Federal Employee Complaints - Frequently Asked Questions

➤ The informal or pre-complaint counseling period should not last more than 30 days from the date of  "initial contact" with EEO counselor, unless the complainant grants an extension.  The formal complaint/investigation process should not last more than 180 days, unless the complainant grants an extension.  The EEOC hearing may be waived.  If you decide to request an EEOC hearing, the process may last anywhere between 6 months to 2 or 3 years, depending on Administrative Judge's (AJ's) caseload.   See overview of the federal EEO process.

➤ Once an Acknowledgment and Order is issued, things should move rather quickly.  You and Agency must initiate discovery process within 20 days of receipt of Acknowledgment and Order.  Response to opponents discovery requests are due usually within 15 to 30 days of receipt of the requests.  You may need to file a Motion to Compel if Agency fails to respond or respond deficiently and inadequately.  Once you file a Motion to Compel, the Agency may file a response.  Agency may do the same, depending on your response to Agency's requests. 

➤ Agency usually schedules a deposition to depose you under oath, after you provide responses to its discovery requests.  You too may depose the decision makers in your case at your cost.  See deposition on how to prepare for one.

➤ The discovery period is usually completed in 90 days from receipt of Acknowledgment and Order.  Within 15 days after completion of discovery period, Agency or you may file a Motion for decision without a hearing.  The opponent must respond. 

➤ From there on, AJ may take a long time to rule on any outstanding motions, depending on his or her caseload.  Both you and Agency may wait indefinitely from thereon until AJ issues a decision on motions or issue a pre-hearing and hearing schedule in a Scheduling Order.  Then you are on with pre-hearing and the hearing shortly thereafter.  You may be required to submit a pre-hearing report containing a summary of material/relevant facts, list of stipulated facts and of material facts that needs to be proven at the hearing, list of witnesses and exhibits (if you have any documents outside the Investigative File which you want to use at the hearing).

➤ Depending on the number of witnesses and number of allegations in your case, the hearing may take a day or two. AJ may want to have the closing arguments from both sides in writing at a later date, depending on the time constraint, or after the last witness testimony.

➤ Agency is to pay for and to provide you with the hearing transcript within 14 days of the conclusion of the hearing prior to both parties' offer of the written concluding arguments offered at a later date.  

➤ Some AJ's want to issue a bench decision (a short form of rending a decision with court reporter taking down the pronouncement) shortly after the hearing at a later date, if data contained in the Investigative File and obtained during the hearing is complete and adequate to render a decision.   No transcript is available prior to rendering a bench decision; because bench decision is considered a part of the hearing and hearing is deemed continuing until bench decision is rendered at which point the hearing is concluded.

➤ AJ must issue a decision within 30 or 40 days after conclusion of the hearing.  AJ's decision is usually incorporated into the Final Agency Decision and issued within 40 days of AJ's decision.  

➤ You may appeal the Final Agency Decision to Office of Federal Operations (OFO) within 30 days of receipt.  You may submit a supporting brief within 30 days of your appeal to OFO.   You may request an extension to submit a supporting brief.

➤OFO may take 6 months to 3 years to render a decision.  If OFO remands your case back to the Agency for investigation, you are back to the formal investigation stage.

➤ Are managers' performance tied to EEO complaints?

• Yes, it should.  Section II(C) of MD-715 provides that a model EEO program must “evaluate managers and supervisors on efforts to ensure equality of opportunity for all employees.”
• In FY 2009, 144 (80%) of the 180 agencies and subcomponents that submitted MD-715 reports indicated that its managers and supervisors were rated on their commitment to EEO, down from the 144 (83.2%) of the 173 agencies that submitted MD-715 reports in FY 2008.

From p. 17 of EEOC's 2009 Annual Report on Federal Work Force.

➤ Can EEO counselor or EEO Director be my advocate for my complaint?

• No.  They are on the agency's payroll and they usually support, guide, and direct management.  However, they are supposed to be neutral.

➤ Do EEO investigators investigate objectively and thoroughly?

• Usually not, even though they are supposed to.  They are usually contracted by the Agency to investigate allegations and to compile the Agency's Investigative File.

➤ Where do I report the Counselor's misconduct?

• To the EEO Director or the equivalent.

➤ Where do I report the EEO investigator's misconduct?

• To the EEO director or the equivalent.

➤ Where do I report  the EEO Director's misconduct?

• To his or her boss, the head of the agency.

➤ Where do I report the Agency attorney's misconduct?  

• To the administrative judge (AJ) through a motion or request for a sanction.

➤ Where do I report the Administrative Judge's (AJ's) misconduct?

• To the Office of Federal Operations when you appeal the Final Agency Decision.

➤ Do I have a fair chance of winning in the federal EEO process?

• The 2009 EEOC Annual Report on Federal Work Force states that less than 3% of complaints are found to establish discrimination.  

➤ Why bother filing an EEO?

• You cannot afford not to.  You cannot passively take discriminatory or retaliatory abuses from the powers that be.  Filing EEO claims do affect review of managers' performance in most Agencies.  See above on the tie between management performance and EEO claims per MD-715.

➤ When can I file at the federal court?

• 180 days after filing a formal complaint.  And within a certain (shorter) time period after receiving Final Agency Decision (FAD), and lastly after receiving the OFO decision (if you appealed the FAD).

➤ What are some major differences between EEOC hearing and the court hearing/trial?

• EEOC Hearing is closed to public; where as the court proceedings are generally open to public.  EEOC hearing records are destroyed within certain time period after issuance of AJ's decision or Final Agency Decision.  Court documents remain accessible to the public for a long time.  Hearsay is allowed in EEOC hearing, not in the courts.  EEOC hearings are exploratory and less formal; the court is not.

➤ Should I seek settlement?

• Yes, because an amicable settlement is always better than winning.  But the definition of amicable settlement depends on your job situation and personal circumstances.  There is no standardized formula for figuring out an amicable settlement.  Each case is unique.

➤ Should I hire a lawyer?

• Yes, if you can afford one.  EEO counselors, investigators, and EEO analysts/Directors are not really neutral and may not provide you all the information you need.  However, some lawyers do not know the federal EEO process at all, although the fees they charge do not reflect their ignorance or ethics.  See more on attorneys and HR's.  EEOC hearing process is a difficult one for any layperson to go through.  You need specialist's or lawyer's help.  

➤ How do I handle EEO Counselor?

• Try to get everything in writing or document everything.   It is not true that you can always add later additional allegations.  If you expire 45 day jurisdictional time limit, you cannot add additional allegations later.  You can always add the protected classes later such as race, disability, sex, age, etc.   See informal complaint process.
• Try to file a complaint as formally as possible, even though the pre-complaint process is supposed to be informal.  Counselors may deny ever meeting you or hearing your allegations at the initial encounter, etc.
• Do not be intimidated by EEO counselors.  They have no authority to determine the merits of your case.
• Do not grant extension.  There is no repercussions for refusing.
• Do not be forced to a mediation meeting.  Do not enter a mediation meeting without knowing what you want item by item.  Do not leave a mediation meeting without knowing what Agency is willing to offer.  Do not feel that you have to settle just because you entered a mediation.  Do not think you have settled unless and until you and all involved sign a settlement agreement.  Do not sign a settlement agreement that has vague terms and general provisions and obligations.  Do not demand what authorities cannot enforce such as immediate cease and desist of harassment or no more discrimination.  (Instead you might want to demand a mandatory anti-harassment or discrimination training for 3 full days at the manager, John Doe's own cost conducted by third party trainer of reputable authority; and records showing the training and his attendance for the three days....)  Do not request what Agency is supposed to do under law such as: no more discrimination/harassment.  Do not demand what cannot be quantified, verified, or restored: such as my reputation or good working relationship or effective communication.
• Every terms of the settlement must be written in the settlement agreement and must be verifiable.  Verifications must be specified in each terms of agreement.  Do not allow indefinite duration of fulfillment of obligation.  Specify deadline for each terms if and where applicable.

➤ How do I handle EEO Investigator?

• Do not be intimidated by EEO Investigator.  Do not feel pressured to respond within unreasonable time such as the next day or in 5 days (if you are responding to 60 affidavit questions covering your entire allegations).  Always request an extension before missing a deadline, even if you are told that extension won't be granted.  See formal complaint process.

• Do not grant an extension of investigative period.  There is no repercussion for refusing.

• Avoid requesting or informing investigator verbally.  Do everything in writing.

• Submit relevant and supporting documents to the investigator, even if not asked.  Do not wait until you are asked to submit such documents.  Investigator may never ask.  

• You can always submit supporting documents or statements until the Investigative File is issued.  Even after issuance, you can submit post-investigation evidence to the EEO Director.  (If you are in the EEOC hearing process, it is better to submit to the judge via a motion when appropriate.)

• Investigator compiles and gathers documents and affidavits relevant to the case.  At the end of the investigation, he or she summarizes what is contained in the Investigative File.  The summary is called the Report of Investigation (ROI).  Note that it is only a summary written by a third person.  ROI has no evidentiary weight.  A document or an affidavit carries more weight than the investigator's summary of it.  Judges do not consider ROI when making a decision.  Investigator is not authorized to determine the merits of the case.  Use ROI as quick reference tool--to find things in the thick Investigative File.  But it is usually a partial tool highlighting Agency's position and concealing or undermining your evidence or position.

• Make sure what you submitted to the investigator finds its way into the Investigative File, including important emails to him or her.  Request to put the email into the case file when you write one, if it is important.

• Do not go by what the investigator says but by what he or she writes.

➤ How do I handle Agency attorney?

• Once you receive Acknowledgment and Order from EEOC administrative judge, you will be dealing with Agency's attorney frequently.  He or she is your adversary, not your advocate.  Do not listen to his advice or request one.  Do not be generous with deadlines.  He or she won't be with yours.  Do not engage in an argument.  Do not try to outwit him or her.  

• Just because Agency did not or failed to provide you with what you requested in the discovery does not mean that you don't have to either.  If you do not respond to Agency's discovery requests in good faith, you will be compelled to produce later on by the judge (if Agency files a motion to compel you and if AJ grants the motion).  Failure to respond may cost the hearing.  See EEOC hearing process.

• See Depositions for more details on how to prepare for a deposition and for questioning at the hearing.

• Rebut everything she says to the judge, if not true.

➤ How do I handle Administrative Judge?

• Some administrative judges (AJ's) are fair, some are not and favors the Agency.  After all, Agency is innocent until proven guilty.  When alleging discrimination, you are alleging that Agency violated law.  Therefore, the burden of proof rests on you.  See EEOC hearing.

• Do not think that just because you are having a hearing, you will win.  Please note the EEOC's 2009 Annual Report on Federal Work Force in which it is stated that less than 3% of all complaints end up with a finding of discrimination. 

• Do not send the judge your supporting documents without explanation, reference, showing relevance, tabbing, and without a motion or pleading to which such documents should be attached.  

• Judges are not your advocate and are not supposed to give you advice.  Do not talk to AJ without Agency attorney present.  Agency attorney should not talk to the judge without your presence (but they sometimes do in violation of the hearing rules that prohibit ex parte communication).   

• If you want AJ to do something, file a motion to the AJ.  If you don't like what Agency attorney does or says, object to the judge.    

• Do not tell the whole story.  AJ won't have time or patience to listen.  Only tell relevant facts at appropriate time.

• Do not try to prove every lie presented by Agency.  Only defeat Agency's stated reasons for doing what it did to you.

• Proving something bad happened to you is relatively easy.  Proving something bad happened to you because of your race, sex, age, disability, religion, etc. is always more difficult.  But that's what you need to prove.  You prove that point by showing favorable treatment by Agency toward others who were similarly situated as you.

• Appeal judge's misinterpretation or omission of facts or unfair procedural rulings or decisions to Office of Federal Operations (OFO) when you appeal Final Agency Decision.

• Do not say something important to the judge off the record (i.e., when the court reporter is on break).

• Try to have the judge or Agency attorney say things that are important on record.

• Use witnesses as verification of facts you need to establish, not to provide you with agreement or support or to sympathize with you.   Sometimes a hostile co-worker may provide good verification of what you need to establish, unbeknownst to him/her.

• If you are allowed to offer a written closing argument at a later date, wait for Agency to provide you with the hearing transcript and review it to support and reference in your argument.  AJ is to ensure that Agency pays for and provides the transcript to you and to the AJ within 14 days of the end of the hearing.

• EEOC returns all hearing records, including the transcript, to Agency after a certain time period subsequent to issuance of decision.  Agency is to destroy it after a certain time period, as EEOC hearing is not open to public and its records not accessible by public.

➤ Is there another chance of a hearing when you appeal Final Agency Decision?

• No.  Appeals to the Office of Federal Operations (OFO) are done by written brief only.  OFO does not conduct a hearing.  After submission period is over, you cannot submit any more information or documents.  Federal or state court trial is the only chance for another hearing, more properly a trial.  See OFO appeal.

Disclaimer: Statements made herein are subject to update and change.  EEO 21, LLC will not be held liable for any errors, misstatements, or misrepresentation unless knowingly and intentional made to cause harm to public or to any individuals directly affected by such statements.