
How to Navigate the EEO Maze, Part 2 – The Formal Complaint & EEO Investigation
If you are seeking guidance about filing an initial, informal EEO complaint, or about participating in ADR, please refer to Part 1 of this blog series, “How to Navigate the EEO Maze, Part 1 – The Informal Complaint & ADR.”
Otherwise, read on to learn more about the formal EEO complaint process and EEO investigation process, which follows the informal complaint phase.
Step 3: File a Formal EEO Complaint.
If you are unable to reach a resolution with your agency during the informal complaint process, you can file a formal EEO complaint.
You must file your formal complaint within 15 calendar days from the date you receive your “Notice of Right to File a Formal Complaint” letter.
This letter will provide you with contact information for the agency official with whom you must file your formal complaint.
Pursuant to 29 C.F.R. § 1614.106(c), the formal complaint must be signed by you (or your attorney), must contain your contact information (or your attorney’s contact information), and “must be sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action(s) or practice(s) that form the basis of the complaint.”
In practice, you should make your complaint as detailed and specific as possible.
For guidance on how to draft detailed EEO complaints, please refer to Part 1 of this blog series, under the heading, “What Should I Include in My Detailed Written Complaint?”
Step 4: Actively Participate in the EEO Investigation.
1. When Will the EEO Investigation Begin?
After you file your formal EEO complaint, be on the lookout for a “Letter of Acknowledgement,” which will define the claims that the agency has accepted for investigation.
The Letter of Acknowledgement will also note whether the agency has rejected any of your asserted claims—meaning that the agency will not investigate those claims.
In a Letter of Acknowledgement, an agency will often misstate the claims at issue, or define the claims as narrowly as possible, to limit the scope of the investigation that the agency is required to conduct.
Further, the letter will provide you only a very limited time period, typically only five or seven calendar days, to respond with an explanation as to how a claim was misstated.
If you do not respond within that timeframe, the agency will proceed to investigate only the claims as stated in the Letter of Acknowledgement.
If you believe that your agency misstated any claims in your Letter of Acknowledgement, you should quickly respond, in writing, with a detailed explanation of why a claim was misstated. You should also include a proposed re-draft of the claim at issue.
It is best to work with an employment lawyer to help you prepare a thorough response to the Letter of Acknowledgement. If possible, don’t wait until you receive the Letter of Acknowledgement before consulting with counsel, given the very short response deadline.
2. Who Will the Investigator Be, and What Will They Do?
Under 29 C.F.R. § 1614.108(b), the agency must “develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint.” “An appropriate factual record” is defined as “one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.”
As part of that requirement, the agency will assign an investigator to develop a record related to your claims.
You will be notified when an investigator has been assigned to your complaint, and you will be provided with their contact information.
Sometimes, an agency will bring in an investigator from another federal agency, and sometimes, the agency will select an investigator from within its own agency.
During the EEO investigation, the investigator is supposed to request documents from both you and the agency, request testimony from you (typically in the form of a written affidavit), and request testimony from key witnesses and management officials (again, typically in the form of written affidavits).
In theory, the evidence that the investigator compiles should be thorough enough to allow an objective fact-finder to make an informed decision about whether or not you were discriminated/retaliated against.
However, whether or not the investigator is internal to the agency, bear in mind that an EEO investigation is never truly thorough or “impartial,” because the agency is running the show and is in control of most of the evidence, such as emails exchanged between management officials.
But the investigation is a necessary part of the EEO process, and a step you must take if you wish to later pursue your claims before the EEOC or in court, as discussed further below.
3. How Do I Participate in the EEO Investigation?
Your goal is to force the investigator to conduct a robust investigation.
During the investigation, you should strongly encourage the investigator to create a complete factual record. For example, give the investigator a list of witnesses with knowledge of information relevant to your claims, a list of suggested questions to ask each witness, and a list of documents to request from the agency.
The investigator is not obligated to follow your suggestions, but many can be convinced to include your requests.
As part of the investigation, the investigator will also seek testimony from you.
Sometimes, the investigator will request to interview you, and will then compile your answers into a written affidavit for you to review, edit, and sign.
If the investigator takes the first crack at your written affidavit, you should carefully review those responses and make as many edits as possible to ensure that your responses are thorough and detailed. If, while you are editing, you remember an important fact that you did not mention during the oral interview, add that fact in.
Sometimes, the investigator will bypass an oral interview and simply send you a list of questions for you to answer and sign, which will then become your written affidavit. Again, be as thorough and detailed as possible when responding to those questions.
If you have documents in support of your testimony, attach them to your affidavit, and cite to them in your answers.
You can also use your written affidavit as an opportunity to identify additional witnesses with knowledge of information relevant to your claims, and additional documents that the investigator should request from the agency.
If possible, ask an experienced employment attorney to review your written affidavit before you sign and submit, to ensure that it is drafted in a manner that best supports your claims.
During the investigation, the investigator should also provide you with an opportunity to submit a “rebuttal” to the written affidavits provided by the relevant management officials named in your claims. Take that opportunity!
Use your rebuttal to point out any false or contradictory statements made by the management officials, as well as any admissions that management officials may have made regarding facts that support your claims.
Again, if possible, ask an experienced employment attorney to review your written rebuttal before you sign and submit, to ensure that it is drafted in a manner that best supports your claims.
At the conclusion of the investigation, the investigator will compile—and produce to you—a Report of Investigation (“ROI”).
The ROI, which is usually a PDF file, will contain the records produced in connection with both your informal and formal EEO complaints, a summary of the investigator’s findings, and the documents and witness testimony on which the investigator based those findings.
The ROI will also provide you with information about potential next steps, as discussed under “Step 5,” below.
4. How Long Will the Investigation Take?
The agency is required, under 29 C.F.R. § 1614.106(e)(2), to complete its investigation within 180 days.
However, the agency may extend that deadline by up to an additional 90 days if it obtains your agreement, in writing, to an extension.
It is not uncommon for agencies to exceed their allotted 180 days—often by many months, and even if you do not agree to an extension.
If the agency delays its investigation significantly, and if that delay negatively impacts your ability to prove your claims—such as, for example, when witnesses with key testimony leave the agency and are no longer available for interviews—you may have good grounds on which to file a motion for sanctions, including a potential default judgment (i.e., an automatic judgment in your favor on your claims), against the agency.
A motion for sanctions must be filed with an administrative judge, after you have requested an EEOC hearing.
If you believe you have grounds for a motion for sanctions against your agency, you should consult with legal counsel as soon as possible, to discuss your options.
5. Can I Amend My Formal EEO Complaint, and Should I?
You can amend your formal EEO complaint at any point before the EEO investigation concludes, so long as your amendment includes issues or claims that relate to those raised in your original complaint. See 29 C.F.R. § 1614.106(d).
For example, if you file your formal complaint based on a performance review that you believe is retaliatory, and the same supervisor who issued you that review takes new retaliatory action against you, you should amend your formal complaint to include that new action so that it will be included within the scope of the EEO investigation.
To amend your formal complaint, you should draft a detailed, written amendment and send that document to your agency and the investigator (if an investigator has already been assigned).
If, in response, the agency claims that the amendment does not relate to your original EEO complaint, you should file a new informal EEO complaint on the basis of the new adverse action against you, as discussed in Part 1 of this blog series.
Just be sure to file that new informal complaint within the 45-calendar-day deadline.
Pursuant to 29 C.F.R. § 1614.106(e)(2), if you amend your EEO complaint, the agency must complete its investigation within the earlier of 180 days after your last amendment or 360 days after you filed your original formal complaint.
If you are seeking to amend your formal complaint after you have already requested an EEOC hearing, you must file a motion to amend with the administrative judge assigned to your matter, which motion must be granted before you can officially amend your complaint.
If the motion is not granted, you can file a new informal EEO complaint on the basis of the claims that you sought to raise in your amendment.
Again, just be sure to file that new informal complaint within the 45-calendar-day deadline.
Step 5: After the ROI is Issued, Elect a Path Forward.
After you receive the ROI, you should carefully review the file to determine what new information (if any) was revealed during the investigation, and to determine whether information and documents that should have been included in the ROI were not included.
If the ROI is deficient, you should demand that the agency supplement the investigation by sending the agency a list of specific documents and information that should have been included in the ROI.
In response, the agency may or may not agree to supplement the record with additional information. If the agency declines to do so, you can later point that out to the administrative judge, if you proceed with an EEOC hearing.
Once the ROI is issued, you will also receive a notice that explains that the EEO investigation has been completed, and that outlines three potential options for next steps.
You will only have 30 days from receipt of that notice to tell the agency which path forward you would like to elect, if any:
- Request a final agency decision;
- Request an EEOC administrative hearing; or
- File a lawsuit in court.
Unless an agency management official engaged in glaringly obvious offensive and illegal conduct, there is little point in requesting a final agency decision, as agencies very rarely rule against themselves.
That leaves you with two options—an EEOC hearing or a lawsuit.
If you request an administrative hearing with the EEOC, you can expect to wait many months (sometimes up to a year) for an administrative judge to be appointed to your case.
After an administrative judge is appointed, your case will proceed in manner similar to a case filed in court, though with some significant differences, including more limited rights to conduct discovery.
Alternatively, you could draft and file a complaint in court, and proceed to litigate your claims.
Although the EEOC hearing and litigation processes are beyond the scope of this article, a couple basic differences between the two processes are that: (1) court records are public, whereas EEOC records are protected by the Privacy Act; and (2) court cases are decided by a jury, whereas EEOC hearings are decided by an administrative judge.
If you have further questions about the mechanics of lawsuits and EEOC administrative hearings, you should consult with an employment attorney who is familiar with those processes.
The Benefit of Legal Counsel During the EEO Process.
It is best to consult with legal counsel as early in the EEO process as you can, ideally at the stage in which you are drafting your informal/formal EEO complaint, to ensure that your legal claims are set forth correctly.
Agencies are quick to throw out claims based on technicalities, so it’s important to be very careful in how you phrase your claims.
As the EEO process progresses, legal counsel can also provide valuable advice on how to draft a written affidavit and rebuttal affidavit, and how to exert pressure on the agency and investigator to conduct a robust investigation.
Following the issuance of the ROI, counsel can review that ROI, offer their perspective on the merits and valuation of your claims based on the evidence compiled thus fair, and advise on best next steps—whether that be an EEOC hearing or a lawsuit.
Contact us.
Contact us if you need assistance with the federal EEO process. We have advised and represented many federal employees, and can help you navigate that process.
This blog post has been prepared for informational purposes only. This blog post is not intended, and should not be construed, as legal advice. The information contained in this blog post is not intended to create an attorney-client relationship, and the receipt of this information does not constitute attorney-client privileged legal advice.