Friday, December 1, 2017

Filing an EEO Complaint for Federal Employees

By John Berry

This is an article which discusses filing an EEO complaint for federal employees.  Different procedures apply to different types of employees in EEO complaints.  This is an article for federal employees.  Prior to filing an EEO complaint, a federal employee should seek guidance and counsel for the individuals facts of individual cases. The Equal Employment Opportunity Commission (EEOC) has provided a summary about the EEO complaint process for federal employees here.


When to File an EEO Complaint

Prior to filing an EEO complaint, a federal employee must usually contact an EEO counselor within 45 calendar days of the date of the alleged discriminatory act or, if a personnel action is involved, within 45 calendar days of the effective date of such an action. See 29 CFR 1614.105 (a)(1). If a federal employee does not file an initial EEO complaint timely within this 45-day period the federal agency may dismiss it for untimeliness which can potentially end a complaint.

Information Required for an Informal EEO Complaint

An EEO complaint begins with the initiation of a informal complaint or other contact whit the appropriate EEO counselor with the federal agency. The federal employee, applicant or former employee, after they have filed the informal complaint is usually referred to as a complainant and the responsible management officials are known as respondents.

In order to start the EEO informal complaint process, some information is generally required before contacting the designated EEO counselor.  This information usually includes standard information such as:

• Complainant’s full name, mailing address, email address and telephone number.
• Complainant’s position, grade, step, component, duty hours and days off.
• The specific grounds for the discrimination alleged by Complainant; i.e., race, religion, color, etc.
• A brief summary or description of the acts that gave rise to the complaint, the date of event(s), and the requested remedy and the name of the respondents (managers or co-workers involved).

It is critical that an EEO complainant include all of the allegations of discrimination when they contact the agency’s EEO counselor at the informal stage. If a complainant does
not do so, and they later try to include such information it can often be difficult to do so if
the issues are older than 45 days.

How Does a Federal Employee Initiate an Informal EEO Complaint?

In most cases, each federal agency has EEO counselors or designated EEO contacts listed (usually on a poster in the office or an internal website) to handle responses for federal employees initiating EEO complaints. A federal agency's EEO Counselor serves as the contact point between management and employees to attempt to resolve problems informally.

It is usually the case that, in addition to contacting the federal agency's designated EEO contact that the responsible supervisor is put on notice of the EEO complaint. It is frequently the case that a manager learns about an EEO complaint and begins to retaliate but then later claims he or she had no idea that an EEO complaint had been filed. It is usually safer to notify all parties of the EEO complaint and then try to resolve it.

After the informal complaint process has been started, the EEO counselor will explain their roles and responsibilities and how the process will unfold. The EEO counselor will explain the fact that the counselor is considered to be a neutral third party, that the counselor doesn't represent the complainant, the responsible management official, or the agency. The EEO counselor, in theory, represents the EEO process (although that doesn't also happen).

Traditional EEO Counseling versus Alternative Dispute Resolution

After the federal employee’s initial contact with an EEO Counselor, the complainant will usually be provided information about the traditional EEO counseling process and the Agency's alternatives for mediation for EEO complaints, often referred to as Alternative Dispute Resolution (ADR). There will likely be a few agency specific forms for a complainant to complete during this process. In most cases, the federal employee will be advised that they have can exercise their option to move to forward to the pre-complaint stage and mediate or proceed with traditional EEO counseling.

Alternative Dispute Resolution

We have often found that ADR can be helpful for federal employees in an attempt to resolve matters early in the process. If the ADR option is selected, then the most frequent process that follows is a mediation hearing, with an assigned mediator and management, their counsel (maybe), the employee and their counsel. The goal of mediation is to attempt to agree to terms of resolution and enter into a settlement agreement to resolve the EEO complaint. An EEO mediation can usually last 1 to 8 hours (or longer or shorter), depending on how detailed the issues are and how willing the parties are to work with one another. This process often works with parties explaining their issues with one another and then seeking to settle the complaint.  it is not uncommon for the ADR session to lead to a signed settlement agreement shortly thereafter. If ADR does not succeed, then the federal agency’s EEO office is notified that the parties have failed to resolve the matter and the employee is usually provided a notice of right to file a formal complaint

Traditional EEO Counseling

If ADR is not elected, the complainant will generally proceed to the traditional EEO counseling for a period of 30 days which can be extended to 60 days if need be. Extensions for the counseling process can occur.  During the counseling process, the EEO counselor will attempt, to varying degrees, to resolve the complaint (although that really varies depending on the agency and counselor). Traditional EEO counseling has a much lower chance of resolving a case early when compared to mediation and other ADR Efforts.

Formal EEO Complaint

If the case is not resolved by mediation or in counseling, the next step is for a federal employee to be notified of their right to file a discrimination complaint. The notice that a complainant receives will usually be entitled "Notice of the Right to file a Discrimination Complaint" and will be provided by the EEO counselor. This is a formal submission detailing the discrimination, harassment and/or retaliation issues in the EEO complaint, providing the names of witnesses and dates of events, along with a narrative discussion of the individuals involved in the case. The Formal Complaint is usually required to be submitted within 15 days of receipt of the notice of a federal employee’s right to file letter.  A typical format for an EEO complaint is here. Each federal agency varies, but this is a common format for the EEO complaint. Keep in mind if the formal complaint is not received within that 15-day period, it is likely to be dismissed. If a claim is dismissed there will be appeal rights.

The EEO Investigation

If the complaint is accepted for investigation by the federal agency, an EEO investigator will be assigned to develop an impartial investigation. If the complaint or portions of it are dismissed by the agency, the complainant will be provided, in writing, the reason or reasons for the dismissal and will also be informed of his/her right to appeal the decision. Dismissed claims, as mentioned earlier, can usually be appealed later.

The next step is the appointment of the EEO investigator who will investigate the case. The EEO investigator will be appointed by the agency and will contact the parties to begin the investigations process. Usually, the EEO investigator will contact the complainant (federal employee) and/or their counsel first to schedule the first meeting. The EEO investigator may request documents from the agency or the complainant relevant to the complaint before the formal interview process in order to prepare for the beginning of the investigation.

The complainant will almost always be interviewed first in order to obtain a full understanding of the issues in the case. This, depending on the number of allegations, generally can take between 1 to 3 hours in length. The EEO investigator attempts to obtain a full understanding of the issues in the EEO complaint. The quality of investigation and questions, between investigators, vary widely. Following the initial interview, the witnesses noted by the complainant will usually be interviewed about the allegations of discrimination. Next, following the statements provided by the agency, the complainant will typically be provided a chance to provide a rebuttal statement to the manager’s statements.
Typically, an agency is required to complete the EEO investigation within 180 days of the date that the formal complaint was filed by complainant. Sometimes, however, there are important reasons to permit the agency to take additional time to complete their investigation. It can often be important to get as full a picture of the strength of the complaint as early in the process as possible.

Amending the EEO Complaint to Include New Claims

It is also important to consider that a complainant can usually amend and add additional complaints that are related to their EEO complaint prior to the conclusion of the investigation. The key for an amendment to be successful is to make sure it includes issues or claims like or related to those raised in the original EEO complaint. It is also important that amendments are brought within 45 days of their occurrence.  Amendments must be submitted to the designated EEO official for the agency to process them. Unfortunately, the most common amendment is retaliation against the complainant related to the filing of the initial EEO complaint.

Report of Investigation

After the EEO interview and document review process, an EEO counselor will put together a detailed Report of Investigation (ROI) which will be provided to the complainant and agency/respondent. The ROI generally is neutral and simply describes the factual assertions by both sides. The ROI does not issue findings, but summarizes the positions and evidence from both sides. Additionally, the ROI may run anywhere from 20 pages to 500 pages in length (or more). Following receipt of the ROI, a complainant will usually have the opportunity to elect a hearing before the Equal Employment Opportunity Commission (EEOC) or to request a Final Agency Decision (FAD). We typically recommend the EEOC hearing process due to federal agency decisions which are less than fair through the FAD process.  The majority of FADs come to the conclusion that the federal agency was not responsible for discrimination, harassment or retaliation, leaving the complainant only the ability to file a lawsuit, as opposed to requesting an EEOC hearing which can be helpful.

Conclusion

When a federal employee, former federal employee, federal employee applicant needs assistance in the EEO complaint process we represent these individuals in all phases of the EEO process. We can be contact at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page as well.

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