EEO Complaint Process
What Is the Process for Filing an EEO Complaint Against a Federal Agency?
Have you ever wondered about the EEO complaint process and whether filing an EEO complaint is the right decision for you? 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 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. We have compiled answers to your most pressing questions to clarify what can be an intimidating and unfamiliar process. Read on to find out the details on filing an EEO complaint through these examples.
Informal Complaint Stage
As a federal employee facing discrimination, you have 45 days to initiate contact with an EEO Counselor at your agency and request to 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 the date 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), and the attorneys at The Federal Practice Group can advise you on which course makes sense for you. During EEO Counseling, an EEO Counselor will interview you to understand your claims and what relief you are seeking and 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 of your informal complaint.
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, and you will have 15 days from receipt 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, and in fact, less is often more.
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, and the Responsible Management Officials will then be asked to explain their reasons for taking the actions against you at issue.
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 where 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, as what occurs in discovery can make or break your case in many instances.
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 the Administrative Judge is there to make the decision on the complaint instead of a jury. Witnesses will be called to testify, and the parties may present additional exhibits into the record. In many cases, 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.