The following question recently came into Ask FELTG:
What happens if an agency conducts an EEO investigation but fails to give a copy of the report of investigation (ROI) to the complainant?
Thanks for the question. A failure to give the complainant a copy of the ROI is a big problem and a violation of Equal Employment Opportunity Commission (EEOC) regulations, which state:
The agency “shall provide the complainant with a copy of the investigative file, and shall notify the complainant that, within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an administrative judge or may request an immediate final decision pursuant to [29 C.F.R.] § 1614.110 from the agency with which the complaint was filed.
29 C.F.R. § 1614.108(f).
Unfortunately, just because a regulation exists doesn’t mean it’s always followed. Take a look at a couple of recent EEOC cases where the complainant never received the ROI – and what happened as a result.
Sharolyn S. v. USPS, EEOC App. No. 2023001439 (Apr. 11, 2024)
The complainant alleged discrimination based on race (African-American/Native American/Cuban), sex (female), color (Brown), disability (physical and mental), and reprisal for prior protected EEO activity when:
1. Since November 10, 2021, she was not accommodated per her medical restrictions.
2. Since November 10, 2021, to present, she was charged LWOP.
3. On January 24, 2022, she was denied a bid position.
Id. at 4.
The record showed the complainant requested the ROI some days after the investigator notified her the investigation was complete and that the ROI would be sent to her in the near future. However, neither the investigator nor the agency ever provided her with a copy of the ROI. In addition, the agency never informed the complainant she had the right to request a hearing. As a result, the EEOC vacated the Final Agency Decision (FAD) (which found no discrimination), and remanded the case back for a supplemental investigation, as several important facts were missing from the investigative file.
Side note: Yikes. When the EEOC says information is missing from the investigative file, it’s going to be a long day for the agency and the investigator. Join FELTG guest instructor Roslyn Brown for an enlightening and interactive discussion on this topic and more on May 15 during Bad Detective: The Mistakes That Hamper Agency Investigations.
Susan D. v. USPS, EEOC App. No. 2020000586 (Feb. 9, 2021)
The complainant alleged the agency discriminated against her on the bases of sex (female), disability (coronary artery disease), and reprisal for prior protected EEO activity when:
Id. at 1.
The complainant asserted she never received the ROI or notice of her right to request a hearing. While the agency disputed the complainant’s claim, it provided no evidence it actually made delivery of the ROI. Id. at 2. In fact, although the agency provided tracking numbers it said corresponded to the transmittal of the ROI, when searched the “the tracking numbers produced no results.” Id. at 3.
Because the complainant informed the EEOC and agency she wanted a hearing, the EEOC vacated the FAD and ordered the agency to provide the ROI to the complainant and her representative, and to provide a copy of its decision and the investigative file to the corresponding EEOC Hearings Unit.
A mistake in the investigative process can cost the agency time and resources. If you read the cases, you’ll see that these delays almost always exacerbate the complainant’s medical conditions. The best way to avoid this problem is to conduct a legally sufficient investigation every time and follow EEOC’s regulatory timelines in providing the ROI to the complainant and their representative. [email protected]
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