Establishing the Official Case Record
We previously covered the EEO Complaint process, which can be very confusing to the uninitiated. However, to recap in context, the Report of Investigation (ROI) follows the filing of a formal Complaint and is a significant component in the EEO complaint process. Once the formal complaint is filed, an agency has 180 days to complete the investigation. It may use either its own resources or a contractor for this purpose. Parties may agree to an extension not to exceed ninety days. An agency may unilaterally extend this period up to 30 days if the file must be redacted for national security reasons. When completed, complainants have a right to request an administrative hearing. If the investigation is delayed more than 180 days, the agency must notify the complainant of the right to request a hearing.
EEOC Directive MD-110 predominantly identifies the purpose of an investigation as:
- Gather facts upon which a reasonable fact finder may draw conclusions as to whether an agency violated EEO statutes.
- To establish sufficient basis to determine an appropriate remedy.
The importance of a quality ROI product cannot be overstated. The ROI will be heavily relied upon by agency attorneys to determine if settlement is appropriate. EEOC judges will rely on the ROI as the official record of the case in arriving at their decision. Accordingly, Complainant’s must take an active and aggressive role in the process compared to the historically passive role most practice in such a situation.
Asserting influence over the ROI as a Complainant
While we strongly advocate consulting an expert to assist you in dealing with EEO counselors, agency representatives, and agency investigators, there are specific basic things a complainant can do to exert influence over the ROI to assist in proving their complaint and positioning for settlement. (However, efforts in this regard are wasted if the complainant failed to establish and control their EEO claims and basis during the informal stage).
- Be active in dealing with the investigator
- Always return calls and e-mails promptly
- Always answer truthfully. If you do not know the answer, don’t give an answer
- Always maintain clarity of thought, especially when providing sworn testimony
- Prepare witness and document lists for investigator
- Ensure what you provide is specifically relevant
- Include phone numbers, location where documents can be found and format, etc..
- Identify relationships of witnesses to the complaint
- Do not include extraneous information
- Stay organized
- Maintain copies of all relevant documents and lists
- Keep everything in a binder
- Tab sections within the binder
- Keep detailed notes concerning contact with any EEO officials
- Be patient
- Complainant’s have very little, if any, control over the speed of an investigation; just watch your timelines.
It is important for complainants to realize ROI’s serve dual a purpose in our professional opinion. The primary purpose of course is to establish an official and sufficient record for the EEOC judge to render a decision. However, the other purpose in our specific experience is to establish a basis for settlement for authorized agency officials to consider; typically agency attorneys are assigned to an EEO case post-acknowledgement order.
This post is not intended to serve as a complete explanation concerning ROI’s and the application of this investigative product on an EEO complaint. It is intended to only be a cursory introduction to the issue.