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Federal EEO process: How to file a federal discrimination lawsuit

You finished informal EEO counseling, filed your formal discrimination complaint, and received the Report of Investigation (ROI) from your federal agency.  Now you want a chance to present your case to a jury in federal court.  Here are the basics about how to file a federal discrimination lawsuit against your federal government employer:

How much time do I have to file a federal discrimination lawsuit?

Before you can file a lawsuit, you must exhaust your administrative remedies.  This means that you must initiate informal EEO counseling, file a formal complaint, and give the agency a chance to investigate.  At various points in the EEO process, you may have the option to file a lawsuit in federal court:

  • After 180 days since the date you filed your formal complaint, if the agency hasn’t issued a final agency decision (FAD), and no appeal has been filed
  • Within 90 days from the date you receive the FAD, if no appeal has been filed
  • After 180 days since the date you filed your appeal, if the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations (OFO) hasn’t issued a decision
  • Within 90 days from the date you receive the OFO’s decision on your appeal

Federal court lawsuit timeline

A lawsuit includes many steps and can be a very long process.  Depending on the court you file in and other factors, a federal discrimination lawsuit can take anywhere from one to three of four years.

How to file a discrimination lawsuit in federal court

The first step is to file your complaint.  Your complaint must be in writing.  Each court may have different rules and requirements.  However, the complaint must usually include the following information:

  • Your name and contact information
  • The agency’s name and contact information
  • Confirmation that you exhausted your administrative remedies
  • A list of factual allegations that explain how the agency discriminated against you
  • A description of your claims of discrimination and/or retaliation
  • The law(s) that you believe the agency violated
  • The damages you want the court to award

You must also submit the court’s cover sheet, summonses, and payment for the court’s filing fee when you file your complaint.  After you file, you must timely serve the complaint on the U.S. Attorney General, the U.S. Attorney for the state where you filed your complaint, and the head of the federal agency.  If you have any attorney, he or she will take care of all of this for you.

The agency may either file an answer or a motion to dismiss your case.  A motion to dismiss is a request for the court to dismiss your case for various reasons, such as failure to state a claim.  Failure to state a claim means that your complaint doesn’t properly allege that the agency unlawfully discriminated against you.  If the agency files a motion to dismiss, you usually have 14 days to file an opposition.  Then the agency has about seven days to file a reply.  The judge may issue a decision within a few weeks, or you may wait for several months, depending on many factors, including the judge’s case load and the number and complexity of issues in the case.

What is discovery in a federal discrimination lawsuit?

After the agency files an answer or the judge denies the agency’s motion to dismiss, discovery will begin.  Discovery is a process where you and the agency will exchange information and documents.  Each party may send the other a list of questions to answer and ask for certain documents relating to the case.  You can also take depositions, which are interviews, under oath, before a court reporter.  Similarly, the agency’s attorney will likely want to take your deposition.  Discovery is a lengthy process and will take several months or even a year.

What is summary judgment?

If you want a jury trial, you must ask for it when you file your lawsuit.  However, just like the EEOC hearing process, the judge will decide whether you get a jury trial.  After discovery ends, the agency will file a motion for summary judgment.  This is a request for the judge to decide in favor of the agency without conducting a trial.  The motion is a lengthy, written legal argument that refers to evidence the parties exchanged during and before discovery.  If this happens, you usually have 14 days to file an opposition.  Afterwards, the judge will issue a decision (typically several weeks or months) with two possible outcomes:

  • The judge grants the agency’s motion: If the judge grants the motion, the agency wins the case, and there won’t be a jury trial. In short, the judge will grant the motion if he/she concludes that, based on the evidence, there’s really no way you can win the case.
  • The judge denies the motion: If the judge denies the motion, he/she will schedule a jury trial.  This doesn’t mean you win; it just means the case will continue.

What happens at the pretrial conference?

The judge will hold a pretrial conference with you (and your attorney, if you have one) and the agency’s attorneys to discuss logistics and to decide which witnesses and evidence you can present at the trial.  In preparation for the pretrial conference, the judge usually requires the parties to submit a pretrial statement that includes:

  • A summary of the facts
  • A list of your claims
  • The types and amounts of your damages
  • A list of witnesses each party wants to call at the trial
  • A list of exhibits that each party wants to use at the trial
  • Other information requested by the court

What happens at a jury trial?

The jury trial will be held in a courtroom before the judge and a jury.  Hearings are usually open to the public.  The parties and the judge will work together to select the jurors.  Once jurors are selected, each party may make an opening statement about its view of the case.  If you have one, your attorney will make your opening statement.  Then, you may call each witness and ask him or her questions.  The agency may cross-examine your witnesses.  After you question all of your witnesses, the agency will call its witnesses, whom you may cross-examine.  After all witnesses have testified, each party may make a closing statement.  The jury may make its decision in as little as an hour, or it may take several days.  Once the jury finishes deliberating, it will return to the courtroom and deliver the verdict.

Can you appeal the court’s decision?

If you disagree with the court’s decision, you can file an appeal with the appropriate U.S. Court of Appeals.  There are strict deadlines for filing your appeal.  You will file a written brief; the agency may file its brief in response; and you may file a reply brief.  The court may also schedule an oral argument.

Can you file a discrimination lawsuit without an attorney?

You are not required to have an attorney to file a federal discrimination lawsuit.  However, an experienced employment attorney can take the guesswork out of how to file a federal discrimination lawsuit.  The court has many rules and procedures, and the judge can dismiss your case if you fail to comply.  An experienced employment lawyer will be familiar with these rules and procedures and help you navigate the litigation process.  Your attorney will prepare and submit filings with the court, conduct discovery in your case, advise you about legal strategy and settlement, and represent you at trial.

If you need experienced legal representation for a federal discrimination lawsuit, Alan Lescht and Associates, P.C., can help.  Our attorneys know what information you need to collect in discovery, how to respond to motions filed by the agency, and how to present evidence and witnesses to the court.  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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