How to File a Federal Sector EEO Complaint

Posted about 5 years ago. 3 helpful votes

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1

Contact with an EEO Counselor

Contact with an EEO Counselor must be made within 45 days of the "incident," or the most recent incident for a hostile work environment claim. Read all documents carefully and follow deadlines to a "T." Don't grant extensions. Respond to the EEO Counselor and their inquiries, but realize that many of them don't know the rules and could be asking for information that is either irrelevant or that is going to help the Agency. Counseling includes an option for Alternative Dispute Resolution (ADR), which essentially means that the Agency and Complainant (you) get a chance to settle the case before a ton of time and money is invested in it by either side. At the conclusion of EEO Counseling you will get a Notice of Rights to file a Formal Complaint, which allows only 15 days to file. Getting this document right, and getting it filed on time, is the second critical stage in a successful EEO Complaint.

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Alternative Dispute Resolution (ADR)

Counseling includes an option for Alternative Dispute Resolution (ADR), which essentially means that the Agency and Complainant (you) get a chance to settle the case before a ton of time and money is invested in it by either side. Getting a competent EEO attorney to advise you is a good idea. ADR can resolve cases early on in the process, for much less than it would take at a later stage. Perhaps the issue is still ongoing, or there aren't a lot of attorney fees invested yet. Either way, its a good idea to walk in with a reasonable offer - NOT to ask for $300,000. That will just tell the Agency that you really are not serious about settling. Very very few cases get any where near that figure, although settlements and wins have been getting higher number awards over the past few years. If ADR fails, you again get the right to file a formal complaint.

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Filing a Formal Complaint

At the conclusion of EEO Counseling you will get a Notice of Rights to file a Formal Complaint, which allows only 15 days to file. Getting this document right, and getting it filed on time, is the second critical stage in a successful EEO Complaint. See our website for samples. An Investigator, hired by the Agency, will contact you for information and an Affidavit. In DoD cases, there will probably be an in-person Fact Finding Conference, with sworn testimony and witnesses. Having an experienced Federal Employment Attorney at this stage of the case is critical. The Investigator will finalize the Investigation and issue a Report of Investigation. Some do this in paper form, others on CD. You will get a Notice of Right to Request a Hearing before an Administrative Judge of the EEOC. Alternatively, you can file at this point a Request for a Final Agency Decision, which you can then take to US Federal District Court. You can also appeal any Administrative Judge hearing.

4

Request for Administrative Judge Hearing, or Request a FAD (Final Agency Decision)

After Investigator finalizes the Investigation and issues a Report of Investigation, you will get a Notice of Right to Request a Hearing before an Administrative Judge of the EEOC. It is very important to fill this out immediately and send it return receipt requested, to the EEO office noted in the Notice. Alternatively, you can file at this point a Request for a Final Agency Decision, which you can then take to US Federal District Court. You can also appeal any Administrative Judge hearing. The EEO office will assign an AJ, who will issue an Acknowledgment Order. You will then have to issue, and respond to, something called "Discovery."

5

Issue, and respond to, "Discovery."

Discovery is the right of a party to "discover" the other side's claims and defenses. There are a few main methods of discovery, such as Interrogatories (written questions asking for information), Request for Production of Documents (written questions asking the Agency to produce documents that already exist) and Depositions (oral examination before a court reporter). Sample discovery is found on our website at www.sniderlaw.com. Having an experienced attorney represent you in discovery is important, as this stage can make or break the case. After Discovery comes "summary judgment" briefing, or Motion for a Decision Without a Hearing.

6

"summary judgment" briefing, or Motion for a Decision Without a Hearing.

The Agency invariably tries to get a case dismissed without going to an evidentiary hearing. They may also try to settle, but getting a TKO (Technical Knockout) is preferable to them. They don't care how long it takes or how much it costs them to fight, by the way. The Agency has a small army (or large army) of OGC (Office of General Counsel) attorneys whose sole job is to litigate these EEO cases. If they were to settle them all, they wouldn't have any work. Summary Judgment briefing - the Agency has to show that there are no "material facts" in "genuine dispute." That means that there is no real dispute over the facts, and that based on the undisputed facts, you lose. Your job is to prove that there are disputed facts, and that those facts are important to the outcome of the case. If you get past this stage, there is usually a Settlement Meeting or a Hearing.

7

Settlement Conference

It is a good idea to walk in with a reasonable offer - NOT to ask for $300,000. That will just tell the Agency that you really are not serious about settling. Very very few cases get any where near that figure, although settlements and wins have been getting higher number awards over the past few years. If settlement fails, you can go to a full blown hearing.

8

EEO AJ Hearing

This is the peak, the mountaintop of the case - the hearing. This is where, if you get past all of those hurdles, you get to "put on your case." AJ's hear hundreds of cases, however, so many people are disappointed when they lose. AJ's have a "win" rate of less than 5%. Why? Because the "best" cases settle. You need to walk into a hearing prepared to put on witnesses and documents to prove your case. You need to have all copies made before the hearing. Often an AJ will encourage settlement discussions at the hearing. Also, the AJ will engage in some questioning of witnesses, especially if the Complainant is not represented by counsel. After the hearing, you need to file a brief and get a Decision. If you won - the Agency can appeal it to the OFO. If you didn't win, you can appeal it to the OFO, which is an appellate branch of the EEOC, or you can get a FAD (see above) and go to US Federal Court and get a whole new discovery and hearing over again. Good luck!

Additional Resources

"Fight for Your Rights, a Federal Employee's Guide to EEO Complaints, Hearings and Appeals"

Sample forms, discovery and EEO Guidance

Equal Employment Opportunity Commission

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