Fedweek Legal

Pursuant to 29 C.F.R. Section 1614.108, federal agencies are required investigate EEO complaints within 180 days of the date the complaint was filed. The EEO investigation is a critical period of time because during this time the EEO investigator gathers evidence from the complainant, the complainant’s witnesses, and the agency’s witnesses.

EEO investigators usually prepare short affidavits for complainants explaining their claim of discrimination and may ask the complainant to identify documents and witnesses which may support the complaint. Having a representative who can examine the complainant’s affidavit and who knows what kind of evidence EEO investigators and EEOC administrative judges look for is prudent. However, several pointers are in order for complainants seeking to undergo the EEO investigation on their own.

Although there is no standard length for an EEO affidavit, a detailed affidavit is rarely less than 15 pages double-spaced. The affidavit should contain three subparts. The first subpart explains the complainant’s education and work history with the federal government and identifies any and all noteworthy achievements and performance ratings. The purpose of this subpart is to put the complainant’s best foot forward and to demonstrate to the reader that the complainant is a valuable asset to the employer.

The second subpart explains the facts of the complainant’s case and lays out in a chronological, narrative manner the events proving discrimination. In this subpart, the complainant identifies and explains how persons outside of his/her class (i.e., sex, race, religion, etc.) were treated differently than him or her. It is important that the complainant write this section very clearly by identifying the exact dates (i.e., month, day, and year) that events occurred. It is also important that the complainant refer to people (particularly the alleged discriminating officials and witnesses) by their full names and titles. If documents exist (e.g., e-mails and notes of conversation) which reinforce the complaint, it is imperative that the complainant reference the documents in the affidavit and discuss their significance to his/her claim. These documents should be submitted to the investigator as attachments to the affidavit.

The third subpart of the affidavit is where the complainant explains how the agency’s actions (discussed in subpart two) have harmed him/her physically, emotionally, and/or mentally. It is important that the complainant graphically explain how the agency’s actions have impacted him/her and whether professional assistance resulting from the agency’s actions was necessary. As with subpart two, a complainant should reference, discuss, and attach to the affidavit all documents (e.g., medical bills, medications, and leave slips) which evidence that the complainant has experienced pain and suffering.

Perhaps more than any other federal employees, employees working for an agency within the Department of Defense (DoD) need to be especially careful during the EEO investigation. Complaints of discrimination against DoD are investigated by investigators working for DoD’s Office of Complaints Investigation (OCI). Sometimes, particularly if the complainant works for the Army, the OCI investigator will forgo requesting affidavits, will schedule a fact-finding investigative hearing, and will interview the complainant, responsible management officials, and other witnesses, with agency counsel present, under oath before a court reporter.

Furthermore, although EEOC regulations require EEO investigators to only gather evidence and prohibit EEO investigators from evaluating the evidence and making findings of discrimination, DoD allows its OCI investigators to write investigative summaries containing conclusions of law. MD-110, Chap. (IV)(B) & (V)(B). DoD’s rationale for allowing investigators to write such summaries is that the EEOC’s regulations prohibit investigators from concluding that the complainant was a victim of discrimination, but the regulations allow investigators to conclude that the complainant was not a victim of discrimination. Although the OCI investigator’s conclusions are not binding, they can be prejudicial. Until the EEOC determines that such summaries are impermissible, DoD complainants need to be especially careful to present their case in a detailed manner and in the most favorable light possible.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **