EEO Investigations, Part 2 of 2: Think About the End Before You Amend When it Comes to EEO Complaints

Any time a federal government worker is thinking about filing an EEO complaint, some of the most significant considerations involve the potential relief or remedy you could receive if you are successful in your EEO complaint.  Two of the most important questions to ask yourself are: (1) What do I want to happen as a result of my EEO complaint? and (2) What relief am I likely to get if I succeed in my EEO complaint?  An attorney specializing in federal employment law can likely assist with the second question, but only you can answer the first question.  If you have already become involved in the EEO complaint process and are considering filing an amendment to your EEO complaint based on subsequent discrimination against you, it is important to once again consider these two questions.

When trapped in a difficult work environment, it may seem like second nature for a federal employee to pick up the phone and call the EEO office whenever a possible discriminatory act is taken against them.  Federal employees certainly have the right to file EEO complaints when they feel that have been subjected to unlawful discrimination, and the EEOC takes the prohibition against reprisal for engaging in EEO activity very seriously.  However, it is important to consider your ultimate potential relief for each issue prior to amending an existing EEO complaint.

Within the federal government, EEO contact must be made within 45 calendar days of the discriminatory action, even if you already have an ongoing EEO complaint as to a previous matter.  If you have previously initiated EEO contact based on discrimination, and a subsequent discriminatory action is taken against you, you have the right to seek to amend your EEO complaint to include the subsequent discriminatory action.

In some cases, the employee is left with virtually no choice but to amend his or her EEO complaint.  As an example: an employee files an EEO complaint based on a discriminatory performance appraisal, and, while her EEO complaint is being investigated, she is subsequently reassigned to undesirable duties outside of her position description. If the employee (the “complainant”) amends her EEO complaint to include the issue of being tasked with undesirable duties, she will be able to request to have the reassignment canceled or reversed as potential relief through a successful EEO complaint.  By amending her complaint during the investigation stage, the complainant typically implicitly agrees to extend the timeframe to have her EEO complaint investigated.  Normally, the Agency is allowed 180 days after the date of the Complainant’s formal complaint of discrimination to investigate the complaint (see Part 1 for a discussion of the 180-day investigation timeframe).  However, if a Complainant amends her complaint, the Agency is typically afforded an additional 180 days after the date of the amendment to complete its investigation.  Specifically, when an amendment is filed, the Agency is required to complete the investigation within the earlier of 180 days after the filing of the last amendment or not later than 360 days after the filing of the original formal complaint of discrimination.  Amendments can therefore lead to delays in the EEO process by allowing the Agency more time to investigate.

For some people and in some situations, being able to amend their EEO complaints to include a subsequent discriminatory action is worth the extended investigation period.  In the example of the complainant who was subjected to the undesirable reassignment, if she did not amend her EEO complaint, she would not have the right to seek a reversal of the reassignment as part of her relief through the EEO process.  However, in a case where the subsequent discriminatory actions are not as egregious, there may be limited additional relief that can be awarded, or no additional relief at all, if the EEO complaint is amended.  It is therefore important to think seriously about what your additional relief may be when deciding whether to amend your EEO complaint to include a new issue.  If your ultimate decision is to amend your EEO complaint based on a new discriminatory incident, make sure to file the amendment within 45 calendar days of that new discriminatory incident.

If you are engaged in EEO activity, are considering filing an EEO complaint, or are considering filing an amendment to an existing EEO complaint and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.