Once a complainant files a formal discrimination complaint and the agency accepts at least one claim for investigation, the EEOC regulations require that “the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.” An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether the agency discriminated against the complainant. Although the agency has this obligation to develop an impartial and appropriate factual record, the onus truly rests with the complainant.
In most discrimination cases, the ultimate burden of proof lies with the complainant, and this burden of proof is commonly manifested through the McDonnell Douglas paradigm where the complainant must provide sufficient evidence to state a claim, the agency must respond with a legitimate, nondiscriminatory reason for taking the action complained of, and then the complainant must demonstrate why the agency’s stated reasons for taking the action complained of are actually a pretext for discrimination.
There are several methods that the agency can obtain a statement from the complainant, such as on-site interview, investigative interrogatories, and recorded interviews. Yet, by far, the most popular method is by the complainant providing a written statement to the EEO investigator. The facts of each complaint will vary, but at a minimum there are categories of information that should be contained in the complainant’s statement in detail. Additionally, all documents supporting the complainant’s statement should be supplied to the EEO investigator.
Responsible Management Officials
It is important to verify each individual within the agency responsible for causing the complainant to be subjected to the actions being challenged. At a minimum, the complainant should identify the individual’s full name, position title, grade and series, and professional relationship to the complainant (e.g., first-line supervisor). Depending on the facts of the case, it may be helpful as well to state the responsible management official’s protected classes (e.g., race, color, national origin, religion, sex, disability, age, and reprisal).
Bases of Discrimination/Reprisal
A complainant must clearly identify the basis or bases of discrimination (also known as “protected classes”) upon which the formal discrimination complaint was filed (e.g., race, color, national origin, religion, sex, disability, age, and reprisal). A complainant must also state when and how each responsible management official knew or should have known of each basis of discrimination.
Agency’s Alleged Discriminatory Actions
The complainant must provide exhaustive, detailed facts supporting each agency action being challenged. In every factual recitation, the complainant must make clear the date, the individuals present, the location, the form of communication, and the context. Attachments to the statement referencing relevant documents should be noted in the text and included with the statement.
* 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.
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