July 16, 2008
This is the second of a two-part series on the burdens and responsibilities of complainants in EEO investigations.
Evidence of Discrimination
The complainant must explain why the responsible management official was motivated by discrimination when taking or deciding to take the action being challenged. There are several different types of evidence that can be used to demonstrate that the actions being challenged were motivated by discrimination, such as direct evidence, comparative evidence, and statistical evidence. Comparative evidence is the most popular type of evidence used. Comparative evidence requires a complainant to demonstrate that at least one similarly-situated employee or applicant was treated more favorably than the complainant.
For each fact that the complainant asserts about the bases of discrimination, the alleged discriminatory actions, or anything else relevant to the claims, the complainant is benefited by identifying individuals who have firsthand knowledge of and can corroborate that fact. Whether the witness will provide testimony, or even tell the truth, should not preclude the complainant from letting the EEO investigator know who else may have relevant information. The complainant needs to summarize the expected testimony of each proposed witness and to provide current contact information to the EEO investigator.
At the agency EEO investigative stage, a complainant is not required to provide a statement about compensatory damages, i.e., how the alleged discrimination has affected the complainant emotionally, physically, and/or financially. It is the duty of the EEO investigator to create a factual record so that reasonable a fact-finder, often an administrative judge, can determine whether the agency is liable for discrimination against the complainant. The issue of compensatory damages is only decided by a fact-finder after there has been a finding of liability. Discussions within the realm of federal-sector discrimination employment law are ongoing as to whether it is sound legal strategy for a complainant to provide a statement on compensatory damages during the EEO investigation.
The complainant's statement and rebuttal affidavit are critical to the agency meeting its obligation to develop an impartial and appropriate factual record. Although a rebuttal affidavit is necessary for the complainant to respond to the agency's alleged legitimate business reasons for taking the disputed action, not all agencies permit such an affidavit to be submitted during the EEO investigation. However, the agency can only obtain information about issues that the complainant has raised and his/her responses to its defenses. So, it should follow that a more complete and detailed complainant's statement and rebuttal affidavit will result in a more complete and thorough factual record. Regardless of how powerful the facts may appear to be, they still need further explanation and evidentiary support.
* 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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