These phases are hierarchical, meaning one phase must usually be exhausted before the next phase can be started. A complaint that does not follow this hierarchy will be remanded to an earlier phase. If specific time limits under EEOC regulations have been exceeded, your complaint may continue on to the next phase.
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Flowchart of EEO Complaint Process
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Pre-Complaint Processing Timeline
Before filing a formal complaint, the aggrieved person must contact an EEO Counselor. A counselor must be contacted within 45 days of the alleged discriminatory action. The 45 days time period will only be extended for the following cases:
Role of the EEO Counselor
EEO Counselors are an integral part of the complaints system and will counsel any employee or applicant for employment. They are responsible for:
- Informing you of your equal employment opportunity rights and their role in supporting your rights
- Informing you of the DOT internal complaint process and all steps you may be required to take
- Providing instructions on how and where to file a complaint
- Providing additional guidance on Federally mandated time limits and procedures
- Informing you of the DOT (ONE DOT Sharing Neutrals) Program as an option for resolving your issue(s)
- Gathering as many details about the alleged discriminatory act as possible
- Informally working to resolve the alleged discriminatory act
- Advise individuals in writing of their rights and responsibilities in the EEO Process
- Once a complaint is filed, submit a written report to the agency's EEO office concerning the issue discussed and the actions taken during counseling
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EEO Counseling/Informal Complaint
Under current DOT structure and procedures, the Operating Administrations (OA)s and currently the Assistant Secretary for Administration (ASA) process the informal or counseling phase. All federal agencies must have an ADR program. The Department of Transportation uses the ONEDOT Sharing Neutral Program. ONEDOT uses mediation as its ADR method. ADR can be used in any phase of the complaint process. At any point of this phase, you can contact an EEO Counselor or use the ONEDOT ADR program.
Counseling Sessions
EEO counselors provide information to the aggrieved individual(s) concerning how the federal sector EEO process works, including time frames and appeal procedures. At the initial counseling session, counselors must advise individual(s) in writing of their rights and responsibilities within the EEO process, including the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final decision from the agency following its investigation of the complaint. Counselors will describe how ONEDOT Sharing Neutrals Program, DOT's ADR program, works, the opportunity to participate in ADR, and the right to file a formal complaint if ADR does not result in a resolution. The counselor must also inform the individual(s) of their right to proceed directly to court in a lawsuit under the Age Discrimination in Employment Act (ADEA), of their duty to mitigate damages, and that only claims raised in pre-complaint counseling may be alleged in a following complaint filed with the agency.
Counseling Timelines
Counseling must be completed within 30 days of the date the agency's EEO office was contacted to request counseling. If the matter is not resolved in that time period, the counselor must inform the individual(s) in writing of the right to file a discrimination complaint. If the individual(s) chooses ADR, counseling will be extended an additional 60 days, but will never exceed 90 days.
Requesting Mediation
If an employee chooses to use mediation, he or she will submit a Request for Mediation form. The case will be reviewed to ensure that mediation will work and not cause further delays in resolving any issue(s). The agency and the complainant will be sent an Agreement to Mediate form to fill out and turn in. The case is then referred to a mediator.
Mediator
Once a mediator is selected, he or she will contact each party for a pre-mediation meeting. These meetings are confidential and are designed to help clear the way for communication and resolution during mediation. Each party will be advised on the mediation process.
Mediation Session
Mediation will be conducted in a neutral location. Here, each party and the mediator will discuss options and methods of resolution. It may take more than one session or several individual meetings between each party and the counselor to reach a settlement.
Resolution
If the parties cannot reach an agreement, the mediator will contact an EEO Counselor to set up a final interview so that the complainant can file a formal complaint. If the parties reach a settlement, the mediator will write a Resolution Agreement. If the agency fails to comply with the Resolution agreement, the complainant has 30 days (from the date they knew of the noncompliance) to contact the Departmental Office of Civil Rights.
Notice of Final Interview
Once the "Notice of Final Interview" form from the counseling agency is received, the complainant has 15 days to file a formal complaint. The formal complaint must identify the agency official with whom the complaint must be filed and whether or not the aggrieved party is being legally represented.
The 30 days counseling period can be extended for an additional 60 days under the following conditions:
- The individual(s) agrees to such extension in writing.
- The aggrieved person chooses to participate in an ADR procedure
If the claim in not resolved before the 90th day, the Notice of Final Interview form must be issued to the individual(s).
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Formal Complaint Phase
Complaint Format
An EEO complaint enters the formal phase when it is filed with DOCR after the completion of the informal phase and receipt of the "Notice of Final Interview". The complainant has 15 days from receipt of this notice to file a formal complaint. The complaint must be a signed statement from the aggrieved party or the party'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 dismiss the complaint
- Agency must investigate the complaint within 180 days of the filing date
- Any amendments to the complaint
Formal Complaint Process
A case that has not gone through the informal phase will be remanded to the OA or the ASA. The aggrieved part may still choose to contact an EEO Counselor or use the ONEDOT ADR program. ONEDOT will use mediation as its ADR method. 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 days from the date the original complaint was filed.
Dismissal of a Complaint
Prior to a request for a hearing, 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).
Investigations
If ONEDOT is not used to settle the case during ADR, the Department conducts an investigation. Permanent specialists located in six DOCR regional offices conduct the investigations. Contract investigators are used occasionally to reduce peak load or backlog situations.
Investigation Timelines
The agency must complete the investigation within the earlier of:
- 180 days after the last amendment to the complaint
- 360 days after filing the original complaint
Investigation Process
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 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 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).
Investigation Complete
Once the Department finishes its investigation, it will issue a report of investigation. A copy of the investigation file and notification must be sent to the complainant letting them know they have 30 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 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.
Discovery
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.
Hearing Request Timelines
A complainant has 30 days from the receipt of the investigation file to request a hearing from an EEOC Administrative Judge (AJ). A hearing can be requested on the consolidated complaints any time after 180 days from the date the original complaint was filed.
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).
Hearing Process
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.
Hearing Decision
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 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 use 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 use 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).
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).
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Appeal Process
Types of Appeals
- Appeal to the agency's final action (29 CFR 1614.401)
- Dismissal of complaint within 30 days of receipt (29 CFR 1614.402a)
- Final decision of the agency when the issue of employment discrimination was raised in the grievance procedure (29 CFR 1614.401d)
- The agency's final action and order do not fully implement the AJ's decision (then the agency has to appeal to the EEOC) (29 CFR 1614.110a)
- Complainant's appeal to the EEOC for a determination as to whether the agency has complied with the terms of the settlement agreement or decision (29 CFR 1614.504b)
Appeal Timelines for Supporting Documents
All appeals must be filed with the EEOC's Office of Federal Operations (OFO). The following timetables apply to documents being submitted:
- Any statement or brief on behalf of a complainant in support of the appeal must be given to the OFO within 30 days of the filing the notice of appeal
- Any statement or brief on behalf of the agency in support of its appeal must be filed within 20 days of filing the notice of appeal
- An agency must submit the complaint file to OFO within 30 days of initial notification that the complainant has filed an appeal or within 30 days of submission of an appeal by the agency
- Any statement or brief in opposition to an appeal must be submitted to OFO and served on the opposing party within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal has been filed, within 60 days of receipt of the appeal
- 29 CFR 1614.403
EEOC has the authority to draw unfavorable conclusions against a party failing to comply with its appeal procedures or requests for information (29 CFR 1614.404c).
The decision on an appeal from an agency's final action is based on a de novo review (question of law), except that the review of the factual findings in a decision by an AJ is based on a substantial evidence standard of review (29 CFR 1614.405a).
Requests for Reconsideration
A party may request that EEOC reconsider its decision within 30 days of receipt of the commission's decision. Such a request is not a second appeal, and will be granted only when the previous EEOC decision involved an invalid interpretation of material fact or law; or when the decision will have a significant impact on the policies, practices, or operations of the agency (A party may request that EEOC reconsider its decision within 30 days of receipt of the commission's decision. Such a request is not a second appeal, and will be granted only when the previous EEOC decision involved an invalid interpretation of material fact or law; or when the decision will have a significant impact on the policies, practices, or operations of the agency (29 CFR 1614.405b).
Class Action Appeals
For class action appeals, the class agent or the agency may appeal an AJ's decision accepting or dismissing all or part of the class complaint. A class member may appeal a final decision on an individual(s) claim for relief pursuant to a finding of a class-wide discrimination. Finally, the class agent or the agency may appeal from an AJ decision on the adequacy of a proposed settlement of a class action (29 CFR 1614.401c).
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Judicial Phase
Regulations for Filing a Civil Action
A federal sector complainant has to first exhaust the administrative process set out at 29 CFR 1614 before filing a civil suit. The regulations provide that civil actions may be filed in an appropriate federal court:
- Within 90 days of receipt of the final action where no administrative appeal has been filed
- After 180 days from the date of filing a complaint if an administrative appeal has not been filed and final action has not been taken
- Within 90 days of receipt of EEOC's final decision on an appeal
- After 180 days from the filing of an appeal with EEOC if there has been no final decision by the EEOC
- 29 CFR 1614.408
Under the Age Discrimination in Employment Act (ADEA), a complainant may proceed directly to federal court after giving the EEOC notice of intent to sue (29 CFR 1614.201).
Under the Equal Pay Act, a complainant may file a civil action within 2 years (3 years for willful violations), regardless of whether he or she has pursued an administrative complaint (29 CFR 1614.409).
The EEOC processing of an appeal is ended once a civil action is terminated.
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Class Complaints
Requirements for Class Complaints
Class complaints are processed differently than individual(s) complaints (29 CFR 1614.204). The informal counseling phase is the same, with each member of the class action required to undergo individual(s) counseling. Once counseling is completed, the class complaint will be forwarded to the nearest EEOC Field or District Office for investigation. An EEOC AJ is appointed to decide whether to accept or dismiss the class complaint. The AJ examines the class action to determine whether it meets class certification requirements for:
- Number
- Commonality
- Typicality
- Adequacy of representation
A class complaint can be cancelled for failure to meet the requirements listed above or for any of the reasons discussed for individual(s) complaints. A class complaint can begin as an individual(s) complaint. If it is found that there are more parties affected by the same issues, the complainants can ask for class certification at any reasonable point in the process (29 CFR 1614.204b).
Class Complaint Acceptance Process
The AJ will send his or her decision on whether to accept the class complaint to the agency and the class agent. The agency has 40 days from receipt of the AJ's decision to issue a final order. This order must notify the agent whether or not the agency will implement the decision of the AJ. If the agency's final order does not use the AJ's decision, they must also file an appeal to the EEOC's OFO. The appeal must include a copy of the agency's final order (29 CFR 1614.204d7).
A dismissal of a class complaint must inform the class agent whether the complaint will continue as an individual(s) complaint or whether it will also be dismissed as an individual(s) complaint. The dismissal must inform the class agent of the right to appeal to EEOC's OFO or to file a civil action in federal court.
Agency Responsibilities Once the Class Complaint is Accepted
Once a class complaint is accepted, the agency must use reasonable means to notify the class members of the following:
- The acceptance of the class complaint
- A description of the issues accepted as part of the complaint
- An explanation of the binding nature of the final decision or resolution on the class members
- The name, address, and telephone number of the class representative
- 29 CFR 1614.204e
Final Decision
Instead of an investigation by the respondent agency, an EEOC AJ develops the record through discovery and a hearing. The AJ will issue a recommended decision to the agency. The agency has 60 days from receipt of the AJ's decision to issue their final decision. Their final decision can accept, reject, or modify the AJ's recommended decision. If the agency fails to issue a final decision, the AJ's recommended decision will become the final decision in the class complaint.
Individual(s) Claim for Relief in a Class Action
When discrimination is found in the final decision, a class member has 30 days from the receipt of notification to file a written claim with the agency about any relief he or she feels they are entitled. The claim for relief must show that the claimant is a class member entitled to relief. The EEOC regulations state that when the discrimination has been proved, there is a presumption of discrimination to each member of the class. The agency must show clear and convincing evidence that any class member is not entitled to relief. The agency must issue a final decision on each individual(s) claim for relief within 90 days of filing. EEOC still has jurisdiction over the claim. Therefore, any appeals must be made to the EEOC's OFO or a civil action may be filed in federal court (29 CFR 1614.204(1)(3)).
Resolution of a Class Action
The class agent and agency can resolve the complaint at any time. Notice of the resolution has to be provided to all class members and reviewed and approved by an EEOC AJ. If the resolution is not considered fair to the class as a whole by the AJ, a decision to vacate the agreement and replace the class agent with some other eligible class member to continue processing the class complaint. The decision can be appealed to the EEOC. If the AJ decides that the resolution is fair to the class as a whole, it is binding on all class members (29 CFR 1614.204g).
Class Action Appeals
For class action appeals, the class agent or the agency may appeal an AJ's decision accepting or dismissing all or part of the class complaint. A class member may appeal a final decision on an individual(s) claim for relief pursuant to a finding of a class-wide discrimination. Finally, the class agent or the agency may appeal from an AJ decision on the adequacy of a proposed settlement of a class action (29 CFR 1614.401c).
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Mixed Case Complaints
Some employment discrimination complaints can be appealed to the Merit Systems Protection Board (MSPB). In these cases, the employee has to choose to keep on with the complaint as a "mixed case complaint" (under 29 CFR 1614) or a "mixed case appeal" before the MSPB. Whichever gets filed first is the method that will be used (29 CFR 1614.302).
Handling Procedures
Mixed case complaints are handled the same as other complaints with the following exceptions:
- The agency has only 120 days from the date of the filing of the mixed case complaint to issue a final decision
- Complainant may appeal the matter to the MSPB, or file a civil action any time hereafter
- The complainant has 30 days from receipt of the agency's decision to appeal to the MSPB, not the EEOC
- Once the investigation is finished, the complainant does not have the right to request a hearing before an EEOC AJ
- Agency must issue a decision with 45 days
- 29 CFR 1614.302d
Once a final decision is received from the MSPB, it can be petitioned for the EEOC to review.
Civil Action Timelines for Mixed Case Matters
Individuals who want to file a civil action in mixed case matters must file within 30 days (not 90 days) of receipt of:
- Agency's final decision
- MSPB's final decision
- EEOC's decision on a petition to review
A civil action may be filed after 120 days from the date of filing the mixed case complaint with the agency or the mixed case appeal with the MSPB (as long as there has been no final decision on the complaint or appeal) or 180 days after filing a petition to review with the EEOC (as long as the EEOC has not issued a decision) (29 CFR 1614.310).
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