Dept of Veterans Affairs (VA)

The Department of Veterans Affairs (VA) employed around 399,127 people in 2021. VA employees are covered by federal employment discrimination laws. Those laws make it unlawful to discriminate against federal employees, or applicants for employment, on the basis of: race, color, religion, genetic information, national origin, sex (including pregnancy, sexual orientation, and gender identity, including transgender status), age (40 years and older), physical or mental disability. This prohibition against discrimination includes harassment for any of those same reasons. It also prohibits retaliation (called reprisal in the federal sector) against an employee or applicant who has been involved in a protected activity related to those laws.

An employee who feels that they have been discriminated against or harassed, for the above reasons or subjected to retaliation for a related reason must file an EEO and then to pursue that EEO as required by the procedures provided under federal law and regulations. That process in general begins as follows:

1. Within 45 days of an adverse action based on unlawful discrimination or an act of retaliation (reprisal) or harassment, an employee must contact an EEO counselor. Depending on the agency it might be via phone, email, in-person, or website. Postal employees are encouraged to use the USPS website to start the process and contact the EEO counselor.
2. Once that happens, a meeting/interview is set by the EEO counselor to talk to the employee, now called a complainant, about their claims. (it is called an “Informal EEO” at this point).
3. The employee must choose whether to be anonymous or non-anonymous during the process.
4. If non-anonymous, the EEO counselor will discuss Alternative Dispute Resolution (ADR) with the complainant which for most agencies will be mediation.  If mediation is elected, nothing happens on the EEO until the mediation is over. If the mediation is successful, the matter is over and the informal EEO is closed.
5. If the mediation is not successful or if the complainant chooses to be anonymous or declines ADR, the EEO will move to formal (#6)
6. The EEO becomes formal and is put in written form by the EEO counselor and listed as “Issues” including the law (Title VII, ADEA etc.), the basis (Discrimination, harassment, reprisal) and the unlawful events (was removed from service, was given a suspension, was harassed when the following occurred…. etc.)
7. The formal complaint is sent to an investigator to gather affidavits and documents related to the Issues in the formal complaint. In general, the investigator must complete the investigation within 180 days.

When the investigator is done, s/he sends the complete file, called a Report of Investigation (ROI) to the complainant, and the agency, along with a notice of right to elect: 1 a Final Agency Decision (FAD), 2 filing in federal court, 3 filing with EEOC for a hearing or 4 to do nothing.  We normally recommend requesting an EEOC hearing.

Do not let the word “hearing” trick you into believing that the matter is simple or fast. It is neither.  The best way to describe it is as a lawsuit that ends with a trial by a judge, but no jury.  Basically the process is the same as any lawsuit in a federal court. There will be a discovery period in which the parties will serve formal discovery requests on each other. Those can include interrogatories, document requests and requests for admission. There will be strict time limits for responding under oath and punishment for refusing to respond or not correctly responding. There will be the option, which almost always needs to be taken by the federal employee, to take deposition of crucial witnesses, managers, HR employees and others who may be hostile to the employee. There will also be motions of various types including, in almost every case, a motion for a decision without a hearing which is also called a motion for summary judgment. If that motion is granted to the agency, the case is over and the employee will not go to a hearing.

You need an experienced federal employee attorney to represent you in this proceeding.

Kirk J. Angel, The Federal Employee Attorney ™, has been representing federal employees for a decade now. He brings substantial experience with him from the courtroom and 25 year of litigation. Attorney Angel was an EEOC Trial Attorney and currently represents federal employees in EEO processing and in hearings before the EEOC and MSPB. If you are a federal or postal employee who is facing discrimination, harassment, retaliation/reprisal or if you are facing an EEOC hearing, do not delay and set a consultation with him today.