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Skeletons in the Foot Locker

 

Defining and Identifying Adverse Actions

 
 
   
   
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(Credit: istockphoto.com/IgorZakowski)

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A federal employee finds a vacancy for a position as a Civilian Senior Executive (CSE)1 and applies on the website USAjobs.gov. An accusation against this same employee exists in a closed Equal Employment Opportunity (EEO) complaint—an accusation of sexually harassing a subordinate that was quickly settled. The Army will never know about it and may choose this person as their best candidate.

Before the Army decides to entrust an increased level of responsibility and authority as a CSE, colonels (COL) selected for promotion, and general officers (GOs), the Army vets them by looking for adverse information. How does the Department of Defense (DoD) define a skeleton and where do we look for them? This article will discuss the process and some pitfalls in the process. The DoD defines skeletons by providing guidance on the classification of “adverse” and “reportable information.”2 The DoD established a process for identifying, reporting, and maintaining adverse information for promotable COLs and GOs. The Army uses a similar process for vetting its CSEs for selection, promotions, and awards.3 The Department of Defense Instruction (DoDI) 1320.04 defines “adverse information” as:

[A]ny substantiated adverse finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature. To be credible, the information must be resolved and supported by a preponderance of the evidence. To be adverse, the information must be derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual.4

Determining if the information is adverse is easier because it is a finding or conclusion. However, the more challenging determination is when something is “reportable.” These “reportable” matters are a little trickier to muddle through. Reportable information is:

(1) Information other than adverse information requested to be reported by the Senate Armed Service Committee or by any member of the Senate; or

(2) Information related to alleged misconduct or impropriety, which is subject to an on-going investigative, administrative, or judicial process. Normally a nomination will be delayed pending resolution of the investigative, administrative, or judicial process; however, in extraordinary cases and where the resolution is not expected within a reasonable time, the nomination may be processed with an appropriate summary of the case. The summary will include an opinion from a qualified senior leader on the probable outcome of the investigative, administrative, or judicial process; or

(3) Credible information related to an individual’s involvement or affiliation with a significant event that is widely known to the general public or members of Congress that brings discredit upon or calls into question the integrity of members of the DoD, Components of the DoD, or the DoD. Ordinarily, such information that has been known for more than 3 years prior to the nomination process, or information that was previously considered by the SASC as part of a prior nomination of that individual, will not be reported.5

The U.S. Constitution creates a shared architecture for the appointment of military officers.6 From the 1st Congress in 1790, Congress has considered nearly all military officers subject to confirmation (distinct from civilian agencies, where Congress typically only confirms principal officers).7 The vetting process, birthed from the Constitution, prevents CSEs or GOs from selection, reassignment, promotion, and receiving high-profile awards without the transparency of reportable adverse information.8 However, what happens when a skeleton is hiding in plain sight? What should be reported is a question of debate across the services, as there is a lack of standardization and sharing of information. This article delves into challenging the status of the category listed above as “reportable,” requiring the reporting of “on-going administrative processes”—found inside the EEO complaint process.

Are There Skeletons Hiding in EEO Closets?

Allegations of senior leader improprieties are reported in various forums.9 Therefore, when looking at a candidate for an award or selection, all offices with potential adverse or reportable information are contacted. While the procedures are nearly identical, complaints made against federal Civilian employees, to include CSE employees, are filed at local EEO offices, while complaints against military members go through EO offices. The EEO process often hides other allegations of impropriety. These other allegations (i.e., failure to act or counterproductive leadership) are tucked inside the complaint of discrimination. Therefore, when other allegations are made, they are often left unaddressed.10 Consider the EEO complaint process. It is easy to see how a misdeed or act (i.e., a skeleton) hides in plain sight.

Example of EEO Complaint with Nondiscriminatory Allegation

For example, Ms. Smith files an EEO complaint alleging she was not selected for promotion due to her protected status as a female. In describing the discriminatory behavior alleged, the complainant also describes behaviors that do not squarely fit into the EEO box. The complainant may allege that the CSE or GO in question is a counterproductive leader—the evidence of which is not necessarily related to complainant’s protected status. Also, around her allegations of gender discrimination, the complainant offers evidence that the leader has a destructive leadership style.11 Under these circumstances, the leader who is the subject of the complaint is a responsible management official (RMO) and identified as such inside the EEO pre-complaint.12 The EEO counselor identifies the RMO and then will highlight the protected status of the complainant; however, the EEO counselor focuses on the discriminatory act and is not required to address the allegation about the leadership style.13 The focus for an EEO counselor is on the discriminatory act, as this is the goal of both the EEO and EO process, there is no mandate or requirement for them to identify and investigate collateral misconduct. In the EEO pre-complaint phase, there is no common understanding whether the counselor is required to notify the Department of the Army Inspector General (DAIG) when a senior leader is named as a RMO.14

Reporting Allegations to DAIG

When the Army is informed that a GO, promotable COL, or CSE is named as a RMO, there is a reporting requirement.15 Army Regulation 20-1 requires, “[a]ny and all allegations of impropriety or misconduct (including criminal allegations) by a general officer, a promotable colonel, a member of the Civilian SES, and any other DA Civilians must be forwarded by commanders or [Inspector Generals] directly to the DAIG Investigations Division by a rapid and confidential means within 2 working days of receipt.”16 Reports made to commanders in such cases trigger additional responsibilities and potential liability on their part. Therefore, unlike making a report to a commander, not all EEO offices are reporting allegations of misconduct raised in EEO complaints to DAIG. Equal Employment Opportunity complaint guidance does not require or explain when to report. Additionally, there is no report or an additional investigation when there are allegations against someone below the rank of colonel. If provided by an EEO or EO office, DAIG receives the report and opens a case that monitors the complaint. There is no parallel or separate investigation conducted by DAIG. Considering the EEO process, failures to act are unintentionally ignored by DAIG.

The Skeletons Are Not Necessarily Investigated in EEO Complaints

After a complainant files a formal complaint, the appropriate EEO office coordinates an investigation that yields a report of investigation (ROI) from Defense Civilian Personnel Management Service Investigations and Resolutions Division (IRD).17 The IRD investigates only the allegations associated with a protected status, not allegations of prohibited personnel practices, failure to act, or counterproductive leadership.18 The IRD does not take any direction from the Army. The resulting investigation consists of gathering documentary evidence, sworn statements, and testimony for use by the adjudicator elected by the complainant—either an Equal Employment Opportunity Commission (EEOC) administrative judge, Army EEO Compliance and Complaints Review Directorate (EEOCCR), or the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) on behalf of the Secretary of the Army.19 The IRD can choose to do the entire investigation electronically, rather than holding a fact-finding conference. Electronic investigations can sometimes miss valuable information that would otherwise come out requiring a conference. As pressures increase to do investigations faster, electronic investigations are becoming a more typical process. Furthermore, inside the final ROI, the IRD investigator does not make findings.20 If requested at this stage of the process, an adverse screening must rely upon the ROI that may not have all of the necessary facts.

In the hypothetical, the complaint moves through the process and concludes years later with an administrative judge. For argument’s sake, in this case, the finding is “no discrimination.” Therefore, a complaint of gender discrimination that includes allegations of counterproductive leadership can appear thoroughly investigated, when in fact the allegations of counterproductive leadership are neither investigated nor addressed. Meanwhile, an administrative judge or EEOCCR concludes the allegations of discrimination are unsubstantiated, and the case is dismissed. Even when the ASA (M&RA) makes findings of discrimination, the evidence does not focus on the ancillary complaint of counterproductive leadership. Again, the ancillary complaints are not investigated as the goal is to make a complainant whole as it relates to allegations of discrimination. Therefore, a finding from an administrative judge or ASA (M&RA) typically will not discuss the ancillary misconduct of a particular person. It focuses on what happened to the complainant, not the additional misconduct of the leader. When this finding is reported to DAIG, it is not necessarily providing the entire picture. The skeleton can still be there, uninvestigated, and DAIG will still close the case.

(Credit: istockphoto.com/Aleutie)

Settlement Agreements Hide Skeletons

In an alternative scenario, Ms. Jones, an employee, files an EEO complaint alleging discrimination based on her gender, and before it even reaches the IRD for investigation, the complainant and the federal agency agree to a negotiated settlement agreement (NSA). At the informal pre-complaint stage, the EEO counselor responsible for intake is not obligated to report allegations of CSE, promotable COL, or GO misconduct to the commander or DAIG with specificity.21 Therefore, allegations of impropriety raised in EEO complaints are not generally reported by the commander or to DAIG when it is in the pre-complaint stage. Throughout the complaint process, the labor counselor advises on the likelihood that the complainant was discriminated against by reviewing the evidence. Therefore, the Agency counsel is often the best and only person able to advise on the basis for the settlement. Even if impropriety by a CSE, promotable COL, or GO named as an RMO is contemplated, disciplinary and/or corrective action against the RMO(s) cannot be included as a term of either the NSA or the adjudication of the complaint.22 While a recommendation may be made to pursue it, these types of recommendations are not standard clauses in an NSA nor required by administrative procedures.23

When a subsequent adverse screening requests information for a GO, promotable COL, or CSE (i.e., RMOs), in these instances when there is an NSA, there are no findings. Therefore, DoDI 1320.04 instructs the Army to request a labor counselor to provide an opinion of the RMO’s culpability.24 In some cases, the labor counselor is no longer with the Army. Therefore, when trying to go back to find out additional information from the labor counselor, there is no labor counselor with the requisite information. The Army is left holding an NSA with no evidence for review and no opinion to rely upon. An example NSA typically includes this language:

By entering into this Settlement Agreement, the Agency does not admit that it, or any Agency official or employee, has violated Title VII of the Civil Rights Act of 1964, as amended; the Rehabilitation Act of 1973, as amended; the Age Discrimination in Employment Act, as amended; the Equal Pay Act, or any other federal or state statute or regulation.25

The DAIG uses this typical clause as the basis to close the case, reporting to the Department of Defense Inspector General (DoDIG) that the matter, as it relates to the GO or SES, is resolved.

The DAIG Closes the Case, and a Skeleton Is Buried

If the allegation was reported, e.g., through the EEO Director, to the DAIG upon formal complaint filing, the regulation requires the DAIG to determine how best to adjudicate “each complaint, issue, and allegation.”26 With EEO complaints, the DAIG opens a case that monitors the complaint believing all allegations are investigated. In the past, they did not typically open up their own investigation. The EEO Director notifies the DAIG that the complaint was settled, and they report the settlement disposition to the DoDIG as closed.27 Additionally, when there is notification of no findings of discrimination from EEOCCR or the administrative judge, the DAIG closes the case without further investigation, and the DoDIG is none the wiser.28

The Way Ahead—Agency Representatives, EEO, and EO Personnel Must Report to the DAIG

There are several pitfalls identified with the EEO process as it relates the search for skeletons. As discussed, the process focuses not on allegations of impropriety, but on providing relief to the complainant, rather than pursuing action against the RMO. Additionally, allegations raised through the complaint process may not be reported to the DAIG. If reported, as required, they are unaddressed because the DAIG deferred the responsibility to investigate to EEO and EO, not realizing the ancillary allegations of impropriety will almost certainly not be investigated. It is the intent of the Deputy Assistant of the Secretary of the Army (Equity and Inclusion) to promulgate a draft Army Directive (AD) for the Secretary of the Army’s consideration.

While an AD is forthcoming to address this pitfall; in the interim, this article suggests useful methods to bridge the gap, requesting the field to assist by identifying the types of cases discussed above and making a prompt referral to the DAIG. Therefore, referral to the DAIG should happen upon formal complaint filing and NSA which will assist in ensuring we investigate these ancillary allegations of improprieties and provide prompt notification to the DoDIG of the report of the investigation, as required.29 Also, for reasons mentioned above, initiating an AR 15-6 administrative investigation for the population of RMOs not classified as senior leaders is prudent. As we move forward, it is wise to recommend the initiation of an AR 15-6 investigation for both populations of RMOs to ensure all issues are addressed and that commands comply with reporting requirements.30

Mr. Michael Lacey, Deputy General Counsel of Operations and Personnel, states, “when we investigate these allegations earlier, rather than later, we assist in providing evidence, holding the leader accountable, or validating them for their appropriate conduct.”31 Reporting and addressing the underlying allegations of misconduct with referral of investigation through DAIG assists the Army in maintaining order and discipline by ensuring accountability and preventing recurrence. On 25 May 2018, reemphasizing the importance of accountability, Executive Order 13839 mandates that we are “holding federal employees accountable for performance and conduct.”32 Revealing and investigating the skeletons in the EEO and EO complaints gives credence to the EEO and EO process while reducing the Army’s risk of selecting inappropriate candidates for positions, promotions, and/or awards.

 


LTC Timbrook is an attorney advisor for the Office of the General Counsel in Washington, D.C., and serves as an adjunct professor within the Administrative Law Department at The Judge Advocate General Legal Center and School in Charlottesville, Virginia.



Notes

1. Army Civilian senior executives (CSEs) include Senior Executive Service (SES), Scientific and Professional, Senior Level, Defense Intelligence Senior Executive Service, Senior Intelligence Professional and Highly Qualified Experts. 5 U.S.C. § 3392 (2019).

2. U.S. Dep’t of Def., Instr. 1320.04, Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation encl. 4 (3 Jan. 2019) [hereinafter DoDI 1320.04].

3. See Memorandum from Sec’y of Army to Principal Officials of HQDA et al., subject: Executive and Senior Professionals (ESPs)—Allegations of Misconduct and/or Unsatisfactory Performance (13 April 2011).

4. DoDI 1320.04, supra note 2, encl. 4.

5. Id. encl. 4, para. 1b.

6. See U.S. Const. art. 1, § 8 (giving Congress the powers to “raise and support armies”); see also U.S. Const. art. 2, § 2 (giving the President the “power, by and with the advice of Senate, to . . . appoint . . . officers of the United States”).

7. See Act of July 22, 1790; see also U.S. Dep’t of Def., Dir. 5124.02, Under Secretary of Defense for Personnel and Readiness para. 4.1 (giving the Under Secretary of Defense (Personnel and Readiness) the responsibility to act as advisor to the Secretary of Defense for Total Force Management to “develop policies, plans, and programs” for DoD Components).

8. DoDI 1320.04, supra note 2, encl. 4.

9. A report is made in the following forums: (1) Equal Employment Opportunity (EEO) complaint; (2) EO complaint (3) Labor and Management-Employee Relations (LMER); (4) Department of Army Inspectors General (DAIG); (5) Commander/Supervisor; (6) the Administrative Grievance System; (7) Criminal Investigations Command (CID); and (8) the Office of Special Counsel (OSC).

10. See 5 U.S.C. § 2302 (2019).

11. “Destructive leadership styles can compromise organizational effectiveness and discourage subordinates from continuing their Army service. In a variety of ways, they undermine mutual trust and impede mission accomplishment. In senior leaders, destructive styles are particularly damaging . . . .” U.S. Dep’t of Army, Reg. 600-100, Army Profession and Leadership Policy para. 1-11e (5 Apr. 17); see also U.S. Dep’t of Army, Doctrine Pub. 6-22, Army Leadership and The Profession (31 July 19).

12. See 29 C.F.R. § 1614.104 (2019); U.S. Dep’t of Army, Reg. 690-600, Equal Employment Opportunity Discrimination Complaints para. 3-3(b) (9 Feb. 2004) [hereinafter AR 690-600].

13. AR 690-600, supra note 12, para. 3-3.

14. Id.

15. U.S. Dep’t of Army, Reg. 20-1, Inspector General Activities and Procedures para. 8-3(i) (29 Nov. 2010) (RAR 3 July 2012) [hereinafter AR 20-1].

16. Id.; U.S. Dep’t of Def., Dir. 5505.16, Investigations by DoD Components (23 June 2017) [hereinafter DoD Dir. 5505.16].

17. See 29 C.F.R. 1614 (2019); U.S. Dep’t of Def., Def. Civilian Personnel Advisory Serv., Fact-Finding Conferences in Complaint Investigations: Participant’s Guide (May 2015), https://www.dcpas.osd.mil/content/documents/FFCGuide.pdf; U.S. Dep’t of Def., Instr. 1400.25, DoD Civilian Personnel Management System: investigation of Equal Employment Opportunity (EEO) Complaints vol. 1614 (5 Nov. 2015).

18. 29 C.F.R. § 1614.105 (2019); Investigative Methods, Def. Civilian Personnel Advisory Serv., https://www.dcpas.osd.mil/IRD/InvestigativeMethods/ (last visited Jan. 29, 2020).

19. See AR 690-600, supra note 12, para. 3-3(b).

20. Supra note 17.

21. AR 690-600, supra note 12.

22. See 29 C.F.R. § 1614 (2015), U.S. Equal Emp’t Opportunity Comm’n, Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), (Aug. 5, 2015), https://www.eeoc.gov/federal/directives/md110.cfm.

23. 29 C.F.R. § 1614.504 (2019).

24. See 29 C.F.R. § 1614.603 (2019).

25. DoDI 1320.04, supra note 2, encl. 4, para 1(b)(2).

26. AR 20-1, supra note 15, para 8-3.

27. DoD Dir. 5505.16, supra note 16, para 3(b).

28. Id. encl. 2, para 2.

29. Id. encl. 2, para 2(c-e).

30. See Exec. Order No. 13839, 83 Fed. Reg. 25,343 (May 25, 2018); U.S. Dep’t of Def., Instr. 1020.03 Harassment Prevention and Response in the Army Forces (8 Feb. 2018).

31. Interview with Michael Lacey, Deputy of Operations and Personnel, Office of General Counsel, in Arlington, VA. (Nov. 31, 2019).

32. Supra note 30.