FEPA Discrimination Charge and Right-to-Sue Procedure — Virginia

FEPA Discrimination Charge and Right-to-Sue Procedure (VIRGINIA)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

MEMORANDUM — PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

I. Threshold Coverage Analysis

II. SOL Calculation

III. Forum Selection

IV. Damages Estimate

V. Recommendation

[NARRATIVE]

Part B — Charge of Discrimination (OCR Filing)

[DATE: __/__/____]

Filed via Online OCR Complaint Form AND Email to [email protected] AND U.S. Mail to OCR, 202 N. 9th St., Richmond, VA 23219

COMPLAINT TO THE VIRGINIA OFFICE OF CIVIL RIGHTS

Sworn Complaint Under Va. Code § 2.2-3907(A)

I. Bases of Discrimination (check all that apply)

☐ Race (including hair texture / hair type / protective hairstyles) ☐ Color ☐ Religion (including dress/grooming) ☐ Ethnic or national origin ☐ Sex ☐ Pregnancy/childbirth/related medical conditions/lactation ☐ Age ☐ Marital status ☐ Sexual orientation ☐ Gender identity ☐ Disability ☐ Military status ☐ Retaliation for opposing discrimination or participating in protected activity

II. Statement of Particulars

Pursuant to Va. Code § 2.2-3907(A), the following statement substantially apprises the parties of the time, place, and facts surrounding the alleged unlawful discrimination:

1. Hire and Position. Complainant was hired by [EMPLOYER] on [__/__/____] as a [JOB TITLE]. Direct supervisor: [NAME]. Most recent annual salary: $[________].

2. Employer Size. On information and belief, Respondent employs approximately [____] employees, satisfying the applicable VHRA threshold under Va. Code § 2.2-3905.

3. Protected Class. Complainant is a member of the following protected class(es) under the VHRA: [____________].

4. Adverse Action(s). On or about [__/__/____], Respondent [DESCRIBE — discharged / demoted / failed to promote / harassed / denied accommodation / retaliated against] Complainant.

5. Discriminatory Conduct.
   - [Incident 1 — date, location, actors, conduct, witnesses, documents]
   - [Incident 2 — date, location, actors, conduct, witnesses, documents]
   - [Incident 3 — date, location, actors, conduct, witnesses, documents]

6. Comparators. Similarly situated employees outside Complainant's protected class were treated more favorably: [NAMES, CIRCUMSTANCES].

7. Notice and Internal Complaint. On [__/__/____], Complainant reported the conduct to [HR/Supervisor]. The response was: [____________].

8. Pregnancy / Disability Accommodation (if applicable). On [__/__/____], Complainant requested [accommodation]. Respondent [denied / failed to engage / granted then revoked].

9. Retaliation. After Complainant engaged in protected activity on [__/__/____], Respondent retaliated by [adverse action] on [__/__/____].

10. Damages. Complainant has suffered lost wages, emotional distress, medical expenses, and other damages in an amount to be determined.

III. Relief Requested

☐ Reinstatement
☐ Back pay and front pay
☐ Compensatory damages
☐ Punitive damages (subject to Va. Code § 8.01-38.1 cap)
☐ Attorney's fees and costs (Va. Code § 2.2-3908(C))
☐ Injunctive relief
☐ Expungement of disciplinary records

IV. Voluntary Mediation (Va. Code § 2.2-3907(C))

☐ Complainant agrees to voluntarily submit this charge to mediation without waiving any rights.
☐ Complainant declines mediation at this time.

V. Cross-Filing Request

☐ Complainant requests cross-filing with the U.S. EEOC under the EEOC-OCR Work-Sharing Agreement to preserve Title VII / ADA / ADEA / GINA rights.

VI. Verification

I, [COMPLAINANT NAME], being duly sworn upon oath/affirmation, depose and say that I have read the foregoing Complaint and that the statements contained therein are true to the best of my knowledge, information, and belief.

______________________________
[COMPLAINANT SIGNATURE]
Date: [__/__/____]

Sworn to and subscribed before me this [____] day of [________], [____].

______________________________
Notary Public, Commonwealth of Virginia
My Commission Expires: [__/__/____]

Part C — Right-to-Sue Demand Letter (Notice of Right to File Civil Action)

[DATE: __/__/____]

Via Email to [email protected] AND U.S. Mail (Certified, Return Receipt Requested — Article No. [________________])

RE: Written Request for Notice of Right to File Civil Action — Va. Code § 2.2-3907(H) — OCR Charge No. [________________]

Dear OCR:

Pursuant to Va. Code § 2.2-3907(H), Complainant [NAME] hereby requests that the Office of Civil Rights promptly issue a Notice of the Right to File a Civil Action in the above-captioned matter.

The basis for this request is:

☐ More than 180 days have elapsed since the complaint was filed (Va. Code § 2.2-3907(H)(i)).
☐ OCR has determined or indicated that it will be unable to complete its investigation within 180 days (Va. Code § 2.2-3907(H)(ii)).

Complainant intends to commence a civil action in the appropriate [General District / Circuit] Court of Virginia within the 90-day window provided by Va. Code § 2.2-3908(B) following receipt of the OCR notice. Please issue the notice at the earliest practicable date and confirm delivery in writing.

If this matter has been cross-filed with the U.S. EEOC under the EEOC-OCR Work-Sharing Agreement, Complainant simultaneously requests that OCR coordinate with EEOC to issue a federal Notice of Right to Sue under 29 C.F.R. § 1601.28 to preserve Title VII / ADA / ADEA / GINA rights.

Thank you for your prompt attention.

Respectfully,

______________________________
[COMPLAINANT or COUNSEL]
[Firm, Address, Phone, Email, VSB No.]

cc: [EMPLOYER / COUNSEL]; EEOC Richmond Local Office (if cross-filed)

Part D — Pre-Suit Civil Complaint (General District or Circuit Court)

IN THE [GENERAL DISTRICT / CIRCUIT] COURT OF [____________] COUNTY/CITY, VIRGINIA

Case No.: [____________]

COMPLAINT
Virginia Human Rights Act — Va. Code §§ 2.2-3900 et seq., 2.2-3908

Plaintiff [NAME], by counsel, states for cause of action:

Parties, Jurisdiction, and Venue

1. Plaintiff [NAME] is an adult resident of [CITY/COUNTY], Virginia.
2. Defendant [EMPLOYER] is a [corporation/LLC] with its principal place of business at [ADDRESS] and transacts business in [CITY/COUNTY], Virginia, employing [____] persons.
3. Subject-matter jurisdiction is proper under Va. Code §§ 2.2-3908 and [17.1-513 (Circuit Court) / 16.1-77 (GDC)].
4. Venue is proper in [CITY/COUNTY] under Va. Code § 8.01-262 because the cause of action arose here and Defendant transacts substantial business here.
5. Plaintiff timely filed a charge with the Virginia Office of Civil Rights on [__/__/____] (OCR Charge No. [________________]) and received a Notice of Right to File Civil Action on [__/__/____]. This Complaint is filed within 90 days of receipt of that notice, as required by Va. Code § 2.2-3908(B).

Factual Allegations

6. [Hire date, position, supervisor, salary, performance]
7. [Protected class and disclosure]
8. [Discriminatory conduct in detail]
9. [Internal complaint and employer response]
10. [Adverse action]
11. [Damages]

COUNT I — Unlawful Discrimination in Violation of the VHRA (Va. Code § 2.2-3905)

12. Plaintiff incorporates the preceding paragraphs.
13. Defendant unlawfully discriminated against Plaintiff in employment on the basis of [protected class] in violation of Va. Code § 2.2-3905.

COUNT II — Hostile Work Environment / Harassment

14. Plaintiff incorporates the preceding paragraphs.
15. Plaintiff was subjected to severe or pervasive harassment based on [protected class], altering the terms and conditions of employment, in violation of Va. Code § 2.2-3905.

COUNT III — Retaliation

16. Plaintiff incorporates the preceding paragraphs.
17. After Plaintiff engaged in protected activity, Defendant retaliated against Plaintiff in violation of Va. Code § 2.2-3905.

COUNT IV — Failure to Accommodate Pregnancy / Disability (if applicable)

18. Plaintiff incorporates the preceding paragraphs.
19. Defendant failed to provide reasonable accommodation for Plaintiff's [pregnancy/related medical condition under Va. Code § 2.2-3909 / disability under Va. Code § 2.2-3905], without undue hardship.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment against Defendant for:

a. Compensatory damages including back pay, front pay, and emotional distress damages;
b. Punitive damages (subject to Va. Code § 8.01-38.1 cap of $350,000);
c. Attorney's fees and costs under Va. Code § 2.2-3908(C);
d. Pre- and post-judgment interest;
e. Injunctive and equitable relief (Circuit Court only) — reinstatement, expungement, training, policy reform;
f. Such other relief as the Court deems just.

JURY DEMAND (Circuit Court only)

Plaintiff demands a trial by jury on all issues so triable.

Respectfully submitted,

______________________________
[COUNSEL NAME], Esq. (VSB No. [________])
[Firm, Address, Phone, Email]
Counsel for Plaintiff

Dated: [__/__/____]

Part E — Pre-Filing Checklist

Immediately upon discriminatory act

☐ Calendar 300-day OCR deadline and 300-day EEOC deadline.
☐ Preserve all evidence: emails, texts, performance reviews, write-ups, pay stubs, handbook.
☐ Write contemporaneous notes — dates, times, witnesses, words spoken.
☐ Identify witnesses; obtain written statements where feasible.
☐ Request personnel file in writing.
☐ Do not sign any release or separation agreement without counsel review.

Coverage and forum analysis (Part A memo)

☐ Confirm Respondent meets applicable VHRA employer threshold (1, 5, or 15 employees depending on claim).
☐ Identify all protected classes and adverse actions.
☐ Evaluate damages; note $350,000 punitive cap (Va. Code § 8.01-38.1).
☐ Decide General District vs. Circuit Court based on damages and need for equitable relief.

Before filing OCR Charge (Part B)

☐ Complete OCR Complaint Form (online or PDF).
☐ Have complaint notarized (sworn under oath/affirmation per Va. Code § 2.2-3907(A)).
☐ Submit via online portal, email, or U.S. mail to OCR.
☐ Request cross-filing with EEOC.
☐ Save copy of complaint, OCR docket number, and confirmation.

During OCR investigation

☐ Respond promptly to OCR investigator information requests.
☐ Consider mediation if offered (Va. Code § 2.2-3907(C)).
☐ Track 180-day window — when reached, request notice of right to file civil action.
☐ Diary any new retaliatory acts.

Right-to-sue notice (Part C)

☐ Send written request after 180 days OR upon OCR's determination it cannot complete investigation.
☐ Save OCR Notice of Right to File Civil Action and the date of receipt.
☐ Request EEOC Notice of Right to Sue if dual-filed.

Before filing civil action (Part D)

☐ File within 90 days of receipt of OCR notice (Va. Code § 2.2-3908(B)).
☐ Choose General District (≤$25,000) or Circuit Court (>$25,000 or equitable relief).
☐ Verify venue under Va. Code § 8.01-262.
☐ Pay filing fee; move in forma pauperis if needed.
☐ Serve summons + complaint under Va. Sup. Ct. R. 3:5–3:8 (Circuit) or Title 16.1 (GDC).
☐ Preserve jury demand on face of pleading (Circuit Court).

Ongoing during litigation

☐ Litigation hold letter on documents and ESI.
☐ Document mitigation (job search log).
☐ Continue treatment with mental-health professional; preserve medical records.
☐ Avoid social media posts about case.

Sources and References

• Virginia Office of Civil Rights: https://www.oag.state.va.us/citizen-resources/civil-rights
• OCR Complaint Form (PDF): https://www.oag.state.va.us/files/OCR/OCR-COMPLAINT-FORM-2023-11-06-fillable.pdf
• Virginia Human Rights Act (Va. Code §§ 2.2-3900 et seq.): https://law.lis.virginia.gov/vacodefull/title2.2/chapter39/
• Va. Code § 2.2-3907 (procedures): https://law.lis.virginia.gov/vacode/title2.2/chapter39/section2.2-3907/
• Va. Code § 2.2-3908 (civil action): https://law.lis.virginia.gov/vacode/title2.2/chapter39/section2.2-3908/
• Va. Code § 2.2-3905 (unlawful employment practices): https://law.lis.virginia.gov/vacode/title2.2/chapter39/section2.2-3905/
• Va. Code § 8.01-38.1 (punitive damages cap): https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-38.1/
• EEOC-OCR Work-Sharing Agreement: https://www.oag.state.va.us/files/OCR/2022-10-12_Signed-FEPA-WSA-EXTENSION-2023-(04307422).pdf
• EEOC Richmond Local Office: https://www.eeoc.gov/field-office/richmond/location
• 2020 Virginia Values Act: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1137
• Virginia Supreme Court Rules: https://www.vacourts.gov/courts/scv/rulesofcourt.pdf