The Role of Agency Counsel in Federal Sector Eeo Investigations

By Rosenblum, Jeff | Labor Law Journal, Winter 2012 | Go to article overview

The Role of Agency Counsel in Federal Sector Eeo Investigations


Rosenblum, Jeff, Labor Law Journal


I. Introduction

Pursuant to regulations and guidance from the Equal Employment Opportunity Commission (EEOC), executive branch agencies conduct investigations of complaints of discrimination filed by internal employees.2 These investigations are conducted by agency employees, or contractors, and the methods utilized vary from live interviews to written questionnaires/affidavits.3

Throughout the history of EEO investigations, there has been debate over the proper role of agency attorneys providing counsel to management officials in the agencies.4 5 6 7 8 In February 2011, the allegation of improper conduct by Agency Counsel9 came squarely before the EEOC10 Rather than ruling on the issue, however, the EEOC affirmatively stated that it would not address the longstanding debate.11, I2

Following the Rucker decision, articles were published in various media, most drafted from the perspective of complainants' counsel.13 These articles espoused the view that Agency Counsel participation in the EEO investigative process was improper, and indeed, even unethical. In support of these assertions, the articles cited concerns such as "unfairness,"14 "conflicts,"15 and the amorphous prohibition against coaching witnesses.16 I7

This article will debunk the perpetuated myths that allege that Agency Counsel participation in EEO investigations is somehow improper and will argue that agencies have a statutory right to counsel during EEO investigations pursuant to the Administrative Procedures Act.

II. Background

An employee of an executive branch agency in the federal government has 45 days from the date of an alleged discriminatory act to file an informal complaint of discrimination with the employee's agency.18 I9 After receipt of the complaint, an EEO counselor will attempt to resolve the matter informally.20 If that effort fails, the complainant21 has 15 days to file a formal complaint with the agency.22

The agency's EEO office then makes a determination as to whether to accept or deny the complaint, in whole or in part, in accordance with EEOC regulations.23 If the agency accepts the complaint for investigation, it is required to conduct an impartial investigation of the allegations in the complaint through processes and guidelines set forth by EEOC regulation and Management Directive (MD) HO.24 The investigation process utilizes a wide range of fact-finding methods, such as sworn witness interviews, production of documents, interrogatories, conferences, or "any other fact-finding methods that efficiently and thoroughly address the matters at issue."25

Once the investigation is complete, the investigator produces a report of investigation (ROI).26 From the time the complainant receives a copy of the completed ROI, he or she has 30 days to decide whether to elect a hearing before an EEOC administrative judge (AJ),27 or to have the matter decided solely on the record by the complainant's own agency.28 If the complainant chooses the former, the AJ conducts an administrative hearing, similar in format to a federal civil case, which can include depositions, written discovery, dispositive motions, and a live hearing with witnesses.29 Regardless of the procedure chosen, the complainant may appeal an initial decision to the EEOCs Office of Federal Operations (OFO), which serves as an appellate body and publishes its decisions.30 31 Complainants always retain the right to file a de novo action in federal district court at any time after 180 days from the filing of the formal complaint.32 33 Appeals from final agency actions are reviewed de novo, except for the factual findings of an AJ, which are subject to a substantial evidence standard of review.34

The ROI, which contains witness statements and any documents produced during the investigation,35 36is generally the starting point for AJs presiding over EEOC cases.37 If a complainant chooses a decision on the record from his or her own agency, the contents of the ROI are generally the only information considered. …

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