Fedweek Legal

To have a retaliation or reprisal basis, one had to have engaged in prior EEO activity. Image: Tada Images/Shutterstock.com

Understanding the EEO complaint process might be difficult for federal employees who want to file an EEO complaint based on instances of illegal discrimination. Due to the COVID-19 pandemic, many agency EEO counselors are still working remotely, which can make it harder than usual to alert them to instances of discrimination and track the progress of an active EEO complaint.

While each case is unique and many agencies handle EEO complaints differently, there are common elements and timelines in the EEO process that remain fairly consistent across the board. This article will detail and provide an overview of the procedures in the EEO process that occur prior to requesting a hearing before an EEOC administrative judge.

Is the EEO Complaint Process Right for Me?
“Was I discriminated against because of a protected category?” should be one of the first questions any federal employee should ask themselves before considering initiating an EEO complaint. The validity and potential success of an EEO complaint are solely reliant on whether the discrimination was based on a protected category. For the purposes of an EEO complaint, the protected categories include age, color, disability, national origin, race, religion, sex, and/or prior EEO activity.

The final category on the list is frequently referred to as “retaliation” or “reprisal.” To have a retaliation or reprisal basis, one had to have engaged in prior EEO activity, which includes a previous EEO complaint or oppositional activity (i.e., opposing discrimination to management). Participation in another employee’s EEO complaint or opposing discrimination against another could be examples of the action.

Additionally, an employee can complain of a hostile work environment, which can also be referred to as non-sexual harassment. Harassment becomes illegal when either enduring the offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to produce a work environment that a reasonable person would deem intimidating, hostile, or abusive.

Informal Stage
If your answer to the opening question is “yes,” you may have grounds to submit an EEO complaint.

Normally, you must get in touch with your EEO office within 45 days after the discrimination occurs in order to file a complaint. Likewise, you must get in touch with your EEO office within 45 days of the most recent occurrence of patterned discrimination if you are alleging harassment or a hostile work environment in relation to many instances of discrimination.

Typically, your complaint will be viewed as being in the “informal complaint” stage for a period of thirty (30) days after you file an EEO complaint with your EEO office. The “pre-complaint” or “counseling” phases of the EEO procedure are other names for this phase. If the employee wishes to pursue Alternative Dispute Resolution with the agency, this phase may be prolonged to 90 days.

It is usually a good idea to compile a list of your discrimination/EEO incidents and submit it to your counselor for processing, particularly if your complaint contains many incidents over a prolonged period of time. This summary should be brief, containing only the dates of each incident, a succinct explanation of what transpired, and the parties accountable. It is important to list the management individuals involved, including their positions.

Formal Stage
Once the informal complaint process is complete, your EEO counselor should give you a notice of your right to file a formal EEO complaint and instructions on how to submit your “formal complaint” of discrimination. An employee has fifteen (15) days after the receipt of the notice to file a formal complaint.  Failure to file a formal complaint within this timeframe may lead to the dismissal of your complaint.

After you file your formal complaint, the agency will have to issue a decision on whether the complaint is accepted for investigation. According to the law, the agency has 180 days from the date your official complaint was filed to conduct an investigation and create a “Report of Inquiry.” At the conclusion of the investigation stage, you will get a Report of Investigation (ROI) and notification of your right to request a hearing before an EEOC administrative judge.

Generally, an investigator will get in touch with you during the investigation phase of the EEO process to obtain your testimony regarding the claims made in your EEO complaint. This investigator should be a different person than the EEO counselor. Additionally, the investigator will interview any other witnesses they believe are pertinent to your EEO complaint as well as the discriminating official(s) in question. You have the right to ask the investigator to talk with witnesses who would corroborate your account. The best witnesses to call are individuals who either have first-hand knowledge of the crucial details of your case or who can attest to discrimination committed by the specified official(s) in your case.

The investigator is not required to interview your requested witnesses, but if the investigator determines that they are pertinent based on the details you provide, the investigator may do so, and their testimony will be recorded in your Report of Investigation. Additionally, after the investigator obtains testimony from the discriminating official(s), the investigator may give you access to that testimony and give you the chance to offer a rebuttal statement, in which you are free to criticize the mistruths and/or exaggerations in the testimony of the discriminating official. The Report of Investigation should include all statements made, documents produced, and filings pertaining to your complaint.

If any new incidents occur that you would like to include in your EEO complaint along the route, you must contact your EEO counselor within forty-five (45) calendar days of the incidents occurring to amend your complaint. The EEO counselor can then choose to launch a new EEO complaint regarding the new/additional occurrences, or they can add those incidents to your existing EEO complaint. If the claims are similar to or related to those in your original complaint, they should be included in your existing complaint, or you can request to consolidate the complaints later in the process.

By adding events to an EEO complaint, the agency is able to lengthen the time it has to finish your case’s Report of Investigation. It will be extended to 180 days from the date of amendment, but no more than 360 days from the filing of your initial formal complaint. As a result, it may take longer for you to reach the stage of the EEO procedure where you can ask for a hearing before an administrative judge.

Hearing Request
After the inquiry is complete, you will have two (2) choices: apply for a hearing before an EEOC administrative judge or request that the agency determine whether discrimination actually occurred and issue a “Final Agency Determination.” If the agency issues a decision after looking into your request for one and no discrimination is found, you can appeal the Final Agency Decision (FAD) to the EEOC or contest it in federal district court.

You must file a written request for a hearing within thirty (30) days of receiving notification from the agency regarding your hearing rights. The agency will send you this notice as soon as it is finished with its investigation. If more than 180 days have gone by since you filed your complaint and the agency has not yet finished its investigation, you may also ask for a hearing at any time.

Complainants also now have the ability to file their hearing requests online through the EEOC Public Portal.

Navigating the EEO Complaint Process
Regardless of whether you are considering filing an EEO complaint or have already filed a complaint and are currently navigating the process, it is important that you are aware of the steps and timeframes in place so that you can make sure your case remains valid and comes to a proper resolution, either through agency determination or via a hearing.

If you or someone you know is currently considering filing an EEO complaint and would like to discuss their situation, Tully Rinckey handles all aspects of EEO/EEOC complaints and can assist you with forming your case and managing the multiple strict deadlines in these cases. 

Dedicated to fighting discrimination in the workplace, Stephanie has spent her entire career helping public and private sector employees overcome unlawful personnel actions based on factors such as their race, sex, national origin, disability, military service, and age. As a Partner at Tully Rinckey PLLC, she concentrates her practice on federal labor and employment law. She can be reached at info@tullylegal.com or at (888)-529-4543.



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