Amending a Complaint

The formal EEO complaint can be amended to include new issues of discrimination or retaliation that arose after your filing the formal complaint and that are "stemming from" or "related" to the allegations of the complaint that is pending investigation.

➤ There are two ways to amend your formal complaint:

You can amend your complaint by filing with the EEO Director or the equivalent thereof, not with the EEO counselor or with the EEO investigator—this is so as long as the Report of Investigation (ROI) has not yet been issued.

➤ Warning: Do not be fooled by the EEO investigator, if he or she tells you to file amendment with EEOC Administrative Judge (AJ) after you had requested a hearing later—much later. You cannot do that; because by that time, the 45-day jurisdictional time limits would have run out.  Believe me, I have heard such outrageous instructions or “advices” given to my clients by the so called EEO investigators.

It is true, however, that you cannot file an amended complaint with the EEO Investigator or with EEO counselor.  File it with EEO director or equivalent thereof.

It is also true that you cannot file a new (and not amended) EEO complaint with the EEO Investigator or with EEO director. You must file it with EEO counselor within 45-day time limits.

➤ Note: Whether a new incident should be filed as a new or amended EEO complaint is left to the EEO director’s discretion. You cannot decide that.  When in doubt, file it both: with EEO counselor (for processing it as a new claim) AND with EEO director (for processing it as amended claim).

That way, you cover one or the other following possibilities:

• EEO director deciding the claim to be filed as a new claim and referring it to EEO counselor; or
• The EEO counselor deciding it to be filed as an amended claim and thus referring it to EEO director; and, in such a case, your claim should be forwarded to the EEO director to be processed as an amendment. But, as things go, EEO counselor may not do that; and your claim may rot in his or her desk/computer, thus running out the 45-day limits.  The EEO director may do the same, too.  He or she may not refer your claim to the EEO counselor (to be processed as a new claim) and just ignore it, so that it may rot in his or her desk/computer and run out the 45-day time limits.

➤ An EEO counselor has no authority to dismiss or reject an allegation. Don’t ever let a Counselor tell you that your claim will be dismissed. Only the EEO Director or equivalent thereof has the authority (after your claim has been filed as a formal complaint).

The counselor should refer the claim to the EEO director, if it is to be processed as an amended complaint.  But, as stated above, he or she may not do so for whatever reasons.

As in filing any formal complaints, every amended complaint must be acknowledged by the EEO Director or the equivalent thereof with the date of filing; whether the claim is accepted or not for the investigation, or whether certain allegations are partially or wholly dismissed.  See below 29 C.F.R § 1614.106(e).

The notice of acceptance or partial dismissal must include the itemization of the allegations.

➤ Note: If you cannot count your allegations, you did not properly articulate your complaint. Each allegation--each instance you claim to be discriminatory or retaliatory--must be dated and numbered.

Cases are lost or won based on whether or not certain allegations are accepted for the investigator to investigate or, later, for the Administrative Judge (AJ) to adjudicate.

Moreover, damages are derived from allegations.  If you don’t have the allegation of your removal, for example, you cannot claim lost wages in damage.

You can amend your complaint after the Report of Investigation (ROI) is issued. In this case, you must file a motion to amend the complaint with the assigned EEOC Administrative Judge (AJ).

However, there may be a considerable time lag between your requesting EEOC hearing and the AJ assignment to your case (which is announced when you receive a Scheduling Order).  The time lag may last more than 3 or 6 months or even longer.  (Write to the White House and complaint, if it lags more than 6 months.)  You cannot file any motion unless an AJ is assigned to your case; because “motions” are pleadings you file to “move” the judge to do something.

When a new incident of discrimination or retaliation occurs after the issuance of ROI (by the agency) but before the issuance of a Scheduling Order (by the EEOC AJ), you should file a new EEO claim with EEO Director or equivalent thereof; and do not “amend” your complaint.  

Technically, you cannot “amend” you claim during the window period between the hearing request and the judge assignment, because the case you want to amend has already passed the formal investigation period and because the ROI has been issued.  So, instead of amending the complaint, a new EEO claim should be filed with the EEO counselor and then formally with the EEO director, who will assign a new docket number, if the claim is accepted.

Otherwise, if AJ is assigned to your case, you should file a motion to amend your complaint within 45 days of the incident you allege is discriminatory or retaliatory.  

Things are further complicated by the fact that, when you file a motion to amend, AJ may sit on your motion for a long time (say 6 months to a year or even longer) and, after all the wait, may deny your motion (for various reasons, including the fact that AJ wants the claim to be filed as a new claim).

When AJ denies your motion to amend, you will probably be referred to the EEO counselor for filing the claim as a new EEO complaint (not as an amendment).  Your date of filing the motion with AJ will be deemed your EEO contact date, so your claim would be deemed timely filed.  If this happens, you would have lost some 6 months or more (the time that AJ took in order to rule on your motion and to deny it).

In order to avoid this unfortunate situation, I advise that you:

1. file a new EEO claim with the EEO counselor first (as a new EEO claim and not as an amended claim), even if AJ is assigned to your case; 30 days thereafter, you then
2.  file a formal EEO complaint with EEO director or equivalent thereof and wait to receive the notice of acceptance of the claim.  Once the “acceptance” notice is issued on the new claim, you then
3.  file a motion to amend the complaint with AJ (attaching the notice of acceptance of the claim).  

This way, even if AJ denies your motion, you would not have lost the time that AJ took to rule on your motion (only to deny it).  Therefore, it is a judgment call: either to file a motion to amend with AJ; or to file a new EEO claim with the EEO counselor (and then file a motion to amend with AJ later -- after you had filed a formal EEO complaint with EEO director and after the claim had been accepted for investigation by the EEO director).

If your motion to amend the complaint is granted, AJ may order an expedited investigation on the new claim (that was accepted as an amended complaint), after which a supplemental ROI (on the new claim) may be issued.  This way, AJ ensures that the hearing record is complete. Or, depending on the issue, AJ may allow discovery without requiring the supplemental investigation and  issuance of the ROI.

Even if an expedited investigation is ordered on the new claim (on which you file a motion to amend, which was then granted by AJ), you may still request that you be authorized to engage in discovery on the claim. So, when you file a motion to amend, you want to ask, in addition to adding the new claim as amendment to the pending issues, that you also want to do discovery.

Discovery is a process authorized by AJ to request the following: information, documents, and admissions.  It therefore involves sending the agency attorney (and the agency will do the same to you): Interrogatories, Request for Production of Documents, and Request for Admissions.