Formal EEO Complaint Process for Federal Employment Cases
Once you have filed an informal complaint and after the mediation or Alternate Dispute Resolution (ADR) has failed (if you requested ADR), your local EEO counselor should inform you that the mediation/ADR failed and should give you the notice of the right to file a formal complaint along with the formal complaint form ("Formal Charge of Discrimination"). You have 15 days (from the date of your receipt of the form) within which to submit your formal complaint.
Class action complaints must undergo an informal EEO complaint process but need not undergo the formal EEO process. 30 days after contacting the EEO counselor, the Agency must forward the class complaint and the Counselor Report to the Equal Employment Opportunity Commission (EEOC) for class complaint certification and hearing. See 29 C.F.R. §1614.204 for filing Class Complaints.
➤ Filing a Formal Complaint of Discrimination
Submit the formal complaint form to the central EEO Office (or headquarters) of the Agency. The address is provided in the Notice of Right to File (a formal complaint issued by your EEO counselor). (Each Agency has its own EEO headquarter in different location throughout the United States). The post stamp date or fax date is your filing date.
Note: If you did not allege with your EEO counselor a claim/act of harm (an action done or omitted by management), you cannot file it on your formal EEO complaint. All EEO claims must be first filed with your EEO counselor. Any request to amend your formal complaint (already filed and docketed)—so that you can add a new claim—must also be filed with EEO counselor (not with your EEO investigator).
Sample of court Complaints are available for purchase at the STORE.
Advice:
Submit the formal complaint form with your affidavit as an attachment. Since the formal charge form is a one page sheet, there is not enough space to articulate clearly and sufficiently your issues and bases. Therefore, in the box where it asks 'How were you discriminated?' you can put: 'See attached my Complainant Affidavit dated ....' You can do the same with respect to the question regarding the 'remedy.'
➤ It is better to submit evidence and the witness list to the EEO investigator, after one is assigned to your case. If you send them along with the Formal Complaint form to the EEO headquarters, they may lose them. Submit all relevant documents and witness statements to the EEO investigator - whether asked or not - because whatever you submit to the EEO investigator should and must become part of the Report of Investigation (ROI), which the investigator will compile and submit to the EEO headquarters at the completion of investigation. Agency is obligated to complete the investigation and issue you the Report of Investigation within 180 days of your filing the Formal Complaint. ROI will become the only record Agency will review in issuing the Final Agency Decision, if you did not request an EEOC hearing and if there is no EEOC administrative judge's decision in the case. If the hearing was requested and held, and if the judge's decision was issued, then the ROI and the judge's decision may be the only records the Agency may consider to issue its Final Decision.
Under the Freedom of Information Act (FOIA), you have the right to request your agency to produce documents relevant to you case. This may be the only tool of discovery you have in the EEO process (unless you request an EEOC hearing after 180 days from filing a formal complaint). The discovery tool under FOIA should be used well in advance however, as the Agency may drag its feet in responding to your requests. When requesting, be very specific and time bound. Name the documents or describe them as much as possible with specific date range. Many requests are responded to by the Agency trying to understand or pretending to not understand what was requested. In other words, don't request for any and all documents ranging over 10 years or with no date range specified.
➤ Agency is obligated to issue you the Report of the Investigation (ROI) or the Agency Investigative File (AIF) within180 days of your filing the formal complaint, unless you grant an extension.
If Agency did not issue you the ROI within 180 days of your filing the formal complaint or, if you granted an extension, after expiration of the extension period, you can force the Agency to issue one by requesting an EEOC hearing. Once you request the hearing, the EEOC will order the Agency to produce it within 15 days. If Agency fails to produce it as ordered, the Agency can be sanctioned, including issuance of a default judgment against the Agency. EEOC usually grants several extensions and warnings before issuing a default judgment, however.
➤ Acceptance or Rejection of Your Discrimination Claims
The central EEO office/headquarters will acknowledge receipt of your formal complaint and will notify you as to which, if any, allegations are accepted or rejected for investigation. In many cases, the accepted issue may not look like what you wrote in your Formal Complaint at all; or the most important issue may be missing or may be rejected for various reasons. The most frequently cited reasons for rejection are: 'failure to state a claim' (where issues are not clearly defined or where no real damage is deemed to have incurred), 'untimely filing' (where you have missed the 45 day deadline within which to contact the EEO counselor to allege discrimination in order to begin the informal complaint process), and 'lack of jurisdiction' (where bases are not identified). It is very important that you write clearly and succinctly your allegations and do so with specific dates on each incidents of discrimination. Avoid narrative style of writing a complaint. EEO office is not interested in your story but only on the allegations. See issues and bases. Also see how to write a complaint as well as Amending Complaints.
You have 5 to 15 days (depending on which Agency EEO headquarters) to dispute the EEO headquarters' rejection, if any, of your allegations/issues/claims.
Advice:
Rebut any rejection of your valid claims, even if the claims may still be rejected afterwards. Because once you have rebutted, it is easier to challenge Agency's rejection or misrepresentation of your claim later at the EEOC hearing (if you are going to request one after 180 days of filing a formal complaint.)
➤ EEO investigation and/or fact-finding conference/interview
An EEO investigator will be assigned to your case by the Agency (and paid for by the Agency). (Your local EEO counselor will be no longer involved in the process hence forth.) The EEO investigator has 180 days (from the date of your filing the formal complaint) to complete the investigation and to submit the Report of Investigation (ROI) or, as it is called in various ways Investigation File (IF) or Investigation Report (IR) or Agency Investigation File (AIF). See §1614.106(d)(2). See below for more on ROI.
EEO investigators are not authorized to determine the merits of your case. They cannot and should not render a decision as to whether unlawful discrimination/retaliation had occurred. Posing to render such pronouncement should be countered with your request to say so in writing. Again, the investigator won't commit such pronouncements in writing. Do not be otherwise intimidated by haughtiness of the investigators who often pose themselves as decisive to the outcome of your case. They are not decisive. Their role is only to gather relevant and material information and records on your case and to compile a Report of the Investigation (ROI) and the Investigation File (IF) containing the exhibits which are referenced in the ROI.
I have heard many claims the investigators make that are clearly in deviance to or distortion of the rules and regulations governing the federal EEO process, such as: "You have no chance of getting your case heard at a hearing later on because your case could be dismissed by the judge when the Agency files a motion for
dismissal." This could be true (and is often the case) but what is missing in this statement is the fact that the judge can also rule in your favor based on what is available in the record without conducting a hearing, if you file a motion for a summary judgment or motion for a decision without a hearing. It is rare that AJ will render a summary judgment in your favor, however. It is more likely that AJ will grant Agency's motion for summary judgment, if your opposition response is not filed or successful. See more in EEOC Hearing. In any event, the investigator has no business to tell you, or has knowledge, about the EEOC hearing process. Again, their role is to gather information and docs to compile a Report of Investigation (ROI) and the Investigation File (IF). See below for ROI and IF.
You have the right to request an EEOC hearing before an administrative judge 180 days after your filing the formal complaint, regardless whether or not the Report of Investigation is issued to you. (EEOC hearing request form). The Agency will request you to grant an extension of 60 or 90 days. The extension is not usually intended to grant YOU more time to present your case to the investigator. Rather, it is designed to grant the investigator (and possibly the Agency) more time to prepare the Report of Investigation (or more time to defend against your allegations).
Advice:
Don't grant any extension because: (1) it only helps the investigator or Agency to come up with better prepared defense (pretext for discrimination); and (2) because -- later when you request an EEOC hearing without receipt of ROI -- the Agency will be forced to compile and submit the Report of Investigation (ROI) to the judge as required. If the Agency fails to submit the ROI within the time frame set forth by the judge (usually within 15 days), the judge can issue a default judgment against the Agency (your motion for such a judgment will help the judge to do so). If that happens, you could win by default. See an actual default judgment. See the motion filed requesting a default judgment. Usually, however, the judge gives Agency an ample opportunity to compile and submit the Investigative File (containing ROI and the Investigator's Summary Report).
Note that many administrative judges at EEOC were once Agency attorneys.
An EEO Investigator will interview you to clarify allegations and to gather information, documents and witnesses. The Investigator will also interview the management for the same purposes. You should submit your evidence and witness list to the investigator, whether asked or not. Again, do not rely on the investigator to prove your case. You must help him or her to do compile the Investigation File (IF) that is in your favor. You have the right to be represented when the investigator talks to you regarding your case.
Once the investigator interviews you and the management, he or she will compile affidavits for you and for the management. You may be given a chance to rebut the management's affidavits. You should rebut and present documents or witness statements refuting management positions.
In the cases involving Dept. of the Army, the EEO investigator may hold a fact-finding conference to take your and witnesses' statements, all recorded by a court reported. The Agency attorney may be present at the fact-finding conference, and can question and cross examine you or the witnesses. You should asked for the same opportunity to examine Agency decision makers when it is their turn to answer the investigator's questions, if Agency attorney cross examines you.
Advice:
Be aware that generally the investigation is in favor of the Agency. The EEO office is part of and is paid by the Agency; and the investigator is paid by the EEO office. (The latest figure for paying a contracted EEO investigator is about $2,500 per case. The expense for using the Agency's own in-house EEO investigator is about $5,000 or more per case.) EEO investigator has no authority to render a judgment on your case. But s/he usually favors the Agency, as s/he reports to the Agency's EEO Director, who in turn reports to the Agency head. You can submit a sworn statement or affidavit or submit evidence before, during, or after the fact-finding conference/phone-interview to rebut lies and distortions that may have been uttered by the management during the fact-finding conference or in their affidavits. Your sworn statement with signature such as an affidavit counts more than a statement without a signature. Since the management's statements are presented under oath (either in the affidavit or during the fact-finding conference), you can present evidence for the purpose of raising a perjury charge.
The EEO investigator submits the Report of Investigation (ROI) or Investigation File (IF) to the Agency EEO Director, who will in turn further review and may revise the ROI or IF. Agency is required to produce and serve you the ROI and IF within 180 days of your filing the Formal Complaint, unless you have granted an extension. See §1614.106(d)(2). The Agency may request additional 90 days to complete the investigation and to issue the ROI. As stated above, after 180 days of your formal complaint, you have a right to request a hearing to be heard by an administrative judge at EEOC, regardless of whether or not an ROI is issued, or you can sue at the federal district court. (See below for more on ROI.)
See an EEOC Judge's testimony on the "poor to dreadful" qualify of the EEO investigation and the Investigation File:
To request an EEOC hearing, you need to fill out the hearing request form (which should be enclosed with the Report of Investigation) and send it to the appropriate EEOC field office (the address should be provided to you). As stated above, it is better to request a hearing as soon as the 180 days (from filing a formal complaint) have passed. Once EEOC receives your request for a hearing, EEOC will order the Agency to produce the Agency's Investigative File, including the Report of Investigation (ROI). If the Agency fails to produce ROI, EEOC judge may enter a default judgment against the Agency for failure to produce ROI. You could win by a default judgment.
In lieu of requesting an EEOC hearing before an administrative judge, you may opt to request Final Agency Decision (FAD) without a hearing. FAD is issued based on the Report of Investigation that the EEO investigator compiles at the completion of investigation. It is usually issued in favor of the Agency, written by the Agency counsel or legal staff in the EEO headquarters.
When the FAD is issued without a hearing, and if you appeal the FAD to Office of Federal Operations (OFO), the Agency's decision is subject to de novo (new or fresh) review by the OFO. However, in that case (when no hearing is held), the de novo standard of review "requires that the Commission [OFO] examine the record without regard to the factual and legal determinations of the previous decision maker." See EEOC Management Directive 110, Chapter 9, Section VI.A (November 9, 1999). This means that no factual dispute can be raised in your appeal to the OFO (if no hearing was held).
➤ Report of the Investigation (ROI) or Investigation File (IF):
This (1 to 5 inches or more) thick folder contains the Report of Investigation (ROI) written by the EEO investigator summarizing the issues and bases and the records contained in the IF (that follows ROI as attachments), the EEO investigative affidavits (including yours, managements, and witnesses, if any) or the transcripts from the fact-finding conference (if held) or the transcripts from the EEO investigator interviews (if any), and documents gathered or submitted during the investigation period. Usually, documents pertaining to the 'similarly situated individuals' are missing or inadequately gathered, if requested at all by the EEO investigator. (Note that discrimination is proven by comparing yourself to the 'similarly situated individuals.') Examine the entire ROI carefully. Note that the salient documents supporting your claims, even if submitted, may not be found in the IF or may be found in the back of the IF or under the wrong tab. Or they may be scattered apart throughout the IF in such a way that the reader (the administrative judge or attorney issuing the Final Agency Decision in Agency's EEO HQ could not make sense out of those records). Also check to see that the IF contains statements you submitted to the investigator. (Evidence or statement you submitted to the EEO Counselor during the informal pre-complaint counseling period may not be found in the IF.)
The IF may be the only file the Agency EEO headquarters reviews to issue the Final Agency Decision, if a hearing was not requested. If a hearing was requested, the judge's decision will be incorporated in the FAD.
The IF will become part of the hearing record if the EEOC hearing was requested, granted, and if EEOC ordered the Agency to produce the IF upon your request of the hearing; and if the IF was so produced by the Agency.
It is very important that you submit the records in support of your claims to the EEO investigator (not to the EEO counselor, whose role is not to investigate but only to convey your allegations to the management for speedy resolution, if possible). Usually the EEO investigators, believe it or not, do not ask you for supporting records. Whether requested or not, whether he or she likes it or not, you should submit the supporting records to the investigator.
Feel free to submit supplemental statements or affidavits to the investigator after the investigator's interview or fact-finding conference/interview. Because, as you will find, the investigator's questions are ofter very unfair and tilted toward the Agency and not adequate; and you won't be allow to say what was not asked. If the investigator says that you cannot submit any records or supplemental affidavits, requests him or her to say it in writing. He or she won't be able to commit it in writing. Because it is in violation of the rules and regulations governing the formal investigation process, as cited above.
It used to be that Agency does not investigate your formal complaint, hoping that your claim will just wither away. Nowadays, however, knowing that you can request the EEOC hearing 180 days after filing a formal complaint, and that, if you did, Agency would be required to produce the IF to the EEOC; Agencies have a different approach. They have the investigator contact you toward the end of the 180 day investigation period, to rush the investigation, and to rush obtaining affidavit from you; and issued the IF soon after interviewing you--like within a month after the investigative interview/affidavit submission. This way, you won't have enough time to examine the affidavit the investigator wrote for you based on your interview or won't have enough time to provide supporting documents or supplemental affidavit. Be aware of such tactics and submit your support docs soon after the investigation interview or affidavit submission. Any submission prior to investigator contacting you may be lost or claimed to have been lost.
Document your submissions to the EEO investigator. Copying the EEO Director when submitting support docs to the investigator would not be a bad idea. Copy the EEO Director without records as attachments, so as not to create duplication.
Even if the investigator does not provide you with enough time to submit your support docs or supplemental affidavit, do submit them to the EEO Director. They should be made part of the IF as the post-investigation submission. (There is such a tab so designated in the IF.)
In short, the name of the game is to create the IF in your favor; because Agency will do its best to create one in its favor. IF becomes the official record of your discrimination complaint during the life of your case. EEO claims (once filed formally) are reflected in manager's performance evaluations. Agencies are evaluated based on the number of EEO claims. Informal EEO complaints do not count, as there will be no such records kept. One more reason not to submit records to your EEO counselor but to reserve them for EEO investigator.
The Agency is required to send you the Report of the Investigation (ROI) along with all documents referenced therein, along with the notice of your right to request a hearing (to be held before an administrative judge at EEOC); when the IF with ROI is issue to you.
Advice:
Keep the Report of the Investigation (ROI) or IF intact because the pages and the tabs can be referred to later at the EEOC hearing (if a hearing is requested and held) or in your written appeal to the Office of Federal Operations (OFO) in Washington, D.C. (See Appeal to OFO). If I were asked: "What is the most important in the IF?" I would say: The page numbers. Without referring to the page numbers, you cannot effectively use IF when filing a motion to the administrative judge (AJ) during the hearing process or when appealing to OFO later.
Review the Report of Investigation carefully. Note errors, lies, and misrepresentation. Also note any evidence the Agency may have submitted that support your discrimination claim. Also note what other evidence you can request later from the Agency to be produced during the EEOC hearing process (if you will request a hearing). If you request a hearing and if hearing is granted, you can compel the Agency to produce documents and to respond to your interrogatories under Administrative Judge's authority granted for and during the EEOC hearing process.
Advice:
Read the ROI carefully. Make sure that it contains the documents you submitted to the investigator. Usually, the most damaging evidence is buried in the back of the thick (2-4 inch) ROI or in the midst of unrelated documents or, worst, is omitted.
With issuance of Report of Investigation (or Investigative File), you should be given a notice informing you of the option to waive your right to request an EEOC hearing and wait for Final Agency Decision on your case or to request an EEOC hearing. Exercise your right to request an EEOC hearing because you will have the discovery rights - the only chance you have to send interrogatories to Agency decision makers and to formally request documents not in your possession (such as documents pertaining to other 'similarly situated individuals.').
The Formal Complaint process ends with issuance of Report of Investigation and of the notice of the option to either request an EEOC hearing or to wave that right and request the Final Agency Decision (FAD).
If a hearing is requested and held, and after the judge's decision is issued, the decision will be incorporated into the Final Agency Decision (FAD). The Final Agency Decision must be issued within 40 days of issuance of the administrative judge's (AJ's) decision. FAD (and not AJ's decision) may be appealed to Office of Federal Operations (OFO). If judge's decision is not in your favor, you may want to send the prehearing brief (if you filed one prior to the hearing) or a new brief to Agency EEO headquarters to be considered before the EEO HQ issues the Final Agency Decision (FAD). Or, if no pre-hearing report was filed, you may want to rebut the judge's decision by presenting a brief containing summary of facts, arguments, evidence (or reference to evidence in the IF) to Agency EEO headquarters to be considered before Agency issues the FAD. When you do, you want to request that the judge's decision not be implemented in the FAD. Any complaint against the EEOC administrative judge may be reported to EEOC's Office of Federal Operation (OFO) along with your appeal (when you appeal the FAD).
If you wave the right to request an EEOC hearing and request instead the Final Agency Decision (FAD), the Final Agency Decision (FAD) will be issued. You can appeal the FAD to the Office of Federal Operations (OFO).
➤Free Court-Appointed Attorneys (only when you are filing a complaint at the federal district court)
Title VII of the Civil Rights Act of 1964, § 706 (f)(1)(B), 42 U.S.C. § 2000e-5(f)(1)(B), provides:
Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, cost, or security.
If you qualify financially, the U.S. District Court may appoint a free attorney for you. Consult with the Court Clerk when you file a law suit at a U.S. District Court.
180 days after filing a formal complaint in the federal EEO process, you may file a law suit at your U.S. District Court, in lieu of requesting an administrative EEOC hearing; or within 90 days of receiving Final Agency Decision or OFO appeal decision.
Disclaimer: All information contained in this page is subject to change and updates. EEO 21, LLC, is not responsible for any errors or misrepresentation.
Disclaimer
Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
Mr. Lee does not practice law and cannot provide attorney-client protection privileges. However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
Mr. Lee cannot and does not represent clients at court proceedings.