“Representing Federal Employees in Discrimination Cases” Part 4 – The Investigation
The following excerpt is part of a series on “Representing Federal Employees in Discrimination Cases” by James Weliky. Click here for more information.
Upon receipt of the complaint, the agency must provide the employee with an acknowledgment of receipt, and must summarize the issues to be investigated. This is a key step in the process, because the summary forms the basis for the investigation and all subsequent stages of the EEO procedure. If the summary does not accurately reflect the employee’s claims, and the employee fails to act, the employee runs the risk of waiving those claims. The best recourse is to call the local Agency EEO office in order to obtain a revision of the summary. If that is unsuccessful, appeal can usually be made to the main EEO office for the agency, usually based in Washington, D.C. Depending on the agency, this is a more or less informal process of negotiation and correspondence.[1]
This is also the stage where the agency decides whether it will dismiss the complaint because the preceding deadlines were not met or for some other reason specified in the regulations (other typical examples can be failure to state an EEO claim, claims that an action taken preliminary to a personnel action is discriminatory unless it is alleged as part of a pattern of harassment, or the employee’s selection of an alternative forum). See 29 C.F.R. §1614.107. Dismissals must be appealed to the OFO within thirty days of notice of the dismissal. Typically the appeal consists of briefing by the parties and can actually result (eventually) in a reversal of the dismissal. Investigation of that portion of the complaint that has been dismissed is stayed during the appeal.
The agency has 180 days in which to complete its investigation, unless the parties agree to extend the deadline for not more than 90 days. However, the investigation can extend far beyond the 270 days provided for, although this seems to be increasingly rare. Nevertheless, allowing (or forcefully encouraging, as is usually required) the agency to continue the investigation can often prove to be useful, in that the investigation can be a fruitful source of evidence for later stages in the process or for court. If the employee loses patience, however, she has an absolute right to request a hearing before an administrative judge (AJ) after 180 days have passed from the filing of the complaint. If the judge, upon review of the file, determines that the agency has failed to timely complete the investigation or has failed to cooperate with the investigation, the judge can (among other remedies) order that the investigation be completed, and can even order that the complainant’s attorney complete the investigation at the agency’s expense.
The purpose of the investigation is to develop a factual record sufficient to support a determination of a violation of the discrimination statutes and to fashion a remedy, and requires the appointment of an investigator to do so. The investigator is empowered to take testimony under oath, and the regulations require agencies to make witnesses available for testimony and to respond to requests for documentary evidence (sanctions for non-compliance include adverse inferences, exclusion of evidence, decisions in the employee’s favor).
Investigators may be agency employees, employees of other agencies, or retired agency employees. Agencies sometimes outsource their investigations to private firms or individuals who specialize in EEO investigations.
The manner of investigation varies depending on the investigator and the agency. Investigations can be superficial and desultory, or they can be quite exhaustive, entailing numerous “depositions” of witnesses, supervisors and complainant, requests for affidavits, fact finding conferences, and requests for documents. Witnesses are entitled to travel expenses and are on official duty status during interviews. The rules of evidence do not apply.
Upon completion of the file, the investigator must compile an investigative file and report, and must provide the same to the employee. The file must contain all of the correspondence and documentary or other evidence developed during the investigation.[2] The report must summarize the issues and the evidence supporting both perspectives in the dispute. While some some agencies or investigators stated a conclusion at the end of the investigation, this is no longer permitted.
_______________________________
[1] Although this firm has never had to test this theory, the agency’s failure to correct its initial characterization of the complaint could perhaps be considered a partial dismissal of the omitted portion of the employee’s claim and appealed accordingly as discussed in the following paragraph.
[2] One of our investigations, although taking well over a year to complete (after repeated urging and cajoling from us), generated 15 depositions of responsible management officials and witnesses, numerous pages of useful documentary evidence. This record, together with the supplemental record developed during the subsequent pre-hearing discovery process, drastically reduced the need for formal discovery once court litigation of this case began.