AJ Kathleen Mulligan's Oral Testimony at EEOC Strategic Enforcement Plan Meeting
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Testimony delivered in the afternoon session on July 18, 2012.  Bold and parenthesis added.   

MS. MULLIGAN: May I speak since I am the sole voice of the federal hearings program? First of all I, this
is sort of following up on this earlier session.
The quality in the investigations in the federal sector is
poor to dreadful
. Every once in a while, somebody issues a report, I don't know if it's somebody in
Headquarters, I don't know if it's a contractor, which says that the investigations meet some criteria at a
very high rate and all the judges shake their heads and scratch their hands and say how could this
possibly be?
Why is it that out of the 2000 case files I've looked at, two were adequate?

I'll give you an example, one example, they put documents in the file with no foundation. There is no
declaration from anybody saying where they came from, that it's a complete production that they looked
for them. It's just ten random pages stuck in there. And that is assumed to be responsive to a request
for production of documents during the investigation.  
It's because the agencies are economizing so
much that they are paying so little that the investigators are not properly trained and can't do a good

The second thing is, that that makes discovery [during the EEOC hearing process] incredibly important.
And the Commission needs to address this on a systemic basis, on a nationwide basis.
There are too
many agencies abusing discovery, especially with unrepresented parties, especially in disability
cases where they are engaging in over broad discovery, asking for way too much medical
information, asking for tax returns, asking for discovery they are not entitled to.

These complainants who are unrepresented because private attorneys general do not exist in the
federal sector
. Why? Because federal agencies don't settle. They don't face the same economic
consequences when they are liable, either in terms of bad publicity because everything we do is not
published. Or in terms of any consequences financially because it comes out of a fund
. The
manager doesn't suffer. So the discovery process is just full of abuse especially with unrepresented
parties. And it's not an availability of private counsel except perhaps in the D.C., Baltimore area where
you have higher level people who can afford to pay.

But if the Commission would take a comprehensive approach to the discovery process, and I'll throw
out an egregious example so that you can see how this would simplify case processing. If agencies
could not assert a Privacy Act privilege in discovery responses, without doing what they're supposed to
do to assert a privilege, have a log, have a declaration, have descriptive evidence which they have to
give in their responses to discovery, then that would cut down on abuse quite a bit.

right now complainants are not getting discovery responses. The agency says we claim
Privacy Act, period, that's it.
And they don't know, they don't, they can't figure out, the complainants,
how to get around that.
They assume because a federal agency lawyer is telling them they're not
entitled to something, they have no remedy to get it unless they've been through the process before and
then they'll know. But there are ways to streamline discovery process which would make routine
discovery disputes which consume a lot of time as every litigator knows, which would be very helpful.

The other thing would be if there would be more definitive requirements for specific parts of the
investigative files, that would be very helpful. The rest of it depends on, I think if you had judicial
managers talking to judges to see how to improve the process we could find a lot more of them than
the current system.

from http://www.eeoc.gov/eeoc/meetings/7-18-12/transcript.cfm#hirsch

AJ Mulligan's written testimony about correctly reforming EEOC