Discrimination/EEO Complaints
The Law Firm of Matthew D. Estes specializes in the representation of federal employees in discrimination complaints in the federal sector Equal Employment Opportunity (EEO) administrative process. If you believe you have been subjected to discrimination, please contact us to protect your rights.
Below is a brief overview of what to expect from the federal sector EEO administrative process from initiating EEO counseling through to filing a civil action in U.S. District Court.
How are Federal Employees Protected against Discrimination?
It is illegal for federal agencies to discriminate against employees based upon race, color, sex, national origin, religion, disability, age, pregnancy, or genetics. Harassment of an employee for discriminatory reasons is also illegal if it creates a hostile work environment. Federal employees are also protected from retaliation for engaging in protected EEO activity, which could include filing a complaint, serving as a witness in another's complaint or opposing discrimination in the workplace.
Stage 1 of the EEO Complaint Process: Informal EEO Complaint/Mediation
If you are a federal employee and believe you are being discriminated against, the first step is to contact an EEO counselor. It is important to contact an agency EEO Counselor within 45 days of any incident that you believe constitutes discrimination or retaliation for EEO activity. This deadline is strictly enforced so you should not delay contacting an EEO counselor if you suspect discrimination. It is also best to speak with an experienced EEO/discrimination attorney to provide advice regarding any potential claim as the EEO counselor is not able to provide you with legal advice.
During the informal process, you have the option to either pursue mediation or traditional counseling. Traditional EEO counseling will advise you of your rights, take down your claim and requested remedies, and get feedback from the Agency about their response to the claim. If you and your agency agree to pursue mediation, you will have the opportunity to sit down with a member of management and a mediator – as well as your representative if you have one – to try to resolve the claim.
Stage 2 of the EEO Complaint Process: Formal Complaint & Investigation
If you cannot resolve the case at mediation, or you pursue traditional counseling, the EEO Counselor will issue you a Notice of Right to File a Formal EEO Complaint. You will then have 15 days to file a Formal EEO Complaint. Again, this deadline is strictly enforced. Once you file a formal complaint, the Agency has 180 days to complete an administrative investigation of your complaint. Many agencies are slow in conducting investigations and you should diligently pursue sanctions against the Agency if they are untimely.
During the EEO investigation, you will be contacted by an authorized investigator to provide information, documents and witnesses supporting your claims. Some investigators elect to conduct phone interviews and others send written questions in an affidavit format. Typically, you will also be given an opportunity to rebut what the responsible management officials say in their own statements and testimony. When the Agency's investigation is complete, the Agency will compile all the investigative materials, statements, and documents into a Report of Investigation, commonly referred to as an “ROI”. The Agency will provide you with a copy of the Report of Investigation and a Notice of Right to Request a Hearing before an EEOC Administrative Judge. You only have 30 days to request a hearing.
In lieu of requesting a hearing before the EEOC, federal employees can also request that the Agency issue a Final Agency Decision based upon the results of the investigation. In most cases, this will result in the Agency issuing a decision in their own favor but depending on the strength of the evidence in the ROI it may be best to circumvent the hearing process and request a FAD.
Stage 3 of the EEO Complaint Process: Hearing before EEOC Administrative Judge
After you receive a Notice of Right to Request a Hearing, you should promptly file a hearing request with the EEOC via the EEOC's public portal. This will require you to create an account on the EEOC’s public portal. Currently, the EEOC does not permit attorneys to file hearing requests on behalf of their clients so you will need to set up the account to file the hearing request form. There is another opportunity for the parties to pursue mediation to try to reach a settlement at this point prior to engaging in the discovery process.
In most cases, the Administrative Judge will provide you and the agency the opportunity to supplement the ROI by obtaining additional relevant evidence through written discovery (interrogatories, requests for admission, requests for production of documents) and depositions. After discovery, both sides have the right to file dispositive motions to try to resolve the case without a hearing. The agency will typically file a Motion for Decision Without a Hearing (or Motion for Summary Judgment), and in some cases, it may be advisable for a complainant to file one as well. If the case is not dismissed prior to a hearing, then the EEOC Administrative Judge will conduct a hearing where you present witness testimony and other evidence to the EEOC Administrative Judge to prove your claim and the agency does the same to defend against your claim.
If you successfully prove your discrimination claim, you may be entitled to various potential remedies designed to make you whole. The remedies available to you depend upon the discriminatory actions taken against you as well as the basis for your claims. For example, if you prevail on an age discrimination claim, you cannot recover attorney's fees or compensatory damages. Generally, the available remedies include corrective actions to rescind and expunge discriminatory actions, back pay and benefits where appropriate, compensatory damages for pain and suffering and out of pocket expenses, and reimbursement of reasonable attorney fees.
Stage 4 of the EEO Complaint Process: Post Hearing Appeals & Civil Action
After a decision issued, the agency is required to issue a Final Agency Decision (“FAD”) to implement (or not implement if they choose) the EEOC Administrative Judge's decision. If you are not satisfied with the Administrative Judge's decision, or the Agency's implementation of it, you have the right to file an appeal to the EEOC's Office of Federal Operations. This is the final stage of the federal sector EEO administrative process. When the administrative EEO process concludes, including all appeals to the EEOC Office of Federal Operations, you have a final right to file a civil action in the appropriate U.S. District Court.
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The federal sector EEO process is lengthy, and at times confusing, process and it is highly recommended to obtain the advice of an experienced and knowledgeable attorney to help you navigate the process and present your case to give you the best chance of success at your agency.
The Law Firm of Matthew D. Estes has successfully represented federal employees at every stage of the EEO process, from filing an informal EEO complaint to a civil action in U.S. District Court, and every stage between. Contact us today to discuss your case and see how we can help.