By Meghan Droste, February 19, 2020

When counseling clients on how to proceed in their cases, I recommend requesting a hearing rather than a Final Agency Decision (FAD) far more often than not. Why? Well, as I point out to my clients, a FAD is an agency deciding whether or not it violated the law, and how often do any of us want to publicly admit that we did something wrong? It often feels like a foregone conclusion that no matter the evidence, the agency will issue a FAD finding no liability.

I get it. Although the offices issuing FADs are, of course, intended to be neutral, and I’m sure the people drafting FADs make every effort to be unbiased – and many do a great job, at the end of the day, the agency is rendering a decision based on (sometimes limited) information collected by the agency.

This month my tip to you is to recognize that, in some cases, the evidence compels a decision in favor of the complainant.

The recent decision in Felton A. v. U.S. Postal Service, EEOC App. No. 0120182134 (Dec. 17, 2019) is a great example of when the agency should not have issued a FAD finding in its own favor. The complainant alleged that the agency discriminated against him when it barred him from entering an agency facility while representing another agency employee in the coworker’s EEO complaint. According to the complainant, his supervisor told his union steward that the complainant was not permitted in the facility because the complainant was on the “Threat Assessment List” due to his PTSD.

At various times during the investigation, the supervisor denied that a Threat Assessment List existed and testified that the complainant could not enter the facility due to a Threat Assessment.  The supervisor also denied being aware of the complainant’s disability, despite documents in the record establishing that the supervisor had knowledge prior to barring the complainant from entering. Finally, the supervisor could not specifically say what she said to the union steward regarding the complainant. The agency failed to interview the union steward in its investigation, leaving the record without a clear picture of the crucial conversation.

The supervisor’s internally inconsistent testimony, which directly contradicted the documents, should have raised a red flag for the agency when drafting the FAD. The lack of testimony from the union steward also should have been an issue. The agency would have been better served to order a supplemental investigation rather than issuing a FAD based on an incomplete record.  Ultimately the Commission reversed the FAD and entered a finding of discrimination, ordering the agency to conduct a supplemental investigation on damages.

When drafting FADs, I encourage you to look critically at the record and issue findings of liability when supported by the report of investigation.  Droste@FELTG.com

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