By Meghan Droste, July 18, 2018

At the time that I am writing this, I am in the midst of preparing to travel to Japan to teach a course on investigations. In between my packing lists and researching things to do and places to eat, I am also thinking a lot about investigations: What are the best ways to prepare for an investigation?  What are effective interview techniques? All kinds of details that I am looking forward to sharing with my class. As a complainant’s attorney, I spend some time thinking about investigations as well, particularly what information should have been included and what information is missing. Unfortunately, it is not unusual to find that key information is missing from a Report of Investigation.

I wrote about investigations recently in the context of witness interviews. In Mari R. v. U.S. Postal Service, EEOC App. No. 0120160377 (March 29, 2018), the Commission remanded the complaint back to the Agency for a supplemental investigation to include interviews of several witnesses.  While a supplemental investigation may be helpful, it generally is not the outcome I seek when I find the Agency has not done a thorough investigation. Like the Complainant in Ross H. v. U.S. Postal Service, EEOC App. No. 072018001 (May 17, 2018), I often ask for more severe sanctions, including default judgment.

The complaint in Ross H. involved three non-selections. The Agency’s Report of Investigation was unfortunately missing several key pieces of information. It failed to include “application materials and qualifications of the candidates selected for two positions at issue, failed to identify the candidate selected for a third position, and failed to include interview notes for all three positions.” The Complainant moved for sanctions and asked the administrative judge to award default judgment in his favor. In response, the Agency argued that the ROI did have relevant information including affidavits and vacancy announcements, the Complainant did not suffer any prejudice, and the parties could cure the deficiencies in discovery. In support of its argument, the Agency asserted that its failure to identify one of the selectees was not an issue because the Complainant knew who the selectee was. Unsurprisingly, the administrative judge did not find this persuasive and granted default judgment in favor of the Complainant. The Commission upheld the sanction, finding the Agency’s failure to complete a sufficient investigation was “egregious.”  It concluded that default judgment was appropriate “in the interest of protecting the integrity of the EEO process.”

Agency EEO offices should always review an ROI for sufficiency before sending it out.  The necessary documents and testimony will vary from case to case, so be sure to determine what is appropriate for each ROI. And of course, in a non-selection case, be sure to include the names and qualifications of the selectees.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com

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