Wednesday, November 19, 2014

A Word to the Wise Federal Employee Claiming Discrimination: Cooperate

As many federal employees and their counsel know, to pursue a complaint of discrimination the employee must first "exhaust administrative remedies". This means, of course, that the employee must arrange for EEO counseling within the proper time period (45 days after a personnel action; or 45 days after the latest incident in a pattern of incidents that makes up a "hostile work environment"). After counseling is finished, the federal employee must file the formal EEO complaint within 15 days of receiving the Notice of the right to do so. Then, the employee must request an EEOC hearing within 30 days after receiving the Investigation Report. And, finally, if the employee wants to file in court, that must be done within 90 days after receiving the Government’s "final decision" on the complaint.

Although these deadlines, and others, are a challenge under any circumstances, there is another – more challenging – requirement awaiting federal employees: cooperation. For most employees, cooperation is not a problem; indeed, employees are so convinced they are the victim of discrimination it’s difficult to slow them down. Nevertheless, every now and then a case that has found its way to court hinges on whether the employee was – or was not – sufficiently cooperative.

Such a case was recently decided by the U.S. Court of Appeals for the District of Columbia Circuit. Koch v. SEC, 744 F.3d 162 (D.C.Cir. 2014). Koch was working for the Securities and Exchange Commission when he was diagnosed with a heart problem. He asked the Agency to grant him accommodation by modifying his work hours so he could undergo rehabilitation without using leave. After a year without a response, Koch consulted an EEO counselor and filed a formal EEO complaint. That’s when things got sticky.

As do many federal agencies, the SEC has a contract for investigating EEO complaints, and it assigned the investigation of Koch’s complaint to one of these contract investigators. The SEC informed Koch of this arrangement, and it also told him that he was "obligated to cooperate" with the investigation. Although Koch had provided his EEO counselor with his medical records concerning his heart condition, he was concerned that any medical records he gave the investigator would not be protected by the Privacy Act (which covers agency records) because the contract investigator was not an SEC employee.

Koch wanted assurance that the investigator’s contract included clauses applying the Privacy Act. The SEC showed Koch a copy of the non-disclosure agreement governing the investigator, but Koch felt this wasn’t sufficient. Moreover, the contract itself was unclear: the language invoking the Privacy Act was not actually in the contract, but was incorporated by reference. With that, Koch declined to authorize disclosure of his medical records to the investigator and he refused to provide an affidavit to the investigator as part of the investigation into Koch’s complaint. The Agency dismissed Koch’s complaint for failure to cooperate. 29 C.F.R. § 1614.107(a)(7).

Koch appealed the dismissal to the EEOC, which upheld the agency, and he then filed an action in district court. The court granted summary judgment to the SEC, finding that Koch’s failure to cooperate constituted a failure to exhaust his administrative remedies, and therefore he had no right to be in court. Koch appealed that decision to the D.C. Circuit. The court’s disposition of Koch’s appeal is a cautionary tale for EEO complainants.

The court first articulated the link between the complainant’s obligation to "cooperate" and the requirement that he exhaust his remedies: "A plaintiff’s suit ‘will be barred for failure to exhaust administrative remedies’ if he ‘forces an agency to dismiss or cancel the complaint by failing to provide sufficient information to enable the agency to investigate the claim’." Because the SEC made clear to Koch that it needed his testimony and his medical records, and Koch refused to provide either, he failed to provide the minimum information necessary for the investigation to proceed.

Koch argued that he had already given the medical records to the counselor. The court rejected this argument, noting that Koch had declined to authorize the agency to provide those records to the investigator. At bottom, because Koch refused to provide any information beyond what he gave the counselor, he failed to exhaust the EEO process.

Interestingly, the court rejected out of hand Koch’s contention that his reluctance to provide his medical records to the investigator should be excused because he was not given adequate assurances that his records would be protected by the Privacy Act. The court chastised Koch for making this argument given "the extensive privacy protections for his medical records included in the contract." However, because the court earlier acknowledged that these "extensive privacy protections" were not immediately clear, it is hard to see why Koch should have been aware of them.

Rather, the court appears to be most critical of Koch’s outright refusal to provide any information to the investigator. In retrospect, Koch would have been better served had he sat down with the investigator and prepared an affidavit setting forth his claims and the evidence he believed supported his claims. At that point, the Agency would have had to prove that the specific medical records were critical to the record. As it is, Koch provided no evidence whatever, and he took the risk that the SEC would dismiss the complaint rather than proceed under his demands.

Finally, it is not clear whether Koch was represented by counsel during the EEO process and what, if any, legal advice he was receiving. Clearly, however, counsel representing federal employees during the administrative process should inform their clients that a refusal to provide information pursuant to what may later be considered a reasonable request may result in a total dismissal of the complaint with no further possibility of relief.

For other cases involving an alleged failure to cooperate, see Rann v. Chao, 346 F.3d 192 (D.C.Cir. 2003) (complaint dismissed where employee refused to provide a signed affidavit); Wilson v. Pena, 79 F.3d 154 (D.C.Cir. 1996) (complaint would not be dismissed where agency had enough information to issue an earlier decision on the merits); Woodard v. Lehman, 717 F.2d 909 (4th Cir. 1983) (dismissal affirmed where, in response to a request for a statement detailing instances of discrimination, the complainants replied that there was enough information in the complaints).

 

Written by George Chuzi

No comments: