© Copy right by EEO 21, LLC
275 East Street Road, #27, Feasterville, PA, U.S.A.
e.puuuuu
FAQ for federal employee complaints
FAQ for private sector complaints

    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.  See EEOC hearing process.

    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.  See Discovery
    Requests.

    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).  See EEOC 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.

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?


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.  See EEOC Statistics.

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 repercussions 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.  See EEOC Statistics.

    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.
EEO 21
LLC
    EEOC hearings
    EEO representation
    MSPB appeal hearings
    Federal employment discrimination specialist