Overview Of Federal Sector EEO Complaint Process

Source: Equal Employment Opportunity Commission

If you are a federal employee or job applicant, the law protects you from discrimination because of your race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. The law also protects you from retaliation if you oppose employment discrimination, file a complaint of discrimination, or participate in the EEO complaint process (even if the complaint is not yours.)

There are also federal laws and regulations and Executive Orders(which are not enforced by EEOC) that prohibit discrimination on bases such as sexual orientation, marital status, parental status, or political affiliation.

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by calling the office responsible for the agency’s EEO complaints program.

EEO Counselor

The first step is to contact an EEO Counselor at the agency where you work or where you applied for a job. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred.

In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or through ADR, you can file a formal discrimination complaint against the agency with the agency’s EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Filing A Formal Complaint

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late).

If the agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation.

When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred.

Agency Issues A Decision (Final Action)

If you ask the agency to issue a decision and no discrimination is found, or if you disagree with some part of the decision, you can appeal the decision to EEOC or challenge it in federal district court.

Requesting A Hearing

If you want to ask for a hearing, you must make your request in writing or via the EEOC Public Portal located at https://publicportal.eeoc.gov/ where you can also upload hearing requests, and manage your personal and representative information within 30 days from the day you receive the notice from the agency about your hearing rights. If you request a hearing, an EEOC Administrative Judge will conduct the hearing, make a decision, and order relief if discrimination is found.

Once the agency receives the Administrative Judge’s decision, the agency will issue what is called a final order which will tell you whether the agency agrees with the Administrative Judge and if it will grant any relief the judge ordered. The agency will have 40 days to issue the final order. It will also contain information about your right to appeal to EEOC, your right to file a civil action in federal district court, and the deadline for filing both an appeal and a civil action.

Filing An Appeal Of The Agency’s Final Order

You have the right to appeal an agency’s final order (including a final order dismissing your complaint) to EEOC Office of Federal Operations. You must file your appeal no later than 30 days after you receive the final order. You may file your appeal using the EEOC’s Public Portal located at https://publicportal.eeoc.gov/ where you can also upload selected documents, and manage your personal and representative information.

EEOC appellate attorneys will review the entire file, including the agency’s investigation, the decision of the Administrative Judge, the transcript of what was said at the hearing (if there was a hearing), and any appeal statements.

If the agency disagrees with any part of the Administrative Judge’s decision, it must appeal to EEOC.

Request For Reconsideration Of The Appeal Decision

If you do not agree with the EEOC’s decision on your appeal, you can ask for a reconsideration of that decision. A request for reconsideration is only granted if you can show that the decision is based on a mistake about the facts of the case or the law applied to the facts. You must ask for reconsideration no later than 30 days after you receive our decision on your appeal.

Once EEOC has issued a decision on the appeal, the agency also has the right to ask EEOC to reconsider that decision.

Once we have made a decision on your request for reconsideration, the decision is final.

Filing A Lawsuit

You must go through the administrative complaint process before you can file a lawsuit. There are several different points during the process; however, when you will have the opportunity to quit the process and file a lawsuit in court, including:

  • After 180 days have passed from the day you filed your complaint, if the agency has not issued a decision and no appeal has been filed
  • Within 90 days from the day you receive the agency’s decision on your complaint, so long as no appeal has been filed
  • After the 180 days from the day you filed your appeal if the EEOC has not issued a decision, or
  • Within 90 days from the day you receive the EEOC’s decision on your appeal.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

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Federal Employees – Discrimination

 

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

2. What if I miss the 45-day deadline?

3. Once I initiate the EEO process at my agency, what happens next?

4. Can I resolve my case during the counseling period?

5. What happens if I am unable to resolve my case within the counseling period?

6. What happens once I have filed a formal complaint?

7. Will my complaint be investigated?

8. Will I have a chance to respond to the Agency’s information?

9. How long will the investigation take?

10. Will discovery be allowed?

11. How do I prove my case during the investigation?

12. What happens once discovery ends?

13. What happens at the EEO hearing?

14. What happens after the hearing is over?

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

16. Should I get a lawyer?

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

Yes. When a federal employee believes she has been the subject of discrimination or retaliation, she must go through an administrative process in an attempt to resolve the situation. The first thing a federal employee must do to start this process is to contact an EEO counselor at the Agency where he or she is employed. This step is called “initiating the EEO process.” You must initiate the EEO process within 45 days of the last discriminatory or retaliatory incident.

2. What if I miss the 45-day deadline?

The law provides that the time limit is extended if you show that:

  • You were not notified of the time limits and were not otherwise aware of them;
  • You did not and reasonably should not have known that the discriminatory matter occurred; or
  • Despite due diligence you were prevented by circumstances beyond your control from contacting the counselor within the time limits.

However, you should assume that you only have 45 days, as it may be difficult to prove that these exceptions should apply to your situation.

3. Once I initiate the EEO process at my agency, what happens next?

The counselor will discuss the claims with you and may have you fill out pre-complaint paperwork. The counselor will advise you about the EEO process, but the counselor should not give legal advice, as the counselor works for the Agency.

EEO counseling generally lasts 30 days, unless you agree to extend the counseling period. During the counseling period, the counselor should advise management of your concerns and attempt to resolve them.

4. Can I resolve my case during the counseling period?

While it is possible to gain resolution informally through the counselor in the counseling stage, it does not occur very often. However, you and the Agency may agree to early Alternative Dispute Resolution (ADR) or mediation during the counseling period, which will extend the counseling period, usually to 60 or 90 days instead of 30 days.

Some cases are suitable for early ADR. Early ADR is an opportunity to resolve a complaint early on in the process, saving time, money, and resources, for all parties involved. Early ADR may also preserve the working relationship, allowing both parties to interact amicably in the future. However, both parties need to agree to ADR as it is voluntary. Early ADR is best for cases where the facts are relatively straightforward and little further investigation or discovery is necessary.

5. What happens if I am unable to resolve my case within the counseling period?

After the counseling period concludes, if resolution has not been reached, the counselor issues the employee a Notice of Right to File a Formal Complaint, along with a complaint form. The employee has 15 days from receipt of the Notice to file a formal complaint.

The complaint should not be long and detailed. The complaint should simply state the bases of discrimination (for example, sex (male), disability (asthma), and retaliation (prior EEO activity)). The complaint should also state the incidents, or issues, which you believe show discrimination or retaliation, including dates. The complaint should name the individuals alleged to be responsible for the discrimination or retaliation, also called the Responsible Management Officials (RMOs).

The complaint may also ask for the remedy requested. While the employee need not list every remedy specifically, she should state that she desires compensatory damages (up to $300,000, although an amount need not be specified), attorney fees and costs, and any other relief that would make her whole. Punitive damages are not available against the U.S. government in EEO cases.

6. What happens once I have filed a formal complaint?

After filing the formal complaint, the Agency may issue an acceptance letter, an acceptance and partial dismissal letter, or a dismissal letter, accepting or denying the claims in the formal complaint. It is important that you, as the Complainant, review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allotted, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but the issue will be preserved for appeal or trial. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.

7. Will my complaint be investigated?

Yes. Once the complaint has been accepted, the complaint is forwarded on to an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The investigator will interview witnesses and gather documentation regarding the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written affidavits. The investigator often begins his or her investigation with your testimony as the Complainant. You will either meet with the investigator and sign off on a written affidavit or submit written responses, under oath, to the investigator’s questions. It is very important that you give a full and complete version of the facts during the investigation. However, you must also be concise and responsive to the investigator’s questions. You can also provide the investigator with relevant documentation.

Perhaps most importantly, you should tell the investigator, in writing, as part of your affidavit, what supportive witnesses the investigator should interview and to what those witnesses can testify. Finally, you should make sure you tell the investigator, in writing, through your affidavit, why you think the Agency subjected you to discrimination or retaliation, including if others outside of your protected category were treated more favorably, how, by whom, and when.

8. Will I have a chance to respond to the Agency’s information?

Maybe. After the investigator gathers information from witnesses and management, the investigator often gives you a chance to rebut management affidavits. When doing so, you should rebut each affidavit point-by-point in a clear and concise manner. You should always keep in mind that the investigation is the only thing the Administrative Judge (AJ) will have regarding your case for the majority of the case processing, until hearing. You should also keep in mind that the Agency will review the Report of Investigation (ROI) and determine its position on resolution based, in part, on the ROI. Thus, it is very important for you to tell the whole story in the ROI and list all relevant supportive witnesses and facts in a clear and concise manner.

9. How long will the investigation take?

The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the receipt or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, setting forth many important deadlines, with which the parties must comply or risk prejudicing their case.

10. Will discovery be allowed?

Yes. The AJ will give the parties the opportunity to conduct discovery, in order for each side to obtain relevant information from the other to aid the preparation of each party’s case. The discovery process includes asking the opposing party for additional information through written questions, written requests for production of documents, written requests for admissions, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyer asking the witness questions about the case. Transcripts from depositions can be used at a hearing to show a witness’s inconsistent testimony or, in certain situations, in lieu of in-person testimony by that witness. It is very important that you as the Complainant prepare for your deposition adequately, reviewing the record and making sure your answers are consistent.

In general, discovery is a very important process because it allows the parties to gain more information to assess their case and to hopefully support their arguments. Based on discovery, the parties can often better assess whether their case meets the legal burdens it will need to meet to be successful at hearing. Discovery usually lasts approximately 90 days.

11. How do I prove my case during the investigation?

It is the employee’s burden to prove by a preponderance (over 50%) of the evidence that a motivating factor of the decision maker was based on the employee’s protected classification such as race, age or disability or, in retaliation cases, because the employee participated in his/her or another employee’s EEO case. This means that after you allege in your EEO complaint that an adverse action was taken against you because of race, for example, the agency has the burden to explain why it took the action and that those reasons are legitimate, nondiscriminatory and nonretaliatory reasons. The burden then switches to the employee to prove there is direct evidence of discriminatory or retaliatory motive (such as the rare statement by the decision maker indicating bias or intent) or indirect evidence (that the reasons offered are not true, but are pretexts for discrimination or retaliation). If you cannot prove that the reasons given for the action are not true or are not credible, you cannot win your EEO claim.

12. What happens once discovery ends?

After the discovery period ends, the parties prepare for the hearing, a session with the administrative judge where both sides present evidence. The parties may also make additional attempts at resolving the case, based on what was uncovered in discovery and their resulting assessment of the case. The AJ may pressure the parties to resolve the complaint. In doing so, the AJ may discuss the merits of settlement with one party or both. The pre-hearing period may consist of motions to decide the case without a hearing (usually brought by the Agency), pre-hearing submissions (listing witnesses, expected testimony, issues to be tried, and exhibits), a pre-hearing conference with the opposing party and the judge, and perhaps a settlement conference or ADR session.

13. What happens at the EEO hearing?

The EEO hearing is conducted by the AJ, either at the EEOC field or regional office, the Agency office, or at a location designated by the AJ. At the EEO hearing both parties are given an opportunity to do a short (often five to ten minutes) opening statement.

In EEO complaints, the Complainant bears the burden of proof at all times, although the burden of persuasion shifts. Therefore you will present your witnesses first, after the opening statements. Your witnesses should probably include:

  • you, as the Complainant;
  • any co-workers who witnessed the treatment alleged and ideally who support your claims of discrimination and/or retaliation;
  • your doctors (especially important in disability cases, but also important as to damages in other cases); and,
  • your family members (to most often testify to damages, such as pain and suffering).

Hearsay is allowed in administrative proceedings.

After you call all of your witnesses, the Agency will call witnesses, likely including the named RMOs. You have a right to properly cross-examine all Agency witnesses, as the Agency has with you and your witnesses. After the Agency witnesses testify, you are given an opportunity for rebuttal. During rebuttal, you should clear up any discrepancies raised in the Agency’s testimony, either through your testimony or the testimony of witnesses.

Both parties may use physical documents or things at the hearing, as long as the parties comply with the AJ’s rules in notifying the AJ of the evidence and getting the AJ’s approval. Each party is given an opportunity to do short closing arguments or written briefs instead of oral closing arguments.

14. What happens after the hearing is over?

After the hearing, the AJ may make a bench decision, which is an oral decision on the record. Otherwise, the AJ will issue a written decision. The written decision must then be accepted or rejected by the Agency in a Final Agency Decision (FAD). After the FAD is issued, you as the Complainant have the opportunity to appeal the decision to the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations. Instructions for such appeals should be contained in the FAD. For more information, please see the EEOC’s Federal EEO Complaint Processing Procedures.

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

Yes. You can file a federal court lawsuit if one of the following conditions are present:

 180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.

 You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.

 You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency. In either case, you will have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.

 If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.

If you file a federal court lawsuit, it is a “de novo” review by the court. This means that the case starts over, no matter what the decisions may have been by the EEOC AJ or the Agency. You will have the opportunity to conduct discovery and prove your case in a jury trial.

16. Should I get a lawyer?

Getting legal advice as early as possible when you believe you have been discriminated against or retaliated against is highly recommended. A legal consultation with an attorney experienced in federal employee claims will evaluate your facts under current laws and court decisions and give you the pros and cons of your case. There are many factors that go into a case evaluation. You may be going through this EEO process once or twice in your career, whereas the agency personnel and EEO representatives do this every day. If you are not informed on how the process works and what evidence is needed, the agency and management may create a record to defend against your case and you may not understand how to find and present evidence in your favor.

Getting a consultation does not mean the attorney must represent you throughout the process or in federal court. Knowing the strengths and weaknesses of your case as early as possible can save you money and effort and can assist you in documenting and finding the evidence you need to win your EEO case or to find reason to withdraw your EEO case. Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

 

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer