An employee who misses the 45 day deadline can attempt to have the time limit extended by showing that 1) s/he was not notified of the time limits and were not aware of them, 2) s/he did not and reasonably should not have known that the discriminatory matter occurred; or 3) despite due diligence, s/he was prevented by circumstances beyond his or her control from contacting the EEO counselor within the 45 day time limit (for example, because of being hospitalized). Be advised, it is extremely difficult to prove that a person who misses any deadline should be granted an extension. Keep in mind, the EEO counselor works for the Agency against whom the complaint is being filed.

If you are a federal employee and you file an EEO Complaint, you are referred to as the Complainant. After you make contact with the EEO Couselor, within a few days the counselor is supposed to meet with you to discuss your claims. The counselor may have you fill out what is called pre-complaint paperwork. Keep in mind that everything you write down can be used against you, so before you start filling out paperwork it might be in your best legal interest to consult with a qualifed lawyer. The counselor is supposed to advise you about the EEO process, but is not supposed to give legal advice. After learning about your complaint, the counselor is supposed to speak to management about your concerns and attempt to resolve the complaint. Only rarely are complaints resolved in the counseling stage, but it does happen. EEO counseling is supposed to last 30 days, but it often takes longer. Sometimes the Agency will ask that you extend the counseling period.

ADR stands for alternative dispute resolution, which involves mediation. It may be to your benefit to resolve a complaint before the working relationship becomes strained over the litigation, since an early resolution will typically allow both parties to move on and save face. However, mediation will only work both parties commit to getting the complaint resolved, which means that both parties need to make reasonable demands.

After the counseling period, the counselor issues the employee a Notice of Right to File a Formal Complaint, along with a complaint form. The employee has 15 days from receipt of the Notice to file a formal complaint. The complaint needs to contain enough information so that the facts alleged support what is called a prima facie case of discrimination. If you do not include enough material allegations, your complaint could be dismissed. Besides setting forth sufficient facts to support a claim, you need to indicate the bases of discrimination (for example, sex (female), disability (asthma), and retaliation (prior EEO activity)). The complaint should describe discriminatory incidents, including retaliation. Your description should include dates and identify key persons who may have observed the discriminatory conduct. The complaint should name the individuals alleged to be responsible for the discrimination or retaliation, also called the Responsible Management Officials (RMOs). The complaint should state the remedy requested. It is sufficient to state: “I’m requesting all relief to which I am entitled to under law, including compensatory damages, attorney’s fees and costs.”

After filing the formal complaint, the Agency may issue an acceptance letter, an acceptance and partial dismissal letter, or a dismissal letter, accepting or denying the claims in the formal complaint. It is important that you, as the Complainant, review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allotted, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but the issue will be preserved for appeal or trial. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.

If the Agency accepts the complaint, it assigns an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The investigator is supposed to impartially gather relevant facts concerning the allegations raised in the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written affidavits. The investigator usually starts the investigation by interviewing the Complainant. It is very important that you give a full and complete version of the facts during the investigation. Be sure to describe how you were treated differently or harassed, including comparing yourself to others outside your protected class. You need to show how others outside your protected class were treated more favorably, how, by whom, and when. You are better off being concise in all your statements, since the more you say, the more you have to defend. You must also provide the investigator with any relevant documents that support your case, even if the investigator does not request it. Notify the investigator in writing of any supportive witnesses, summarizing for the investigator the anticipated testimony of each witness. Notify the investigator in writing of any supportive documents that you know about but are not in your possession.

Typically, after obtaining information from the Complainant, the investigator then questions the management witnesses and the discriminating official. After the investigator gathers information from management witnesses, the investigator often gives the Complainant a chance to rebut management’s allegations. If given the opportunity, you should rebut as many relevant allegations you can, point-by-point. At the end of the investigation the EEO Investigator generates an “Investigative File” (IF) or “Report of Investigation” (ROI), which contains the documents generated during the investigation. Usually, the ROI is the only information the Administrative Judge (AJ) will have regarding your case until hearing, assuming you get to a hearing. That is why it is so critical that the Complainant ensures that the EEO Investigator is provided complete and quality information about the case. On rare occasion the EEO Investigator will produce a quality ROI, but be forewarned, usually the investigation is bare bones and favors the Agency.

The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the receipt or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, setting forth many important deadlines, with which the parties must comply or risk prejudicing their case. The order specifies the deadlines for discovery. Discovery includes interrogatories, requests for production, requests for admissions, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyers for each side asking the deponent about the case. Transcripts from depositions can be used at hearing.

It is the Complainant’s burden to prove his or her case. The evidence must convince the AJ that a motivating factor of the decision maker was based on an illegal reason; e.g., the Complainant’s gender. Generally speaking, the Judge will follow the McDonnell-Douglas framework in determining whether or not the Complainant has met his or her burden of proof. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). The three part McDonnell-Douglas test is:

1. The complainant bears the burden of production to show a ‘prima facie’ case of discrimination;

2. If the complainant shows a ‘prima facie’ case, the burden of production shifts to the Agency to show that they had a legitimate non-discriminatory reason for the action complained of;

3. If the Agency shows a legitimate non-discriminatory reason for its action, the burden of production shifts back to the complainant to show what is called ‘pretext’.

It is important to note, however, that in the law there is a large difference between a “burden of production” and a “burden of persuasion”. The burden of production means only that the party must put forth evidence of the particular element. If the Complainant produces circumstantial evidence that discrimination occurred, then the Agency responds by offering evidence that no discriminatory act occurred, which is called a legitimate non-discriminatory reason.

In an EEO case, the Complainant has the burden of persuasion on each claim made asserted by the Complainant. The Agency only has the burden of persuasion if it asserts an affirmative defense. The burden of persuasion, on the other hand, means that the Complainant must persuade the finder-of-fact (in Federal Employee EEO cases, this is the EEOC AJ) that his or her evidence is superior to the Agency’s and is sufficient to prevail on each element of every claim. In other words, when there is conflicting evidence on an issue, the AJ decides who to believe. There are many human factors that go into making credibility determinations that will dictate the outcome of the case.

You can file a federal court lawsuit if one of the following conditions are present:

1) 180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.

2) You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.

3) You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency.

You have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.

If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.

Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

The information on this blog or website is not legal advice. For more information about the federal sector EEO process go to the EEOC’s web site at: http://www.eeoc.gov/facts/fs-fed.html

Contact Denver EEO Attorney Gregory A. Hall to set up an appointment for a legal consultation: WWW.DENVEREEOLAWYER.COM

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Pursuant to the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16, persons have the right to equal federal employment opportunities regardless of their race, color, sex, national origin, religion, age, disability, or prior EEO activity. This includes protection against illegal harassment.

45 Days to File a Discrimination Claim

The federal government’s EEO process differs sharply from the private sector’s. See the EEOC’s website for more information at http://www.eeoc.gov/facts/fs-fed.html

A federal employee has only 45 calendar days to contact a designated EEO counselor at their agency to file an informal complaint of discrimination from the date of discrimination. The regulations provide that initial EEO counseling is to be completed within 30 days unless the employee agrees to an extension of time or agrees to submit their complaint to an agency alternative dispute resolution process, which will extend the EEO counseling process for an additional 60 days. If the complaint isn’t resolved within that time, then the employee will be issued a written notice of the right to file a formal EEO complaint within 15 calendar days of receiving that notice.

Once a formal EEO complaint is filed, the employee’s agency will accept or dismiss the complaint, in whole or in part. If accepted, the agency will conduct an investigation into the accepted issues. The regulations provide that the investigation is to be completed within 180 calendar days from the date on which the formal complaint was filed. The agency investigation consists of some sort of fact-finding. At the conclusion of the investigation, the agency will issue a report of investigation that includes all the evidence gathered by the EEO investigator. The employee has three options:

1. request a hearing before an EEOC administrative judge;
2. have the employing agency issue a written final decision; or
3. opt out of the administrative process and file a civil action in federal district court

The employee may appeal the final agency decision (issued either after or instead of the EEOC hearing) to the EEOC headquarters in Washington, D.C. and may file their civil action in federal court at any time after the formal complaint has been pending for more than 180 days (even after the EEOC’s final appellate decision is issued).

Since 1995 Attorney Gregory Hall has represented federal employees before the EEOC. He has represented clients throughout the EEO process, from filing complaints with the EEO counselor to filing complaints in Federal District Court. The information on this blog or website is not legal advice. Contact Mr. Hall to set up an appointment to evaluate your case.

Denver EEO Attorney: http://www.denvereeolawyer.com

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Title VII, the ADA, the ADEA, and the PDA protect employees from unlawful discrimination and harassment based on:

• Age
• Race, color or national origin
• Gender or pregnancy
• Religious affiliation
• Marital status
• Disability

Employers with 15 or more employees (20 or more for age discrimination), employment agencies, unions, local, state and federal agencies must obey these laws.

Some race claims can also be filed under 42 U.S.C. § 1981.

RETALIATION

Title VII makes it is illegal for employers to retaliate against employees who:

• Engage in protected activity by opposing discrimination in the workplace
• Engage in protected activity by participating in the discrimination process

Some retaliatory claims can also be filed under 42 U.S.C. § 1981.

FAMILY AND MEDICAL LEAVE ACT (FMLA)

An eligible employee may take up to 12 weeks of leave per year without the fear of losing his or her job for several reasons, including: (i) To care for a newly born baby or adopted child; (ii) To obtain treatment for a serious illness or injury, or to recover from a serious illness or injury; (iii) To provide care to a close family member who has a serious ailment or health condition.

There are other laws that protect:

• Whistleblowers
• People who assert their rights for overtime pay
• People who file a claim for worker’s compensation
• People who participate in other lawful activities not related to work, such as political activity

If you believe you have been discriminated against, retaliated against, or had other civil rights violated, you should consult with a qualified civil rights attorney so that you can not only inform yourself of your rights, but also of your obligations under the law. Many times employees compromise their claims against the employer because they do not understand their obligations under the law.

EXHAUSTATION OF ADMINISTRATIVE REMEDIES

In most circumstances, any person who intends to file a lawsuit based on discrimination must first exhaust their administrative remedies by filing a charge of discrimination with Equal Employment Opportunity Commission (EEOC) the Colorado Civil Rights Division (CCRD). A person should not delay in filing the charge, since if the discrimination occurred in Colorado, the charge must be filed within 300 days from the date of when the discrimination occurred. In some states the time for filing a charge is only 180 days. Federal employees are required to contact the proper EEO Counselor within 45 days.

CHARGE OF DISCRIMINATION

Information about filing a charge of discrimination can be found at http://eeoc.gov. Before filing a charge, or contacting an EEO Counselor, a person will be well advised to first consult with a qualified civil rights attorney if time allows. Keep in mind that employment law is highly specialized, so make sure any lawyer you consult with or retain has the necessary expertise.

If you need legal counsel, contact Denver Civil Rights Attorney Gregory A. Hall at http://denvertitleviilawyer.com

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

Case Summary: In response to questions from an official of respondent local government (Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes, but soon fired Crawford, alleging embezzlement. She filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes’s behavior, in violation of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any … employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter” (opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The court granted Metro summary judgment, and the Sixth Circuit affirmed, holding that the opposition clause demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation, and finding that the participation clause did not cover Metro’s internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.

Held: The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford’s statement is thus covered by the opposition clause, as an ostensibly disapproving account of Hughes’s sexually obnoxious behavior toward her. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question. Metro unconvincingly argues for the Sixth Circuit’s active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to enquiries. Employers, however, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 , and Faragher v. Boca Raton, 524 U. S. 775 , hold “[a]n employer … subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with … authority over the employee.” The Circuit’s rule could undermine the Ellerth-Faragher scheme, along with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses. Because Crawford’s conduct is covered by the opposition clause, this Court does not reach her argument that the Sixth Circuit also misread the participation clause. Metro’s other defenses to the retaliation claim were never reached by the District Court, and thus remain open on remand. Pp. 3–8.

211 Fed. Appx. 373, reversed and remanded.

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.

For legal counsel on your retaliation or civil rights case, contact Denver Civil Rights Attorney Gregory A. Hall at:

Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com

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