Chapter 6 DEVELOPMENT OF IMPARTIAL AND APPROPRIATE FACTUAL RECORDS

Section 1614.108(b) of Title 29 C.F.R. requires 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 discrimination occurred. Pursuant to that regulation, this Chapter prescribes the Equal Employment Opportunity Commission's standards for impartiality and appropriateness in factual findings on formal complaints of discrimination. Further, because continuing education and training for employees working in federal EEO is vitally important, this Chapter also establishes a mandatory minimum training requirement for all investigators, including contract and collateral-duty investigators.

This Chapter is intended to ensure that federal agencies consistently develop sound factual bases for findings on claims raised in equal employment opportunity complaints while retaining the maximum flexibility in the use of fact-finding techniques and in the use of established dispute resolution plans. This Management Directive is not intended as an exhaustive guide for conducting investigations, but represents the standard that the Commission expects in an investigation.

All new EEO Investigators, including contract and collateral-duty investigators, must have completed at least thirty-two (32) hours of investigator training before conducting investigations. In addition to the training requirement for new investigators, all investigators are required to receive at least eight hours of continuing investigator training every fiscal year. The Commission has developed training courses to satisfy this requirement and offers them to agencies through its Revolving Fund Program on a fee-for-service basis. Agencies may also develop their own courses to satisfy this requirement or contract with others to provide training, as long as the training meets the standards provided below.

The agency should provide training on the following:

1. An overview of the entire EEO process pursuant to 29 C.F.R. Part 1614. This segment must emphasize important time frames in the EEO process, including relevant time frames for investigation.
2. The role and responsibility of an EEO Investigator, as described in this Management Directive.
3. A thorough presentation of the relevant statutes, including Title VII of the Civil Rights Act of 1964, as amended (includes the Pregnancy Act of 1978), the Rehabilitation Act of 1973, as amended, the Americans with Disabilities Act, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Equal Pay Act of 1963, as amended, and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. This module must explain the theories of discrimination relevant to these statutes, including disparate treatment, adverse impact, and reasonable accommodation theories. This module must provide detailed instruction concerning issues attendant to fragmentation. See Chapter 5, Section III of this Management Directive.
4. Case management issues, including information on practical techniques concerning the timely investigation of complaints.
5. Remedies, including compensatory damages, attorney's fees, and costs. This module must provide investigators with practical information on how to gather relevant information in cases where remedies, attorney's fees, and costs are at issue.
6. Investigative techniques, such as the gathering and analysis of evidence. Participants should be provided with an opportunity to get practical, hands-on experience during this module on topics such as interviewing witnesses, making credibility determinations, and the gathering and reviewing of documentary and electronic evidence. Participants should be provided with case studies to work with so that investigative skills can be effectively developed.

The continuing eight hours of investigator training every fiscal year is intended to keep EEO Investigators informed of developments in EEO practice, law, and guidance, as well as to enhance and develop investigatory skills. Agencies are encouraged to conduct a needs assessment to determine specific investigative staff training needs. The Commission anticipates that these eight hours of continuing investigator training will include segments on legal and policy updates, regulatory and statutory changes, and investigative skills development.

The Director of Equal Employment Opportunity shall ensure that 1) all new investigators receive at least thirty-two (32) hours of introductory investigator training before conducting investigations and that all investigators receive at least eight hours of continuing investigator training every year; 2) the claim(s) in a complaint are thoroughly investigated; 3) all employees of the agency cooperate in the investigation; and 4) witness testimony is given under oath or affirmation and without a promise that the agency will keep the testimony or information provided confidential. See 29 C.F.R. § 1614.102(c)(5).

The EEO Director will also ensure that individual complaints are properly and thoroughly investigated and that all final actions are issued in a timely manner in accordance with 29 C.F.R. § 1614.110. The EEO Director also must ensure that there is no conflict of interest or appearance of conflict of interest in the investigation of complaints. See Chapter 1 Section 4 of this Management Directive for more information.

The Equal Employment Opportunity Investigator is a person officially designated and authorized to conduct inquiries into claims raised in EEO complaints. The authorization includes the authority to administer oaths and to require employees to furnish testimony under oath or affirmation without a promise of confidentiality. The investigator does not make or recommend a finding of discrimination.

A new investigator must have received, at a minimum, thirty-two (32) hours of investigator training before s/he conducts an investigation; experienced investigators must receive eight hours of training every fiscal year thereafter.

The complainant must cooperate in the investigation and keep the agency informed of his/her current address. If an agency is unable to locate the complainant, the agency may dismiss the complaint, provided that reasonable efforts have been made to locate the complainant and the complainant has not responded within fifteen (15) days of the notice of proposed dismissal. 29 C.F.R. § 1614.107(a)(6).

Where the agency has provided the complainant with a written request to provide relevant information or otherwise proceed with the complaint, coupled with a 15-day notice of proposed dismissal, a failure to respond could result in dismissal of the complaint. See 29 C.F.R. § 1614.107(a)(7); Chapter 5, Section IV.B.1 of this Management Directive.

An investigation of a formal complaint of discrimination is an official review or inquiry, by persons authorized to conduct such review or inquiry, into claims raised in an EEO complaint.

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.

A copy of the complaint shall be provided to the investigator prior to the commencement of the investigation.

Models for the analysis of common types of discrimination cases appear at Appendix J to this Management Directive.

Investigative inquiries may be made using a variety of fact-finding models, such as the interview or the fact-finding conference, and a variety of devices, such as requests for information, position statements, exchange of letters or memoranda, interrogatories, and affidavits. The inquiry/review process may also incorporate some of the features of a dispute resolution plan.

The purpose of the investigation is 1) to gather facts upon which a reasonable fact finder may draw conclusions as to whether an agency subject to coverage under the statutes that the Commission enforces in the federal sector has violated a provision of any of those statutes; and 2) if a violation is found, to have a sufficient factual basis from which to fashion an appropriate remedy.^[1]

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;^[2] and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.

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. Regardless of amendment of or consolidation of complaints, the investigation shall be complete in not more than 360 days, unless there is a written extension of not more than 90 days.

For example, if a complainant amends a complaint or files another complaint the agency will consolidate on day 179 of the originally filed complaint, then the investigation must be complete by the 359th day.

If the complainant wants to add another amendment on the 358th day of the investigation, the agency will have only 2 days to investigate that amendment unless the complainant agrees in writing to an extension of not more than 90 days. When no written extension exists and the agency is unable to conduct an impartial and appropriate investigation in 2 days it should not consolidate or accept the amendment rather, the agency should advise the complainant to seek counseling on the newest matter and process it as a new complaint.

See Chapter 5, Section V.C of this Management Directive regarding an agency's failure to complete the investigation in a timely manner.

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.

The investigator may accomplish his/her mission in a variety of ways. The investigator may function as:

1. a presiding official at a fact-finding conference;
2. an examiner responsible for developing material evidence;
3. an issuer of requests for information in the form of requests for the production of documents, interrogatories, and affidavits;
4. a face-to-face interviewer in on-site visits; and/or,
5. any other role so long as appropriate investigative techniques/methods are utilized.

In whatever the mix of fact-finding activity selected for a particular case, the investigator must be and must maintain the appearance of being unbiased, objective, and thorough. S/he must be neutral in his/her approach to factual development. The investigator is not an advocate for any of the parties or interests and should refrain from developing allegiances to them. In addition, the following rules must be observed:

1. The person assigned to investigate shall 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.
2. The investigator, if a contract investigator, shall not have been hired by or be obligated to the person(s) involved in the claims giving rise to the complaint. For 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.
3. An agency is prohibited, in some situations, from using its own immediate investigative resources, even though the investigation of discrimination complaints in the federal service is primarily an agency function and responsibility. In such cases the agency shall use alternatives, such as contract investigators or other outside sources. See Chapter I, Section IV of this Management Directive for additional information regarding conflict of interest cases. Such situations include, but are not limited to:
   1. Particularly sensitive cases involving high-level officials (for example, complainant is an immediate subordinate of the head of the agency and the head of the agency is alleged to have taken discriminatory action).
   2. Potential conflict of interest (for example, complainant is an employee in the EEO office and names the EEO Director as the person taking the wrongful action).
   3. A small agency unable to carry out an unexpected EEO workload (for example, an agency with fewer than 450 employees, has a staff of part-time or ad hoc EEO Investigators, and is unable to absorb an additional investigative caseload).

This means identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome. Investigators need not expend the same amount of investigatory effort on each case, however. The proper scope of an investigation is dictated by the facts at issue. Investigators should not take a cookie-cutter, one-size-fits-all approach, as that wastes resources and delays resolution of the complaint. The investigation and the 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.

An investigator should ensure that his/her questions are answered by a witness with personal knowledge of the facts rather than by a party's representative. The investigator need not concern himself/herself 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. An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. Nevertheless, this investigation would 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.

Evidence will be gathered from the complainant, witnesses, and other sources. In order to support findings and, ultimately, decisions, this evidence should be material to the complaint, relevant to the issue(s) raised in the complaint, and as reliable as possible.

1. Material 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, one must look to the claims of discriminatory conduct and resultant 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.

2. Relevant Evidence

   Evidence is relevant if it tends to prove or disprove a material issue raised by a complaint. Relevancy and materiality are often used interchangeably. Generally, relevance is the more important concept in an investigation. If evidence is not relevant, whether it is material is of little consequence. A test of relevance is to ask, "What does this evidence tend to prove?" If the answer is that it tends to prove or disprove a proposition that is related to the complaint, then the evidence is relevant.

3. Reliable 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.

   Some factors to consider in determining whether testimony is reliable are: whether the witness's testimony is based on his/her 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; and whether witnesses have an interest in the outcome of the complaint, or are otherwise biased.

   Some factors to consider in determining whether documents are reliable are: 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; and whether the documents are signed and/or dated.

   The federal rules of evidence were designed to set limits on the reliability of documents and testimony entered in evidence in court. Such formal rules will not be strictly applied in the collection of evidence for the investigation of federal equal employment opportunity complaints. Such rules may be used, however, as a guide in assessing the evidentiary weight to be given particular items of evidence.

There are many types of evidence which can be obtained on the issues raised in an equal employment complaint. The three basic types of evidence are direct evidence, circumstantial evidence, and statistical evidence.

1. Direct Evidence

   Direct evidence is evidence that proves a fact without resort to inference or presumption. Black's Law Dictionary (9th ed. 2009). For example, in the morning the ground is covered with snow. If you looked out the window the night before and saw it snowing then, you have direct evidence that it snowed during the night. You need not draw any inference to reach the factual conclusion that it snowed during the night.

   Direct evidence is relevant in cases involving disparate treatment where the question is whether the employer intentionally treated employees differently because of a protected factor. It is also relevant in cases involving the effect of policies where the question is whether the policy disparately treats all employees in the protected class.

   Direct evidence is rare. The statement, "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, for example.

   Agencies must take care to 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. For example, the statement, "I would never hire a woman for that job," is direct evidence of bias, as not directed towards any specific person. See Heim v. State of Utah, 8 F.3d 1541, 1546 (10th Cir. 1993). In contrast, a statement to a complainant that you "may be getting too old to understand the store's new computer programs" was deemed direct evidence of discrimination in Wright v. Southland Corp., 187 F.3d 1287, 1304 (11th Cir. 1999) because it was directed at a specific person.

2. Circumstantial Evidence

   Circumstantial evidence is evidence based on inference. Black's Law Dictionary (9th ed. 2009). In other words, the fact finder must draw an inference from the evidence to reach a factual conclusion.

   For example, if you looked out the window at night and the ground was bare, but when you look out the window the next morning, there is snow on the ground, the snow on the ground is circumstantial evidence that it snowed during the night. From the presence of snow on the ground, you reasonably may infer that it snowed during the night. You have drawn an inference to reach the factual conclusion that it snowed during the night.

   There are different types of circumstantial evidence. For example, comparative evidence must be sought in every case alleging disparity in treatment on a basis protected by a law enforced by the Commission. Comparative evidence is evidence regarding how similarly situated persons outside of the complainant's protected groups were treated.

   In general, similarly situated means that 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. It is important to remember that individuals may be similarly situated for one employment decision, but not for another. For 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. The investigator would be obligated to find out whether there were persons, not named by the complainant but similarly situated, whose treatment could be compared to the complainant's treatment.^[3] Both the complainant and the responding management official should provide a list of comparators for the challenged action.

   Other types of circumstantial evidence may include general statements indicative of bias (see the example in "Direct Evidence," above), conduct (for example, a selecting official repeatedly has selected only males for job vacancies, despite the availability of best-qualified female candidates), or environment (for example, an absence of Hispanics in the workplace despite their availability in the relevant labor force). Circumstantial evidence may overlap with statistical evidence.

3. Statistical Evidence

   Statistical evidence or a survey of the general environment may be conducted as appropriate. For example, this evidence may be probative when claims involve the comparative treatment of groups, as in a claim of a pattern or practice of discrimination, or the adverse effect of an agency policy or practice.

1. The Complainant

   The complaint will generally provide the initial information concerning the bases, issues, and incidents that gave rise to the complaint of discrimination. The complaint may also indicate the reason, if any was given, for any adverse employment decision. Additional background and detailed information must be obtained from the complainant and recorded through written questions and answers (interrogatories), recorded interviews (using handwritten notes or verbatim transcription), an exchange of letters or memoranda, or a fact-finding conference. This information should include medical documentation, where necessary. Witness testimony intended to be made a part of the complaint file should be made under oath or affirmation or penalty of perjury.

   Volume II of the Commission's Compliance Manual will assist in developing inquiries. That volume contains substantive topics arranged in sections. Most sections contain advice on what questions to ask when certain issues are raised. The Commission's Compliance Manual is published commercially and is available at many libraries and at the Commission's district, area, and field offices. In addition, newly issued sections of the Compliance Manual and Commission policy guidance on issues such as reprisal, definition of disability, reasonable accommodation, and sexual harassment are available on the Commission's website at: https://www.eeoc.gov/guidance-subject-area.

2. The Agency

   Information from the agency may be obtained initially through a request for information. Consult the agency EEO Director for instructions concerning to whom to direct the request.

   Follow-up information should be obtained in a variety of ways, including further requests, affidavits, interrogatories, or a fact-finding conference.

   In most instances, the individual who initiated or enforced the decision or engaged in the action about which the complaint was filed should be interviewed early in the investigation. His/her reasons for the action will often open other avenues to explore.

   For this reason, a management official's explanation of a challenged action should be detailed and specific. In a non-selection type case, stating the person selected was better qualified or a better fit for the position is insufficient standing alone. Interview notes and any explanation should include a narrative as to why the management official believes the selectee was a better candidate.

3. Witnesses

   Witnesses can be identified by asking the complainant, the official involved in the alleged discriminatory action, or other obvious witnesses if they are aware of other persons who might have information related to the complaint. Witnesses need not be employees at the respondent agency.

   1. The EEO staff may be of some assistance in discovering other witnesses, but they should rarely be witnesses themselves. Their information will usually be hearsay and their participation as witnesses would compromise their objectivity. Information should be obtained from its primary source.
   2. Witness bias should be noted when it is discovered. The following should be noted: 1) favorable feelings toward a party based on a mutual alliance, family ties, or close friendship; 2) hostility to a party, because of a past disagreement; and 3) self-interest in the outcome of the complaint are some indicators of potential bias. The indicators should be made a part of the record, and efforts should be made to corroborate the testimony. The weight accorded the evidence by the fact finder adduced from such witnesses will be governed by the degree to which it can be determined that the bias colored the testimony.
4. Documentary Evidence

   All relevant documents should be obtained. The complainant, the supervisor, the manager who took the personnel action, or the personnel office of the agency may be sources to help identify relevant documents.

   Statistical evidence usually can be obtained through the EEO Office or the personnel office of the agency.

The investigator should gather evidence that will allow for an appropriate remedy to be fashioned. This essentially means that a determination of the parameters of relief should be made and the appropriate inquiries developed. Agencies should be aware that, during the investigative process, they need to address evidence that may be used in connection with framing remedies. Evidence on the question of remedies may include evidence of a complainant's interim earnings or subsequent promotions (in a discharge or non-promotion case), compensatory damages, or other mitigating factors. For a source of information concerning compensatory damages, see Enforcement Guidance; Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, N-915.002 (July 14, 1992).^[4]

The procedures outlined here relate specifically to the processing of individual complaints of discrimination under 29 C.F.R. § 1614.108. The principles reflected in these procedures, however, should also guide the processing of class complaints of discrimination under 29 C.F.R. § 1614.204.

1. To the Complainant

   The complainant must receive a copy of the complaint file and a transcript of the hearing, if a hearing is held. The complainant should be given the opportunity to receive a copy of the complaint file and hearing transcript in an electronic format as an alternative to the paper files/documents. The complainant should receive the same copy of the complaint file as the agency counsel does and where a hearing was requested as the Administrative Judge does.

2. To Other Witnesses

   During the investigation, the investigator may disclose information and documents to a witness who is a federal employee where the investigator determines that the disclosure of the information or documents is necessary to obtain information from the witness, for example, to explain the claims in a complaint or to explain a manager's articulated reason for an action in order to develop evidence bearing on that reason. Explanations of a witness' credibility are helpful, and the investigator should include observations on credibility without making a final conclusion as to credibility.

1. Witness Employed by the Federal Government

   Section 1614.605(f) of 29 C.F.R. requires that a witness be in an official duty status when his/her presence is required or authorized by agency or Commission officials in connection with a complaint. A witness is entitled to travel expenses. If a witness is employed at an agency other than the one against which the complaint is brought and must travel to provide the attestation or testimony, the witness is entitled to reimbursement for travel expenses. The current employing agency of a federal employee must initially authorize and pay the employee's travel expenses and is entitled to reimbursement from the responding agency, which is ultimately responsible for the cost of the employee's travel. John Booth - Travel Expenses of Witness - Agency Responsible, File: B-235845, 69 Comp. Gen. 310 (1990). An agency would not be responsible for paying the travel expenses of non-federal witnesses.

2. Complainant or Applicant Not Employed by Federal Government

   The agency is not responsible, however, for paying the travel expenses of a complainant or applicant who is not employed by the federal government. Although the complainant who, for purposes of his/her complaint is a witness, may once have been employed by the agency against whom s/he complains, the termination of the employment status with the federal government also terminates any federal obligation to pay travel expenses associated with prosecution of the complaint. Expenses of Outside Applicant Complainant to Travel to Agency EEO Hearing, File: B-202845, 61 Comp. Gen. 654 (1982).

Section 1614.605 of 29 C.F.R. provides that individuals/complainants are entitled to a representative of their choice during the administrative EEO pre-complaint counseling and at all stages of the administrative EEO complaint process. Both the complainant and the representative, if they are employees of the agency where the complaint arose and was filed, are entitled to a reasonable amount of official time to present the complaint and to respond to agency requests for information, if otherwise on duty. 29 C.F.R. § 1614.605(b). Former employees of an agency who initiate the EEO process concerning an adverse action relating to their prior employment with the agency are employees within the meaning of 29 C.F.R. § 1614.605, and their representatives, if they are current employees of the agency, are entitled to official time. Witnesses who are federal employees, regardless of whether they are employed by the respondent agency or some other federal agency, shall be in a duty status when their presence is authorized or required by Commission or agency officials in connection with the complaint.

1. Reasonable Amount of Official Time

   "Reasonable" is defined as whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to agency requests for information. The actual number of hours to which complainant and his/her representative are entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the agency and the agency's need to have its employees available to perform their normal duties on a regular basis. The complainant and the agency should arrive at a mutual understanding as to the amount of official time to be used prior to the complainant's use of such time. Time spent commuting to and from home should not be included in official time computations because all employees are required to commute to and from their federal employment on their own time.

2. Meeting and Hearing Time

   Most of the time spent by complainants and their representatives during the processing of a typical complaint is spent in meetings and hearings with agency officials or with the Commission Administrative Judges. Whatever time is spent in such meetings and hearings is automatically deemed reasonable. Both the complainant and the representative are to be granted official time for the duration of such meetings or hearings and are in a duty status regardless of their tour of duty. If a complainant or representative has already worked a full week and must attend a hearing or meeting on an off day, that complainant or representative is entitled to official time, which may require that the agency pay overtime. The complainant should notify the agency of the meeting and hearing schedule as soon as possible.

3. Preparation Time

   Since presentation of a complaint involves preparation for meetings and hearings, as well as attendance at such meetings, conferences, and hearings, complainants and their representatives are also afforded a reasonable amount of official time, as defined above, to prepare for meetings and hearings. They are also to be afforded a reasonable amount of official time to prepare the formal complaint and any appeals that may be filed with the Commission, even though no meetings or hearings are involved. However, because investigations are conducted by agency or Commission personnel, the regulation does not envision large amounts of official time for preparation purposes. Consequently, "reasonable," with respect to preparation time (as opposed to time actually spent in meetings and hearings), is generally defined in terms of hours, not in terms of days, weeks, or months. Again, what is reasonable depends on the individual circumstances of each complaint. See Murry v. General Services Administration, EEOC Appeal No. 0120093069 (July 26, 2012).

4. Aggregate Time Spent on EEO Matters by Representative

   The Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed. Therefore, an agency may restrict the overall hours of official time afforded to a representative, for both preparation purposes and for attendance at meetings and hearings, to a certain percentage of that representative's duty hours in any given month, quarter, or year. Such overall restrictions would depend on the nature of the position occupied by the representative, the relationship of that position to the mission of the agency, and the degree of hardship imposed on the mission of the agency by the representative's absence from his/her normal duties. The amount of official time to be afforded to an employee for representational activities will vary with the circumstances.

   Moreover, 29 C.F.R. § 1614.605(c) provides that in cases where the representation of a complainant or agency would conflict with the official or collateral duties of the representative, the Commission or the agency may, after giving the representative an opportunity to respond, disqualify the representative. At all times, the complainant is responsible for proceeding with the complaint, regardless of whether s/he has a designated representative.

   The Commission does not require agencies to provide official time to employee representatives who are representing complainants in cases against other federal agencies. However, the Commission encourages agencies to provide such official time.

5. Requesting Official Time

   The agency must establish a process for deciding how much official time it will provide a complainant. Agencies further must inform complainants, their representatives, and others who may need official time, such as witnesses, of the process and how to claim or request official time.

6. Denial of Official Time

   If the agency denies a request for official time, either in whole or in part, the agency must include a written statement in the complaint file noting the reasons for the denial. If the agency's denial of official time is made before the complaint is filed, the agency shall provide the complainant with a written explanation for the denial, which it will include in the complaint file if the complainant subsequently files a complaint. Where a request for official time is denied in whole or part while an Administrative Judge is presiding over the matter, a copy of the agency's denial of official time with the requisite explanation should be provided to the Administrative Judge when provided to the requestor.

For purposes of these regulations, "duty status" means the complainant's or representative's normal hours of work.

It is expected that the agency will, to the extent practical, schedule meetings during the complainant's normal working hours and that agency officials shall provide official time for complainants and representatives to attend such meetings and hearings.

If meetings, conferences, and hearings are scheduled outside of the complainant's or the representative's normal work hours, agencies should adjust or rearrange the complainant's or representative's work schedule to coincide with such meetings or hearings, or grant compensatory time or official time to allow an approximately equivalent time off during normal hours of work. The selection of the appropriate method for making the complainant or representative available in any individual circumstance shall be within the discretion of the agency.

Any reasons for an agency's denial of official time should be fully documented and made a part of the complaint file, and if an Administrative Judge is presiding over the matter at the time of the request, then it should be provided to the Administrative Judge at the same time as it is provided to the requestor.

Witnesses, who are federal employees, regardless of their tour of duty and whether they are employed by the respondent agency or another federal agency, must be in a duty status when their presence is authorized or required by Commission or agency officials in connection with a complaint.

The complainant's or complainant's non-attorney representative's use of government property (copiers, telephones, word processors, computers, internet, printers, and email) must be authorized prior to their use by the agency and must not cause undue disruption of agency operations.

The complaint file must include all various documents and information acquired during the fact-finding under this Directive. The complaint file will be assembled as an electronic document, unless the agency has demonstrated good cause as to why the agency cannot produce a digital copy of the file, in which case a paper file may be submitted. While cost alone does not constitute good cause why an agency cannot submit files in a digital format, OFO will consider facts such as undue cost, undue burden, national security concerns, and other reasonable bases. The complaint file must contain all documents pertinent to the complaint, and be in the form and format as provided in Appendix L, as demonstrated in the sample complaint file available on the Commission's website at https://www.eeoc.gov/federal-sector.

The complaint file should not include confidential documentation concerning the substance of attempts to resolve the complaint during informal counseling or during any alternative dispute resolution procedure.

Agencies should not place non-relevant information in complaint files. Where names, social security numbers, home addresses, and any other personal identifying information are not relevant, that information should be redacted before the document containing them is included in the compliant file. Relevant information that should not be redacted includes management and/or comparative employees'/applicants' names. Once a document is included in the complaint file, the complainant has a right to the entire file. All parties including the agency representative, the complainant and his/her counsel, and the Administrative Judge should all have the same complaint file, either without redactions or containing the same redactions.^[5]

The digital complaint file shall have the following features:

1. File should be image over text or run through OCR text recognition such that it is a searchable document.
2. It should contain digital bookmarks identifying key documents, exhibits, and sections of the file as specified below Bookmarks should be labeled in a manner that clearly identifies the key documents, (for example, EEO Counselor's Report, rather than generic labels) within each identified section.^[6]
3. It should contain a typed summary of the investigation signed and dated by the investigator and containing a discussion and analysis of the evidence. See Section IX of this Chapter.

Agencies should organize complaint files in the following manner, with digital bookmarks specifically identifying the section and key documents therein.

If an agency has submitted a digital complaint file to a Commission Hearing Office pursuant to 29 C.F.R. § 1614.108(h), any Bates numbering shall be maintained in its original form. Administrative Judge documents added after the original complaint file was compiled may be submitted in a separate PDF file that must contain a title page and bookmarks to the applicable sections of the original file where the documents belong.

The complainant and his/her representative shall be entitled to one copy each of the complaint file and investigative summary either at the time that the investigation is completed or when the agency sends the complainant the notice required by 29 C.F.R. § 1614.108(f), whichever is earlier. The complainant and his/her representative should be given the option to receive these documents in a digital and/or paper medium.

1. Effective December 8, 1998, the National Archives and Records Administration (NARA) revised General Records Schedule (GRS) 1, Item 25, titled Equal Employment Opportunity Records, provides:

   Equal Employment Opportunity Records.

   1. Official Discrimination Complaint Files.

      Originating agency's file containing complaints with related correspondence, reports, exhibits, withdrawal notices, copies of decisions, records of hearings and meetings, and other records. Cases resolved within the agency, by the Commission, or by a U.S. Court.^[7]

   Authorized Disposition

   Destroy four years after resolution of case.

2. The agency originating the equal employment opportunity case will retain the original ("official") file during the appeals process and send only duplicate copies of documents to the Commission for use in the appeal. The agency sending the duplicates will certify that the file contains everything that is in the original.
3. The Commission will create documents relating to the appeal, but will file such documents apart from the materials sent by the originating agency. After resolution of the appeal, the Commission will destroy all duplicate materials, but will retain the appeals documentation for four years. The originating agency will retain the original file for four years after resolution of the case. The Commission will retain the appeals documentation and will answer Freedom of Information Act requests on the appeals file. The Commission will maintain the security of documents as required by Federal Statutes and Executive Orders.
4. The originating agency will be responsible for retiring the original case file to the Federal Records Center, and answering Freedom of Information Act requests on the original file. Requests for disclosure, which the Commission determines are requests for the agency's complaint file, will be forwarded to the agency for a response.
5. Further information concerning the disposition of records under this section may be obtained by reviewing NARA GRS 1, which is available on the NARA website at www.nara.gov or by contacting:

   Equal Employment Opportunity Commission
   Office of Federal Operations
   P.O. Box 77960
   Washington, D C 20013

   Telephone: (202) 663-4599

The investigative summary is a narrative document that succinctly states the issues and delineates the evidence addressing both sides of each issue in the case. The summary should state facts (supported in the complaint file) sufficient to sustain a conclusion(s). The summary should cite to evidence and the exhibits collected.

Within the appropriate time frame for finishing an investigation under 29 C.F.R. § 1614.108(e), and prior to issuance of the notice required by 29 C.F.R. § 1614.108(f), agencies are encouraged to allow complainants and their designated representatives an opportunity to examine the investigative file and to notify the agency, in writing, of any perceived deficiencies in the investigation prior to transferring the case to the Commission for a hearing or prior to taking a final action without a hearing. A copy of the complainant's notification to the agency of perceived deficiencies must be included in the investigative file together with a written description by the agency of the corrective action taken.

If the agency agrees with alleged deficiencies in the investigation as identified by the complainant, the agency must immediately correct them. If the investigation period has ended or is about to end, the agency should request agreement from the complainant to extend the investigation period pursuant to 29 C.F.R. § 1614.108(e). If the agency does not agree with the complainant's claimed deficiencies in the investigative file, the agency will prepare a statement explaining the rationale for the disagreement and include it in the investigative file along with the complainant's notice of claimed deficiencies.

When the agency affords the complainant the opportunity to review the draft report of investigation, it should also afford the agency representative the same option.

Agencies and complainants each have a duty to cooperate with the investigator during the investigation. See 29 C.F.R. § 1614.108(c)(1). Pursuant to 29 C.F.R. § 1614.108(c)(3), a party to a complaint - the complainant as well as the agency - may be subject to sanctions where it fails without good cause shown to respond fully and in a timely fashion to a request of the investigator for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses. The investigator shall make a note in the investigative file concerning the party's failure without good cause shown to comply with a request for information or the attendance of witnesses, and the decision maker (Administrative Judge during the hearing process or the agency where the complainant requests a final agency decision) or the Commission on appeal may, in appropriate circumstances:

1. draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information;
2. consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party;
3. exclude other evidence offered by the party failing to produce the requested information or witness;
4. issue a decision fully or partially in favor of the opposing party; or
5. take such other actions as it deems appropriate.

An investigator should inform the party from which it seeks documents, records, comparative data, statistics, affidavits, or the attendance of witnesses that failure to comply with the request may lead to the imposition of sanctions from the decision maker or the Commission on appeal. An investigator may, in an initial request for information or the attendance of witnesses, advise the party that, absent good cause shown, the party has a duty to respond fully and in a timely fashion to the investigator's request and that failure to do so may result in the imposition of the sanctions set forth at 29 C.F.R. § 1614.108(c)(3). Where the investigator does not so inform the party upon making the request, s/he may advise the party upon the party's failure to comply with the request. If the investigator properly advised the party that a failure to comply with the request may result in the sanctions set forth at 29 C.F.R. § 1614.108(c)(3), the decision maker or Commission on appeal may impose such sanctions upon receipt and review of the complaint/appeal file.

Section 1614.108(b) of 29 C.F.R. requires that an agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the written complaint. The Commission's regulations explain that an appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." 29 C.F.R. § 1614.108(b). The Commission's Administrative Judges and the Office of Federal Operations have the authority to issue sanctions against an agency for its failure to develop an impartial and appropriate factual record in appropriate circumstances.^[8]

Where it is clear that the agency failed to develop an impartial and appropriate factual record, an Administrative Judge may exercise his/her discretion to issue sanctions. In such circumstances, the sanctions listed in 29 C.F.R. § 1614.109(f)(3) are available. See Petersel v. U.S. Postal Service, EEOC Appeal No. 0720060075 (Oct. 30, 2008)(Administrative Judge properly drew an adverse inference against the agency when the investigative report failed to include any comparative data on other employees); Royal v. Dep't. of Veterans Affairs, EEOC Appeal No. 0720070045 (September 25, 2009)(finding that the agency's delay in completing the investigation within the 180-day regulatory period is no small noncompliance matter and warrants a sanction). Even when an agency eventually completes the investigation during the hearing stage an Administrative Judge may issue sanctions in appropriate circumstances.^[9]

Before an Administrative Judge may sanction an agency for failing to develop an impartial and appropriate factual record, the Administrative Judge must issue an order to the agency or request the documents, records, comparative data, statistics, or affidavits. 29 C.F.R. § 1614.109(f)(3). Such order or request shall make clear that sanctions may be imposed and the type of sanction that could be imposed for failure to comply with the order unless the agency can show good cause for that failure. See Rountree v. Dep't. of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). The notice to show cause to the agency may, in appropriate circumstances, provide the agency with an opportunity to take such action as the Administrative Judge deems necessary to correct the deficiencies in the record. This may include curing the defects in the investigation caused by improper interference by the agency's general counsel, if possible; and/or disqualifying counsel from continuing to represent the agency before the Commission. The Administrative Judge also shall provide the agency with a reasonable period of time within which to take the action that the Administrative Judge has deemed necessary. Only on the failure of the agency to comply with the Administrative Judge's order or request and the notice to show cause may the Administrative Judge impose a sanction or the sanctions identified in the order or request.^[10]

The Commission encourages the resolution of complaints at all times in the complaint process through a variety of settlement mechanisms. Section 1614.109(c) of 29 C.F.R. provides for one of these mechanisms by permitting agencies to make an "offer of resolution" to complainants. The Commission believes that this provision will provide incentive for agencies and complainants to resolve complaints and that it will conserve agency resources where settlement reasonably should occur. If a complainant does not accept an offer of resolution made in accordance with the requirements of 29 C.F.R. § 1614.109(c) and subsequently obtains less relief than had been offered, the complainant's attorney's fees will be limited, as described below. It should be emphasized that the offer of resolution is only one mechanism by which complaints may be settled.

An offer of resolution made pursuant to 29 C.F.R. § 1614.109(c) can be made to a complainant who is represented by an attorney at any time after the filing of a formal complaint until thirty (30) days before a hearing. If, however, the complainant is not represented by an attorney, an offer of resolution cannot be made before the case is assigned to an Administrative Judge for a hearing. (These time and representation provisions apply only to offers of resolution and do not restrict the parties from discussing settlement or engaging in an alternate dispute resolution process in an effort to resolve an EEO complaint.)

Complainants have 30 days from receipt of an offer of resolution to consider the offer and decide whether to accept it. Offers of resolution must be in writing and must explain to the complainant the possible consequences of failing to accept the offer. The agency's offer, to be acceptable, must include attorney's fees and costs, and must specify any non-monetary relief. The agency may offer a lump sum payment that includes all forms of monetary liability, including attorney's fees and costs, or the payment may itemize the amounts and types of monetary relief being offered. Complainant's acceptance of the offer must also be in writing. Upon acceptance, the complaint is settled in full and processing ceases.

If a complainant decides not to accept the offer, the agency takes no immediate action, and the complaint continues to be processed normally. After the hearing is completed, if the Administrative Judge (or the Commission on appeal) concludes that discrimination has occurred, but provides for less relief than the amount offered by the agency earlier in its offer of resolution, then the agency may use complainant's decision not to accept its offer of resolution to argue for a reduction in its obligation to pay complainant's attorney's fees. In general, if a complainant fails to accept a properly made offer, and the relief ordered on the complaint is not more favorable than the offer, then the complainant will not receive payment from the agency for attorney's fees or costs incurred after the expiration of the 30-day acceptance period.

It should be noted, however, that an exception to this general rule exists where the interests of justice would not be served. An example of an appropriate use of the interests of justice exception is where the complainant received an offer of resolution, but was informed by a responsible agency official that the agency would not comply in good faith with the offer (for example, would unreasonably delay implementation of the relief offered). If the complainant did not accept the offer for that reason, and then obtained less relief than was obtained in the offer, it would be unjust to deny attorney's fees and costs.

A complainant's failure to accept an offer of resolution does not preclude the agency from making other offers of resolution or either party from seeking to negotiate a settlement of the complaint at any time.

When comparing the relief offered in an offer of resolution with that actually obtained, the Commission intends that non-monetary as well as monetary relief be considered. Although a comparison of non-monetary relief may be inexact and difficult in some cases, non-monetary relief can be significant and cannot be overlooked. Attorney's fees and costs incurred after the offer of resolution may not be included in the amount actually obtained for comparison purposes. For guidance, parties may wish to refer to court cases deciding issues involving an offer of judgment made pursuant to Rule 68 of the Federal Rules of Civil Procedure. See, for example, Marek v. Chesney, 473 U.S. 1 (1985). While not identical, the Commission's offer of resolution provision was modeled on the Rule 68 offer of judgment process.

The preamble to the Commission's regulations noted that this Management Directive would include model language for agency use in extending offers of resolutions:

This offer of resolution is made in full satisfaction of the claims of employment discrimination that you have made against [name of agency] in [identify the complaint by number or other clear and unambiguous designation]. This offer includes all of the monetary and/or non-monetary relief to which you are entitled, including attorney's fees and costs.

[For complainants who are not represented by counsel include this paragraph:]

Your acceptance of this offer must be made in writing and postmarked or received in this office within thirty (30) days of your receipt of the offer. If you accept this offer, please indicate your acceptance on the enclosed original offer by signing on the line appearing above your name and include the date of your acceptance on the line appearing adjacent to your name. You should send or deliver your acceptance of the offer to the undersigned at the address specified below.

[For complainants represented by counsel, substitute the following paragraph:]

The complainant's acceptance of this offer must be made in writing and postmarked or received in this office within thirty (30) days of your receipt of the offer. If the complainant accepts this offer, please indicate your acceptance on the enclosed original offer by signing on the line appearing above your name and include the date of your acceptance on the line appearing adjacent to your name. Please also obtain the signature of the complainant, which should be placed on the line appearing above [his/her] name and include the date of [his/her] acceptance on the line appearing adjacent to [his/her] name. This offer will not be deemed to have been accepted without the signature of both you and the complainant. You should send or deliver your acceptance of the offer to the undersigned at the address specified below.

[The following paragraphs must be included in offers sent to ALL complainants:]

If you do not accept this offer of resolution and the relief that you are eventually awarded by the Administrative Judge, or the Equal Employment Opportunity Commission on appeal, is less than the amount offered, you will not receive payment for the attorney's fees or costs that you incur after the expiration of the 30-day acceptance period for this offer. The only exception to this rule is where the Administrative Judge or Commission rules that the interests of justice require that you receive your full attorney's fees and costs.