We often represent and defend federal employees and supervisors named as respondents in Equal Employment Opportunity (EEO) complaints. While many attorneys represent only complainants in EEO complaints, we also represent those co-workers and supervisors accused of EEO misconduct in their defense. In cases where a federal employee or supervisor has been named a respondent in an EEO case by another federal employee, it is very important for them to also obtain legal advice and counsel throughout the EEO investigation in order to avoid disciplinary action later.
An EEO respondent simply means that the individual has been named as part of the EEO violations or misconduct at issue.
How EEO Complaints Against Supervisors and Co-Workers Arise
EEO complaints in the federal sector arise in any number of ways; there are too many to name all of the examples here. The most common way in which a federal supervisory EEO complaint occurs is when a new supervisor moves to a new agency or new division within a previous agency and attempts to change practices and procedures. The new supervisor may come into a workplace with a number of past practices and rules about how an agency mission should be accomplished and attempt to implement these new policies and practices. In some instances, this can upset the status quo and lead to employees filing a multitude of different EEO complaints.
The next most common basis for an EEO complaint is where a subordinate federal employee has been given a large workload and feels underpaid. Also, a federal supervisor can sometimes expect an EEO complaint if they are in the process of disciplining a federal employee or a low performance rating is imminent.
For co-worker EEO complaints, they usually occur when there is an allegation that the co-worker has engaged in harassment or retaliation against them, in some form, and that their supervisors have not addressed these harms. We have also seen co-worker EEO complaints arise when a co-worker is favored by a supervisor (or appears to be favored) in some aspect of work over the complainant. Sometimes, co-workers receive EEO complaints when they are acting in a lead or temporary supervisor capacity as well.
In either case, an EEO complaint alleges that the federal supervisor or co-worker has violated the Civil Rights Act, which in itself can be the basis of a misconduct charge.
Legal Defense against EEO Complaints
As mentioned above, EEO complaints against federal supervisors or co-workers generally start off in response to a non-EEO issue; for instance, a new supervisor provides a bad performance evaluation to an employee and/or issues a minor (or major) disciplinary action. Typically, it is most often the case that when a federal employee is about to receive an disciplinary action, or has received some sort of performance action that they may file an EEO complaint against their supervisor. They may then request that the supervisor be warned about not engaging in retaliation or request that there be no-contact between the two of them.
This can often lead to confusion and lag time between an investigation and a resolution of the issues. Following the filing of an EEO complaint, the EEO process will then unfold. It is important for a federal supervisor to have their own counsel in responding to these allegations at the earliest stage. Doing so can help from becoming steamrolled in the process.
EEO complaints against federal employee co-workers pose special legal defense challenges given that a supervisor may find it easier to agree with a complainant to avoid subjecting themselves to the EEO process. A federal employee co-worker accused of misconduct can quickly find themselves without any allies in the EEO process. This is why they need counsel to advocate for them in the EEO process.
Responding to an EEO Complaint
It is important for a federal employee or supervisor to be prepared when they are facing allegations related to an EEO complaint. We often find that it is helpful to interview the supervisor or federal employee about what the EEO complaint allegations against them may involve, if they have not been notified of the specific allegations. Generally, a federal supervisor or federal employee can guess as to what type of allegation has been brought by their subordinates; in some rare situations this is not the case. It is helpful to go over the facts, the relationship to the EEO complainant and to see what type of alleged conduct one is looking at. Once the factual allegations have been determined, the next step is to defend against the complaint.
The EEO Investigative Process for Federal Supervisors and Employees Accused
Following the initial EEO complaint, there can be a number of different steps in a dealing with a federal employee’s EEO complaint against them. For instance, the complainant may elect to engage in mediation, should there be an attempt to resolve the issues before the formal EEO investigation. Additionally, if there are no mediation proceedings, then the most typical next step will be for the EEO investigation to proceed.
Depending on whether the federal supervisor or co-worker is the respondent in the EEO complaint (usually this is the case), then the federal supervisor or co-worker will likely have the opportunity to review the subordinate’s EEO claims and will be provided a chance by the EEO investigator to rebut the allegations. The federal supervisor or co-worker may be interviewed and can have counsel represent them during the EEO investigation. The interview is usually mandatory, and the federal supervisor or co-worker is required to be truthful, but it is important to understand that an EEO investigation is different than a misconduct-based investigation.
Typically, EEO investigations vary greatly depending on the investigator assigned to the case. Sometimes they will ask for a brief written response to the allegations, and sometimes they will seek in depth responses during an interview. A misconduct investigation is far more thorough than an EEO investigation. This is a significant variable in these types of investigations. A federal supervisor or co-worker may also be asked to provide documents and undergo a second interview. It is important for these employees to have legal counsel in responding formally to these allegations.
After the EEO Investigation
When the EEO investigation has been concluded, a Report of Investigation (ROI) will be prepared by the EEO investigator and given to the complainant. The federal employee accused of EEO violations, however, will usually not even be informed that the investigation has been concluded. It is often the case that they will continue to wonder what has transpired in the EEO complaint process. This can cause a great deal of stress. In the ROI, the EEO investigator will reiterate what both the EEO complainant and what the supervisor or co-worker has contended during the investigation and attach other related documents. The respondent, unless given to them by the complainant will likely never see the ROI.
In the ROI, there will usually not be any conclusions of fact by the EEO investigator. The ROI itself can consist of hundreds of pages of documentation.
The EEO complainant will then have the option to request an Equal Employment Opportunity Commission (EEOC) hearing or request a Final Agency Decision (FAD). Usually, a complainant requests an EEOC hearing because a FAD is an internal agency decision. At that point, a federal supervisor or co-worker is unlikely to hear more about the case unless they have been subjected to a disciplinary action based on the underlying EEO issues or if they have been called for a deposition or other testimony in the case at the EEOC hearing or in court. There is a chance for legal representation in this process as well if this occurs.
Legal Representation During the EEO Process
It is important for a federal supervisor or co-worker to keep in mind that during the EEO Complaint, mediation, investigation and hearing process that the agency attorney is not their attorney. The agency attorney, at all stages, represents the agency and their interests. This point can sometimes be confusing for some federal supervisors or co-workers because it may seem like the agency attorney is representing them and the agency at the same time, but that is not the case. It is important for a federal supervisor or co-worker, therefore, to have their own attorney if accused of EEO misconduct. Additionally, it is not unusual for an agency attorney to attempt to resolve an EEO complaint to the detriment of the federal supervisor or co-worker that has been accused so it can be important to have your own attorney.
Contact Us
When a federal supervisor or federal employee co-worker is facing accusations of improper EEO misconduct, it is important to obtain legal advice and representation of counsel. Our law firm advises and represents federal employees throughout the country. We can be contacted here or by telephone at (703) 668-0070 for further information.
Review of Formal Complaint After Submission
After it is submitted, the Agency will begin to review the grounds of the EEO complaint. The Agency will then either accept the claims for investigation or dismiss some or all of them based on procedural grounds. In accepting claims, the Agency will send you an acceptance letter listing the claims to be investigated. In the letter, the Agency will spell out the next steps in the EEO process. The letter will also state that the investigation must be completed within 180 days. It is important to have federal employee EEO legal representation in these cases.
Dismissal of Claims
If the Agency dismisses all or a part of a complaint, the federal employee has options. If the Agency dismisses the EEO complaint, it must issue a final decision. The Agency should clearly set forth the reasons for dismissing the complaint. The Agency will provide the complainant appeal rights to the Equal Employment Opportunity Commission (EEOC) where an appeal can be filed.
Acceptance of Claims and Investigation
If the Agency accepts a claim, it will initiate an investigation into the EEO complaint. An investigator will be appointed. These investigators can be in house federal employees or government contractors. Typically, the appointed investigator will contact you and ask you to provide some responses to questions about your EEO complaint. The investigator may also ask for documents or other supporting materials for your complaint.
What Does the Investigator Do?
Once the investigator is appointed, they are authorized to conduct the EEO investigation for the Agency. Investigators are authorized to administer oaths. In conducting their investigations, investigators use many different methods to conduct the investigation. These include affidavits, interviews, interrogatories or other methods to obtain facts about the EEO complaint.
The investigator will also ask for this type of information from others named in the Complaint or who are witnesses. The Agency will then conduct this investigation into the claim(s) and issue a Report of Investigation. This will be issued approximately 180 days after the formal complaint was filed. Federal Employee EEO investigations can include a variety of methods such as interviews, requests for responses to questions, and/or affidavits. The process varies by Agency and investigator. The investigative process is considered to be non-adversarial and often conducted by a third party contract investigator.
Rebuttals
In some cases, after the Complainant’s statement and responsive statements are taken, the investigator will want a rebuttal statement. This is just a statement responding to the information that was provided by one of the witnesses in the case.
Completion of Investigation Process
Federal agencies are required to complete an investigation within 180 days of the filing of a formal complaint. If the complaint is amended or consolidated with another complaint, the investigation must be completed 180 days after the filing of the last complaint or no later than 360 days after the filing of the original complaint, whichever is earlier.
Contact Us
Our law firm represents and advises federal employees in EEO complaint investigations. If you need legal assistance regarding an EEO complaint or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
