Skip to main content

Cooper, Brandon

U.S. Department of Education

CR has the authority to investigate complaints claiming a covered entity discriminated based on:

race, color, national origin, ethnicity, or ancestry, including a person’s

limited English proficiency or English learner status; and 
actual or perceived shared ancestry or ethnic characteristics, including membership in a religion that may be perceived to exhibit such characteristics (such as Hindu, Jewish, Muslim, and Sikh individuals)

sex or gender, including 

pregnancy or parental status;
sex stereotypes (such as treating persons differently because they do not conform to sex-role expectations or because they are attracted to or are in relationships with persons of the same sex); and 
gender identity or transgender status;

disability, including those currently without an impairment that substantially limits a major life activity, but who have a record of or are regarded as having a disability; and

age.

OCR also has the authority to investigate complaints claiming a covered entity:

retaliated for the purpose of interfering with any right or privilege protected by the laws enforced by OCR;

retaliated because someone made a complaint, testified, assisted, or participated in any manner in an OCR matter; and

discriminated against any youth group officially affiliated with a group or organization listed in title 36 of the United States Code (as a patriotic society) that is intended to serve young people under the age of 21 that requests to conduct a meeting at a public school.

Covered entities include all public and private programs that receive Federal funds from the U.S. Department of Education. These include all public schools and most public and private colleges, as well as some other entities, such as vocational rehabilitation agencies and libraries.  For claims of disability discrimination (including disability-related retaliation), covered entities also include all state and local government entities, even if they do not receive Federal funds.

If you believe you have been discriminated or retaliated against on any of these bases by a covered entity, you may file a complaint using either the electronic complaint form or the fillable PDF complaint form linked at the bottom of this page.

If you choose to file a complaint using either method, you will be asked to provide your name, address, and email address; the name and address of the person discriminated against; and the name and address of the entity you believe discriminated.

You also will be asked which of the kinds of discrimination forms the basis for your complaint. You will need to provide a description of the conduct that you believe is discriminatory.

By law, complaints of discrimination must ordinarily be filed within 180 days of the last act of discrimination. If your complaint involves matters that occurred longer ago than this and you are requesting a waiver, you will be asked to show good cause why you did not file your complaint within the 180-day period.

You will be asked whether you have tried to resolve the matter using a grievance procedure or by filing with another agency.

In addition to the complaint, a signed Consent Form may be required. When disclosure of the identity of the complainant is necessary in order to resolve the complaint, OCR will require written consent before proceeding. The complainant will be informed that the complaint will be closed if written consent is necessary in order to resolve the complaint and is not received within 20 calendar days of the date of the acknowledgement letter or the date the Consent Form is requested from the complainant. The signed Consent Form may be submitted to OCR by mail, fax, email (with a scanned attachment), or in person.

When OCR has determined that consent is necessary in order to resolve the complaint and OCR has not received a signed Consent Form by the 15th calendar day of the date of the acknowledgment letter or the date the Consent Form is requested from the complainant, OCR will contact the complainant (e.g., by phone) to inform the complainant that the complaint will be closed if the signed Consent Form is not received within 5 calendar days. If OCR does not receive signed written Consent Form, the complaint will be dismissed, and the complainant informed in writing.

A complainant on behalf of or regarding to another person(s) is responsible for securing any necessary written consent from that individual, including when a parent files for a student over the age of 18. Where the person is a minor (under the age of 18) or a legally incompetent adult, the Consent Form must be signed by that person’s parent or legal guardian. Parental or legal guardian consent may not be required for persons under the age of 18 if they are emancipated under state law and are therefore considered to have obtained majority. Proof of emancipation or incompetence must be provided.

If you submit the completed electronic complaint form, it will be routed to the OCR office with authority to handle complaints in the state where the institution or entity you are complaining about is located. A staff person will contact you once your electronic complaint has been received and reviewed.

If you select the fillable PDF complaint form, once you complete the complaint form and Consent Form, you should print them out, sign them; and mail them (or email scanned copies of the signed forms) to the Enforcement Office with authority for the state where the institution or entity you are complaining about is located. A staff person will contact you once your complaint has been received and reviewed.

You may now continue to either the electronic complaint form or the fillable PDF complaint form, or you may abandon the form and return to the OCR Complaint Process page.

Process of filing a civil Law Suit

  •  

Usually the first document filed in a lawsuit is the complaint (or petition), which provides an outline of the plaintiff's case against the defendant. The complaint is a document that identifies the parties involved, sets out the legal basis for the court's jurisdiction over the controversy, states the plaintiff's legal claims, and relates the facts giving rise to the claims. The complaint will also contain a section called a demand for judgment or prayer for relief. Here the plaintiff will set forth what he or she wants the court to require the defendant to do, such as pay damages.

The purpose of the complaint is to provide the defendant with notice of the factual and legal bases of the plaintiff's claims. Generally, the facts set forth in the complaint are based on the plaintiff's own knowledge. Sometimes the plaintiff will use the phrase, "upon information and belief" before setting forth some facts. This means that the plaintiff has heard about those facts from someone else, or has formed the belief that the events described in the paragraph happened as described. Most states require that the complaint set forth a short and plain statement of the plaintiff's claims, so don't be surprised if the facts are sketchy, or if they don't seem to tell the whole story.

Summons and Service of Process

  •  

The summons is usually a form document. It will have a preprinted caption that contains the name of the court, the names of the parties and a docket number (the court's identification number for the matter). The body of the document will tell the defendant that he or she has been sued. This language is called the "notice."

The summons will be delivered or "served" on the defendant along with the complaint, either when somebody actually confirms his or her identity and gives them the documents, or when they are mailed to the defendant. The legal term for this is "service of process." The summons, properly served, gives the court power or "jurisdiction" over the case and over the defendant. That means the court may make decisions about the controversy described in the complaint, and decisions affecting the defendant with respect to the controversy.

  •  

The defendant's response to the complaint is called an answer, though some states use a different word for this document. The answer will address each paragraph in the complaint, and each response will ordinarily take one of three forms: "admitted," "denied," "insufficient knowledge to admit or deny." An answer may also set forth various affirmative defenses, which are legal reasons why the defendant should not be held liable for the plaintiff's damages. Some of these defenses may also be the basis of a motion to dismiss.

  •  

If a defendant has his or her own claim against the plaintiff, one which arose out of the same circumstances as those that led to the complaint, it should be raised in the answer in a section titled "counterclaims." The counterclaim will be written in a manner similar to the complaint.

Reply to Counterclaim

If a defendant asserts a counterclaim in the answer, the plaintiff may respond by filing a "reply." The reply will "admit," "deny," or assert that the plaintiff lacks information, just as the original answer did. The reply also may assert defenses, just as the answer did.

  •  

Cross-claims arise when there are many parties to the lawsuit and two or more, who are "aligned" as plaintiffs or as defendants, have their own dispute arising out of the transaction or occurrence. For example, if Driver B and Driver C are sued by Driver A after a multiple-vehicle accident, and Driver C was actually injured by something Driver B did, Driver C might file a cross-claim against Driver B, within the same lawsuit.

Answer to Cross-claim

The person being sued in a cross-claim will file an answer similar to the one filed after the original complaint.

Third-party Complaint

Sometimes a defendant who has been sued will have a legal reason for passing liability off to another person. A common example is a contract in which the third party promises to pay if you the defendant is found liable in a case. This person may be brought into the lawsuit if the defendant files a Third-party complaint. Like the regular complaint, it will set forth the relevant facts giving rise to the defendant's claim against the third party, and will set forth a request for relief.

Answer to Third-party Complaint

The person being sued through a third-party complaint must file an answer, similar to the one filed after the original complaint.

Summons, Complaint and Answer

Terms:

Complaint: 
The complaint is the document written by the plaintiff’s attorney that, when filed and served upon the defendant(s), commences a lawsuit. The complaint serves many purposes including the identification of the parties involved in the lawsuit, the plaintiff’s reason for filing a lawsuit, and the type of relief that is sought.

Defendant: 
The defendant is the party sued in a civil lawsuit. The defendant is the party who allegedly committed some kind of wrong against the plaintiff.

Due process: 
Due process is a constitutional requirement that a defendant be given reasonable consideration and notice when being served with any papers such as complaints, motions or pleadings in a lawsuit.

Federal Rules of Civil Procedure: 
A set of rules, promulgated by the United States Supreme Court, created to govern civil lawsuits in the federal courts.

Motion:
A motion is a written or oral request for a presiding court to make a ruling or to issue an order on a particular legal issue.

Pleadings: 
Pleadings are required documents that contain a party’s allegations and factual support. Traditionally, the pleadings are the plaintiff’s complaint and the defendant’s answer.

Party: 
A party is a person or entity (corporation, organization, deceased’s estate etc.) involved in a legal dispute. Plaintiffs and defendants are parties to a lawsuit.

Plaintiff: 
The plaintiff is the party bringing a civil lawsuit in court.

Service of process: 
Service of process is the method employed by the parties in a lawsuit to formally deliver papers (such as the complaint, answer, and motion papers) on the other parties and the court.

Statute of limitations: 
The statute of limitations is the time limit imposed by the law for bringing a lawsuit. The purpose of the statute of limitations is to encourage timely and diligent litigation by all parties.

Summons: 
A summons is a written notice, which usually is accompanied by the complaint, notifying the defendant and the court that the complaint has been served on all relevant parties and listing the date of the first court appearance for the lawsuit.

The summons, complaint, and answer are the documents that begin a lawsuit. These documents present the positions of both the plaintiff and defendant and are required before a lawsuit can proceed. The Federal Rules of Civil Procedure outline the basic requirements for the contents of each of these documents. The plaintiff bringing the lawsuit must file a summons and complaint to start the lawsuit. This serves a dual purpose: to notify the defendant that there is a lawsuit against him or her, as well as to inform the court and the defendant of the substantive basis upon which the lawsuit rests and the type of damages the plaintiff seeks. The answer is the defendant’s opportunity to respond to the plaintiff’s complaint and to put forth any defenses if he or she so desires.

It is important to preface this section by noting that each federal district court maintains its own “local rules,” or rules that govern how the court expects attorneys appearing in its court to follow procedure. These include methods for filing papers with the court and requirements for appearing before the court. Therefore, to avoid delays, it is imperative that the local rules be checked to ensure that the attorney’s practice conforms to them.

Similarly, states have their own rules of civil procedure, some of which are considerably different than the federal rules. The Federal Rules of Civil Procedure are applicable in federal court while the state rules control for the state court. Thus, one cannot rely on a federal rule for a determination of how one must act in federal court. However, knowledge of the basics of the federal rules will assist understanding the requirements of all civil procedure rules, regardless of jurisdiction.

The Summons and Complaint

Under the federal rules, a civil lawsuit begins when a complaint is filed with the court. See Local Union No. 38, Sheet Metal Workers' Intern. Ass'n, AFL-CIO v. Pelella, 350 F.3d 73, 82 (2d Cir., 2003) (“An action is . . . instituted when a plaintiff files a complaint as that constitutes the first step invoking the judicial process.”). Under some states’ rules, a civil lawsuit begins when the defendant is served with the summons and complaint. The complaint, which contains the plaintiff’s allegations against the defendant and the supporting factual basis for those allegations, is often accompanied by a summons. The summons is a written document that identifies the court in which the lawsuit will be heard, contains the signature and seal of the clerk and the court, and identifies the parties involved in the lawsuit. Both the summons and complaint must be properly filed with the other parties and the court before the lawsuit may proceed.

Here is an example of a summons:

Rule 7 of the Federal Rules of Civil Procedure requires that a lawsuit contain a complaint by the plaintiff’s attorney and an answer by the defendant’s attorney. See Johnson v. Reilly, 349 F.3d 1149, 1156 (9th Cir., 2003). Under the federal rules, the complaint must be written in short and plain language. It is preferred that technical legal language be excluded from the complaint. The complaint should identify the basis for the court’s jurisdiction over the plaintiff’s lawsuit, the claim for which the plaintiff seeks relief, and the demand for the particular type of relief that the plaintiff seeks through the lawsuit. See Federal Rules of Civil Procedure; Rule 8. In other words, the defendant should be able to identify the subject of the lawsuit, how the defendant is involved in it, what complaints the plaintiff has, and the type of damages requested. The courts traditionally read these requirements liberally. Therefore, even if the plaintiff submits a complaint whose language is not entirely clear but addresses all of the necessary elements, the courts will generally accept the entry. See Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir., 2003) (“[T]he complaint need only set forth ‘a short and plain statement of the claim,’ Fed. R. Civ. P. 8(a)(2), giving the defendant fair notice of the claim and the grounds upon which it rests.”).

Below is an example of a complaint:


The complaint is the crucial first step in a lawsuit. It is the plaintiff’s first opportunity to communicate what injury he has allegedly sustained as a result of the defendant’s actions. It also strategically lays out the plaintiff’s legal concerns. In addition, it is from the plaintiff’s complaint that the defendant can strategize his response and any defenses he or she may have to the plaintiff’s allegations.

After the complaint is filed, there sometimes arise circumstances in which new facts may be discovered that the plaintiff wishes to include in the lawsuit. There may also be new legal avenues to pursue. For instance, if a plaintiff files a lawsuit against a defendant, seeking monetary damages for stealing a secret soft drink formula, the plaintiff may later also decide to seek to prevent the defendant from using the soft drink formula for its business. In these cases, the plaintiff will want to amend or supplement the original complaint.

Amendment or supplementation of pleadings (the complaint and the answer) is generally allowed. Rule 15 of the Federal Rules permits the plaintiff to amend its complaint once as a matter of right, i.e., without the need for the court’s permission, if it occurs before the defendant has responded with its answer and the lawsuit has not yet been put on the trial schedule. However, if either of these events have occurred at the time that the plaintiff wishes to amend its complaint or if the plaintiff has already made one amendment and is seeking to make a second amendment, then the plaintiff must obtain permission from the court or the defendant to amend. If the court finds that it is in the interests of justice and fairness to allow the plaintiff to amend the complaint, then the court will allow the plaintiff to do so. Amendments to the complaint often relate to facts and evidence which the plaintiff would like to present in its complaint that existed at the time the complaint was originally submitted, but which were not known to the plaintiff. See Wheeler v. Missouri Highway & Transp. Com'n, 348 F.3d 744 (8th Cir., 2003).

For facts and evidence that are discovered after the original complaint is submitted, the plaintiff must submit a supplemental complaint. The plaintiff must ask the presiding court for permission (via a motion) to file the supplemental complaint.

The Answer

The defendant’s response to a complaint is called the answer. The answer contains the defendant’s version of the events leading to the lawsuit and may be based on the contents of the complaint. The filing of the answer is one option that the defendant has in deciding how to respond to the complaint. The defendant may instead file a motion to dismiss the lawsuit or to have the complaint redone in a different manner. These motions are covered in a later subchapter. This section will focus on the answer.

Under the federal rules, in most instances, the defendant’s answer must be made within 20 days of receiving service of the complaint. See O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 352 (6th Cir., 2003). Other jurisdictions allow a 30 day response time. Under the federal rules, if the defendant has waived service of the complaint, the defendant has 60 days after receiving the complaint to serve his answer. Like the complaint and other pleadings, the answer must be a short statement in plain English. See Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fidelity Life Ins. Co., 958 F.2d 836, 837 n.1 (8th Cir., 1992) (“The answer did not comply with the federal rules of civil procedure that pleadings be ‘simple, concise, and direct.’ ”).

Here is an example of an answer:


The answer may also contain defenses that the defendant may offer in response to the plaintiff’s complaint. There are two main types of defenses that the defendant may put forth. First, the defendant may offer 
affirmative defenses, which are defenses that the defendant has the burden of proving. Some examples of affirmative defenses are previous settlement of the case (where the defendant claims that the issues of liability or damages that are raised in the complaint and have been previously settled), statute of limitations (where the defendant claims that the plaintiff has exceeded the legally allotted time to bring a lawsuit), and fraud. The other type of defense that may be brought are known, under the federal rules, as Rule 12(b) defenses. These defenses are enumerated in Rule 12(b) of the Federal Rules of Civil Procedure and are distinguished from affirmative defenses because these defenses place the burden on the plaintiff to disprove the defense. The defenses included are lack of jurisdiction over the subject matter, failure to state a claim (i.e., the plaintiff has failed to establish that he or she has a valid lawsuit), insufficiency of service of process (where the plaintiff failed to properly execute service of process of the complaint), lack of jurisdiction over the person (also known as lack of personal jurisdiction), and failure to join a necessary party to the lawsuit, among others. If the defendant is able to successfully put forth one of these defenses, he or she may successfully have the plaintiff’s complaint dismissed, in part or in whole. If the defense motion causes the entire complaint to be dismissed, the lawsuit is over. These defenses are discussed in greater detail in a later subchapter.

 

©2003 - 2016 National Paralegal College / National Juris University

Search the Library to locate books, e-books, videos, articles, journals...
Search For

Other Search Options