Meeting of September 7, 2006, Washington D.C. on Federal Sector EEO Investigations
Good morning and thank you for affording me the opportunity to share my thoughts with you on the subject of investigations. My name is Andrew Culbertson and I am a supervisory administrative judge in the Washington Field Office. I have been with the Commission 14 years, the first eight as an attorney in the Office of Federal Operations and the past six as an administrative judge. During that period, I have reviewed upwards of 1,500 reports of investigation and have probably seen nearly every method that can be employed when investigating an EEO complaint.
Let me say at the outset that the importance of the investigation to the administrative judge cannot be overstated. When an administrative judge is assigned a case, the only evidence that exists is that which is contained in the report of investigation. The better the investigation, the better the administrative judge’s understanding of the strengths and weaknesses of each party’s case. Knowledge of this kind is invaluable as it provides the administrative judge with the information she needs to best determine how the case should be processed. For example, a thoroughly developed record may be the means through which an agency is persuaded, after a frank assessment of its case during a settlement conference, to resolve the matter informally. An effective investigation may also demonstrate that, notwithstanding a complainant’s belief that she was discriminated against, there is no merit to the case. Thorough investigations provide administrative judges the options necessary to manage effectively what are typically substantial dockets.
Criticizing the quality of investigations is not an uncommon phenomenon among administrative judges. My criticisms are somewhat more tempered and tend to be directed at certain agencies that have perpetually demonstrated a lack of interest in conducting thorough investigations. That said, I believe there are several areas where across-the-board improvement is warranted. Although I certainly do not speak for all administrative judges, I believe that my concerns are shared by many of my colleagues.
The first area I would like to address is the manner in which testimony is obtained from witnesses. The EEO Management Directive for 29 C.F.R. Part 1614 (MD-110) allows for a variety of approaches, and we certainly see a variety. It can be as formal as a fact-finding conference with live testimony, or as informal as interrogatories that are mailed to witnesses by the investigator. In my experience, the most prevalent method is an affidavit in which the witness responds to a written set of questions. Although I believe the flexibility provided by MD-110 is beneficial, my view is that, when possible, this should be an interactive process. Ideally, an investigator will meet with a witness and verbally pose a set of questions. Depending on the responses, the investigator will have the option of posing follow-up questions. Although investigators are not tasked with making credibility determinations, how a witness reacts to a particular question may also provide the impetus for posing additional questions. In contrast, when a witness is merely responding to set of written questions, there is no opportunity to either ask contemporaneous follow-up questions or to observe her demeanor. The result is often ambiguous answers that have no probative value. I realize that MD-110 permits approaches that are not interactive. That does not mean, however, that an investigator who employs such an approach is precluded, when there is ambiguity, from sending the witness a supplemental set of questions. Unfortunately, I have seen few instances where an investigator has actually done this.
My second concern is that there sometimes appears to be a fundamental misunderstanding of the process itself. When a case comes before an administrative judge, it is the first point at which the Commission is involved in the process. It is also the point at which the process becomes adversarial. As such, both parties are expected to prosecute their cases. In direct contrast, the investigative process is not adversarial. The dynamic I too often see, however, is one in which too much is expected of the complainant in terms of driving the investigation. The complainant is there, certainly, to explain why he believes he has been discriminated against and to provide any other evidence relevant to his complaint. The complainant is not there, however, to prove his case.
One area where this can be problematic is with respect to comparative employees in disparate treatment cases. It is certainly acceptable to ask a complainant whether she is aware of any employees who were treated more favorably than she was treated. But that is only the beginning of the inquiry, and the investigator, regardless of the complainant’s response, needs to develop the record on that question. I am aware of at least one agency where that is not the practice. Instead, the inquiry into the existence of comparative employees typically begins and ends with the complainant’s ability to identify such individuals.
Another example is the lack of inquiry by certain investigators with respect to claims of disability discrimination. This is an area that most practitioners, including myself, find difficult. To expect a pro se complainant to navigate it with limited assistance from the investigator is both unfair and unrealistic. Nonetheless, we see too many cases in which the burden to produce relevant information is placed squarely on the complainant. A complainant, whether or not he understands the legal definition of “individual with a disability,” may not realize that he should submit relevant medical documentation pertaining to his impairment. But it is not his role to realize that. Instead, the investigator should be requesting that information. Likewise, a complainant may not appreciate that whether she is disabled is contingent on how she is limited by her impairment. A good investigator will not merely ask the complainant how his impairment limits him. She will explain to the complainant the term “major life activity” and attempt to ascertain, through detailed questioning, what activity is limited and the extent of that limitation.
The final area I wanted to touch on concerns the type of information investigators elect to put into reports of investigation. Although it can prove frustrating to maneuver through a multi-volume report, I believe it is important for the investigator to err on the side of inclusion. Adjudicators can disregard a document that they conclude has limited probative value. What they cannot do is consider documents that never make it into the file. The cases that are the most problematic in terms of missing documentation tend to be ones involving non-selections for positions. What documents to include in such cases has been the subject of seemingly endless debate. At the very least, they should include the applications of the complainant and the individual selected, as well as any documents generated by the relevant agency officials that provide a rationale for the decisions that were made. Examples of the latter include interview notes and rating and ranking sheets, and there have been too many occasions when those documents were not included in a file I was reviewing.
I am not aware of any approach, short of revamping the entire system, that would cure entirely the problems that exist. I do, however, have a modest proposal that I believe could improve the process. Although MD-110 contains a chapter on the investigative process, the guidance contained therein is quite general in nature. What I would propose is an appendix to MD-110, similar to the two appendices pertaining to EEO counselors, that sets forth more specific guidelines for investigators. The guidelines would address specific kinds of cases, categorized by the type of discrimination being alleged and the type of challenged action. There are obviously many permutations that can arise, and the guidance would not be exhaustive. What it could provide is information concerning the documentation that should be sought and the questions that should be asked when investigating some of the more common kinds of claims. For example, with respect to reasonable accommodation claims, the guidance could set forth the type of documentary information the investigator should seek from the complainant; the types of questions the complainant should be asked to ascertain whether he is, in fact, disabled; and what the investigator should do to ascertain what steps were taken, if any, to accommodate the complainant. With respect to cases involving non-selections, the guidance might contain a list of the documentation the investigator should seek and the types of questions the official responsible for the selection should be asked.
I am cognizant that many investigators do not require guidance of this nature. I am also reluctant, given the variety of approaches there are to investigating a complaint, to endorse mandatory guidelines. What is important, I believe, is to provide standards that will give investigators more specific guidance concerning what adjudicators at the Commission are seeking when they review a report of investigation. Although standards of this nature would not cure every problem, I believe they could go a long way towards improving the process. Thank you again for inviting me and allowing me to share my thoughts with you on this issue.
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