Gregory A. Hall


Federal employees that have discriminated or retaliated against must go through an administrative process in an attempt to resolve the situation. To start the EEO complaint process the employee must contact the Agency’s EEO counselor within 45 days of the last discriminatory or retaliatory incident. Keep in mind, many people mistakenly believe that the EEO counselor is on “their side”; however, the EEO Counselor works for the Agency and reports to management.
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).  It is extremely difficult to prove that a person who misses any deadline should be granted an extension.
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 Counselor, 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. 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 qualified 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. 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 written affidavits. The investigator usually starts the investigation by interviewing the Complainant.  It is very important that the Complainant give a full and complete version of the facts during the investigation and to describe differential treatment.  The Complainant must demonstrate how others outside his/her protected class were treated more favorably and by whom.  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 information about the case.  On rare occasion the EEO Investigator will produce a quality ROI, but 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. 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 and 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’.
There is a big difference between “burden of production” and “burden of persuasion”.  The burden of persuasion means that party with the burden 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 other party’s and that the evidence 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.  The burden of production, on the other hand, means that the party with that burden needs only put forth evidence of the particular element.  In an EEO case, the Complainant has the burden of persuasion on each claim, but the Agency only has the burden of persuasion if it asserts an affirmative defense.

Filing a Lawsuit in Federal Court

Filing a lawsuit in federal court can be daunting for a person not represented by qualified counsel.  You must go through the administrative complaint process before you can file a lawsuit. There are several different points during the process; however, when you will have the opportunity to quit the process and file a lawsuit in federal court, including:

  • After 180 days have passed from the day you filed your formal complaint, if the agency has not issued a decision and no appeal has been filed;
  • Within 90 days from the day you receive the agency’s decision on your complaint, so long as no appeal has been filed;
  • After the 180 days from the day you filed your appeal if the EEOC has not issued a decision, or
  • Within 90 days from the day you receive the EEOC’s decision on your appeal.

The deadline for filing a lawsuit in federal court should be specified in the final agency decision, but generally speaking the deadline is 90 days from the date of decision you’re appealing.
Finally, if you win your case before the EEOC or in federal court, your attorney’s fees will probably be paid by the agency.  In most settlements, some or all of your fees will be paid by the Agency.
For more information about the federal sector EEO process go to the EEOC’s web site at: http://www.eeoc.gov/federal.
Contact Denver EEO Attorney Gregory A. Hall to set up an appointment for a consultation:
Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
Email: gregory@federallaw.com
Web: www.adenverlawyer.com
The information on this blog or website is not legal advice.

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