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| Default Judgment Against Agency for Failure to Produce ROI |
|
EEOC Regulation 29 C.F.R. § 1614.106(e)(2), § 1614.108(e) and (f) require the agency to complete
an investigation of a formal EEO complaint within 180 days of the filing of the complaint (unless the
parties agree in writing to extend the period for not more than an additional 90 days); or within 180
days of the filing of an amended complaint or 360 days of the filing of the initial complaint, whichever
is earlier; and to provide Complainant a copy of the investigative file.
§ 1614.108(h), furthermore, requires the agency to provide a copy of the complaint file to EEOC and, if
not previously provided, to the complainant within 15 days of receipt of the complainant’s request for a
hearing.
A default judgment is warranted when the agency failed to produce the investigation file. See
Reading v. VA, EEOC Appeal No. 07A40125 (Oct. 12, 2006) (upholding the Administrative Judge's
interim decision of default judgment in favor of Complainant). Germain v. EPA, EEO Appeal No.
07A10048 (Dec. 23, 2002) (upholding administrative judge's sanction of default judgment for failure
to timely file complaint file).
So, if you filed a formal complaint or amended complainant, and more than 180 days have lapsed;
and if you requested an EEOC hearing (as you can by that time--even if Agency did not produce ROI
within 180 days of investigation period); if the hearing request was copied to Agency EEO office; and
Agency failed to produce ROI to you and to forward it to EEOC within 15 days of Agency's receipt of
your hearing request; you may file a Motion for a Default Judgment Against Agency for Failure to
Produce Investigative File (and Report of Investigation).
Here is a template for filing a Motion for a Default Judgment Against Agency for Failure to Produce
ROI.
Here is an EEOC hearing request form. It should be mailed to the EEOC Office that has jurisdiction
over your Agency and copied to Agency EEO office. As stated above, EEOC hearing can be requested
any time after 180 days from the date of your formal EEO complaint or amended complaint (or if you
amended more than once, after 360 days from the first formal complaint file date, if the 360th day is
earlier than the 180 days from the last amendment filing.) Agency must notify your right to request
EEOC hearing when ROI is issued. Sometimes Agency does not issue ROI and does not issue the
notice, hoping that you will forget about it and move on with your life. This is in violation of above cited
rules and regulations. Without the notice and without the ROI, you may request EEOC hearing if the
above referenced days have lapsed.
Note that a Motion to EEOC cannot be filed unless an Administrative Judge (AJ) has been assigned
to your case; and you are so notified by EEOC.
Also note that AJ's usually give two or three chances for the Agency to produce ROI before even
considering your Motion. I know of only one case where Complainant filed the default judgment
motion (based on my website and without my representation) and received a default judgment order
against the Agency. He only had to attend the hearing to determine the damages. Because AJ
decided that discrimination he alleged occurred by default judgment.
Back to EEOC Hearing or to the updated Scheduling Order
an investigation of a formal EEO complaint within 180 days of the filing of the complaint (unless the
parties agree in writing to extend the period for not more than an additional 90 days); or within 180
days of the filing of an amended complaint or 360 days of the filing of the initial complaint, whichever
is earlier; and to provide Complainant a copy of the investigative file.
§ 1614.108(h), furthermore, requires the agency to provide a copy of the complaint file to EEOC and, if
not previously provided, to the complainant within 15 days of receipt of the complainant’s request for a
hearing.
A default judgment is warranted when the agency failed to produce the investigation file. See
Reading v. VA, EEOC Appeal No. 07A40125 (Oct. 12, 2006) (upholding the Administrative Judge's
interim decision of default judgment in favor of Complainant). Germain v. EPA, EEO Appeal No.
07A10048 (Dec. 23, 2002) (upholding administrative judge's sanction of default judgment for failure
to timely file complaint file).
So, if you filed a formal complaint or amended complainant, and more than 180 days have lapsed;
and if you requested an EEOC hearing (as you can by that time--even if Agency did not produce ROI
within 180 days of investigation period); if the hearing request was copied to Agency EEO office; and
Agency failed to produce ROI to you and to forward it to EEOC within 15 days of Agency's receipt of
your hearing request; you may file a Motion for a Default Judgment Against Agency for Failure to
Produce Investigative File (and Report of Investigation).
Here is a template for filing a Motion for a Default Judgment Against Agency for Failure to Produce
ROI.
Here is an EEOC hearing request form. It should be mailed to the EEOC Office that has jurisdiction
over your Agency and copied to Agency EEO office. As stated above, EEOC hearing can be requested
any time after 180 days from the date of your formal EEO complaint or amended complaint (or if you
amended more than once, after 360 days from the first formal complaint file date, if the 360th day is
earlier than the 180 days from the last amendment filing.) Agency must notify your right to request
EEOC hearing when ROI is issued. Sometimes Agency does not issue ROI and does not issue the
notice, hoping that you will forget about it and move on with your life. This is in violation of above cited
rules and regulations. Without the notice and without the ROI, you may request EEOC hearing if the
above referenced days have lapsed.
Note that a Motion to EEOC cannot be filed unless an Administrative Judge (AJ) has been assigned
to your case; and you are so notified by EEOC.
Also note that AJ's usually give two or three chances for the Agency to produce ROI before even
considering your Motion. I know of only one case where Complainant filed the default judgment
motion (based on my website and without my representation) and received a default judgment order
against the Agency. He only had to attend the hearing to determine the damages. Because AJ
decided that discrimination he alleged occurred by default judgment.
Back to EEOC Hearing or to the updated Scheduling Order