Flowchart
of EEO Complaint Process
Contact
an EEO Counselor
Pre-Complaint Processing Timeline
Before filing a formal complaint, the
aggrieved person must contact an EEO Counselor.
A counselor must
be contacted within 45 days of the alleged
discriminatory action. The 45 days time period
will only be extended for the following cases:
- He or she did not and reasonably should
not have known that the discriminatory
matter occurred
- Despite due diligence, he or she was
prevented by circumstances beyond his or her
control from contacting the counselor within
the time limits
CONTACT WITH
OFFICIAL LOGICALLY CONNECTED TO EEO
PROCESS SATISFIES REQUIREMENT TO CONTACT EEO
COUNSELOR
Cox
v. Department of Housing and Urban Development,
EEOC
Request No. 05980083 (July 30, 1998).
Appellant
contacted an EEO
counselor on February 8, 1996, alleging that she
was harassed and forced to resign on July 7,
1995 because of her disability (hearing
impairment). The agency dismissed her complaint
for failure to contact an EEO
counselor within 45 days of the date of the
discriminatory event. On appeal, appellant
provided evidence that she wrote letters
concerning the matter to the agency's Assistant
Secretary in one of its regional offices, as
well as to the agency's headquarters in
Washington, D.C. Appellant also stated that she
had contacted the agency's Regional Counsel
concerning the matter in July 1995. The
Commission noted that it has long held that a
complainant may satisfy the criterion of
counselor contact by initiating contact with an
agency official logically connected to the EEO
process, if the official is not an EEO
counselor. In this case, the Commission found
that appellant's contact with the named agency
officials was sufficient to toll the time limit
for contacting an EEO
counselor. The Commission remanded the complaint
for processing.
COMMISSION
EXTENDS TIME PERIOD TO FILE COMPLAINT DUE TO
HURRICANE
Coleman
v. Department of the Navy, EEOC
Request No. 0598439 (July 30, 1998).
Appellant alleged
race (Black), color and sex discrimination when
she was allegedly coerced into resigning from
her position. She received her notice of final
interview from the agency's EEO counselor on
August 23, 1996, and filed her formal complaint
on September 12, 1996. The agency dismissed the
complaint for failure to file her complaint
within 15 days of receipt of the notice of final
interview. On appeal, appellant alleged that she
was late in filing her complaint due to a
hurricane. She submitted newspaper articles
providing information about the hurricane. This
evidence showed that the damage from the
hurricane was so widespread as to close postal
delivery as of September 7, that the agency was
in "destructive weather condition,"
that power lines were down as late as September
9, and that travel was difficult during the
relevant time period. Appellant further asserted
that her home had suffered damage due to the
hurricane. The Commission found that the
circumstances of this case justified extending
the time limits for appellant's complaint...
Role of the EEO Counselor
EEO Counselors are an integral part of the
complaints system and will counsel any employee
or applicant for employment. They are
responsible for:
- Informing you of your equal employment
opportunity rights and their role in
supporting your rights
- Informing you of the DHS internal
complaint process and all steps you may be
required to take
- Providing instructions on how and where to
file a complaint
- Providing additional guidance on Federally
mandated time limits and procedures
- Informing you of the DHS ADR Program as an
option for resolving your issue(s)
- Gathering as many details about the
alleged discriminatory act as possible
Informally working to resolve the alleged
discriminatory act
- Advise individuals in writing of their
rights and responsibilities in the EEO
Process
Once a complaint is filed, submit a written
report to the agency's EEO office concerning
the issue discussed and the actions taken
during counseling.
EEO
Counseling/Informal Complaint
The servicing EEO Offices (regional) for CIS
and ICE currently process informal
complaints. For DHS CBP, contact your
nearest DFO EEO Office. All federal
agencies must have an ADR program, and CIS and
ICE have one, as well as CBP. You can
request ADR at any phase of the complaint
process.
Counseling Sessions
EEO counselors provide information to the
aggrieved individual(s) concerning how the
federal sector EEO process works, including time
frames and appeal procedures. At the initial
counseling session, counselors must advise
individual(s) in writing of their rights and
responsibilities within the EEO process,
including the right to request a hearing before
an EEOC Administrative Judge (AJ) or an
immediate final decision from the agency
following its investigation of the complaint.
Counselors will describe the ADRO program works,
the opportunity to participate in ADR, and the
right to file a formal complaint if ADR does not
result in a resolution. The counselor must also
inform the individual(s) of their right to
proceed directly to court in a lawsuit under the
Age
Discrimination in Employment Act (ADEA) of
their duty to mitigate damages, and that only
claims raised in pre-complaint counseling may be
alleged in a following complaint filed with the
agency.
Counseling Timelines
Counseling must be completed within 30 days of
the date the agency's EEO office was contacted
to request counseling. If the matter is not
resolved in that time period, the counselor must
inform the individual(s) in writing of the right
to file a discrimination complaint. If the
individual(s) chooses ADR, counseling will be
extended an additional 60 days, but will never
exceed 90 days.
Requesting Mediation
If an employee chooses to use mediation, he or
she will submit a Request for Mediation form.
The case will be reviewed to ensure that
mediation will work and not cause further delays
in resolving any issue(s). The agency and the
complainant will be sent an Agreement to Mediate
form to fill out and turn in. The case is then
referred to a mediator.
Mediator
Once a mediator is selected, he or she will
contact each party for a pre-mediation meeting.
These meetings are confidential and are designed
to help clear the way for communication and
resolution during mediation. Each party will be
advised on the mediation process.
Mediation Session
Mediation will be conducted in a neutral
location. Here, each party and the mediator will
discuss options and methods of resolution. It
may take more than one session or several
individual meetings between each party and the
counselor to reach a settlement.
Resolution
If the parties cannot reach an agreement, the
mediator will contact an EEO Counselor to set up
a final interview so that the complainant can
file a formal complaint. If the parties reach a
settlement, the mediator will write a Resolution
Agreement. If the agency fails to comply with
the Resolution agreement, the complainant has 30
days (from the date they knew of the
noncompliance) to contact the Departmental
Office of Civil Rights.
Notice of Final Interview
Once the "Notice of Final Interview"
form from the counseling agency is received, the
complainant has 15 days to file a formal
complaint. The formal complaint must identify
the agency official with whom the complaint must
be filed and whether or not the aggrieved party
is being legally represented.
The 30 days counseling period can be extended
for an additional 60 days under the following
conditions:
- The individual(s) agrees to such extension
in writing.
- The aggrieved person chooses to
participate in an ADR procedure
If the claim in not resolved before the 90th
day, the Notice of Final Interview form must be
issued to the individual(s).
Formal
Complaint Phase
Complaint Format
An EEO complaint enters the formal phase when
it is filed with an agency's designated EEO
office after the completion of the informal
phase and receipt of the "Notice of Final
Interview". The complainant has 15 days
from receipt of this notice to file a formal
complaint. The complainant or his/her
ATTORNEY (not union rep) must sign the
formal complaint form. The complaint must be a signed
statement from the aggrieved party or the
party's attorney. The complaint must include the
telephone number and the address of the
complainant and/or the chosen representative.
The complaint itself must precisely identify the
complainant and agency. A general description of
the alleged discriminatory action or practice (29
CFR 1614.106) must also be included. At this
point, the decision will be made to either
dismiss or investigate the claim. The complaint
can be amended at any time prior to the
conclusion of the investigation.
Agency Obligations to the Complainant
The agency must acknowledge receipt of the
complaint in writing and inform the complainant
of:
- Date the complaint was filed
- Address of the EEOC office where a request
for a hearing should be sent
- Complainant's right to appeal the agency's
final action
- Complainant's right to dismiss the
complaint
- Agency must investigate the complaint
within 180 days of the filing date
- Any amendments to the complaint
Formal Complaint Process
A case that has not gone through the informal
phase will be remanded to the agency's servicing
EEO office. The aggrieved part may still choose
to contact an EEO Counselor or use the ADR
program.
Multiple complaints filed by the same or
different complainants are combined in
accordance with 29
CFR 1614.606 . A hearing can be requested
from an EEOC Administrative Judge (AJ) on the
consolidated complaints any time after 180 days
from the date the original formal complaint was
filed.
Dismissal of a Complaint
Prior to a request for a hearing, an agency may
dismiss an entire complaint for any of the
following reasons:
- Complainant's failure to state a claim or
stating the same claim that is pending or
has already been decided by the agency or
the EEOC
- Complainant's failure to comply with the
time limits
- Filing a complaint on a matter that has
not been brought to the attention of a an
EEO counselor and which is not like or
related to the matters counseled
- Filling a complaint which is the basis of
appending civil action or which was the
basis of a civil action already decided by a
court
- The complainant has already chosen to
pursue the matter through either the
negotiated grievance procedure or in an
appeal to the Merit Systems Protection Board
- Where the matter is moot or merely alleges
a proposal to take a personnel action
- Where the complainant cannot be located
- Where the complainant fails to respond to
a request of a previously filed complaint
- Where the complaint alleges
dissatisfaction with the processing of a
previously filed complaint
- Where the complaint is part of clear
pattern of misuse of the EEO processes for a
purpose other than the prevention and
elimination of employment discrimination (29
CFR 1614.107)
Agency's Obligation if the Case is Dismissed
If an agency finds that some, but not all, of
the claims in a complaint should be dismissed
for the above reasons, it must:
- Notify the complainant in writing of the
reason for this decision
- Identify which allegations will not be
investigated
- Place a copy of the given notice in the
investigation file
The determination to dismiss a complaint
shall be viewable for review by an EEOC AJ if a
hearing is requested on the remainder of the
complaint. However, it cannot be appealed until
a final action is taken by the agency on the
remainder of the complaint (29
CFR 1614.107) .
Investigations
If the formal complaint is not settled during
any ADR that may be requested, the agency
conducts an investigation. Contract
investigators normally conduct the
investigations.
Investigation Timelines
The agency must complete the investigation
within the earlier of:
- 180 days after the last amendment to the
complaint
- 360 days after filing the original
complaint
Investigation Process
Investigations will be conducted by the
respondent agency. An impartial and appropriate
factual record is expected to be drafted by the
investigating agency. From this record, findings
will be made on the claims made by the aggrieved
party. An appropriate factual record is defined
as one that allows a reasonable fact finder to
draw conclusion on whether discrimination
occurred (29
CFR 1614.107)
Offers of Resolution
An agency may make an offer of resolution to a
complainant, whether represented by an attorney
or not, after the parties have received notice
that an administrative judge has been appointed
to conduct a hearing, but not later than 30 days
prior to a hearing.
Any offers of resolution must be in writing and
include a notice explaining the possible
consequences of failing to accept the offer. If
the complainant does not accept the offer within
30 days of receipt, and the final decision on
the complaint is not more favorable than the
offer, then the complainant shall not receive
payment from the agency for attorney's fees or
costs incurred after the 30-day acceptance
period (29
CFR 1614.109).
Investigation Complete
Once the agency finishes its investigation, it
will issue a report of investigation. A copy of
the investigation file and notification must be
sent to the complainant letting them know they
have 30 days (from receipt of the file) in which
to either:
- Request a hearing and decision from an
EEOC AJ
- Request an immediate final decision from
the agency
- 29
CFR 1614.108
Request Agency's Final Decision
If the complainant does not request a hearing
before an EEOC AJ or an immediate decision from
the Department, DHS is expected to issue its
decision in 60 days. The Office of General
Counsel provides legal advice and support to the
agency throughout the formal complaint process,
representing the Department at hearings and
defending final agency decisions and orders on
appeal and reconsideration.
Discovery
Prior to the EEOC ALJ hearing, the parties may
conduct discovery. The purpose of discovery is
to allow each party to obtain relevant
information to prepare their cases. Each party
will initially cover their own costs for
discovery. The AJ can require the agency to bear
the costs for the complainant to obtain
depositions or any other discovery because the
agency failed to complete the investigation in a
timely manner or failed to adequately
investigate the allegations. For a more detailed
description of discovery procedures, see EEOC
Management Directive 110, Chapter 7.
Hearing Request Timelines
A complainant has 30 days from the receipt of
the investigation file to request a hearing from
an EEOC Administrative Judge (AJ). A hearing can
be requested on the consolidated complaints any
time after 180 days from the date the original
complaint was filed.
Request for Hearing Format
The complainant must send his or her request for
a hearing to the EEOC office indicated in the
agency's acknowledgement letter. The request
must include a copy of the acknowledgement
letter. Within 15 days of receipt of the request
for a hearing, the agency must provide a copy of
the complaint file to the EEOC office. The EEOC
will then appoint an AJ to conduct a hearing (29
CFR 1614.108).
Hearing Process
Agencies will ensure the attendance of all
employees approved as witnesses by the AJ.
Hearings are considered part of the
investigative process, and are closed to the
public. The AJ conducts the hearing and receives
relevant information or documents as evidence.
The hearing is recorded and the agency is
responsible for paying for the transcripts of
the hearing. Rules of evidence are not strictly
enforced during proceedings. If the AJ decides
that some or all of the facts are not in
dispute, then the scope of the hearing may be
limited or a decision issued without a hearing.
Hearing Decision
The AJ must conduct the hearing and issue a
decision on the complaint within 180 days of
receipt of the complaint file from the agency.
The AJ will send copies of the hearing record,
the transcript, and the decision to the parties.
If an agency does not issue a final order with
40 days of receipt of the decision, the AJ's
decision becomes the final action by the agency
in the matter (29
CFR 1614.100).
Final Action by Agency if the AJ Issues a
Decision
When an AJ has issued a decision, the agency has
40 days from the receipt of the hearing file and
the AJ's decision to take action and issue their
final order. The final order must do the
following:
- Notify the complainant whether or not the
agency will fully use the decision of the AJ
- Notify the complainant of his or her right
to appeal to the EEOC
- Notify the complainant of his or her right
to file a civil action
If the final order does not fully use the
decision of the AJ, the agency must at the same
time file an appeal with the EEOC and attach a
copy of the appeal to the final order (29
CFR 1614.110).
Final Action by Agencies if the AJ Does Not
Issue a Decision
When an AJ has not issued a final decision, the
agency must take final action by issuing a final
decision. The agency's final decision will
consist of findings by the agency on the merits
of each issue in the complaint. Where the agency
has not handled certain allegations in the
complaint for any of the procedural reasons
defined in (29
CFR 1614.107), the agency must provide the
reason for its decision not the process the
allegations. The agency's decision must be
issued within 60 days of receiving notice that
the complainant has asked for an immediate final
decision. The agency's decision must contain
notice of the complainant's right to appeal to
the EEOC, or to file a civil action in federal
court (29
CFR 1614.110).
Appeal
Process
Types of Appeals
- Final decision of the agency when the
issue of employment discrimination was
raised in the grievance procedure (29
CFR 1614.401d)
- The agency's final action and order do not
fully implement the AJ's decision (then the
agency has to appeal to the EEOC) (29
CFR 1614.110a)
- Complainant's appeal to the EEOC for a
determination as to whether the agency has
complied with the terms of the settlement
agreement or decision (29
CFR 1614.504b)
Appeal Timelines for Supporting Documents
All appeals must be filed with the EEOC's Office
of Federal Operations (OFO). The following
timetables apply to documents being submitted:
- Any statement or brief on behalf of a
complainant in support of the appeal must be
given to the OFO within 30 days of the
filing the notice of appeal
- Any statement or brief on behalf of the
agency in support of its appeal must be
filed within 20 days of filing the notice of
appeal
- An agency must submit the complaint file
to OFO within 30 days of initial
notification that the complainant has filed
an appeal or within 30 days of submission of
an appeal by the agency
- Any statement or brief in opposition to an
appeal must be submitted to OFO and served
on the opposing party within 30 days of
receipt of the statement or brief supporting
the appeal, or, if no statement or brief
supporting the appeal has been filed, within
60 days of receipt of the appeal
- 29
CFR 1614.403
EEOC has the authority to draw unfavorable
conclusions against a party failing to comply
with its appeal procedures or requests for
information (29
CFR 1614.404c).
The decision on an appeal from an agency's
final action is based on a de novo review
(question of law), except that the review of the
factual findings in a decision by an AJ is based
on a substantial evidence standard of review (29
CFR 1614.405a).
Requests for Reconsideration
A party may request that EEOC reconsider its
decision within 30 days of receipt of the
commission's decision. Such a request is not a
second appeal, and will be granted only when the
previous EEOC decision involved an invalid
interpretation of material fact or law; or when
the decision will have a significant impact on
the policies, practices, or operations of the
agency (A party may request that EEOC reconsider
its decision within 30 days of receipt of the
commission's decision. Such a request is not a
second appeal, and will be granted only when the
previous EEOC decision involved an invalid
interpretation of material fact or law; or when
the decision will have a significant impact on
the policies, practices, or operations of the
agency (29
CFR 1614.405b).
Class Action Appeals
For class action appeals, the class agent or the
agency may appeal an AJ's decision accepting or
dismissing all or part of the class complaint. A
class member may appeal a final decision on an
individual(s) claim for relief pursuant to a
finding of a class-wide discrimination. Finally,
the class agent or the agency may appeal from an
AJ decision on the adequacy of a proposed
settlement of a class action (29
CFR 1614.401c).
Judicial
Phase
Regulations for Filing a Civil Action
A federal sector complainant has to first
exhaust the administrative process set out at 29
CFR 1614 before filing a civil suit. The
regulations provide that civil actions may be
filed in an appropriate federal court:
- Within 90 days of receipt of the final
action where no administrative appeal has
been filed
- After 180 days from the date of filing a
complaint if an administrative appeal has
not been filed and final action has not been
taken
- Within 90 days of receipt of EEOC's final
decision on an appeal
- After 180 days from the filing of an
appeal with EEOC if there has been no final
decision by the EEOC
- 29
CFR 1614.408
Under the Age
Discrimination in Employment Act (ADEA), a
complainant may proceed directly to federal
court after giving the EEOC notice of intent to
sue (29
CFR 1614.201).
Under the Equal Pay Act, a complainant may
file a civil action within 2 years (3 years for
willful violations), regardless of whether he or
she has pursued an administrative complaint (29
CFR 1614.409). The EEOC processing of an
appeal is ended once a civil action is
terminated.
Class
Complaints
Requirements for Class Complaints
Class complaints are processed differently than
individual(s) complaints (29
CFR 1614.204). The informal counseling phase
is the same, with each member of the class
action required to undergo individual(s)
counseling. Once counseling is completed, the
class complaint will be forwarded to the nearest
EEOC Field or District Office for investigation.
An EEOC AJ is appointed to decide whether to
accept or dismiss the class complaint. The AJ
examines the class action to determine whether
it meets class certification requirements for:
- Number
- Commonality
- Typicality
- Adequacy of representation
A class complaint can be cancelled for failure
to meet the requirements listed above or for any
of the reasons discussed for individual(s)
complaints. A class complaint can begin as an
individual(s) complaint. If it is found that
there are more parties affected by the same
issues, the complainants can ask for class
certification at any reasonable point in the
process (29
CFR 1614.204b).
Class Complaint Acceptance Process
The AJ will send his or her decision on whether
to accept the class complaint to the agency and
the class agent. The agency has 40 days from
receipt of the AJ's decision to issue a final
order. This order must notify the agent whether
or not the agency will implement the decision of
the AJ. If the agency's final order does not use
the AJ's decision, they must also file an appeal
to the EEOC's OFO. The appeal must include a
copy of the agency's final order (29
CFR 1614.204d7).
A dismissal of a class complaint must inform the
class agent whether the complaint will continue
as an individual(s) complaint or whether it will
also be dismissed as an individual(s) complaint.
The dismissal must inform the class agent of the
right to appeal to EEOC's OFO or to file a civil
action in federal court.
Agency Responsibilities Once the Class
Complaint is Accepted
Once a class complaint is accepted, the agency
must use reasonable means to notify the class
members of the following:
- The acceptance of the class complaint
- A description of the issues accepted as
part of the complaint
- An explanation of the binding nature of
the final decision or resolution on the
class members
- The name, address, and telephone number of
the class representative
- 29
CFR 1614.204e
Final Decision
Instead of an investigation by the respondent
agency, an EEOC AJ develops the record through
discovery and a hearing. The AJ will issue a
recommended decision to the agency. The agency
has 60 days from receipt of the AJ's decision to
issue their final decision. Their final decision
can accept, reject, or modify the AJ's
recommended decision. If the agency fails to
issue a final decision, the AJ's recommended
decision will become the final decision in the
class complaint.
Individual(s) Claim for Relief in a Class
Action
When discrimination is found in the final
decision, a class member has 30 days from the
receipt of notification to file a written claim
with the agency about any relief he or she feels
they are entitled. The claim for relief must
show that the claimant is a class member
entitled to relief. The EEOC regulations state
that when the discrimination has been proved,
there is a presumption of discrimination to each
member of the class. The agency must show clear
and convincing evidence that any class member is
not entitled to relief. The agency must issue a
final decision on each individual(s) claim for
relief within 90 days of filing. EEOC still has
jurisdiction over the claim. Therefore, any
appeals must be made to the EEOC's OFO or a
civil action may be filed in federal court (29
CFR 1614.204(1)(3)).
Resolution of a Class Action
The class agent and agency can resolve the
complaint at any time. Notice of the resolution
has to be provided to all class members and
reviewed and approved by an EEOC AJ. If the
resolution is not considered fair to the class
as a whole by the AJ, a decision to vacate the
agreement and replace the class agent with some
other eligible class member to continue
processing the class complaint. The decision can
be appealed to the EEOC. If the AJ decides that
the resolution is fair to the class as a whole,
it is binding on all class members (29
CFR 1614.204g).
Class Action Appeals
For class action appeals, the class agent or the
agency may appeal an AJ's decision accepting or
dismissing all or part of the class complaint. A
class member may appeal a final decision on an
individual(s) claim for relief pursuant to a
finding of a class-wide discrimination. Finally,
the class agent or the agency may appeal from an
AJ decision on the adequacy of a proposed
settlement of a class action (29
CFR 1614.401c).
Mixed
Case Complaints
Some employment discrimination complaints can be
appealed to the Merit Systems Protection Board (MSPB).
In these cases, the employee has to choose to
keep on with the complaint as a "mixed case
complaint" (under 29
CFR 1614) or a "mixed case appeal"
before the MSPB. Whichever gets filed first is
the method that will be used (29
CFR 1614.302).
Handling Procedures
Mixed case complaints are handled the same as
other complaints with the following exceptions:
- The agency has only 120 days from the date
of the filing of the mixed case complaint to
issue a final decision
- Complainant may appeal the matter to the
MSPB, or file a civil action any time
hereafter
- The complainant has 30 days from receipt
of the agency's decision to appeal to the
MSPB, not the EEOC
- Once the investigation is finished, the
complainant does not have the right to
request a hearing before an EEOC AJ
- Agency must issue a decision with 45 days
- 29
CFR 1614.302d
Once a final decision is received from the MSPB,
it can be petitioned for the EEOC to review.
Civil Action Timelines for Mixed Case
Matters
Individuals who want to file a civil action in
mixed case matters must file within 30 days (not
90 days) of receipt of:
- Agency's final decision
- MSPB's final decision
- EEOC's decision on a petition to review
A civil action may be filed after 120 days from
the date of filing the mixed case complaint with
the agency or the mixed case appeal with the
MSPB (as long as there has been no final
decision on the complaint or appeal) or 180 days
after filing a petition to review with the EEOC
(as long as the EEOC has not issued a decision)
(29
CFR 1614.310).
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