Filing an Informal Discrimination Complaint If a federal employee believes that he or she is or has been discriminated against by their agency, on the basis of race, color, religion, sex, national origin, and disability, the employee may file an Informal Complaint within 45 days of the alleged act of discrimination and/or retaliation emanating from the alleged discrimination with the internal agency Equal Employment Opportunity Commission (EEOC) office.
During the informal stage, your Informal Complaint will be assigned to a counselor within the internal EEOC office. The EEOC person assigned to your case, will usually perform a very perfunctory, short investigation of the alleged discrimination and/or retaliation. This investigation usually amounts to talking with the alleged perpetrator of the discrimination, usually a direct supervisor or deciding official, that played a role in the alleged discrimination and/or retaliation.
Additionally, during the Informal Complaint stage, the Complainant will be given the opportunity to participate in Alternative Dispute Resolution (ADR). Both the Complainant and management must agree to an ADR session. It is not sufficient for the Complainant to agree to ADR if the agency does not agree to ADR as well. Most times, the internal EEOC office will find no discrimination or retaliation. It is like the fox guarding the chicken coop. At the end of the informal stage, the EEOC office will conduct an exit interview with the Complainant, usually over the phone and inform the Complainant of the finding of no discrimination or retaliation. At that time, the Complainant will be told that they have 15 days from the date of the closing of the Informal Complaint to file a Formal Complaint. This right will be mailed to the Complainant. Please note that a Complainant may be represented by an attorney or another representative of their choosing, at all stages of the complaint process, including the Informal Complaint stage. Filing a Formal Complaint When a Complainant chooses to file a Formal Complaint, an investigator is assigned to that Formal Complaint. The investigator assigned by the internal EEOC agency is usually an independent contractor that does not work for the federal agency itself, although, there are times when the investigator is an employee of the federal agency. The best practice for federal agencies is to assign an investigator who is an independent contractor and has no connection to the agency being investigated. This best practice ensures at least, from a perception point of view, that the investigator is impartial in conducting the investigation in a fair manner. However, in actuality, this is not always the case. I have dealt with many independent investigators over the years, regarding federal sector complaints, and have found like anything else in life, there are some very good investigators that are fair to both sides and have found a number of independent investigators who are in the tank for the agency.
The investigation, under EEOC regulations, is to be completed within 180 days of the fling of the Formal Complaint. Most agencies do not meet this deadline. It is not uncommon for a federal sector Formal Complaint to stretch on for more than 200 days. If the investigation of the Formal Complaint is not completed within 180 days, the Complainant has the option to either file in Federal Court and/or ask for an administrative hearing before the EEOC.
Even though most of the investigations take longer than 180 days to complete, I encourage my clients to let the investigator finish the investigation before filing in Federal Court or asking for a hearing before the EEOC. I do this because I want a complete record documented by the investigator before asking for the hearing. During the investigation of the Formal Complaint, the investigator will conduct several interviews, including an interview with the Complainant and take sworn testimony from the Complainant in the form of an affidavit. Likewise, the investigator will also take the sworn statement of key management officials within the federal agency who are critical to the alleged discrimination and/or retaliation in each case. The Complainant is entitled to have his/her lawyer present during the taking of an affidavit from him/her about alleged discrimination and/or retaliation. The management officials involved in giving an affidavit to the investigator are also entitled to legal representation by agency attorneys.
At the end of the formal investigation, the agency will provide a summary of rights to the Complainant which will include the right to file in Federal Court or to seek an administrative hearing before the EEOC. Once the Complainant receives the Notice of Rights, he or she can elect where to file the Complaint within 30 calendar days of receiving the Notice of Rights, or to withdraw his/her complaint. It is best to make a selection regarding which route the Complainant wants to proceed with, and to file the request for a hearing as soon as possible. Hurry Up and Wait! Once your hearing request has been filed with the EEOC or the Federal Court, you can count on a very long period of time before your hearing request is acknowledged or a judge is assigned to your case. It is taking at least a year and commonly much longer to have an Administrative Law Judge (ALJ) assigned or a Judge assigned in Federal Court. Many of my colleagues who practice in this area, as well as myself, can wait almost two years before having a judge assigned to the case. Once a judge is assigned, an acknowledgment order is sent to the two parties, the Complainant and the Defendant Agency.
Discovery will then commence. Usually Discovery will be a relatively short period (usually 60-90 days) for both parties to gather information from each other to argue their cases. The first phase of Discovery is Interrogatories, which are written questions which are submitted to the opposing party. There is a limit to the number of Interrogatories you can ask. It is usually limited to 30 Interrogatories. Both sides may also request Production of Documents which are relevant to the matter at hand, and the number of Requests for Production of Documents is also limited to 30. Finally, both sides may request what we refer to as "Admissions." This is where each party stipulates certain facts to be true or untrue. These Admissions are usually limited to 30 in number as well. One important point to make is even though you have the right to do 30 Interrogatories, you can do less. The same is true with Requests for Production of Documents and Admissions.
Also, each side will be given the opportunity to do a limited number of Depositions. Depositions are sworn statements under oath given before a court reporter. The number of Depositions allowed will vary from judge to judge. At the conclusion of the Deposition stage, each side can move for what is referred to as Summary Judgment, arguing that there are no genuine issues of material fact in dispute between the parties. These motions will be decided by the judge. It is important to note that even though a Complainant may request a hearing, the Complainant is not automatically entitled to a hearing if the judge determines, based on the evidence, that there is no genuine issue of dispute supporting the Complainant's case. Finally, a judge's decision to grant Summary Judgment motions by each side, can be appealed to the Equal Employment Opportunity Commission. A judge's hearing decision can also be appealed by either party.