Amending Complaints

The regulation at 29 CFR Section 1614.106 provides that a complaint may be amended to add issues or claims that are like or related to claims pending the EEO investigation or EEOC hearing.  Like or related claims are those which add to or clarify the original claims and/or which could have been reasonably expected to grow out of the original claims.

You can amend your charge or file a new charge, if valid and timely, at any time before the Report of Investigation (see Formal Complaint Process) is issued, or after your case is accepted by EEOC for a hearing to be heard by an administrative judge (see EEOC Hearing).  Whenever you file, amended complaints must be filed within 45 days of occurrence of the events which you are claiming as discriminatory or retaliatory in your amended complaint.

There are two ways you can amend the complaints to include new or on-going incidents of discrimination that are related or stemming from the original incidents of discrimination you claimed previously:

1. After a formal complaint is filed; or
2. After an EEOC hearing is requested and a judge is assigned to your case (i.e., an Acknowledgment and Order was issued).

In either way, as already stated, the amended complaint must be filed within 45 days of the occurrence of the incident you are claiming as discriminatory and/or retaliatory in the amended complaint.

You may add "bases" at any time, beyond the 45 day jurisdictional time limits--even during the EEO investigation or even later during the EEOC hearing (if you requested and one is granted). For example, you can add "sex" to your race or age claim at any time beyond the 45 days of the incident which you originally claimed as discriminatory.  Of course, you cannot add any new incidents of discrimination/retaliation after 45 days of occurrence.  See "issues" and "bases" under How To Write Complaint to understand the important distinction between the two.

➤ Amending Complaints During the Investigation Period

Amendment to the existing complaint or amended complaint should be sent to Agency's EEO Director, not to the EEO counselor.  

Agency's EEO Director or the equivalent has discretion to decide either to accept your amended claim as an amendment to the existing claim which are under (the formal) investigation or to accept it as a new claim.  The criteria for accepting it as amendment are: that the claim is "like or related" to the existing claim under (formal) investigation; it adds or clarifies the existing claim; or it grew out of the existing claim.

If the new claim is accepted as an amended claim, you need not go through the 30-day pre-complaint counseling period with EEO counselor.  Your claim will be added to the existing claim as amendment and should be investigated.  

Amended claims will extend the investigation period for another 120 days from the filing date of the amended claim (and no more) or up to and no more than 360 days from the original claim file date, whichever is earlier.

If Agency fails to issue the Report of Investigation (ROI) with accompanying exhibit tabs after 180 days from the original formal claim file date, or after 360 days from the original formal claim file date or 120 days from the latest amended complaint file date, whichever is earlier; you should request an EEOC hearing by filling out EEOC Form Appendix N EEO-MD-110 and sending it to EEOC district or field office in your area and copying it to Agency EEO Director or the equivalent.  

By requesting an EEOC hearing (to be conducted by an administrative judge), you are forcing the Agency to produce the Report of Investigation/Investigation File, as EEOC will order the Agency to do so within 15 days of receipt of such an Order.  If Agency does not comply with the Order, it may be sanctioned, which may (but hardly) include a default finding against the Agency.  See EEOC hearings.

Otherwise, if you don't request a hearing (after 120 days of amended complaint or 360 days of the original formal complaint, whichever is earlier) Agency may sometimes sit on your claims without investigation and may wish that you simply disappear.  By requesting an EEOC hearing you are forcing the Agency to comply with the existing EEO rules and regulations to conduct objective investigation.

➤ Amending Complaints During the EEOC Hearing Process

To file a related claim from the original claim or to file a claim which is stemming from the original claim--and to do so after an EEOC hearing was requested and subsequently an Acknowledgment and Order was issued--you may amend the pending claim (which is assigned to the judge) by filing a Motion To Amend The Claim within 45 days of occurrence or earlier. (Judges like shorter time period such as within 30 days of occurrence.)

The Motion must be sent to the administrative judge (AJ) and copied to Agency counsel, if one is assigned.  See EEOC Hearing on how to file a motion.  You must argue and show in the Motion that the new incidents of discrimination/retaliation are related to or stemming from the original claims which are currently pending before the AJ.  For example, you must show that the new incidents of discrimination or retaliation are caused by the same decision maker(s) you referenced in your original complaint; or they are the same or similar types of events or related events that you referenced in your original complaint.  

If AJ grants your Motion, your new claims will be added as amendment or additional to the pending claims which are before AJ.  If the Motion is denied, the date of your filing the Motion (to AJ) would be deemed to be the date of your "initial contact" with EEO; and you should forward the Motion to the Agency's EEO Director to be filed as a new claim or as an amended complaint (if any claims are pending under investigation).  As stated above, the EEO Director has the discretion to accept it as amendment or as a new claim.  If latter, it will have a new agency case number.