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NEWS AND CASE ALERT
November 7th, 2022 | Issue #14-10
TABLE OF CONTENTS
WORKPLACE SLURS: SEVENTH CIRCUIT’S VIEWS
INTERFERENCE BY COUNSEL IN THE
EEO INVESTIGATIVE PROCESS
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WORKPLACE SLURS: SEVENTH CIRCUIT’S VIEWS
Some federal workplaces have strict codes that specifically prohibit offensive speech, imagery, or gestures. Other agencies prohibit harassment, with broad definitions of the prohibited conduct. The Supreme Court says that Title VII is not a civility code. People make all sorts of crude, rude, gross, and offensive comments in the workplace. The EEOC finds that sexually or racially derogatory comments, as well as those directed to disabilities, create agency liability when they are severe or pervasive, with an effect upon a complainant, and go without correction by management once management is on constructive or actual knowledge of the comments.

Enters the Seventh Circuit. Elaine Scaife, a female African-American HR specialist worked on job classification matters, earning outstanding reviews,

A unit supervisor, apparently unhappy with Scaife’s refusal to regrade the position of a unit employee, referred to Scaife in racially disparaging terms. Scaife learned of the comments from a co-worker, and Scaife reported the derogatory statement to higher management.

Affirming summary judgment entered by a district court, although the Seventh Circuit roundly condemned the derogatory comment by a facility manager, the comment did not rise to the level of severe or pervasive because:
  1. Remarks stated directly to a plaintiff “weigh heavier” than when a plaintiff hears them secondhand. Though relevant, “second-hand harassment” is not as great as the impact of the harassment directed at the plaintiff herself.
  2. The history of racial insensitivity of the supervisor who made the comment did “very little to bolster the race-based hostile work environment claim Scaife raised.
  3. The supervisor who made the comment was not a direct supervisor of Scaife and had no direct supervisory control over her.
There were other elements of the case—gender-based hostile environment; reprisal; constructive discharge; and combinations of claims—but none survived the summary judgment entered by the district court. Of particular interest for our review was the court’s assessment of what it styled “second-hand harassment.” EEOC might well come to a different result based on its case law.

Scaife v. VA, No. 21-1152 (7th Cir. Sept. 27, 2022)
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INTERFERENCE BY COUNSEL IN THE
EEO INVESTIGATIVE PROCESS
The Commission has waxed and waned in its guidance to agency counsel concerning the degree to which they may be involved in the EEO investigative process without interfering with an impartial investigation. The Commission allows a reasonable degree of involvement, but leaves specific determinations to individual cases.
Sanctionable was the conduct of counsel, as described in the Commission decision:
In late May 2016, B1 learned of Complainant's pending EEO case. B1 [agency counsel] later contacted A1 [a manager and a witness] and according to A1 stated that she would "kill him" if he did not "tow the management line" during the investigation. A1 stated that B1 used that expression "no less than 4 times" during the discussion. B1 denied ever threatening A1 with bodily harm. A1 stated that B1 did "not know [him] well enough to 'kid me' in this way." A1 did not share his responses to the investigator with B1, and he reported the conversation to Complainant.

In a subsequent June 22, 2016, email, B1 asked A1 to:
Please get busy drafting your responses which I'll be happy to review and provide red-line comments as appropriate. Remember our end state goal is to get a robust, comprehensive investigative report that fully tells our side of the story through the witnesses' sworn declarations. My advice is that you emphasize in your responses the fact that [Complainant] was by no means the only person reassigned during this .... realignment.
. . .
Citing precedent finding that the Commission has treated such conduct not as an independently actionable claim by a complainant, but as sanctionable conduct for interfering with the EEO process, the AJ found that B1's conduct during the EEO investigation warranted a sanction. Specifically, the AJ found that B1's actions:
[c]onstituted improper interference in the EEO process. [B1's] communications to [A1] were wholly improper, directing him to emphasize certain parts of his testimony over others, being dismissive of some of Complainant's complaints, and otherwise attempting to manufacture testimony. Further, there is no dispute [B1] attempted to speak with [A1] repeatedly concerning his affidavit and to get him to make changes which he did not agree with. Finally, as noted above, a review of the Agency's privilege log indicates [B1] spoke with relevant management officials both prior to and during their interactions with the EEO investigator.
As a sanction, the AJ ordered training for the Agency's Office of General Counsel, Labor and Employment Law Division, focusing on the appropriate manner and methods that Agency representatives may use in assisting Agency managers during an EEO complaint's investigative stage, and on the issue of sanctions for improper interference during the EEO investigative process.
EEOC directed training as a remedy.

Where does this leave us? We hearken to Annalee D. v. GSA, 2019000778 (2019): “MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office.” Counsel there assisted managers with investigative statements or interview. In Kylee C. v. Secretary of Army, 2020001154 (2021), agency counsel permissibly participated in a fact-finding conference by naming possible witnesses, submitting documents, asking and objecting to questions, and commenting on testimony. The key seems to be restraint by counsel: assist, but do not direct, witnesses and the investigative process.

Wade K. V. DHS, EEOC 2021002290 (Sept. 6, 2022)
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