Law Office of Marc J. Smith, LLC
Employment Law and Litigation Counsel

Employment Law Blog

Common Missteps To Avoid When Making Federal Sector EEO Complaints

Over the course of my career, I have litigated hundreds of employment cases.  Most of these cases have involved private sector employers, but I have handled a number of federal sector EEO claims over the years as well.  There are significant differences in the manner in which private vs. public sector EEO claims are handled.  In my opinion, there are many more “opportunities” for federal employees to damage their case or lose their rights altogether.  Here are some of the more common missteps to avoid:

  1. Failure to seek EEO counseling. If you feel you have been discriminated or retaliated against for engaging in protected activity, you must seek EEO counseling within 45 days of the discriminatory event.  Failure to seek EEO counseling in a timely manner usually means you lose your right to pursue that particular claim.

  2. Failure to Timely file your EEO Complaint.If EEO counseling is not successful (and it is usually not — “counseling” is a bit of a misnomer as my experience has been that little effort is made to “counsel” or resolve the EEO complaint at this stage) and you intend to continue to pursue your claim, you must file a formal complaint of discrimination within 15 days of receiving notice of your right to do so.  Again, failure to timely file your complaint results in a loss of your rights.

  3. Sloppy and Incomplete Complaints.  Only the issues identified in your EEO complaint will be investigated.  Be sure to include all issues underlying your complaint and identify the type of discrimination you are complaining about.  If you are asserting a retaliation complaint, be sure to identify the protected activity you claim spurred the retaliation.

  4. Failure to Remain Engaged During the Investigation.After the timely filing of a formal EEO complaint, the Agency will use an investigator (an Agency employee or contractor) to conduct an investigation of your complaint.  Unfortunately, there are times when the investigator assigned to your case is lazy, not thorough or perhaps even biased.  It is therefore critical that you remain engaged during the investigation and identify all witnesses for the investigator, carefully review the affidavit the investigator prepares for you for inclusion in the “Report of Investigation,” and prepare rebuttals to all affidavits that contain allegations that you take issue with.

  5. Failure to Request a Hearing in a Timely Manner.Upon completion of the investigation, federal employees have a period of 30 days in which to request a hearing before an EEOC administrative judge. Failure to request a hearing in a timely manner will result in the loss of the right to a hearing and will allow the agency to issue a “final agency decision” on the merits of the employee’s complaint — in other words, the agency will decide the merits of your claim and determine whether it is guilty of discrimination or retaliation.

Marc Smith