Friday, January 12, 2018

The Federal Employee EEO Process Explained

By John V. Berry, Esq., www.berrylegal.com


Federal employees have a right to protections from Equal Employment Opportunity (EEO) Discrimination by the Civil Rights Act of 1964 as applied to federal employees. Each federal agency is barred from discrimination based on race, gender, religion, national origin, sex, sexual harassment, age, disability, genetics, retaliation and other claims. Even though the Civil Rights Act has been in effect for almost 65 years, instances of discrimination continue to happen today. The federal workplace is no different. If you feel like you have been discriminated against as a federal employee, there is a process in place to protect federal employees and an EEO complaint can be initiated.  
File a Civil Lawsuit

While anti-discrimination laws have been the law for quite some time, there are still instances in which this discrimination occurs. If you feel as though you have been the victim of these discrimination or retaliation at a federal agency, it is recommended that you file an EEO complaint to protect your rights. 

Contact Your Agency’s EEO Counselor

The first step to the EEO process is to speak with an EEO counselor at the federal agency where you work or applied for a position. After your initial contact, the EEO counselor will then give you the choice of participating in counseling or some form of alternative resolution, like mediation. You must speak or otherwise make contact with the counselor within 45 days of the discrimination action in order to proceed with an EEO claim.

Consider Mediation

One option that may be available (and is sometimes overlooked) is to agree to mediate the EEO complaint prior to filing the formal complaint. If mediation is a good option, the parties will meet and then discuss the complaint (often times with attorneys on both sides) with an independent mediator.  The parties may make opening statements and then discuss potential resolutions to the EEO complaint. If the parties come to an agreement, it will be written down and signed by all parties, resolving the EEO complaint.  

File a Formal Complaint

If the EEO counselor cannot resolve the EEO issues, or if mediation fails, you can file a formal EEO complaint, normally due within 15 days from the notice provided by the EEO counselor. After the complaint is filed, the agency’s EEO office will review the complaint and determine whether to sustain or dismiss it for a procedural reason (such as filing too late or alleging that the facts don't describe a proper claim).

The EEO Investigation

If the federal agency accepts the EEO complaint, they must assign and complete an investigation within 180 days, unless an extension is acceptable. Generally, the 180-day time limit tends to be the average time it takes to complete an EEO investigation, although that varies significantly.  In most EEO investigations, the EEO investigator (a different person than the counselor), will contact the Complainant and/or their counsel to set up a time to discuss the claims of discrimination.  After that meeting, the investigator may ask for documents from both parties. In some cases, the EEO investigator will obtain response statements from managers alleged to have been involved and ask for any further comment from the Complainant.  

After the investigation is completed, a process that takes a few months, the EEO investigator will turn in their summary of the testimony, without making formal findings, and attach all of the relevant documentation. The federal agency will then compile the investigation and documents in preparation for sending them to the complainant. 

Elect the Hearing Process

Once the investigation is compiled, known as the report of investigation (ROI), it will be submitted to the Complainant, their attorney and/or others involved in the case within the agency. An ROI can vary in length, from 50 to 600 pages. It is often the case that the ROI will be send in paper and/or CD format. Along with the ROI, there will be a letter describing the options available to the federal employee in processing the complaint.

For instance, a complainant can elect to have a Final Agency Decision (known as a FAD) or request a hearing before an Administrative Judge of the Equal Employment Opportunity Commission (EEOC).  If you request an EEOC hearing, an EEOC Administrative Judge will hear the case and then issue a decision in a court like process. 

If the Administrative Judge finds that discrimination or retaliation has occurred, they will order relief. This relief can generally include damages, attorneys fees, personnel actions and/or other relief.  Once the agency receives the decision, they will generally have 40 days to issue an order which either accepts the decision or denies it, referred to as the agency’s Final Action. If the federal employee’s complaint is denied by the Administrative Judge, the individual will have the right to file both an appeal or a civil action over the EEO complaint. 

File the EEOC Appeal

A federal employee must generally file an EEOC appeal within 30 days of your receiving the final order. If the complainant files an appeal, EEOC appellate attorneys will review the entire case, including the agency’s investigation and the judge’s decision, and make a decision. If the agency disagrees with any part of the Administrative Judge’s decision, it may also file one of these appeals as well.

If the complainant’s claims are again again denied, the federal employee may seek reconsideration, which will only be granted if it can be shown that the decision was made with an error in the facts of the case or how the law was applied to it (or misinterpreted). It’s strongly advised that you have a federal employment lawyer review your case before making the decision to pursue this type of action.The agency also has the right to appeal to the EEOC to reconsider the decision if they disagree with it. Once the reconsideration request is made, the decision becomes final.


The last option in the federal sector EEO process is to proceed to court in a civil court action in U.S. District Court. While this usually happens at the end of the EEO process, It is possible to withdraw from the EEO complaint process and file a lawsuit in court. Normally, a federal employee can do this when the respondent federal agency does not issue a decision within 180 days, or within 90 days of the federal employee’s receipt of the federal agency’s decision regarding your complaint, or if the EEOC does not issue a decision regarding your appeal within 180 days. A suit can also be filed if the federal employee does not succeed before the EEOC and seeks to take the case to court.  

Conclusion

If you need assistance with filing a claim at the EEOC, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook page.

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