Federal Employee Formal Complaints
DISCLAIMER: This is an ongoing series of EEO guides that this Office provides as a service to federal employees. None of the information contained in this post is specific legal advice for you. This is legal information only. It is not intended to be used as a substitute for legal advice. Contact an attorney if you have any questions and before you apply any of the information on this page to your particular situation. This page contains lawyer advertising.
Table of Contents
Formal Complaint Basics
Did you receive a “notice of right to file a formal complaint” or a “notice of final interview” from an EEO counselor? If you did, then the clock is running for you to file a formal complaint of discrimination. The actual regulation for filing a formal complaint can be found here: 29 C.F.R. § 1614.106. Here are some of the basics that you should know before you start writing your formal complaint of discrimination:
The Deadline is 15 Days.
Generally, you have 15 calendar days to file a formal complaint of discrimination from the time that you received the “notice of right to file a formal complaint” or “notice of final interview.” This is not ‘business’ days, so weekend days count towards the fifteen.
Days are counted starting from the day after you received it. (See 29 C.F.R. § 1614.604(a)). So if you received the notice of right to file on, for example, May 1, you would have fifteen (15) days, or until May 16, to file a complaint. The clock starts running on the day you received it, even if that is on a weekend, holiday, or when you are on vacation, or goes to an email or postal address you don’t check often.
If the deadline falls on weekend or holiday, the deadline is automatically moved to the next business day, meaning not a weekend or holiday. Local holidays are probably not included as holidays, though federal holidays that may not be holidays for most people are considered holidays (such as Columbus Day). See the regulation (29 C.F.R. § 1614.604(d)) or contact an attorney if you have questions about when your deadline is.
The timeline for filing the complaint starts running from the day the document came into your possession, not the day you opened the letter or email. This means that if you are on vacation when the notice letter from the agency EEO counselor arrives in your mailbox, the clock is typically still running. If you moved, you likely will need to update the EEO office with the new address. If you use a P.O. Box, the day the letter gets dropped off is likely the day your deadline starts running.
If you receive the letter in the mail, but you don’t know when it was sent, a good rule of thumb is to treat the date on the letter as the relevant starting date. If a complainant files the formal complaint within fifteen days of when the formal complaint
The Complaint Must Have A Description of the Actions at Issue
The regulations require a “sufficiently precise” description of the events that occurred. What is sufficiently precise? Generally, it is sufficient for a formal complaint if the employee describes the following things:
- The date of the event
- What happened during the Event(s)
- The basis for the discrimination (race, color, national origin, etc.)
This regulation is worth a read if you’re wondering whether a statement has enough detail: “This statement must be sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action(s) or practice(s) that form the basis of the complaint.
Here are some examples of how simple a statement can be:
I, Jennifer Jeremy, was discriminated against on January 12, 2021, when my supervisor terminated my employment due to my sex.
I, Michael David was discriminated against based on my race on December 12, 2021, when my co-worker showed me a noose and used the N-word in the office.
I, Dr. Jason Fung, was not provided a reasonable accommodation for my muscular dystrophy when, on October 11, 2021, my supervisor did not approve situational telework.
An employee can add much more than this, but Einstein is credited with saying: “Everything should be made as simple as possible, but no simpler.” Boiling down a complaint to the simplest elements helps you to identify what is relevant. Expand from there. If you have questions, you can discuss the issue with an attorney or even get an attorney to draft your complaint for you.
Provide A Telephone Number and Address
The regulations require that the employee provide “a telephone number and address where the complainant or the representative can be contacted.” This must also be updated as necessary after filing the complaint.
The Complaint Must be Signed
The complaint has to be signed. This is a regulatory requirement. Although there is some indication from the EEOC that an agency may be required to allow an employee to sign the complaint later, it’s very easy to avoid any questions about something so simple. An attorney’s signature is also acceptable if you are represented by an attorney. This is an easy one.
These are some helpful hints that have served clients well in prior cases. These are not legally required for a complaint, but can make your life a lot easier when preparing a formal complaint. Again, this is not legal advice. Talk to a qualified attorney if you have questions about your situation.
File Early and Often
Avoiding any questions about whether your complaint was filed timely is normally pretty easy. If you email the complaint on day 10 instead of day 15, there is no argument that the complaint was filed on time. If you email it at 11:58 on day 15, though, the email may not get there until the next day, and then you’ve missed the deadline. Give yourself some breathing room.
If you have new information (including if something additional has happened), amending the claim can be important. Don’t miss the opportunity to do so. Talk to a lawyer if you have questions or concerns about things that have happened since you filed your formal complaint.
Provide a Short Statement of the Claim and then Add Details
A lot of complaints include too much detail about irrelevant issues, and not enough detail about relevant issues. This is commonly a symptom of not understanding the role of a complaint in the process or not understanding what the complaint is. You can avoid this by using a rule of thumb: can you describe the discrimination in a single sentence? If the answer is no, you may need to think about it more deeply. Contact a qualified attorney to help you work through what the discrimination is.
Consider Carbon Copying (CC) Yourself and the EEO Counselor
If you’re filing via email, carbon copy yourself. This works for mail too, but obviously requires that you prepare a complete second piece of mail. If you have never used certified mail, that is also an option. However you include yourself, you have proof that the document was sent.
Normally you do not need to send a copy to the EEO counselor you previously worked with. But doing so provides extra assurance that if you typed in an incorrect email address, or sent a letter to the wrong office, the EEO counselor will still have a copy and your Agency has little basis for saying they never received anything. Plus, the counselor may forward it to the correct office for you if there is an issue.
You Don’t Have To Forward the Complaint to Your Boss.
Unless you are seeking to inform your supervisor that you engaged in EEO activity, then forwarding the complaint itself to your boss, supervisor, co-worker, is not only unnecessary, it may give them a negative feeling towards you. There is no requirement that you include a supervisor. If your complaint is accepted, the responsible persons will find out anyways. Often it is better to let them find out from someone with authority. Does it mean you can’t send it to him/her? No, but use your best judgment about what is in your best interest.
Trust But Verify What Your EEO Counselor is Telling You.
EEO counselors are, by and large, well-meaning people who are trying to help people who find themselves in very difficult positions. Their job is tough. And sometimes they get things wrong. Sometimes very wrong. If your EEO counselor tells you something that doesn’t sound right, that’s probably because it isn’t right. The law is complex, even around simple things like filing deadlines. Most counselors are doing this work part-time and have some training, but not a lot.
Here are some actual horrendous mistakes EEO counselors have made:
- Telling an employee that they have one (1) day to file a formal complaint after sending notice. Not true. An employee has fifteen days to file a complaint from the time of receipt of proper notice from the EEO counselor.
- Telling an employee they cannot file a complaint against a co-worker. Not true. A complaint is against a federal agency (actually, the head of the agency), not a particular employee. Harassment by a co-worker is a well-documented violation of the EEO laws.
- Telling an employee that they shouldn’t file a complaint because it won’t do them any good because they don’t have a good case. This person is not very likely not a lawyer, and isn’t your lawyer or representative. Get a professional opinion before taking any such advice.
EEO counselors typically have no experience with an EEO case after a formal complaint is filed (other than amendments). Not only that, they have no responsibility for what they tell an employee. If they tell you something that’s incorrect, there’s no feedback loop
An experienced lawyer, on the other hand, takes cases all the way through to hearings and appeals, where difficult issues are resolved by the EEOC, and will have a much more nuanced understanding of all of the issues. If you have questions, get answers from someone who actually has experience with filing cases and pursuing them on behalf of individuals and resources like case law and legal reference books, not someone whose main qualifications are a few hours of training and some notes on PowerPoint slides.
Identify Helpful Information for the Investigation
The claims identified in the formal complaint serve as the basis for the later investigation. An investigator will often start with the factual information in the formal complaint to generate the initial questions sent to you and to management and other witnesses. If you have witnesses, put them in the complaint. For example: “Mary was present when Mr. Robinson told me . . . ” Not only do you inform the investigator, but you also preserve it for yourself in case you forget in the future.
Amend Your Case With New Claims After Filing the Formal Complaint
If you filed a formal complaint and something further happens, you can amend your complaint with new information. When do you need to amend? That’s a complex question. Sometimes you need to start a new case. Sometimes you need to amend your claims with the EEO counselor. Sometimes you don’t need to do anything. It depends on various circumstances. But the important thing is to start asking the question! Don’t assume that after you filed the case, anything new that happens is automatically included in the complaint. It isn’t. Talk to a lawyer
Frequently Asked Questions (FAQ)
Again, this is not legal advice. Talk to a qualified attorney if you have questions about your situation.
Can I File This Myself?
Absolutely. You can draft and file a formal complaint without any assistance from a lawyer, union representative, or EEO counselor. It is not complicated to do a solid job of filing a formal complaint.
Why am I filing a Complaint?
You already talked to an EEO counselor and explained (hopefully) all of this information to her. Why do I need to do this all over again? It’s a good question. But you’re a government employee (or trying to become one). Forms are the way the government operates.
The reality of the complaint is this: this document will define the claims that the Agency will investigate. Once the investigation is complete, you can bring those claims before an EEOC administrative judge for adjudication. If necessary, you can appeal that case to the EEOC’s Office of Federal Operations and even take this case to federal court, all the way up to the Supreme Court. For a brief overview of this process, see this brief blog post.
How many Claims Should I Identify?
As many as you have. If you need additional space, add additional pages to the complaint.
Should I include events from before, even years before?
Maybe. Like all things in the law, it depends. If a supervisor says, “I am going to fire you on March 31, 2025 because of your national origin,” it’s a safe bet that this is relevant information to include. If you think there are relevant events going back a long time, this would be a good sign that you should talk to a professional.
What complicates the question is a Supreme Court case called Morgan. For hostile work environment or harassment claims, events years beforehand can be included in a hostile work environment. It depends on the facts and circumstances. Many EEO counselors falsely believe that events from years ago are not relevant, but they certainly can be.
If the events are not part of a hostile work environment, prior events can help establish discriminatory intent. If you have questions about whether to include events, you should talk to a professional.
What should I include as a remedy?
According to the EEOC’s regulations, you do not need to have a remedy for a formal complaint. See 29 C.F.R. § 1614.106. It makes sense not to limit yourself. If you feel the need to identify remedies, do so, but you can also include a general statement to indicate that you reserve the right to make changes later. A good phrase can be “all remedies to which I am entitled” or “all remedies that the EEOC or court of competent jurisdiction may provide.”
Is there some way I can file this online? Do I have to fill out these forms?
Each federal agency has its own EEO process. There may be some agencies who develop this in the future to track complaints and to ease the burden on the system of using cumbersome processes. Unfortunately, the regulatory requirements for EEO complaints were written before everyone had a supercomputer in their pockets.
Agencies have little interest in making this process any easier. People missing the deadline for filing complaints all the time. The more process that agencies can put in front of a complainant to make them go away, the less work they have to do on the other end.
Do I have to Use the Form the Agency Gave Me?
No. The EEOC has regulations control what has to be part of a complaint: 29 C.F.R. § 1614.106. Unless the EEOC regulations have changed, there is no requirement of using a particular form. Theoretically, a signed complaint on a cocktail napkin delivered to the agency can be sufficient. But I wouldn’t recommend that.
Should you use the agency form? Probably. Using a form makes it easier for a complainant to provide all of the information that is required, but there is a lot of information that is not required. A complainant can also consider adding pages as necessary to the forms. Some agencies have forms that cannot be edited, so it may just be easier to print and hand-write in the form, and then add pages as necessary.
What if I Never Received a Notice from an EEO Counselor?
This happens infrequently, but is troublesome. EEO employees are not perfect. If the EEO office did not send a notice of right to file, there is reason to believe that the timeline for filing a complaint never began. Beware that the agency may have sent a notice, but it went somewhere where you are not checking (like an old home or email address). It’s probably best to contact a qualified attorney and at the same time follow up with the EEO office about the status of the case.
What if the EEO counselor sent the notice with wrong information in it?
Good question. It likely depends on what information is incorrect in the notice. The safest thing is probably just to file a formal complaint within the time limits anyways. This can short-cut your EEO informal complaint process, so talk to a lawyer if you have questions about this.
If the information is minor, this probably has no effect on the deadline. For example, if the document has an incorrect home address, but the employee received it via email, the deadline will almost always still be valid.
One problem can be if the employee asks the agency to update the information for it to be correct and waits until after the initial deadline to file a formal complaint. This can result in a complaint being dismissed for untimely filing. While it is fine to be a stickler for government documentation being correct, being persnickety can get one in trouble.
Should I use my Personal or Work Email Address?
A good reason for using a personal email address is that you can check it at any time. You don’t need to be at the office (think vacation time) or have any special access (think Citrix) to get access to time-sensitive information. The caveat is that you need to actually check your mail/email from time to time. Which one you are most likely not to check for 15 days straight? Don’t use that one.
What Happens if I Miss the Deadline?
The whole EEO system orbits around the timely-filed formal complaint. That document ultimately determines what the Agency’s responsibilities are, what it must compensate you for (and what not). The formal complaint is the “big bang” that starts a whole process involving many people devoting significant public resources to ensuring that you are not the victim of unlawful discrimination.
Assuming you file the complaint even one minute late, depending on the circumstances, the agency is legally required to do nothing to change the situation. You may receive a letter dismissing your case. You can appeal that to the EEOC. Again, the EEOC will not help you. You can file in federal court and a federal judge will tell you the same thing. You can appeal all the way up to the Supreme Court. That Court can turn around and tell you exactly the same thing: you get nothing.
And by nothing, the courts will tell you that you cannot get:
- Backpay for time that you were not working,
- Compensation for your emotional and reputation harms,
- Compensation for costs associated with the discrimination (think: losing your house, car, etc.)
- Compensation for medical damages, including physical and mental harms
- And more.
What if I already missed the 15-day deadline?
There are some very limited exceptions that extend (or “toll”) the fifteen-day deadline for filing. For example, if the employee is in a coma or is misled by an EEO counselor, these can be grounds. The exceptions are rare, and it isn’t easy to meet the requirements. In some cases, such as harassment or hostile work environment, you may still be able to file a new case, but at the very least you have to start over from the beginning.
If you already missed the deadline, talk to a lawyer. There may be some options. If you can’t talk to a lawyer, there is a possibility that if you file and the Agency does not raise the deadline issue, the Agency may waive it as a defense. You should consider filing the complaint anyways. Again, talk to a lawyer.
All courts involved in the EEOC have limitations on what they can do. The EEOC only handles employment discrimination and related claims. It does not handle criminal matters, other civil matters, etc. One of the limitations on its ability to do anything is the timely filing of a formal complaint. If the complaint isn’t timely, then the EEOC can’t do anything and the agency has no obligation to pay any damages or make any changes.
What happens next?
The next step is for the agency to issue a letter acknowledging receipt of the complaint. After that, the agency will either accept or dismiss the claims. If the claims are accepted, the agency will investigate the claims as it describes in its letter. Once the investigation is over, you will have an opportunity to request a hearing on your claims. If the
If there is a big difference between what you believe your claims are and what the agency wrote in its acceptance letter, you may need to talk to a lawyer. There may be good grounds for not including a particular claim, or the agency may have misstated the claim. Usually the agency will provide you with a few days to review the accepted claims and to ask for them to be changed.
If all of the claims are dismissed, then you will receive a dismissal letter. You can appeal the claims to the EEOC’s Office of Federal Operations. The good news is that this is not common. The bad news is that if it does happen to you, any investigation of your case is going to be delayed by months.
Formal Complaint Webinar
This video explains how I take a set of facts through to a formal complaint drafting. This is an example of how to identify claims, including claims that are not readily apparent, filling out a formal complaint form, and adding additional detail in an attached letter.
Disclaimer: As per usual, this video is for informational purposes only. It is not legal advice for you and should not be acted upon as such.
Still Have Questions?
30-Minute Formal Complaint Clinic
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I have worked since 2011 on federal employee employment issues. I focus my practice on assisting employees and applicants for federal employment with discrimination issues.
I have represented employees at virtually all levels of litigation. I have argued federal employee cases in front of the D.C. Circuit Court of Appeals, the court just below the Supreme Court. I regularly represent employees on appeals before EEOC Administrative Judges and the Office of Federal Operations (the EEOC’s appeals arm).
My work on behalf of federal employees has been featured in Fox News and the New York Times. I have settled claims for hundreds of thousands of dollars. I have been holding an employee’s hand when she won her discrimination jury trial. I have been there when it didn’t go well, as well. Obviously, past success is no guarantee for the future.
I know how hard it is for employees who have little or no help in bringing discrimination cases. The one piece of advice that I can give is to “trust experience.” Find someone who has been down this road before. You don’t have to do this alone.