Going Straight to Court with EEO Complaint

In a recent decision on reconsideration by a federal judge in the District of Columbia, a federal worker was allowed to take his case directly to federal court 180 days after he filed an EEO complaint with the agency. In Brown v. Broadcasting Board of Governors, No. 05-3149 (D.D.C. Nov. 17, 2006), the plaintiff filed a complaint against the Broadcasting Board of Governors for discrimination on the basis of his race and reprisal for prior EEO activity. Cristian Brown claimed the agency discriminated against him when they failed to select him for two positions as an Assistant Internet Design Coordinator.

Mr. Brown filed his formal complaint against the agency on April 12, 2002. After the agency completed the EEO investigation, Mr. Brown filed a request for hearing before an EEOC administrative judge. After the EEOC received Mr. Brown's request for hearing, it assigned an administrative judge to his case on January 9, 2003. When the EEOC assigned the administrative judge, 273 days had elapsed from when he filed his EEO complaint. In the middle of litigating the case at the EEOC, Mr. Brown decided to withdraw his case at the EEOC, and instead file a civil action in U.S. District Court.

The issue discussed in the judge's decision concerned whether Mr. Brown had a right to stop litigating in the middle of his case at the EEOC and go directly to U.S. District Court. According to EEOC regulations, Mr. Brown could file his case at U.S. District Court after 180 days had passed from when he filed his formal complaint with the agency. See 29 C.F.R. § 1614.407. When Mr. Brown decided to go to U.S. District court, 273 days had already elapsed. During the 180-day investigatory period, Mr. Brown fully cooperated with the EEO investigator. However, during litigation before the EEOC administrative judge, starting on January 9, 2003, Mr. Brown missed deadlines related to the discovery process.

Because Mr. Brown filed in district court after missing the discovery deadlines, the agency contended that the filing in district court was improper. However, before ending Mr. Brown's case at the EEOC, the administrative judge acknowledged that Mr. Brown's case was not dismissed for missing discovery deadlines, but because Mr. Brown had decided to go to district court after 180 days had passed since he filed his formal complaint. The judge in district court declared that even if Mr. Brown had failed to cooperate with the agency during the EEO investigation or engaged in dilatory behavior at the administrative hearing, EEOC regulations granted him the right to file in district court when 180 days had elapsed from the filing of the formal complaint.

This decision highlights the options available to a federal employee after filing a formal EEO complaint. After filing a formal complaint, the complainant should monitor the 180-day deadline for the agency to investigate the EEO complaint. After 180 days, the complainant has three options: (1) request a hearing before the EEOC office within their jurisdiction, (2) file a civil action in federal district court, or (3) request a final agency decision. The results of the Brown case indicates that after choosing to litigate an EEO case before an EEOC administrative judge, the option to present the case in federal district court is still available.

The November 2006 decision vacated a previous judgment by the same judge who originally decided against Mr. Brown. However, after review of additional briefs by Mr. Brown and a supporting brief from the Metropolitan Washington Employment Lawyers Association, the judge reconsidered and decided in Mr. Brown's favor. The federal sector EEO process is complicated, but with support from organizations like the National Employment Lawyers Association and guidance from law firms familiar with the administrative procedure, complainants will be better equipped to exercise their rights under federal anti-discrimination laws.

This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.