Informal and Formal EEO Complaint Process for federal employees
Each federal agency has its own Equal Employment Opportunity office, staff by EEO counselors, EEO investigators (usually subcontractors), and EEO manager/director.
Every claim of discrimination must be filed with EEO counselor within 45 days of (the knowledge of) the occurence of the event alleged to be discriminatory.
Every claim of unlawful discrimination must contain the “issue” and the “basis” or “bases” of discrimination.
Examples of “issues” are: termination/removal, suspension, warning, performance rating, denied accommodation, denied bonus, denied leave request, denied selection or referral to the selecting official, denied transfer, denied appointment, involuntary assignment, involuntary resignation, etc.
Examples of “bases” are: race, color, national origin (including ethnicity or ancestry), sex (including pregnancy, sexual orientation, and transgender status), religion, age (40 or older), disability, and gender information.
Examples of discrimination claim are as follows:
Based on my race (Asian), I was suspended for 5 days starting on November 12, 2025.
Based on my race (Asian) and sex (Male), on or about November 12, 2025, I (learned that I) was not selected for the position of Assistant Manager, Office of Resolution Management, U. S. Department of Veterans Affairs.
Based on my prior EEO filing (on November 1, 2024, EEO case number: 243-444467), my request for transfer was denied on November 12, 2025 by my first-level supervisor John Dow, Director, Midwest Region. (This is a retaliation claim.)
Each claim/allegation (as above) must be numbered. If you don’t know how many claims you have in your case, you have not correctly written your complaint. Submit your written complaint to your EEO counselor, even though the counselor will tell you that the process is “informal.”
You must be able to prove the date of your “initial contact” with your EEO counselor, if the 45-day jurisdictional timeline is in question. If you did not identify “issues” and “bases” of your complaint when you initiated contact with EEO counselor, your contact may not be deemed as a proper “initial contact” for the purpose of tolling the 45-day time limit—all the more reason to “initiate contact” with your counselor with email with a completely written complaint with numbered claims/allegations, as examplified above.
See “Acts of Harm” below for more. Also see How to Write a Complaint for more detailed information.
EEO counselor must accept federal employee’s complaint of discrimination, including retaliation claims. He or she has no authority to determine if you “have a case.” His or her job is to accept your complaint and try to resolve it by mediation at the lowest possible level or soonest. And if the matter is not resolved, the counselor must issue you a Notice of Right to File (your formal EEO complaint) within 30 days from your “initial contact”—unless you grant the counselor an extension. I advise you not to grant any extension, unless good cause shown. If you want to grant an extension, you determine how many days to grant. The counselors routinely ask for the maxim 60 additional days—for no reason.
29 C.F.R. § 1614.105(g) requires that “[t]he Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint.” Do not be surprise, if the counselor dissuades you from filing an EEO complaint. That is a violation of the regulation just cited.
EEO counselor must provide you with the option to mediate and settle the matter you raised. “Mediation,” “Arbitration Disputer Resolution (ADR),” or otherwise called “settlement” is optional. You can decline mediation.
In fact, you should decline mediation when a counselor offers it, because counselors are usually not neutral (despite the claim to be otherwise), and because the in-house attorney (for the agency) and the managers may use the mediation as a “discovery” tool. They may try to discover what evidence you have without any intention to settle or mediate in good faith. If you are discussing the merits of your case (i.e., evidence, what happened, etc.) at the mediation, you are wasting your time. Instead, you should be mostly talking about specific terms of settlement agreement at the mediation: what you want the management to do for you to resolve the matter and to recover the damages you sustained. If you lost wages, for example, ask for the lost wages in specific dollar amount at the mediation or, better, prior to mediation. If you are not selected for a job, ask for your placement in the position you sought with lost wages (in salary differential, if applicable) and benefits in specific terms (i.e., location, dollar amount in lost wages or salary differential, etc.).
A settlement demand without specific, enforceable terms is useless. Each settlement term must be itemized with specific justification, such as the calculation you used to arrive at the certain dollar amount of loss.
EEO counselor must issue you a Notice of Right to File at the end of the 30-day counseling period (unless extended for ADR), per 29 C.F.R. § 1614.105(d).
If EEO counselor failed to issue you a Notice of Right to File within 30 days of your “initial contact” with him or her (unless you granted an extension of the 30-day counseling period) in violation of 29 C.F.R. § 1614.105(d), you can proceed to file a formal EEO complaint even without the Notice of Right to File.
➤ Acts of Harm
Writing a clear and effective complaint is half of the battle. You must know the Issues and Bases of your complaint. You must be able to count the number of allegations in your complaint. Each allegation should contain no more than one “act of harm.”
An “act of harm” is what your supervisor did to you or failed to do to you. Removal, suspension, warning, low rating, negative employment reference, etc. are what your supervisor or the management official did to you in adverse employment action. There are called positive “acts of harm.” Denied accommodation, denied leave, denied bonus, denied transfer, denied telework, non-selection, non-referral for job interview, etc. are what your supervisor or selecting official fail to provide. These are called the negative “acts of harm.”
Allegations of discriminatory acts of harm must be factual. If any claimed events have no dates of occurrence, they are not factual. If any have no full names and job titles, they are unclear and incomplete. Always provide a full name and job title of the managers (unless repeated subsequently). Always provide the year (unless repeated subsequently).
When you contact EEO counselor, you must submit in writing a complete, full EEO complaint. If a complaint has the following elements, it is complete (whether they are written in the Agency’s EEO intake form or not): You name, your contact information, issues and bases (preceded by: “I want to file a complaint of discrimination as follows:”), a list of claims, your signature and date following a declaration. A sample of declaration is: “I, the undersigned, hereby declare under the penalty of perjury that the above is true.”
➤ Initial Contact with EEO Office
Initial contact with EEO counselor must be made within 45 days of (your learning of) the occurrence of the event you allege as discriminatory or retaliatory.
A phone contact with EEO office is not advisable. Contact via fax, email, or by mail with tracking number is desirable. When you contact, make sure that you can identify “issues and basis” clearly to avoid possible dismissal later. You must be able to prove the date of your making the “initial contact” with EEO counselor, if and when the timeliness of the contact becomes an issue later on.
Within 45 days of the “act of harm,” the EEO office must be contacted (preferably by email with “issues” and “bases” articulated clearly, numbered, and succinctly).
If the federal agency requires you to file via online, take a screenshot before moving on to the next screen, so that you have a record of your filing. Take screenshots of your “claims” and “bases” and of the date of submission.
Do not argue with or try to prove your case to the EEO counselor. Simply submit a list of “acts of harm” with dates, names, and corresponding and applicable “bases.”
Do not provide evidence to the EEO counselor. He or she may not forward those evidence to the EEO investigator later.
If you signed up for a mediation, do not present your evidence there. Nothing is recorded; and nothing presented at mediation can be use later during the investigation or at the EEOC hearing (if hearing is requested after ROI is issued—See EEOC hearings).
➤ EEO (final) Counseling/Notice of Right to File a Complaint of Discrimination
Mediation, if elected, will automatically extend the 30-day counseling period to a 90-day period in total. Mediation is not advisable, as Agency usually does not seriously negotiate at this stage of federal EEO process. Choose “traditional counseling” to avoid mediation. See below for more on Settlement & Mediation.
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➤ Filing a formal EEO complaint
Within 15 days of receipt of the Notice of Right to File from your EEO counselor, you must submit a written, formal EEO complaint to the Agency EEO headquarter’s office. The Notice should indicate where and how to file. It will also attach a formal EEO complaint form. Attach your affidavit to articulate “issues” and “bases” along with the necessary background information. Be succinct. Each claim (lasting no more than two sentences) should be numbered as a separate paragraph. Avoid writing a novel. No one has time or patience to read such a complaint.
The 180-day EEO investigation period begins from the date you file a formal EEO complaint.
Report of Investigation/Investigation File must be issued by federal agency’s EEO Office within the 180-day investigation period, unless you granted an extension. Do not give any extension, unless good cause shown. See Formal Complaint Process below for more.
➤ Acknowledgment of Receipt of the formal Complaint
Within 15 days of filing a formal Complaint, the agency’s EEO office must issue a letter of acknowledgment of receipt.
➤ Notice of Acceptance or Partial Dismissal of Claims - Issued by the EEO Director/Manager
Within 30 days of filing a formal EEO complaint, the agency’s EEO director/manager must issue a notice of acceptance or partial acceptance/dismissal of your claims (for investigation). This is the most important document in your case, as it will be referred to later by the EEO Investigator and by EEOC administrative judge (AJ).
If you filed an amended complaint, the similar notice of acceptance and partial dismissal must be issued to identify the original and amended claims for investigation.
Any dismissal or incorrect identification/articulation of your claims must be rebutted for the record.
➤ Rebuttal of Dismissal of the Claims or Correction of the Claims identified by the agency
Within 5 or 7 days of receipt of Notice of Acceptance/Partial Acceptance and Partial Dismissal, you should rebut any dismissal of your claims, if any. If a claim is dismissed by EEO director, argue why it was timely or why an equitable tolling should apply (by showing why the untimely filing was due to the circumstances beyond your control). If any claims are incorrectly identified or misrepresented in the Notice, you must rebut the error and provide in writing the correct articulation (with correct date, name, title, event, etc.).
“Suspension,” “denied leave,” etc. are not “harassment” or “hostile work environment.” They are each discrete event (of discrimination) and must be so articulated in the complaint—and not as “harassment.”
Try to avoid using the word “harassment,” even though it is easy and convenient to refer to discrete events as such. Such a word only muddies the water in your complaint.
Unclear allegations aide the agency’s defense, as attorneys or managers (advised by the in-house attorneys) will exploit the ambiguity in your complaint to agency’s advantage. Insert date in almost every sentence or refer every document by its date (as appropriate). For example, “the June 15, 2024 suspension notice mentions nothing about Complainant’s conduct….” Or, “when John Doe, my supervisor, called me into his office on June 15, 2024…..,” instead of “when my supervisor called me into his office….”
➤ Assignment of the Investigator
Agency’s EEO director should assign an investigator to your formal EEO complaint within the first three months of your filing the complaint. Usually, however, an investigator will be assigned to your case toward the end of the 180-day investigation period. In that case, do not give an extension. Shortly after 180 days of your filing a formal EEO complaint (or amended complaint), you should request EEOC hearing at https://publicportal.eeoc.gov/Portal/Login.aspx. As a federal employee, you have a right to a hearing at EEOC (180 days after filing your formal EEO complaint or amended complaint). You also have a right to file a civil action complaint at U.S. District Court, instead of requesting EEOC hearing. See USDC for more information.
➤ EEO Investigative Affidavit Questionnaire
Response to the EEO investigative questionnaire should be submitted within 15 days of receipt—the usual deadline set by the EEO investigator. But the 15-day deadline can be extended upon a written request, showing good cause.
Submit your supporting docs even if the investigator does not ask for them. Leave a record of your submission with itemization of docs to ensure their inclusion in the Report of Investigation (ROI), which will be compiled by the Investigator and by the EEO Office.
Sometimes crucial docs are scattered widely in the ROI; or displaced, misplaced, or even omitted from the ROI—inadvertently or not.
➤ Compiling Evidence
Evidence or documents in support of your claims should be submitted to the EEO investigator, not to the EEO counselor.
EEO investigator may not ask you to submit evidence. You must submit, nonetheless.
EEO investigator will send you an EEO investigative affidavit questionnaire for you to respond in writing. (U.S. Army EEO investigators usually schedule a live fact-finding conference in which you need to respond in person (via phone or face-to-face).
With your written responses, you should also submit documents in support of your claims.
Submitted documents should named by date, followed by the name of doc, such as “20240615 suspension for 5 days.pdf.”
By naming docs with dates first (starting with year, month, day - without space in between), the docs will line up chronologically in your hard drive.
Once the docs are chronologically ordered, you can combined them all into one PDF.
Once the docs are combined into one PDF, you can bates number each page on the left bottom margin/corner. Any PDF editor can perform this function. Purchasing Adobe Acrobat Pro or downloading other free PDF editing app is advisable.
Bates numbering on each page of your supporting docs (for submission to the EEO investigator) is advisable, because the Agency EEO office may omit certain docs you submit—intentionally or otherwise.
If the combined support PDF is too large for email transmission, split it into parts so that each part will not exceed 10 Mb in size.
Keep record of your email transmissions, just in case the investigator denies ever receiving your submissions.
Your objective is to put as many evidence in the ROI as possible. The investigator is not your advocate. The EEO director, who will issue the ROI, is not your friend. He or she is paid by the agency you are filing against.
➤ Rebutting the Management Affidavits
The EEO investigator should provide you with an opportunity to rebut any false or misrepresentation made by the management officials. You should be provided with their EEO investigative affidavit responses.
Rebut each management affidavit by briefly citing or paraphrasing their statement/misstatement and rebut by providing corrections or your side of the story.
Submit your rebuttal affidavit to the EEO investigator with any additional evidence/docs in support of your rebuttal.
➤ Issuance of the Report of Investigation (ROI), also known as the Investigation File (IF)
Within 180 days of filing a formal complaint, the Report of Investigation (ROI) must be issued by Agency’s EEO headquarters’ office, unless the 180-day investigation period is extended by Complainant. Do not grant the extension, unless good cause shown.
Investigator writes a summary of what is contained in the ROI. The summary is also called Report of Investigation (ROI). The exhibit tabs containing the records and affidavits are called the Investigation File (IF) or also “ROI.” Both are referred to as ROI/IF or simply as ROI.
The EEO investigator does not, cannot, and should not make a decision as to whether or not unlawful discrimination occurred, as you alleged in your formal EEO (amended) complaint. If his or her role is represented otherwise, he or she is misleading you. ROI is not and cannot be a decision. It is not even a finding of facts. It is only a gathering and summary of what has been gathered during the investigation and compiled in the ROI.
If the ROI is not issued within 180 days of filing a formal (amended) complaint, request EEOC hearing. Doing so will expedite the belated issuance of the ROI.
➤ Requesting EEOC Hearing or Final Agency Decision
Within 30 days of receipt of the ROI, EEOC hearing must be requested. Go to EEOC to do so. You can also file a civil action complaint at U.S. District Court, in lieu of requesting EEOC hearing. See USDC. If you want to file a civil action complaint, you must file it within 90 days of receipt of the ROI.
Mediation after issuance of the ROI is not advisable.
Mediation attempt is required by EEOC administrative judge (AJ) prior to the Initial Conference with AJ. See EEOC hearings.
Disclaimer
Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
Mr. Lee does not practice law and cannot provide attorney-client protection privileges. However, as any union shop steward can, Mr. Lee can also represent federal employees at any administrative proceeding including those referenced above.
Mr. Lee cannot and does not represent clients at court proceedings such as US District Court, US Court of Appeals, and US Supreme Court.