By Meghan Droste, May 16, 2018

We all know people who are able to make a decision right away—they can pick what to order after a quick glance at a menu, they can buy the first item they see, and they can plan a vacation on the fly.  I am sure those people are lovely people; they are certainly lucky in my perspective.  But they are not me.  I will spend hours researching online before I buy something.  For an upcoming trip, I bought two guide books and a country-specific etiquette book, and I am working my way through them before making any plans.  I need a lot of information before I can make a decision.

The EEOC is at least somewhat like-minded.  Agencies are required to “develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.”  See 29 C.F.R. § 1614.108(b).  This means that there must be enough information from which a reasonable factfinder can determine whether the agency violated the law.  See MD-110, Ch. 6, §IV(C).  Investigations may take different forms, but generally an agency must interview the relevant witnesses and collect the necessary documents.  The Commission’s recent decision in Mari R. v. U.S. Postal Service, EEOC App. No. 0120160377 (March 29, 2018), is a good example of why this is important.

In the Mari R. case, the complainant alleged that her first-line supervisor sexually harassed her over a period of at least three months.  The harassment included vulgar comments and sexual gestures.  The complainant testified that the union president warned her in advance that the supervisor had a history of sexually inappropriate behavior towards female employees.  She also testified that at least one other employee witnessed the supervisor’s remarks to her, and two other employees told her that the supervisor had increased the workload of the last female employee who turned down his sexual advances.  The supervisor denied the complainant’s allegations.

In its final agency decision, the agency concluded that the complainant did not prove that the agency had subjected her to discrimination.  On appeal, the Commission vacated the agency’s decision and remanded the complaint for a supplemental investigation.  The Commission noted that the investigator only interviewed the complainant, the responsible management officials, and other management witnesses.  The investigator failed to interview any of the six witnesses the complainant identified.  These employees either witnessed the supervisor’s comments and gestures towards the complainant or were previous victims of the supervisor.  There was no explanation for the decision not to interview the witnesses.  The Commission found that the investigator’s decision not to conduct these interviews “unfairly restricted [the complainant’s] ability to prove that she was subjected to discrimination . . .”  Without information from both sides, the Commission did not have enough information to determine whether the supervisor had actually acted as the complainant alleged.

Keep these lessons in mind as your agency investigates complaints, and make sure the factfinder has enough information to make an informed decision. Droste@FELTG.com

[Wiley Note: The quality of agency investigations, or lack thereof, is becoming a bigger and bigger issue on appeal. The first case to hit us between the eyes was Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). If you attend our Workplace Investigations Week seminar, you’ll hear us talk about the mistake of using a biased investigator when investigating misconduct. More recently, in a 120-page initial decision, an MSPB administrative judge mitigated the removal of a highly-publicized employee (think 60 Minutes public) based in large part on perceived investigator inadequacies. Chen v. Commerce, CH-0752-17-0028-I-1, (April 23, 2018)(ID). If you are drifting along old-school, thinking that just about anybody who is upright and convenient is capable of conducting a workplace investigation that will withstand EEOC, MSPB, or federal court scrutiny, you absolutely must read these two decisions.]

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