Legal Insider: Federal employee EEO complaints

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

There are several important issues federal employees should consider when deciding whether to pursue an Equal Employment Opportunity (EEO) complaint against a federal agency or supervisor.

Potential EEO Claims

Federal employee EEO complaints can involve a range of discriminatory conduct by federal agencies, including discrimination on the basis of age, disability, race, religion, sex, pregnancy, genetic information and national origin. In addition, EEO complaints can also involve hostile work environment, sexual harassment and retaliation.

Example EEO Complaints

Some typical EEO claims brought by federal employees are demonstrated in the following five hypothetical scenarios:

• Example A: Federal employee is sexually harassed at work by her supervisor. When the federal employee refuses her supervisor’s overtures, she then receives a suspension from the same supervisor. The federal employee brings a claim for sexual harassment.
• Example B: Federal employee has previously filed an EEO complaint against his supervisor. A year later, the federal employee discovers that his promotion was denied by the supervisor because the supervisor was upset that the federal employee had filed an EEO complaint. The federal employee brings a claim for retaliation.
• Example C: Federal employee takes sick leave related to treatment for cancer. Upon the employee’s return, his supervisor gives the employee a bad performance evaluation for taking too much time off. The federal employee claims disability discrimination.
• Example D: Federal employee takes sick leave related to a recent car accident and requires a lot of time out of the office for physical therapy. The federal employee is also unable to perform some of her duties as she recovers, including the lifting of boxes for a limited period of time. The federal employee asks her supervisor for modifications to her duties (a reasonable accommodation), but the supervisor refuses to modify the employee’s schedule. The federal employee claims disability discrimination for her agency’s failure to accommodate her serious medical condition.
• Example E: 65-year-old federal employee is competing for a promotion to a GS-15 position. Federal employee competes against two other employees, under the age of 40, for the same position. The 65-year-old federal employee is not selected for the position. He later discovers that the selecting official expressed concerns that may have impacted his decision, namely that the 65-year-old applicant might retire sooner than the other two younger applicants. The 65-year-old federal employee claims age discrimination.

EEO Complaint Deadline

Typically, a federal employee only has 45 days from the date of discrimination in which to contact an EEO counselor at the federal agency to initiate the EEO complaint process. If a complaint is not timely initiated, the federal employee may be time-barred from filing the EEO complaint.

EEO Remedies

Remedies for illegal discrimination and retaliation caused by federal agencies and managers involve several types of potential monetary relief, including lost back pay, compensatory and punitive damages, and attorneys’ fees. Non-monetary remedies can include the clearing of negative performance records and disciplinary actions, transfers and promotions.

The EEO Process

Typically, once a federal employee initiates contact with an EEO counselor regarding an informal complaint, assuming there is no earlier resolution or settlement, the next steps include: (1) the filing of a formal EEO complaint, (2) the investigation of the EEO complaint, (3) either a request for a decision on the EEO complaint from the federal agency or a request for a full hearing before a federal administrative judge and (4) proceeding to a hearing on the merits. Most discrimination cases are settled with federal agencies before the EEOC hearing stage. In fact, most cases settle at mediation with the federal agency early in the EEO process.

The EEO and MSPB processes can be intertwined, especially in removal cases. In some cases, federal employees may have what is known as a “mixed” case appeal that would also be appealable to the Merit Systems Protection Board (MSPB), so it is important to obtain advice from counsel.

Additional EEO Information

Federal employees can find more detailed information about filing EEO complaints at the Equal Employment Opportunity Commission’s (EEOC) website.

Contact Us

Our law firm represents and advises federal employees in EEO and other employment matters. If you need legal assistance regarding an EEO complaint or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.