Importance of Impartial Investigations Stressed

In an otherwise unremarkable case reaffirming an agency's finding of no discrimination, the EEOC's Office of Federal Operations (OFO) has reiterated the importance of impartial EEO investigations in maintaining the integrity and impartiality of the EEO process. Ronald D. Rucker v. Department of the Treasury, Bureau of Engraving and Printing, EEOC Appeal No. 0120082225 (Feb. 4, 2011).

In addition to bringing several allegations of discrimination, none of which the OFO sustained, Mr. Rucker argued that the agency's office of general counsel had "improperly injected itself into the EEO investigation by reviewing and assisting in the development of management officials' statements before submitting them to the EEO investigator." The OFO chose not to make any finding regarding the complainant's allegation of improper involvement by counsel or the agency's defense that counsel was merely reviewing the affidavits for "accuracy and clarification."

The OFO took the opportunity, however, to remind agencies and their counsel of the admonition of the EEOC Management Directive in support of 29 C.F.R. Part 1614. MD-110, Chapter 1, § III states the following:

Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaints. Maintaining distance between the fact-finding and defensive functions of the agency enhances the credibility of the EEO office and the integrity of the EEO complaints process. Legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. The Commission requires this separation because impartiality and the appearance of impartiality are important to the credibility of the equal employment program.

The OFO sternly warned the agency against "even the appearance that it is interfering with the EEO process," and cited a court case supporting its warning that evidence of witness coaching can undermine an agency witness's credibility.

This pronouncement is a timely reminder that federal employees are entitled to a fair, impartial investigation of their EEO claims, and a warning to agency counsel against tipping the scales in management's favor by the manner in which counsel appear to be attempting to influence the investigations of those claims.

* 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 https://www.passmanandkaplan.com .