You just received the Report of Investigation from your federal government agency’s EEO office. You have 30 days to decide whether to request an EEOC hearing before an administrative judge or a final agency decision. Depending on your circumstances, you may also have the option of filing a lawsuit in federal district court.
Here’s what you need to know about your options:
Your options: Request an EEOC hearing, ask for a FAD, or file a lawsuit
EEOC hearing
You may request an EEOC hearing before an administrative judge who works for the Equal Employment Opportunity Commission (EEOC). Once appointed, the judge will schedule an initial teleconference to set deadlines for various events in the case. In most cases, the next step will be discovery, which is an opportunity for you and the agency to exchange information and documents and to take depositions (interviews under oath) of witnesses. After discovery ends, the judge will decide whether he or she can make a decision based on the written evidence in the case or if it’s necessary to conduct an in-person hearing. If the judge schedules a hearing, you will have a chance to present evidence and witnesses to the judge.
Final Agency Decision (FAD)
A final agency decision (FAD) is a written decision issued by the Agency. The Agency will analyze each of your claims and decide whether you were discriminated or retaliated against. As you can imagine, the Agency nearly always finds that it didn’t discriminate against you. However, you can appeal the FAD to the EEOC Office of Federal Operations (OFO). The OFO is a special office within the EEOC that makes decisions on federal employee discrimination appeals. In other words, requesting a FAD is a way to get a decision from the EEOC without going through the hearing process.
Federal lawsuit
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 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 OFO hasn’t issued a decision
- Within 90 days from the date you receive the OFO’s decision on your appeal
If you file a lawsuit, a federal judge will be assigned to your case. You will have the opportunity to conduct discovery (exchange information and documents with the agency, take depositions). And the judge may decide whether to issue a decision on the written evidence or to schedule an in-person trial. If the judge schedules a trial, a jury will decide whether you were discriminated or retaliated against.
How do these options differ?
| EEOC Hearing | OFO FAD Appeal | Federal Lawsuit | |
| Decisionmaker | EEOC judge | EEOC OFO | Federal judge and/or jury |
| Discovery | Usually | No | Yes |
| In-person appearance | Maybe | No | Maybe |
| Cost | $$ | $ | $$$ |
| Timeline for you to submit evidence to decisionmaker | File your opposition to the agency’s motion for summary judgment about 6–8 months from the initial status conference | File your written argument in support of your appeal about 4 months from the date you request the FAD | File your opposition to the agency’s motion for summary judgment about 10–14 months from the date you file the lawsuit |
When do I have to make a choice?
To request an EEO hearing, you must submit your request to the EEOC and to the agency within 30 days of receiving the ROI. Otherwise, the agency will automatically issue a FAD. If you ask for a hearing, you can withdraw your hearing request at any point and ask for a FAD instead. If you want to file a lawsuit, you must file within the timelines explained above.
Which option is best for me?
The best option depends on many factors, including your financial resources, whether you need additional discovery, and the issues in your case. For example, if you have limited funds, requesting a FAD might be the best option. However, if the ROI doesn’t include the information you need to prove your claims, you may want to request a federal EEO hearing so that you can conduct discovery.
If you’re unsure about which option to choose, Alan Lescht and Associates, P.C. can help. We can explain the pros and cons of each option, based on your case and personal goals. Our attorneys can estimate the cost of each option and determine whether you need to collect more evidence in discovery. Our attorneys represent federal employees throughout the federal 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.
