Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.
Q: I have a pending case before the EEOC pertaining to disability discrimination in the Federal Sector. My understanding is that when the statutory time has elapsed I may pursue my case in Federal District Court. I have read that under the Rehabilitation Act I may be entitled to have an attorney appointed by the Judge to represent me. Can you advise me further regarding this entitlement?
A: Pursuing an EEO Case in Federal District Court
Your understanding is right! If your EEO complaint is pending before an EEOC administrative judge (AJ), you can withdraw your hearing request and file a civil complaint in federal district court after 180 days have passed since the request was filed. The same applies to appeals of EEOC AJ decisions or final agency decisions (FADs) pending at the EEOC appellate level, known as the Office of Federal Operations. Once 180 days have expired from the filing of the appeal and no final decision has been issued, you can withdraw the appeal and then file a civil action in the appropriate federal district court. In either instance, you need to file a written notice with the EEOC (and send a copy to the agency’s representative), and then an order will be issued dismissing your case. After receipt of that order, you then have 90 days to file in the appropriate federal district court.
Some may ask why go to federal district court if you already chose the EEOC? Reasons include extricating yourself from long delays and contentious discovery disputes that sometimes occur at the EEOC, compelling the testimony of retirees and contractors not possible at the EEOC, having your case heard by a jury, and the ability to recover attorney’s fees in federal court for age discrimination claims that are not recoverable at the EEOC.
Plaintiffs who file a Rehabilitation Act (or even a Title VII, Age Discrimination Employment Act, or other employment based civil action) case in federal district court are not “entitled” to a court-appointed legal representative. You can apply for one with the judge, but counsel at no charge are usually only appointed for indigent plaintiffs who are unemployed and have no other source of income or other personal finances. The 90 day clock for filing the civil action continues while the application is pending or otherwise searching for an attorney.
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