1. Developing an Impartial and Appropriate Factual Record
Diane Arkow Gross, Supervisory Administrative Judge for the Los Angeles District Office
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2. Who Develops the Record?
29 C.F.R. § (b) mandates 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.” 
At the hearing stage “the administrative judge shall assume full responsibility for the adjudication of the complaint, including overseeing the development of the record.” 29 C.F.R. § (a)
“[T]he 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 or appear to constitute discrimination, even though thy have not been expressly cited by the complainant.” MD-110, Ch. 6.
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3. Evidence to Include in the Record – All Claims
Affidavits from Complainant and RMOs
Has the investigator asked Complainant enough questions to fully articulate the potential claim?
Has the investigator thrown the RMOs softballs or neglected to ask a crucial question?
Timeliness: Is Complainant trained or on notice through posters in the workplace regarding counseling, deadlines for filing informal and formal complaint or request for hearing?
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4. Non-Selection Vacancy Announcement Best Qualified List
Applications and Resumes for Complainant and Interviewees
Interview Questions and Notes
Answer Key to Interview Questions
Rating Sheet
Reason why Complainant was not selected or reasons for scores for Complainants and selectees
Affidavits of the panel members
Demographic information for other applicants
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5. Disciplinary Actions Letter(s) of Counseling/Instruction/Reprimand
Complainant’s past disciplinary history
Disciplinary records of others in employee’s work group who committed same violation
Affidavits from any employee witnesses identified by Complainant
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6. Harassment
correspondence between Complainant and management reporting harassment.
Agency’s harassment policy.
EEO training records for Complainant, any accused harassers, and RMOs.
Documentation of what Agency did when notified of the harassment
Affidavits from any employees identified by Complainant as witnesses to the harassment.
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7. Failure to Accommodate
Job description/duties of positon.
Record of Agency’s individualized assessment of Complainant’s condition.
Evidence that Complainant requested an accommodation.
Evidence detailing Agency’s efforts to accommodate.
Undue hardship evidence
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8. Reprisal Record of any prior EEO activity
Correspondence where complainant notifies RMO of prior protected activity.
Correspondence containing opposition activity; e.g., complaining to a supervisor about harassment because of a protected basis or reporting other discrimination because of a protected basis.
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9. Statistical Evidence
Investigators will often include reams of employee data in the ROI
Failure to provide encyclopedic statistical data does not necessarily render a record incomplete.
The AJ should weigh the usefulness of such data on a case by case basis.
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10. Investigator Impartiality
Agency’s often rely on contractors to conduct investigations, raising potential for “repeat customer” bias.
The investigator’s summary and conclusions are only starting points and not part of the record. Parties will often erroneously cite to it.
How thorough were the questions posed to the RMO’s?
If complainant mentioned a document or did the investigator ask the Agency to produce it?
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11. Considerations for Unrepresented Complainants
An AJ may elect to give more attention to developing the record when the complainant proceeds pro per.
An unrepresented complainant is unlikely to be able to effectively use the discovery process to develop the record.
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12. Incomplete Investigations
Every ROI should include a note from the investigator detailing any requested documents which the Agency failed to produce. 29 C.F.R. § (c)(3).
If the AJ reviews the investigative report and finds that the agency did not sufficiently comply with its obligation under 29 C.F.R (b) to develop an impartial factual record from which a reasonable fact finder could determine whether discrimination occurred, or if no investigation has been conducted, the AJ retains jurisdiction over the complaint. In order to develop the record, the AJ may order the agency
to complete an investigation within a particular time period;
allow the parties to develop the record themselves through discovery;
issue orders for the production of documents and witnesses; or
consider appropriate sanctions. The parties shall initially bear their own costs with regard to discovery, unless the Administrative Judge requires the agency to bear the costs for the complainant to obtain depositions or any other discovery because the agency has failed to complete its investigation as required by 29 C.F.R (e) or has failed to investigate the allegations adequately pursuant to EEO MD-110, Chapter Six. Handbook for Administrative Judges, Ch. 1, Part I(D)(2) (July 1, 2002).
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13. Supplementing the Record
Even a satisfactory investigation may require supplementation
The AJ may allow the parties to develop the record themselves through discovery
Or the AJ may herself request additional evidence from the parties
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14. Sanctions
The Agency may face sanctions for failure to conduct an adequate investigation.
Before issuing sanctions, the AJ must first issue an Order to Show Cause and allow the Agency a reasonable opportunity to explain any omissions, or preferably, to produce any evidence missing from the record. 29 C.F.R. § (f)(3); MD-110 Chapter 7, Section 3(A).
If the Agency is unable to show cause or produce missing evidence, the AJ may impose appropriate sanctions. It is within the AJ’s discretion to draw an adverse inference related to missing evidence, and in egregious situations, enter default judgment.
Note that complainants may also face consequences for failure to participate in the investigation. For instance, a complainant may refuse to answer an investigator’s questions or may altogether absent herself from the investigation.

15. Consequences for the AJ
MD-110 Chapter 7, Section 3 provides a general overview of the AJ’s responsibilities in developing the record.
An AJ risks reversal and/or remand when she issues summary judgment based on an incomplete record.
Is there sufficient evidence produced in the record to support the Agency’s offered non-discriminatory justification?
Is the record omitting potential evidence that would tend to establish pretext?

16. Questions? Thank you for attending!
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