By John V. Berry, www.berrylegal.com
We are often asked about the proper way in which to initiate an Equal Employment Opportunity (EEO) complaint by federal employees against their federal agencies. A current or former federal employee or applicant for federal employment who believes he or she has been discriminated against because of his or her race, color, religion, sex, national origin, age or physical or mental disability, genetic information, sexual orientation or in retaliation for past EEO activity or for opposition to discrimination may file an EEO complaint against the federal agency involved.
When Can the EEO Complaint be Filed
Prior to filing an EEO complaint, a federal employee (or former employee or applicant) must first initiate contact with 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). Not filing an initial EEO complaint within this 45-day period may bar further action on the complaint by the federal agency. A federal agency and the Equal Employment Opportunity Commission (EEOC) may dismiss allegations of discrimination if they are not initiated in a timely fashion.
What Information is Needed to Process an Informal EEO Complaint
The EEO process begins with the submission of an informal complaint. The federal employee, applicant or former employee, after they have filed the informal complaint is referred to as a complainant. In order to file an EEO informal complaint, some information is generally needed before contacting the designated EEO counselor. This information usually includes:
• Complainant’s full name, mailing address, email address and telephone number.
• Complainant’s position, grade, component, duty hours and days off.
• The specific grounds for the discrimination alleged by Complainant; i.e., race, religion, color, etc.
• A brief 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 very important that a complainant include all of the allegations of
discrimination when they contact the agency’s EEO counselor. If a complainant does
not do so, and they later try to include such information it can be difficult to do so if
the issues are older than 45 days.
Who Do you Contact to Initiate the Informal Complaint?
Generally, each federal agency has EEO counselors or contacts listed (usually on a poster in the office) for initiating EEO complaints. An EEO Counselor serves as a liaison between management and employees to attempt to resolve problems informally. It is often the case that, in addition to contacting the federal agencies designated EEO contact that we put supervisors 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.
After the informal complaint has been initiated, the EEO counselor will explain their roles and responsibilities. The EEO counselor will explain the fact that the counselor is considered to be a neutral party, that the counselor doesn’t represent the complainant, the responsible management official, or the agency. The EEO counselor represents the EEO process.
Choice of Traditional EEO Counseling or ADR
Following a federal employee’s initial contact with an EEO Counselor, the complainant will be provided information about the traditional EEO Counseling process and the Agency’s Alternative Dispute Resolution (ADR) Process for EEO complaints. 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 an election option, moving forward to the pre-complaint stage using either ADR/mediation or traditional EEO counseling.
The ADR Process
One choice for a complainant is to start with the ADR process. We have found that ADR tends to be helpful for federal employees in an attempt to resolve matters earlier in the process. If ADR is selected, then the most frequent process that follows is a mediation proceeding (a meeting), with a mediator and management, their counsel, the employee and their counsel. The goal in mediation is to attempt a written settlement agreement to resolve the EEO complaint. An EEO mediation can last 2 to 8 hours, depending on how detailed the issues are. This process often works with parties explaining their issues with one another and seeking to settle the complaint. If ADR does not succeed, then the federal agency’s EEO office is notified 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. During the counseling process, the EEO counselor will attempt, to varying degrees, to resolve the complaint. Traditional counseling has a much lower chance of resolving a case early when compared to ADR.
The Formal EEO Complaint
If ADR is not elected, or does not result in a resolution 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 more formal submission detailing the discrimination 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. Keep in mind if the formal complaint is not received within that 15-day period, it is likely to be dismissed.
The EEO Investigation
If the complaint is accepted 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, if need be, 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 a 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.
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 takes between 45 minutes and 3 hours in length. The investigator attempts to obtain a full understanding of the issues in the EEO complaint. 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.
Amendments to the EEO Complaint
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. Amendments must be submitted to the designated EEO official for the agency to process them. The most common amendment is retaliation related to the filing of the initial EEO complaint.
Report of Investigation and Completion of Investigation
Following the interview and document review process, the EEO counselor will put together a detailed Report of Investigation (ROI) which will be provided to the complainant and agency. The ROI generally is neutral and recounts the assertions by both sides. Additionally, the ROI may run anywhere from 50 pages to 500 pages in length (it can range depending on the facts of a case. Following receipt of the ROI, a complainant will 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.
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.