Federal Employee EEO Investigations
Many federal employees ask our firm about the Equal Employment Opportunity (EEO) investigation process after they file a formal EEO complaint. We represent federal employees in EEO complaints and the federal EEO investigation process. The federal employee EEO investigation process has a number of steps. This article discusses what to expect during the federal employee EEO investigation process. It is important to have a federal employment lawyer represent you in the EEO process.
The Investigation Begins After the Formal Complaint is Filed
After a formal complaint of discrimination is filed with your Agency’s EEO office, the investigation will begin. It is very important to submit the formal EEO complaint in a timely manner, or the Agency can dismiss it. The deadline is usually 15 days. Once the formal complaint has been submitted, the Agency will confirm with you in writing that it has been received. The Agency letter should include the date that the formal complaint was filed and other related information about the investigation process. The complaint will then become part of the EEO complaint file and the basis for the investigation.
Formal Complaint Review by the Agency
After the formal complaint is submitted, the Agency will review the claims made by the federal employee. After review, the Agency will either accept the claims for investigation or dismiss some or all of them based on procedural grounds (e.g., timeliness or a claim that doesn’t fall under the EEO process). In accepting claims, the Agency will send you an acceptance letter listing the claims to be investigated. This is usually referred to as a Letter of Receipt whichexplains the next steps in the EEO process. The Letter of Receipt will also explain that the investigation must be completed within 180 days.
How the Dismissal of Claims Affects the Investigation
If the Agency dismissed all or a portion of a complaint, those claims won’t be investigated. However, in such a case a federal employee still can appeal. If the Agency dismisses the entire EEO complaint, it must issue a final decision under 29 C.F.R. § 1614.110. The Agency should clearly set forth the reasons for dismissing the complaint. The Agency may also include evidence in the record that supports its decision. The Agency will provide the complainant appeal rights to the Equal Employment Opportunity Commission (EEOC) where a request to overturn the dismissal can be filed. If the Agency dismisses some of the claims, they can later be sought to be included during the hearing or court process.
Acceptance of Claims and Appointment of EEO Investigator
If the Agency accepts a claim, it will initiate an investigation into the EEO complaint. An investigator will then be appointed. These investigators can be in-house federal employees or government contractors. In the majority of cases that we see, the investigators are usually third-party government contractors. An investigator is supposed to have at least 32 hours of training before conducting an investigation and then is required to have ongoing training. In addition, an investigator is supposed to be fair and not biased during the investigation. In our experience, most EEO investigators take the neutral approach and try to obtain a complainant’s side of the story without showing bias. Investigators have been given the power to provide oaths to witnesses.
What Type of EEO Investigation is Required by Law
Federal employee EEO investigations are supposed to be comprehensive and fair. According to 29 C.F.R. 1614.108 (b) “the Agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Agencies may use an exchange of letters or memoranda, interrogatories, investigations, fact-finding conferences or any other fact-finding methods that efficiently and thoroughly address the matters at issue. Agencies are encouraged to incorporate alternative dispute resolution techniques into their investigative efforts in order to promote early resolution of complaints.” Basically, investigations are expected to be detailed and comprehensive. They usually are detailed, but they often lack detailed witness statements.
What Will the EEO Investigator Do?
Once the investigator is appointed, they are authorized to conduct the EEO investigation on behalf of the Agency. Typically, when appointed, the investigator will first contact you (or your lawyer) and want to discuss the specifics of the EEO complaint. The investigator may also ask for documents or other supporting materials for your complaint. They will also want to know about the important witnesses in the case. They will ask about the individuals that are alleged to have caused the discrimination. It is common to have an initial telephone or video conference with counsel and the complainant to discuss the claims with the investigator. The investigator is likely then to provide a draft affidavit to the complainant to review which includes much of the information provided during the earlier interview. In conducting their investigation, the investigator may use many different methods to obtain the facts that they need. They may seek affidavits, interviews, interrogatories, or other methods to obtain important facts about the EEO complaint.
Investigators Talk to Other Witnesses
After speaking with the complainant, the investigator will then speak to the other witnesses in the EEO complaint. The investigator will ask them for a statement about the allegations of discrimination. Once the investigator receives these statements, they may then ask the complaint to review some of them and provide a rebuttal statement. We believe that one area for improvement for EEO investigations would be for investigators to be trained to engage in more direct questions to witnesses in cases. We often find that many witnesses do not provide much information and that there is little to no follow up to get the answers needed from key witnesses.
Some Information the Investigator Will Seek
The investigator will ask for information related to the EEO Complaint from witnesses, respondents and the Agency. If a case involves a discrimination action or retaliation, the investigator may ask for related emails or correspondence. If a case involves a discriminatory promotion, the investigator may seek records of other applicant packets. These are just a few examples. Once the investigator has obtained enough information about the complaint, they are required to prepare a Report of Investigation, also known as the ROI. An ROI can be very detailed and can run from between 200 and 1,000 pages or more.
The Federal Employee EEO Investigation is Documented in the ROI
In a perfect world, the Agency will complete the investigation and issue the ROI approximately 180 days after the formal complaint was filed. However, this is not always the case. There could be extensions sought if an investigation needs more time to be completed. If the complaint was amended or consolidated with another complaint, the investigation must be completed 180 days after the filing of the last complaint or no later than 360 days after the filing of the original complaint, whichever is earlier. Complainants have the ability to take their case forward after 180 days but it is usually best to see if your lawyer can get the Agency to issue the ROI first.
Receipt of the ROI (Investigative File) & Next Steps
The Agency must then provide you with a copy of the ROI when it is completed and reviewed. The Agency must also notify you that, within 30 days of receipt of the investigative file, you have the right to request a hearing and a decision from an administrative judge, or you may request an immediate final decision from the Agency. 29 C.F.R. § 1614.108(f). After receiving the ROI, within 30 days, you must choose to request a final agency decision or a hearing with an administrative judge. It is usually recommended that you elect a hearing with an EEOC administrative judge. The EEOC hearing process seems to be the fairest of the options available in most cases. The ROI, which is the product of the EEO investigation will then be the starting point for the EEOC hearing.
Contact Us
Our law firm represents and advises federal employees in EEO complaints and mediation. If you need legal assistance regarding an EEO complaint or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
