Privacy Among Federal Employees: Who Has More Rights?

What happens to information in agency case files when an agency employee with access to those files pursues his own complaint? Can the employee in the human resources or EEO office use those files to his own advantage? In a complex case, the MSPB upholds a 30-day suspension of a federal employee who had access to private information and who also had his own axe to grind.

When an agency suspends a federal employee who is working as a labor relations specialist and with a responsibility for various EEO duties, it could probably anticipate a legal fight with unique arguments and circumstances. If that is the case, the Federal Aviation Administration was not disappointed.

What happens to information from cases pursued by other federal employees? Someone in the agency has to review and analyze private information and the agency has filed with confidential information. What are restrictions on an employee who has routine access to information from other case files? Can a federal employee use private information from other cases in support of his own?

In this instance, the FAA suspended Marcus Smith. Smith had at one time had collateral duties as an EEO investigator. More recently, he was responsible for the labor relations program, employee relations, most of the EEO program, all third-party investigations and hearings, and working closely with EEO and the General Counsel’s Office on EEO matters.

Smith applied for a job as a supervisor but was not selected. When he was not selected for the promotion, he filed an EEO complaint.

While the agency was investigating Smith’s EEO complaint, it became apparent that information in a confidential file had been compromised. In effect, the person selected for the supervisor’s job over Smith had filed a previous EEO complaint with the agency when he was in another position. He was concerned because confidential information in the earlier complaint had apparently been obtained by Smith and used to justify the arguments as he pursued his own personal issues.

The agency then took disciplinary action against Smith and suspended him for thirty days based on four charges including unauthorized use of official government information.

The MSPB concluded that Smith had used official government information regarding the details of a proposed removal action against another FAA employee. The agency alleged that the appellant did not obtain this information through the proper channels and was not authorized to use the information to further his EEO complaint. The Board concluded that the appellant’s disclosure of confidential information regarding the removal of another FAA employee was not protected activity.

The Board stated that an agency has a strong interest in ensuring that information regarding proposed disciplinary actions remains confidential and ensuring that it is able to trust that employees who have access to such information will handle it properly. Moreover, the decision concluded that Smith had used the information as part of a campaign to get the agency to fire the person who was selected instead of Smith for the supervisory job.

The Board also upheld a charge of "Unauthorized use of government documents obtained through government employment" as a result of Smith having used a letter he found in his supervisor’s office to further his own EEO complaint. The letter was a negative letter chastising the supervisor for poor performance. Smith made a copy and replaced the original letter. The Board concluded that the use of the letter was not protected activity when the letter was improperly obtained.

One other charge against Smith was also upheld by the Board and one was rejected.

It concluded that federal employees who file complaints or grievances need to be sure that private information given to the agency during the process will remain private. The Board also concluded that allowing another employee to use private employee information from an agency’s files and potentially used by other federal employees with access to the information for their own purposes was not acceptable.

The MSPB found that the 30-day suspension was appropriate in the circumstances of the case.

But the case does not end there. As seems to occur with some regularity with the current Board, there were various opinions about the decision. MSPB Chairman Neil McPhie stated in a concurring opinion that: "According to the dissent, the appellant cannot be disciplined for using confidential personnel records to which he had access as part of his official duties in furtherance of his own EEO complaint."

He obviously has a strong opinion on the issue and concludes: "…[N]othing in the rules governing federal-sector EEO complaints, indicates that an employee who works in the human resources field should have an advantage when he files his own EEO complaint because he has access to the confidential personnel records of other employees."

Board Member Barbara Sapin does not agree. In a lengthy dissent, she concludes that "Although the appellant submitted the documents in support of his personal EEO complaint, the EEO process and allegations of discrimination in the work place are not private concerns; rather, they are, like whistleblower complaints and other prohibited personnel practices, matters of public concern." She would have preferred that the Board find that the appellant in this case was engaging in protected activity when he used information from other files to which he had access in his capacity as a federal employee.

The case decision is a long and complex.  You can download Smith v. Department of Transportation, 2007 MSPB 142 (June 5, 2007) and reach your own conclusions.

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