- Kevin C. Crayon II
EEO Complaints for Federal Employees - How Long is the Process?
Updated: May 28, 2021
Having litigated hundreds of EEO complaints for federal employees, I can answer a common question, how long does it take? Deadlines and regulatory time limits are one thing, but what about the real world reality? This article will shed light on the process from beginning to end.
The Informal Complaint - "Let's Work This Out"
You have 45 days to make initial "EEO contact" regarding an act of discrimination. See 29 C.F.R. § 1614.105(a)(1). Making timely contact is necessary to preserve your claim. An EEO Counselor has 30 days to complete the informal counseling, unless an extension is agreed to for an additional 60 days. Mediation or other alternative dispute resolution extends the informal period to 90 days. See 29 C.F.R. § 1614.105(d)-(f).
During the informal stage, you have the option to engage in Alternative Dispute Resolution ("ADR"), with the most common ADR option being mediation with a neutral mediator who attempts to resolve the matter. You also have the option of engaging in traditional counseling, where an EEO counselor will interview you and management and attempt to resolve the matter. The advantage of this is that the EEO counselor will interview management and take their initial statements, which will become a permanent part of the complaint file.
Formal Complaint - The Lawsuit
After the EEO counselor conducts the final interviews, he or she will issue a Notice of Right to File a Formal Complaint. You only have 15 days to file a formal complaint. 29 C.F.R. § 1614.106(b). Click here to learn more about this stage.
You will receive a letter acknowledging your filing, and then a second letter will follow. See 29 C.F.R. § 1614.106(d). The second letter is the Acceptance or Denial Letter. If any claims are dismissed by the Agency, you have 30 days to file an appeal. See 29 C.F.R. § 1614.402. The Acceptance/Denial Letter will usually give you less than 7 days to submit any objections to the framing of the claims. If you and the Agency cannot agree with the framing of the claims, then there is no immediate right to appeal, although later in the process an Administrative Judge can address this dispute if it was timely preserved at this stage.
One thing to keep in mind is that this process is usually not adversarial at this stage. At this stage, the Agency is not determining the merits of your claim, but rather whether your claims meet the initial legal criteria for proceeding with an EEO investigation.
After your claims are accepted for investigation, you will receive a letter assigning a neutral investigator. From the date you file your formal complaint, the Agency has 180 days to complete its investigation. This can last up to 360 days if you file amendments or additions (for instance, new retaliation claims). Extensions can be agreed to for up to 260 days. See 29 C.F.R. § 1614.108(e) and (f).
The investigator is neutral and does not make a decision on your claims. The investigator compiles a report with investigative interviews, affidavits, testimony, documents, and the complaint file. Click here to learn more about this stage.
Post Investigation - Requesting a Hearing
When the EEO investigation concludes, you will receive the Report of Investigation ("ROI") and a Notice of Rights. The notice will give you 30 days to choose which route you wish to take. See 29 C.F.R. § 1614.108(e).
Unlike private sector employees, federal employees enjoy the benefit of having a neutral administrative judge make a determination on their case. Therefore, It is common for federal employees to request a hearing before an administrative judge. If you choose to request a hearing, the Agency will forward the complaint file to the EEOC. The assigned judge will treat the case like a typical lawsuit with discovery, pretrial motions, and (eventually) a final hearing.
At some point, you will receive an Acknowledgment and Order from the judge, or an Order to Attend Initial Status Conference. This initial conference, which is telephonic, will include you, your attorney, the Agency attorney, and the judge. Issues will be discussed, such as discovery, the framing of the claims, and deadlines. If the judge does not conduct an initial conference, the judge will set out the tasks/deadlines in the initial order.
So why did I say you would receive an initial order from the judge "at some point?" This period - from when you request a hearing and actually receive an Acknowledgment and Order from a judge - is the first long limbo period. In fact, at this point you should begin getting used to long limbo periods between stages, as described further below. Although the regulations require the administrative judge to wrap up a case within 180 days (29 C.F.R. § 1614.109(i)), this limbo period where you're waiting on an acknowledgment from the judge could last anywhere from a month, to over a year... just to get an initial order! What's more, once you receive an order, in some respects, your case is just getting started.
Discovery - Further Investigation
The next stage is discovery, and it begins when the judge first gives you an order regarding discovery either in the initial order or at the initial conference. Discovery is common in all forms of civil litigation.
What is discovery? Discovery is a legal process that allows the parties to gather evidence and information. In discovery, you can request documents, evidence, information, answers to questions (Interrogatories), and admissions and denials. You can also conduct depositions (sworn testimony) of witnesses and parties. In short, discovery helps the parties assess a case and prepare for the final hearing.
After the judge gives you an initial order regarding discovery, the typical discovery period is 90 days, which can be enlarged or shortened by the judge. During the 90 day period, you will typically have 20 days from the date the discovery period begins to send your initial discovery requests, or you lose the right to discovery. After sending discovery requests, the parties have 30 days to respond to the requests.
These are "typical" deadlines because they are not set by regulations, but rather by the judge. See 29 C.F.R. § 1614.109(d). It is important to follow the judge's orders carefully, or you risk losing rights or getting sanctioned (punished).
At the end of the discovery period, you may be in for another long limbo period before the judge gets around to proceeding with your case and setting further deadlines and a hearing date. How long? It is typically a long period of several months. In fact, this limbo period could last for over a year!
Motion for Summary Judgment - The Threat
You want your day in court? Well, you may not get it if the Agency has its way. A Motion for Summary Judgment is a request typically filed by the Agency/Defendant (although a Plaintiff/Complainant can file one too) asking the judge to render a decision without a hearing. That's right, after you've waited all this time, it is possible that you may never get your day in court.
The Agency typically files this motion at the close of the discovery period. Unless otherwise ordered, the Agency can file this motion no later than 15 days prior to your hearing. You typically only have 15 days to file a response. See 29 C.F.R. § 1614.109.
When the Agency files the motion, it is an attempt to say that you cannot prove the legal elements of your case, and that your case should be summarily decided in the Agency's favor without a hearing. This is essentially a dismissal of your case.
We file a legal argument opposing the motion, and the judge decides. If the judge decides in favor of the Agency, then your case is dismissed and your appeal rights will follow. If the judge denies the Agency's motion, then the case proceeds. Again, it can be several months before a judge makes a decision on this motion.
At some point after the close of the discovery period, the judge will set your pre-hearing tasks, such as the submission of a list of proposed exhibits, witnesses, and facts. The judge will also set a pre-hearing conference where issues will be discussed such as settlement, witnesses, exhibits, and the hearing date and location.
As discussed above, the judge could take several months after the close of discovery, and sometimes years (that's right) to get around to this part of the process.
Finally, your day has arrived. Hearings typically last 1-2 full days. The hearing is usually located at the Agency's location because of access to witnesses and government employees. The judge and the parties attend the hearing, which is held in private and not open to the general public. A court reporter is present and swears witnesses in. Evidence and testimony are presented by each side, followed by closing arguments.
At the conclusion of the hearing, here again is another long limbo period where we wait on the judge's next move. How long does a decision take? Sometimes the judge renders the decision right away, but usually it comes after the hearing. Unfortunately, some judges take up to a year or longer to render a decision!
Damages and Remedies - Compensation Time
So you won your case! Congratulations. Now, it's time to determine what you get for all your efforts. Sometimes judges will hear evidence of your damages at the same hearing described above. Therefore, the judge's decision will be a final decision on liability and damages.
Other judges will "bifurcate" or split your hearing into two parts. This means his initial decision will hold the Agency liable, and a second hearing will be to determine your damages.
In either event, you will be entitled to a range of compensation which depends on the type of case you have. Click here for a video on damages and remedies.
Get Paid or Appeal
So now that you've got your decision, you have to wait several weeks for a transcript and final order. From the date the judge issues a final judgment, the Agency has 40 days to issue a Final Agency Action where it determines whether it will adopt and comply with the judge's decision, or appeal. If the Agency decides to implement the decision, it can be another 60 days before you get paid or get the full implementation of the remedies.
You will also have appeal rights. Unfortunately, appeals can take up to 3 years to get a decision. You can instead file a civil action in federal district court within 90 days of receiving the Final Agency Action. The bottom line, you have several options at this point and should consult with an attorney.
The times from the informal complaint until you request a hearing is governed by regulation. Unfortunately, after you request a hearing, you will endure long limbo periods in-between stages.
This can be a good thing. Hundreds, and often thousands of pages of documents are generated in this process. The limbo periods give you and your attorney time to strengthen your preparation and financing of the case.
So How Long Does it Take?
It takes about 1.5 to 2.5 years to get a case from the informal stage through a final resolution (assuming there's no appeal). Some cases are shorter, some longer. While there are differences across districts, one theme is common, it takes a while! Unfortunately, filing an EEO complaint is a lot like traditional litigation in that it takes a while to get your case from complaint to court. Nonetheless, this process has many benefits to federal employees.
Keep in mind that a case can settle at anytime. When considering settlement, you should keep the timelines described above in mind. Sometimes it is better to get a reasonable resolution now versus an uncertain outcome years down the road. In either event, we are always prepared to take a case all the way to obtain justice for our clients.
EEOC guidance on the EEO process for federal sector employees. Click here.
EEOC guidance for employees of private (non-governmental) employers. Click here.
7 major stages of EEO litigation. Click here.
The formal Complaint and Investigation. Click here.
Maximizing your recovery. Click here.
What's needed to prove discrimination? Click here.
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