As noted in our last blog post, the EEOC recently proposed a complete overhaul of the complaint process as we know it for federal employees looking to file EEO discrimination complaints against employing agencies. But, for the here and now, the EEO complaint process remains the same as it has historically been. So what exactly does that process consist of, and how does an employee looking to file a discrimination complaint get started? The following provides a flowchart of sorts of the federal sector EEO complaint process as we know it:
1. EEO Contact: Contact your agency’s EEO office within 45 calendar days of the discriminatory incident. Contact information for your agency’s EEO office should be readily available through resources such as your agency’s website and public bulletin boards around the workplace. If you cannot find information on how to get in contact with your Agency’s EEO office, utilize resources such as Union representatives, supervisors, and Human Resources to ask for contact information for your Agency’s EEO office.
2. ADR or Traditional Counseling: Choose either an attempt at resolution through the agency’s Alternative Dispute Resolution (ADR) process, or, if ADR is not offered or if you would rather not participate in ADR, choose “Traditional EEO counseling” to bypass ADR. Ordinarily, EEO counseling (also sometimes referred to as “pre-complaint” or “informal” counseling) ends within 30 days of initial EEO contact. If you elect ADR, pre-complaint processing can last up to 90 days.
3. Formal Complaint: File a signed formal complaint with the agency within 15 calendar days after receiving your Notice of Right to File. Identify yourself, the agency, and the complained-of discriminatory actions or practices; include a contact address, e-mail address, and telephone number where you can easily be reached. The agency then acknowledges the filing and determines which claims will be accepted to be investigated; it may dismiss claims on specified grounds. An entire-complaint dismissal leads directly to final agency action and the review options in step 7.
4. Investigation: The Agency has 180 calendar days from the date of your formal complaint to complete an investigation into the accepted claims of discrimination. The Agency is also responsible for providing you with the investigative file – called a Report of Investigation (ROI) – within 180 days after the formal complaint. Written extensions and amended-complaint rules can prolong the 180-day period. If the agency does not complete the process on time, you may request an EEOC hearing after 180 days from filing, or consider the district-court route in step 8.
5. Choose a route after receiving the investigative file and election notice:
- EEOC hearing: Request a hearing from the designated EEOC office or through the EEOC Public Portal within 30 calendar days of receiving your Report of Investigation (ROI); send a copy to the agency EEO office. If you elect to request a hearing, an EEOC Administrative Judge handles the case and issues a decision. The Agency issues a Final Agency Decision (FAD) (also sometimes called a “Final Order” or a “Final Action”) within 40 calendar days after receiving the EEOC Administrative Judge’s decision. If it does not, the judge’s decision becomes the agency’s final action.
- No hearing: If you do not request a hearing within the 30-day time period, or if you elect to receive a Final Agency Decision instead of a hearing, the Agency that your EEO complaint is filed against will eventually issue a Final Agency Decision (FAD) (also sometimes called a “Final Order” or a “Final Action”) making a decision on whether discrimination took place based on the evidence contained in the Report of Investigation (ROI).
6. Receive final agency action (final order after an administrative judge’s decision, final agency decision without a hearing, or dismissal of the entire complaint). Read its appeal and lawsuit notices.
7. Choose review after final agency action:
- EEOC appeal: File your Notice of Appeal within 30 calendar days of receipt of the agency’s final action or dismissal. You then have another 30 calendar days from the date you filed your Notice of Appeal to file a Statement in Support of your Appeal (a written argument for why the EEOC should grant your appeal). The EEOC Office of Federal Operations (OFO) issues an appellate decision. A party may request reconsideration within 30 days of receipt of that decision.
- Federal district court instead of an appeal: File a civil action in federal district court within 90 days of receipt of the agency’s final action. Note: Our law firm specializes in the administrative processes unique to federal employees. We do not handle discrimination lawsuits in federal district court.
8. Other district-court entry points: You may file in federal district court after 180 days from filing the formal complaint if the agency has not taken final action; within 90 days of receipt of the EEOC’s final appellate decision; or after 180 days from filing an EEOC appeal if the EEOC has not issued a final decision. Filing suit affects any pending administrative complaint or appeal. Note: Our law firm specializes in the administrative processes unique to federal employees. We do not handle discrimination lawsuits in federal district court.
Important fork — mixed cases: If the challenged action is appealable to the Merit Systems Protection Board (MSPB), you may have to elect either an agency mixed-case EEO complaint or an MSPB mixed-case appeal first. An agency mixed-case complaint follows different procedures: no EEOC administrative-judge hearing in the ordinary route, and an agency mixed-case final decision is appealed to the MSPB, not directly to the EEOC, generally within 30 days of receipt of a final agency decision. A negotiated grievance procedure can also affect forum election.
Deadline reminder: This is a quick-reference chart, not a substitute for the agency’s notices or advice about a particular claim. Different rules may apply to mixed cases, class complaints, age-discrimination direct suits, negotiated grievances, and deadline extensions.
The foregoing statements and recommendations are generalities that do not constitute legal advice. If you have a specific problem in your federal employment that you would like to discuss in more detail with one of our attorneys, please call our office at 757-460-3477 to schedule a consultation.