Tips From the Other Side: January 2019

By Meghan Droste, January 23, 2019

The first Tips from the Other Side for 2019 comes to you from one of my cases.  One of my colleagues and I filed a formal complaint on behalf of a client last spring.  We didn’t hear a peep in response and after 180 days passed, we filed a request for hearing along with a motion for sanctions.  In the motion, we requested the Commission enter default judgment in favor of our client because the agency clearly failed to meet its deadline for investigating her complaint and issuing a report of investigation.  After we filed the request for hearing and motion, the agency finally acknowledged receipt of the formal complaint and indicated that it would begin processing it.

I have seen this happen several times before — after a complainant requests a hearing, the agency, I assume in an attempt to mitigate its earlier inaction, jumps to investigate the claims.  Unfortunately for the agency, it no longer has jurisdiction over the complaint once the complainant has requested a hearing. See Jones-Sims v. U.S. Postal Serv., EEOC App. No. 01A50251 (March 15, 2006) (“Once a hearing request was made, the AJ had sole jurisdiction over the matter.”).

A complainant has no obligation to participate in the investigation at this point.  See Koch v. Sec. & Exchange Comm’n, EEOC App. No. 01962676 (March 6, 1997) (“An agency may not require a complainant to continue to participate in the agency’s internal investigation of an EEO complaint after the expiration of 180 days from the filing of a complaint.”). If the complainant does not provide information the investigation may be of little value, as the other witnesses may not have much to respond to other than the basic outline of the claims in the formal complaint.

I understand the impulse to try to fix the situation by putting together something, but agencies should also keep in mind that once they have missed that 180-day deadline, they may face default judgment regardless of whether they have produced an ROI.  If you find yourself in this situation, you should keep in mind that you should not dismiss the complaint if the complainant refuses to participate and you should start thinking about what your response will be if asked why the Commission should not issue sanctions for the untimely investigation. Droste@FELTG.com