MSPB Limits Disclosure of Information

A recent decision by a divided panel of the Merit Systems Protection Board (MSPB) could have a chilling effect on the ability of federal employees to use information or documents, obtained through the course of employment, in support of discrimination complaints against agencies. In Smith v. Department of Transportation, Docket No. AT-0752-05-0901-I-2 (June 5, 2007), the MSPB affirmed the Federal Aviation Administration's decision to suspend an employee for disclosure of government documents to an EEO investigator and the employee's personal attorney.

The appellant served as a management and program analyst (labor relations program manager) at the agency. The appellant's duties and responsibilities encompassed aspects of employee-labor relations, third-party investigations and hearings, and working with the EEO office and the agency's general counsel's office on EEO matters. As a labor relations program manager, the appellant worked with the general counsel's office on EEO complaints and gathered documents for litigation.

After discovering that he was not selected for a supervisory program analyst position, the appellant filed a discrimination complaint against the agency in February 2003. The selectee for the supervisory program analyst position became the appellant's supervisor. After filing his EEO complaint, the appellant participated in an EEO investigation and engaged in an interview with an agency assigned EEO investigator.

In response to the EEO investigator's questions, the appellant disclosed information and produced documents that he considered to be relevant to his EEO complaint, including his personal knowledge of alleged misconduct by another agency employee. According to the appellant, he obtained that information through the office rumor mill and during the course of his regular duties as a labor relations program manager. Additionally, the appellant gave the EEO investigator a memorandum describing the negative performance of the selectee for the position at issue in his EEO complaint. The appellant obtained the selectee's negative performance memorandum from a desk drawer that he was authorized to access.

During the subsequent litigation related to the appellant's EEO complaint, his supervisor, the selectee for the supervisory program analyst position at issue, initiated an investigation into the appellant's alleged disclosure of information to the EEO investigator and his attorney. The agency charged the appellant with (a) unauthorized use of official government information, (b) unauthorized use of government documents obtained through government employment, (c) unauthorized removal and possession of a personal government document, and (d) misstating information for another's government claim. The agency imposed a 30-day suspension on the appellant.

An MSPB administrative judge reversed the 30-day suspension. The administrative judge decided that the appellant lawfully obtained the information and documents as part of his duties as a labor relations program manager. The administrative judge also decided that the appellant's disclosure to the EEO investigator was proper because EEOC regulations authorized the EEO investigator to receive the information.

However, the MSPB upheld the suspension. The MSPB decided that the appellant's disclosure of his knowledge of another employee's misconduct and the selectee's negative performance memorandum constituted unauthorized use and removal of government information. The MSPB declared that the appellant "needlessly disclosed" information to the EEO investigator and that the information disclosed was not relevant to his EEO claim.

The MSPB's decision in Smith could hinder EEO investigators and legal representatives from gathering potentially useful information in pursuit of discrimination complaints. In particular, employees who work for human resources departments or EEO offices could be discouraged from filing discrimination complaints. These employees have access to information as part of their regular work duties that could support their claims of discrimination. However, with the threat of discipline, these employees could self-censor and withhold important information. The MSPB's implication that the appellant in Smith should not have disclosed the information because it was not relevant to his EEO case is also troubling. An employee without legal training is not in a position to determine whether facts related to an EEO complaint are legally relevant. The MSPB's restrictions on information that an employee can reveal during the EEO process conflicts with EEOC regulations that encourage complete investigations and factual records of discrimination complaints.

This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.