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Federal EEO process: EEO investigation

Federal EEO process; Step 1: Informal counseling (30 days) or ADR (varies); Step 2: File a formal complaint (15 days); Step 3: Investigation (180 days); Step 4: Request a hearing or a FAD (30 days)You just got a letter from your federal agency employer saying that your formal EEO complaint was accepted for investigation.  But what does that mean?  The investigation is an important step in the federal EEO process.  An investigator will collect information and documents from you and the agency and will compile everything into a Report of Investigation (ROI).  The ROI will be a primary source of evidence in your case.  Here’s what to expect during the EEO investigation:

Who is the EEO investigator?

Federal regulations require the agency to appoint an investigator for your case.  Frequently, the agency hires an outside contractor; however, the investigator may be an agency employee.  The investigator must be neutral and conduct a fair and impartial investigation.  The investigator will not make a decision about your case; his/her only job is to collect evidence.

How long does an EEO investigation take?

The agency must complete the investigation within 180 days of the date you filed your formal EEO complaint.  The agency or the investigator can ask you for an extension.  However, unless you will benefit from an extension, there are strategic reasons to deny an extension request.

What happens during an EEO investigation?

You’ll receive a letter that the agency has assigned an investigator to your case.  First, the investigator will ask you for detailed information about your claims.  The investigator will either ask you to provide written answers to a list of questions or interview you.  Second, agency witnesses will have an opportunity to respond to your testimony (i.e., your answers to the investigator’s questions).  Third, you will have a chance to submit a rebuttal to the agency’s response.  The investigator will also ask both you and the agency to provide documents relating to your case.

Do I have to participate in the EEO investigation?

Yes.  The agency can dismiss your complaint for “failure to prosecute” (i.e., failure to participate in the EEO process).  For example, say the investigator asks you to provide answers to a list of questions within two weeks.  You never respond.  After the deadline, the investigator sends you several follow-up emails, but you never write back.

The investigator will contact you by email or phone to let you know what you need to do and when.  Promptly communicating with the investigator is important.  If you need more time to respond to the investigator’s questions, ask for it.  If you don’t have documents the investigator asks for, just say so.

What information should I provide to the investigator?

You need to be able to answer specific questions about your claims.  For example:

  • Who discriminated against you?
  • How did he/she discriminate against you?
  • What happened?
  • Were there any witnesses?
  • Why do you think the discrimination was based on your age, disability, national origin, race, religion, sex, etc.?

You should also provide documents that support your claims.  For example, if you allege that your supervisor discriminated by giving you a bad performance review, you could submit emails where your supervisor gave you good feedback on your work.  If your supervisor retaliated by unfairly reprimanding you for failing to submit a leave request, send the investigator a copy of the leave request you submitted.  If there are witnesses that can provide helpful information, give their names and contact information to the investigator.

What happens after the investigation?

The investigator will prepare the Report of Investigation (ROI), which should include:

  • A summary of the investigation
  • Informal counseling documents
  • Your formal complaint
  • All statements, affidavits, and declarations from the investigation
  • All documents you and the agency submitted

Unless you agreed to an extension, the agency is required to send you a copy of the ROI within 180 days of the date you filed your informal complaint.  You may receive the ROI via email or in hard copy, on a CD-ROM, or on a flash drive in the mail.

The agency is also required to send you a letter with the ROI explaining that you have the right to request either a hearing before an EEOC administrative judge or a final agency decision (FAD).  If you want a hearing, you must submit your request to the EEOC and to the agency within 30 days of receiving the letter.  If you don’t request a hearing within 30 days, the agency will automatically issue a FAD.

How can an attorney help me during the investigation?

An experienced employment attorney can be an invaluable resource during an EEO investigation.  If you retain counsel, your attorney will communicate with the investigator you on behalf.  Your lawyer will determine what information and documents you should provide and make sure you meet deadlines.  Your attorney can help you answer the investigator’s written questions or attend your interview.  An attorney can also advise you about extension requests or whether you need to submit a rebuttal to agency witness statements.

If you need legal advice during an EEO investigation, Alan Lescht and Associates, P.C., can help.  We can work with you to respond to the investigator’s requests for information and documents, in order to create a strong investigative record.  Our attorneys represent federal employees throughout the EEO process, at hearings before EEOC administrative judges, in appeals before the Office of Federal Operations, and in federal litigation of discrimination and retaliation cases.

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