About Investigations
Once the case is assigned to an investigator, the investigator drafts an Investigation Plan by reviewing the Complainant's allegations in the Letter of Acceptance. The investigator will then contact the Complainant, the managers who are involved, and any witnesses to gather information, including affidavits and relevant documents. This purpose of the investigation is to gather all the relevant facts from the Complainants, responding management officials (RMOs), and witnesses who are involved. Interviews may be conducted virtually, telephonically, or in person. This information is then combined into one document called the Report of Investigation (ROI). While we encourage early resolution of disputes, investigations continue during settlement discussions. If an employee files an EEO complaint, then leaves the agency, the investigation will continue unless the complaint is withdrawn.
The ROI becomes the primary complaint file that is used to gather information and evidence that ultimately supports a decision on the allegations.
Reports of Investigation
Under 29 C.F.R. § 1614, the NIH must complete the Report of Investigation of the accepted claim(s) within 180 calendar days from the date on which the complaint was filed. This time period may be extended by up to an additional 90 calendar days if the individual and the agency voluntarily agree, in writing, to an extension. If a Complainant amends the complaint, the time period will be extended an additional 180 days from the date of the amendment, not to exceed 360 days from the filing of the original complaint.
An individual may amend a formal complaint with issues or claims that are “like or related” to the original complaint prior to the conclusion of the investigation without the need for additional EEO counseling. The EDI Resolution and Equity Division will acknowledge all amendments in writing. However, if the proposed amendment is determined not to be “like or related” to the existing allegations, the filer will be required to seek additional counseling for the new claims.
The Report of Investigation contains all the documentary evidence and affidavits of the pertinent witnesses associated with the EEO complaint. Once the ROI is completed, it is forwarded to Complainant and if they have one, their representative. The Complainant then has 30 days to review the ROI and elect a final agency decision or a hearing before the Equal Employment Opportunity Commission (EEOC).
Cooperation with the Investigation
Title 45 C.F.R. § 73 requires all employees to assist investigators in the performance of their duties or functions. This requirement includes the giving of statements or evidence. Furthermore, failure to provide the requested assistance may be cause for disciplinary action. See 45 C.F.R. § 73.735-1201.
All participants in this process are protected from retaliation or reprisal for having cooperated with the investigation. Therefore, a manager may not retaliate against anyone for cooperating in the investigation. Any employee who has concerns regarding retaliation or reprisal should contact the EEO office immediately.
Use of Official Time
Pursuant to Title 29 Code of Federal Regulations (C.F.R.) § 1614.605(b), federal employees and contractors are entitled to a reasonable amount of official time to respond to the Agency and EEOC requests for information regarding an EEO complaint. Employees are responsible for requesting official time in advance. Except for mandatory situations when an employee must be released, such as investigations, mediations, and hearings, the employee and their manager should arrive at a mutual understanding as to the amount of official time to be used prior to use of such time.
Production of Documents
During an investigation, an investigator may request documents that are relevant to the investigation. If an employee or contractor maintains paper or electronic records relative to the issues in the complaint, such as personnel actions, performance and disciplinary documentation, attendance records, etc., they are required to preserve all existing records without regard to normal document destruction schedules. In the event they leave NIH while this matter is still pending, they are required to transfer custody of such records to the appropriate staff in their office.
Right to Hearing or Final Agency Decision
Within 30 calendar days of receipt of the Report of Investigation, an individual may elect a hearing before an EEOC Administrative Judge, or a request a Final Agency Decision issued by the HHS EEO Director.
If the individual elects a hearing, an Administrative Judge will oversee discovery (or the gathering of facts from both parties), conduct a hearing, and issue a decision on the complaint. If a finding of discrimination is made, the Administrative Judge will order an appropriate remedy. The judge must complete this process within 180 calendar days of receipt of the complaint file from HHS. Within 40 calendar days of receipt of the Administrative Judge’s decision, HHS must take final action on the complaint by issuing a final order notifying the individual whether or not HHS will fully implement the Administrative Judge’s decision. The final order will also explain the individual’s appeal rights. If HHS does not issue a final order within the above stated time limit, the Administrative Judge’s decision will become the Final Agency Action of HHS.
If the individual requests a Final Agency Decision, the final decision shall consist of findings by HHS on the merits of each issue in the complaint or, as appropriate, the rationale for dismissing any claims in the complaint. If discrimination is found, the Final Agency Decision will also discuss appropriate remedies and relief in accordance with subpart E of Title 29 C.F.R. § 1614.
However, where appropriate, merit decisions in mixed case complaints -- complaints related to claims that are appealable to the Merit Systems Protection Board (MSPB) such as removals -- are first appealed to the MSPB.
The Final Agency Decision will contain the following:
Notice of the right to appeal HHS’ final decision to the EEOC’s Office of Federal Operations
Right to file a civil action in the appropriate District Court
Name of the proper defendant in any such lawsuit
Applicable time limits for appeals and lawsuits