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COpatriots  
#1 Posted : Tuesday, February 26, 2019 9:53:55 AM(UTC)
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I filed an EEO Disability Discrimination Case against my old 1st line after I left the agency. I am in the Investigation stage and the Agency is making me jump through hoops to request emails, documents and Skype messages which would contradict the affidavit that both the 1st line and the 2nd line submitted. The Investigator only gave me a week to file a rebuttal and I do not have the evidence yet from the Agency that shows the actual proof which would sink both them and for me to win my case.

I have filed a FOIA request but is there anything else I should be doing to request these records? If they delay in sending me the documents outside of the 20 days allowed by FOIA law, do I have any recourse? Once I receive the documents I will be sending the EEO Director a Supplement Affidavit and Attachments to add to the ROI.
TheRealOrange  
#2 Posted : Tuesday, February 26, 2019 10:48:27 AM(UTC)
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Originally Posted by: COpatriots Go to Quoted Post
I filed an EEO Disability Discrimination Case against my old 1st line after I left the agency. I am in the Investigation stage and the Agency is making me jump through hoops to request emails, documents and Skype messages which would contradict the affidavit that both the 1st line and the 2nd line submitted. The Investigator only gave me a week to file a rebuttal and I do not have the evidence yet from the Agency that shows the actual proof which would sink both them and for me to win my case.

I have filed a FOIA request but is there anything else I should be doing to request these records? If they delay in sending me the documents outside of the 20 days allowed by FOIA law, do I have any recourse? Once I receive the documents I will be sending the EEO Director a Supplement Affidavit and Attachments to add to the ROI.

Frank Gonzalez is probably the best source of information around here regarding the process, but I will chime in. The EEO investigator is responsible for contacting the agency representative responsible for gathering all relevant documents. In every case I have been involved with, the investigator requests agency records and documents such as e-mail messages. I don't know of any complainants who have been required to use FOIA to obtain documents to provide to the EEO investigator. Something just isn't adding up. Perhaps Frank will be of more information.
thanks 1 user thanked TheRealOrange for this useful post.
COpatriots on 2/26/2019(UTC)
frankgonzalez  
#3 Posted : Tuesday, February 26, 2019 11:28:12 AM(UTC)
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Originally Posted by: TheRealOrange Go to Quoted Post
Originally Posted by: COpatriots Go to Quoted Post
I filed an EEO Disability Discrimination Case against my old 1st line after I left the agency. I am in the Investigation stage and the Agency is making me jump through hoops to request emails, documents and Skype messages which would contradict the affidavit that both the 1st line and the 2nd line submitted. The Investigator only gave me a week to file a rebuttal and I do not have the evidence yet from the Agency that shows the actual proof which would sink both them and for me to win my case.

I have filed a FOIA request but is there anything else I should be doing to request these records? If they delay in sending me the documents outside of the 20 days allowed by FOIA law, do I have any recourse? Once I receive the documents I will be sending the EEO Director a Supplement Affidavit and Attachments to add to the ROI.

Frank Gonzalez is probably the best source of information around here regarding the process, but I will chime in. The EEO investigator is responsible for contacting the agency representative responsible for gathering all relevant documents. In every case I have been involved with, the investigator requests agency records and documents such as e-mail messages. I don't know of any complainants who have been required to use FOIA to obtain documents to provide to the EEO investigator. Something just isn't adding up. Perhaps Frank will be of more information.
FOIA would take way too long. Plus some things are not FOIA-able, but are available as part of an investigation. For example, you can't FOIA the selectee's resume, but in a non-selection complaint, it mustbe provided as part of the investigation.

You simply need to tell the investigator your side, and where they can find the info from the agency. If the agency fails to provide the info in the investigation, you would seek it out in discovery/ask for sanctions based on the failure of the agency to properly investigate the claims/withholding evidence.

You need to simply identify where the management is wrong in their statements and why (you don't need the evidence, only that if produced, it would support your position). for example:
When Manager A says this never happened, if the email chain between Coworker B and Coworker C and Manager A is produced, it would show that the event claimed occurred and discussed. If you speak to Coworkers B and C, they will corroborate this information.

When Manager D said I was not selected because I have less experience, it is inherently incorrect. This is shown in several ways. 1st. I trained the person selected while I served in the position I was deemed "less qualified for." In addition, I have served in the role in an acting capacity on numerous occasions for the incumbent for the past 3 years. In addition, the selectee plagiarized my resume when creating their own. This is shown by the poor edits to change locations they have worked from mine, but they failed to change the location in the body of one section. Finally, if you compare my appraisals and awards to their's for the same period of time, you will find I scored the highest available rating, received a QSI one year as well as monetary awards all other years, as well as other Special Act awards during this time frame. Whereas the selectee only received "meets" and no awards at all during the same time frame. Puling appraisal records and speaking to the previous incumbent of the position (name of previous incumbent, with any contact info you have) will confirm this.

And so on.

The investigation is to provide as much info as possible, but once you get it, you may find much of what you are looking for is already there. You won't get it all until the report is final. Tell the investigator what to request. If they request it and the agency fails to provide it, then you can seek it in discovery...if it still isn't provided (and you can prove it exists!), then you seek sanctions, up to and including summary judgement in your favor.

Edited by user Tuesday, February 26, 2019 11:42:14 AM(UTC)  | Reason: Not specified

You should have voted Cthulu...the greatest of all Evils
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COpatriots on 2/26/2019(UTC)
COpatriots  
#4 Posted : Tuesday, February 26, 2019 12:32:57 PM(UTC)
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Thank you for this information. I contacted the investigator yesterday regarding requesting documents (emails, performance reviews and SKYPE conversations from the date in question) and the investigator stated I would have to contact the agency for these documents not her and told me to contact my EEO Counselor, who I have no clue that is because the agency never sent me that information, only a generic email box.
frankgonzalez  
#5 Posted : Wednesday, February 27, 2019 4:30:56 AM(UTC)
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Originally Posted by: COpatriots Go to Quoted Post
Thank you for this information. I contacted the investigator yesterday regarding requesting documents (emails, performance reviews and SKYPE conversations from the date in question) and the investigator stated I would have to contact the agency for these documents not her and told me to contact my EEO Counselor, who I have no clue that is because the agency never sent me that information, only a generic email box.
I'm confused...you should know who your EEO counselor was. They issued you your notice of right to file the formal complaint. They did the counseling for the informal complaint.

But the investigator is correct. They do not get the evidence for you, they get evidence for the investigation. You simply have to identify what they need to gather to support your position. If they fail to do so, once you get the final report of investigation, you then have a chance to have the investigation supplemented if it was deficient (the agency can decline, but must include your letter identifying the deficiencies in the record...which you then use to request sanctions, especially after you request the same information/records in discovery and the agency doesn't provide them without a legitimate reason).

That said, the investigation is not a fishing expedition. You won't get performance reviews if they are not relevant to the issue. ie. I need the performance reviews of everyone in my organization to show I was treated differently. Nope...not gonna happen.

1st, they need to be a true comparator. If you are the only 0343 GS-9 in an organization, and everyone else is a 0201, and you do different tasks from the rest of the office, then you do not have a comparator.

2nd. In contrast, same series and office as above...but everyone was put in for an award for a project you were a key part of but you were not part of that award package and received nothing....now that award and details of the project and your role in it could be relevant.

3rd. If you are one of 12 people, all the same series, all the same grade, all doing the same thing, but you have one thing different (ie a disability/race/national origin/religion/etc) and you received a lower performance rating, was put on a PIP, and told you were not meeting the performance plan....then having everyone's rating and performance plans is relevant. Are they required to meet the same standards as you? Are they rated more leniently than you? And so on.

4th. In your rebuttal, you identify the records needed to show the management/witnesses statements are inaccurate or false. (ie. If the Skype message traffic on or around DATE between Manager A, coworker B, myself and Manager C is reviewed, it will show that Manager A made disparaging comments towards me and about me.) You don't need to produce it, but identify its existence. But you have to tell the investigator WHY it is crucial to the investigation if it is not obvious (for example, if the complaint involves a non-selection for a promotion or position, the resumes and all documents used for the selection- to include any notes the selecting official and any panelists made- are obviously needed. Harassment cases...what is needed to be collected may not be so obvious.)

You should have voted Cthulu...the greatest of all Evils
nightchop  
#6 Posted : Wednesday, February 27, 2019 5:24:11 PM(UTC)

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OP, please remember the investigator is paid by the agency. They get trained and should know how to do their job. It is NOT your job to hold their hand and tell them what to look for and where. If they do not do their job properly, you can raise concerns at the appropriate time. Agencies control the EEO process. The investigation is easy discovery for them. Let the agency's attorneys figure out how to get the agency out of trouble. I would advise against showing your hand during the EEO phase. Do what you need to assist the investigator, but do not do their job for them. The investigator is NOT neutral.
COpatriots  
#7 Posted : Friday, March 1, 2019 6:00:32 AM(UTC)
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My EEO case was forwarded to the HQ for the Formal EEO Complaint and I only received a letter with the complaint statement and the generic email box to submit changes and questions about my case to. It does not list an EEO Counselor's name on there, so I have no clue.

I mentioned the Performance Reviews because in my Performance Review my 1st line and 2nd line made disparaging remarks about me having to wear sneakers (have to because of my brace). That does not belong in a Performance Review and asking for that performance Review as evidence will help my case of disability harassment.

But I will notate in my rebuttal as you guys have mentioned of how to list the evidence that will contradict their statements.
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