FEDweek

Federal Legal Corner: Interference with EEO Process

On September 22, 2009, the Equal Employment Opportunity Commission’s Office of Federal Operations issued its decision in James v. Dept. of Agriculture, EEOC Appeal No.0120073831. The Commission ordered EEO training for the responsible management official (RMO) in that case, and recommended that the agency consider possible disciplinary action against the RMO, for the RMO’s witness intimidation activities, even though the Commission did not ultimately find discrimination.

Ms. James, the complainant, was a GS-12 public information coordinator who became aware of an upcoming posting for a GS-12/13 career ladder position in her office. Prior to posting the vacancy announcement, the RMO selecting official told James that he wanted the (male) selectee for the position, but that James could have the administrative officer position in the office if she didn’t sue him first. James applied once the GS-12/13 position was posted, but was nonselected by the RMO in favor of the male selectee. She then filed an EEO complaint alleging sex discrimination in the nonselection. The case went to hearing before an EEOC administrative judge in June 2007.

Sometime after James filed her complaint, the RMO told one of her coworkers that he found James to be a liability, and that James was on the "other side of the line" because she filed an EEO complaint. The RMO further told the coworker that he expected loyalty from his employees, and that she should tell him first before filing any EEO complaints against him. As the hearing approached, the RMO learned that this same coworker was to appear as a witness at James’s hearing. The RMO told the coworker that he was aware that the coworker was named as a witness, that a court reporter would be at the hearing, that the hearing transcript was a public record, and that he would know everything that the coworker said in her testimony.

After the hearing, the administrative judge found for the agency on the merits. However, the administrative judge found that the selecting official had engaged in unlawful interference with the EEO process through his comments to James’s coworker. The administrative judge ordered remedial EEO training for the RMO, and directed the agency to consider possible disciplinary action against the RMO for his conduct.

On the complainant’s appeal to the Office of Federal Operations, the OFO affirmed the administrative judge’s finding of no discrimination in the nonselection. While the issue was not specifically appealed by either party, the OFO expressly left undisturbed the imposition of 16 hours of EEO training and recommendation for possible discipline against the RMO for his unlawful interference with the EEO process.

* 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 http://www.passmanandkaplan.com.

 

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