failed (if you requested ADR), your local EEO counselor should inform you that the mediation/ADR failed and
should give you the notice of the right to file a formal complaint along with the formal complaint form ("Formal
Charge of Discrimination"). (See a blank complaint form for the Army.) You have 15 days (from the date of your
receipt of the form) within which to submit your formal complaint. See How To Write a Complaint.
formal EEO process. 30 days after contacting the EEO counselor, the Agency must forward the class
complaint and the Counselor Report to the Equal Employment Opportunity Commission (EEOC) for class
complaint certification and hearing. See 29 C.F.R. §1614.204 for filing Class Complaints.
See Theories of Discrimination
Filing a Formal Complaint of Discrimination
Submit the formal complaint form to the central EEO Office (or headquarters) of the Agency. The address is
provided in the notice of your right to file a formal complaint. (Each Agency has its own EEO headquarter in
different location throughout the United States). The post stamp date or fax date is your filing date.
Dept. of The Air Force: DD Form 2655
Dept. of The Army: DD Form 2590
General Services Administration: GSA Form 3467
US Postal Service: PS Form 2565
if new issues are related to or stemming from the ones you have filed. Forward the request for
amendment (with clearly identified new allegations) to both the EEO headquarter and EEO investigator (if
one is assigned to your case). You can amend your complaint until Report of Investigation (ROI) is
issued. Or, if you requested an EEOC hearing (after receiving ROI), after you receive the
Acknowledgement and Order from the EEOC administrative judge, you can file a motion to the judge to
amend your claims (to add the new incidents of discrimination or retaliation). See EEOC hearing for how
to file a motion.
the existing (formal) complaint to add the new issues. You need not contact the EEO Counselor to amend
your existing (formal) complaint. However, if the new issues are not related to or stemming from the
issues you have already filed (formally), they cannot be added to the existing complaint as amendment.
You need to contact your local EEO Counselor or--if you are a US Postal worker--you need to file your "Pre-
Complaint" (complaint) to EEO Headquarters. When in doubt, send your new complaint to EEO
Headquarter and let the HQ decide whether the new complaint needs to be amended to your existing
claim or needs to be filed as a new claim with new case number. If it needs to be filed as a new claim,
you need to contact the EEO Counselor and undergo the pre-complaint or informal complaint process.
180 day investigation period (from the date of your formal complaint) will be suspended to allow the
grievance process to occur and to be exhausted and the investigation will resume only after grievance
process is completed without resolution. Grievance therefore will extend the investigation period. It does
not nullify or eliminate the discrimination complaint. It only suspends the investigation. If the investigator
asks for an extension, do not grant it. Granting it only gives more time to the Agency to defend against your
Advice: Submit the formal complaint form with your affidavit as an attachment. Since the formal charge form is a
one page sheet, there is not enough space to articulate clearly and sufficiently your issues and bases. Therefore,
in the box where it asks 'How were you discriminated?' you can put: 'See attached my Complainant Affidavit dated
....' You can do the same with respect to the question regarding the 'remedy.'
case. If you send them along with the Formal Complaint form to the EEO headquarters, they may lose
them. Submit all relevant documents and witness statements to the EEO investigator - whether asked or
not - because whatever you submit to the EEO investigator should and must become part of the Report of
Investigation (ROI), which the investigator will compile and submit to the EEO headquarters at the
completion of investigation. Agency is obligated to complete the investigation and issue you the Report of
Investigation within 180 days of your filing the Formal Complaint. ROI will become the only record Agency
will review in issuing the Final Agency Decision, if you did not request an EEOC hearing and if there is no
EEOC administrative judge's decision in the case. If the hearing was requested and held, and if the
judge's decision was issued, then the ROI and the judge's decision may be the only records the Agency
may consider to issue its Final Decision.
documents relevant to you case. This may be the only tool of discovery you have in the EEO process
(unless you request an EEOC hearing after 180 days from filing a formal complaint). The discovery tool
under FOIA should be used well in advance however, as the Agency may drag its feet in responding to
your requests. When requesting, be very specific and time bound. Name the documents or describe
them as much as possible with specific date range. Many requests are responded to by the Agency trying
to understand or pretending to not understand what was requested. In other words, don't request for any
and all documents ranging over 10 years or with no date range specified. See a sample of document
request (Word Doc).
180 days of your filing the formal complaint, unless you grant an extension. See §1614.106(d)(2).
extension, after expiration of the extension period, you can force the Agency to issue one by requesting a
EEOC hearing. (Hearing request form) Once you request the hearing, the EEOC will order the Agency to
produce it within 15 days. If Agency fails to produce it as ordered, the Agency can be sanctioned, including
issuance of a default judgment against the Agency. EEOC usually grants several extensions and
warnings before issuing a default judgment, however.
The central EEO office/headquarters will acknowledge receipt of your formal complaint and will notify you as to
which, if any, allegations are accepted or rejected for investigation. In many cases, the accepted issue may not
look like what you wrote in your Formal Complaint at all; or the most important issue may be missing or may be
rejected for various reasons. The most frequently cited reasons for rejection are: 'failure to state a claim' (where
issues are not clearly defined or where no real damage is deemed to have incurred), 'untimely filing' (where you
have missed the 45 day deadline within which to contact the EEO counselor to allege discrimination in order to
begin the informal complaint process), and 'lack of jurisdiction' (where bases are not identified). It is very
important that you write clearly and succinctly your allegations and do so with specific dates on each incidents of
discrimination. Avoid narrative style of writing a complaint. EEO office is not interested in your story but only on
the allegations. See issues and bases. Also see how to write a complaint. See Amending Complaints.
You have 5 to 15 days (depending on which Agency EEO headquarters) to dispute the EEO headquarters'
rejection, if any, of your allegations/issues/claims.
Advice: Rebut any rejection of your valid claims, even if the claims may still be rejected afterwards. Because once
you have rebutted, it is easier to challenge Agency's rejection or misrepresentation of your claim later at the EEOC
hearing (if you are going to request one after 180 days of filing a formal complaint.)
EEO investigation and/or fact-finding conference/interview
An EEO investigator will be assigned to your case by the Agency (and paid for by the Agency). (Your local EEO
counselor will be no longer involved in the process hence forth.) The EEO investigator has 180 days (from the
date of your filing the formal complaint) to complete the investigation and to submit the Report of Investigation
(ROI) or, as it is called in various ways, Investigation File (IF) or Investigation Report (IR) or Agency
Investigation File (AIF). See §1614.106(d)(2). See below for more on ROI.
decision as to whether unlawful discrimination/retaliation had occurred. Posing to render such pronouncement
should be countered with your request to say so in writing. Again, the investigator won't commit such
pronouncements in writing. Do not be otherwise intimidated by haughtiness of the investigators who often pose
themselves as decisive to the outcome of your case. They are not decisive. Their role is only to gather relevant
and material information and records on your case and to compile a Report of the Investigation (ROI) and the
Investigation File (IF) containing the exhibits which are referenced in the ROI.
I have heard many claims the investigators make that are clearly in deviance to or distortion of the rules and
regulations governing the federal EEO process, such as: "You have no chance of getting your case heard at a
hearing later on because your case could be dismissed by the judge when the Agency files a motion for
dismissal." This could be true (and is often the case) but what is missing in this statement is the fact that the
judge can also rule in your favor based on what is available in the record without conducting a hearing, if you file a
motion for a summary judgment or motion for a decision without a hearing. It is rare that AJ will render a
summary judgment in your favor, however. It is more likely that AJ will grant Agency's motion for summary
judgment, if your opposition response is not filed or successful. See more in EEOC Hearing. In any event, the
investigator has no business to tell you, or has knowledge, about the EEOC hearing process. Again, their role is
to gather information and docs to compile a Report of Investigation (ROI) and the Investigation File (IF). See
below for ROI and IF.
the formal complaint, regardless whether or not the Report of Investigation is issued to you. (EEOC
hearing request form). The Agency will request you to grant an extension of 60 or 90 days. The
extension is not usually intended to grant YOU more time to present your case to the investigator. Rather,
it is designed to grant the investigator (and possibly the Agency) more time to prepare the Report of
Investigation (or more time to defend against your allegations).
Advice: Don't grant any extension because (1) it only helps the investigator or Agency to come up with
better prepared defense (pretext for discrimination); and (2) because -- later when you request an EEOC
hearing without receipt of ROI -- the Agency will be forced to compile and submit the Report of
Investigation (ROI) to the judge as required. If the Agency fails to submit the ROI within the time frame set
forth by the judge (usually within 15 days), the judge can issue a default judgment against the Agency
(your motion for such a judgment will help the judge to do so). If that happens, you could win by default.
See an actual default judgment. See the motion filed requesting a default judgment. Usually, however,
the judge gives Agency an ample opportunity to compile and submit the Investigative File (containing ROI
and the Investigator's Summary Report).
The Investigator will also interview the management for the same purposes. You should submit your evidence
and witness list to the investigator, whether asked or not. Again, do not rely on the investigator to prove your
case. You must help him or her to do compile the Investigation File (IF) that is in your favor. You have the right to
be represented when the investigator talks to you regarding your case.
Once the investigator interviews you and the management, he or she will compile affidavits for you and for the
management. You may be given a chance to rebut the management's affidavits. You should rebut and present
documents or witness statements refuting management positions.
In the cases involving Dept. of the Army, the EEO investigator may hold a fact-finding conference to take your and
witnesses' statements, all recorded by a court reported. The Agency attorney may be present at the fact-finding
conference, and can question and cross examine you or the witnesses. You should asked for the same
opportunity to examine Agency decision makers when it is their turn to answer the investigator's questions, if
Agency attorney cross examines you.
Advice: Be aware that generally the investigation is in favor of the Agency. The EEO office is part of and is paid by
the Agency; and the investigator is paid by the EEO office. (The latest figure for paying a contracted EEO
investigator is about $2,500 per case. The expense for using the Agency's own in-house EEO investigator is
about $5,000 or more per case.) EEO investigator has no authority to render a judgment on your case. But s/he
usually favors the Agency, as s/he reports to the Agency's EEO Director, who in turn reports to the Agency head.
You can submit a sworn statement or affidavit or submit evidence before, during, or after the fact-finding
conference/phone-interview to rebut lies and distortions that may have been uttered by the management during
the fact-finding conference or in their affidavits. Your sworn statement with signature such as an affidavit counts
more than a statement without a signature. Since the management's statements are presented under oath
(either in the affidavit or during the fact-finding conference), you can present evidence for the purpose of raising a
perjury charge. See Forms for sample of affidavits.
The EEO investigator submits the Report of Investigation (ROI) or Investigation File (IF) to the Agency EEO
Director, who will in turn further review and may revise the ROI or IF. Agency is required to produce and serve you
the ROI and IF within 180 days of your filing the Formal Complaint, unless you have granted an extension. See
§1614.106(d)(2). The Agency may request additional 90 days to complete the investigation and to issue the ROI.
As stated above, after 180 days of your formal complaint, you have a right to request a hearing to be heard by an
administrative judge at EEOC, regardless of whether or not an ROI is issued, or you can sue at the federal district
court. (See below for more on ROI.)
To request an EEOC hearing, you need to fill out the hearing request form (which should be enclosed with the
Report of Investigation) and send it to the appropriate EEOC field office (the address should be provided to you).
As stated above, it is better to request a hearing as soon as the 180 days (from filing a formal complaint) have
passed. Once EEOC receives your request for a hearing, EEOC will order the Agency to produce the Agency's
Investigative File, including the Report of Investigation (ROI). If the Agency fails to produce ROI, EEOC judge
may enter a default judgment against the Agency for failure to produce ROI. You could win by a default judgment.
See an actual default judgment.
In lieu of requesting an EEOC hearing before an administrative judge, you may opt to request Final Agency
Decision (FAD) without a hearing. FAD is issued based on the Report of Investigation that the EEO investigator
compiles at the completion of investigation. It is usually issued in favor of the Agency, written by the Agency
counsel or legal staff in the EEO headquarters.
(OFO), the Agency's decision is subject to de novo (new or fresh) review by the OFO. However, in that
case (when no hearing is held), the de novo standard of review "requires that the Commission [OFO]
examine the record without regard to the factual and legal determinations of the previous decision
maker." See EEOC Management Directive 110, Chapter 9, Section VI.A (November 9, 1999). This means
that no factual dispute can be raised in your appeal to the OFO (if no hearing was held).
Report of the Investigation (ROI) or Investigation File (IF): This (1 to 5 inches or more) thick folder contains the
Report of Investigation (ROI) written by the EEO investigator summarizing the issues and bases and the records
contained in the IF (that follows ROI as attachments), the EEO investigative affidavits (including yours,
managements, and witnesses, if any) or the transcripts from the fact-finding conference (if held) or the transcripts
from the EEO investigator interviews (if any), and documents gathered or submitted during the investigation
period. Usually, documents pertaining to the 'similarly situated individuals' are missing or inadequately gathered,
if requested at all by the EEO investigator. (Note that discrimination is proven by comparing yourself to the
'similarly situated individuals.') Examine the entire ROI carefully. Note that the salient documents supporting your
claims, even if submitted, may not be found in the IF or may be found in the back of the IF or under the wrong tab.
Or they may be scattered apart throughout the IF in such a way that the reader (the administrative judge or
attorney issuing the Final Agency Decision in Agency's EEO HQ could not make sense out of those records).
Also check to see that the IF contains statements you submitted to the investigator. (Evidence or statement you
submitted to the EEO Counselor during the informal pre-complaint counseling period may not be found in the IF.)
hearing was not requested. If a hearing was requested, the judge's decision will be incorporated in the
ordered the Agency to produce the IF upon your request of the hearing; and if the IF was so produced by
EEO counselor, whose role is not to investigate but only to convey your allegations to the management for
speedy resolution, if possible). Usually the EEO investigators, believe it or not, do not ask you for
supporting records. Whether requested or not, whether he or she likes it or not, you should submit the
supporting records to the investigator.
interview or fact-finding conference/interivew. Because, as you will find, the investigator's questions are
ofter very unfair and tilted toward the Agency and not adequate; and you won't be allow to say what was not
asked. If the investigator says that you cannot submit any records or supplemental affidavits, requests
him or her to say it in writing. He or she won't be able to commit it in writing. Because it is in violation of
the rules and regulations governing the formal investigation process, as cited above.
away. Nowadays, however, knowing that you can request the EEOC hearing 180 days after filing a formal
complaint, and that, if you did, Agency would be required to produce the IF to the EEOC; Agencies have a
different approach. They have the investigator contact you toward the end of the 180 day investigation
period, to rush the investigation, and to rush obtaining affidavit from you; and issued the IF soon after
interviewing you--like within a month after the investigative interview/affidavit submission. This way, you
won't have enough time to examine the affidavit the investigator wrote for you based on your interview or
won't have enough time to provide supporting documents or supplemental affidavit. Be aware of such
tactics and submit your support docs soon after the investigation interview or affidavit submission. Any
submission prior to investigator contacting you may be lost or claimed to have been lost.
docs to the investigator would not be a bad idea. Copy the EEO Director without records as attachments,
so as not to create duplication.
supplemental affidavit, do submit them to the EEO Director. They should be made part of the IF as the
post-investigation submission. (There is such a tab so designated in the IF.)
one in its favor. IF becomes the official record of your discrimination complaint during the life of your
case. EEO claims (once filed formally) are reflected in manager's performance evaluations. Agencies are
evaluated based on the number of EEO claims. Informal EEO complaints do not count, as there will be no
such records kept. One more reason not to submit records to your EEO counselor but to reserve them for
The Agency is required to send you the Report of the Investigation (ROI) along with all documents referenced
therein, along with the notice of your right to request a hearing (to be held before an administrative judge at
EEOC); when the IF with ROI is issue to you.
Advice: Keep the Report of the Investigation (ROI) or IF intact because the pages and the tabs can be referred to
later at the EEOC hearing (if a hearing is requested and held) or in your written appeal to the Office of Federal
Operations (OFO) in Washington, D.C. (See Appeal to OFO). If I were asked: "What is the most important in the
IF?" I would say: The page numbers. Without referring to the page numbers, you cannot effectively use IF when
filing a motion to the administrative judge (AJ) during the hearing process or when appealing to OFO later.
Review the Report of Investigation carefully. Note errors, lies, and misrepresentation. Also note any evidence the
Agency may have submitted that support your discrimination claim. Also note what other evidence you can
request later from the Agency to be produced during the EEOC hearing process (if you will request a hearing). If
you request a hearing and if hearing is granted, you can compel the Agency to produce documents and to
respond to your interrogatories under Administrative Judge's authority granted for and during the EEOC hearing
investigator. Usually, the most damaging evidence is buried in the back of the thick (2-4 inch) ROI or in
the midst of unrelated documents or, worst, is omitted.
option to waive your right to request an EEOC hearing and wait for Final Agency Decision on your case or to
request an EEOC hearing. Exercise your right to request an EEOC hearing because you will have the discovery
rights - the only chance you have to send interrogatories to Agency decision makers and to formally request
documents not in your possession (such as documents pertaining to other 'similarly situated individuals.'). See
EEOC hearing for more on discovery process.
The Formal Complaint process ends with issuance of Report of Investigation and of the notice of the option to
either request an EEOC hearing or to wave that right and request the Final Agency Decision (FAD).
the Final Agency Decision (FAD). The Final Agency Decision must be issued within 40 days of issuance of the
administrative judge's (AJ's) decision. FAD (and not AJ's decision) may be appealed to Office of Federal
Operations (OFO). If judge's decision is not in your favor, you may want to send the prehearing brief (if you filed
one prior to the hearing) or a new brief to Agency EEO headquarters to be considered before the EEO HQ issues
the Final Agency Decision (FAD). Or, if no pre-hearing report was filed, you may want to rebut the judge's decision
by presenting a brief containing summary of facts, arguments, evidence (or reference to evidence in the IF) to
Agency EEO headquarters to be considered before Agency issues the FAD. See a sample of a brief. When you
do, you want to request that the judge's decision not be implemented in the FAD. Any complaint against the
EEOC administrative judge may be reported to EEOC's Office of Federal Operation (OFO) along with your appeal
(when you appeal the FAD). See OFO appeals.
Agency Decision (FAD) will be issued. You can appeal the FAD to the Office of Federal Operations (OFO).
Free Court-Appointed Attorneys (only when you are filing a complaint at the federal district court)
may appoint an attorney for such complainant and may authorize the commencement of the action without
the payment of fees, cost, or security.
when you file a law suit at a U.S. District Court. See a sample of a court complaint. A sample of pro se complaint.
Court, in lieu of requesting an administrative EEOC hearing; or within 90 days of receiving Final Agency Decision
or OFO appeal decision.
|Formal Complaint Process