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Appealing a federal agency’s dismissal of EEO complaints

Last month, you filed your formal EEO complaint with your federal agency.  You just got a letter stating that the agency dismissed your EEO complaint.  However, you can appeal.  Here are the basics about appealing a federal employer’s dismissal of EEO complaints:

Can the agency dismiss my EEO complaint?

Your federal agency can dismiss your EEO complaint for various reasons.  Three of the most common reasons for dismissal are untimeliness, failure to state a claim, and failure to prosecute.

Untimeliness

To bring a claim, federal employees must generally contact an EEO counselor within 45 calendar days of the date the discrimination occurred.  If the discrimination involved a personnel action, you must contact an EEO counselor within 45 calendar days of the date the action became effective.  If you fail to meet the 45-day deadline, the agency can dismiss your complaint as untimely.  This is a strict deadline, and it is very difficult to overcome dismissal for untimeliness.

Failure to state a claim

Generally, to state a claim of discrimination, your complaint must say, at a minimum, that:

  • You are the member of a protected class based on your age, color, disability, national origin, race, religion, sex, etc.;
  • The agency took an adverse action against you; and
  • The agency took the adverse action because of your membership in the protected class.

If you are claiming retaliation, your complaint must say, at a minimum, that:

  • You engaged in protected EEO activity (i.e., explain how and when you engaged in EEO activity);
  • After learning of your protected activity, the agency took an adverse action against you; and
  • The agency took the adverse action because of your protected EEO activity.

If your complaint doesn’t allege each of these requirements, the agency can dismiss it for failure to state a claim.

For example, say your EEO complaint alleges that your supervisor revoked telework because you reported her to the Office of Inspector General (OIG) for submitting false expense reports.  You might be able to file a whistleblower retaliation complaint with the Office of Special Counsel.  However, your OIG report doesn’t constitute protected EEO activity, and EEO doesn’t handle whistleblower cases.  Although you alleged that the agency took an adverse action against you, you didn’t state that you are the member of a protected class or that the adverse action was based on your protected characteristic.  The agency can dismiss your EEO complaint for failure to state a claim.

Or, say your complaint says that you are female and that your supervisor issued you a written reprimand because he was jealous because the director of the office nominated you for an award.  Here, you’ve alleged that you are the member of a protected class (that you are female) and that the agency took an adverse action against you (the written reprimand).  However, your complaint doesn’t state that the adverse action was because you are female.  The agency can dismiss your EEO complaint for failure to state a claim.

Failure to prosecute

The agency can dismiss your case if you refuse or fail to cooperate in the EEO process.  For example, failure to prosecute includes not timely responding to the EEO investigator’s requests for information and documents.  Here are a few ways to avoid dismissal during the investigation:

  • Make sure the investigator has the correct contact information
  • Check your email, mail, and voicemail every day
  • Meet the investigator’s deadlines
  • Ask the investigator for an extension if you need more time to respond

If you have an attorney, your attorney will make sure you comply with all deadlines.

Can I appeal a dismissed EEO complaint?

Depending on whether the agency dismissed your entire complaint or only some of your claims.  Here are the options for appeal:

EEOC hearing

If the agency dismisses some of your claims, but accepts others for investigation, you may appeal the dismissed claims through the U.S. Equal Employment Opportunity Commission (EEOC) administrative hearing process.  You generally must wait until the investigation is over to appeal the dismissed claims.  After you receive the Report of Investigation (ROI) or 180 days passes from the date you filed your formal complaint, you may request an EEOC hearing.  Once your case is assigned to an administrative judge, you can ask the judge to reverse the dismissal of your claims.

EEOC OFO appeal

You can appeal your dismissed claims by filing an appeal with the EEOC Office of Federal Operations (OFO) if your agency either dismissed only some of your claims or dismissed your entire complaint.

If some of your claims were accepted for investigation, you have to wait until the investigation ends or 180 days passes to take action.  However, instead of requesting an EEOC hearing, you can ask for a Final Agency Decision (FAD).  Once you receive the FAD, you can file an appeal with the OFO.  In your appeal, you can ask the OFO to reverse the dismissal of your claims and make a decision on the merits of your complaint.

If the agency dismissed your entire complaint, the dismissal constitutes a FAD.  The agency’s letter should explain your rights, which include filing an OFO appeal.

Federal lawsuit

If the agency dismisses your entire complaint, you can also file a lawsuit in U.S. District court.

How much time do I have to appeal dismissal of EEO complaints?

Your deadline depends on the type of appeal:

  • EEOC hearing: Request an EEOC hearing within 30 days of the date you receive the ROI.  At the initial status conference, tell the judge you want to appeal your dismissed claims. The EEOC may ask you to submit information about appealing dismissed claims even before your case is assigned to a judge.
  • EEOC OFO appeal: File a notice of appeal with the OFO within 30 days of the date you receive the FAD or the agency’s letter dismissing your entire complaint.  You may file a supporting brief with the OFO within 30 days of the date you filed the notice of appeal.
  • Federal lawsuit: If you don’t file an OFO appeal, you can file a lawsuit in U.S. district court within 90 days of the date you receive the FAD or the agency’s letter dismissing your entire complaint.  Or, if you already filed an OFO appeal, you can file a lawsuit if the OFO doesn’t issue a decision within 180 days.

Do I need an attorney to appeal dismissal of EEO complaints?

Although you’re not required to have an attorney to appeal dismissal of your EEO complaint, having one by your side can make a huge difference.  Hiring an attorney early in the federal EEO process may help you avoid dismissal in the first place.  Your attorney will make sure you contact an EEO counselor within 45 days of the discrimination, correctly state your claims in the complaint, and promptly cooperate during the investigation.  And if your complaint is dismissed, your lawyer can advise you about the best way to appeal and file the appeal for you.

Do you need to appeal dismissal of EEO complaints?  Alan Lescht and Associates, P.C., can help.  We represent federal employees throughout the EEO process, at hearings before EEOC administrative judges, in appeals before the Office of Federal Operations, and in federal lawsuits of discrimination and retaliation cases.

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