Thursday, September 30, 2010

Gonzales and Gonzalez versus DHS

When a federal agency decides to take action against an employee for misconduct, it is usually required to give the employee 30 days' notice, a written statement of the charges, access to any documents the agency relied upon in formulating the charges, and an opportunity to respond to the charges. An agency can suspend or take another adverse action only if the charges of misconduct are sustained after these due process requirements have been satisfied. Any suspension must be for a specific duration, with very rare exceptions. One of these rarities is the “crime exception,” which allows an agency to place an employee on indefinite suspension with only seven days' notice when the agency reasonably believes that the employee has committed a crime for which a sentence of imprisonment could be imposed. For an agency to have “reasonable cause” for an indefinite suspension, there needs to have been:

(1) an indictment; (2) an employee arrested and held for further legal action by a magistrate; (3) an arrest or investigation accompanied by such circumstances showing reasonable cause; (4) a criminal information; and (5) certain egregious acts such as murder or national security offenses, which are detrimental to the agency’s mission, brought to the agency’s attention by the news media.

Gonzales v. Department of the Treasury,
37 M.S.P.R. 589, *5 (Aug. 17, 1988). In other words, if an agency finds out that an employee has been charged with a crime for which imprisonment is a possible penalty, the agency can suspend that employee without pay with one week’s notice, until the employee is convicted, acquitted, or charges are dropped. After the criminal case is resolved, an agency can always decide to propose the removal of the employee based on the alleged criminal conduct, but the unpaid suspension must end when the criminal prosecution is resolved. The employee will get closure, one way or another. Every suspension must have an “ascertainable end,” even if the precise end date is dependent on what happens in court.

We now learn that, during 2008 and 2009, the Department of Homeland Security suspended at least two employees for indefinite periods, not because they had been charged with a crime, but because the agency was investigating whether the employee has done anything to warrant an adverse action. DHS basically made up a new standard saying that indefinite suspensions were permissible whenever an agency “believes that the employee’s retention on active duty could result in damage to federal property, be detrimental to government interest, or be injurious to the employee, his fellow workers, or the public.” Rather than arrests or charges, these suspensions were based on mere allegations of misconduct which were supposedly being investigated by the agency. The agency never actually charged either employee with any misconduct. Meanwhile, the unfortunate employees were trapped in limbo - suspended without pay - while the agency took its time deciding whether to charge them with anything. After the two employees filed appeals with the Merit Systems Protection Board, the Board found that DHS’s new standard violated the employees’ right to due process. In Gonzalez v. DHS, the Board said:

The agency has not identified, and we are unaware of any legal authority establishing that the mere existence of an agency investigation or inquiry into allegations of misconduct constitutes a circumstance justifying, or cause for imposing, a suspension under 5 U.S.C. § 7513.

was issued in July 2010. In Hodge v. DHS, decided in September 2010, the Board reviewed its recent decision in Gonzalez, and then concluded:

The agency in this case imposed an indefinite suspension against the appellant under circumstances virtually identical to those in Gonzalez. As noted above, it based its actions solely on the fact that it was investigating allegations of misconduct by the appellant and it made no determination that the appellant actually engaged in any misconduct. Like the action in Gonzalez, therefore, the appellant’s suspension cannot be sustained.

In each case, the agency was ordered to rescind the suspensions and pay Gonzalez and Hodge for the entire period they had been suspended.

The moral of this story is that, to suspend federal employees for misconduct, an agency must first charge the employee with the misconduct and sustain those charges, OR suspend the employee while criminal charges are pending against him or her. In the absence of sustained agency charges or pending criminal charges, there's simply no legal basis for a suspension of any duration.

Friday, September 17, 2010

1614 Has Teeth

As employment lawyers in D.C., our practice includes plenty of federal sector EEO complaints. Over the years, we’ve seen a lot of bad agency behavior when it comes to the processing of EEO complaints. For example: missing deadlines. This is a big no-no in the practice of law. If you miss a filing deadline without a solid-gold excuse (as in, “I’m very sorry, Judge, but our office, with all our client files inside, burned down last night, so I may need an extra week to get that brief filed”), your client is Out. Of. Luck. The courts and agencies like the EEOC have little patience with complainants who don’t follow the rules. Miss a deadline and your complaint will be dismissed without mercy. Yet federal employers, who are supposed to be playing by the same rules as complainants, all too often miss deadlines - whether set by the regs at 29 C.F.R. Part 1614, or by Orders from the Office of Federal Operations or Administrative Judges [AJs] in EEOC’s hearing units - and seem to suffer no consequences. I know of certain agency officials who regard the deadlines in OFO orders as merely “advisory.”


In two recent federal sector EEO cases, KCN obtained default judgments against agencies after they failed to comply with orders, from AJs or OFO or both, to produce complaint files and complete investigations within certain time frames. A default judgment for the complainant means that the complainant wins their case regardless of the merits simply because the other side has shown such disrespect for the EEOC and the EEO process that they have to be sanctioned, and sanctioned hard, to deter further such conduct.

In one case, after losing an OFO appeal to our client, the agency failed to comply with an Order to complete an investigation within 180 days and produce a complaint file to the local hearings unit. The agency compounded its problems by failing to respond to three separate orders from the hearing unit to produce the complaint file. After KCN moved for default judgment, the agency failed to respond to the motion. Only after the AJ granted default judgment did the agency respond, requesting reconsideration - but still without providing any explanation for its failure to obey the four Orders. Needless to say, reconsideration was denied.

In the second case, the agency failed to respond in any way to our motion for sanctions or motion for partial summary judgment, or to an Order to Show Cause issued by the AJ. Unsurprisingly, the AJ granted our client a default judgment.

Fair is fair. We hope the EEOC will continue to hold agency feet to the fire when it comes to completing investigations, and sending hearing files to the EEOC, on time. Justice delayed can easily become justice denied when someone’s job is on the line.