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. SeeReading 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).

Below is a template for filing a Motion for a Default Judgment Against Agency for Failure to Produce ROI.

Below 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.

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 represent federal employees at any administrative proceeding including those referenced above.
• Mr. Lee cannot and does not represent clients at court proceedings.