QUESTION: What can you do when an agency simply fails to produce an EEO Report of Investigation more than 270 days after the complaint was filed? ANSWER: Celebrate.

While that might be an exaggeration, it is not much of one. EEOC Regulation 29 C.F.R. § 1614.108(e) requires agencies to complete an investigation of a formal EEO complaint within 180 days of the filing of the complaint unless the parties agree in writing to extend the period for not more than an additional 90 days. In this particular VA case, the formal EEO complaint was filed on January 29, 2013. On July 10, 2013, the Agency sent Complainant a notice informing him of the expiration of the 180-day timeframe for completion of the investigation and of his right to request a hearing. It also stated that his complaint was “pending investigation,” but it expected to receive the completed investigation by October 26, 2013. Complainant was given the option to extend the investigative period for 90 days.  Nonetheless, the investigation was not completed until January 7, 2014, well beyond the extension period and the October 26, 2013, expected completion date. In fact the EEO Investigator did not even start his work until 322 days after the complaint was filed.  By that time the employee had died and the employee’s mother and estate were pursuing the complaint.

On February 3, 2014, Complainant’s mother requested a FAD, and not long afterwards the VA determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment as the employee alleged.  At that point, the estate requested an EEOC review and that the agency be sanctioned or punished for the delay.  The family argued that the Agency’s extraordinary tardiness undermined the integrity and effectiveness of the EEO process and, sadly, deprived Complainant of the opportunity to participate in the investigation of his claims.

When the VA failed to provide a good explanation for the delay other than to argue that it was not due to misconduct or bad faith—nor had it harmed the complainant, the EEOC snapped back imposing a default judgment for the employee.  In other words, so long as the employee had a reasonable basis for his complaint the agency was prohibited from challenging his claims.  They lost and were told to determine with the employee’s family how much in compensatory damages the estate should receive.  The Commission also made a point to note that this was the fourth time VA has failed to comply with EEOC timeliness regulations in recent months.

The take away from this case is that if any employee is still waiting for a ROI more than 270 days after his/her complaint was filed, it is time to move to EEOC and ask for a default judgment. Ideally, the employee will have an attorney skilled in EEOC legal maneuver such as this to make sure it works.

If you want to read more about the case look into Jeremy S., Complainant, v. Robert D. Snyder, Secretary, Department of Veterans Affairs, Agency, EEOC Appeal No. 0120142917 (2017)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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