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Five Avoidable Mistakes in an EEO Complaint

Bryan M. Douglas

The federal sector equal employment opportunity (EEO) complaint process is a distinct route for federal employees or applicants to file discrimination complaints against federal government agencies. Because the U.S. Equal Employment Opportunity Commission (EEOC) oversees employment discrimination complaints for both federal and private employment, it is easy to confuse a federal EEO complaint with an EEOC charge of discrimination. They are different in a number of substantial ways.

One notable distinction is that if a federal employee feels discriminated against by his or her federal agency, unlike the person who works for a private company, the federal employee cannot go directly to the EEOC and file a charge of discrimination. Instead, the federal employee is required to use the EEO complaint process that begins at the employing federal agency, not the EEOC. Yet, the EEOC established several deadlines throughout the federal EEO complaint process. Missing any one of these deadlines could prove disastrous for a federal EEO complaint – the complaint or claim could be dismissed and or the complainant could lose the right to recover monetary damages or other remedies. When a federal employee files an EEO complaint, there are several mistakes that if not avoided, could prove disastrous for the complaint.

For a federal EEO complaint, there are five key deadlines to know and avoid mistakenly missing:

EEO Complaint Mistake Number One: Untimely Initial Contact 

One of the most important deadlines for an EEO complaint is the first one – the initial contact with an EEO counselor. The initial contact begins the “pre-complaint” processing, which is commonly referred to as “informal processing” or confusingly the “informal complaint.” The “pre-complaint” processing is one of several steps in the life of an EEO complaint, must proceed and finish within a specified period, and takes place before the formal EEO complaint is filed.

Unlike an employee or applicant of a private company who generally has 180 days to file a charge of discrimination directly with the EEOC, a federal employee or applicant only has 45 days from the discriminatory event or the effective date of the personnel action to contact an agency’s EEO counselor.

This is called the “initial contact” and the EEOC requires the federal employee or applicant to make the initial contact within 45 days from when he or she reasonably suspected discrimination – which is before all the facts supporting the claim become apparent. Certain complaints, like harassment, could include events that took place more than 45 days from the initial contact and still be considered timely, but only when one incident that is part of the claim occurred within the 45-day filing period. While claims that were raised outside the 45-day filing period could be used as background evidence for timely raised complaints, there still has to be a claim that was timely brought to the attention of an EEO counselor.

There are very limited circumstances which provide more time to make the initial contact. Those circumstances are difficult to establish. Thus, depending on the claims alleged in the complaint, missing the initial contact deadline could end the EEO complaint before it even starts.

EEO Complaint Mistake Number Two: Untimely Formal EEO Complaint

When the “pre-complaint” process concludes without a resolution to the claims, the agency is required to provide notice to the federal employee or applicant of his or her right to file a formal EEO complaint. This is another critical moment in the life of an EEO complaint.

The EEOC requires the formal complaint to be filed within 15 days of the federal employee or applicant’s receipt of the agency’s notice of right to file a formal complaint. While it is the agency’s burden to show that the complainant received the notice and that the notice clearly informed the aggrieved person of the 15-day filing period, it is not a very heavy burden for the agency to show that it met those conditions.

Like the initial contact with an EEO counselor, there are also very limited and difficult to establish circumstances which permit a complaint to be considered timely filed even though it was late. Failing to file the complaint within 15 days of the notice from the agency could result in dismissal and or loss of the opportunity to obtain monetary damages or other remedies. Thus, like missing the initial contact deadline, missing the 15-day deadline to file a formal complaint could end the federal EEO complaint before it even starts.

EEO Complaint Mistake Number Three: Untimely EEO Complaint Amendment

At any time before an agency finishes its investigation and it provides notice to the complainant that the investigation is finished, the EEOC permits a complainant to amend a pending EEO complaint to add claims that “are like or related to those claim(s) raised in the pending complaint.” This opportunity to request to amend a pending complaint includes the “pre-complaint” process and after the complainant has requested a hearing (which would be filed with the EEOC Administrative Judge). Yet, the request to add claims must bet timely.

The new claims must be brought to the attention of the agency EEO director or the EEOC Administrative Judge within 45 days of the discriminatory event or the effective date of the personnel action. Missing the 45-day deadline could result in the dismissal of the claim, or relegate the claim to that of background evidence for those claims that were timely alleged. Again, the effect of missing the 45-day period could be devastating to complaint and or the opportunity to obtain monetary damages or other remedies.

EEO Complaint Mistake Number Four: Untimely Hearing Request

Another key moment in the processing of a federal EEO complaint is when the agency concludes its investigation and provides a copy of the investigation file to the complainant. When the agency provides a copy of the investigation file to the complainant, it is also required to notify the complainant that within 30 days receipt of the investigation file, complainant has the right to request a hearing and decision from an EEOC Administrative Judge or a final agency decision from the agency.

A hearing is an adjudicatory proceeding that completes the process of developing the EEO complaint record. A hearing also provides the parties with an opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses.

A final agency decision, however, is based solely on the record developed by the investigation. If the complainant does not choose either option, the agency is required to issue the final agency decision. Thus, not requesting the hearing within 30 days’ receipt of the investigative file will result in a decision based solely on the record developed by the investigation.

While a final agency decision is appealable to the EEOC, the only way a complainant could get a hearing after not requesting one is by way of an order from the EEOC after timely filing an appeal and convincing the EEOC that a hearing is needed. So, if a federal employee or applicant wants to have a hearing on his or her formal EEO complaint and is given the notice for the right to request a hearing, do not miss the 30-day deadline to request one.

EEO Complaint Mistake Number Five: Untimely Request for an Appeal of a Final Agency Decision

Appeals to the EEOC’s Office of Federal Operations must be filed by a complainant within 30 days of receipt of an agency’s final action – that is, a dismissal, final agency decision, final order, or final determination.

If a complainant files an appeal after the 30-day period and cannot explain why OFO should accept the appeal despite its untimeliness, the appeal may be dismissed as untimely. So, if a complainant feels that the decision of the agency or by an EEOC Administrative Judge was in error, a dismissal of an appeal for missing the 30-day appeal deadline could end the administrative processing of the complaint and leave the complainant who wishes to continue to pursue the discrimination claims with very little option but to file a lawsuit in federal court.

EEO Complaint Deadlines:

  1. Make Initial Contact with an EEO Counselor: Within 45 days of the discriminatory event.
  2. File a Formal EEO Complaint: Within 15 days from receipt of the agency’s notice of the right to file a formal complaint.
  3. Amend a Pending EEO Complaint: Within 45 days of any additional discriminatory events.
  4. Request an EEOC Hearing: Within 30 days from receipt of investigation file and notice from agency of right to request a hearing before an EEOC Administrative Judge
  5. File an Appeal: Within 30 days of receipt of an agency’s final action.

Hornthal, Riley, Ellis & Maland L.L.P. has experience handling complaints of employment discrimination, including federal EEO complaints. If you believe you have a claim of employment discrimination, consider consulting with an attorney familiar with federal employment discrimination law.