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C. Presentation Memoranda

The presentation memorandum (PM) is the legal unit's assessment of a case to the General Counsel or Commission, and is one of the few legal unit work products reviewed by the Commissioners. It is important that the PM be analytically sound and factually accurate, as well as candid. All significant problems in a case should be addressed. *

For PMs submitted to the Office of General Counsel (HQ), use the format in the appendix that follows.


* To recommend intervention, submit a separate cover memorandum with the PM that provides all of the information specified in Part 2, Section IV.D. of the Manual.

Appendix
PM Format

Presentation Memorandum

To: ____________________
General Counsel
From: __________________, Regional Attorney
__________________  District Office
Subject: EEOC v. [Name of Respondent]
Charge No. _____________

 

 

  1. PRELIMINARY INFORMATION
    1. Proposed claims1
    2. Court where suit will be filed
    3. Proposed defendant(s)
      1. Name of each proposed defendant
      2. Location of facility
      3. Size of workforce2
      4. Nature of business
    4. Name of charging party
    5. Justification for filing suit3
  2. ADMINISTRATIVE HISTORY
    1. Date of charge
    2. Date of letter of determination
    3. Claims determined cause4
    4. Conciliation history
      1. Date of conciliation failure
      2. EEOC’s proposal5
      3. Respondent’s best offer
      4. Reason for rejection of Respondent’s best offer
  3. SUMMARY AND ANALYSIS OF PROPOSED SUIT
    1. Summary of theory of liability6
    2. Anticipated defenses7
    3. Chronology of facts8
    4. Legal Analysis9
    5. Relief sought
    6. Confirmation of charging party interview and credibility assessment10
    7. Breakdown of estimated litigation costs11
  4. LIST OF ATTACHED DOCUMENTS12
    1. Charge(s) and charging party’s statement(s)
    2. Respondent’s position statement(s)
    3. Investigative memoranda
    4. Letter(s) of determination
    5. Other key documents13
    6. Draft complaint
  5. DISTRICT OFFICE CONTACTS

cc:_____________________________________ , District Director


1 Reference to applicable statutory provisions should be included here. Specify whether the recommended claims challenge a policy or are on behalf of an individual or class and, if class, define the scope of the class and the approximate number of putative claimants. See Part 1, section I.D. of the Manual (Reporting to OGC) for the definition of a “class” case. Also, for each basis indicated, identify the race, ethnicity, gender, religion, age, or impairment.

2 Be as specific as possible; “more than 15 employees” is not sufficient.

3 Include a discussion of whether the claims recommended for litigation raise strategic or emerging issues or National Enforcement Plan priorities, and how the case fits within your office’s litigation docket. In addition, where applicable, identify whether the case involves an underserved population or would be filed in an underserved geographic area.

4 If litigation is not recommended on any issue on which the Commission found cause in the letter of determination, explain why here.

5 Include the amount of monetary relief sought for each category of damages and the nature of injunctive relief sought, and briefly explain the basis for the proposal.

6 This section should summarily outline how we will prove our claims. In ADA cases, this section should state the theory(ies) for ADA coverage. For example:

“The Commission’s primary theory of ADA coverage is that Charging Party is actually disabled in that she has mental impairments (PTSD and depression) that substantially limit the major life activities of sleeping, eating, caring for herself and thinking/concentrating. In the alternative, we would argue that she has a record of or was regarded as having a disability. We would argue that Respondent’s denial of continued leave for her hospitalization supports a claim of failure to accommodate and disparate treatment.”

7 This section should summarily outline all anticipated defenses, including defenses which, although not yet raised by respondent, may be expected to be asserted at trial. For example:

“Respondent may argue that Charging Party is not substantially limited in any major life activity, and that her sporadic need for lengthy amounts of leave rendered her unqualified. Respondent may also argue that it satisfied its duty of reasonable accommodation by granting leave for her earlier hospitalizations and that granting any additional leave would have created an undue hardship.”

8 The discussion of facts generally should be in chronological order. The discussion should identify and discuss significant facts in dispute, as well as facts that conflict with applicable theories of liability. The discussion should also identify evidentiary gaps, discuss any significant credibility issues, and incorporate any significant facts learned after the investigation closed.

9 This section should include a discussion of all key substantive and procedural issues. Cite to significant authority, including case law and the Commission’s position as set forth in regulations, policy guidance, and the compliance manual. In ADA cases, whether the charging party and any other claimants are disabled is always a key issue. The discussion of disability status should identify all major life activities affected and how the evidence shows a substantial limitation in each identified major life activity.

10 Identify whether the charging party was interviewed in person by the legal unit. If the legal unit has not interviewed the charging party in person, include an explanation in this section. See Part 2, section II.C. of the Manual (Presuit Interviews of Aggrieved Parties).

11 Include itemized costs through trial for depositions, expert witnesses, travel expenses, and other significant items. If the use of expert witnesses is anticipated, specify the type of expert and briefly explain the role of the expert.

12 Each page of the attachments should be numbered.

13 Other key documents generally include documents relevant to significant legal issues, significant factual disputes, and credibility.