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.
We represent numerous employees in the Federal Employee EEO complaint process. The Equal Employment Opportunity (EEO) complaint process for federal employees can be challenging, especially if you’re experiencing discrimination or harassment. It is important to understand your federal employee rights as you move forward with your complaint. While each case is different, here are 14 tips to consider during the federal employee EEO complaint process.
EEO Tips to Consider
1. Understand Your Rights First
Before taking action, familiarize yourself with your rights under federal employee EEO laws and regulations. These laws prohibit discrimination based on race, color, religion, sex, national origin, age, disability, and genetic information. Many federal employees get bad advice on what constitutes an EEO complaint. Knowing your rights is crucial as it helps you recognize if you have a valid complaint or should take another approach.
2. Gather Documentation/ Possible Evidence
EEO cases are documentation-heavy. As a result, it is important to retain all documentation that is involved in your case. Such information can include emails, text messages, witness statements, policies, notes, photographs, video, and other documentation. For instance, if you were sexually harassed by a manager and you have emails demonstrating this, it would be important to have them when preparing to file a complaint.
3. Be Timely
It is critical to be timely when filing an EEO complaint. Typically, there is only a 45-day time period in which to initiate a complaint. There are some exceptions involving hostile work environment claims. However, it is critical to plan to file your claim on time. If not, the best claim in the world may be dismissed. Each federal agency has its own procedures to follow, so make sure to consult your agency’s EEO office for specific guidance.
4. Spell Out Your Claims Clearly in the Informal Complaint
When initiating the informal EEO complaint within 45 days, put it in writing. Additionally, you should be clear about all of the issues you are raising. We find that initiating the informal complaint verbally, with no written record, can often lead to a disagreement about what was disclosed within the 45-day period. In many cases, we treat the informal complaint with as much detail as would be provided in the formal complaint. It is important to describe the incidents of discrimination in detail, including dates, locations, and the individuals involved. Clarity can prevent misunderstandings and help the EEO counselor address your complaint more effectively.
5. Think About Solutions Before Filing
Before initiating the informal complaint, consider what you may want to resolve the case. In many instances, if there is a plan to resolve the complaint in advance, an attempt to mediate the dispute can take place. Given the longer nature of the EEO complaint process, settling early, where possible, may be the best option. If the parties agree to alternative dispute resolution (ADR), they have a chance to resolve it. If successful, both parties will resolve the complaint in a settlement agreement.
6. Know the Timelines and Process
The EEO complaint process has specific timelines. If the complaint is not resolved, a number of timelines will start. A federal employee will receive their notice of right to file a formal EEO complaint. This usually has a deadline of 15 days. Additionally, after you file your complaint, the agency typically has a set period of time to investigate your claims (180 days).
7. Respond to Agency Dismissal Attempts
In some cases, federal agencies will attempt to dismiss (and not investigate) your EEO complaint. It is advisable to respond to these attempts and explain why the complaint should not be dismissed. Even if dismissed, these claims can later be potentially revived before an administrative judge if you file a response describing why the agency has to investigate your claims.
8. Follow-up If Investigation Delayed
After filing the EEO complaint, there is often a delay in starting the investigation. In some cases, the agency forgets or is slow in appointing an investigator. In such cases, it is important to follow up with the agency’s EEO office to see if an investigator has been appointed and obtain their contact information. In most cases, the EEO investigator appointed is from a third-party contractor. The sooner that you obtain the EEO investigator’s contact information, the better.
9. Provide Names of Witnesses and Documents to the Investigator
Agencies are required to conduct an impartial and fair investigation. That said, federal employees can’t assume that EEO investigators will know who to question or what documents to seek. Investigators usually have some idea where to start. Usually, it is important to provide a list of witnesses and documents that the EEO investigator can use to start the investigation. It is often the case that EEO investigators will miss key witnesses unless they are identified. You can help yourself by providing this information to the EEO Investigator.
10. Cooperate with the Investigator
It is important to cooperate with the assigned investigator. It is often the case that EEO investigators will ask for additional documents, rebuttals to witness statements or other responses by certain deadlines. If a complainant doesn’t comply with these requests, it can hurt the investigation and the case. Even though the EEO complaint process can sometimes be difficult, it is important to stay professional and cooperative throughout the process.
11. File Amended Claims if New Issues Arise
If, during the course of the EEO investigation, new EEO issues arise, you can often file an amendment to your EEO complaint. Doing so can reset the timelines, but it may be important to consolidate new EEO complaint issues that come up during the course of the investigation. For example, a federal employee files an EEO complaint against a supervisor, and the supervisor later tries to discipline the employee. It would be likely be important to amend the original claims and include a new count of retaliation.
12. Keep an Eye on the Investigation Timeline
An EEO investigation is generally required to be completed in 180 days. After this period of time, a complainant can move their case to the hearing process if the investigation is not completed. However, in some cases, it is important to let the EEO investigator complete their investigation first. If the wait is minimal, then it is better to have the Report of Investigation to start your case than not.
13. Keep Records of Correspondence with Agency and EEO Investigator
It is important to keep records of all contact with the agency’s EEO office and the EEO investigator. There could be a dispute later about what issues were raised or whether or not you asked a certain witness to be interviewed. The best defense to these issues is to keep a copy of all emails and correspondence sent to the agency.
14. Hire a Federal EEO Lawyer
The EEO complaint process can be complex with many twists and turns. It is important to retain an experienced lawyer in federal EEO complaints to help you from the start. The best time to hire a lawyer is before the 45-day timeline for initiating EEO contact starts.
Conclusion
Filing an EEO complaint can be a challenging process, but knowing your rights and following the proper steps can put you in the best position moving forward. By gathering evidence, being clear about the allegations in your complaint, and hiring experienced EEO counsel, you can navigate the process with greater confidence. If you are in need of experienced federal employee EEO lawyers please contact us at (703) 668-0070 or through our website to schedule a consultation.
