What Would Your Co-Workers Say About You To An Investigator?

If an employee believes an action against him was a prohibited personnel practice, what remedies are available? Here is a case that shows some of the limits on appeal rights.

Recently, we published an article about the multiplicity of appeals available to federal employees. In most instances, having a wide variety of appeals procedures is an advantage–at least to the person who wants to contest an agency’s action.

Here is a new twist. Having access to the appeal procesures of the Civil Service Reform Act can work against a federal employee. Here is one of these cases.

Many federal employees are familiar with background investigations either because they have been investigated as a prerequisite to a federal job or have been interviewed by an investigator checking out a co-worker.

The investigations can be uncomfortable, even if they go well. Some of your neighbors may be approached by an investigator and asked questions about your lifestyle and behavior. Your colleagues or former co-workers may be approached as the investigators work to uncover anything in your personal history that may be relevant to the purpose of the investigation.

Here is one federal employee who was not happy with the outcome of such an investigation. And, in America’s litigation-prone society, the chain of events probably didn’t go over well with some of the other people who were involved.

Ronald Mathesian applied for a job as a supervisory auditor with the Department of the Treasury. He was already a federal employee working in the Department of Justice.

His application for the new job was successful and he was selected for the new position with the Treasury Department but subject to the successful completion of a background investigation.

The Treasury Department subsequently withdrew the job offer. Mathesian filed a lawsuit against the investigator and a former co-worker who was apparently critical of Mathesian in her comments to the investigator.

The claim against Benny Lee, the investigator, was that he interfered with Mathesian’s employment interests and invaded Mathesian’s privacy. Mathesian contended that the investigator revealed the contents of the investigation to other people who worked for the Treasury Department and those outside Treasury as well.

His claim against Mathesian’s former co-worker, Helen Wong, was that she allegedly slandered and defamed him in her statements.

The Federal Government took the position that Benny Lee and Helen Wong were doing a job they were supposed to be doing as federal employees. The case proceeded to the Ninth Circuit Court of Appeals.

Mathesian contended that the actions of Lee and Wong engaged in conduct that was harmful to his interests. The court viewed the issue as whether their actions were "prohibited personnel practices" with the Civil Service Reform Act (CSRA). And, if the actions were within the scope of the CSRA, the only remedy available to a federal employee is the administrative procedures of that law.

A prohibited personnel practice is a personnel action that is taken for an improper motive.

The court concluded that the investigator was working under the scope of the CSRA when collecting information about a potential new employee. And, if the actions taken by the investigator were not proper, it would be a prohibited personnel practice within the scope of the CSRA.

Likewise, when Helen Wong made statements about a potential new employee to an investigator, she was also under the scope of the CSRA. She had the authority to make statements about a person applying for a job. And, if her statements were made based on an improper motive, that would also be a prohibited personnel practice within the scope of the Civil Service Reform Act.

As far as the court was concerned, that was enough information to dismiss the case. Since the person filing the complaint was a federal employee who believed other federal employees improperly took harmful action against him, any complaint is limited to the procedures under the Civil Service Reform Act. Mathesian v. Lee, 04-15903 and Mathesian v. Wong, 04-15094, 9th Circuit Court of Appeals (May 10, 2005)

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47