By Deryn Sumner, September 13, 2017
Sometimes at work, we can feel like we’re simply jumping from one urgent matter to the other, without stopping to look at what’s coming ahead and plan for the next steps. I’m certainly guilty of that myself. As a litigator, work is often times about meeting deadlines, and if a case doesn’t have a deadline attached to it yet, such as when a case is waiting for assignment to an administrative judge, it’s easy to cast it aside in favor of more pressing matters. But, if you do have a reprieve to focus on a case file before a deadline is looming, I encourage you to do so. I know that’s not always possible. Hey, you may not even receive a case assignment until the initial status conference is coming up (or has already been held, with or without you).
But when time and circumstances allow, I recommend taking the following steps to familiarize yourself with the Report of Investigation and plan out your case strategy ahead of time.
So what should you do with that time? Well, first, sit down (or stand up I guess, if you have one of those standing desks) and review the Report of Investigation (ROI) itself. Check your agency’s internal system to see if there are other complaints pending from the same complainant. What’s the procedural status of these other cases? Are the cases appropriate for consolidation under 29 CFR 1614.606?
When reviewing a Report of Investigation, I often take notes highlighting three things as I go along. First, what can I glean about events keyed to dates and key undisputed facts from the record? That’s going to be the start of a timeline and a statement of facts for the case. Make sure you include the citation to the ROI as you are drafting the timeline. And avoid citing to the EEO Counselor’s Report or Investigator’s Summary. You want to be making references to a statement in an affidavit or the source document (like a Letter of Reprimand itself).
The second thing I look for is documents that are not already included that I want to ask for in discovery or from the Agency’s witnesses, if I’m representing the Agency. Is there sufficient evidence about damages? Almost always the answer is going to be no. Are there references to emails or meeting notes in affidavits that aren’t included? Write the ideas down as you review the ROI, and you’re already on your way to having a draft of discovery requests set to go when you do get assigned to an administrative judge and given a deadline to initiate discovery.
The third thing I look for are the “cast of characters” involved in the case. Sure, you know who provided an affidavit, but review the ROI with an eye towards identifying who else was involved or played a role so you know who you need to speak with. Make a list, gather their contact information, figure out who may have left, and even start witness interviews if you have the time.
After you’ve reviewed the ROI, next think about what you would need to either file a successful motion for summary judgment or present the case at hearing. If you are missing key pieces of information, that’s more fodder for your list of discovery requests. If there are red flags – for example, you can’t quite figure out what the Agency’s legitimate, non-discriminatory reason actually is – examine that. Is there information that needs to be gathered and added to the record? Or do you need to be valuing the case and locating a settlement authority?
I have been saved many times by having a timeline already drafted when I need to draft a motion for summary judgment or proffer a stipulation of undisputed facts in preparation for filing a prehearing submission. Going into a case with knowledge of the current record and an eye towards what’s missing will repay itself many times over, if you can make the time to do it. Sumner@FELTG.com