By Deryn Sumner

As promised, we’re going to continue to dive into our discussion of when sanctions can be awarded by EEOC by turning to instances where agencies fail to produce a complete report of investigation (ROI) during the formal complaint stage.  Let’s start at the source. Under the Commission’s regulations at 29 CFR 1614.108(b), an agency must “develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.” So what does “impartial and appropriate” actually mean?  For that, let’s turn to Management Directive 110, Chapter 6 (remember, MD-110 underwent substantial revisions last year so check your citations before cutting and pasting from past filings).  “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.”  MD-110, Ch. 6.  Specifically, “the investigation shall include a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the complainant’s group as compared with the treatment of other similarly situated employees, if any; and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.”  Id.  For example, if it’s a non-selection case, the investigation needs to include documents and evidence related to the selection process, any interview notes, affidavits from the panel members, and copies of the relevant applications in order to be appropriate.

Okay, now that we have some more specifics of what is included in an appropriate factual record, let’s turn to what complainants can request if the investigation does not meet this standard. The EEOC’s Handbook for Administrative Judges, although it dates back to 2002, is a great resource. (It’s available at http://www.eeoc.gov/federal/ajhandbook.cfm) It provides:

If the Administrative Judge reviews the investigative report and finds that the agency did not sufficiently comply with its obligation under 29 C.F.R. 1614.108(b) to develop an impartial factual record from which a reasonable fact finder could determine whether discrimination occurred, or if no investigation has been conducted, the Administrative Judge retains jurisdiction over the complaint. In order to develop the record, the Administrative Judge may order the agency to complete an investigation within a particular time period; allow the parties to develop the record themselves through discovery; issue orders for the production of documents and witnesses; or consider appropriate sanctions. The parties shall initially bear their own costs with regard to discovery, unless the Administrative Judge requires the agency to bear the costs for the complainant to obtain depositions or any other discovery because the agency has failed to complete its investigation as required by 29 C.F.R. 1614.108(e) or has failed to investigate the allegations adequately pursuant to EEO MD-110, Chapter Six.

Handbook for Administrative Judges, Ch. 1, Part I(D)(2) (July 1, 2002).

Turning back to MD-110, sanctions are also referenced as the appropriate response to a deficient record:

Where it is clear that the agency failed to develop an impartial and appropriate factual record, an Administrative Judge may exercise his/her discretion to issue sanctions.  In such circumstances, the sanctions listed in § § 1614.109(f)(3) are available. See Petersel v. U.S. Postal Service, EEOC Appeal No. 0720060075 (Oct. 30, 2008) (Administrative Judge properly drew an adverse inference against the agency when the investigative report failed to include any comparative data on other employees); Royal v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0720070045 (September 25, 2009) (finding that the agency’s delay in completing the investigation within the 180-day regulatory period is no small noncompliance matter and warrants a sanction). Even when an agency eventually completes the investigation during the hearing stage an Administrative Judge may issue sanctions in appropriate circumstances.

See MD-110, Ch. 6, Part XII (emphasis added).

Now, before you get too worried, here’s some saving grace:

Before an Administrative Judge may sanction an agency for failing to develop an impartial and appropriate factual record, the Administrative Judge must issue an order to the agency or request the documents, records, comparative data, statistics, or affidavits. 29 C.F.R. § 1614.109(f)(3).…The notice to show cause to the agency may, in appropriate circumstances, provide the agency with an opportunity to take such action as the Administrative Judge deems necessary to correct the deficiencies in the record…Only on the failure of the agency to comply with the Administrative Judge’s order or request and the notice to show cause may the Administrative Judge impose a sanction or the sanctions identified in the order or request.

So what should you do as an agency representative when you realize the ROI is deficient? I suggest proactively seeking to supplement the record with the missing information before sanctions are requested. And, as we discussed last month, if the administrative judge is set on sanctioning the agency, argue for a lesser sanction. And don’t think about hiding behind your agency’s use of a contractor to complete investigations. The Commission has held that an agency’s use of a contractor to investigate EEO complaints does not excuse the agency’s responsibility for the timeliness and content of these investigations.  See Adkins v. FDIC, EEOC Appeal No. 0720080052 (January 13, 2012) citing MD-110, Chapter 5; Cox v. Social Security Admin., Appeal No. 0720050055 (December 24, 2009). Sumner@FELTG.com

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