Formal Complaint Stage
An EEO complaint enters the formal complaint stage when it is filed with DOCR after the completion of the pre-complaint stage and receipt of the "Notice of Right to File a Discrimination Complaint (Notice)". The complainant has 15-calendar days from receipt of this Notice to file a formal complaint. The complaint must be a signed statement from the complainant or the complainant's attorney. The complaint must include the telephone number and the address of the complainant and/or the chosen representative. The complaint itself must precisely identify the complainant and agency. A general description of the alleged discriminatory action or practice (29 CFR 1614.106) must also be included. At this point, the decision will be made to either dismiss or investigate the claim. The complaint can be amended at any time prior to the conclusion of the investigation.
Agency Obligations to the Complainant
The agency must acknowledge receipt of the complaint in writing and inform the complainant of:
- Date the complaint was filed
- Address of the EEOC office where a request for a hearing should be sent
- Complainant's right to appeal the agency's final action
- Complainant's right to withdraw the complaint
- Agency must investigate the complaint within 180-calendar days of the filing date
- Any amendments to the complaint
Formal Complaint Process
A case that has not gone through the pre-complaint stage will be remanded to the servicing OA Office of Civil Rights. The individual(s) may still choose to contact an EEO Counselor or use the OA's ADR Program. Multiple complaints filed by the same or different complainants are combined in accordance with 29 CFR 1614.606 . A hearing can be requested from an EEOC Administrative Judge (AJ) on the consolidated complaints any time after 180-calendar days from the date the original complaint was filed.
Dismissal of a Complaint
An agency may dismiss an entire complaint for any of the following reasons:
- Complainant's failure to state a claim or stating the same claim that is pending or has already been decided by the agency or the EEOC
- Complainant's failure to comply with the time limits
- Filing a complaint on a matter that has not been brought to the attention of a an EEO Counselor and which is not like or related to the matters counseled
- Filling a complaint which is the basis of appending civil action or which was the basis of a civil action already decided by a court
- The complainant has already chosen to pursue the matter through either the negotiated grievance procedure or in an appeal to the Merit Systems Protection Board
- Where the matter is moot or merely alleges a proposal to take a personnel action
- Where the complainant cannot be located
- Where the complainant fails to respond to a request of a previously filed complaint
- Where the complaint alleges dissatisfaction with the processing of a previously filed complaint
- Where the complaint is part of clear pattern of misuse of the EEO processes for a purpose other than the prevention and elimination of employment discrimination (29 CFR 1614.107)
Agency's Obligation if the Case is Dismissed
If an agency finds that some, but not all, of the claims in a complaint should be dismissed for the above reasons, it must:
- Notify the complainant in writing of the reason for this decision
- Identify which allegations will not be investigated
- Place a copy of the given notice in the investigation file
The determination to dismiss a complaint shall be viewable for review by an EEOC AJ if a hearing is requested on the remainder of the complaint. However, it cannot be appealed until a final action is taken by the agency on the remainder of the complaint (29 CFR 1614.107).
EEO Specialists located in the Departmental Office of Civil Rights conduct the investigations. Contract investigators are used to reduce peak load or backlog situations.
The agency must complete the investigation within the earlier of:
- 180-calendar days after the last amendment to the complaint
- 360-calendar days after filing the original complaint
Investigations will be conducted by the respondent agency. An impartial and appropriate factual record will be drafted by the investigating agency. From this record, findings will be made on the claims made by the aggrieved party. An appropriate factual record is defined as one that allows a reasonable fact finder to draw conclusion on whether discrimination occurred (29 CFR 1614.107).
Offers of Resolution
An agency may make an offer of resolution to a complainant, whether represented by an attorney or not, after the parties have received notice that an administrative judge has been appointed to conduct a hearing, but not later than 30-calendar days prior to a hearing. Any offers of resolution must be in writing and include a notice explaining the possible consequences of failing to accept the offer. If the complainant does not accept the offer within 30-calendar days of receipt, and the final decision on the complaint is not more favorable than the offer, then the complainant shall not receive payment from the agency for attorney's fees or costs incurred after the 30-day acceptance period (29 CFR 1614.109).
Once the Department finishes its investigation, it will issue a Report of Investigation (ROI). A copy of the investigation file and notification must be sent to the complainant letting them know they have 30-calendar days (from receipt of the file) in which to either:
- Request a hearing and decision from an EEOC AJ
- Request an immediate final decision from the agency
- 29 CFR 1614.108
Request Agency's Final Decision
If the complainant does not request a hearing before an EEOC AJ or an immediate decision from the Department, DOCR is expected to issue its decision in 60-calendar days. The Office of General Counsel provides legal advice and support to DOCR throughout the formal complaint process, representing the Department at hearings and defending final agency decisions and orders on appeal and reconsideration.
Final Action by Agencies if the AJ Does Not Issue a Decision
When an AJ has not issued a final decision, the agency must take final action by issuing a final decision. The agency's final decision will consist of findings by the agency on the merits of each issue in the complaint. Where the agency has not handled certain allegations in the complaint for any of the procedural reasons defined in 29 CFR 1614.107, the agency must provide the reason for its decision not the process the allegations. The agency's decision must be issued within 60 days of receiving notice that the complainant has asked for an immediate final decision. The agency's decision must contain notice of the complainant's right to appeal to the EEOC, or to file a civil action in Federal court (29 CFR 1614.110).
Request for Hearing Format
The complainant must send his or her request for a hearing to the EEOC office indicated in the agency's acknowledgement letter. The request must include a copy of the acknowledgement letter. Within 15 days of receipt of the request for a hearing, the agency must provide a copy of the complaint file to the EEOC office. The EEOC will then appoint an AJ to conduct a hearing (29 CFR 1614.108).
Agencies will ensure the attendance of all employees approved as witnesses by the AJ. Hearings are considered part of the investigative process, and are closed to the public. The AJ conducts the hearing and receives relevant information or documents as evidence. The hearing is recorded and the agency is responsible for paying for the transcripts of the hearing. Rules of evidence are not strictly enforced during proceedings. If the AJ decides that some or all of the facts are not in dispute, then the scope of the hearing may be limited or a decision issued without a hearing.
Prior to the hearing, the parties may conduct discovery. The purpose of discovery is to allow each party to obtain relevant information to prepare their cases. Each party will initially cover their own costs for discovery. The AJ can require the agency to bear the costs for the complainant to obtain depositions or any other discovery because the agency failed to complete the investigation in a timely manner or failed to adequately investigate the allegations. For a more detailed description of discovery procedures, see EEOC Management Directive 110, Chapter 6.
The AJ must conduct the hearing and issue a decision on the complaint within 180 days of receipt of the complaint file from the agency. The AJ will send copies of the hearing record, the transcript, and the decision to the parties. If an agency does not issue a final order with 40 days of receipt of the decision, the AJ's decision becomes the final action by the agency in the matter (29 CFR 1614.100).
Final Action by Agency if the AJ Issues a Decision
When an AJ has issued a decision, the agency has 40-calendar days from the receipt of the hearing file and the AJ's decision to take action and issue their final order. The final order must do the following:
Notify the complainant whether or not the agency will fully implement the decision of the AJ
Notify the complainant of his or her right to appeal to the EEOC
Notify the complainant of his or her right to file a civil action
If the Final Order does not fully implement the decision of the AJ, the agency must at the same time file an appeal with the EEOC and attach a copy of the appeal to the final order (29 CFR 1614.110).