However, the complainant’s duty to cooperate does not mean that the complainant cannot request that the investigator change aspects of how the investigation is being conducted. For example, if the investigator tells the complainant to appear for an interview that will be recorded, the complainant could, instead, ask for written questions that the complainant could answer in writing. Likewise, the complainant can ask for extensions to respond to requests for information and documentation, or a new date for an interview. However, it is important for complainants to remember that the investigator has ultimate authority to decide how the investigation will be conducted. As such, although complainant can request changes to how and when the investigation is conducted, they must ultimately cooperate with the investigator. If they do not, they risk dismissal of their complaint.
Federal agencies are authorized to dismiss a complaint if the complainant fails to cooperate. See 29 CFR § 1614.107(a)(7). To use this option, the agency must clearly inform the complainant of the information requested and must also clearly inform the complainant that the agency proposes to dismiss the complaint if the complainant fails to provide the information. Even without the requested information, the agency can still issue a decision on the merits of the complaint if it has “sufficient information.”
In an unpublished opinion in Austin v. Winter, No. 06-1745, (4th Cir. July 11, 2008), the U.S. Court of Appeals for the Fourth Circuit highlighted the potential risk of a complainant’s failure to cooperate in the investigation. Ms. Austin was terminated from the Navy Department during her probationary period. After the Merit Systems Protection Board ruled it had no jurisdiction over her termination, Ms. Austin challenged the action through the EEO process. Ms. Austin refused to participate in the fact-finding conference, the method the Navy used to investigate EEO claims. Ms. Austin gave the court “conflicting excuses” as why she did not participate. For example, Ms. Austin claimed the fact-finding conference was “redundant” because she had previously provided statements to an investigator, but later acknowledged that she had never spoken to an investigator. The court held that Ms. Austin had not exhausted her administrative remedies and therefore could not bring her discrimination claims to court. Ms. Austin’s matter is just one example of why it is important to cooperate with the EEO investigator.