Federal Employee EEO Complaint Process
WHAT IS THE PROCESS FOR FILING AN EEO COMPLAINT AGAINST A FEDERAL AGENCY?
If you are considering filing an EEO complaint due to discrimination or a hostile work environment, you may want to know what steps you will go through, how long it will take, what the burden of proof is for your particular claims, and whether these complaints become public record. You may also be curious as to who is responsible for issuing decisions on EEO complaints, and which options make the most sense in your case.
Consider our firm to be your EEO counselor. Listed below is the process that a typical EEO complaint experiences. Understanding these steps will help put your issue into perspective and provide a framework for the process that we will help you through.
INFORMAL COMPLAINT STAGE
As a federal employee facing discrimination, you have 45 days to initiate contact with an EEO Counselor and file an informal complaint of discrimination. While you may make contact by phone, in person, or by email, make sure you have written confirmation of when you initiated contact, as agencies are quick to try to dismiss complaints for untimely counselor contact.
At the informal complaint stage, you can elect either EEO Counseling or Mediation/Alternative Dispute Resolution (ADR). The attorneys at the Federal Practice Group can advise you on which course makes the most sense for your case. During EEO Counseling, an EEO Counselor will interview you to understand your claims and to clarify what relief you are seeking. He or she will then speak to the Responsible Management Officials about the complaint. If you elect Mediation/ADR, then the EEO Office will arrange for a mediation session to occur. A neutral mediator will work with you and the agency to try to reach a settlement for your informal complaint.
Note: as a federal employee, you are required to start your EEO complaint at your federal agency, not at the U.S. EEOC, which only hears EEO complaints after investigation by your agency.
FORMAL COMPLAINT STAGE/AGENCY INVESTIGATION
If your complaint is not resolved at the informal complaint stage, you will be issued a Notice of Right to File a formal complaint, which should include a formal complaint form. You will then have 15 days to file a formal complaint of discrimination. In your formal complaint, you should describe what actions you believe were discriminatory and when those actions occurred. You are not required to provide any background explanations or evidence with your formal complaint.
The agency will then have 180 days to investigate your formal complaint of discrimination. Agencies often use contract investigators, although some agencies still rely on internal investigators. You can expect to be asked to provide an affidavit explaining what happened and why you believe what happened was discriminatory. The Responsible Management Officials will also be asked to explain their reasons for taking the actions against you.
After the investigation is complete, you will receive a Report of Investigation (ROI) along with a notice informing you of your right to, within 30 days, request a hearing before the EEOC or a Final Agency Decision (FAD) from your agency — a process in which the agency makes a determination on your complaint based on the evidence in the Report of Investigation. In most cases, if you wish to continue pursuing your complaint, it makes sense to request a hearing before the EEOC.
Once you have requested a hearing, the EEOC will assign an Administrative Judge to hear your complaint. Depending on your location, this might take several months.
Typically, the Administrative Judge will hold an Initial Conference to discuss settlement and discovery. Federal employees are permitted the right to serve the agency with interrogatories, requests for documents, requests for admissions, and to take depositions during discovery. You can also expect that the agency may serve the same types of requests for discovery on you. If you have not already sought to be represented by counsel, this is a crucial time to do so.
Following discovery, agencies often file motions for summary judgment or for a decision without a hearing. It is important to fight these motions aggressively.
If the complaint goes to hearing, it will look like you would expect any trial to look, except it is not open to the public and there is no jury. Witnesses will be called to testify, and the parties may present additional exhibits into the record. It may take several months to obtain a decision following the hearing.
OFO APPEALS/CIVIL ACTIONS
Following the hearing, if either party is unsatisfied with the Administrative Judge’s decision, that party can appeal to the EEOC’s Office of Federal Operations. Each party will submit written briefs to argue their respective positions, after which the Commission will issue a decision on liability or possibly remand the matter back to the Agency or an Administrative Judge.
As the employee, you also have the right to pursue a civil action in a U.S. District Court.
Even with knowledge of the steps involved in the EEO complaint process, you may feel hesitant or uncertain about whether you should go forward. Reach out to the Federal Practice Group to discuss your case with an attorney who has experience in this area and can answer your questions in a timely, ethical manner.
CONTACT THE FEDERAL PRACTICE GROUP
The proven attorneys at the Federal Practice Group have over a century of combined experience successfully assisting federal employees through the most difficult periods of their lives and careers.