PART 1: EEOC MANAGEMENT DIRECTIVE 110

1. Federal Agency EEO Investigation:Developing the Factual RecordFebruary 27, 2019Raymond L. Hogge, Jr.Hogge Law500 East Plume Street, Suite 800Norfolk, Virginia 23510(757) 961-5400www.HoggeLaw.comwww.VirginiaLaborLaw.com

2. This presentation discusses development of an impartial and appropriate factual record in federal agency EEO investigations in accordance with EEOC Management Directive 110 (2015) Chapter 6. This presentation is intended solely for educational purposes, and is not offered as legal advice.

3. PART 1: EEOC MANAGEMENT DIRECTIVE 110

4. Intro to MD-110 EEOC Management Directive 110 provides federal agencies with EEOC policies, procedures, and guidance relating to the processing of employment discrimination complaints governed by the EEOC regulations in 29 C.F.R. Part 1614 covering federal employment. Unchanged from 1999 to 2015. Revised 8/5/2015. (MD-110)

5. Introduction to MD-110 2015 Revisions Provides agencies with updated EEOC policies, procedures, and guidance relating to the federal sector complaint process and reflects new developments in case law. Includes changes required after EEOC amended certain sections of the regulations governing federal sector EEO process in 2012. (MD-110)

6. Intro to MD-110 Chapter 1: Agency Authority and Responsibility. Chapter 2: Pre- Complaint Processing. Chapter 3: ADR for EEO Matters. Chapter 4: Procedures for Related Processes. Chapter 5: Agency Processing of Formal Complaints. (MD-110)

7. Intro to MD-110 Chapter 6: Development of Impartial and Appropriate Factual Records. 2015 changes include: Three basic types of evidence: direct , circumstantial, statistical. Complaint file usually must be assembled as an electronic document Establishes digital complaint file requirements. Complainant and representative should be given option to receive complaint file in a digital or paper medium. (MD-110)

8. Intro to MD-110 Chapter 7: Hearings Chapter 8: Complaints of Class Discrimination Chapter 9: Appeals to the Commission Chapter 10: Administrative Appeals, Civil Actions, and Appointment of Counsel Chapter 11: Remedies Chapter 12: Settlement Authority Appendices (MD-110)

9. Intro to MD-110 MD-101 Chapter 6 establishes a mandatory minimum training requirement for all investigators 32 hours of investigator training before conducting investigations. 8 hours of continuing investigator training every fiscal year. (MD-110)

10. Factual Record Mandate 29 CFR 1614.108(b) requires federal agencies to "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 discrimination occurred." (MD-110)

11. EEO Laws the Investigator Must Understand Title VII of the Civil Rights Act of 1964(includes Pregnancy Discrimination Act) Equal Pay Act Age Discrimination in Employment Act Rehabilitation Act Americans with Disabilities Act Genetic Information Nondiscrimination Act of 2008 (GINA) (MD-110)

12. EEO Theories of Liability the Investigator Must Understand Disparate Treatment Disparate Impact Reasonable Accommodation Retaliation – Opposition / Participation (MD-110)

13. EEO Remedies the Investigator Must Understand Back Pay Front Pay Reinstatement Promotion Compensatory Damages Attorney's Fees Costs (See MD-110)

14. Nature of the Investigation "The investigative process is non-adversarial. That means that the investigator is obligated to collect evidence regardless of the parties' positions with respect to the items of evidence." (MD-110 § IV.) (MD-110)

15. Methods of Investigation Witness interview Fact-finding conference Requests for information Position statements Exchange of letters or memoranda Interrogatories Affidavits (MD-110)

16. Purpose of Investigation To gather facts upon which a reasonable fact finder may draw conclusions as to whether the agency has violated a provision of any statute enforced by the EEOC; and If a violation is found, to have a sufficient factual basis from which to fashion an appropriate remedy. (MD-110)

17. General Investigative Requirements "The investigation shall include a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the complainant's group as compared with the treatment of other similarly situated employees, if any; and any policies and/or practices that may constitute … discrimination, even though they have not been expressly cited by the complainant." (MD-110)

18. General Investigative Requirements Even where the complainant is unable to provide comparative data and the investigator similarly cannot obtain any such information, the investigator still must determine whether there is other evidence that may establish unlawful discrimination. (MD-110)

19. Time Limits for Completion of Investigations Agencies are required to complete investigations within the earlier of 180 days after the filing of the last complaint or 360 days after the filing of the original complaint. (MD-110)

20. Time Limits for Completion of Investigations If an amendment to a complaint would prevent timely completion of investigation, the investigation can be extended for up to 90 days with the consent of complainant. If complainant does not consent, then amendment should be denied, and the complainant should be advised to confer with an EEO counselor to begin the EEO process for that new matter. (MD-110)

21. Role of the Investigator EEOC MD-110 § V(A): "The role of the investigator is to collect and to discover factual information concerning the claim(s) in the complaint under investigation and to prepare an investigative summary." (MD-110)

22. Investigator May Act As: A presiding official at a fact-finding conference; An examiner responsible for developing material evidence; An issuer of requests for information in the form of requests for the production of documents, interrogatories, and affidavits; A face-to-face interviewer in on-site visits; Any other role so long as appropriate investigative techniques/methods are utilized. (MD-110)

23. Investigator Must Be, and Must Appear To Be, Unbiasedand Objective Investigator must be neutral in his approach to factual development. Investigator is not an advocate for any of the parties or interests and should refrain from developing allegiances to them. (MD-110)

24. Investigator Must Be, and Must Appear To Be, Unbiased and Objective The person assigned to investigate must not occupy a position in the agency that is directly or indirectly under the jurisdiction of the head of that part of the agency in which the complaint arose. (MD-110)

25. Investigator Must Be, and Must Appear To Be, Unbiasedand Objective Investigator, if a contract investigator, must not have been hired by or be obligated to the person(s) involved in the claims giving rise to the complaint. Example: Where the contract monitor of EEO investigation contracts is alleged to have been involved in discriminatory activity, the use of the usual contract investigator would create an apparent bias because there is at best the appearance that the contract investigator could not be impartial. (MD-110)

26. Investigator Must Be, and Must Appear To Be, Unbiasedand Objective An agency is prohibited, in some situations, from using its own investigative resources, and in such cases the agency must use alternatives such as contract investigators. Example 1: Particularly sensitive cases involving high-level officials, such as where complainant is an immediate subordinate of the head of the agency and the head of the agency is alleged to have taken discriminatory action. (MD-110)

27. Investigator Must Be, and Must Appear To Be, Unbiasedand Objective An agency is prohibited, in some situations, from using its own investigative resources, and in such cases the agency must use alternatives such as contract investigators. Example 2: Where there is a potential conflict of interest, such as where complainant is an employee in the EEO office and names the EEO Director as the person taking the wrongful action. (MD-110)

28. Investigator Must Be, and Must Appear To Be, Unbiasedand Objective An agency is prohibited, in some situations, from using its own investigative resources, and in such cases the agency must use alternatives such as contract investigators. Example 3: Where a small agency unable to carry out an unexpected EEO workload. (MD-110)

29. Investigator Must Be Thorough Investigator should identify and obtain all relevant evidence from all sources regardless of how it may affect the outcome. (MD-110)

30. Investigator Must Be Thorough Investigator need not expend the same amount of investigatory effort on each case. Investigation and amount of effort expended should be appropriate to determine the claims raised by the complaint. An appropriate investigation is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. (MD-110)

31. Investigator Must Be Thorough Investigator should ensure that his questions are answered by a witness with personal knowledge of the facts rather than by a party's representative. (MD-110)

32. Investigator Must Be Thorough Investigator need not concern himself with balancing the amount of evidence supporting the complainant as compared with the amount of evidence supporting the agency. To ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. (MD-110)

33. Investigator Must Be Thorough Investigator need not concern himself with balancing the amount of evidence supporting the complainant as compared with the amount of evidence supporting the agency. To ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. (MD-110)

34. Investigator Must Be Thorough "The best type of investigations allow for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames." (MD-110 § V(D).) (MD-110)

35. Developing the Inquiries EEOC Compliance Manual Volume II of the EEOC Compliance Manual will assist in developing inquiries. It contains substantive topics arranged in sections. Most sections contain advice on what questions to ask when certain issues are raised. (MD-110)

36. Quality of Evidence In order to support findings and, ultimately, decisions, this evidence should be materialto the complaint, relevant to the issue(s) raised in the complaint, and as reliableas possible. (MD-110)

37. Quality of Evidence Materiality of Evidence Evidence is material when it relates to one or more of the issues raised in the complaint or raised by the agency's answer to it. To determine whether evidence is material, the investigator must look to the claims of discriminatory conduct and harm contained in the complaint and the agency's answers to the claims. If the evidence relates to one or more of those claims, then it relates to the issues presented in the complaint, and it is material. (MD-110)

38. Quality of Evidence Relevance of Evidence Evidence is relevant if it tends to prove or disprove a material issue raised by a complaint. Evidence is relevant if it is material and it has probative value. (MD-110)

39. Quality of Evidence Reliability of Evidence Evidence is reliable if it is dependable or trustworthy. Evidence should not be ignored because it is of questionable reliability. Such evidence may lead to evidence that is reliable. (MD-110)

40. Quality of Evidence Reliability of Evidence Some Factors to Consider in Determining Reliability of Testimony: whether the witness's testimony is based on his own experience and personal knowledge, or based on rumor, hearsay, or innuendo; whether the testimony is a statement of fact or is merely a conclusion; Whether witness has an interest in the outcome of the complaint, or is otherwise biased. (MD-110)

41. Quality of Evidence Reliability of Evidence Some Factors to Consider in Determining Reliability of Documents: whether they were prepared in response to the investigation or whether they are maintained in the ordinary course of business; Whether they are obtained from the custodian of records or the author of the document; whether the documents are signed and dated. (MD-110)

42. Quality of Evidence Federal Rules of Evidence FRE do not apply in investigation of federal equal employment opportunity complaints, but may be used as a guide in assessing the evidentiary weight to be given particular items of evidence. (MD-110)

43. Quality of Evidence Types of Evidence Three basic types of evidence: direct evidence, circumstantial evidence, and statistical evidence. (MD-110)

44. Quality of Evidence Direct Evidence Direct evidence is evidence that proves a fact without resort to inference or presumption. Example: "I would never hire you for that job because you are a woman" is direct evidence of discrimination on the basis of sex in hiring, but would not be direct evidence if the issue involved a performance appraisal Direct evidence of discrimination is rare. (MD-110)

45. Quality of Evidence Direct Evidence Investigators must distinguish between direct evidence of bias and direct evidence of discrimination. Direct evidence of bias may be strong but circumstantial evidence of discrimination in a particular case. Example: "I would never hire a woman for that job," is direct evidence of bias, as not directed towards any specific person. It is circumstantial evidence of sex discrimination if the woman applied but was not hired. (MD-110)

46. Quality of Evidence Circumstantial Evidence Circumstantial evidence is evidence based on inference. The fact finder must draw an inference from the evidence to reach a factual conclusion. (MD-110)

47. Quality of Evidence Circumstantial Evidence Comparative Evidence An important type of circumstantial evidence. Evidence regarding how "similarly situated" persons outside of the complainant's protected groups were treated. "Similarly situated" means the persons who are being compared are so situated that it is reasonable to expect that they would receive the same treatment as the complainant in the context of a particular employment decision. (MD-110)

48. Quality of Evidence Circumstantial Evidence Comparative Circumstantial Evidence Individuals may be similarly situated for one employment decision, but not for another. Example: A female GS-4 clerk-typist may be similarly situated to a male GS-7 paralegal in a discrimination case involving the approval of annual leave where the same rules are applied to both employees by the same supervisor or where both are in the same unit or subject to the same chain of command. They would not be similarly situated in a case of discrimination in hiring of paralegals. (MD-110)

49. Quality of Evidence Circumstantial Evidence Comparative Circumstantial Evidence Complainant and the responding management official should provide a list of comparators for the challenged action. Investigator should find out whether there are other persons whose treatment could be compared to the complainant's treatment. (MD-110)

50. Quality of Evidence Circumstantial Evidence Comparative Circumstantial Evidence Comparative evidence is not always available. Therefore, the investigator should make an effort to obtain comparative evidence, but he also should make an effort to determine whether there may be other evidence probative of discrimination. (MD-110)