© Copy right by EEO 21, LLC 148 East Street Road, Suite 321, Feasterville, PA, U.S.A. |
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"). (See a blank complaint form for the Army.) You have 15 days (from the date of your receipt of the form) within which to submit your formal complaint. See How To Write a Complaint.
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 your right to file a formal complaint. (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.
if new issues are related to or stemming from the ones you have filed. Forward the request for amendment (with clearly identified new allegations) to both the EEO headquarter and EEO investigator (if one is assigned to your case). You can amend your complaint until Report of Investigation (ROI) is issued. Or, if you requested an EEOC hearing (after receiving ROI), after you receive the Acknowledgement and Order from the EEOC administrative judge, you can file a motion to the judge to amend your claims (to add the new incidents of discrimination or retaliation). See EEOC hearing for how to file a motion.
the existing (formal) complaint to add the new issues. You need not contact the EEO Counselor to amend your existing (formal) complaint. However, if the new issues are not related to or stemming from the issues you have already filed (formally), they cannot be added to the existing complaint as amendment. You need to contact your local EEO Counselor or--if you are a US Postal worker--you need to file your "Pre- Complaint" (complaint) to EEO Headquarters. When in doubt, send your new complaint to EEO Headquarter and let the HQ decide whether the new complaint needs to be amended to your existing claim or needs to be filed as a new claim with new case number. If it needs to be filed as a new claim, you need to contact the EEO Counselor and undergo the pre-complaint or informal complaint process.
180 day investigation period (from the date of your formal complaint) will be suspended to allow the grievance process to occur and to be exhausted and the investigation will resume only after grievance process is completed without resolution. Grievance therefore will extend the investigation period. It does not nullify or eliminate the discrimination complaint. It only suspends the investigation. If the investigator asks for an extension, do not grant it. Granting it only gives more time to the Agency to defend against your charges. 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.'
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.
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. See a sample of document request (Word Doc).
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. 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 is no longer involved.) 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 Investigative Report (IR). See below.
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).
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 to do so. You have the right to be represented when the investigator talks to you. 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 Defense, the EEO investigator may hold a fact-finding conference to take your and witnesses' statements, all recorded by a stenographer. The Agency attorney may be present at the fact- finding conference, and can question and cross examine you or the witnesses. 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 an contracted EEO investigator is about $2,500. The figure for internal Agency EEO investigator is about $5,000 or more.) EEO investigator has no authority to render a judgment on your case. But one usually favors the Agency's defense. 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 deceits that may have been uttered by the management in the fact- finding conference or in the 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. See Forms for sample of affidavits. The EEO investigator submits the Report of Investigation (ROI) or Investigative File (IF) to the Agency; and the Agency is required to produce and serve you the same within 180 days of your filing the Formal Complaint. The Agency may request additional 90 days to complete the investigation and to issue ROI. As stated above, after 180 days of your formal complaint, you have a right to request a hearing before an administrative judge at EEOC, whether or not ROI is issued to you. Or you can file at the court. (See below for more on ROI.)
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. 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. See an actual 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.
(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 Investigative Report (IR): This (1 to 5 inches or more) thick folder contains the Report of Investigation written by the EEO investigator, the affidavits (including yours, managements, and witnesses, if any), documents gathered in the course of investigation. Usually, documents pertaining to the 'similarly situated individuals' are missing or inadequately gathered. (Note that discrimination is proven by comparing your self to the 'similarly situated individuals.') Examine the entire ROI carefully. The valuable documents to your case may be placed in the back or under the wrong tab. Also check to see that ROI contains evidence or statements you submitted to the investigator. (Evidence you submitted to the EEO Counselor may not be in ROI.)
hearing was not requested. If a hearing was requested, the judge's decision will be incorporated in the FAD. The Agency is required to send you the Report of the Investigation (ROI) along with all documents therein, along with the notice of your right to request a hearing (to be held before an administrative judge at EEOC). Advice: Keep the Report of the Investigation (ROI) intact because the pages and the tabs can be referred to later at the EEOC hearing (if requested and held) or in your written appeal to the Office of Federal Operations (OFO) in Washington, D.C. (See Appeal to OFO). 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 an 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 during the EEOC hearing process.
option to waive your right to request an EEOC hearing and wait for Final Agency Decision on your case. 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.'). See EEOC hearing for more on discovery rights. 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 instead (without a hearing).
into the Final Agency Decision. The Final Agency 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) or new brief to Agency EEO headquarters to be considered before Agency issues the Final Agency Decision (FAD). Or you may want to rebut the judge's decision by presenting a brief containing summary of facts, arguments, evidence (or reference to evidence in ROI) to Agency EEO headquarters to be considered before Agency issues the FAD. See a sample of a brief. If you do, you want to request that the judge's decision not be implemented in the FAD.
Final Agency Decision (FAD) will be issued. You can appeal the FAD to the Office of Federal Operations (OFO). Disclaimer: All information contained in this page is subject to change and updates. EEO 21 is not responsible for any errors or misrepresentation. |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
MSPB & EEOC hearings, OFO appeals, informal and formal discrimination claims Non attorney uniquely serving nationwide from Philadelphia |
| Formal Complaint Process |