Formal EEO Complaint Process for Federal Employment Cases

Once you have filed an informal complaint and after the mediation or Alternate Dispute Resolution (ADR) has failed (if you requested ADR), your local EEO counselor should inform you that the mediation/ADR failed and should give you the notice of the right to file a formal complaint along with the formal complaint form ("Formal Charge of Discrimination"). You have 15 days (from the date of your receipt of the form) within which to submit your formal complaint.

Class action complaints must undergo an informal EEO complaint process but need not undergo the formal EEO process. 30 days after contacting the EEO counselor, the Agency must forward the class complaint and the Counselor Report to the Equal Employment Opportunity Commission (EEOC) for class complaint certification and hearing.  See 29 C.F.R. §1614.204 for filing Class Complaints.


➤ Filing a Formal Complaint of Discrimination

Submit the formal complaint form to the central EEO Office (or headquarters) of the Agency.  The address is provided in the Notice of Right to File (a formal complaint issued by your EEO counselor).  (Each Agency has its own EEO headquarter in different location throughout the United States). The post stamp date or fax date is your filing date.

Note: If you did not allege with your EEO counselor a claim/act of harm (an action done or omitted by management), you cannot file it on your formal EEO complaint. All EEO claims must be first filed with your EEO counselor. Any request to amend your formal complaint (already filed and docketed)—so that you can add a new claim—must also be filed with EEO counselor (not with your EEO investigator).

Sample of court Complaints are available for purchase at the STORE.


Advice:

Submit the formal complaint form with your affidavit as an attachment.  Since the formal charge form is a one page sheet, there is not enough space to articulate clearly and sufficiently your issues and bases. Therefore, in the box where it asks 'How were you discriminated?' you can put: 'See attached my Complainant Affidavit dated ....'  You can do the same with respect to the question regarding the 'remedy.'


➤ It is better to submit evidence and the witness list to the EEO investigator, after the investigator is assigned to your case. If you send them along with the Formal Complaint form to the EEO headquarters, they may lose them. Submit all relevant documents and witness statements to the EEO investigator - whether asked or not - because whatever you submit to the EEO investigator should and must become part of the Report of Investigation (ROI), which the investigator will compile and submit to the EEO headquarters at the completion of investigation.  Agency is obligated to complete the investigation and issue you the Report of Investigation within 180 days of your filing the Formal Complaint.  ROI will become the only record Agency will review in issuing the Final Agency Decision, if you did not request an EEOC hearing and if there is no EEOC administrative judge's decision in the case.  If the hearing was requested and held, and if the judge's decision was issued, then the ROI and the judge's decision may be the only records the Agency may consider to issue its Final Decision.

Under the Freedom of Information Act (FOIA), you have the right to request your agency to produce documents relevant to you case.  This may be the only tool of discovery you have in the EEO process (unless you request an EEOC hearing after 180 days from filing a formal complaint).  The discovery tool under FOIA should be used well in advance however, as the Agency may drag its feet in responding to your requests.  When requesting, be very specific and time bound.  Name the documents or describe them as much as possible with specific date range.  Many requests are responded to by the Agency trying to understand or pretending to not understand what was requested.  In other words, don't request for any and all documents ranging over 10 years or with no date range specified. 


➤ Agency is obligated to issue you the Report of the Investigation (ROI) or the Agency Investigative File (AIF) within 180 days of your filing the formal complaint, unless you have granted an extension to the investigator, on unless you amended your complaint, in which case the clock re-starts from the time of your filing the amended complaint (not to exceed a total of 360 days).

If Agency did not issue you a ROI within 180 days of your filing a formal EEO complaint or, if you granted an extension, after expiration of the extended investigation period, you can force the Agency to issue a ROI by requesting an EEOC hearing. Once you request hearing, the EEOC will order the Agency to produce the ROI within 15 days. If Agency fails to produce it as ordered, the agency can be sanctioned, including issuance of a default judgment against the Agency. EEOC usually grants several extensions to the agency or issue several warnings before issuing a default judgment as sanction. You will find that EEOC administrative judge (AJ) is very lenient toward the agency.


➤ Acceptance or Rejection of Your Claims

The agency’s central EEO office/headquarters will acknowledge receipt of your formal EEO complaint and will notify you as to which, if any, allegations are accepted or rejected for investigation.  This letter of notice is very important. Later, EEOC administrative judge (AJ) will read off from the list in the letter to identify and to confirm the pending claims that the AJ must adjudicate.

In many cases, the accepted issue identified and articulated by the Agency’s EEO director/manager may not look like what you wrote in your formal EEO Complaint at all. Or, sometimes the most important issues/allegations may be missing or may be rejected for various reasons.  The most frequently cited reasons for rejection are: 'failure to state a claim' (where issues are not clearly defined or where no real (“tangible”) damages can be calculated), 'untimely filing' (where you have missed the 45-day jurisdictional time limits within which to initiate a contact with the EEO counselor to allege discrimination in order to begin the informal complaint process), and 'lack of jurisdiction' (where “bases” are not identified). It is very important that you write clearly and succinctly your allegations and do so with specific dates on each incident of discrimination you allege. Avoid writing a complaint in a narrative style.  EEO office is not interested in your story but only in identifying each and every allegation/claim. See issues and bases. Also see how to write a complaint as well as Amending Complaints.

You have 5 to 15 days (depending on Agency’s EEO policy) to dispute the dismissal of any or all of your EEO claims/allegations. Some agencies do not allow you to rebut EEO office’s partial dismissal of your claims. You should still rebut in writing, so that a record of you doing so is left and is inserted in the Report of Investigation that the EEO investigator will compile for the Agency’s EEO office.

Advice:

Rebut any rejection of your valid EEO claims, even if the claims may still be rejected afterwards.  Because once you have rebutted Agency’s dismissal of your claims, it is easier to challenge Agency's rejection later on at the EEOC hearing (if you are going to request hearing, which you can do 180 days after you had filed a formal EEO complaint (unless you extended the investigation period or filed an amended complaint.)


➤ EEO investigation and/or fact-finding conference/interview

An EEO investigator will be assigned to your case by the Agency (and paid for by the Agency).  Your local EEO counselor will no longer be involved hence forth.  The EEO investigator has 180 days (from the date you filed a formal EEO complaint) to complete the investigation and to compile a Report of Investigation (ROI), aka Investigation File (IF), Investigation Report (IR), or Agency Investigation File (AIF). See §1614.106(d)(2).  See below for more on ROI.  

EEO investigators are not authorized to determine merits of your case.  They cannot and should not render a decision as to whether unlawful discrimination/retaliation had occurred.  Posing to render such a pronouncement should be rejected as unauthorized. Do not be intimidated by haughtiness of the investigator, if one is, who often pose himself/herself as playing a decisive role in the outcome of your case.  They are not a decision maker on your case. Only an EEOC administrative judge can make a determination, if you had requested a hearing; or otherwise only the agency EEO headquarters can issue a Final Agency Decision (FAD) on your case. 

The role of EEO investigator is limited to gathering relevant and material information and records and to compile a Report of the Investigation (ROI). ROI contains the investigator’s summary (which is also called Report of Investigation), affidavits (provided by you the Complainant, the management officials, and by the witnesses) and the exhibits submitted in support of respective affidavits. The EEO affidavits generated by the investigator are generally referred to as “investigative affidavit” or “investigative questionnaire.”

After you receive ROI, make sure that the evidence you submitted to the investigator are found therein. Sometimes, inadvertently or not, key evidence is omitted from the ROI or scattered apart all over the 500 to 1,000 or more pages of the ROI. If you can and if your evidence is more than 30 pages, bates stamp each page in PDF, so that no pages could be omitted, or any omission can easily be detected when you review your ROI after you had received it.

I have heard many claims the investigators make that are clearly in deviance or distortion to the rules and regulations governing the federal EEO process, such as the following statement: "You have no chance of getting your case heard at a hearing later on because your case could be dismissed by the judge when the Agency files a motion for dismissal."  This could be true (and is often the case) but what is missing in this statement is the fact that the EEOC administrative judge (AJ) can also rule in your favor based on what is available in the record without hearing, if you file a motion for summary judgment or motion for a decision without hearing.  It is rare, however, that EEOC AJ will render a summary judgment in your favor.  It is more likely that AJ will grant Agency's motion for summary judgment in Agency’s favor, even if your opposition to the motion was strong. See more in EEOC Hearing. In any event, the investigator has no business to tell you or has knowledge of EEOC hearing processes. Again, the role of an investigator is to gather information and docs to compile and submit a Report of Investigation (ROI).  

You have the right to request EEOC hearing to be heard by an administrative judge 180 days after your filing a formal EEO complaint, regardless whether or not the Report of Investigation is issued to you. (EEOC hearing request form). The Agency will request you to grant an extension of 60 or 90 days to complete investigation. The extension is not usually intended to grant YOU more time to present your case to the investigator. Rather, it is designed to grant the investigator (and possibly the Agency) more time to prepare the Report of Investigation (or more time to defend against your allegations).  If you could not submit your response on time to EEO investigator’s questionnaire, you may consider granting some extension—but not the full 60 or 90 days. Grant less.


Advice:

Don't grant any extension because: (1) it only helps the investigator or Agency to come up with better prepared defense (pretext for discrimination); and (2) because  -- later when you request an EEOC hearing without receipt of ROI -- the Agency will be forced to compile and submit the Report of Investigation (ROI) to the judge as required.  If the Agency fails to submit the ROI within the time frame set forth by the judge (usually within 15 days), the judge can issue a default judgment against the Agency (your motion for such a judgment will help the judge to do so).  If that happens, you could win by default. See an actual default judgment. See the motion filed, requesting a default judgment. Usually, however, the judge gives Agency an ample opportunity to compile and submit the Investigative File (containing ROI and the Investigator's Summary Report).

Note that many administrative judges at EEOC were once Agency attorneys.

An EEO Investigator will interview you to clarify allegations and to gather information, documents and witnesses.  The Investigator will also interview the management for the same purposes. You should submit your evidence and witness list to the investigator, whether asked or not.  Again, do not rely on the investigator to prove your case.  You must help him or her to do compile the Investigation File (IF) that is in your favor. You have the right to be represented when the investigator talks to you regarding your case.  

Once the investigator interviews you and the management, he or she will compile affidavits for you and for the management. You may be given a chance to rebut the management's affidavits. You should rebut and present documents or witness statements refuting management positions.  

In the cases involving Dept. of the Army, the EEO investigator may hold a fact-finding conference to take your and witnesses' statements, all recorded by a court reported.  The Agency attorney may be present at the fact-finding conference, and can question and cross examine you or the witnesses.  You should asked for the same opportunity to examine Agency decision makers when it is their turn to answer the investigator's questions, if Agency attorney cross examines you.


Advice:

Be aware that, generally, the investigation is in favor of the Agency.  The EEO office is part of the agency and is staffed by the agency, who pays their salary. If contracted, the investigator is paid by the EEO office.  

You can submit a sworn statement or affidavit or submit evidence before, during, or after the fact-finding conference/phone-interview to rebut lies and distortions that may have been uttered by the management during the fact-finding conference or in their response to the investigative affidavit questionnaire. Your sworn or declared statement with signature (i.e., an affidavit) counts more than a statement without a signature.  Since the management's statements are presented under oath or declaration (either in the affidavit or during the fact-finding conference), you can present evidence for the purpose of making a perjury charge.


The EEO investigator submits the Report of Investigation (ROI) or Investigation File (IF) to the Agency EEO Director, who will in turn further review and may revise the ROI.  Agency is required to produce and serve you the ROI within 180 days of your filing a formal EEO Complaint, unless you had granted an extension. See § 1614.106(d)(2).

The Agency may request additional 90 days to complete the investigation and to issue the ROI. As stated above, after 180 days of your formal complaint, you have a right to request EEOC hearing to be heard by an administrative judge, regardless of whether or not the ROI was issued, whether or not you had granted an extension for the investigation.

In lieu of requesting EEOC hearing, you can also file a civil action complaint at US District Court located near the work place where the alleged discrimination had occurred. You can file a civil action complaint at any time, 180 days after filing a formal EEO complaint (unless an extension was granted or amended complaint was filed) or within 90 days of receipt of the Final Agency Decision (which is issued within 40 days after EEOC AJ renders his or her decision or within 60 days of the complainant requesting it in lieu of a hearing). See 29 CFR § 1614.110.

See an EEOC administrative judge's testimony on the "poor to dreadful" qualify of the EEO investigation and of the Investigation File.

EEOC hearing can be requested online. You must register first at EEOC.gov and proceed to request hearing.

Once hearing is requested, EEOC or the Commission will order the Agency to produce the Report of Investigation (ROI). If the Agency fails to produce ROI, EEOC judge may enter a default judgment against the Agency upon your filing a motion to do so. You could win by a default judgment but that has never happened to my knowledge since more than 10 years ago.

In lieu of requesting an EEOC hearing before an administrative judge, you may opt to request Final Agency Decision (FAD) without EEOC hearing. FAD is issued based on the Report of Investigation that the EEO investigator compiled.  FAD is usually issued in favor of the Agency, as it is written by the Agency counsel or legal staff in the EEO headquarters. 

The decision in FAD can be appealed to Office of Federal Operations (OFO), which reviews the case de novo (from new or fresh). The de novo standard of review "requires that the Commission [OFO] examine the record without regard to the factual and legal determinations of the previous decision maker."  See EEOC Management Directive 110, Chapter 9, Section VI.A (November 9, 1999). This means that no new factual dispute can be raised in your appeal to the OFO or no new evidence can be submitted unless it could not be obtained prior to the appeal.


➤ Report of the Investigation (ROI) or Investigation File (IF):

The Report of Investigation (ROI) usually comprises of 300 to 1,500 or mare pages. It contains the investigator’s summary (which is also called Report of Investigation), summarizing the issues and bases of the complaint and summary of written testimonies, and description and location of the records compiled in the ROI, such as EEO investigative affidavits (including yours, managements’, and witnesses’, if any) or the transcripts from the fact-finding conference (if held) or the transcripts from the EEO investigator interviews (if any), and documents gathered or submitted during the investigation period by complainant and by management.  

Note: The investigator’s summary of the ROI (usually found in the beginning of the ROI) is very important. Even though it has no evidentiary value, as it is a hearsay (a statement made by the investigator who does not have the first-hand knowledge of the event claimed as discriminatory), it contains summary of what complaint said in his or her affidavit, what the management officials said, etc. Ofter, the agency attorneys and EEOC AJ’s read these summaries and form their initial decisions or judgments.

In short, the summary of the ROI, written by the inwestigator, can have a determinative effect on the adjudicating EEOC AJ. It might be the only thing that an AJ reads prior to conducting an initial conference with the parties involved.

The ROI issued by Agency’s EEO office is not automatically admitted into record by the US District Court Judge or by MSPB AJ.

Usually and notably, documents pertaining to the 'similarly situated individuals' are missing or inadequately gathered in the ROI, if requested at all by the EEO investigator.  (Note that discrimination is proven by comparing yourself to the 'similarly situated individuals.')  

Examine the entire ROI carefully.  Note that the salient documents supporting your claims, even if submitted, may not be found in the ROI or may be found in the end, after hundreds of pages in the ROI or under a wrong tab.  Or they may be scattered apart throughout the entire ROI in such a way that a reviewer (the administrative judge or attorney issuing the Final Agency Decision in Agency's EEO HQ) could not easily find the key evidence. Also check to see that the ROI contains statements you submitted to the investigator.  (Evidence or statement you submitted to the EEO Counselor during the informal pre-complaint counseling period may not be found in the ROI, to your surprise and dispay.)

  • The ROI may be the only file the Agency EEO headquarters reviews to issue the Final Agency Decision, if a hearing was not requested. If a hearing was requested, the judge's decision will be incorporated in the FAD.  

  • The ROI will become part of the hearing record, if EEOC hearing was requested and conducted.

  • It is very important that you submit the records in support of your claims to the EEO investigator (not to the EEO counselor, whose role is not to investigate but only to convey your allegations to the management for speedy resolution at the lowest level, if possible).  Usually the EEO investigators, believe it or not, do not ask you to submit supporting documents. Whether requested or not, you should submit them.

  • Feel free to submit supplemental statements or affidavits to the investigator after the investigator's interview or fact-finding conference/interview was held or after you had already submitted your affidavit (in response to the investigator’s affidavit questionnaire).  Because, as you will find out, the investigator's questions are ofter very unfair and tilted toward the Agency, and not often adequate; and you won't be allow to say what was not asked by the investigator.  If the investigator says that you cannot submit any records or supplemental affidavits, requests him or her to say it in writing.  He or she won't be able to commit it in writing.  Because it is in violation of the rules governing the formal investigation process. You can always submit supplemental statement/affidavit and records at any time prior to Agency’s issuance of the ROI.

  • Even after an ROI is issued, you may still submit supplemental statements/records to the EEO headquarters and request that they be placed under a “Post-Investigation” tab within the ROI. This can be done prior to your requesting EEOC hearing. Once EEOC hearing is requested, any omitted or new evidence (not found in the ROI) can be submitted to the administrative judge during a certain specific phases in the process. See EEOC hearings.

  • Do not be surprise if the investigator contacts you toward the end of the 180-day investigation period. He or she may do so in order to rush the investigation. Any submission of docs prior to an investigator assignment (to your case), however, may get lost.

  • Document your submissions to the EEO investigator by describing or identifying the documents as enclosures.  Copying the EEO Director, when submitting support docs to the investigator, would not be a bad idea. But copy the EEO Director without attaching the records, so as not to duplicate them, as they are also submitted to the investigator.  

  • Even if the investigator does not provide you with enough time to submit your support docs or supplemental affidavit, do submit them to the EEO Director, even after ROI is issued.  They should be made part of the ROI, as already stated, under the “post-investigation” tab.

  • The name of the game is to create an ROI that favors you, because Agency will do its best to compile one in its favor.  ROI becomes the official record of your discrimination complaint during the life of the case.  

  • One of factors by which a supervisor is evaluated is how many EEO cases were filed against him or her. Informal EEO complaints do not count in this regard, only formal EEO complaints do.

The Agency is required to send you the Report of the Investigation (ROI) along with all documents referenced therein, along with the notice of your right to request a hearing (to be held before an administrative judge at EEOC); when the IF with ROI is issue to you.  


Advice:

Keep the Report of the Investigation (ROI) intact, because the pages therein are referred to by the bates-stamped numbers (found at bottom center of each page) later at the EEOC hearing (if a hearing is requested and held) or in your written appeal to the Office of Federal Operations (OFO) in Washington, D.C. (See Appeal to OFO).  The page numbers in the ROI (the bates stamp numbers) are the most important part of the ROI.  AJ’s and attorneys will refer to the ROI by these numbers.

Review the Report of Investigation carefully.  Note errors, lies, and misrepresentations.  Also note if there is any evidence that the Agency inadvertently submitted that may support your claim.  Also make note of what evidence you can request from the Agency—not found in the ROI—during discovery in the EEOC hearing proceedings (if you intend to request hearing). 


Advice:  

With issuance of Report of Investigation (or Investigative File), you should be given a notice informing you of the following three options: (1) to request EEOC hearing, (2) to waive the right and request instead a Final Agency Decision to be rendered on your case, or (3) to file a civil action complaint at US District Court. Taking the third option may save you a lot of time and resources and may let you reaching an amicable settlement sooner than later.

The Formal Complaint process ends with issuance of Report of Investigation and of the notice of your rights regarding the three options referenced above.

If a hearing is requested and held, the AJ’s decision will be incorporated into the Final Agency Decision (FAD).  The Final Agency Decision must be issued within 40 days of issuance of the administrative judge's (AJ's) decision.  FAD (and not AJ's decision) may be appealed to the Office of Federal Operations (OFO).  

If judge's decision is not in your favor, you may want to send your prehearing brief (if you filed one prior to the hearing) or a new brief to Agency’s EEO headquarters to be considered before a Final Agency Decision (FAD) is issued.  Or, if no pre-hearing report was filed, you may want to rebut the judge's decision by presenting a brief containing summary of facts, arguments, evidence (or reference evidence in the ROI) and submit to Agency’s EEO headquarters to be considered prior to issuance of the FAD.  When you do, you want to request that the judge's decision not be implemented in the FAD.  

Any complaint against the EEOC administrative judge may be reported to EEOC's Office of Federal Operation along with your appeal (when you appeal the FAD to OFO). 

OFO may take a year or two to render its decision, a reconsideration of which can further be requested with OFO.


➤Free Court-Appointed Attorneys (only when you are filing a complaint at the federal district court)

Title VII of the Civil Rights Act of 1964, § 706 (f)(1)(B), 42 U.S.C. § 2000e-5(f)(1)(B), provides:

Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, cost, or security.

If you qualify financially, the U.S. District Court may appoint a free (pro bono) attorney for you.  Consult with the Court Clerk when you file a law suit at a U.S. District Court.

180 days after filing a formal complaint in the federal EEO process, you may file a law suit at your U.S. District Court, in lieu of requesting an administrative EEOC hearing or within 90 days of receiving Final Agency Decision or OFO appeal decision.

EEO 21 offers a non-attorney, technical assistance to file a civil action complaint at US District Court nationwide and can assist pro se Plaintiff through the litigation process.  


Disclaimer: All information contained in this page is subject to change and updates.  EEO 21, LLC, is not responsible for any errors or misrepresentation.

 

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 and privileges.  However, as any union shop steward can, Mr. Lee can also represent federal employees at any administrative proceedings including EEOC and MSPB hearings.

  • Mr. Lee cannot and does not represent clients at court proceedings such as US District Court, US Court of Appeals, and US Supreme Court.