- Kevin C. Crayon II
Formal EEO Complaint and Investigation
Updated: Jan 9, 2021
This guidance is for federal sector employees filing an EEO Formal Complaint of Discrimination and participating in the EEO investigation. This explains what happens after the informal complaint period ends, and you receive your Notice of Rights giving you 15 days to file a formal complaint.
Filing the Formal Complaint
If you could not resolve your EEO matter during the informal stage (such as with traditional EEO counseling, alternative dispute resolution, etc.), the EEO Counselor will close the informal period and provide you a Notice of Rights giving you 15 days to file your Formal Complaint of Discrimination. This is an important deadline.
In your formal complaint, you must raise all claims you intend to preserve. While you do not need to get into as much detail as you will during the investigation stage (described below), you do need to make sure all of the protected classes are covered, and that the framing of your claims are solid and can withstand a dismissal by the Agency.
The Agency's role in accepting the formal complaint at this stage is not to examine the truth of anything you are alleging. Rather, they look at whether you've sufficiently stated a discrimination claim based on a protected class claim that would fall within the EEOC's jurisdiction. Framing your claims is therefore important.
If you have issues concerning why you did not raise an issue within the 45-day period, for instance, or other issues that you believe may be dismissed at the outset, you should consult an attorney. See my video here for additional information:
Acceptance of the Formal Complaint
Your formal complaint is filed now, what's next? First, a letter acknowledging the filing of your formal complaint. Second, a letter accepting or denying your claims ("Acceptance Letter").
When you receive the Acceptance Letter, you typically have 5-7 days (depending on the Agency) to dispute or clarify the acceptance, denial, or (equally important) the framing of your claims. This includes ensuring the proper bases are alleged i.e. retaliation or discrimination based on gender, race, disability, age, etc.
Everything centers around the accepted claims. Like a building's foundation, It is important to carefully review, clarify, or (if warranted) dispute the claims as framed in the Acceptance Letter when building your case.
After your acceptance letter, the investigator will send you an introduction letter. The Agency pays for a neutral investigator. The investigator's purpose is to gather the facts by way of affidavits and documents, and to draft a report. The investigator does not decide or make recommendations on the case.
After the investigator's initial introduction letter, the investigator will contact you to arrange for live or written testimony from you, management, and witnesses. The method varies by agency. The Department of Defense, for example, typically conducts intensive, live fact-finding sessions, similar to depositions, with hours of live testimony and cross examination. Other Agencies, like the Postal Service, merely obtain written affidavits that you can fill out and return. In between these two extremes are individual one-on-one recorded interviews where the investigator takes sworn testimony transcribed by court reporters.
The investigator gathers documents from you and the Agency, including emails and other supporting documents. The evidence that is relevant will depend on the type of discrimination being alleged.
Most investigators (with the exception of the Postal Service) will give you an opportunity to review management's affidavits and provide a rebuttal statement. A rebuttal statement allows you the chance to have the last word and rebut management's contentions. It's a great tool to have in the Report of Investigation. See the video here:
The Report of Investigation
The end-game of the investigation stage is the a Report of Investigation ("ROI"). The ROI will average 300-1000+ pages, and it will come in a thick binder (and sometimes multiple volumes). It is best to request an electronic version of the ROI.
The ROI will contain your formal complaint, the EEO counselor's report, the above-described acceptance letter and affidavits, and other supporting documents from management and you. In the first 10-50 pages of the ROI, the investigator will summarize the report and testimony. Each document in the ROI will have a page number that can be cited to in later proceedings.
For pure EEO cases, the ROI is automatically a permanent part of the record. This means that everyone gets a copy: you, the Agency, the Administrative Judge, and the EEOC. By contrast, documents that are discovered after the investigation have to be introduced into the record as evidence. This is why it is important to develop the ROI during the investigation stage with the end game in mind. At a hearing, it is much easier to cite to a page in the ROI, which is already part of the record, than to attempt to introduce a new exhibit, which may or may not be admitted into the record.
The Fork in the Road -- Notice of Rights
When you receive your ROI, you will also receive a notice of rights. This notice of rights triggers a 30 day deadline to request a hearing. Requesting a hearing initiates the next stages of the litigation, which include discovery, motions, pre-hearing conferences, and...if your case has not been dismissed... a hearing. Click here to see the 7 major stages of EEO litigation.
While requesting a hearing is the most common option, you also have the option to request a Final Agency Decision ("FAD") in lieu of a hearing request. The FAD is a not-so-neutral decision by the agency on whether it believes it is liable for discrimination. Because the Agency itself is making a decision, you can guess how the FAD usually turns out.
After the Agency issues a FAD (most likely in its favor), you have two options, the first being a right to an appeal before the EEOC's Office of Federal Operations ("OFO"). This allows you to submit a written argument to the OFO with citations to the ROI and record. The second option is a right to file a civil action in federal district court within 90 days. This option removes you from the EEOC administrative process and requires you to litigate in federal court with a federal judge and jury.
Staying on Track
As you can see, the road to justice is just getting started. The "end game" of the investigation i.e. the ROI is really the foundation. And the Notice of Rights is a fork in the road that can lead to various avenues.
If you choose to request a hearing, the judge will allow the parties to engage in discovery and other stages.
You should seek proper guidance to ensure your case gets on the proper track, and stays there. See this video so can better understand where these stages fit in the larger picture:
EEOC guidance on filing a formal complaint for federal sector employees. Click here.
EEOC guidance on the EEO process for federal sector employees. Click here.
7 major stages of EEO litigation (Federal Sector Employees). Click here.
Maximizing your recovery. Click here.
What's needed to prove discrimination? Click here.
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