Ask The Lawyer

By Debra Roth

Admit the misconduct

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Sounds like easy advice, right? When confronted by an agency investigator regarding your conduct, the natural tendency however, is to deflect, divert, downplay or deny. But doing so, almost always, will result in a more severe penalty than if you simply admitted to the conduct — in its truest and most complete form.

Why is that? Because back in 1998, a unanimous U.S. Supreme Court decided that a federal agency may discipline an employee who lies or lacks candor to the agency regarding alleged employment-related misconduct, including falsely denying the offense, such that the agency can discipline the employee not only for the underlying act of misconduct, but also for the lie or lack of candor. It’s the latter (the lie) that almost always results in a more severe penalty than if the employee simply admitted the underlying wrongdoing.

The case is Lachance v. Erickson, 118 S.Ct. 753 (1998). Until the Supreme Court ruled, there was litigation at the Merit Systems Protection Board (MSPB) and its appellate review court, the U.S. Court of Appeals for the Federal Circuit, on the issue of whether a federal employee could be disciplined for making a false denial to investigators of alleged misconduct: “I didn’t do it.”

For many legal observers, there was surprise when the court of appeals held that federal employees could not be disciplined for falsely denying (“I didn’t do it”) an act of misconduct. The issue was so important that the White House’s Office of Personnel and Management exercised its right to appeal that decision to the Supreme Court and obtained a reversal.

While the MSPB and the court of appeals had always held that an employee could be disciplined for making statements to investigators in which he or she provided false facts, that situation was distinguished from the simple false denial of the offense: “I didn’t do it.” With the decision in the Erickson case, it became clear that even when an employee simply, but falsely, states “I didn’t do it,” without stating additional false facts to support the denial, he or she could be disciplined for making a false statement when falsely denying the offense.

And so with the Erickson decision, the culture of the federal workplace went through a sea change. Federal agencies rolled up their sleeves and began charging employees with false statements, lying, or lack of candor whenever there was evidence to support such a charge. And for the most part, employees have been slow to catch up, even though everyone knows that lying will get them in trouble.

Big trouble. In most law enforcement agencies, your first offense of lying or lack of candor in an investigation into your alleged misconduct is a firing offense regardless of your lengthy and impeccable service record. That is because the MSPB and court of appeals have held over and over again that candor to your federal employer is at the heart of the employer-employee relationship, and the honesty and integrity of its employees is essential to attaining the confidence of the citizens that agencies serve.

From years of practicing law defending federal employees under all types of investigations, there is a single explanation for why a person, when confronted by a misdeed, will deflect, divert, downplay or deny — human nature. Just try questioning your third-grade son or daughter on one of their misdeeds, and you’ll see human nature at work.

Unfortunately, the OIG community isn’t that patient in ferreting through our human tendencies, and it takes great offense to attempts to deflect, divert, downplay or deny. That is why I preach that if you know you’ve made a mistake or done something wrong (intentional or unintentional), it is in your interest to be prepared to tell your entire story, with all of its gruesome details, when called into an interview. Not only will it make your interview a lot less painful, you will reduce your exposure to a charge of false statement or lack of candor.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federal times.com and view her blog at blogs.federaltimes.com/federal-law.

 

Q & A Session: Listing Reason for Discrimination in EEO Claim

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Q:

Does a discrimination claim need to list a reason for alleged discrimination?

A:

Yes, an EEO discrimination claim must list a basis for the alleged discrimination in a complaint of discrimination. The laws enforced by the EEOC (such as Title VII of the Civil Rights Act of 1964 (Title VII), Age Discrimination in Employment Act of 1967 (ADEA), Rehabilitation Act of 1973) make it illegal to discriminate against someone on the basis of race, color, religion, national origin, sex, age or disability. It is also illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Thus, in order to win a claim of discrimination, a complainant must prove the reason for the alleged act of discrimination was because of a protected basis or because of retaliation for a protected activity and not because the alleged discriminating person just does not like the complainant.

This response is written by Maria N. Coleman, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Obtaining a Security Clearance—It’s All in the Details

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Q:

I have maintained my security clearance for over 10 years. I was recently hired for a position which required a Top Secret/SCI clearance. About five years ago, I had some back pain while visiting a friend’s home. I was offered a pain reliever and I took it. I found out afterwards that the pain reliever was prescription. This only happened one time. When asked on my SF-86 clearance form if I had ever taken prescription medicine without a prescription, I was unsure of how to answer, so I said no. I disclosed what happened in my interview, though. There are no other issues in question. Do I have a chance to obtain a clearance still?

A:

You do still have a chance to obtain a clearance, but how good that chance is depends on the details. If the facts are as innocuous as you describe, then I do not believe that the one-time inadvertent consumption of the prescription medicine will be an issue. What could be an issue is your inaccurate reply on the SF-86 form. Your failure to provide a truthful and candid answer to that question may result in an unfavorable clearance decision.

Disqualifying conditions may include the deliberate omission, concealment or falsification of relevant facts on the SF-86. An applicant could mitigate security concerns by making a prompt, good faith effort to correct the SF-86 before being confronted with the facts. Therefore, if you were confused or unsure how to respond to the question, and you were immediately candid with the interview, the security concerns may be mitigated and you could be granted a clearance.

This response is written by Michael S. Causey, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Including Prior Acts of Harassment in EEO Complaint Alleging Hostile Work Environment

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Q:

Can I include prior acts of harassment in my EEO complaint alleging a hostile work environment?

A:

According to 29 CFR § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the EEO counselor within 45 days of the date of the matter alleged to be discriminatory, or with respect to personnel actions, within 45 days of the action ‘s effective date.

The U.S. Supreme Court has held that an individual alleging a hostile work environment will not be time-barred if all acts constituting the claim are part of the same unlawful practice, and at least one act falls within the filing period.  See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).  In other words, you may use events that occurred more than forty-five (45) calendar days prior to your initiation of the EEO process to prove your hostile work environment claim, so long as your claim is timely (i.e. the days between the latest discriminatory event and your contact with the EEO office is within a 45 day period).

However, if you prevail on your hostile work environment claim, you are only entitled to legal relief for the specific acts that occurred within forty-five calendar days of your initiation of the EEO process.  For example, if an employee is not selected for a competed promotion in three consecutive years, and then that employee files a timely hostile work environment claim within forty-five (45) calendar days of the third non-selection, the employee may use the first two non-selections to prove his/her hostile work environment claim, but the employee, if he/she prevails, would only be entitled to a legal remedy for the third non-selection which occurred within forty-five calendar days of the date he/she initiated the EEO process.

This response is written by Christopher J. Keeven, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Records-Amendment Request with a VA Hospital

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Q:

About 3 months ago, I filed a records-amendment request with a VA hospital, asking them to remove certain information. Under the federal statute, the hospital was required within a certain number of days to acknowledge in writing its receipt of my request and either make the requested corrections or explain its refusal to do so and permit and permit administrative review of the refusal. The hospital’s response was grossly out of the required time frame.  Do I have cause of action for statutory damages?

A:

You may have a cause of action for any agency’s failure to timely respond to a request per the Privacy Act to amend records, and for an agency’s denial of your request to amend a record pertaining to you. The Privacy Act affords the right to file a civil action in U.S. district court including but not limited to the following circumstances:  an agency declines an individual’s request to amend a record about that individual that is contained within a system of records see 5 U.S.C. § 552a(g)(1)(A), and an agency fails to comply with any provision of the Privacy Act.  See 5 U.S.C. § 552a(g)(1)(D).

If you prevail on your claim that the agency improperly declined your request to amend a record pertaining to you, contained within a system of records, the court may order the agency to amend the record and award attorney’s fees and costs.  See 5 U.S.C. § 552a(g)(2).  If you prevail on your claim that the agency violated provisions of the Privacy Act by failing to timely respond to your request to amend a record pertaining to you that is contained within a system of records, you must also prove that the agency “acted in a manner which was intentional or willful.”   See 5 U.S.C. § 552a(g)(4).  If the court determines that the agency’s failure to timely respond to your request to amend a record was “intentional or willful,” then you will be entitled to an award of damages “equal to the sum of actual damages sustained” by you, which will require you to prove how you were harmed or damaged by the agency’s intentional or willful untimely response, and an award of attorney’s fees and cost.

This response is written by Christopher J. Keeven, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.