant’s education and work history with the federal government and identifies any and all noteworthy achievements and performance ratings. The purpose of this subpart is to put the complainant’s best foot forward and to demonstrate to the reader that the complainant is a valuable asset to the employer.

The second subpart explains the facts of the complainant’s case and lays out in a chronological, narrative manner the events proving discrimination. In this subpart, the complainant identifies and explains how persons outside of his/her class (i.e., sex, race, religion, etc.) were treated differently than him or her. It is important that the complainant write this section very clearly by identifying the exact dates (i.e., month, day, and year) that events occurred. It is also important that the complainant refer to people (particularly the alleged discriminating officials and witnesses) by their full names and titles. If documents exist (e.g., e-mails and notes of conversation) which reinforce the complaint, it is imperative that the complainant reference the documents in the affidavit and discuss their significance to his/her claim. These documents should be submitted to the investigator as attachments to the affidavit.

The third subpart of the affidavit is where the complainant explains how the agency’s actions (discussed in subpart two) have harmed him/her physically, emotionally, and/or mentally. It is important that the complainant graphically explain how the agency’s actions have impacted him/her and whether professional assistance resulting from the agency’s actions was necessary. As with subpart two, a complainant should reference, discuss, and attach to the affidavit all documents (e.g., medical bills, medications, and leave slips) which evidence that the complainant has experienced pain and suffering.

Perhaps more than any other federal employees, employees working for an agency within the Department of Defense (DoD) need to be especially careful during the EEO investigation. Complaints of discrimination against DoD are investigated by investigators working for DoD’s Office of Complaints Investigation (OCI). Sometimes, particularly if the complainant works for the Army, the OCI investigator will forgo requesting affidavits, will schedule a fact-finding investigative hearing, and will interview the complainant, responsible management officials, and other witnesses, with agency counsel present, under oath before a court reporter.

Furthermore, although EEOC regulations require EEO investigators to only gather evidence and prohibit EEO investigators from evaluating the evidence and making findings of discrimination, DoD allows its OCI investigators to write investigative summaries containing conclusions of law. MD-110, Chap. (IV)(B) & (V)(B). DoD’s rationale for allowing investigators to write such summaries is that the EEOC’s regulations prohibit investigators from concluding that the complainant was a victim of discrimination, but the regulations allow investigators to conclude that the complainant was not a victim of discrimination. Although the OCI investigator’s conclusions are not binding, they can be prejudicial. Until the EEOC determines that such summaries are impermissible, DoD complainants need to be especially careful to present their case in a detailed manner and in the most favorable light possible.

LEAVE SHARING PROGRAM CALLED A STOPGAP
The federal leave sharing program does not prohibit the “otherwise-proper removal” of an employee, even if an employing agency has approved the employee’s participation in the program and the employee has a positive transferred leave balance, the U.S. Court of Appeals for the Federal Circuit has held (No. 01-3276). The court rejected a claim by an employee removed for physical inability to perform the job-which was accompanied by an invitation to apply for disability or regular retirement–that the agency could not remove him as long as he had a positive transferred leave balance. “It is clear that Congress intended the program to be a stopgap measure to help an employee until she is able to take advantage of long term disability retirement,” the opinion said.

CHALLENGING PERFORMANCE STANDARDS
When faced with a Performance Improvement Plan, proposed removal or proposed demotion for unacceptable performance, employees typically look to challenge the criticisms of the performance. However, before challenging the substance of the performance criticisms, you should first review your performance standards to see if the standards are susceptible to challenge.

An agency cannot prove unacceptable performance sufficient to ubstantiate a downgrade or removal without first establishing that the performance action is being taken under valid performance standards. In order to be valid, performance standards must comply with statutory requirements of 5 USC Chapter 43; otherwise the performance standards are fatally flawed. Chapter 43 requires that performance standards permit the accurate evaluation of job performance on the basis of objective criteria. Chapter 43 also states that performance standards must clearly apprise the employee of the minimum standard of performance required and must be reasonable, sufficient in the circumstances to permit accurate measurement of performance, and adequate to inform the employees of what is necessary to achieve an acceptable performance rating.

An agency is required to demonstrate that the performance standards are reasonable, realistic and attainable to protect the employee from arbitrary appraisal of the employee’s performance. Performance standards are to be sufficiently specific so as to provide a firm benchmark toward which an employee must aim performance. Measuring performance against valid performance standards is a substantive right of the employee.

That a performance standard must be objective does not mean that the performance standard must be numerical. For instance, agencies are given considerable latitude and deference in defining standards and establishing measurement techniques for the evaluation of the performance of professional employees because, especially in the case of professional employees, it may not be feasible to incorporate specific deadlines and numeric measures in a performance standard. If a performance standard is numerical, an agency must still prove the reasonableness of the standard. For instance, a numerical standard can be challenged as unreasonable if the standard requires an inordinately high accuracy rate for the work performed. Also, when reviewing a numerical standard, check to see if the standard relates to something measurable–in other words, that there exists some method of selecting examples of unacceptable performance related to numerical standard.

Performance standards that are subject to interpretation and subjective evaluation can be challenged as impermissibly subjective, vague and ambiguous. For example, standards that include the use of the words “sometimes,” “rarely,” “occasionally” or standards that require that work must be produced first in final form with no need for revision or correction re susceptible to challenge as impermissibly vague. Also, backwards standards can also be challenged as impermissibly vague. Backwards standards are standards that describe performance in terms of what an employee should not do, rather than identifying acceptable performance, or what an employee should do.

In addition, absolute standards, standards that permit removal or demotion for one instance of poor performance, can be challenged as unreasonable. For example, a standard may be impermissibly absolute if it merely describes the task that an employee is to perform without describing how much work is to be performed to achieve acceptable performance. The standard can be challenged as absolute in such a case because it suggests that acceptable performance has been met only if the tasks are performed exactly as described in the standard.
The above describes a few examples of ways to challenge your performance standards. The bottom line is that, when faced with a performance action for unacceptable performance, challenging your performance standards can be a powerful method for overcoming Performance actions.

EEO INVESTIGATIONS, RIGHTS AND RESPONSIBILITIES
During the investigation of an EEO discrimination complaint, the EEO program should be impartial and maintain the appearance of impartiality. The EEO office and office charged with defending the agency, for example, the Office of the General Counsel (OGC), should remain entirely separate organizations. The office involved in defending the agency should have no involvement in the investigative process. The agency’s legal representative, such as an attorney from OGC, has no right to participate in any fashion in the investigation. A manger accused of discrimination is not entitled to have an agency attorney accompany her to the EEO investigation and fact-finding process. Like a complainant, a manager is allowed to hire an attorney to represent her.

EEO investigators are allowed to show accused managers information that is relevant, when the investigator decides that disclosure is necessary to obtain information from the manager. The investigator can disclose information to the extent that it is necessary in order to explain the complainant’s claims or to explain the manager’s reasons for the agency’s actions.

To ensure the separation of the EEO office and the OGC, it is inappropriate for the EEO investigator to work through OGC in speaking with the managers. The EEO investigator should talk directly with the managers, asking questions and requesting documents. It is not appropriate for the agency’s attorney to screen information that will be included in the EEO investigation, as doing so would compromise the EEO program’s appearance of impartiality. Because it is inappropriate for the agency’s attorney to be involved in the process, the attorney is not allowed to be present during any management interviews or to recommend or identify witnesses or documentary evidence. Managers, not attorneys, are allowed to identify and recommend such sources of information and evidence to the investigator.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to www.passmanandkaplan.com.

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