EEO Report of Investigation

Establishing the Official Case Record Through the EEO Report of Investigation (ROI)

We previously covered the EEO Complaint process, which can be very confusing to the uninitiated.  We also previously covered various aspects of the ROI in other articles. The ROI is important enough to be covered multiple times and in different contexts. However, to recap, the EEO 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 calendar 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 calendar days. An agency may unilaterally extend this period up to 30 calendar days if, for example, the investigative 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 an immediate 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 EEO Report of Investigation product cannot be overstated.  The ROI will be heavily relied upon by agency attorneys to determine if settlement is appropriate.  The ROI is a form of discovery, that if done comprehensively, wll reduce the need for pre-hearing discovery which can be both tedious and expensive. EEOC judges will rely on the ROI as the official record of the case, possibly supplemented by discovery, 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.

Influencing the EEO Report of Investigation

While we strongly advocate consulting an expert to assist you in dealing with EEO counselors, agency representatives, and 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 or clearly labeled in an compute file folder.

  • Tab sections within the binder or sub-divide the folders as to topic.

  • 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.

  • If an investigator requests additional time (an extension) to complete the investigation, it is usually a good idea to agree.

    • Under 29 C.F.R. § 1614.108(e), the agency is required to complete the investigation and provide you with a copy of the ROI within 180 calendar days from the date you filed your formal complaint. HOWEVER, there may be valid reasons for an investigation requiring an extension.

    • Once the 180 calendar day time limit expires, employees generally have the righjt to immediately request a hearing, and, in certain instances, seek sanctions. However, we do not recommend this option under typical circumstances.

It is important for complainants to realize ROI's serve a dual purpose.  The primary purpose of course is to establish an official and sufficient record for the EEOC judge to render a decision (typically supplemented through discovery). 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 when the EEOC issues an acknowledgement order.

This post is not intended to serve as a complete explanation concerning ROI's and the application of this investigative product in an EEO complaint.  It is intended to only be a cursory introduction to the topic. Click here to read a previous article we published concerning the EEO ROI.

How InformedFED Can Help

While the EEO process is designed to be accessible but is fundamentally an adversarial system. Federal agencies employ full-time employee and labor relations specialists and attorneys whose primary goal is to ensure your complaint is dismissed at the earliest possible stage.

At InformedFED, we leverage over 35 years of experience in federal employment issues including matters involving the EEOC, MSPB, FLRA, arbitration, and negotiated and agency grievances.

Here are some ways we assist federal employees during the EEO investigative stage (not all inclusive):

• Leading the Investigator: We advise you on how to interact with your investigator, assist you with sworn affidavits and rebuttals, identify witnesses to be interviewed, prepare evidence lists, advise you on how to compel the investigator to pursue evidence, and identify HR processes and procedures that should be reviewed by the investigator among many other things.

• Interview Preparation: The investigative interview (or the submission of a sworn affidavit) is a critical moment for the complainant. We help employees frame their "theory of the case" so that the investigator focuses on the most relevant facts. We also conduct interview coaching to prepare employees for the types of questions an investigator will ask, ensuring they provide specific details (dates, times, locations) rather than generalizations.

• Monitoring Investigative Integrity: If the investigator refuses to interview key witnesses or request relevant documents, InformedFED can create a formal objection for you to enter into the record.

• ROI Analysis: InformedFED offer a specific flat rate service to conduct an analysis of the ROI product and provide employees actionable recommendations in plain terms.

Don’t face the agency alone. Whether you are under investigation, facing a suspension, or dealing with a hostile work environment, we translate complex federal law, regulation, and procedure into an actionable plan for your career. Book a free consultation now.