Filing with the EEOC’s Office of Federal Operations: An Appealing Proposition?

By Deryn Sumner, March 15, 2017

Over the many months I’ve contributed to this fine publication, I’ve discussed a lot of decisions issued by the EEOC’s Office of Federal Operations, but not a lot about the process of filing an appeal with the Office of Federal Operations.  So let’s dive in, shall we?

Complainants can file appeals of agency decisions to dismiss their formal complaints, so long as all of the claims in the formal complaint are dismissed. If not, then the agency investigates the remaining claims and the complainant can challenge the dismissal of the dismissed claims by filing a comment on partial dismissal before the administrative judge once the investigation is completed.  Complainants can also file appeals:

• From final agency decisions issued on the merits of their cases,
• From final actions issued by agencies affirming unfavorable decisions from administrative judges,
• On decisions for relief including petitions for attorneys’ fees and awards of compensatory damages and other remedies, and
• On allegations of breaches of settlement agreements.

Agencies are required to file appeals to EEOC’s Office of Federal Operations whenever they issue final actions which fail to fully adopt the administrative judge’s decision, under 29 C.F.R. 1614.110(a).  Agencies can also challenge findings from administrative judges regarding liability and/or remedies.

Each party gets 30 days to notice the appeal and 30 days from that date to file a brief in support of the appeal.  Agencies are required to provide a complete copy of the complaint. Failure to do so can lead to sanctions, up to and including default judgment.

If the Office of Federal Operations does not rule in your side’s favor, you can file a request for reconsideration of the decision.  The standard, set out in 29 C.F.R. 1614.405(c), requires a showing that the Commission’s decision had a clearly erroneous interpretation of material fact, a clearly erroneous interpretation of material law, or will have “a substantial impact on the policies, practices, or operations of the agency.”  The Commission ruled on more than 600 of these requests in 2016 alone and very rarely will grant a request for reconsideration.  In some instances, the Commission will realize that it erroneously relied upon wrong law or fact but will deny the request for reconsideration and re-open the decision on its own to correct the mistake (it has happened to me and is an amusing, but ultimately favorable, result).

Timeframes for how long it takes to get a decision from the Office of Federal Operations vary.  Looking at 2016 decisions, some decisions on procedural dismissals were issued only about 4-5 months after being filed.  However, more substantive cases can take longer.  In the Elden R. v. Department of Interior case I discuss elsewhere in this month’s newsletter, it took 4.5 years to get a decision on the merits.  Sumner@FELTG.com