Archive for Investigations

Through the Eyes of New Investigators

We know a lot of people are apprehensive about making a career move to a new field.  Many of our EEO investigator training students made the successful transition into EEO.  We spoke to two of our former students, Steve Minor and Denise Goldner, to get their perspectives.  After completing the online training, Steve and Denise began conducting Federal-sector EEO investigations.   In this post, we share Steve’s perspectives.

EEO Investigator Steve Minor, Investigator since August 2015

  1. Before becoming an investigator, what was your professional background? I was in law enforcement for more than 29 years before I retired in 2016. I worked all facets of law enforcement from walking a beat as a rookie officer to becoming a department-wide leader. In one my professional roles I served as the training officer responsible for administrative training, and I managed a cadre of instructors who delivered all in-service training for my department. My background also includes investigative experience in other forums beyond EEO investigations.
  1. Why did you decide to be an EEO investigator?  I had a neighbor who worked for a veteran organization who recommended I become a contract EEO investigator when I retired. It seemed like an ideal position given my background.
  1. How long have you been investigating? I was certified in August 2015.
  1. What have been your biggest challenges as a new investigator? For me, it was the amount of typing. You have to be on top of your game because, it’s your “bread and butter” and, typing faster was what was going to make me the most efficient over time. I invested $36 for an online program called the Almena Method which teaches you how to memorize where each letter key is located. It was a great investment—I had the key memorized in less than one hour and it has help me type much faster. I also discovered a free app at keybr.com which helps increase typing speed.
  1. How did Art’s EEO investigator certification training course help prepare you for your first year as an investigator? The course was comprehensive. While no course can train to the different internal specifications of agencies or predict every eventuality, the course provides a comprehensive picture of EEO investigations, and provides a solid foundation for doing EEO investigations.
  1. What has helped you the most in your first year as an investigator? In addition to being able to contact the Art of Resolution instructors when I run into a complex investigative issue, I have found forming a network with other EEO investigators is indispensable. It is important to make contacts in the EEO investigative community because that’s where you can find guidance to complex issues. There are times where you run into a problem as an EEO investigator that you can’t find the answer in the manual or the statement of work. In those instances, friends with expertise are your best resources!
  1. Has you experience as an investigator been what you thought it would be? In some ways it has been more than what I thought it would be. It is a very satisfying job because you don’t have to deal with adversarial relationships with others, as one faces in law enforcement, at times. It is a liberating feeling to just focus on gathering the facts without having to worry about who is right or wrong. Having a role that is impartial and neutral is the best aspect for me—I don’t have to get mad at anyone, and nobody has to get mad at me.

We’re grateful to Steve for sharing his experience.  We hope you find his insight informative and helpful.  If you’re interested in growing your EEO network, we highly recommend LinkedIn.  Here is a Certified Federal Sector EEO Investigators group https://www.linkedin.com/groups/3956705.  If you are interested in learning more about our online certification training, click here.

In our next post, we’ll hear from Denise Goldner, another graduate of our online certification program.

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EEOC Decisions Guide EEO Investigators

A valuable source of information for EEO professionals is EEOC’s The Digest of Equal Employment Opportunity Law.  In the last two Digests, EEOC presented some interesting cases.  We have compiled a list of those that investigators and those who review reports of investigation (ROI) may be interested in…

We found this first case serves as a great reminder of what is important and exactly what EEOC expects in a failure to promote claim, including demographic data and the selecting official’s selection history…

Investigative Record Inadequate. The Agency issued a decision finding no discrimination on Complainant’s failure to promote claim. On appeal, the Commission found that the Agency’s decision, reached without a hearing, was not proper because the investigative record was inadequate. In addition to other missing information, the record was devoid of profiles or demographic information regarding prior selections by the Selecting Official, documentation or verification regarding the disciplinary history of candidates other than Complainant and an explanation as to why discipline was used as a criterion. The record also did not contain complete application packages of candidates or Complainant’s full affidavit in this matter. Ordering a supplemental investigation, the Commission reminded the Agency that while its burden of production is not onerous, it must provide a specific, clear, and individualized explanation for a non-selection so that Complainant has an opportunity to prove that the Agency’s explanation is a pretext for discriminatory animus. Byron E. v. Tenn. Valley Auth., EEOC Appeal No. 0120140939 (June 9, 2016).

This next case provides important guidance on the importance of collecting information related to the prima facie case, specifically related to comparators. You’ll also note that EEOC remanded this to the agency to obtain management’s articulated reasons for its actions, which the ROI lacked. 

Commission Found the Investigation Was Inadequate. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race, disability, age, and in reprisal for prior protected EEO activity when she was involuntarily reassigned. On appeal from the Agency’s decision finding no discrimination, the Commission found that the investigative record was inadequate. The Commission noted that the investigation failed to acquire information necessary to prove an essential element of Complainant’s prima facie case, specifically, evidence of the races of the comparators identified by Complainant who were allegedly allowed to remain on detail. The investigative record also failed to set forth the Agency’s articulated reason for imposing an involuntary reassignment on Complainant. The manager responsible for implementing the reassignment did not provide an affidavit or statement despite the investigator’s documented efforts to obtain information from him. Ordering a supplemental investigation, the Commission reminded the Agency that while its burden of production is not onerous, it must provide a specific, clear, and individualized explanation for its action so that Complainant is provided with an opportunity to prove that the Agency’s explanation is a pretext for discriminatory animus. Anisa U. v. U.S. Postal Serv., EEOC Appeal No. 0120141580 (July 20, 2016).

Finally, in this case, EEOC found there was not enough information in the ROI to justify the agency’s conclusion that the Complainant was not a qualified individual with a disability.

Agency Failed to Adequately Investigate Complainant’s Claim of Disability Discrimination. Complainant, a Marine Corps veteran, filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability, Post Traumatic Stress Disorder (PTSD), when he was removed from consideration for a Deputy U.S. Marshall position. The Agency issued a final decision assuming Complainant had a covered disability, but concluding that he was not a qualified individual with a disability because of his PTSD. The Agency found that Complainant was disqualified from the position because his PTSD was not fully controlled, and he could “suffer sudden or subtle incapacitation” while serving in the position. On appeal the Commission noted, however, that Complainant’s treating psychologist opined that Complainant was not experiencing symptoms of PTSD at that time. The Commission determined that Complainant’s history of service to the country, coupled with his noticeable and documented improvement in a relevantly short period of time, suggested that the Agency should have clarified or expanded its individualized assessment. The Commission noted that a personal examination by the Agency’s own Contract Psychiatrist would have been appropriate. The Commission ordered a supplemental investigation to clarify the record. Floyd C. v. Dep’t of Justice, EEOC Appeal No. 0120121887 (November 3, 2015).

These are just three of many cases EEOC shares in its digest.  If you’re interested in reading more, click here to go to EEOC’s webpage.

 

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10 Time-Saving Investigative Tips – Part 1

For those of you who are contract investigators, time is money. For agency investigators, the ability to complete more investigations may result in a higher performance rating or awards. We’ve compiled this list of time-savers that can save days off of your investigative timeline to make it a faster and/or bigger payday while enhancing quality.

  1. We’ve posted about the value of an investigative plan before, but the value cannot be underestimated. The more you plan your investigation, the more you are able to grasp the complexity, number of witnesses, and need for documentation. Although many investigators argue that planning adds time to the process, in our experience, the planning step actually saves time in the end. There are plenty of things that popup during an investigation, but those who plan are able to address those unanticipated things more effectively.
  1. Review Administrative File. This is also part of the planning process, but some overlook the importance of reading everything included in the administrative file. Specifically, a thorough review of the EEO Counselor’s Report and any documentation submitted by the complainant is critical in ensuring your questions are thorough. We’ve seen too many investigators miss things that were in the administrative file causing additional work and delays on the back end.
  1. Send Document Request Early. Waiting until the last minute to request documents almost always ends in a late report. You must build in plenty of time to request all documentation needed for the investigation. This should be explicitly addressed in the planning stage, but in some cases, the investigator identifies the documents in an investigative plan (IP) but does not send the request for documents to anyone. Some documents will require additional follow-up with witnesses, so the earlier you have those documents, the better. 
  1. Contact Witnesses Early and Often. Most investigators know the challenge of chasing down witnesses to either schedule the interview or return an affidavit. The more communication you have with them early in the process, the better your chances are in securing their cooperation. Talk to them early on and explain what you will need from them (either a date to interview them or for them to complete a written affidavit). The earlier you have that communication, the better. Similarly, make contact with them while you waiting for them to return their affidavits. A friendly reminder or email asking if they have any questions is a good way to keep it on their radar.
  1. Don’t Slow Down While Waiting on Amendment. Most investigators have encountered the situation of being told by the complainant that s/he is going to amend the complaint. The investigator, believing they will be given more time, puts the investigation on the back burner awaiting word on the amendment. The suspense date approaches with no word of the amendment causing the investigator to frantically pull the report of investigation together in order to meet the deadline. Always proceed with the investigation – including finalizing it – even when the complainant tells you an amendment is coming.  

 In our next post we’ll share 5 more time saving ideas for efficient investigation. We’d love to hear from those of you who are investigators or reviewers! If you need your 2015 refresher training or 32-hour EEO investigator certification training, check out our online training.

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Confessions from First-Time Investigators – Updated!

confession

October 2017

Since many of you joined our LinkedIn Certified EEO Investigator Group after successfully completing the EEO Investigator Certification Course  from Art of Resolution, we decided to update some of our past blogs that may be useful to newly certified EEO investigator.  While Art’s training is comprehensive and you’ve given us a great deal of positive feedback, it’s impossible to learn everything about investigations in a 32-hour certification training course. We value the feedback from investigators that have taken our training, as they are in the best position to provide feedback on the real world and how it compares to training. We’ve compiled this list highlighting some things they learned after completing their first cases. We’ve removed names to protect the innocent…

  • In training, there was a lot of focus on investigative plans. I learned the hard way not to underestimate the importance of early planning.
  • I wish I had organized myself better in the beginning. I wasted a lot of time looking for things. I set up a system that will help me on my next case.
  • I didn’t have a good understanding of my timeline or realize the things that would take the longest. For example, tracking down witnesses can take awhile and that cut into my timeframe. I wish I had contacted complainant and witnesses more promptly.
  • I should have reviewed the samples and templates from the agency earlier to make sure I understood everything. It would have saved me a lot of time on the backend.
  • When complainant suggests witnesses, ask the complainant what specific testimony the witness will offer. I wasted a lot of time tracking down witnesses who did not have relevant information.
  • Don’t underestimate the time it takes to obtain documentation. Ask the agency for documentation early in the process and make sure you are asking for everything you need. Then follow up.
  • It’s key to read completed affidavits as soon as they are returned to search for incomplete answers or if additional witnesses have been identified. To stay on schedule, you have to follow up sooner rather than later.
  • I wish I drafted the summary as soon as I received the first completed affidavit. It would have made the writing process easier.
  • Little things count. If the agency wants you to capitalize “Complainant” in the summary, make sure you do it throughout. This will cut down on the review process.
  • Writing my first summary was overwhelming. I asked for a sample report and used that to follow the format and it helped me focus my effort.
  • Make sure you are proficient in Microsoft Word. Without a thorough understanding of it, I wasted a lot of time doing things the hard way. I am going to take a tutorial to get up to speed on its features.

This is just a sampling of the feedback we. It is great advice, and we’d love to hear your ideas on timesavers and other unanticipated hiccups experienced early in your investigative career.

For those of you who are ready to embark on the road to being a certified EEO investigator, Art of Resolution offers a popular 32-hour EEO investigator online certification course: http://www.artofresolution.com/wp/?p=92047

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I May Want to Be and EEO Investigator: What Do I Do Next?

post it blogIf think being an investigator may be a good fit for you, more likely than not, you’re trying to decide what to do next.   Knowledge is power, so we have developed this list of information to consider in your exploration:

  1. Understand what goes into an EEO investigation. EEOC’s Management Directive 110, Chapter 6 is a great place to start: MD-110, Chapter 6
  2. Are you interested in a Federal position or subcontracting:
    1. If you’re interested in subcontracting, research firms who offer these services to identify the best fit for you and explore their requirements.
    2. If considering a Federal EEO investigator position, research which agencies hiring full time investigators. Veterans Affairs, Department of Defense and Equal Employment Opportunity Commission are three agencies with full-time investigators. You can research current vacancies at https://www.usajobs.gov
  3. You’ll need to be certified as an EEO investigator. There are a lot of options out there – both classroom and online. We have an online course that meets certification requirements. To find out more, go to http://www.artofresolution.com/wp/?p=92047
  4. Update your resume. Be creative! Think about your experience and how it fits into the knowledge, skills or abilities that are applicable to investigating (for example, writing skills, analytical ability, time management skills).
  5. There is no getting around experience. It is a challenge common to anyone who transitions career fields. It can be a difficult obstacle to overcome, as most jobs require experience, but you can’t get the experience without the job. As described above, research the level of experience required. If you take training, find out if the firm offers any subcontracting work. At times, we consider tentative subcontracting relationships for individuals with experience in related fields and who excel in our training. This involves continued coaching throughout the first few cases. We only engage relationships with those top performers in the class and when we have the available time needed to commit to a trainee.

We hope you find these pointers helpful. We know from our extensive experience in this field that individuals who thoughtfully research their options; choose a quality investigator certification training course; and continue to enhance their investigative skills can quickly achieve the rewards of being a certified EEO investigator.

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Thinking of Being An EEO Investigator?

questionBeing an EEO investigator can be a lucrative endeavor for the right person. Those of us who are already contract investigators or in the Federal government know it can be difficult, but with the right set of skills, it is quite rewarding. There are many individuals who begin a career investigating after they retire from the government or law enforcement. Others decide to do it in concert with other subcontracting activities, counseling and mediating, for example. If you have been considering whether investigating is the right fit for you, we recommend you do some research. In our next post, we’ll discuss the steps to take if you want to pursue becoming an EEO investigator.

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Join our New LinkedIn Group!

linkedinWe are delighted to announce that we have formed a group on LinkedIn called EEO and Diversity Professionals. We created this group as a virtual gathering place for EEO, diversity, conflict management (i.e., ADR) and human resources professionals to exchange perspectives and learn about the latest developments in our fields.  The group is founded on the notion that EEO, diversity, HR and ADR professionals share common interests and that their success is often predicated on their ability to collaboratively address complex human resources issues by creatively integrating their EEO, diversity, HR and ADR expertise.

We recognize there are a number of superb LinkedIn groups covering these important topics albeit in a highly specialized format. While we believe these groups are extremely valuable, and we plan to continue our active participation in these other groups, we want to fill what we believe is a gap by creating a place where subject-matter-experts from EEO, diversity, ADR and HR gather to get the latest news from our fields and participate in in-depth discussions. Our conversations will be broad and inclusive to be of interest to professionals in the private and public sectors; those who are employed by firms or agencies as well as those who are self-employed. We’ll tackle problems, discuss cases, and share employment and contract opportunities. We will ensure there is plenty of interactivity by publishing routinely informative and thought-provoking blogs. We’ll also invite experts from these fields to post blogs, comment on the latest rulings or directives from EEOC, MSPB, OPM, courts, and other regulatory bodies, and share best practices.   We hope this gathering place will generate tremendous synergy, advance unique ideas, and afford comprehensive solutions to problems we encounter in our respective fields by applying our combined knowledge, experience and expertise.

So, if you enjoy exchanging ideas, engaging in robust discussions and sharing perspectives on human resources topics involving EEO complaint processing, developing and executing successful diversity and inclusion strategies, and managing conflict in the workplace, this is the group for you.  If you are interested in joining, click here!  

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Now Available: 32-Hour Online EEO Investigator Certification

online trainingWe are very excited to announce that today, Friday, January 30th, our much-anticipated Art of Resolution 32-hour online Federal EEO Investigator Certification Course is available.  This self-paced course meets all EEOC certification requirements.  The course has a number of best-in-class features that enhance the learning experience and differentiate it from other online offerings.  Chief among these features are real-time access to instructors, a comprehensive investigator’s manual, and a variety of learning methods such as audio-enhanced PowerPoint presentations, interactive knowledge checks, reading and writing assignments, and opportunities to practice key investigative skills.

You can enroll here… https://artofresolution.talentlms.com/catalog 

If you have any questions, do not hesitate to contact us at admin@artofresolution.com.  

 

 

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Investigating Non-Selection Complaints

investigationIn our last post, we discussed how to defend non-selections from a selecting official’s perspective. In this post, we’ll discuss this issue from an investigator’s perspective.

Those of us trained as EEO investigators, are familiar with the shifting burdens of proof outlined in McDonnell Douglas v. Green. Of specific note is management’s burden to articulate a legitimate, non-discriminatory reason for its actions. In this case, we are looking for management’s reasons for not selecting the complainant. Countless times, we see (as investigators and reviewers of investigations) managers saying, “I picked the selectee because they had more points than the complainant.” They offer nothing more. Both McDonnell Douglas and EEOC have found that a more comprehensive answer should be provided.   A manager must provide a response that is more than “I didn’t discriminate” or “The selectee got more points.” Management must give a reason, specific enough, for the complainant to rebut.

In practice, this requires investigators to probe management officials for more specific reasons for not selecting the complainant. We offer the following ideas for probing selecting officials, and in some cases, panel members for specific reasons for their decision.

  • For the selecting officials:
    • You testified that you chose the selectee because they received more points than the complainant. Did you consider any other factors in your decision? If so, what where they?
    • Please provide the criteria you used in your selection process.
  • For panel members:
    • Please provide a specific explanation as to why you found the selectee to be superior to the complainant. Provide details about how you scored the complainant and the selectee.
    • What criteria did you use to evaluate the candidates for this position? How did the complainant and selectee compare using this criteria?

These follow-up question should elicit responses that are specific enough to be rebuttable. Without these follow-up questions, an investigator risks having a case remanded for supplemental investigation, and there is some risk for management’s ability to defend its selection.

As investigators our jobs are made easier by selecting officials who are able to articulate a specific reason for their selection, but we must be prepared to probe when management officials or panel members are not able to provide specifics regarding the process they followed and how they applied the criteria.

What questions have you found helpful in obtaining a thorough articulation from management?

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Investigator Tricks of the Trade, Part 5: 5 Essential Qualities Shared by Exceptional Investigators

5

There are many companies and agencies actively recruiting competent investigators with the tools to perform efficiently and skillfully with minimal orientation. So we asked ourselves whether there were specific experiences, training or skills shared by exceptional investigators. What we found most interesting is that regardless of whether an investigator works for an agency or a private company; or whether they performing investigations as full-time employees or as contractors, investigators who performed consistently well share an exceptional command of investigative techniques, including interviewing skills, establishing rapport with witnesses, etc. and they are well versed in investigative procedures. They also shared some key common traits:

  1. Analytical.  Investigators who excel at their craft apply a consistent analytical approach to investigating. For example, they analyze the administrative file to formulate the investigative plan. They conduct a thorough reading of the counselor’s report, letter of acceptance and other documents collected by the counselor. Good investigators often find the file replete with useful insight, which allows them to formulate a methodical, yet customized approach to the investigation. They continue to apply this diagnostic and well-reasoned approach throughout the entire investigative process.
  2. Curious.  Exceptional investigators share a healthy sense of curiosity. They are driven by a desire to have complete answers to the “who,” “what,” “when,” “how,” “where,” and “why” surrounding their case. In other words, these investigators endeavor to obtain all relevant details necessary to “paint” a complete picture of what happened. They also are generally great storytellers and others, including adjudicators, appreciate reading their work.
  3. Through.  Thoroughness is closely linked and supported by the inclination of these investigators to be curious. They ask questions, re-interview witnesses, obtain additional evidence, follow the evidence wherever it leads, and take whatever steps are prudent and necessary to ensure all sides share their perspective and evidence. They are equally thorough when writing their summary and assembling the file.
  4. Diligent.  Exceptional investigators are hard working and dependable. They are productive, seldom miss a deadline, and they are mindful of the time and resources of others.
  5. Organized.  Most investigators work multiple investigators concurrently. To manage these investigations efficiently, exceptional investigators are proficient organizers. They manage multiple investigations, especially complex ones such as some involving allegations of harassment or denial of reasonable accommodation for a disability, with ease because of their exceptional organizational skills.

In the end, we found that the common denominator among excellent investigators is the strength of their skill set, and that most individuals, if they work diligently at honing these skills, have the potential to also become exceptional investigators. While this is our list, we know there are other skills that go into being an exceptional investigator. What other skills do you think exceptional investigators possess?

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