**CHAPTER 7**

**PLANNING AND CONDUCTING THE INVESTIGATION**

**7-1 INTRODUCTION**

This chapter focuses on planning and conducting the investigation. The
investigation of a complaint filed under Title VIII of the Civil Rights
Act of 1968, as amended by the Fair Housing Amendments Act of 1988
(hereafter Title VIII or the Act), consists of gathering and analyzing
facts regarding a complainant\'s allegations and the respondent\'s
defenses with respect to the alleged discriminatory housing practice or
policy to determine whether there is reasonable cause to believe that
the respondent violated the Fair Housing Act (the \"Act\").
Investigators gather evidence by interviewing complainants, respondents
and witnesses, and analyzing their respective statements; collecting,
organizing and analyzing related documents and records; and inspecting
and/or measuring the subject dwelling and environment. The fact-finding
portion of the investigation can be concluded whenever an investigator
has collected sufficient evidence to determine that reasonable cause or
no reasonable cause exists to believe that the respondent violated the
Act.

All Title VIII investigations should be well planned at the earliest
stages. Title VIII complaints often begin with a tangle of
accusations\--some relevant and some that may be completely irrelevant
to the prohibitions of the Act. The complainant and the respondent may
offer accounts of events that are directly contradictory, and it may be
impossible at the outset of the investigation to discern which party is
more credible. It is the responsibility of the investigator to use
logic, clear and critical thinking, the principles outlined in this
manual, assistance and direction from supervisors and seek legal advice
from Regional Counsel to identify and collect statements, documents and
records that will reveal the facts of the case. Early involvement of
Regional Counsel will assist investigators in the development of an
investigation plan and help investigators focus on the information
necessary to prove or disprove allegations of discrimination.

The HUD investigator is a fact-finder whose only function is to
objectively gather the facts from appropriate and credible sources that
pertain to the complainant's allegations and respondent's defenses, and
any other questions that should be answered to determine whether there
is reasonable cause to believe that the respondent violated the Act. The
investigator observes, collects and records evidence accurately**.**

**7-2 REVIEW OF THE CASE FILE**

The planning of an investigation begins with a review of the case file
that the intake unit has developed. When the assigned investigator
receives the case file, he or she should review the file to determine
whether it contains the following:

-   A signed complaint form;

-   Documents received from complainant or other interested persons;

-   Sufficient information to initially establish jurisdiction (e.g.,
    agency referral letters, letters from substantially equivalent state
    and local agencies waiving jurisdiction back to the Department);

-   Entries in TEAPOTS in the intake and jurisdiction folders as well as
    the case management notes;

-   Reports of any interviews or investigation conducted during intake,
    including testing results and their summaries in TEAPOTS; and

-   Notification letters and proofs of service (Generally, a case file
    that has been forwarded from Intake to Investigations may not
    contain the Return Receipt, which proves service of the complaint.
    Intake personnel and the investigator share the responsibility to
    obtain the Receipt and place that Receipt in the case file).

Chapter 10, Preparation of the Case File, describes how documents,
interview notes and other evidence should be tabbed and referenced and
where the evidence should be placed in the case file.

**7-3 REVIEW OF JURISDICTIONAL MATERIALS**

It is important that the investigator verify whether the Department has
jurisdiction over a given fact situation before commencing an
investigation. If the case file or TEAPOTS indicates that there may be
some question regarding jurisdiction under the Act, the investigator
should immediately resolve those issues or, in the alternative, consult
with a supervisor. Specifically, the investigator should ensure that the
following conditions are met:

-   The complaint was filed in a timely manner (within one year of the
    most recent act of alleged discrimination);

-   The complainant has standing (the complainant claims that he or she
    has been injured or will be injured by a discriminatory housing
    practice);

-   Neither the dwelling nor the respondent(s) are exempt;

-   All of the known respondents have been properly named and served;
    and

-   The complaint alleges a violation of the Act (e.g., refusal to rent,
    sell, etc.), and there is a prohibited basis for the alleged
    discriminatory conduct, (i.e., race, color, religion, sex, national
    origin, familial status or handicap).

(For a full discussion of these issues, see Chapter 3, Jurisdiction, and
Chapter 4, Complaint Intake).

The case file also should contain proof that all named respondents and
complainants have been properly served with notification of the
complaint. At this point in the investigation, appropriate documentation
includes the white proof of mailing that Intake prepares
contemporaneously with green Return Receipts, certificates of personal
service, or correspondence that indicates actual receipt/knowledge, such
as responding to the complaint and referencing the notification letters.
Within a reasonable time after receipt of the case file, the
investigator should receive the actual signed Return Receipt that the
mail carrier delivered with certified mail.

In virtually all cases the investigator should conduct a property search
to verify who owns the subject property. If the case file does not
indicate that all parties have been properly served with the complaint,
the investigator must take steps to ensure that the parties have been
properly served. This means that if a party has a registered agent, the
investigator will send the complaint to the registered agent. The case
file should be updated to show this has been done.

**7-4 DOCUMENTING THE INVESTIGATION**

The investigator must document every phase of the investigation.
Detailed notes should be taken of each interview conducted with
complainants, respondents and witnesses who have information relevant to
the complaint. After an interview has been recorded in TEAPOTS, the
investigator's notes should be retained in the Evidentiary Section of
the case file. See also Chapter 10, Preparation of the Case File.

The source of all documents must be recorded on the Document Control
Cover Sheet. The original documents must be preserved in the condition
in which they were received. This means that an investigator shall not
alter or change the original document by adding comments or identifying
critical information with a pen, pencil or highlighter. The investigator
should describe on the Document Control Cover Sheet whether handwritten
markings were on the produced document and, if possible, who made the
markings. For example, if a respondent produces tenant files that have
handwritten markings, the investigator should note that the handwriting
was on the copy provided or the original, and ask if the respondent can
identify who made the handwritten notations on the document.
Observations must be recorded accurately and placed in the Deliberative
Section of the case file.

Ultimately, notes from the investigation and the summaries of the
statements, documents, records, other factual information and all other
data collected during the investigation, will be recorded in TEAPOTS,
and placed in the Evidentiary and Deliberative sections, as appropriate.
It is, therefore, vital that the case file be accurate and complete.
Investigators will have a much easier time with the assembly of the case
file if the materials are collected and properly filed as the
investigation progresses, rather than at the conclusion of the
investigation. At any given point in the investigation, the investigator
and the supervisor should be able to look at the record of the
investigation contained in TEAPOTS and in the case file to determine the
issues and the status of the investigation. Supervisory instructions and
electronic mail messages and memoranda from Regional Counsel regarding a
particular case should be included in the Deliberative Section of the
case file. Timely entry of all information and activity during the
investigation, as well as a well-organized case file, is essential.

**7-5 BASIC STEPS IN AN INVESTIGATION**

Investigations follow a series of steps that are designed to culminate
in a recommendation of reasonable cause or no reasonable cause. However,
the sequence of the steps may vary depending on the individual case. For
example, a complaint that a local governmental body discriminated
against a class of people protected under the Act when it denied a
zoning variance for a group home may prompt a different sequence of
steps in the investigative process than would a complaint that alleged
that an owner refused to rent on the basis of race. If the complainant
adds new allegations or if new parties are discovered the complaint
should be promptly amended and investigative steps may need to be
altered.

The basic approach in most investigations is as follows:

A. Initial Outline of an Investigation Plan

The investigator conducts a preliminary review including the
complainant\'s initial statement of the events, issues and bases of the
complaint. The investigator begins identifying the information needed to
investigate the allegations, and drafts an initial plan for collecting
evidence.

B. Interview of the Complainant

During the initial interview of the complainant, the investigator
explains the enforcement and conciliation process to the complainant,
informs the complainant of his or her rights in the enforcement process,
reviews the allegations, and obtains information to verify the
complainant's allegations.

C. Receipt and Review of Respondent\'s Defenses

The investigator receives the respondent\'s response to notification of
the complaint. Although the response may be accepted orally or in
writing, written defenses generally minimize future misunderstandings.

D. Development of the Investigation Plan

Based upon the respondent\'s defense(s), the investigator determines the
theory he or she will proceed under and develops an Investigation Plan
which, when effectively implemented, factually establishes the presence
or absence of a valid prima facie case of discrimination and the
validity of any claimed defense. The investigator and his or her
supervisor should consult with Regional Counsel during the development
of the investigation plan. The investigation plan will be updated as the
investigation continues. Supervisors and investigators are responsible
for ensuring that the scope of the investigation is carefully tailored
to ensure adequate investigation of all claims made in the complaint
(and any other issue which might be apparent from a review of the
complaint and a knowledge of civil rights requirements). However,
\"over-investigation\" of claims can and should be prevented by careful
planning.

E. Data Request

The investigator sends written requests for information and documents to
the parties in the case. The responses to these requests will assist the
investigator in preparing for interviews and in furthering the
investigation.

F. Respondent Interview

The investigator seeks statements, witnesses and documents, and obtains
other evidence relevant to the allegations of the complaint from the
respondent that responds to each of the complainant\'s allegations, and
solicits explanations and corroborative information for each defense.

G. On-Site or Off-Site Investigation

The investigator physically examines records and other documents
relevant to the case, on-site or off-site, and interviews the parties
and witnesses.

H. Analysis

The investigator examines, compares, and evaluates the evidence gathered
and determines whether further investigation is needed for a
recommendation in the case.

I. Final Interviews of the Complainant and the Respondent

The investigator requests responses to, or clarification of all of the
evidence collected in the case from the complainant and the respondent.
If a no reasonable cause determination is recommended, the investigator
must review the respondent's defenses and the evidence supporting those
defenses with the complainant to determine if the complainant has
additional information that would prove the defense(s) operate to
conceal unlawful discrimination. If a reasonable cause determination is
recommended, the investigator must summarize the evidence of the
investigation and solicit any rebuttal evidence from the respondent.
Whenever a respondent or complainant provides additional information,
the other party should be given an opportunity to respond to the new
information or evidence.

Throughout the investigation, the investigator should be entering data
reflecting the information obtained and other activity related to the
investigation in a timely manner in TEAPOTS. Additionally, the
investigator should be updating the investigative file. Finally, the
investigator should be consulting on a regular basis with his or her
supervisor on the progress of the investigation and any obstacles or
unexpected developments that may occur.

In consultation with his or her supervisor, the investigator must
consult with Regional Counsel at all stages of the processing of a fair
housing complaint. These consultations must occur frequently during the
process and must include significant involvement at complaint intake, in
determinations of jurisdiction, in investigation plan development, in
conducting investigations, in the effort to resolve the case informally
through conciliation and in making determinations of reasonable cause.

**7-6 PREPARATION OF THE PRELIMINARY INVESTIGATION PLAN**

The first step in preparing to investigate a complaint is the creation
of the Investigation Plan. The Investigation Plan is a living document
that should be continually evaluated and revised as unexpected
developments in the complaint investigation alter the theories that are
controlling the investigation. The Investigation Plan is a road map for
the investigation based on careful analysis of the complaint, the known
facts and the provisions of the Act. It helps the investigator avoid
dead ends and keeps the investigation on track and on schedule.

The Investigation Plan, unlike the Final Investigative Report, is not
mandated by statute. Nonetheless, an Investigation Plan is critical to
ensuring efficient and effective completion of the investigation. An
Investigation Plan format is contained in the investigative folder in
TEAPOTS. The Investigation Plan must be placed and maintained in the
Deliberative Section of the case file as referenced in Chapter 10,
Preparation of the Case File.

The contents of an Investigation Plan should be sufficiently
comprehensive to ensure that the investigator gathers the evidence
necessary to determine whether the respondent violated the Act. The
investigator and his or her supervisor may use the Investigation Plan
section in TEAPOTS in a flexible manner to produce a meaningful guide
for the conduct of the investigation.

A. Contents of the Investigation Plan

An Investigation Plan should include, but not necessarily be limited to:

-   A description of the allegations, issues and bases;

-   A statement of the defense(s) raised by each respondent;

-   The facts to be gathered in order to prove or disprove the
    allegations;

-   A list of persons to be interviewed;

-   A list of documents and records to be obtained;

-   A list of other sources of information and evidence; and

-   A projected timetable for completion of the various steps in the
    investigation.

B. Organization and Headings of the Investigation Plan

There are four phases involved in the investigation of a discrimination
case:

-   Ensuring that the Department has jurisdiction over the complaint;

-   Investigating whether or not the facts establish a prima facie case
    of discrimination;

-   Obtaining, recording and understanding the respondent\'s defenses or
    rebuttal; and

-   Investigating whether or not the facts support each of the
    respondent\'s defenses, or show the respondent's defenses are
    pretext that try to conceal unlawful discrimination.

1.  [Jurisdictional Elements]{.underline}. The investigator should
    review information to verify that: the complainant has been injured
    or will be injured by a discriminatory housing practice that is
    about to occur; each respondent is covered by the Act and each
    respondent, if there is more than one, may be responsible for the
    action, if proven; the property is not exempt; the complaint is
    timely filed; and the subject matter of the complaint alleges a
    discriminatory housing practice covered by the Act.

2.  [Statement of the Problem (Allegations)]{.underline}. After
    jurisdiction is established, the investigator should develop a
    statement of the allegations to be investigated. The information
    needed to do this will be on the intake complaint form, the reports
    of the intake interview with the complainant, and the respondent\'s
    answer to the complaint, if it has been received. The investigator
    should start by identifying the conduct complained of (e.g., refusal
    to sell or rent, refusal to permit reasonable modification, etc.),
    the alleged basis for the conduct (e.g., race, religion, national
    origin, etc.), and the section of the Act and regulations pertaining
    to the alleged violation. All allegations should be included. The
    investigator should create a timeline of actions taken by the
    complainant and the respondent, if timing is an issue in the
    investigation.

3.  [Theory of the Case.]{.underline} Identify the theory or theories of
    discrimination appropriate to the complainant\'s allegations. This
    creates a structure within which to investigate and analyze the
    case. The appropriate theory depends upon the cause of the alleged
    discrimination. (See Chapter 2, Theories of Discrimination, for a
    complete discussion of discrimination theories and their
    application.)

4.  [Evidence and Elements Required for a Prima Facie Case.]{.underline}
    List the elements that will be required for the complainant to
    establish a prima facie case of discrimination. Identify as
    specifically as possible the documents or testimony which will
    determine whether the prima facie case stands or fails. The elements
    of the prima facie case depend upon the discrimination theory used
    and the transaction at issue (see Chapter 2, Theories of
    Discrimination, and Chapter 8, Analysis of Specific Cases, for the
    prima facie elements of various types of cases). An example of the
    elements of a prima facie case of discrimination in a refusal to
    rent case are:

-   The complainant belongs to a class of persons that the Act protects
    from unlawful discrimination;

-   The complainant applied to rent an available apartment from the
    respondent;

-   The complainant met the respondent's minimum qualifications for
    approval of the application to rent the apartment;

-   With knowledge that the complainant belonged to a protected class of
    persons, the respondent refused to rent the apartment to the
    complainant; and

-   After the respondent refused to rent to the complainant, a person
    not of the complainant's class rented the apartment or the apartment
    remained available.

During the investigation, the investigator must collect sufficient
evidence on each of the elements of a prima facie case of
discrimination. If one element of a prima facie case cannot be
established during the investigation, a no reasonable cause
determination will be made.

1.  [Defense(s).]{.underline} If there are specific defenses which have
    been raised or can be anticipated (such as local occupancy codes, a
    claim that the complainant violated his or her lease, denial that
    the respondent took the alleged action or made a statement, or
    receipt of a better purchase offer) the defenses should be set forth
    in the Investigation Plan. (See Chapter 2, Theories of
    Discrimination, and Chapter 8, Analysis of Specific Cases, for the
    defenses to various types of cases).

2.  [Analysis of Defenses]{.underline}. After receiving the respondent's
    defense(s), the investigator must examine and evaluate each defense.

3.  [Persons to be interviewed]{.underline}. The complainant and the
    respondent will always head the list of persons to be interviewed.
    In addition, list the witnesses named by the complainant and the
    witnesses named by the respondent. Under \"other witnesses,\" list
    those witnesses identified from a review of the response to any Data
    Requests, other documents in the case file, and during the
    investigation that should be interviewed. Witnesses are essential to
    corroborate or refute statements by the parties and other witnesses.
    Also, indicate whether an expert witness will be required in the
    case.

4.  [Documents and Records]{.underline}. List documents and records that
    may be necessary or helpful in resolving the case. Leases, purchase
    agreements, homeowner association and cooperative by-laws, articles
    of incorporation, documentation of the type of legal entity (limited
    partnership, general partnership, limited liability corporation,
    corporation) involved, copies of zoning ordinances, written
    occupancy policies and tenant selection and assignment procedures
    are some of the documents that may be necessary in a given case.
    Identify from whom and where to locate each item and how to acquire
    it.

5.  [Other Physical Evidence]{.underline}. Note whether the
    investigation will require any measurements, specific observations
    or any pictures or drawings, etc., of the subject property. If
    measurements are required, as in a case involving an occupancy
    standard, be sure to obtain the size of each bedroom and the overall
    size of the unit, or arrange to have the measurements taken by a
    third person who is not a party to the case, and has no interests in
    the outcome of the case. It also is advisable to prepare a drawing
    of the overall configuration of the unit. Materials published by the
    respondent should be carefully evaluated. Some housing providers
    will include patio or closet space in their statements about total
    living area in promotional materials.

> C. Sequence of Events.
>
> List the major tasks to be performed in order to complete the
> information required under each heading on the Investigation Plan.
> List the sequence in which they will be undertaken. Also, estimate the
> time each activity will take and the time required for the total
> investigation, keeping in mind the statutory obligation to complete
> investigations within 100 days, unless impracticable to do so.
> Establish milestones and track the progress of the investigation to
> ensure that it stays on schedule.
>
> D. Adjustments to the Investigative Plan
>
> After completing interviews with the complainant, the complainant's
> witnesses, and the respondent, and reviewing any documents that are
> available, the investigator should make any required adjustments to
> the Investigation Plan. The investigator should re-evaluate which
> discrimination theory applies to the case and whether the
> investigation has produced sufficient factual information to establish
> a prima facie case of discrimination. The investigator may add
> witnesses to interview, documents to locate, records to review and
> analyses to perform.

**7-7 EXAMINING THE RESPONDENT\'S DEFENSES**

The nature of the complainant\'s allegations, the defenses raised by the
respondent, and the analytical framework applicable to the allegations
and the defenses all determine the type and quantity of evidence the
investigator must gather to complete the investigation in a given case.

Once the respondent has answered the allegations of the complaint, the
investigator should analyze the nature of the \"defense\" offered before
proceeding further in planning the investigation. The defenses that
respondents raise in fair housing complaints generally can be grouped
into three broad categories:

-   Claim of exemption

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-   Denial or dispute of complainant\'s facts

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-   Dispute over the Act\'s requirements

A. Claims of Exemption

Respondents sometimes claim that they cannot be held liable for a
violation of the Act because they are exempt from its provisions. A
common example of this type of defense is in familial status cases
involving a defense that the respondent provides "housing for older
persons." Other cases in which a claim of exemption has been raised have
involved private clubs, private pool clubs and private individuals
renting out space within their own homes. In such cases, the respondents
may acknowledge that they have adopted and enforced a discriminatory
policy, but maintain that the Act does not apply to them. (See a more
detailed discussion on exemptions in Chapter 3, Jurisdiction, and
Chapter 4, Complaint Intake.)

B. Denial or Dispute of Complainant\'s Facts

A respondent may defend against an allegation of discrimination by
stating that the complainant\'s description of events is false.
Alternatively, a respondent may acknowledge the accuracy of some of the
complainant's allegations, but dispute a single fact or set of facts
that are critical to a finding of discrimination.

A respondent may provide reasons why the complainant did not receive a
housing opportunity or benefit, home financing, a reasonable
accommodation or modification or was treated differently. A respondent
may justify his or her action by identifying a policy or practice that
operated to exclude or deny the complainant. A respondent may justify
his or her action by identifying a local ordinance upon which he or she
was relying. The investigator must ask a respondent for documentation,
witnesses or other evidence to evaluate the respondent's defense. Every
defense should be verified, corroborated, disproved or discredited. This
may be done in a variety of ways:

-   Interview the complainant's and the respondent's witnesses and ask
    questions about the defenses raised by the respondent;

-   Obtain and review documents such as tenant records, applications,
    financial records and leases;

-   Compile and compare demographic or financial data on current tenants
    or applicants;

-   Review local laws to determine if they are applicable;

-   Obtain an expert witness to assist in evaluating whether it was
    impracticable to make a site accessible; or

-   Take any other logical steps that are applicable to the defense that
    has been raised.

For a specific discussion of defenses see Chapter 2, Theories of
Discrimination.

**[Example]{.underline}**: The complainant alleged a prima facie case of
discrimination in that the respondent refused to rent to her because of
her race (African-American). The respondent acknowledges that he rented
the unit to a Caucasian applicant, but he denies that he discriminated
against the complainant. He states that he has other African-American
tenants, the complainant did not provide a security deposit with her
application, and the complainant did not have a good credit history. The
investigator must evaluate all these defenses. The investigator should
interview the successful Caucasian applicant and compare the successful
applicant's application experience with the complainant's application
experience. The investigator must also review the records of the
successful Caucasian applicant, and compare the successful Caucasian
applicant's records with the respondent's policy and the complainant's
records to verify that the successful applicant paid the security
deposit and had a demonstrably better credit history. The investigator
must also review and obtain records of the race of the tenants in
respondent's building, review tenant files and talk to tenants to
determine whether other applicants were required to provide a security
deposit with their applications and whether the complainant was informed
of this alleged requirement, and must review tenant files to determine
whether the respondent did credit checks of all applicants and whether
he rented to non-African-American applicants with similar or poorer
credit than the complainant.

C. Dispute Over the Act\'s Requirements

Another defense that a respondent may assert is that his or her actions
are not prohibited by the Act. That is, a respondent may admit that the
events described by the complainant are accurate, but deny that these
actions constitute a violation of the Act. For example, a respondent may
contend that the Act does not require him or her to admit assistance
animals in the housing. A respondent may admit that he or she did not
rent to a family with children, but allege that he or she maintains a
development that qualifies as Housing for Older Persons under the Act.
In these cases, the investigation into the facts of the defense may be
brief and readily accomplished. The legal questions raised by the case
may be simple or novel and complex. The investigator should confirm the
specifics of the respondent\'s contention, request the reasons for that
contention and obtain any supporting documents or interpretations for
the contention. The investigator should then refer the issue to the
intake supervisor for resolution through consultation with Regional
Counsel.

**7-8 DETERMINING THE SCOPE OF THE INVESTIGATION**

One of the most important decisions an investigator makes in planning an
investigation is determining the scope of the investigation. For
example, the investigator must decide for what time period to seek
evidence (the temporal scope), and what buildings, facilities or
institutions to examine (the geographic scope). Additionally, the
investigator must determine the extent to which the circumstances of
other potentially aggrieved persons merit examination and whether to
treat the allegations as systemic or \"pattern or practice\" complaints.

The investigator must make these decisions on a case-by-case basis in
consultation with his or her supervisor. Additionally, as the
investigation progresses, the initial decisions about the scope of the
investigation and necessary adjustments must be re-evaluated.

A. Determining the Time Frame of the Investigation

One question that an investigator faces is determining the period of
time prior to the date of the alleged discrimination for which evidence
of relevant events should be collected. In answering that question, the
investigator should consider the following factors as well as any other
factors raised by the facts of the case:

1.  Is the alleged discrimination continuing in nature? That is, if the
    analysis of the information suggests that an unlawful practice of
    discrimination has occurred over a period of years, and has
    continued up to the filing of the complaint, the investigation could
    extend to all of the alleged unlawful acts, under the theory of
    continuing violations. However, it is important for the investigator
    to examine all of the events complained of to make sure they are
    continuing unlawful acts. See also Chapter 3, Jurisdiction.

2.  How frequently have events similar to those underlying the
    allegations occurred? If, for example, the complainant alleges a
    respondent\'s failure to rent, initial data may show that there were
    very few vacancies within the six months prior to complainant\'s
    application. In that case, the investigator may need to expand the
    time period during which records are requested in order to find
    relevant comparative or statistical data.

3.  Have the conditions under which the alleged discrimination occurred
    been subject to change? For example, if the respondent management
    had changed some time prior to an alleged discriminatory eviction,
    or if the respondent had revised its rental terms, then tenant
    evictions that occurred prior to those changes may not be relevant
    to the issues raised in the complaint. Only evictions that occurred
    under the rules or policies that existed at the time of the alleged
    discrimination would be probative of discrimination (unless the
    complainant claims that the rule changes themselves were
    discriminatory).

4.  Should events that occurred subsequent to the alleged discriminatory
    act be included in the scope of the inquiry? The investigator should
    keep in mind that actions that a respondent takes after receiving
    notice of the discrimination complaint might not be probative of
    whether the complainant was a victim of discrimination. For example,
    if a complainant alleged that a respondent failed to rent to him
    because the complainant is mobility impaired, the fact that the
    respondent rented a unit to a person in a wheelchair after having
    received notice of the complaint would have limited probative value.

> On the other hand, in some cases, evidence of later events is very
> relevant to the proof of a complaint. For example, if a respondent
> maintains that he or she rejected the complainant because of bad
> credit, evidence that the respondent accepted applicants with bad
> credit both before and after the alleged discrimination would be
> relevant. Evidence that the respondent did not rent to persons with
> bad credit after receiving notice of the complaint would have little
> relevance.

B. Geographic Scope of Investigation

In cases where the respondent owns or operates facilities at several
locations, the investigator must decide which facilities to include in
the investigation. In many instances, it will be appropriate to limit
the investigation to the location of the alleged discriminatory event,
e.g., the apartment complex or subdivision where the complainant sought
housing or resided, or the bank branch where the complainant applied for
financing, etc. However, in some cases it will be appropriate for the
investigator to expand the geographic scope of the investigation to
other locations under the respondent\'s control. Factors that will
influence that decision include:

1.  [The Location of Responsibility for Decision-Making]{.underline}.
    Whether the local respondent representatives had the right to
    exercise some independence or discretion, or whether they followed a
    centrally controlled policy or practice;

2.  [The Boundaries of the Pool from Which Similarly Situated Persons
    can be Drawn for Comparison]{.underline}. Whether the respondent
    would consider the complainant for housing only at the site in
    question or would automatically consider him or her at other
    locations as well;

3.  [Determining the Likelihood of Other Persons Having Been Affected by
    the Same Conditions that Affected the Complainant]{.underline}.
    Whether the respondent claims that the actions complained of were in
    keeping with standard procedures or were the result of the isolated
    unauthorized act of a local respondent representative; and

4.  [Analyzing the Scope of the Complainant\'s Allegations]{.underline}.
    Whether the complainant limited his or her allegations to events
    occurring at one facility or whether the events implicated other
    facilities as well (e.g., complainant was steered to a certain
    development).

**7-9 IDENTIFYING INDIVIDUALS FOR COMPARISON IN DISPARATE TREATMENT**
**CASES**

A. Defining Similarly Situated Individuals

This section covers how to identify individuals who can be compared to
the complainant and each other in disparate treatment cases. See also
Chapter 2, Theories of Discrimination.

Many investigations of allegations of disparate treatment rely heavily
upon comparative evidence. The quality of a disparate treatment
investigation is greatly affected by the investigator\'s identification
of those persons who should be compared to the complainant and each
other. The effective and successful resolution of disparate treatment
cases requires the investigator to:

-   Examine and analyze comparative evidence;

-   Identify differences in treatment that resulted from the comparison
    between the complainant and other similarly situated persons in the
    comparable class;

-   Decide whether different standards have been applied to the
    complainant versus the similarly situated persons; and

-   Ultimately, decide whether any differences in treatment resulted
    from unlawful discrimination.

For comparative evidence to be valid and probative of the presence or
absence of discrimination, it is critical that the individuals
identified or chosen for the comparison be similarly situated, in
reference to the complainant. Similarly situated means that, when
compared to the complainant, the persons and records examined by the
investigator possess or reveal similarities (not mirror images) to the
complainant in most, if not all, relevant aspects that influenced the
respondent's decision, except the bases of the individuals examined by
the investigator, will be the opposite of the basis identified by the
complainant.

In selecting similarly situated individuals for comparison to the
complainant, the investigator, to the extent possible and practical,
must include persons whose basis can be viewed as the opposite of the
complainant\'s protected basis, and when available, persons who share
the same protected basis as the complainant. In determining whether
another person satisfies the criteria for a \"good\" comparison, the
investigator should ask himself or herself whether the individual is
similarly situated in terms of:

-   General qualifications (tenant rental history and references,
    income, length of employment, employment history and credit
    history);

-   Location (Refers to those persons who pursued or enjoyed housing
    opportunities comparable to the complainant at or near the location
    of the alleged discriminatory act, including locations under the
    control of the respondent that offered comparable housing
    opportunities to the housing opportunity pursued or enjoyed by the
    complainant); and

-   Timing (Refers to those persons who pursued or enjoyed housing
    opportunities comparable to the complainant at or near the time of
    the alleged discriminatory act).

For example, if an African American family alleged that they were denied
an apartment because of their race, the investigator would identify
individuals for comparison who are not African-American persons or
families with similar qualifications as the complainant in terms of
prior tenancy, income, employment and credit history (general
qualifications); and who applied for an apartment at the subject
property, or if appropriate, another property owned and managed by the
same respondent within a period of from six months to one or more years
prior to the filing of the complaint, depending upon the turnover and
the consistency in management personnel making the application
decisions.

The investigator should also examine the application and acceptance
move-in activity of similarly situated African-American families who
applied and either moved in or were rejected during the same period.
This information can be helpful in establishing whether what happened
between the complainant and respondent is attributable to the
complainant\'s race.

Before concluding that the Act has been violated because the respondent
treated one or more of the individual chosen for the comparison
differently than the complainant, the investigator should consider
whether there are other factors that could explain the difference in
treatment.

B. Testing

Testing is one method of eliciting comparative evidence. The usefulness
of testing to an investigation lies in the ability of test planners to
construct two or more situations that are very comparable except for the
protected bases of the testers with respect to the prohibited factor
under examination. Effective testing is most frequently done before
service of the complaint. The premise that underlies testing and other
techniques of comparative evidence gathering and analysis is that
applicants, tenants or home-buyers who differ only in terms of race,
color, religion, etc., should be treated in a nearly identical manner
unless the housing provider intended to treat one of the individuals
less favorably because of the prohibited factor.

For a further discussion of testing, see the Testing Guidance located on
FHEO's website at
<http://hudweb.hud.gov/po/e/enforce/enforceguidance.htm>.

During the Intake stage, the Equal Opportunity Specialist will have
obtained information from a private fair housing organization concerning
any tests performed by that organization in connection with a complaint
filed by an individual referred to HUD or by the agency itself. The
investigator should review that information thoroughly and make sure
that it is accurately summarized in the documents section of TEAPOTS.

To enable HUD to accurately evaluate the full evidentiary weight of
testing, the investigator may request complainants and testing
organizations to provide copies of the following testing material to
HUD: tester profiles, test reports, test coordinator logs, debriefing
forms, test narratives, any materials a tester received from the tested
housing provider and other documents related to tests. These documents
should be placed in the Evidentiary Section of the case file. See also
Chapter 10, Preparation of the Case File.

The fair housing organization may redact these documents in order to
protect the identities of its testers. The investigator also may request
a fair housing organization to produce its testing methodology, i.e.,
site and respondent selection criteria, choice of type of test
conducted, tester training materials and tester procedures, particularly
with respect to complaints filed by the organization itself. The testing
methodology, as well as the tester identities, shall be placed in the
Deliberative Section of the case file.

Investigators must conduct an independent analysis of all evidence,
including testing material, regardless of whether a testing organization
has provided its own analysis of that material. Furthermore, the
investigator must interview all testers and test coordinators. The
investigator's questions about testing methodology and the test
coordinators' answers will be placed in the Deliberative Section of the
investigative file. No discussion of the complainant or organization's
testing methodology will be included in the Final Investigative Report
or the Determination.

To protect the identity of testers during investigation, testers will be
treated as "anonymous witnesses." Tester interview reports will be
maintained in the Evidentiary Section but those reports must be redacted
to omit the name, address, telephone number and title of the tester.
Information that would reveal the identity of testers must be placed in
the Deliberative Section of the case file.

**7-10 INVESTIGATING DISPARATE TREATMENT WHERE THERE ARE NO SIMILARLY
SITUATED PERSONS FOR COMPARISON**

Allegations of housing discrimination occasionally involve situations
where no similarly situated persons can be identified for purposes of
comparison.

**[For Example]{.underline}**: Complainant alleges that a small
apartment complex located in a rural area refused to rent to him because
he is Native American. The respondent's defense is that the
complainant's prior landlord gave the complainant a bad reference. The
respondent purchased the complex a year ago and there have been no
vacancies in that period of time other than the vacancy for which the
complainant applied. The respondent took the vacant unit off of the
market and instead the respondent's son occupied the unit upon his
graduation from high school.

In cases in which there is no identifiable individual who is
sufficiently similar in circumstances to the complainant to serve as a
basis for comparison, the following method of analysis should be planned
and followed:

-   Establish whether there are legitimate non-discriminatory reasons
    for the action.

-   Contact complainant's former landlord to establish whether the
    landlord gave the complainant a bad reference.

-   Establish whether normal business practices were followed (i.e., If
    the respondent normally contacts references of applicants by
    telephone was it done in this situation? In an eviction case, if it
    is the respondent\'s practice to send two notices prior to eviction,
    was this done?)

-   Establish whether there is any overt evidence of discriminatory
    animus, e.g., discriminatory statements.

**7-11 EVIDENCE**

The totality of the collected evidence determines the outcome of the
case. It is essential, therefore, that the investigator understands the
kinds of evidence available, how to determine which evidence is relevant
and how to evaluate the credibility of the evidence.

Evidence consists of facts that tend to prove or disprove an issue in
the case. Evidence may consist of testimony, records, documents or
objects. It is important in an investigation to identify as many sources
of information as possible. The goal of the investigation is to uncover
all of the evidence that is available in order to ensure a thorough
investigation that supports a recommendation of reasonable cause or no
reasonable cause.

There are several characteristics of evidence that affect its
usefulness. In order for evidence to support a determination in a case,
it must be both relevant and reliable.

A. Relevance

Relevant evidence is evidence that has a relationship to the issues to
be decided and tends to prove or disprove the issues in question. There
are two components of relevant evidence: materiality and probative
value. For example, if the complainant alleges that the respondent would
not rent to her because she has a child, the issue of whether the
respondent was aware of the presence of the child will affect the
outcome of the case. Evidence that tends to prove or disprove the
respondent\'s knowledge of the child, therefore, is relevant and has
probative value. Evidence concerning the child\'s race would not be
relevant since there is no claim of racial discrimination.

Material evidence is that which has a natural tendency to prove a fact
or issue in controversy. For example, evidence that a respondent had
expressed to his employees that he never wanted children living in his
apartment buildings is material evidence on the issue of whether he
discriminated against families with children.

The second aspect of relevant evidence is its probative value, or
whether the evidence tends to make the existence of any fact of
consequence (a material fact) more probable or less probable than it
would be without the evidence. For example, in a claim that a respondent
would not rent to a person of color, a note written by the respondent
stating that he would never rent to a non-White person is direct
evidence of discrimination that makes it more probable than not that the
respondent was motivated by racial discrimination.

B. Reliability

Evidence is deemed reliable, or credible, if it is believable when
judged by common experience.

1.  [Statements/Testimony of Witnesses]{.underline}. Witnesses should
    have personal knowledge about the matters covered by their
    statements. If they do not have personal knowledge\--for example, if
    they learned about a situation from a friend or others\--their
    testimony under most circumstances should not be used in an
    enforcement proceeding.

> Ideally, a witness should be unbiased. Bias is a witness\'s tendency
> or inclination to view a situation either favorably or unfavorably
> toward a party. Bias adversely affects a witness\'s objectivity. Bias
> may be measured by whether the witness has an interest in the outcome
> of the investigation, or by his or her relationship with the parties,
> or both. Bias will not preclude the use of a witness\'s statement;
> rather, it will bear upon how much weight will be given to the
> statement. The investigator should not ignore statements from
> witnesses who have the potential of being biased, such as a
> complainant\'s friend or sister. Such witnesses may provide perfectly
> reliable evidence.
>
> The reliability of any witness\'s statement is enhanced if it is
> verified or corroborated by other witnesses, or sworn or affirmed (as
> in an affidavit), and confirmed by documentary or other physical
> evidence.

2.  [Records/Documents]{.underline}. In general, the most reliable
    evidence of the terms and provisions in a written record is the
    production of the written record itself. For example, written
    records of rents paid would be considered more reliable than the
    landlord\'s testimony about the rent payments.

> In the absence of original documents, business records kept in the
> ordinary course of business, and records created in close proximity to
> the time of the event are also accepted as reliable evidence.
> Reliability is enhanced if the record is dated and signed by the
> author and if the custodian of the document gives testimony that
> authenticates, i.e., identifies the record. Documents created
> specifically in anticipation of an investigation may be biased since
> the respondent or the complainant could attempt to affect the outcome
> of the investigation through the records. Likewise, records created
> some time after the act in question may suffer from a lapse in the
> memory of the person creating the record.
>
> The investigator must determine whether copies of each document
> reviewed on site should be collected. While copies may be useful in
> supporting the investigation's findings and/or needed to introduce
> information as evidence, sometimes the sheer volume of the records
> reviewed on site may make it very difficult to make copies,
> particularly if the respondent refuses to provide copies without
> reimbursement. The investigator should consult with his or her
> supervisor in these circumstances.
>
> It is imperative that the investigation includes an accurate history
> of the source of each document obtained during the investigation. This
> history should show the person from whom, or organization from which,
> the document was received, the date and time it was received and the
> person who received the document. All documents should be preserved in
> the same condition as when they were received; with the exception of
> an official date stamp, no notations should be made on any document
> received during the course of an investigation.

C. Types of Evidence and Proof Categories

1.  [Direct Evidence]{.underline}. Direct evidence is evidence that on
    its face proves or disproves a fact in question, e.g., the
    respondent\'s discriminatory motive is direct evidence of intent.
    Intent is evidenced in the form of the spoken or written word. For
    example, the respondent may tell the complainant that he will not
    rent the apartment to the complainant because the complainant has
    children. In addition to stating that no children are allowed, the
    respondent may have a brochure that states that apartments will not
    be rented to families with children. Both the oral statement and the
    written brochure constitute direct evidence. However, as explained
    below, direct evidence is not required in order to show the
    respondent\'s discriminatory motive.

2.  [Circumstantial Evidence]{.underline}. Circumstantial evidence is
    evidence from which one may rationally infer the existence of a
    fact. For example, the respondent\'s motive may be inferred from
    circumstantial evidence. All relevant evidence that is not direct is
    circumstantial. Anything that tends to show that the respondent
    acted because of a reason prohibited by law is circumstantial
    evidence.

> For example, circumstantial evidence may consist of facts that
> demonstrate that in an apartment complex, one remote section of the
> complex was rented almost solely to African-Americans. This evidence
> may further demonstrate that African-American tenants were shown
> apartments only in that section of the complex. Additionally, the
> evidence might reveal that the respondent repeatedly failed to show,
> offer or make vacant apartments available to African-Americans, in the
> buildings of the complex occupied by White tenants. From this
> evidence, an inference may be drawn that the respondent segregated
> African-American tenants because of their race from which the
> investigator can infer a discriminatory motive.
>
> Another type of circumstantial evidence used in disparate treatment
> discrimination cases is comparative evidence. Suppose, for example,
> that the complainant alleges she was evicted because she had children.
> The respondent claims the complainant was evicted because other
> tenants complained that she and her family were noisy. Documents and
> testimony from tenants may show that residents complained to the
> respondent about loud noise by other tenants who did not have
> children, but that no action was taken against the tenants without
> children. This difference in treatment is circumstantial evidence of
> discrimination because of familial status.

3.  [Statistical Evidence]{.underline}. Statistical evidence can be used
    as evidence of intentional discrimination, even in cases involving
    disparate treatment. Most frequently, in such cases, statistics are
    useful in establishing that a pattern exists which is so persistent
    that it is extremely unlikely to have occurred by chance.
    Statistical evidence is nearly always at the heart of discriminatory
    impact cases. Impact cases rely upon statistics to show that a
    policy or practice has a significant adverse impact upon persons of
    a particular class covered by the Act. Statistical evidence is a
    form of circumstantial evidence. For example, a respondent bank may
    have a policy of approving residential loans only for more than a
    stated amount of money. A data analysis of successful and
    unsuccessful loan applicants may show that this policy excludes a
    statistically significant greater proportion of minority loan
    seekers than non-minority loan seekers.

4.  [Documentary and Physical Evidence]{.underline}. In addition to
    overt, circumstantial and statistical evidence, there are documents
    or other physical evidence that may prove the existence of a policy,
    a reason for an alleged discriminatory act, or establish a
    violation. See Chapter 10, Preparation of the Case File.

D. Probing for Indicators that a Transaction was Atypical

When, for example, an allegation is made that a housing opportunity was
denied because the respondent discriminated on one or more of the
protected bases, the complainant should be questioned in detail about
what transpired at the time the incident occurred. For example, was the
complainant given an application to complete? Did the application have
any markings on it? Was the application accepted while the complainant
was on the premises? Was the applicant shown a model apartment? Was the
applicant told that he or she would be placed on a waiting list?

After the complainant, and the complainant's witnesses have been
thoroughly questioned as to the details involved in the incident, the
investigator should interview the respondent about the circumstances of
the complainant\'s application. The respondent should be asked to
provide details on the standard procedures used in the application
process. Once every detail of that process is provided and the
respondent identifies the criteria used to measure all applicants, the
investigator can compare the experiences as told by the complainant to
the process and criteria described by the respondent. In a failure to
rent case units that could have been available during the relevant
timeframe should always be identified.

The respondent should be asked to explain any differences between the
standard procedures and the complainant\'s treatment. What legitimate
excuses or reasons were uncovered for the action taken? What was the
complainant told and was that accurate? Any criteria or procedures used
with the complainant or reasons given for the action taken that differ
from those described by the respondent as standard should be explored to
determine if the respondent\'s normal business procedures were avoided
and, if so, why.

In interpreting evidence that the respondent did not deal with the
complainant in a manner typical of his or her usual practices, consider
also whether attributes of the complainant other than the alleged
prohibited basis may have been responsible for the break in procedure.

**7-12 PARTIES AND WITNESSES WHO ARE REPRESENTED**

This section provides guidance to investigators on how to communicate
with parties or witnesses who are represented. Investigators shall
conduct investigations in a professional manner when communicating with
represented parties and witnesses. This guidance applies to all
representation, whether by an attorney or non-attorney.

# A. Parties Who Are Represented

Whenever an investigator contacts a complainant or respondent (party)
and the party indicates that he/she/it is represented, the investigator
shall ask the party to have their representative provide a letter of
representation. The investigator should ask for the name, address and
telephone number of the representative. If the representative does not
provide a letter of representation, the investigator shall draft a
letter to the representative asking the representative to confirm
whether he/she represents the party. If the party was not initially
represented but during the course of the investigation obtains
representation, the investigator shall ask for a letter of
representation. If a non-attorney represents the party, both the party
and the representative shall sign the letter of representation.

Once the investigator knows that the party is represented, the
investigator shall contact the representative and shall not contact the
party directly unless the party's representative provides permission for
the investigator to do so. If the permission to contact the party
directly is limited to certain facts or issues, the investigator may not
question the party regarding other facts or issues. In the absence of
written permission to talk directly to the party, the investigator shall
make a written notation to the file of the oral communication giving
permission for the contact, and send a letter to the repres4entative
confirming permission to contact the party directly. Where a represented
party contacts an investigator directly, the party must either provide a
letter from the representative permitting such direct communication or
have the representative on the telephone. An investigator may not talk
directly to a represented party without the representative's consent.

The requirement that an investigator communicate with the
representative, and not directly with the party applies during the
course of the investigation and through all aspects of case processing,
including the conciliation process and the post-charge phase of a case.

However, the requirement that an investigator communicate with the
representative does not apply where the regulations require personal
service on the parties, i.e., complaints, amended complaints,
notification letters, 100-day letters or subpoenas. Such items shall be
served upon the party in accordance with the statute and regulations.
The representative should also receive a courtesy copy of the
correspondence.

If the represented party contacts the investigator and indicates that he
or she would like to speak to the investigator, the investigator shall
inform the party that the investigator needs written permission from the
party's representative before the investigator will speak directly to
the party or a letter from the party stating that the relationship with
the representative has been terminated.

If the party contacts the investigator and indicates that he or she has
terminated the representation, the investigator shall ask for a letter
in writing from the representative that states the relationship has been
terminated. The investigator must have reasonable assurance that the
representation has been terminated. A letter from the party that the
relationship has been terminated is acceptable.

## B. Witnesses Who Are Represented

If the investigator contacts a witness to request an interview and the
witness asks to have a representative present during the interview, the
investigator shall request the name, address and telephone number of the
representative and then contact the representative to set up the
interview. The investigator shall contact the representative and shall
not contact the witness directly unless the witness's representative
provides permission for the investigator to contact the witness
directly. If the permission to contact the witness directly is limited
to certain facts or issues, the investigator may not question the
witness regarding other facts or issues. In the absence of written
permission to talk directly to the witness, the investigator shall make
a written notation to the file of the oral communication giving
permission for the contact, and send a letter to the representative
confirming the representative's verbal permission to contact the witness
directly.

If the represented witness contacts the investigator and indicates that
he or she would like to speak to the investigator, the investigator
shall inform the witness that the investigator needs written permission
from the witness's representative before the investigator will speak
directly to the witness or a letter from the witness stating that the
relationship with the representative has been terminated.

## C. Conciliation

The requirement that an investigator communicate with the representative
and not directly with the party applies during the course of the
investigation and during the conciliation process. The investigator must
contact the representative when relaying conciliation offers or
counter-offers. If the investigator successfully conciliates a case, the
investigator shall obtain the signature of the party's representative as
well as the party's signature. See Chapter 11, Conciliation, for
additional guidance.

## D. Interviewing Employees of Parties or Witnesses

If the investigator is interviewing an employee or former employee of a
party or a witness who requests to be interviewed without counsel; and
the investigator knows or has reason to know that counsel represents
party or witness of the employee or former employee, then the
investigator shall contact the Office of Regional Counsel for guidance.

## E. How to Deal with Non-Responsive Representatives

If the representative of the party or witness is not responsive to
requests from the investigator for information, documents or an
interview, the investigator should consult with his or her supervisor
and seek guidance from Regional Counsel.

If, during the conciliation process, the investigator believes that the
representative is not communicating conciliation offers to the party or
is not participating in good faith, he or she should contact the Office
of Regional Counsel.

## F. Whether a Party or Witness should Obtain Counsel

If a party or witness asks the investigator whether he or she should
obtain counsel, the investigator shall respond that he or she cannot
advise the party or witness as to whether they should obtain counsel but
shall inform the party or witness that he or she is entitled to seek
counsel.

**7-13 MEMORIALIZING INTERVIEWS**

A. Note-taking during Interviews

It is extremely important for the investigator to take thorough notes
during an interview and to record the interview in TEAPOTS as soon as
possible after the completion of the interview. In cases that are
ultimately charged and litigated by HUD or DOJ, the investigator will
have to rely on his or her interview records in order to prepare to
testify. Moreover, in some cases, the interview records themselves may
be entered into evidence at the trial.

In order to prepare interview records that will provide a firm legal
basis for a determination and/or trial, the investigator must convey the
context in which answers were provided as well as the content of the
answers given. In addition, the investigator must be sensitive to
statements that should be recorded verbatim and to set these apart from
statements that are summarized.

In order to accurately convey the context of the answers provided by the
party or witness, the investigator must strive to maintain the order of
questions and answers throughout his or her note taking. In addition,
the investigator needs to record, as accurately as possible, the
question to which the witness is responding. For example, a party or
witness may state:

> \"My landlord said on Tuesday that my daughter couldn\'t live with me
> because she had been in prison\" and \" \... on Wednesday I got an
> eviction notice.\"

The above answers might have been provided in reply to these questions:

-   \"What reasons did the landlord give for evicting you?" and

-   \"When did you receive your first eviction notice?\"

Conversely, these answers might have been provided in response to these
questions:

-   \"Did your landlord tell you that any other member of your household
    couldn't live with you?" and

-   \"What happened after you told the landlord you were going to
    contact HUD to file a complaint?\"

Clearly, the meaning of the answers of the party or witness in the above
examples can be fully understood only when the questions that the
complainant was answering are also supplied.

The investigator should not be so tied to the question format and
sequence prepared prior to the interview that important information is
lost or necessary follow up questions are not asked. Frequently parties
and witnesses will supply a long narrative answer only parts of which
are germane to the question being asked. However, that narrative may
include information that is responsive to a question that appears later
in the investigator's outline. The investigator should associate the
volunteered information with the question that it concerns.
Additionally, witnesses may convey unexpected, and sometimes extremely
relevant, information during the narrative response that should be
followed up with a new question immediately. The new question and the
follow up information should be recorded wherever appropriate.

Occasionally parties and witnesses make statements that are particularly
meaningful because of the precise words chosen. For example, a
respondent might describe an African-American complainant in a racially
derogatory manner. The precise meaning the words convey would be
completely lost if the investigator simply wrote that the complainant
says respondent referred to her in a racially derogatory manner or
respondent used a racial slur when addressing complainant. The
investigator must ask the complainant exactly what was said and write it
down verbatim, using quotation marks to capture exactly what was said.

Throughout the interview, the investigator should ask the complainant to
pause whenever necessary in order that a complete and legible record of
the party or witness comments may be prepared.

The investigator should obtain a signed statement from any party or
witness. During the introductory phase of the interview, the
investigator should inform the party or witness that a signed statement
may be requested at the conclusion of the interview. The signed
interview record then becomes a document, which should be placed in the
appropriate section of the case file, and recorded as such in TEAPOTS.

Sometimes, a witness will want to change, delete or amplify his or her
responses when reviewing the written statement of the interview prepared
by the investigator. This is the witness's right. The witness should be
instructed to make any changes to the written statement on the document
in ink and initial and date those changes. The written statement with
the pen and ink changes should be filed in the appropriate section of
the case file. An investigator should not transmit written statements
electronically because the witness's changes will not be fully and
completely documented.

If the witness changes anything on his or her statement, the original
statement and the revised statement should be separately entered into
the Interview section of TEAPOTS. If a witness refuses to sign the
statement, then the investigator should note in the case file and in
TEAPOTS that the witness was provided a copy of the statement and
declined to sign it. This note should be dated.

### B. Investigator Notes of Interviews 

As emphasized above, during an interview of a party or witness, the
investigator should take detailed notes of the questions and the
responses to the questions provided by the person interviewed, as well
as any additional comments made either by the investigator or the party
or witness. Frequently an investigator will mark sections of the
interview notes as the interview progresses. The notations or reminders
signal the investigator to pursue the avenue of inquiry further, or
obtain information from another person about the subject discussed. The
investigative notes also may contain factual observations of the
investigator regarding the demeanor of the party or witness, the
location of the interview and any distractions that may have affected
the effectiveness of the interview. Subjective observations may appear
in the Notes section of the TEAPOTS in the interview tab, in the
Deliberative Sections of TEAPOTS and the case file. Subjective
observations should not appear in the FIR.

The investigator should enter the results of each interview as quickly
as possible after the completion of the interview. The investigator will
record the results of an interview in two places in TEAPOTS. The
investigator's observations concerning the interview, information
provided by the party or witness about methods of contacting other
witnesses and similar information should be recorded in the "Notes"
section of the interview screen. The substance of the interview should
be recorded in the "Summary" section of the interview screen. The
summary should be detailed and complete, as discussed in other sections
of this chapter, using the investigative notes for accuracy. When
recording the interview, the investigator may discover that he or she is
not certain of what a party or witness stated at a given time; in those
instances the investigator should contact that witness for clarification
and include a reference to the supplemental contact in the Notes
section.

**[SPECIAL NOTE]{.underline}: After an interview has been recorded in
TEAPOTS, the investigator's hand-written notes should be retained in the
Evidentiary Section of the case file.**

### C. The Use of Recording Devices in Interviews

Tape recording an interview with a complainant, respondent or witness
can be a very effective method of ensuring the accuracy of the written
summary of the interview. A tape recording also may capture inflections,
emphases, hesitations or other aural information that cannot be captured
in a document. There are times when a tape recording may be evidence of
the manner in which the investigator conducted the interview in response
to allegations of impropriety.

However, the improper or careless use of tape recordings can also be
very detrimental to an effective investigation. The laws regarding the
use of recording devices, and consent required in order to allow such
evidence to be admissible in court, vary from state to state. An
investigator must consult with his or her supervisor and Regional
Counsel before tape recording an interview. The investigator must not
tape record an interview unless the party or witness being interviewed
has expressly consented to the tape recording, and the party or witness
**[must]{.underline}** audibly and clearly record the affirmation of
this consent on tape at the beginning of the taped interview. A clean
tape should be used. Recordings should not be made on tapes that have
previous recordings on them. Additionally, an investigator should tape
record interviews only after having received training on the proper
method to tape an interview and on the equipment being used. If a
decision is made to tape record an interview, that decision should be
memorialized in the "Notes" section of the interview record in TEAPOTS.

Additionally, when making a decision whether the use of a tape recorder
during an interview is advisable, the investigator and supervisor should
assess the probable effect of the tape recording on the outcome of the
interview. Some parties or witnesses may become very uncomfortable or
self-conscious if a tape recorder is being used and this may impede the
free flow of information during the interview. On the other hand, some
parties or witnesses may feel reassured that the tape recording will
most accurately capture their statements. Occasionally a party or
witness will insist on tape recording the interview; in those instances
the investigator should be prepared also to tape the interview.

Before beginning a tape recording, the investigator should ensure that
the equipment is working properly and that there are a sufficient number
of blank tapes on which to record the entire interview. For complainant
or respondent interviews, several tapes may be necessary. When the
investigator has used one tape, the investigator should immediately mark
that tape showing its sequence in the entire interview and place the
tape in a secure place. A separate tape should be used for each party or
witness interviewed. Whenever a respondent requests that an interview be
taped, the investigator should demand that he or she receive a copy of
the tape.

The investigator should never rely exclusively on a tape recording to
capture the content of an interview. The investigator should take
detailed notes of the answers to questions and any other information
conveyed during the course of the interview. The investigator can use
the tape recording when recording the interview summary in TEAPOTS to
supplement those detailed notes to ensure accuracy of the interview
summary.

While an interview is being conducted and tape-recorded, the party or
witness may requests to "go off the record" or to end the tape
recording. If this should occur, the investigator must agree to end or
pause the tape recording. However, the investigator must explain that
nothing said during an interview is "off the record;" the investigator
will make a written summary of the information conveyed during the
entire interview; and the investigator may request the witness to sign a
written statement at the conclusion of the interview.

Whenever an interview is recorded, the tape(s) of that interview must be
preserved. These tapes must never be destroyed, used to re-record
another interview or otherwise erased or altered. The tape(s) of each
interview should be placed in a separate manila envelope that should be
marked with the date of the interview and the name of the witness and
secured in the case file. The manila envelope containing a tape should
also include the recorder of the tape and a Document Control Cover
Sheet. See Chapter 10, Preparation of the Case File, for additional
guidance on proper handling and filing of tape recordings.

In some cases, and in particular in cases that have been identified as
potential reasonable cause cases, it may be important to obtain a
complete transcript of one or more tapes obtained during the
investigation. An expert in that business should do transcription.
Transcripts can be expensive, and the supervisor should ensure that
there are sufficient funds to cover this cost. Once a transcript is
made, it is a document, and must be recorded in the Documents section of
the Investigation folder in TEAPOTS. The transcript also should be
secured in the evidentiary file in accordance with Chapter 10,
Preparation of the Case File. Even if a transcript is made, the original
tape(s) must be preserved in the case file as evidence.

**7-14 INVESTIGATOR'S INTERVIEW WITH THE COMPLAINANT**

A. The Initial Interview

After developing the Investigation Plan, the investigator should contact
the complainant. The investigator needs to personally hear and document
the complainant\'s story. Usually the initial contact is likely to be
made by phone, if only to introduce the investigator and make
arrangements for an in-person interview. Based on the circumstances of
each case, the investigator should obtain as much information as
possible during the initial phone contact and through the subsequent
in-person interview, which can also be used to clarify information.

The investigator should contact the complainant without regard to
whether the respondent has filed an answer. While a timely answer to the
complaint by the respondent would expand the initial complainant
interview to cover issues raised by the answer, it is not necessary to
wait until the answer is received to begin getting important information
from the complainant.

The investigator should outline the general flow of the interview and
the questions to ask of the complainant. When the complainant has raised
multiple allegations (alleging, for example, a pattern of harassment
based on race or repeated incidents of unwanted sexual overtures), the
investigator should plan to move from incident-to-incident throughout
the interview and ask the complainant the same series of questions about
each incident, i.e.,

-   When did this occur?

-   What, precisely, happened?

-   Where did this happen?

-   Who was responsible?

-   Who might have witnessed the incident?

-   What documents might have been created that would substantiate the
    complainant\'s account of the incident?

The initial complainant interview should result in a detailed and
specific understanding of the events giving rise to the complaint.

1.  [Preliminary Matters.]{.underline}

> The investigator should begin the interview by introducing him or
> herself to the complainant and explaining the purpose of the
> interview. If the first interview occurs face-to-face, the
> investigator should present HUD identification. The investigator
> should make sure to cover the following:

-   Explain the complaint process. Many complainants do not understand
    that FHEO is a law enforcement agency that conducts a full, fair,
    and impartial investigation of all sides of an issue. Ensure that
    the complainant understands that an investigation can conclude in a
    conciliated settlement, a dismissal or litigation. Explain to the
    complainant that the focus of the investigation will be exclusively
    upon alleged and potential violations of the law. Explain that the
    complainant can and should take whatever steps are necessary to
    improve his or her living situation while the complaint is being
    processed. (There is no need for the complainant to maintain the
    status quo until the conclusion of complaint processing). Describe
    the length of time that may be required for processing the complaint
    and the current status of the investigation.

-   Emphasize HUD\'s objectivity to the complainant and explain that the
    complainant has a right to legal representation if he or she desires
    it.

-   Ask if the complainant has any questions about the process.

-   [Explore the Complainant\'s Allegation. Ask the complainant to
    explain, in his or her own words, what happened.]{.underline}

> As the complainant explains what happened, the investigator should
> listen for and record the "what," "when," and "where\" of the alleged
> violation, such as:

-   A physical description of where the alleged act of discrimination
    took place;

-   A precise description of what the complainant did, such as where,
    for example, she applied for an apartment, how she applied, to whom
    she applied, who was present, how she learned of the unit, the type
    of unit she was seeking, etc.;

-   A physical description of the respondent and a description of the
    respondent\'s actions and requirements, such as questions the
    respondent asked, whether an application was required, what
    qualifications were stated, whether a deposit was required, the
    amount of the rent, materials provided, the existence of a waiting
    list, etc.; and

-   How and when complainant became aware of the alleged discrimination.
    Was anyone else treated in the same manner? What does the
    complainant think will be the respondent\'s explanation for his or
    her actions?

> The investigator should continue asking questions until he or she
> understands all events relevant to the alleged violation, giving the
> complainant feedback to ensure that his or her understanding of the
> information is accurate. The investigator must ask the complainant
> explicitly why he or she believes the events occurred because of
> discrimination.

2.  [Explore the Respondent\'s Defenses]{.underline}. The complainant
    may be inclined to tell the investigator only those facts that
    support the discrimination claim. For example, the complainant may
    say, "I received an eviction notice as soon as I got home from the
    hospital with my new baby." The complainant may know, but neglect to
    say, that, prior to going to the hospital, she had received three
    warning notices about noise and parking violations. The investigator
    should ask the complainant what she believes the respondent will say
    in response to the complaint. For example, she may tell the
    investigator about the warning notices. The investigator can then
    ask the complainant if she believes the warning notices are the real
    reason for her eviction. If the complainant believes the warning
    notices are not the reason for the eviction, she should be asked to
    explain why she believes otherwise. This type of exploration helps
    to ensure a thorough investigation.

> As soon as the respondent\'s answer to the complaint is available, the
> investigator should review it \-- point by point \-- with the
> complainant. Obtain the complainant\'s response to each prong of the
> respondent\'s defense. The complainant can be asked to suggest
> witnesses and provide any witnesses who might refute the statements in
> the respondent\'s answers.

3.  [Review the Signed Complaint Form for Accuracy]{.underline}. The
    investigator should review the complaint form in light of the
    complainant\'s statements and determine if it accurately reflects
    the complainant\'s allegations. If the complaint is not properly
    framed, the investigator must discuss the required changes with the
    complainant and ask the complainant to execute an amended complaint.
    If it is apparent during the interview that other parties should be
    added to the complaint, the investigator should consult with and
    assist the complainant in executing an amended complaint. If the
    complainant relates additional acts of alleged discrimination that
    have occurred since the filing of the complaint, the investigator
    determines whether those allegations are a part of a continuing
    course of the alleged discriminatory conduct alleged in the
    complaint or new acts. The investigator also must determine whether
    the existing complaint should be amended or a new complaint taken. A
    new or amended complaint must be served on all parties.

4.  [Identify Witnesses]{.underline}. The investigator needs to ask the
    complainant to identify any witnesses who can corroborate the
    complainant\'s statements or who can provide further information
    relevant to the complaint, e.g., persons who were present when the
    act took place, persons familiar with any policies at issue or
    anyone who can verify any facts in dispute. The investigator should
    ask how to contact the witnesses and record that information in the
    Investigation Plan and in the witness's section of TEAPOTS. The
    investigator also should ask the complainant whether he or she knows
    of any other persons who share the complainant's protected class
    status who also may have been injured by the respondent's alleged
    discriminatory practices and how these individuals could be located.

5.  [Identify Records and Documents]{.underline}. The investigator asks
    questions that may lead to the identification of relevant records.
    This line of questioning is particularly important because the
    complainant may have relevant documents in his or her possession.
    For example, did the complainant sign a register? Did the agent take
    notes? Did the complainant pick up a business card? Were the police
    called? Did the agent say that a credit check on the complainant had
    been run? Questions of this nature will identify relevant documents,
    and the complainant may be able to provide copies or arrange to copy
    the documents.

6.  [Discuss Injury and Damages]{.underline}. The investigator should
    ask the complainant to describe how the alleged discriminatory acts
    injured the complainant and any other identified aggrieved persons
    named in the complaint. The investigator may use the Damages
    Worksheet in TEAPOTS as a basis for questions concerning the
    complainant's economic and non-economic harm. With respect to
    non-economic damages, the investigator should ask the complainant to
    describe how he or she and members of the household reacted to the
    alleged discrimination, with whom have they discussed their feelings
    and how those feelings affected their outlook or daily activities.
    This avenue of inquiry also will provide information that the
    investigator or conciliator will need to conduct conciliation
    efforts. The investigator should be careful to distinguish between
    questions concerning the type of harm and damage that the
    complainant experienced from the complainant's requests for
    compensation or conciliation proposals; the latter should never be
    included in the interview notes but instead should be recorded as
    part of the conciliation record.

7.  [Closing]{.underline}. The investigator should always conclude an
    interview by asking the complainant if there is anything else he or
    she would like to add and thanking the complainant for his or her
    cooperation. The investigator should inform the complainant that he
    or she will conduct further interviews following contact with the
    respondent in order to get the complainant\'s comments on the
    respondent\'s position. The investigator should explain that he or
    she will keep the complainant apprised of the progress of the
    investigation and should let the complainant know his or her name,
    address and telephone number.

> The investigator needs to advise the complainant of the necessity to
> notify the investigator or the HUD office of any change in address or
> telephone numbers at work or home. The complainant should be informed
> that the complaint could be closed if HUD cannot locate the
> complainant or if the complainant should fail to cooperate with HUD
> during an investigation.

B. Follow up Interviews with Complainants

In almost every investigation it will be necessary to conduct additional
interviews of the complainant. The investigator should be careful,
however, to ask the complainant additional questions only to clarify or
supplement answers to previous questions or to provide new information
in response to evidence produced during the investigation. Unless new or
additional information makes the complainant's credibility a key issue
in the investigation, it is not productive to ask the complainant the
same questions during subsequent interviews. For that reason, it is
important that follow up interviews with complainants are conducted with
the same thorough preparation and planning as the initial interview.

**7-15 INITIAL DATA REQUESTS**

The investigator should include in the Investigation Plan a list of the
information and documents needed from the respondent. The investigator
should promptly prepare and mail or fax an initial Data Request to the
respondent and then verify whether the respondent has received the
initial Data Request. The initial Data Request should be designed to
obtain information that helps determine whether: (1) all of the
appropriate respondents have been named in the complaint, (2) the
respondent(s) will be represented by anyone during the investigation;
and (3) any information exists that tends to prove or disprove any
element of the complainant's prima facie case of discrimination or the
respondent's defenses.

Only in limited situations would an Initial Data Request be sent to
complainant. Such limited situations would include:

-   Complainants whose circumstances do not permit personal or telephone
    interviews;

-   Complainants who have representation; and

-   Complainants who have failed to provide information within a
    reasonable time after receipt of the investigator's verbal request.

If an early on-site visit is planned, the initial Data Request may state
that the respondent should make the data available for review during the
visit and need not mail it to the Regional Office. If an on-site visit
is not anticipated in the immediate future, the initial Data Request may
need to be framed so as to produce a method for sampling and
independently verifying the data response.

Suppose, for example, that a complaint alleges discrimination in rentals
on the basis of familial status. The investigator must determine, among
other things, whether the landlord has a history of renting to persons
of the complainant\'s familial status. The investigator should ask the
respondent to document this fact. If the respondent says that he or she
had no records that would reveal the familial status of the tenants, the
respondent should be asked for a list of tenant names, addresses and
telephone numbers. A representative sample of these persons can then be
contacted in person or by telephone during the on-site visit and asked
about the presence of children under age 18 in their households and
whether their landlord asked questions about their familial status when
they first applied to rent at the subject property or has inquired into
their familial status or treated them differently.

In most cases, the investigator should request a list of similarly
situated individuals (applicants, tenants or clients of the respondent)
with current addresses and telephone numbers. As the investigation
progresses, the investigator may need to contact persons to learn how
they were treated or to obtain comparative information.

Always include a reasonable deadline by which the Department will expect
answers to the Initial Data Request and follow up with the respondent if
the information is not received by the date indicated.

Initial Data Requests should not, on their face, be described as
pre-subpoena letters. If necessary, follow-up data requests,
interrogatories or subpoenas may be used in cases where responses are
not forthcoming. See Section 7-20.

Data request letters should be recorded in the Documents section of
TEAPOTS.

**7-16 INVESTIGATOR\'S FIRST CONTACT WITH THE RESPONDENT**

When preparing to make contact with the respondent, the investigator
must take into consideration that there may be multiple respondents,
including agents or other individuals, who must be interviewed. On the
other hand, the respondent may be a sole proprietor or small family
business. These considerations would obviously affect the planning and
conduct of the investigation.

When possible, it is preferable for the investigator to conduct separate
interviews of each respondent. In scheduling the separate interviews,
the investigator should consider what would be the most effective
sequence of interviews. For example, the investigator may conclude that
it is more efficient to first interview a top manager who can provide an
overall picture of the respondent\'s operations. On the other hand, the
investigator may find that it is more productive to first get an account
of the events in question from the respondent who actually dealt with
the complainant.

The following description is developed as though there is one respondent
involved in the allegations.

A. Planning and Arranging Respondent Interviews

The investigator should review in detail the information submitted by
the respondent in response to any data requests. The investigator should
make copies of any documents about which the investigator intends to ask
questions during the respondent's interview, so that the investigator
can show those documents to the respondent during the interview. The
investigator should review the notes of the interviews with the
complainant and the complainant's witnesses, as well as all other
information in the case file and the Investigation Plan. The
investigator should learn as much as possible about the business of the
respondent before the initial contact by asking other investigators who
might be familiar with the respondent to explain the nature of the
respondent\'s business, checking to see if any of the commercial
publications list the respondent and learning the terminology used in
the respondent\'s business. An understanding of the respondent\'s
operations is very helpful in conducting a comprehensive investigation.
It is difficult to evaluate the legitimacy of the respondent\'s defenses
without some understanding of the business.

The investigator should outline interview questions before contacting
the respondent. Based on those questions, the investigator should be
prepared to give the respondent a good estimate of the amount of time
the interview will take when the investigator contacts the respondent to
arrange the interview. The investigator should ascertain from the
respondent when the interview is scheduled whether copying facilities
are present at the site of the interview, and whether the copying
equipment will be available to the investigator and under what
conditions. The investigator may find that it is necessary to arrange
for an independent copying capability, either at another location or
with a portable copying machine.

If the purpose of an on-site visit is to both interview the respondent
and review documents, it is a good practice to plan first to review the
documents provided and then to conduct the interview. The document
review may produce avenues of inquiry that the investigator had not
initially included in the interview outline. If documents are reviewed
after the interview, a follow-up interview usually will be required to
ask questions about certain documents.

B. Conducting Respondent\'s Interview

When conducting the respondent's interview, the investigator should make
sure to cover all of the following items:

1.  [Define the Role of the Department and the Investigator]{.underline}

> Begin the conversation by introducing yourself and explaining the
> purpose of the contact. It is possible that this will be the
> respondent\'s first contact with HUD. Ask the respondent whether he or
> she has been served with a copy of the complaint. If the initial
> contact is by telephone and the respondent has not been served, verify
> the respondent\'s address and immediately serve the complaint. If the
> investigator is conducting a personal interview with the respondent,
> the investigator should take an extra copy of the complaint to the
> interview and, if necessary, serve the respondent at the interview and
> obtain a signed receipt as proof of service.
>
> The investigator should take time to familiarize the respondent with
> the sections of the Act that provide the Department with authority to
> investigate a complaint. In addition, the investigator should explain
> that the Department remains impartial while investigating a complaint.
> Explain the complaint process and the rights and duties of the
> respondent and the complainant. Explain the possible outcomes of the
> process.

2.  [The investigator should review the complaint with the respondent to
    make sure that he or she understands the stated
    allegations.]{.underline}

3.  [Discuss the Respondent\'s Business Operation with the
    Respondent]{.underline}. The investigator should ask the respondent
    to explain the particulars of his or her business with regard to
    both its overall operations and in particular the areas involving
    the complaint. In most instances, the questions should initially
    focus on the general or standard operating procedures of the
    respondent, and then move to the specific application of those
    procedures to the complainant, and individuals who have been
    identified as similarly situated to the complainant. The
    investigator should ask any specific questions, including questions
    about potential jurisdictional problems that may have arisen while
    carrying out the initial research on the respondent\'s business. The
    investigator should obtain a detailed description of any procedures
    involved in the complaint (such as rental application procedures,
    waiting lists, etc.) and any qualifications or selection criteria
    utilized. The investigator should determine how housing decisions
    are made.

4.  [Defenses]{.underline}. The investigator should ask for the
    respondent\'s version of what happened. This is the central purpose
    of the interview. The investigator should get specific facts, not
    generalities or conclusions that are of little use. For example, if
    the respondent claims that the complainant wasn\'t qualified, the
    investigator should ask how the respondent determined the
    complainant wasn't qualified and why. The investigator should ask
    the respondent to identify any corroborating witnesses. The
    investigator should note any discrepancies between the respondent\'s
    and the complainant\'s stories for further investigation.

> If comparative evidence is required, the investigator should first
> review the files to identify similarly situated persons. The
> investigator should then compare the complainant's experience with the
> respondent to the experience of these similarly situated persons. Once
> the investigator gains an understanding of the respondent's business
> in theory and in practice, the investigator should ask the respondent
> how similarly situated persons were treated, such as, "Have you
> evicted other people who are a month late with their rent?" Ask to see
> relevant records. At the end of the interview, the investigator should
> restate the reasons given by the respondent for the complainant\'s
> alleged unfavorable treatment and ask whether there were any other
> reasons for the respondent\'s actions.

5.  [Respondent\'s Witnesses, Records, and Documents]{.underline}. The
    investigator should ask the respondent to identify witnesses who
    could support his or her version of events. If the respondent has
    named employees as witnesses, the investigator should arrange to
    interview them separately. (Please refer to the guidance applicable
    to employees of parties, Section 7-12). The investigator should also
    arrange to review records that are within the respondent\'s
    possession and ask the respondent to provide you with any necessary
    documents. The investigator should be aware that any discriminatory
    statements by the respondent during the interview are evidence of
    discriminatory intent and should be recorded as accurately as
    possible. When recording those statements, the investigator should
    be sure to include the context in which the statement was made.

6.  [Closing]{.underline}. At the end of the interview the investigator
    should ask the respondent if he or she would like to add anything
    else to his or her statement. The investigator should thank the
    respondent for cooperating with the investigation, state that future
    contact may be necessary to further clarify matters, and arrange for
    necessary follow up to review records, inspect a site or interview
    respondent\'s employees. The investigator should provide his or her
    name, address and phone number to the respondent. The investigator
    should draft a written statement of the interview and request that
    the respondent review and sign the statement.

**7-17 ON- SITE AND OFF-SITE INVESTIGATION**

A. The Difference between On-site and Off-site Investigations

An investigation may be conducted off-site or on-site. In \"off-site\"
investigations, interviews are conducted primarily by telephone or
regular or expedited mail, and other electronic media. In \"on-site\"
investigations, the investigator travels to the site(s) where the
investigator finds the complainant, respondent, witnesses, documents and
records, the dwelling that is the subject of the dispute and the
respondent\'s place of business, and interviews parties and witnesses,
reviews records and makes relevant observations of facts and
circumstances. In most situations involving investigations of housing
discrimination complaints, an on-site visit is the most efficient way to
conduct an investigation.

It is also possible for a combination of methods to be used. For
example, the initial interviews with the complainant and respondent may
be by telephone followed by an on-site visit during which further
interviews of the parties and interviews of the witnesses are conducted
in person. Whether on-site or off-site, the goal is to conduct the
investigation in the most efficient and practical manner depending upon
the circumstances of the individual case.

Whether an investigation involves a visit to the site of the alleged
discrimination or not, the investigation should involve significant
off-site analysis both before and after the on-site visit. Documents
such as leases, purchase contracts, eviction notices and employee
handbooks should be requested in advance of the on-site visit. At least
one fact-finding interview by telephone should be conducted with each
party to the complaint before the on-site visit. The investigator should
be clear about the ownership of the subject property, the reporting
relationships of employees, and each and every allegation that should be
investigated prior to an on-site investigation to make effective and
efficient use of the travel budget

Occasionally the specific fact-pattern of a complaint renders it
possible to conduct a thorough and effective investigation without an
on-site investigation. Factors to be weighed in determining the
necessity of an on-site visit are described below.

B. Should the Investigation be On-site or Off-site?

In planning the investigation the investigator, on a case-by-case basis,
must determine whether the investigation should be conducted on-site or
off-site. In some cases a review of the case file will provide enough
information to allow the investigator to make a decision to travel to
the site.

[Cases That Lend Themselves to Off-Site Analysis]{.underline}

The following factors, after consultation with Counsel, may indicate
cases that do not require an on-site visit:

-   Cases involving only questions of law (rather than factual
    disputes).

-   The evidence submitted by the parties shows a clear cause case
    (Respondent admission and documents that corroborate the
    respondent's admission).

-   The evidence submitted by the parties shows a clear no cause case
    (comparative data showing similar treatment).

[Re-evaluation of Site Decision]{.underline}

The need for an on-site visit should be constantly re-evaluated. While
it may appear that an on-site visit is not necessary at the beginning of
an investigation, issues may develop as a case progresses that support
the necessity of an on-site investigation.

C. On-site Investigations

The investigator should also plan to interview the parties and all
available witnesses during the on-site investigation. The investigator
will have identified some witnesses from a review of documents supplied
and interviews conducted prior to the on-site investigation. Additional
witnesses may be identified during the on-site document reviews and
interviews.

On-site investigations require the investigator to plan and schedule in
advance the times and places for interviews and for the review of the
available records. Once the interviews are scheduled, the investigator
should send written confirmation of the date and time of interview to
each person who has agreed to the interview or meeting. The written
confirmations should list any records, documents, files or other
information that the party or witness agreed to produce during the
on-site investigation. The written confirmation should also include any
other records, documents, files or information that the investigator
needs as a part of the investigation, although there may be no
agreement, or a dispute about the investigator's right and authority to
examine this information. (This shows the Department's efforts to obtain
the party or witness's voluntary cooperation.)

While on-site the investigator should review all pertinent data provided
by the respondent and interview the person responsible for creating the
records, as well as the person responsible for keeping the records. All
interviews should be documented and any failure of a party or a party\'s
witness to follow through on a scheduled interview should be noted. If
the existence of a document is disputed, the custodian of similar types
of documents should be interviewed about the procedures used for
handling the kinds of documents in question.

During the on-site investigation, the investigator will have the
opportunity to make necessary personal observations relevant to the
issues in the case. For example, the investigator may inspect the
condition of a dwelling, note its relation to other dwellings, and
measure its living and bedroom space or test an assertion that certain
locations can be viewed from the dwelling. The investigator may inspect
facilities and services offered in connection with the dwelling, look at
posted rules and regulations governing the use of recreation or parking
areas or note whether a fair housing poster is in evidence. All of these
observations should be recorded, along with a notation of the date and
time of the observation. The investigator also may make relevant
observations concerning the demeanor or presentation of parties or
witnesses during the on-site investigation. For example, the
investigator may note that a witness whose testimony rests on his
ability to have seen or heard something has vision or hearing problems.

D. Off-site Investigations

The investigator should conduct telephone interviews with parties and
witnesses. The investigator should review all documents, records and
data submitted with the respondent's answer, or that have been received
in response to the investigator\'s request.

Persons other than the parties to the complaint may have created many of
the documents relevant to a given case. Where this is the case, it is
preferable to request submission of the document by the uninvolved third
party, rather than allowing the parties to collect and submit these key
documents. Police reports can be obtained through the police department,
property tax records through the appropriate county office or the local
municipality, and building plans through the municipal office that
inspects and licenses proposed construction. For example, a complainant
claiming a disability, which the respondent disputes, might provide his
or her healthcare provider with written permission to release
information to the investigator. If possible, the release should
authorize the healthcare provider to disclose information to the
investigator verbally or in writing. The investigator can then interview
the healthcare provider by telephone or write to the physician
describing the information necessary to the investigation.

When the investigator receives a critical piece of information from one
of the parties, such as a complaint filed by a neighbor against the
complainant, the author of the original document should be contacted in
person or by telephone to verify the genuineness of the document and
obtain information about the facts and circumstances that caused the
author to file the complaint. Where the decision has been made to forego
an on-site investigation, the investigator should consider whether
photographs or a videotape of the involved properties would be helpful.
Where an on-site investigation appears to be necessary in order to
obtain a single piece of factual information, such as the dimensions of
a dwelling, the investigator should explore whether there is a HUD
office in the vicinity of the involved property.

**7-18 WITNESS INTERVIEWS AND DOCUMENTS**

Whether the investigation is conducted on-site or off-site, interviews
of witnesses , whether provided by the complainant, the respondent, or
identified in the course of the investigation, are invaluable sources of
relevant information. These witnesses may include other similarly
situated applicants or tenants who can relate how they were treated by
the respondent, former employees of the respondent or former landlords
of the complainant, medical professionals of whom the complainant is a
patient or client, expert witnesses on accessible design, state or local
government and police officials and other persons identified by a party
or by the investigator.

The investigator should begin every witness interview by stating his or
her name and title. In any interview of a witness who is not a party the
investigator should describe the nature of the investigation, the role
of the investigator, and the fact that information provided by the
witness will become a part of the official record of the investigation
and may be disclosed to the parties in response to a request for the
investigative report or during litigation. The investigator should
consult with Regional Counsel if a respondent's representative requests
to be present during the interview of any nonparty witness. Regional
Counsel will assist the investigator and determine whether a
respondent's representative should be permitted to attend the interview.

Employees and former employees of the respondent may have information
that is crucial to the investigation. (See Section 7-12 in this chapter
for a discussion on whether a respondent's representative must be given
the opportunity to be present during an interview of any person who is
or has been employed by the respondent.) In cases where an attorney does
not represent the respondent, the investigator should consult with his
or her supervisor and Regional Counsel about whether the respondent
should be notified of, and is entitled to be present during the
interview of present or former employees.

In disability discrimination cases, an investigator may need to
interview the complainant's healthcare provider. The investigator should
be aware that under new laws and regulations concerning medical
information, medical professionals are limited in many situations in the
type of information that they can disclose without the explicit consent
of the patient or client. It is important that the investigator get
written consent from the complainant not only for the receipt of medical
records but to interview the medical professional. The investigator may
consult Regional Counsel on how to word the complainant's release,
including the scope and timeframe of the release.

Many investigations may involve the use of an expert witness. These
include accessibility complaints, lending complaints and complaints
involving statistical analyses. Before interviewing an expert witness
provided by the respondent, the investigator should become sufficiently
familiar with the subject matter about which the expert will provide
information to ask informed relevant questions. The investigator and
supervisor may decide that it is necessary for the Department to retain
an expert to assist in the investigation, including interviews of other
expert witnesses.

State and local government and police officials may provide useful
documents as well as testimony. For example, in a case where the
respondents defend their decision to evict the complainant because the
complainant was arrested for some offense, the investigator needs to
interview the arresting officer and obtain a copy of the police report.
Many public officials will provide information and documents willingly,
but some may require the issuance of a subpoena. If a subpoena is
required, one should be prepared and served on the person named in the
subpoena (See Section 7-21). Also, the investigator should make
arrangements to cover the costs of any documents that are provided by a
third party.

During the course of an investigation a party to the complaint may
identify many potential witnesses. The investigator should ask the
complainant or respondent to describe what information the witness could
provide. The investigator may have to explain to the complainant or
respondent that the investigation will focus only on information that is
relevant to the housing discrimination allegation that has been made,
and that in most cases only witnesses with first hand knowledge of facts
related to potential discrimination will be included in the
investigation.

**7-19 ASSESSING CREDIBILITY**

"Credibility", as used in this chapter, refers to the trustworthiness of
the statements made by parties and witnesses. Credibility becomes an
issue when people give conflicting versions of the same event, offer
evidence that conflicts with their own previous statements, or when a
person\'s statements appear to conflict with the facts of the situation.
Objective observations of the behavior or mannerisms of a party or
witness may be helpful in situations where those observations provide
insight or circumstantial evidence about the truth of the person\'s
statements. Caution must be exercised in making judgments about a
person\'s credibility. It is important to remember that individuals vary
and it is not possible to read a person\'s mind. For example,
nervousness and/or failure to make eye contact do not necessarily mean
that a person is lying. The person merely may be shy.

The following factors may help in assessing the credibility of
witnesses.

A. Reliability of Witness Testimony

1.  [Ability and Opportunity to Perceive]{.underline}

    -   How well could the witness see or hear?

    -   Were there physical factors or conditions that would distort the
        witness' perception of the events in question? For example, did
        the witness indicate that he or she was tired, under the
        influence of alcohol or drugs at the time of the event?

    -   Does the witness have the maturity to understand what was seen?

2.  [Ability to Recall]{.underline}

    -   How long ago did the event(s) complained of occur?

    -   Is the event in question something the witness is likely or
        unlikely to remember well because of its relative impact,
        unexpectedness, frequency of occurrence or its linkage to
        another important event in the witness\'s life?

    -   How accurate/reliable does the witness\'s memory appear to be
        generally?

    -   Does the witness utilize memory aids such as notes, diaries or
        tape recordings made at or near the time of the events in
        question?

B. Witness Interest, Bias, or Motive

1.  [Interest]{.underline}

-   Could the witness derive some benefit from or be hurt by the outcome
    of the case, the outcome of his/her testimony or the fact that he or
    she testified?

2.  [Bias or Prejudice]{.underline}

-   Does the witness have a relationship to someone or hold a
    philosophical view that affects partiality?

-   Is the witness a friend, relative, enemy, employee, etc., of a
    person involved in the case? If so, might this affect the witness's
    impartiality?

1.  [Motive]{.underline}

-   Does the witness exhibit hostility or favoritism toward the gender,
    race, national origin, etc., of any person involved in the case?

-   Is there some underlying emotion or motive that might prompt a
    witness to think, act or testify in a certain way? (e.g., revenge?
    greed? jealousy?)

C. Nature of Testimony

1.  [Undisputed Testimony]{.underline}

    -   Could it have been contradicted or further corroborated?

    -   Although the investigation did not produce any contradictory
        witness statements or documents, do the facts and circumstances
        suggest the reliability on the undisputed witness or document?

2.  [Form of Testimony]{.underline}

-   Is it written or oral?

-   Is it signed, affirmed or adopted in some manner?

3.  [Presence or Absence of Inconsistencies or Conflicts with Other
    Evidence]{.underline}

4.  [Records and Other Documents]{.underline}

-   Do documents exist that would support or rebut testimony?

-   Is testimony consistent with reliable records?

-   Are the records complete? Unaltered? Accurate? Reliable?

Observations on credibility should be written up as factual observations
and incorporated into the Evidentiary Section of the Final Investigative
Report. The only observations that are relevant are those that are
non-judgmental and objective. For example, do not write that the witness
appeared \"fidgety\" (which is a judgment about the witness's overall
behavior.) Rather, record objective observations, such as: \"During the
interview the witness kept tapping her foot on the floor. She changed
her position in her chair numerous times.\"

**7-20 INTERROGATORIES AND DATA REQUEST LETTERS**

A. Distinguish between Interrogatories and Data Request Letters.

After a Data Request is served upon the respondent, an investigator may
determine that additional information is necessary to complete the
investigation. When this happens, the investigator may serve the
respondent with a second Data Request Letter or interrogatories.

Data Request Letters represent the investigator's efforts to obtain the
respondent's voluntary cooperation in the collection of existing
documents and records pertaining to the events forming the basis of the
complaint. Data Request Letters do not generally require the respondent
to answer under oath and there is no limit to the number of requests
that can be made. The investigator has discretion about setting the time
for response.

Interrogatories are formal written questions that the recipient answers
under oath. The use of written interrogatories during the investigation
is governed by Section 811(a) of the Act and 24 CFR Section 103.215(b)
and is therefore subject to the same restrictions placed on discovery in
administrative proceedings under the Act. As a result, only a total of
30 interrogatories may be served on any single party. The respondent
must reply within 15 days of service of the interrogatories.

Interrogatories should be recorded in the Interrogatory Section of
TEAPOTS. Whenever an investigator sends interrogatories, the answers
received should be placed in the Evidentiary Section and a copy should
be attached to the Final Investigative Report.

The failure to answer any Data Request Letter or interrogatories may
justify the use of a subpoena to obtain information that could not be
obtained through voluntary efforts. There is no requirement that both a
Data Request Letter and interrogatories be served on a respondent prior
to issuance of a subpoena.

B. Situations in which the Use of Interrogatories may be Appropriate.

Where a respondent appears to doubt the legitimacy of the Department\'s
inquiry, or to be vague or casual in responding to the investigator\'s
questions, interrogatories may be helpful in getting the respondent to
be more detailed, serious and factual about his or her answers. In cases
involving a municipality or corporation as a respondent, interrogatories
can be very effective. Municipal and corporate respondents will
generally respond to fair housing complaints through their legal counsel
who are generally more accustomed to the use of interrogatories. In
addition, where complex issues of reporting arrangements, corporate
policies, ownership and liabilities must be untangled, it is wise to
allow the respondents to explain their organization through the answers
to a series of interrogatories.

C. Drafting Interrogatories and Data Requests.

Open-ended questions serve a purpose in person-to-person interviews, but
they are generally not helpful in interrogatories and data requests. The
drafter should remember that the recipient would invariably provide only
the information absolutely necessary to appear responsive to the
question. Therefore, questions must be thorough and exacting. For
example, questions such as: "What happened when the complainant inquired
about the availability of an apartment?" are better used in
person-to-person interviews. However, a question such as, "Identify all
African-American tenants currently living in the complex and provide
their full address and telephone number" may need to be researched by a
respondent and could be difficult for a person to answer during an
interview. It would be more appropriate and helpful to use an
interrogatory (or a data request) to ask this question and obtain the
answer.

Interrogatories should be drafted with the assistance of Regional
Counsel and are concurred upon by the Regional Counsel prior to service.

**7-21 USE OF THE DEPARTMENT\'S SUBPOENA POWER**

A. What is a Subpoena?

A subpoena is a legally enforceable request for the production of either
documents or testimony or both. When a respondent refuses to allow the
investigator access to records or to the employees who need to be
interviewed, the investigator should make and document reasonable and
sufficient efforts to obtain the respondent\'s voluntary cooperation and
consult with Regional Counsel. During this consultation, some effort
should be made to assess the value of the information on the ultimate
outcome of the case, e.g., the probability that this information will
lead to a determination. Any time that a respondent withholds records,
or refuses to schedule an interview or answer questions during the
interview, the investigator should remind the respondent in writing of
the Department\'s authority to seek each party's voluntary cooperation
as well as its authority to issue a subpoena.

B. Authority for the Use of a Subpoena

Section 811(a) of the Act authorizes the issuance of subpoenas in the
aid of administrative investigations to the same extent and subject to
the same limitations as would apply if the subpoenas or discovery were
ordered or served in aid of a civil action in the United States district
court for the district in which the investigation is taking place. The
means of discovery available to the Department are listed in the
regulations at 24 CFR Part 104, Subpart E, and include the power to
issue subpoenas. 24 CFR Parts 103 and 180 govern subpoenas in the aid of
investigations and in administrative proceedings.

The authority to issue subpoenas and to rule on motions to quash or
modify subpoenas has been re-delegated to the FHEO Regional Directors.
The Regional Counsel, however, must approve subpoenas issued by the FHEO
Regional Directors as to their legality before service on the named
party or witness.

C. Drafting the Subpoena

Investigators should consult with Regional Counsel prior to drafting a
subpoena and should have counsel review a proposed subpoena in the
course of an investigation. Subpoenas are normally served upon
uncooperative respondents or hostile witnesses. Occasionally subpoenas
are used to secure information from witnesses who request or require a
subpoena to insulate them from potential liability resulting from the
disclosure of confidential information or retaliation from an employer.
For example, an employee who fears retaliation from his or her employer
may want to speak only if he or she is compelled by a subpoena, or an
apartment owner may ask for tenant records to be subpoenaed to avoid any
conflict with state landlord/tenant laws.

The subpoena power can be used to require a party or witness to testify
or to produce only those documents and computerized records within his
or her possession, custody or control. Consequently the subpoena must
request documents and records with sufficient clarity and specificity
for a respondent to identify and produce files, documents and records at
a reasonable time and place. If the subpoena does not conform to these
standards, a respondent may ask the Regional Director to \"quash\" (or
nullify) a subpoena by contending that it is overly broad, vague,
ambiguous or burdensome or by arguing that the documents requested are
not directly relevant to the case. To draft a subpoena which is thorough
and yet not overly broad, describe the documents to be provided as
specifically as possible. For example, in a mortgage lending case
involving an applicant who was rejected based upon a high debt to income
ratio, a badly expressed subpoena item might be:

> "Any and all documents related to the mortgage lending process."

The same evidence might be better described as:

> \"Produce documents that establish, explain or implement ABC Mortgage
> Company\'s policy with regard to acceptable debt-to-income ratios for
> first mortgage applicants, prepared or disseminated from January 1,
> 2002 to the present. Such documents are:

-   Training materials prepared for employees;

-   Memoranda directed at employees and managers that express this
    policy;

-   Underwriting standards;

-   Brochures prepared for applicants which explain ABC\'s standards;
    and

-   Performance evaluation standards established for underwriters that
    express expectations as to the application of debt-to-income ratio
    standards."

D. Additional Points to Remember in Drafting Subpoenas

The investigator should take care to subpoena records and documents from
the individual or corporate entity that has possession, custody or
control of the documents. If the subpoena is served upon the registered
agent of the person who is the custodian of the desired document, all
the time and care spent drafting the subpoena will be in vain, for the
individual will have the right to quash the subpoena because he or she
does not have possession, custody or control over the information. If,
for example, a complaint is filed against the developer of a new
subdivision, the loan company financing the project and the partnership
responsible for marketing the homes \-- attempt to determine which
entity is responsible for maintaining records of mortgage applications,
and which is responsible for maintaining information on the flow of
potential customers through model properties.

In addition, certain documents and records (membership lists of private
organizations, for example) may be protected from disclosure by privacy
laws and the First Amendment. Regional Counsel will advise the
investigator if any of the documents to be requested are so protected.

E. Use of the Subpoena to Obtain Testimony

A subpoena can be used to gain access to individuals whom the
investigator needs to interview. The subpoena can be used as a means to
compel a person to appear and answer questions under oath, depending
upon the circumstances.

A subpoena can be used to require the appearance of a witness at a
deposition. A deposition is an interview recorded by a court reporter
that takes place with attorneys for all parties, including the
Department, in attendance. During the deposition HUD Counsel will
interview the witness, but the witness\'s attorney also has an
opportunity to ask questions in order to ensure that facts that he or
she believes to be pertinent are entered into the record. After the
deposition, the court reporter will prepare a transcript that may be
used during the trial, and entered as evidence, in whole or part, under
certain circumstances, if the complaint goes to trial.

All parties normally receive notice of a deposition. Consult with
Regional Counsel in order to ensure that notice of a deposition is
prepared and properly served.

Depositions can be extremely helpful in certain circumstances. A
deposition may be necessary, for example, in the case of a witness or
party who is terminally ill or a respondent who has demonstrated a
willingness to leave the area to avoid the investigative process. On the
other hand, depositions are formal, time-consuming, and more costly than
investigation interviews. Therefore, the deposition is an investigation
tool that should be used only when necessary.

F. Service of Subpoena

Subpoenas should be personally served and not mailed. Generally, any
person, who is not a party and is at least 18 years of age, may serve a
subpoena. However, it is HUD's policy that its employees will not
effectuate personal service and will hire a service processor to
accomplish this task. The process server should provide written
documentation of the date, time and location of the delivery and the
name of the person served. The subpoena and the process server's
verification of service are placed in the case file.

These rules should be followed unless they conflict with the procedures
for the issuance of subpoenas in the United States District Court for
the District in which the investigation of the discriminatory housing
practice took place. In the event of a conflict, the rules of the United
States District Court apply. 24 CFR §180.545.

In some cases an attorney representing a respondent or witness may agree
to "accept service" of a subpoena and waive personal delivery on the
individual. Such an agreement with an attorney may be sought. The
agreement should be documented in a letter to the attorney, which should
precede service of the subpoena. In those cases, the subpoena may be
mailed to the attorney.

G. Motions to Quash or Limit a Subpoena

A respondent may file a motion to quash or limit a subpoena. A motion to
quash or modify an administrative subpoena must be made within five days
after service of the subpoena and should be directed to the FHEO
Regional Director. The Regional Director may quash or modify the
subpoena if it is unreasonable and oppressive or for other good cause
shown. The Regional Director will issue a written order responding to
the motion to quash or modify after consultation with Regional Counsel.
If the respondent does not comply with the Regional Director's order,
the Regional Counsel will send the subpoena to the Department of
Justice, Housing and Civil Enforcement Section, for enforcement. If the
respondent does not file a timely motion to quash or modify and simply
refuses to answer the subpoena, then the subpoena may be sent directly
by the Regional Counsel to the Department of Justice Civil Rights
Division, Housing and Civil Enforcement Section, for enforcement.

**7-22 SEIZURE ORDERS**

In some limited circumstances the Department can ask a U.S. District
Court to order the U.S. Marshall to seize a respondent\'s documents. The
Department would be required to show that a credible complainant has
filed the complaint involved and that there is reason to believe that
the respondent would destroy or alter evidence if the order is not
granted. If an investigator is working on a complaint that fits such a
situation, the possible use of a seizure order should be discussed with
Regional Counsel.

**7-23 REQUESTS FOR PHYSICAL INSPECTIONS**

Attempts to secure information during an investigation should be made by
seeking the voluntary cooperation of the respondent. However,
circumstances may arise where a respondent refuses to allow an
investigator on-site to review documents or otherwise conduct an
inspection of the premises (i.e., measurements in a design and
construction or occupancy case). When this occurs, an investigator
should immediately notify his or her supervisor and consult with
Regional Counsel. The Regional Director may serve on any party a request
to permit entry on land for purposes of inspection and measuring,
photographing, testing or other purposes. See 24 CFR §180.500; 24 CFR
§180.525(a)(2). If the respondent opposes the request, the Regional
Director may issue an order compelling the entry on land. If the
respondent continues to deny entry on land, the Regional Counsel may
send a request to the Department of Justice for enforcement of the
order.

**7-24 INVESTIGATIVE RECORDS**

A. Essential Records

As a general rule, each time a party or witness makes a statement
indicating that a record of a relevant fact exists the investigator
should obtain the record. In most cases, the need for particular records
must be identified through analysis of the specific fact situations and
issues. There are, however, certain types of records that should always
be obtained for certain types of cases. (While some examples of the
records to be obtained are listed below, these examples do not represent
all of the records that should be collected.) For example:

-   In cases alleging discrimination on the part of a landlord against a
    tenant, the investigator should obtain a copy of the tenant\'s lease
    and a copy of the landlord\'s standard lease.

-   If the case involves an eviction, the investigator should obtain a
    copy of all notices to vacate and records of court proceedings,
    including complaints received.

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-   In cases alleging discrimination in the sale of housing, the
    investigator should obtain the purchase offer; if a sales contract
    was created, obtain a copy of this as well; if there was a refusal
    to sell, always get all other offers received, including the one
    accepted.

-   In cases involving discrimination in mortgage lending, the
    investigator should get a copy of the mortgage application and a
    copy of any written guidelines on loan approval.

-   In cases involving zoning codes or occupancy codes, the investigator
    should obtain a copy of the code.

-   In cases alleging discriminatory newspaper advertisements
    contradicting false denial of availability of a dwelling, the
    investigator should obtain a copy of the advertisement with the name
    of the subject newspaper and the date published visible.

-   In cases where there are threats of force and violence used and a
    complaint has generated police reports against a party, the
    investigator should get a copy of the police report.

B. Evaluating the Reliability of Records

\"Reliability\" of records depends upon the extent to which the document
accurately presents a fact or event.

Records are more reliable when they have been created contemporaneously
(that is, at the time of the relevant events) and for purposes other
than a response to the investigation. Among the other factors to be
considered in determining the reliability of records are:

-   The condition of the records,

-   Whether the records can be corroborated through witness interviews,

-   \"Patterns\" in the presence or absence of records, and

-   Whether the records are kept in the ordinary course of business.

1.  [Evaluating the Condition of Records]{.underline}. During a records
    review, the investigator should be alert to indications that a
    respondent has altered the records. Discrepancies should be recorded
    in the FIR and in the Evidentiary Section of the case file.

2.  [Considering the Situation Surrounding the Provision of
    Records]{.underline}. In evaluating the reliability of documents and
    records forwarded by either party during an investigation, the
    investigator should compare any documents and records received
    through the mail with the same documents when reviewed on-site.

3.  [The \"chain of custody]{.underline}.\" The persons who have been in
    possession, custody, or control of evidence establish the chain of
    custody for that evidence. The chain of custody for a document is
    important because investigators, attorneys, ALJs and judges want to
    know the persons through whom the documents have passed. A chain of
    custody identifies each person who handles a given document,
    photograph or piece of evidence from the time of its creation or
    receipt to the time of trial. It is therefore critical that Document
    Control Cover Sheets are used and accurately completed during the
    course of the investigation. When recording the chain of custody for
    a given record the investigator should add any additional
    information that might be helpful in establishing the reliability of
    the document. See also Chapter 10, Preparation of the Case File.

4.  [Authenticating Critical Records if Possible]{.underline}. Records
    are considered to be more reliable if they can be authenticated
    through witness testimony. The authentication of records is more
    meaningful if the authenticating source is unbiased.

> For example, a mobile home park, purporting to qualify for exemption
> under the law as housing for older persons, might present an
> investigator with a stack of documents and photocopied drivers
> licenses, in an effort to prove that they were enforcing age
> verification procedures on the date of the alleged violations. The
> investigator should verify whether the age verification procedures
> were instituted by the respondents during the relevant timeframe and
> prior to the receipt of the complaint notification by asking randomly
> selected tenants whether they can recall being asked to prove their
> ages at the time they assumed occupancy. Alternately, the investigator
> might interview current and former employees of the mobile home park
> regarding the application procedures.

5.  [Evaluating Patterns and Their Significance]{.underline}. A pattern
    of missing documents may indicate that a respondent has destroyed
    damaging evidence.

> **[Example]{.underline}**: Respondent is accused of sexually harassing
> female tenants. The investigator wants to interview other women who
> formerly rented from the respondent, and hopes to locate them through
> the employment and personal references supplied on their lease
> applications. Respondent's normal recordkeeping procedure is to keep
> applications and tenant leases on file for three years after the
> tenancy has ended. However, in response to the investigator\'s request
> for tenant and applicant records, the respondent can supply leases and
> applications for all of the male-headed households residing in the
> development during the period under review, but claims he can only
> locate the leases and applications of a few of the female-headed
> households who no longer rent from him. The investigator should
> interview the respondent and his employees about the missing
> applications and what happened to them.
>
> The main point in the above example is whether there are missing
> documents from a set of documents kept in the ordinary course of
> business, and whether there is a discernible pattern to the kind of
> documents that are missing. If there is a discrepancy the respondent
> should be questioned about the discrepancy, and both the pattern and
> the respondent\'s explanation for the missing paperwork should be
> recorded in the Final Investigative Report and the Evidentiary Section
> of the case file.

C. Summarizing Records

Part of the investigator\'s job is to review voluminous documents and
organize facts relevant to the case under investigation. A summary of
information extracted from a group of documents need not always be
lengthy or complicated. Often, a single paragraph stating briefly what
the documents divulged will suffice. Alternatively, the investigator can
produce a chart that extracts and compares relevant information from a
group of documents. This chart should be prepared as a "Word table" or
an "Excel chart", copied into TEAPOTS and placed in the paper case file
consistent with Chapter 10, Preparation of the Case File.

Very often, the most critical information obtained during an
investigation will be gleaned from careful review of records presented
by the parties. Avoid over-reliance on interview statements as a form of
evidence at the expense of careful, detailed record review. As a general
rule, for every record you have required the parties to provide during
the investigation there should be a corresponding entry in the Final
Investigative Report summarizing what the record told.

For example, a complainant might allege that the management of an
apartment complex required higher security deposits from new minority
tenants than from new non-minority tenants. The management should be
asked to provide the investigator with access to the tenant files that
would include photocopies of deposit checks. The investigator should
list each document reviewed and record all relevant information from
that list, and summarize the findings of the review in the Documents
section of the Investigations folder in TEAPOTS. An example of such a
summary is as follows:

> Reviewed 150 tenant files, which included copies of security deposit
> checks. During 1990, 78 new tenants, of whom 33 were the same race as
> the complainant (African-American) moved into the complex and all were
> charged a security deposit of \$400. In 1991, 52 new tenants, of whom
> 40 were African-American, moved into the complex and all were charged
> a security deposit of \$425. In 1992, 30 new tenants, 27 of whom were
> African-American, two were Hispanic, and one was non-minority, moved
> into the complex and all were charged \$450.

**7-25 ANALYSIS OF THE INVESTIGATIVE EVIDENCE**

> A. Data Analysis

Statistical data are often used as a means of establishing
discriminatory impact discrimination, but analysis of data trends can be
used to add depth to an investigation of disparate treatment that
includes comparative data. Data analysis can be useful and helpful
circumstantial evidence of disparate treatment even if the data pool is
too small to run a reliable statistical test. For example, the
respondent has owned ten rental units in a predominantly
African-American neighborhood for a decade. There has been very little
turnover. The respondent has never rented to an African-American. While
the number of units and turnover may not create a large enough pool for
a statistical comparison, the lack of African-American tenants in a
predominantly African-American neighborhood will be part of the
circumstantial evidence in a disparate treatment case.

Statistical data analysis is important because, if the proper
statistical techniques are applied, the resulting inference may have a
certain and predictable validity. Data analysis and statistical evidence
can be helpful in proving individual cases of disparate treatment
because they can be used as circumstantial evidence to establish the
presence of discriminatory motive. Statistical evidence can also be used
under a theory of discriminatory impact to demonstrate the adverse
effect of a procedure, policy, rule, selection criteria or method of
administration on a protected class. See also Chapter 2, Theories of
Proof.

The successful use of statistical tests as the primary proof of a
pattern of discriminatory effect normally will require analyzing
comprehensive data by using one or more statistical tests. If an
investigation involves the collection and analysis of statistical data,
the investigator should consult with his or her supervisor,
Headquarters, O/E, Regional Counsel and the Office of Policy Development
and Research to discuss the use and application of the various types of
tests and proper analysis.

B. Analysis of Statements and Documents

A complete and thorough investigation precedes a complete and thorough
analysis of the statements of witnesses and the documents collected in
the course of the investigation. Although the elements of a prima facie
case of unequal treatment tend to be very similar from case to case, the
elements of a prima facie case that involves disparate impact,
reasonable modifications, reasonable accommodations or design and
construction issues differ significantly from cases of unequal
treatment. The same holds true with respect to the elements of a prima
facie case of discrimination that involves intimidation, harassment or
retaliation. The elements of a prima facie case of racial harassment
differ from the elements of a prima facie case of sexual harassment.

Several times during the investigation the investigator should stop,
return to his or her Investigative Plan and review the evidence
collected to date in light of the logical structure of accepted
discrimination theory. This mental discipline is necessary to ensure
that each prong of the prima facie case and each aspect of the
respondent\'s defenses have been investigated, and to ensure that the
investigator does not lose time pursuing irrelevant issues.

**7-26 FINAL INTERVIEWS WITH COMPLAINANT AND RESPONDENT**

A. The Final Interview

When the investigator believes that he or she has collected all the
evidence needed to issue a determination, has analyzed the evidence,
considered the parties' relative credibility, and is fairly certain what
finding he or she will recommend, a final interview with each party
should take place.

The final interview should include a last attempt to determine if the
parties are willing to conciliate. If there is a possibility of
conciliation, the conciliation attempt will be the last action taken
before drafting a determination. If there is no indication that
conciliation is possible, the final interviews will close the
fact-finding portion of the investigation.

The final interview is important in order to give each party (and
particularly the party against whom the Department will probably find),
the opportunity to comment upon the totality of the evidence in the
case.

Conducting a thorough final interview should decrease the likelihood of
case files being returned for additional investigation or reopened as a
result of a request for reconsideration.

The investigator should be honest and open in presenting the evidence
collected during the investigation to the parties, but must not express
an opinion as to the probable finding in the complaint. The parties may
attempt to elicit the investigator\'s opinion, but the investigator must
strive to return the parties\' attention to the records, testimony and
other evidence collected in the investigation. Optimally, each party
will reach his or her own understanding of the strength or weakness of
his or her case by reviewing the evidence with the investigator.

B. Contents of a Final Interview

**[NOTE:]{.underline}** The complainant and the respondent should be
interviewed separately but the information covered in each interview
should be the same. The investigator should make sure to include the
following in the final interview:

1.  [Review the contents of the complaint, including any
    amendments]{.underline}. Ensure that the complainant agrees that the
    allegation that was investigated was the basis of his or her
    complaint. Ensure that the respondent understands the allegation and
    the sections of the Act that speak to the alleged activity.

2.  [Review the prima facie case]{.underline}. If the prima facie case
    has not been established, give the complainant a last opportunity to
    provide evidence that would correct the deficiency. If the prima
    facie case is established, ensure that the respondent understands
    each prong.

3.  [Summarize the respondent\'s defense to the allegation]{.underline}.
    Ask the complainant again for his or her response to the defense,
    and again request any evidence that the complainant can provide to
    rebut the defense. Ask the respondent if there is any additional
    evidence he or she would like to submit in support of this defense.

4.  [Summarize the statements of witnesses]{.underline}. If either party
    disagrees with any statements by the witnesses, ask the party to
    provide any evidence that would support his or her position.

5.  [Summarize documents or records relevant to the case and ask for
    comments]{.underline}. If the final interview is done in person, the
    documents may be presented to the complainant and the respondent in
    order that they can verify their signatures, state whether the
    documents appear to have been altered and so on.

6.  [Identify contradictory statements or conflicting evidence and ask
    again for an explanation for the discrepancies]{.underline}.

**7-27 TIMEFRAME FOR COMPLETING THE INVESTIGATION**

The Act, as amended, and the regulations implementing the Act, require
HUD to complete an investigation within 100 days from the filing date of
the complaint, unless it is impracticable to do so (see Sections 103.225
and 103.400(c)). An investigation is completed when a Determination or
Charge is issued, a Conciliation Agreement is executed or the complaint
is otherwise closed.

The preamble to the implementing regulations makes it clear that the
regulations\' authors did not intend the phrase \"unless impracticable
to do so \... \" to provide HUD with a liberal license to exceed the
100-day timeframe. Rather, this clause aims to ensure that the need to
meet an arbitrary deadline never compromises the investigation of a
valid complaint. Fair housing complaints may involve complex issues and
the investigation may be delayed by circumstances beyond the control of
the Department.

If the investigation cannot be completed within 100 days, the Regional
FHEO Director must notify the complainant and the respondent in writing
of the reasons for the delay. See Paragraph 7-28 for information on how
to prepare and issue 100-day letters. Because recommended closures must
be reviewed and approved by supervisory staff, the investigator should
plan to complete the investigation within 75 days of the filing of the
complaint.

**7-28 PREPARATION AND ISSUANCE OF 100-DAY LETTERS**

The following represents guidance on Field and Headquarters preparatory
responsibilities prior to issuance of the 100-day letter to all
identified parties to a complaint.

Four criteria apply in all situations: (1) The Office, (whether Field or
Headquarters), which has the case file on the 85th day after the
complaint is filed is responsible for initiating all actions relevant to
issuance of the letters; (2) TEAPOTS is responsible for generating all
100-day letters, including letters for Secretary-initiated cases and
other cases investigated by Headquarters; (3) hard copies of the letters
to both complainant and respondent must remain with the case file at all
times; and (4) the 100-day letters should be signed by the appropriate
FHEO Director and sent by certified mail.

A. Case Transfers from Field Offices

1.  [Before day 85]{.underline}. If a Field Office transfers a case
    file, including cases with Regional Counsel, to Headquarters before
    the 85th day after the complaint is filed, Headquarters must:
    complete the case status report; input the data; and fax the case
    status report form to the appropriate Field Office for generation of
    the 100-day letters. Headquarters will place the original case
    status report form in the file. This applies to all cases
    (individual complaint, zoning, pattern and practice, etc.).

2.  [After day 85.]{.underline} If a Field Office transfers a case file
    to Headquarters on or after the 85th day the complaint was filed,
    the Field Office must: complete the status report form; input the
    data; fax a copy of the case status report to Headquarters; place
    the original in the file; generate the 100-day letters and place the
    hard copies of the letters in the file.

B. The Case Status Report Form and the 100-Day Letter: Filling in the
Blanks

By the 85th day the investigator should complete and sign off on the
case status report form. This facilitates the generation of the 100-day
letter. All the reasons for the extension of the investigation beyond
100 days must be checked. Most of the reasons are self-explanatory. For
Item 13 the reason(s) must be unusual and specific to the issues of the
case, and not explained by any combination of the preceding items. This
item must refer only to matters directly related to the case, and not to
matters internal to the Department such as travel budgets. Supervisors
should review the case status report form, as appropriate, especially
when Item 13 is completed.

Once the 100-Day Letters have been completed and issued, copies of the
letters should be maintained in the \"Jurisdiction\" Section of the case
file, and made available to Headquarters and the Department of Justice
as necessary.

C. Monitoring Expected Dates of Completion of Case

The office responsible for the investigation and resolution of the
complaint must monitor progress toward the expected date of completion
of each investigation that appears in the 100-day letter.

D. Requests for Copies of 100-Day Letter

Frequently, parties to the complaint or a court will request copies of
the 100-day letter. The processing office should be able to respond to
such requests by duplicating the hard copies from the case file. If, for
some extraordinary reason, that is not possible, the responsible office
may generate a \"second notice\" letter, using the data in the system
from which the original letter was generated. The \"second notice\" must
be identified as such, with the current date. The data in the system
(and the date of its input) should affirm the authenticity of the
letters.