Complaints Processing Handbook
Part 373: Equal Opportunity
Chapter 5: Equal Employment Opportunity Complaints Program
Originating Office: Office for Equal Opportunity, Office of the Secretary
Supplementing Guide to 373 DM 5
5.1 Policy. It is the policy of the Department of the Interior (Department) to provide equal opportunity in employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, age, disability, genetic information, reprisal or sexual orientation, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each bureau and office.
5.2 Authority. Title VII of the Civil Rights Act of 1964, as amended (Title VII); Age Discrimination in Employment Act (ADEA) of 1967, as amended; the Rehabilitation Act of 1973, as amended (Rehab Act); Fair Labor Standards Act of 1938, as amended - Equal Pay Act of 1963 (EPA); Executive Order 11478, and as amended Executive Order 13145, Title 29 Code of Federal Regulations (CFR) Part 1614, Equal Employment Opportunity Commission (EEOC) Management Directive (MD) 110.
5.3 Purpose. This DM chapter provides Departmental policy and guidance for processing individual complaints of employment discrimination and retaliation prohibited by Title VII (discrimination on the basis of race, color, religion, sex, and national origin), Executive Order 13145 (discrimination on the basis of genetic information), the ADEA (discrimination on the basis of age when the aggrieved individual is at least 40 years of age), the Rehab Act (discrimination on the basis of a qualified disability), or the EPA (sex-based wage discrimination). This chapter also covers complaints alleging retaliation prohibited by these statutes and Executive Orders. The guidance in this DM chapter should be used to supplement the Federal regulations contained in 29 CFR 1614 and EEOC guidance contained in MD-110. Guidance for processing class complaints are provided under 373 DM 6 and guidance for complaints of discrimination filed on the basis of sexual orientation are provided under 373 DM 7.
5.4 Scope. This chapter covers complaints of discrimination filed against the Department by employees, applicants for employment, contingent workers, and former employees, if the alleged discriminatory matter arose out of employment with the Department (hereafter referred to as employees and applicants).
5.5 Responsibility. Bureau or Office Equal Opportunity Officers (hereafter referred to as Bureaus or Bureau EO Officers) are delegated the responsibility to process complaints of employment discrimination filed against their Bureau (except when there is a conflict of interest). It is the responsibility of all Bureau EO Officers to process complaints of discrimination expeditiously and in accordance with Federal laws, regulations, and Departmental policies. It is further the responsibility of all employees, including managers and supervisors, to fully cooperate in the processing, investigation and resolution of discrimination complaints.
5.6 EEO Counselors.
- Publicizing and Posting.
- Each Bureau must publicize to all its employees and post in conspicuous places at all times, the names, business telephone numbers and business addresses of the EEO counselors, a notice of the time limits and necessity of contacting a counselor before filing a formal complaint, and the telephone numbers and addresses of persons designated to receive formal complaints of discrimination.
- The list of counselors must be posted as required in 373 DM 5.6(A) and must be communicated to all employees and applicants for employment through Bureau communication systems both physical and electronic. The posting of information regarding the EEO counselors must be placed in all Bureau facilities and must be current at all times. When requested by the Department, the Bureaus must produce certification of the posting of the EEO counselors list and EEO time limits.
- Persons designated to receive formal complaints are the Bureau Equal Opportunity Officer; the Director, Office for Equal Opportunity, Office of the Secretary; the Assistant Secretary - Policy, Management and Budget; and the Secretary of the Interior. EEO posters are the usual medium for publicizing this information. See 373 DM 5.6(A)(2).
- Determining the Number of EEO Counselors Needed. Bureaus must maintain a sufficient number of EEO counselors professionally trained to provide counseling services to Bureau employees and applicants at all times.
- The standard for determining the number of counselors is one collateral duty counselor per 500 employees or one full-time EEO counselor per 2000 employees. The Bureaus have the flexibility to establish EEO counselor positions in a variety of ways such as a combination of full-time, collateral duty, or outside contract counselors to meet the needs of the Bureau. Whichever method is used, the Bureaus must ensure that there are a sufficient number of trained EEO counselors available and accessible by employees and applicants.
- Bureau EEO counselors must be available to provide timely counseling services to Bureau employees and applicants in accordance with 29 C.F.R. 1614.105. Counselors receive guidance from their Bureau EO Officer. When necessary and appropriate, Bureaus should assist each other in providing alternative counseling services; for example, when there is a conflict of interest, or when there is a shortage of EEO counselors in the Bureau, or where Bureaus are located in common areas. Employees are strongly encouraged to contact the EEO counselors within their own Bureaus (or the Bureau where the complaint arose).
- Collateral Duty EEO Counselors. Employees appointed as collateral duty EEO counselors serve at the pleasure of the Department and operate under the guidance and direction of the Bureau EO Officer. EO Officers must provide a method for recruiting and selecting collateral duty EEO counselors. These procedures should consider interpersonal skills, including interacting with persons from diverse groups, written communication, and resolution techniques. Once selected, the collateral duty counselor must be given a position description describing their duties and responsibilities and limiting their participation in counseling activities to not more than 20 percent of their official time. (A sample Position Description is provided in Appendix 1.) In addition, employees selected as collateral duty EEO counselors by the Bureau EO Officer must have the concurrence of their supervisors to perform such functions. At all times while serving as a collateral duty EEO counselor, the employee is under the direction of the Bureau EO Officer.
- Training. Bureaus must establish and maintain a training and continuing education program for all EEO counselors to ensure quality counseling and professionalism of the EEO Counseling Program.
- Newly appointed counselors must receive a minimum of 32 hours of training prior to assuming counseling duties. The training should include basic EEO counseling techniques; understanding the Federal EEO complaint process and EEO laws; Alternative Dispute Resolution (ADR); communication skills; and report writing.
- Senior counselors should have at least 16 hours of EEO continuing education training annually. The training should include advanced EEO counseling techniques; EEO case updates; mediation skills; and class complaints.
- Performance Management. Bureaus must implement a performance management system for collateral duty EEO counselors to ensure compliance with EEO regulations, guidance, and Departmental policy.
- Performance management systems should, at a minimum, provide for evaluating a collateral duty EEO counselor's performance, assessing whether the individual should continue to serve as a counselor, identifying training needs, recognizing performance, and removing an employee from assignment as a collateral duty counselor. The Performance Appraisals for collateral duty EEO counselors are maintained by the Bureau EO Officer and are not part of the employee's performance appraisal for his or her primary job. (Performance elements are provided in Appendix 2.)
- Full-time EEO counselors are regular employees of the Bureau and their performance should be evaluated using the Bureau's approved performance management system.
- Reporting Counselor Activities. Bureau EO Officers must track each counselor's counseling activity for monitoring Bureau activity and conducting trend analyses for use in developing complaint prevention plans. (Sample Tracking Report in Appendix 3.)
5.7 EEO Counseling Process.
- Time Limits. Employees and applicants for employment must contact an EEO counselor or an EO official associated with the EEO complaint process within the requisite time frames to initiate pre-complaint counseling or the ADR process. EEO counseling must be conducted in accordance with 29 C.F.R. 1614.105 and MD 110-2.
- The aggrieved person must contact someone connected with the EEO process to comply with the 45 calendar-day time period. If the aggrieved person initially contacts someone other than the EEO counselor, the official contacted must ensure that the complaint file is documented with the date of contact by the aggrieved person.
- MD 110.2-11 states that the unavailability of an EEO counselor to meet with the aggrieved person for a period of time after such initial contact does not toll the 30-day counseling period. Absent agreement from the aggrieved person to extend the time period (or unless the aggrieved person enters ADR), the EEO counselor must issue the Notice of Right to File at the end of the 30-day period. Therefore, Bureaus should ensure that EEO counselors are readily available to conduct the counseling session.
- Documentation. All initial contacts with agency officials by aggrieved persons requesting EEO counseling must be documented for the record regardless of whether contact is made directly with an EEO counselor, the EO Officer, or another agency official with EEO responsibilities. This is to document the date of the initial contact for calculating whether the 45-day time limit for contacting an EEO counselor/official was met.
- Initial Interview and Identification of Claims
- At the initial interview, the EEO counselor must identify the claims brought to the counselor by the aggrieved person. Additional claims may be added during the counseling period.
- The counselor must provide the aggrieved person, in writing, the Notice of the Rights and Responsibilities in the complaint process. (Appendix 4 contains a sample Notice of Rights). To ensure compliance with the regulations, the counselor should obtain the aggrieved person's signature indicating that he or she has received the Notice of Rights and Responsibilities including the date of receipt. The Notice of Rights and Responsibilities must advise that the complaint must be filed within 15 calendar days of receipt of the Notice of Right to File described in 373 DM 5.7(F)(1)(b).
- Additionally, the counselor must provide information on other procedures that may apply such as for ADEA discrimination complaints; mixed-case complaints; EPA complaints; the administrative grievance process and its Conflict Resolution Process (CORE); the negotiated grievance procedure; the Whistleblower complaint process; and the sexual orientation complaint process. See 373 DM 5.16.
- The EEO Counselor should also explain to the aggrieved individual the types of remedies available in the Federal EEO process which include: back pay, attorney's fees and costs (limited in the counseling process), compensatory damages, expungement of agency records, reinstatement, and retroactive personnel actions (promotions, within-grade increases). In advising the aggrieved person, the counselor should also explain the conditions by which these remedies may be available and/or awarded. EEO Counselors must consult with the Bureau EO Office when advising the aggrieved individual about available remedies.
- Once the counselor has identified the claims brought by the aggrieved person, he or she must offer ADR to the aggrieved person. If the aggrieved person elects to enter ADR, the Bureau Equal Opportunity Officers must provide ADR and the informal complaint must be referred to the appropriate official with resolution authority for ADR within five (5) days. The EEO counseling at this point will cease and the informal complaint will proceed through the ADR process. See 373 DM 5.8. ( See Appendix 5.)
- If the aggrieved person elects to continue with the EEO counseling process, the EEO counselor will conduct a limited inquiry (not an investigation) into the claims brought by the aggrieved person. A limited inquiry involves obtaining sufficient facts to make an attempt at resolution of the claims. The EEO counselor does not make any findings and cannot discourage the aggrieved person from filing a complaint. After conducting the limited inquiry, the counselor must ensure that the appropriate manager or supervisor has an opportunity to address the claims and to make an offer of resolution to the aggrieved person. The decision to offer resolution to the aggrieved person and the contents of that offer of resolution is at the discretion of the manager or supervisor.
- Extending the Counseling Period. Any extension of the counseling period must be agreed to by the aggrieved person in writing. However, extensions of the counseling period should only be necessary to allow the counselor to conduct the limited inquiry and to attempt informal resolution or for other justifiable reasons; or when the aggrieved person elects ADR during the counseling process at which time counseling will cease and the counseling period will be 90 days. All extensions of counseling will be documented and included in the Counseling Report. (See Appendix 6).
- Counseling Report. A counseling report must be written on every pre-complaint counseling effort completed either by the normal EEO counseling process or by ADR. The Counseling Report must be submitted to the Bureau EO Office within 15 days of issuance of the NOFI. The Bureau EO Office will provide a copy of the Counseling Report to the aggrieved person upon receipt of a formal complaint. (A sample Counseling Report is contained in Appendix 7). The Counseling Report should include, at a minimum the following:
- date of the initial contact with the counselor,
- clear identification of the aggrieved person's claims,
- date of the claims,
- Notice of Rights and Responsibilities,
- Notice of Final Interview and Right to File a Discrimination Complaint (otherwise known as the NOFI),
- date the notice was received by the aggrieved person, and
- written Informal Resolution Agreement if one is achieved
- Informal Resolution Agreement (IRA). All resolutions achieved during pre-complaint counseling will be put in writing in the form of an IRA.
- The terms of the IRA must be written with clarity and specificity to allow for a clear understanding of the terms of the agreement. The standard IRA must also be written using generally accepted language approved by the Department. (A sample IRA is provide in Appendix 8.)
- The IRA must also be signed by the aggrieved person, the aggrieved person's representative (if any), and the manager having authority to resolve the complaint. The IRA may also include the signature of the Bureau EO Officer to demonstrate knowledge and review of the IRA.
- All Departmental policies concerning the resolution of complaints must be followed including obtaining the necessary approvals for IRAs containing monetary values as described in 373 DM 5.14(A).
- Records. The Bureau EO Office will maintain copies of all Counseling Reports and IRAs for a minimum of four years after resolution of the case or in accordance with the Retention Schedule, whichever is longer. If the complaint was not resolved and the aggrieved person does not file a formal complaint of discrimination against the agency, the Bureau EO Office will maintain the Counseling Report for one year after completion of the counseling period.
5.8 Alternative Dispute Resolution (ADR).
- ADR Program.
- EEOC regulations require all agencies to establish or make available an ADR program for both the pre-complaint process and the formal complaint process. 29 CFR 1614.102(b)(2).
- The Department requires all Bureau EO Officers to develop an ADR program within the parameters of its EEO-PLUS (Partners Listening, Understanding and Solving) Program. EEO-PLUS encourages and facilitates the early resolution of allegations of discrimination and requires the active participation of the aggrieved person, supervisor, and/or manager.
- The Bureaus must make every effort to promote early resolution whenever possible including during the formal complaint process. The ADR Program must be fair, voluntary, neutral, confidential, and enforceable and meet all requirements of the Department and the EEOC.
- ADR Methods. Bureau EEO Plus Programs have the flexibility of using a variety of ADR methods including but not limited to mediation, facilitation, negotiation, and peer review. The EEO-PLUS Program must be in writing and approved by the Departmental Director, Office for Equal Opportunity (OEO). Thereafter, the Bureaus must publicize their EEO-PLUS Programs through the use of training, presentations, memoranda, notices in newsletters, and other communication systems. Information should be provided to individuals about how to access the EEO-PLUS Program and the benefits of ADR. Bureau EO Officers may also develop brochures, program handbooks, etc., describing the ADR program and procedures.
- EEO-PLUS Facilitators. Bureau EEO-PLUS Programs may encompass trained mediators in the management of conflict in employment disputes, peer review panels, fact finding persons, facilitators, or arbitrators.
- Persons serving in these capacities (hereafter referred to as EEO-PLUS Facilitators) may be Departmental employees, outside contractors, or trained ADR professionals from other Federal agencies associated with a shared neutrals program who are experienced and certified in mediation or conciliation. EEO-PLUS Facilitators must be:
- available to meet with the involved parties when needed;
- neutral, objective, and impartial problem-solvers; and
- able to assist management and the aggrieved person in joint problem solving.
- The duties of the EEO-PLUS Facilitator are to: assist the parties in identifying and minimizing the dispute and the conflict; establish a cooperative and non-threatening environment for dialogue which enables the parties to conduct joint cooperative problem solving and/or negotiations before escalating the dispute into an adversarial forum; assist the parties in breaking deadlocks and avoiding impasse; and address the actual cause of the dispute which may or may not be the articulated problem.
- Roles and Responsibilities.
- Bureau EO Officers have the responsibility to manage the pre-complaint counseling program; supervise the EEO-PLUS ADR process; assure that EEO professional staff (including counselors and mediators), employees, supervisors, and managers are trained on the EEO-PLUS process; evaluate the effectiveness of the Bureau's EEO-PLUS Program; and report to the Departmental OEO on program status and accomplishments. Bureau EO Officers may appoint an EEO-PLUS Manager to administer the EEO-PLUS Program.
- EEO counselors have the responsibility to advise aggrieved persons about the EEO complaint process and the choice of ADR through the Bureau's EEO-PLUS Program or counseling.
- Managers and supervisors have a duty to participate in the EEO-PLUS ADR process. This duty confers the responsibility to actively pursue resolution of allegations of discrimination arising in matters under their jurisdiction.
- Employees have a responsibility to enter into the EEO-PLUS ADR process in good faith to try to resolve the complaint at the earliest possible level, to mitigate his or her claim, and to cooperate with the Bureau in the implementation of any IRA resulting from the ADR process.
- ADR Training.
- EEO-PLUS Facilitators. Each Bureau's EEO-PLUS Program must describe the training requirements for the EEO-PLUS Facilitators and, at a minimum, must include the training requirements described in EEOC MD-110.3-11. Experienced EEO-PLUS Facilitators must have training in Advanced ADR, Interest Based Negotiation, and Advanced EEO. EEO-PLUS Facilitators meeting the basic and advanced training requirements, will be certified as Departmental EEO-PLUS Facilitators.
- Managers, Supervisors, and Employees. Bureau EO Officers should ensure that managers, supervisors and employees are informed about the nature of the Bureau's EEO-PLUS Program, how it works, how to access the EEO-PLUS Program, and the roles and responsibilities of the parties in the ADR process. The Bureau EO Officers should also ensure that ADR training provided to managers, supervisors and employees is consistent with EEOC guidelines.
- EEO-PLUS at the pre-complaint counseling stage. The Bureau's EEO-PLUS Program must be clearly explained to the aggrieved person. During the initial interview with the aggrieved person, or within a reasonable time after the initial interview, the EEO counselor must offer ADR to the aggrieved person. If the aggrieved person elects ADR, the EEO counselor must notify a management official with settlement authority of the issues raised by the aggrieved person and explain to the management official the prospective ADR process. The ADR process must be executed within the time frames of the EEO regulations.
- If ADR is accepted by the aggrieved person, the EEO counseling process will cease and the matter will be referred to the Bureau person in charge of the EEO-PLUS Program.
- If the matter is resolved during the ADR process, the terms of the resolution will be reduced to writing using the Department's standard IRA or other approved IRA format. The IRA will be executed in the same manner described in 373 DM 5.14. Once signed by all parties, the IRA will be forwarded to the Bureau EO Officer for administrative closure of the matter. The EO Officer will oversee the implementation of the IRA and retain copies of the supporting documentation for the complaint files.
- If the matter is not resolved during the ADR process, the matter will be referred back to the EEO counselor for completion of the EEO Counseling Report and issuance of the NOFI. The EEO counselor will not conduct any further inquiry into the matter. The EEO Counseling Report will include the date the matter was brought to the EEO counselor, the issues/claims brought to the EEO counselor, the election of ADR, and the date of the NOFI. The EEO Counseling Report will also include all pertinent documents required by the regulations and EEOC MD-110.2-15; for example, the signed Notice of Rights and Responsibilities and the Notice of Final Interview.
- If the aggrieved person does not elect ADR, the matter will be processed under the standard EEO pre-complaint counseling process.
- ADR at the Formal Complaint Stage. The Bureau's EEO-PLUS Program must explain how the ADR process will be used during the formal complaint process. Bureau EO Officers must continuously assess complaints for resolution up until 30 days prior to the hearing or not later than the date an administrative judge is appointed to conduct a hearing if the complainant is represented by an attorney. If an ADR process is used, the time period for processing the formal complaint may be extended by agreement with the aggrieved person for not more than 90 days.
- All ADR attempts must be documented and data on the success of the program should be maintained. The success of the EEO-PLUS Program will be evaluated through the use of statistical analysis, user feedback, outcome of the conflict analysis process, coordination meetings, and individual and group discussions with program administrators. EEO-PLUS Program statistics will be reported annually to the Department for consolidation and submission to the EEOC in the Annual Complaint Statistical Report, Form 462.
- Maintenance of Records. Discussions held in ADR processes should not be recorded, maintained, or made a part of the complaint records. However, any successful resolutions obtained as a result of the ADR process should be reduced to writing and maintained in accordance with 373 DM 5.7(I).
5.9 Formal Complaints.
- Complaint Processing at Bureau Level. Bureau EO Officers have delegated authority from the Director, OEO to receive and accept formal complaints of discrimination and to process complaints up to the hearing process. Within this authority, Bureaus must have a system for receiving complaints of discrimination from employees and applicants which includes such things as recording the date the complaint was filed, assigning a Bureau docket number, and timely processing of the complaint. (Appendix 9 is the DOI Complaint Form, DI-1892.)
- Acknowledgment of Complaints. Upon receipt of a complaint, the Bureau must promptly send the complainant and his or her representative a letter acknowledging receipt of the complaint. The acknowledgment letter lets the complainant know that the complaint was received, the date it was filed, and that the complaint will be processed. A copy of the issued acknowledgment letter must be placed in the complaint file, along with all other correspondence generated and referencing the complaint processing (see Appendix 10). Upon receipt of the complaint, or within 15 days of receipt of the complaint, the Bureau must request the Counseling Report from the EEO counselor if one has not yet been received.
- Complaint Acceptance. The Bureau EO Officer must review the complaint, along with the Counseling Report, and identify the claims raised by the complainant. Each claim must be identified and a determination made as to which claims will be accepted for investigation and which claims, if any, the Bureau believes should be proposed for dismissal. The Bureau must notify the complainant and his or her representative of the accepted claims and the claims that will not be investigated. The Bureau must fully document the file with supporting documentation as to the reason(s) why any claims will not be investigated and are proposed for dismissal. The Bureau must also advise, the complainant in its acceptance letter, that he or she may submit a statement to the Bureau concerning the Bureau's articulation of the issues and inform the complainant that there is no immediate right to appeal any dismissed claims until a final decision is issued. (See Appendix 11).
- Dismissals. Upon identification of the claims contained in a complaint, the Bureau EO Officer must determine whether the claims meet the regulatory requirement for acceptance. This determination must be completed expeditiously. Dismissals of complaints are governed by 29 C.F.R. 1614.107. Only the Departmental Director, OEO may issue a final decision dismissing a complaint. The Department's authority to dismiss a complaint ends when a complainant requests a hearing.
- Bases for Dismissals. A complaint or a portion of a complaint may be dismissed for the following reasons:
- Untimely Contact with the EEO Counselor. 29 C.F.R. 1614.105(a)(1) requires an aggrieved person to contact an EEO counselor within 45 days of the discriminatory event or within 45 days of the effective date of the personnel action. Aggrieved persons failing to bring a claim(s) to the attention of an EEO counselor in a timely manner may have their complaint dismissed pursuant to 29 C.F.R. 1614.107(a)(2).
- Untimely Filing of the Formal Complaint. The formal complaint must be filed with the appropriate Departmental official designated to receive complaints within 15 days of receipt of the counselor's NOFI. Failure to file a formal complaint within this time frame may result in dismissal of the complaint pursuant to 29 C.F.R. 1614.107(a)(2).
- Failure to State a Claim. This may include a claim that does not allege discrimination on a basis encompassed in one of the statutes applicable to Federal employees. (373 DM 5.1) Additionally, the Department must accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by the Department because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. (373 DM 5.3) An aggrieved employee is one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. A complaint failing to state a claim may be dismissed pursuant to 29 C.F.R. 1614.107(a)(1). Prior to proposing dismissal of a complaint for failure to state a claim, the Bureau EO Officer will in writing give the complainant 15 calendar days to demonstrate how he or she was harmed by the alleged discriminatory matter.
- Abuse of Process. Abuse of process is defined as a clear pattern of misuse of the EEO process for ends other than that which it was designed to accomplish. The EEOC has a strong policy in favor of preserving a complainant's EEO rights whenever possible. Therefore, Bureaus must exercise extreme caution and seek guidance from the Director, OEO, in recommending dismissal of complaints pursuant to 29 C.F.R. 1614.107(a)(9).
- States the Same Claim. A complainant may not file another complaint which states the same claim that is pending before or has already been decided by the Department or the EEOC, except in those cases where a class action complaint is pending.
- Complainant Files a Civil Action. 29 C.F.R. 1614.107(a)(3) provides for the dismissal of complaints where the complainant files a civil action concerning the same allegation. The civil action must have been filed pursuant to 1614.407.
- Issue Has Been Decided. Regulations mandate the dismissal of complaints where the same issue has been decided by a court of competent jurisdiction and the complainant was a party to the lawsuit. This is to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions. 29 C.F.R. 1614.107(a)(3).
- Allegations Raised in a Negotiated Grievance Proceeding. If the complainant raised the allegation of discrimination in a negotiated grievance procedure that permits allegations of discrimination, he or she may not file an EEO complaint under part 1614. The complainant must elect which process to proceed under, but he or she may not proceed under both processes. 29 C.F.R. 1614.107(a)(4).
- Appeal Made to the Merit Systems Protection Board. The Department may dismiss a complaint where the complainant has elected to appeal the claim to the Merit Systems Protection Board rather than file a mixed case complaint. 29 C.F.R. 1614.107(a)(4).
- Complaint Alleges a Preliminary Step. The Department may dismiss a complaint that alleges a proposal to take or a preliminary step in taking a personnel action is discriminatory. 29 C.F.R. 1614.107(a)(5).
- Complaint is Moot. A complaint may be dismissed as moot where there is no reasonable pectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. 29 C.F.R. 1614.107(a)(5).
- Dissatisfaction with the Processing of a Complaint. The Department may dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. 29 C.F.R. 1614.107(a)(8). However, concerns about the processing of a complaint will be referred to the Bureau EO Officer or Complaints Manager as described in 373 DM 5.9(A)(4).
- The Complainant Cannot be Located. The Department may dismiss a complaint where the complainant cannot be located. Before dismissing the complaint, the Bureau must make reasonable efforts to locate the complainant and inform the complainant in writing that he or she must respond to the Bureau notice of proposed dismissal within 15 days, sent to his or her last known address. 29 C.F.R. 1614.107(a)(6).
- The Complainant Failed to Respond or Proceed in a Timely Fashion. The regulations permit dismissal where the complainant has failed to respond to a written "request to provide relevant information or to otherwise proceed" within 15 days of receipt, provided that the request contained notice of the proposed dismissal and further provided that there is otherwise insufficient available information to adjudicate the claim. 29 C.F.R. 1614.107(a)(7).
- Recommending Partial Dismissals. A portion of the claims brought in a complaint may also be dismissed. The Bureau EO Officer, when notifying the complainant of the accepted claims, must notify the complainant, in writing, if they are also recommending that one or more of the claims be dismissed pursuant to 29 CFR 1614.107. The written notification to the complainant must set forth the Bureau's rationale for recommending dismissal of the claim(s) and inform the complainant that the claims recommended for dismissal will not be investigated. A copy of the notice is placed in the complaint file. The Bureau EO Officer will also advise the complainant, in a non-mixed case, that an Administrative Judge will review its dismissal determination if he or she requests a hearing on the remainder of the complaint, but the complainant may not appeal the dismissal until a final action is taken by the Department on the remainder of the complaint. Where the complainant requests a final decision by the Department without a hearing, or in a mixed case, the Director, OEO will issue a decision addressing all claims in the complaint, including its rationale for dismissing claims, if any, and its findings on the merits of the remainder of the complaint.
- Total Dismissals. If the Bureau EO Officer determines that the entire complaint should be dismissed pursuant to any of the bases for dismissals described in 373 DM 5.9(A)(3), the Bureau will prepare the dismissal for signature of the Director, OEO. The dismissal letter must clearly explain the reasons for the dismissal and advise the complainant of his or her appeal rights. The Bureau EO Officer must submit an original and two copies of the supporting complaint file to the Director, OEO. The Director, OEO makes the final decision on the dismissal of the complaint.
- Allegations of Dissatisfaction Regarding Processing of Pending Complaints. If a complainant is dissatisfied with the processing of his or her pending complaint, whether or not it alleges prohibited discrimination as a basis for dissatisfaction, he or she should be referred to the EEO official responsible for the quality of complaint processing. EEO officials should earnestly attempt to resolve dissatisfaction with the complaint process as early and as expeditiously as possible. The EEO official responsible for the quality of complaint processing must add a record of the complainant's concerns and any actions he or she took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Department's or Bureau's reason(s) for not taking any action.
- Complaint Investigations. Bureau EO Officers must provide for the investigation of all accepted claims within 180 days unless otherwise extended by agreement with the complainant or because of an amended complaint (see Appendix 12). They must ensure that the completed report of investigation (ROI) is thorough, unbiased and addresses all accepted claims. Investigations must be conducted in accordance with 29 C.F.R. 1614.108.
- EEO Investigators. Bureau EO Officers must ensure that EEO Investigators, whether Departmental employees or outside contractors, meet the qualification requirements for conducting EEO investigations. Training should be provided to all Investigators on an annual basis to keep investigators informed of developments in EEO practice, law, and guidance, as well as to enhance and develop investigatory skills. All new EEO investigators, including contract and collateral duty investigators, must complete and provide documentation of a least 32 hours of investigator training within the last two to four years prior to conducting investigations for the Department.
- EEO Investigations. An investigation of a formal complaint of discrimination is an official review or inquiry, by persons authorized to conduct such inquiries or reviews, into claims raised in an EEO complaint. The investigative process is non-adversarial; i.e., the investigator is obligated to collect evidence regardless of the parties' positions with respect to the items of evidence. Investigations may be conducted by using a variety of fact-finding models such as the interview or the fact-finding conference, requests for information, position statements, exchange of letters of memoranda, interrogatories, and affidavits. The purpose of the investigation is 1) to gather facts and supporting evidence upon which a reasonable fact-finder may draw conclusions as to whether a Departmental office subject to coverage under the statutes that the EEOC enforces in the Federal sector has violated a provision of any of those statutes; and 2) if a violation is found, to have a sufficient factual basis from which to fashion an appropriate remedy. All employees of the Department are required to cooperate in the investigation.
- Reports of Investigations. The Bureau EO Officer must prepare at least six (6) copies of the ROI: the original, with one copy each for the complainant, the complainant's representative, the Department's representative, the EEOC Administrative Judge, and the Department. All copies of the ROI must be exactly alike and tabbed, paginated, and indexed. At all times, when the processing of a complaint has been completed either by final agency decision, Administrative Judge's decision, settlement, or withdrawal, the Departmental files must consist of the original file and one copy. The Departmental OEO will prepare complaint files for administrative closure and archive.
- Contents of the Complaint File. The complaint correspondence file will be assembled in a suitable binder, have a title page, and contain all documents pertinent to the complaint. This includes: a copy of the complaint; the notice of final interview issued to the complainant pursuant to 29 C.F.R. 1614.105(d); the report of EEO counseling; acknowledgment of the filing of complaint; any resolution agreement reached or withdrawal statement made by the complainant; a statement of issues to be investigated (acceptance letter); a record of any activity before the EEOC, Office of Federal Operations; evidence collected by the investigator; correspondence associated with the processing of the complaint; and a summary of the investigation.
- The ROI should include affidavits or signed statements of the complainant and witnesses; copies or extracts of records; policy statements or regulations of the Department and/or Bureau, organized to show their relevance to the complaint or the general environment out of which the complaint arose; transcriptions, notes, or minutes of proceedings conducted during the investigation along with an investigative summary of the facts; and letters, notes, and copies of letters and notes by, to, or from the investigator, the complainant, the EEO staff or counselor concerning the processing of the complaint. The ROI should not include documentation concerning the substance of attempts to resolve the complaint during informal counseling or during any ADR procedure. The ROI should not include findings on the merits of the complaint.
- Amending Complaints. At any time prior to the issuance of the ROI, a complainant can amend his or her pending EEO complaint to add claims that are like or related to those claims raised in the pending complaint. There is no requirement that the complainant seek EEO counseling on these new claims. After the complainant has requested a hearing, he or she may file a motion with the Administrative Judge to amend the complaint to include claims that are like or related to those raised in the pending complaint.
- When a complainant raises a new incident of alleged discrimination during the processing of an EEO complaint, it must be determined whether this new incident: 1) provides additional evidence offered to support the existing claim, but does not raise a new claim in and of itself; 2) raises a new claim that is like or related to the claim(s) raised in the pending complaint; or 3) raises a new claim that is not like or related to the claim(s) raised in the pending complaint.
- In order to facilitate such a determination, the complainant must be instructed by the investigator (or any other EEO staff person with whom the complainant raises the new incident) to submit a letter to the Bureau EO Officer, or Complaints Manager describing the new incidents and stating that he or she wishes to amend his or her complaint to include the new incidents. The Bureau EO Officer or Complaints Manager must review this request and determine the correct handling of the amendments in an expeditious manner.
- Issuance of the Report of Investigation.
- Bureau EO Officers must review all ROIs prior to issuance to ensure that the investigative file is complete and thorough. The complainant and his or her representative should also be given an opportunity to review the file and notify the Bureau, in writing, of any perceived deficiencies in the investigation prior to forwarding the case to the EEOC for hearing or to the Department for a final agency decision.
- If the Bureau EO Officer identifies deficiencies in the ROI or agrees with alleged deficiencies in the Investigation as identified by the complainant, the Bureau must immediately correct them. If the investigation period has ended or is about to end, the Bureau should request agreement with the complainant to extend the investigation period.
- If the Bureau EO Officer does not agree with the complainant's claimed deficiencies in the investigative file, the Bureau will prepare a statement explaining the rationale for the disagreement and include it in the investigative file along with the complainant's notice of claimed deficiencies.
- The Bureau EO Officer must issue the completed ROI to the complainant and to his or her representative. In addition to the ROI, the complainant must be issued the election notice to request a hearing by the EEOC or a final agency decision on the record by the Director, OEO. If the complaint involves a matter appealable to the MSPB, the complainant is notified that his or her case will be referred to the Director, OEO for a final agency decision and that he or she will be given appeal rights to the MSPB. (See Appendices 13 and 14).
- The Bureau EO Officer must also forward completed ROIs and complaint files to the appropriate EEOC Field Office, the Department's representative, and the Departmental OEO.
- Hearings. The hearing is an adjudicatory proceeding that completes the process of developing a full and appropriate record. A hearing provides the parties with a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses. The hearing will be conducted by an Administrative Judge from the EEOC. The Administrative Judge's decision becomes final action of the Department if the Department does not issue a final order within 40 days of receipt of the Administrative Judge's decision.
- Hearing Requests. The Bureau EO Officer must notify the complainant, in a non-mixed case, within 180 days from the filing of the complaint, whether or not it has completed its investigation, that the complainant has the right to request a hearing before an Administrative Judge. The notice to the complainant must also include the address of the appropriate EEOC Field Office to which to send the hearing request. The complainant must submit the hearing request directly to the EEOC Field Office having jurisdiction over the geographic area in which the complaint arose. Upon notification that a complainant has requested a hearing by the EEOC, the Bureau EO Officer will notify the Director, OEO and the Departmental representative in the relevant Solicitor's Office. If the complainant does not request a hearing within the relevant time period, the Director, OEO will issue a final decision as described in 373 DM 5.9(B)(2).
- Roles and Responsibilities.
- Administrative Judge. The Administrative Judge adjudicates claims of discrimination and issues decisions which become final if the Department does not issue a final order within 40 days of receipt of the Administrative Judge's decision. Generally, an Administrative Judge will conduct a hearing on the merits of a complaint unless: 1) the parties mutually resolve the complaint and the hearing request is withdrawn; 2) the hearing request is otherwise voluntarily withdrawn; 3) the Administrative Judge dismisses the complaint; or 4) the Administrative Judge determines that material facts are not in genuine dispute and issues an order limiting the scope of the hearing or issues a decision without a hearing pursuant to 29 C.F.R. 1614.109(g). The regulations provide that the Administrative Judge will issue a decision within 180 days of his or her receipt of the complaint file from the Department, unless the Administrative Judge makes a written determination that, in his or her discretion, good cause exists for extending the time for issuing a decision. Once the complainant requests a hearing, the Administrative Judge has full responsibility for the adjudication of the complaint, including overseeing the development of the record. The Administrative Judge's responsibilities include, but are not limited to the following:
- Issuing decisions on complaints.
- Administering oaths.
- Regulating the conduct of hearings.
- Limiting the number of witnesses so as to exclude irrelevant and repetitious evidence.
- Ordering discovery or the production of documents and witnesses by serving orders on both parties.
- Issuing orders to protect information.
- Excluding any person from the hearing who is disruptive.
- Issuing decisions without a hearing if there are no material facts in issue.
- Limiting the hearing to the issues in dispute.
- Imposing appropriate sanctions on parties who fail to comply with orders.
- Calculating compensatory damage awards.
- Ordering a medical examination.
- Calculating and awarding the amount of attorney's fees or costs.
- Engaging the parties or encouraging the parties to engage in settlement discussions.
- Issuing an order determining full relief.
- Bureau EO Officer. The Bureau EO Officer must notify the complainant within 180 days from the filing of the formal complaint that they have completed the investigation and that the complainant has the right to request a hearing before an Administrative Judge of the EEOC within 30 calendar days of receipt of the ROI. The Bureau EO Officer must also notify the complainant of the EEOC Field Office and address where the hearing request must be sent as well as the Bureau office to which the copy of the request should be sent. Within 15 days of receipt of a copy of the request for a hearing sent to an EEOC Field Office, the Bureau must send a copy of the complaint file, including the investigative file, to the EEOC Field Office. The Bureau must also send a copy of the complaint and investigative files to the complainant and the Departmental representative, if it has not previously done so.
- Department's Representative. A representative from the Office of the Solicitor in the geographic area where the hearing will be held will be assigned to represent the Department at an EEOC hearing. Upon receipt of a request for a hearing, the Bureau EO Office must send a copy of the complaint file to the Department's representative. Bureaus must coordinate with the Department's representative with any actions on the complaint including settlement efforts once a hearing has been requested.
- Complainant. A complainant must submit his or her hearing request directly to the EEOC Field Office having jurisdiction over the geographic area in which the complaint arose. In the absence of the required hearing notice described in 373 DM 5.9(A)(8)(a), the complainant may request a hearing at any time after 180 days have elapsed from the filing of the complaint by submitting his or her written hearing request directly to the appropriate EEOC Field Office indicated in the Bureau's acknowledgment or acceptance letter. The complainant must also certify to the EEOC that he or she has sent a copy of the hearing request to the Department.
- Managers and Employees. All employees serving as witnesses in a complaint hearing must give their full cooperation during the course of the hearing process. Additionally, all participants in the EEO hearing process have a duty to maintain the decorum required for a fair and orderly proceeding and to obey the orders of the Administrative Judge.
- Final Actions. The Director, OEO has delegated authority to issue final actions on complaints of discrimination. Upon request by the complainant (after he or she has been issued the ROI and given the election notice or in a mixed case), the Director, OEO will issue a final agency decision (FAD), within 60 days of receipt of the request, addressing each claim contained in the complaint. The FAD will be based on a complete and thorough review of the entire complaint file, including the correspondence file and the ROI, and will examine the merits of the claims or determine whether any claims should be dismissed in accordance with 29 C.F.R.1614.107. The FAD will also include the appropriate appeal rights to the complainant. FADs are only issued by the Director, OEO, and are not delegated to Bureaus.
- Final Actions of Administrative Judge's Decisions. When an Administrative Judge issues a decision, the Director, OEO must take final action on the complaint by issuing an order within 40 days of the date of its receipt of the Administrative Judge's decision. The 40 days begins to run when the Administrative Judge's decision is served upon and received by the Director, OEO. The Department's final action must inform the complainant as to whether the decision will be fully implemented. The term "fully implement" means that the Department adopts without modification the decision of the Administrative Judge. The Director, OEO's final action further must inform the complainant of his or her right to file an appeal with the EEOC, the right to file a civil action in federal district court, the name of the proper defendant in such appeal or civil action, and the applicable time limits for such appeals or civil actions. If the Director, OEO's final action does not fully implement the decision of the Administrative Judge, the Director, OEO must file an appeal with the EEOC, appending a copy of its appeal to the final order, simultaneously with its issuance of the decision to the complainant.
When the Department appeals an Administrative Judge's decision in a case involving removal, separation, or suspension continuing beyond the date of the appeal, and when the Administrative Judge's decision orders retroactive restoration, the Department must comply with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the position specified in the decision, pending the outcome of the Department's appeal. The employee may decline the offer of interim relief. See 1614.505(a)(1).
The Department may decline to return a complainant to his or her place of employment if it determines that the return or presence of the complainant will be unduly disruptive to the work environment. However, the Department must provide prospective pay and benefits. See 1614.505(a)(5).
The Department also may delay the payment of other amounts, exclusive of pay and benefits, when it files an appeal of an Administrative Judge's decision. If the Department declines to make such payments, it will be required to pay interest on these amounts from the date of the decision until payment is made if the outcome of the appeal requires the Department to make the payment. See 1614.505(a)(3).
The Department must inform the EEOC and the complainant in writing at the same time that it files its appeal that it will delay making the payments of any amounts owed pending resolution of the appeal. If the Department fails to inform either the complainant or the EEOC and fails to further make the payments required by the decision being appealed, the EEOC will dismiss the appeal. The complainant must file a request for dismissal with the EEOC within 25 days of the date of service of the Department's appeal and provide the Department with a copy of the request. The Department will have 15 days from receipt of the complainant's request to file a response.
- Final Actions in All Other Circumstances. When the Department dismisses an entire complaint, receives a request for an immediate final decision, does not receive a reply to the hearing election notice, or does not receive a reply to the notice of proposed dismissal, the Department will take final action by issuing a final decision. The final decision consists of findings on the merits of each claim in the complaint, or as appropriate, the rationale for dismissing any claims in the complaint and, when discrimination is found, appropriate remedies and relief in accordance with Federal regulations. The Director, OEO will issue the final decision within 60 days of receiving notification that a complainant has requested an immediate final decision from the Department, or within 60 days of the end of the 30 day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested a hearing or a decision. The final action must contain notice of the right to appeal the final action to the EEOC, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits.
- Corrective Action in Final Agency Decisions/Final Orders. When a final agency decision or final order is issued with a finding of discrimination, the decision/order must contain all appropriate corrective action to which the complainant is entitled. This may include: monetary awards (back pay, interests, compensatory damages, attorneys's fees and costs), expungement of records, reinstatement, restoration of annual or sick leave, or other appropriate actions to make the complainant whole; a posting notice at the site where discrimination was found; a reprisal protection clause; a training requirement, if necessary; and a recommendation that the Bureau review the case to determine if any administrative action (including disciplinary action) is warranted in the case. Upon completion of the implementation of the corrective action, the Bureau must provide the Director, OEO with supporting documentation. If the Bureau decides not to take any administrative or disciplinary action against the individual causing the discrimination, it must provide the Assistant Secretary, PMB with a written justification for its decision.
5.10 Processing Conflict of Interest Cases.
- Conflict of interest cases include those complaints filed against and directly involving the Assistant Secretaries or his or her staff, the Bureau Director, the Bureau EO Officer, or the supervisor of the Bureau EO Officer. When a complaint of discrimination constitutes a conflict of interest for the Bureau to process, the complaint will be forwarded to the Departmental OEO for processing. The complaint will be processed according to 29 C.F.R. 1614 and Departmental guidance. The Bureau will assume all costs and will fully cooperate with the Department in the processing of the complaint.
- When the complainant requests that his or her complaint be processed outside of the Bureau and there is no true conflict of interest, the EO Officer will work to resolve the complainant's concerns by having the Bureau involved in processing his or her complaint. The EO Officer should include documentation of all issues of concern expressed by the complainant and the solution to the complainant's issues in the complaint file. If the Bureau EO Officer is unable to resolve the complainant's concerns, the Bureau EO Officer may find alternative processing of the complaint. The Bureau where the complaint arose will assume all costs and fully cooperate with the processing of the complaint and will remain responsible for the handling of the complaint.
- When a complaint of discrimination is filed by an employee or applicant for employment with the Departmental OEO, the Department must designate a Bureau to process the complaint. The Departmental OEO will assume all costs and fully cooperate with the Bureau in processing the complaint and will remain responsible for the processing of the complaint. Any final agency decision issued on the complaint filed by an OEO employee or applicant will be issued by the Alternate Director, OEO, designated by the Office of the Solicitor.
- A complainant has 30 days from receipt of a FAD/final action to appeal his or her case to the EEOC. (See Appendix 15). If the complainant is represented by an attorney of record, the 30-day time limit begins to run from the date of receipt by the attorney of the notice of dismissal, final action or final agency decision. The complainant must provide a copy of the appeal to the Department at the same time he or she files the appeal with the EEOC. The complainant must certify the date and method he or she sent the appeal to the Department. Appeals must be filed with the EEOC at the following address:
Equal Employment Opportunity Commission
Office of Federal Operations
Post Office Box 19848
Washington, D.C. 20036
As an alternative to mailing, appeals may be hand-delivered to:
Equal Employment Opportunity CommissionAppeals also may be sent by fax to: (202) 663-7022.
Office of Federal Operations
1801 L Street, NW
Washington, D.C. 20507
- In reference to an Administrative Judge's decision finding discrimination, the Department can fully implement the Administrative Judge's decision or issue a final order informing the complainant that the Department does not intend to fully implement the Administrative Judge's decision as described in 373 DM 5.9(B)(1). If the Department does not fully implement the Administrative Judge's decision, it must simultaneously inform the complainant that it has filed an appeal with the EEOC and provide interim relief, as required, to the complainant. (See Appendix 16).
The Department must provide a copy of the appeal to the complainant. The final order must also inform the complainant: 1) the complainant may file a separate appeal of the Department's order; 2) the EEOC, in the absence of a separate appeal from the complainant, will review only the Department's decision not to fully implement the Administrative Judge's decision; and 3) if the complainant contends that the Administrative Judge erred either in any ruling made during the pendency of the action or in the decision, the complainant must file a separate appeal from the Department's final action to challenge such errors.
5.12 Civil Actions filed in U.S. District Court.Complaints filed in an appropriate U.S. District Court are handled by the Department of Justice, U.S. Attorney's Office. The Office of the Solicitor will assign an attorney in the geographic area of the District Court to assist the U.S. Attorney. Any communication regarding the civil action must be made through the Office of the Solicitor. All employees of the Department must cooperate with the U.S. Attorney's Office and the Solicitor's Office during the litigation process.
5.13 Representation and Reasonable Amount of Official Time.
- Complainants are entitled to a representative of their choice during pre-complaint counseling and at all stages of the complaint process.
- Complainants who are employees of the Department and his or her representative, if also an employee of the Department, can have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to Department/Bureau and EEOC requests for information. Presentation time may include preparation for, and attendance at, meetings and hearings, preparation of the formal complaint, and any appeals that may be filed with the EEOC.
- Reasonable is defined as whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to the Department/Bureau and EEOC requests for information. The official time is allocated by the number of hours, not days or weeks.
- The actual number of hours to which the complainant is entitled will vary, depending of the nature and complexity of the complaint and considering the mission of the organization and the organization's need to have its employees available to perform their normal duties on a regular basis.
- The complainant and his or her supervisor should arrive at a mutual understanding as to the amount of official time to be used prior to the complainant's use of such time.
- The complainant must request use of official time in advance for preparing and responding to complaint information, in writing, to his or her supervisor. The request must indicate the number of hours requested and the purpose of such request.
- The supervisor must approve, by his or her signature, the use of reasonable official time requested. The use of official time shall be recorded as administrative leave and a record should be kept for the file of the number of hours given to a complainant even when a request is granted without any reduction. If the supervisor denies the use of the requested official time, in whole or in part, he or she must specify the reasons for the denial in writing. The documentation denying the request for use of official time must be made part of the complaint file.
- The supervisor should consult with the Bureau EO Officer in determining what is a reasonable amount of official time.
- Whenever a complainant alleges an improper denial of official time, the complaint must be treated as a violation of EEOC regulations, 29 CFR 1614.605, not a complaint of discrimination. Therefore, the Bureau EO Officer must make a determination as to whether the decision to deny official time was properly made, and remedy any violation which has occurred. The decision on an allegation of denial of official time may be reviewed in the final agency decision.
- Duty status means the complainant's normal hours of work. The Department/Bureau will, to the extent practical, schedule meetings during the complainant's normal working hours and that Department/Bureau officials will provide official time for the complainant and his or her representative to attend such meetings.
- The Department/Bureau is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer.
- Since most of the time spent by complainants and their representatives during the processing of a ypical complaint is spent in meetings and hearings with Department/Bureau officials or with EEOC Administrative Judges, and since complainants and their representatives generally have no control over the length of those meetings and hearings, whatever time is spent in such meetings and hearing is automatically deemed reasonable official time.
- The Department/Bureau may restrict the overall hours of official time afforded to a representative, for both preparation purposes and for attendance at meetings and hearings, to a certain percentage of that representative's duty hours in any given month, quarter, or year. Such overall restrictions would depend on the nature of the position occupied by the representative, the relationship of that position to the mission of the Department/Bureau, and the degree of hardship imposed on the mission of the Department/Bureau by the representative's absence from his or her normal duties. The amount of official time to be afforded to an employee for representational activities will vary with the circumstances. In cases where the representation of a complainant or Department/Bureau would conflict with the official or collateral duties of the representative, the EEOC or the Department may, after giving the representative an opportunity to respond, disqualify the representative. At all times, the complainant is responsible for proceeding with the complaint, regardless of whether he or she has a designated representative.
- A employee is not entitled to official time for preparing, filing or presenting his or her civil action in an U.S. District Court except where the complainant is specifically requested to appear by the agency or its representative. It is the policy of the Department that, in the event that an employee has filed an EEO action in federal court and has requested time to prepare and present his or her case in court, supervisors may only approve annual leave or leave without pay. An exception to the policy may be made, and official time may be granted, if the employee's time is required by the Government such as taking the employee's deposition. If the employee prevails on the claim, official time may be granted by the court as part of the employee's remedies. If the employee does not prevail, the original leave charge will stand. This policy does not restrict the restoration of leave or the granting of official time as part of a settlement agreement.
5.14 Settlement Agreements.Bureaus are encouraged to seek resolution of EEO complaints throughout the administrative process, including the EEO counseling stage. Bureaus and complainants should be creative and flexible in considering settlement terms. Any settlement reached between the complainant and the Department/Bureau must be reduced to writing and signed by both parties in order that both parties have the same understanding of the terms of the settlement. Settlement agreements entered into voluntarily and knowingly by the parties are binding on the parties. Settlements may not involve waiver of remedies for future EEO violations.
- Monetary Awards. Monetary awards in EEO settlements may include, where appropriate, back pay, compensatory damages, interests, or attorney's fees and costs. These awards may be allocated separately or in a lump sum payment. In all cases, the amount of the monetary award may not exceed the amount that would be recoverable under Title VII if a finding of discrimination were made. Additionally, any agreement for a monetary award exceeding $20,000 in back pay, interests, or damages, or $20,000 in attorney's fees or any combination of the two in excess of $40,000, must be approved by the Director, OEO prior to agreement. Any settlement exceeding this amount during the hearing process or where a Departmental attorney is involved, also must be approved by the Solicitor. Bureaus may seek advice from the Office of the Solicitor in negotiating settlement agreements. All attorney's fees claims must be reviewed by the Office of the Solicitor prior to payment.
- Age Discrimination Complaints. When entering into a settlement agreement involving a complaint of discrimination filed on the basis of age, the Department must comply with the Older Worker's Benefit Protection Act (OWBPA), 29 U.S.C. 626(f)(10 and (2).
- Section 1 of OWBPA provides that an individual may not waive any right or claim brought under the Age Discrimination in Employment Act of 1967 (ADEA) unless such a waiver is knowing and voluntary.
- Section 2 provides that a waiver in settlement of an age discrimination complaint brought under the ADEA shall not be considered knowing and voluntary unless it meets six criteria: (1) that the waiver is part of an agreement that can be clearly understood by the complainant; (2) that it specifically refers to rights or claims arising under the ADEA; (3) that the complainant does not waive rights or claims that arise after the waiver is executed; (4) that the complainant receives valuable consideration in exchange for the waiver, beyond what the complainant is already entitled to; (5) that the complainant is advised in writing to consult an attorney before executing the agreement; and (6) that the complainant is given a reasonable period of time to consider the agreement.
- To meet the requirements of the OWBPA, all settlement agreements involving the ADEA must state the following language:
"The complainant acknowledges and understands in writing that he or she has filed claims, as described herein, under the Age Discrimination in Employment Act of 1967 (ADEA), as amended by the Older Workers Benefit Protection Act of 1990 (OWBPA). Complainant understands and acknowledges that by his or her signature on this agreement, he or she forever waives and withdraws with prejudice those ADEA claims. The parties hereby stipulate to the following:
- Complainant was advised of his or her right to consult an attorney before signing this waiver and withdrawal of the ADEA claims;
- Complainant was advised that he or she had a reasonable period from the date he or she is provided a copy of this agreement to consider this agreement before signing it;
- The parties agree that seven days from the date that complainant is provided with a copy of the agreement constitutes a reasonable period to consider the agreement before signing it.
- Complainant has received valuable consideration in exchange for the waiver beyond that which the complainant was already entitled."
Failure to comply with these minimum requirements under OWBPA or if there is other evidence that the waiver was not "knowing and voluntary" may invalidate the waiver of the ADEA claims and may require reopening the age complaint even if monetary consideration has already been paid to the complainant.
- Compliance with Settlement Agreements. Any settlement agreement reached at any time in the process must be in writing, signed by both parties, and must identify the allegations resolved. A copy of the settlement agreement must be given to the complainant, the manager responsible for implementing the settlement agreement, the Bureau EO Officer, and the Director, OEO.
Settlement agreements should be implemented expeditiously or as otherwise specified in the agreement. Any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, is binding on all parties. The EO Officer must maintain all documentation and records supporting compliance with the settlement agreement including records associated with expungement of Bureau records. If the complainant believes that the Bureau has failed to comply with the terms of a settlement agreement, the complainant must notify the Director, OEO, in writing, of the alleged noncompliance with the settlement agreement, within 30 days of when the complainant knew or should have known of the alleged noncompliance. The complainant may request that the terms of the settlement agreement be specifically implemented or, alternatively, that the complaint be reinstated for further processing from the point where processing ceased.
- Processing Breach of Settlement Claims. Claims of breach of settlement must be filed with the Director, OEO within 30 days of when the complainant knew or shown have known of the alleged breach. Upon receipt of the breach claim, the Director, OEO will inform the appropriate Bureau and request that the Bureau respond to the claim(s) of the alleged breach within 15 days. In its response, the Bureau must address the action taken on each term of the settlement agreement and submit supporting documentation to the Director, OEO. The Director, OEO will review the complainant's claim and the Bureau's response to determine whether the settlement agreement has been breached and issue a final agency decision on the matter.
If there is a breach of the settlement agreement, the Bureau will be compelled to either implement the agreement or to reinstate the complaint where processing ceased.
If the Director, OEO determines that the settlement agreement has been fully implemented by the Bureau, the complainant will be notified in a final agency decision and advised of his or her right to appeal the decision to the EEOC within 30 days of receipt of the decision. The complainant may also file such an appeal to the EEOC 35 days after he or she has filed the breach of settlement claim with the Director, OEO, if the Director OEO has not responded to the complainant in writing or if the complainant is not satisfied with the Director, OEO's attempt to resolve the matter. The complainant must serve a copy of the appeal on the Department and the Department may submit a response to the EEOC within 30 days of receiving the notice of appeal.
5.15 Expedited Process for Harassment Cases.Claims of harassment based on race, color, national origin, sex, religion, disability, genetic information, age, reprisal, or sexual orientation, may be reviewed under the Department's Expedited Process. Harassment means any conduct by a manager, co-worker, or other Federal employee that interferes with an employee's ability to do his or her job and is based on discrimination covered by this chapter. Aggrieved employees will have 45 days from the date of the incident to bring claims of harassment to the attention of the local, Regional or Bureau EO Officer. This contact will be considered the initial counseling contact for the purposes of meeting the requirements of the EEO complaints process procedures. See 373 DM 5.7((A). Upon presentation of a claim of harassment, the EO Officer will make a determination as to whether the matter warrants priority consideration and will so advise the aggrieved employee. If so, the EO Officer will begin immediate counseling on the allegation. The matter may not be delegated to an inexperienced counselor/investigator.
The EO Officer must immediately meet/discuss the alleged incident with the aggrieved individual. Afterwards, the EO Officer will bring the matter to the immediate attention of the highest appropriate management official at the site where the incident arose. The manager must order an immediate, expedited inquiry into the facts of the incident. The inquiry should be conducted by the EO Office or other appropriate official and accomplished within 10 days of the contact with the EO Official.
Upon receipt of the inquiry report, if warranted, the manager must take immediate corrective action, including appropriate disciplinary action. The corrective action must, at a minimum, include: taking appropriate actions to correct, eliminate, and cure the harassing environment; posting in a conspicuous place a notice signed by the highest appropriate management official, stating that harassment will not be tolerated in the work place; taking appropriate administrative/disciplinary action against the individual doing the harassment; and mandating that the harassing individual take sensitivity training within 60 days of the conclusion/decision regarding the harassment. Determinations that corrective action is not warranted must be fully documented.
Should the aggrieved individual be dissatisfied with the management actions taken to correct the harassing environment, he or she will be given a notice of final interview and right to file a complaint of discrimination as provided by the EEOC regulations. Thereafter, the formal complaint will be processed in accordance with EEO regulations at 29 C.F.R. 1614 and this DM chapter. The EO Officer's report of inquiry and management actions will represent the inquiry for the Report of Counseling.
5.16 Procedures for Related Processes.Bureau EO Officers and EEO Counselors must inform aggrieved employees and applicants of various other processes available for raising claims of discrimination.
- Mixed-Case Complaints and Appeals. A mixed-case complaint is a complaint of employment discrimination based on race, color, religion, sex, national origin, age, disability, or reprisal related to or stemming from an action that may be appealed to the Merit Systems Protection Board. The complaint may contain only a claim of employment discrimination or it may contain additional non-discrimination claims that the MSPB has jurisdiction to address.
A mixed-case appeal is an appeal filed directly with the MSPB that alleges that an appealable Departmental action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, disability, or age. There is no right to an EEOC hearing of a mixed-case complaint.
The regulations provide that a covered individual may raise claims of discrimination in a mixed- case either as a direct appeal to the MSPB or as a mixed-case EEO complaint with the Department, but not both. Whatever action the individual files first is considered an election to proceed in that forum. Filing a formal EEO complaint constitutes an election to proceed in the EEO forum. Contacting an EEO counselor or receiving EEO counseling does not constitute an election. Where an aggrieved person files an MSPB appeal and timely seeks counseling, counseling may continue at the option of the parties. In any case, counseling must be terminated with the notice of right to file a discrimination complaint.
- Procedures. EEOC regulations provide for processing discrimination complaints on claims that are otherwise appealable to the MSPB. Two determinations must be made to decide if the mixed-case regulations apply. First, the employee must have standing to file such an appeal with the MSPB. Second, the claim that forms the basis of the discrimination complaint must be appealable to the MSPB.
- Standing. The following employees generally have a right to appeal to the MSPB and, therefore, to initiate a mixed-case complaint or appeal:
- competitive service employees not serving a probationary or trial period under an initial appointment;
- career appointees to the Senior Executive Service;
- non-competitive service veterans preference eligible employees with one or more years of current continuous service; and
- non-preference eligible excepted service employees who have completed their probationary period or with two or more years of current continuous service.
- The following employees generally do not have a right to appeal to the MSPB:
- probationary employees (except for appeals alleging discrimination based on party affiliation, marital status, or procedural deficiencies);
- non-appropriated fund activity employees;
- employees serving under a temporary appointment limited to one year or less; and
- employees of the Central Intelligence Agency, the General Accounting Office, the United States Postal Service, the Postal Rate Commission, the Panama Canal Commission, the Tennessee Valley Authority, and the Federal Bureau of Investigation.
- Appealable Claims. Most appealable claims fall into the following six categories:
- reduction-in-grade or removal for unacceptable performance;
- removal, reduction-in-grade or pay, suspension for more than fourteen days, or furlough for thirty days or less for cause that will promote the efficiency of the service;
- separation, reduction-in-grade, or furlough for more than 30 days, when the action was effected because of a reduction in force;
- reduction-in-force action affecting a career appointee in the Senior Executive Service;
- reconsideration decision sustaining a negative determination of competence for a general schedule employee; and
- disqualification of an employee or applicant because of a suitability determination.
- Negotiated Grievance Procedures. When an aggrieved employee is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, the employee must elect to file an EEO complaint or a grievance. The underlying principle is that an aggrieved employee who has a choice of forums in which to proceed cannot go forward in more than one forum (unless the employing agency is exempt from coverage of 5 U.S.C. § 7121((d)). If an employee first files a grievance and thereafter files a complaint of discrimination on the same claim, the complaint must be dismissed without prejudice to the complainant's right to proceed through the negotiated grievance procedure, including the right to appeal to the EEOC from a final decision. The dismissal of the complaint must advise the complainant of the obligation to raise discrimination claims in the grievance process and of the right to appeal the final grievance decision to the EEOC.
- Age Discrimination Complaints.
- An aggrieved person may file an administrative age discrimination complaint with the Department pursuant to 29 C.F.R. 1614. If the aggrieved person elects to file an administrative complaint, he or she must exhaust administrative remedies before he or she may file a civil action in U.S. District Court. Exhaustion of administrative remedies occurs when the Department takes final action or 180 days after filing the complaint if no final action is taken.
- An aggrieved person may bypass the administrative complaint process and file a civil action directly in U.S. District Court provided that the aggrieved person first provides the EEOC with a written notice of intent to sue under the ADEA. The notice to the EEOC must be filed within 180 days of the date of the alleged discriminatory action. Once a timely notice of intent to sue is filed with the EEOC, the aggrieved person must wait at least 30 days before filing a civil action.
- It is the responsibility of the aggrieved person to provide the EEOC with a written notice of intent to sue within 180 days of the date of the alleged discriminatory action. Notices of intent to sue must be delivered to the EEOC at the following address:
Equal Employment Opportunity Commission
Office of Federal Operations
Federal Sector Programs
1801 L Street, NW
Washington, D.C. 20507
or mailed to:Equal Employment Opportunity Commission
Office of Federal Operations
Federal Sector Programs
P.O. Box 19848
Washington, D.C. 20036
- The notice of intent to sue should be dated and must contain the following information:
- statement of intent to file a civil action under Section 15(d) of the ADEA of 1967, as amended;
- name, address, and telephone number of the employee or applicant;
- name, address, and telephone number of the complainant's designated representative, if any;
- name and location of the federal agency or installation where the alleged discriminatory action occurred;
- date on which the alleged discriminatory action occurred;
- statement of the nature of the alleged discriminatory action(s); and,
- signature of the complainant or the complainant's representative.
- Upon receipt of a notice of intent to sue, the EEOC will promptly notify the Director, OEO in writing of its receipt of the notice of intent to sue and will provide the agency with a copy of the notice. The EEOC will take any appropriate action to ensure the elimination of any unlawful practice.
- Upon receipt of a notice of intent to sue, the Director, OEO must review the claim(s) of age discrimination and conduct an inquiry sufficient to determine whether there is evidence that unlawful age discrimination has occurred. The Director, OEO will refer the claim to the appropriate Bureau to conduct the inquiry. The Bureau may determine their method of review/inquiry. The method may vary depending on the scope and complexity of the claims. The Bureaus are encouraged to make good faith efforts to resolve all disputes.
- Upon completion of the inquiry and Bureau actions, the EO Officer must submit the completed file (an original and two copies) to the Director, OEO. The Director, OEO may take whatever additional action as appropriate and necessary. The Director, OEO will also forward the file to the EEOC within the prescribed time frames.
- Equal Pay Act Complaints. An aggrieved individual does not have to file an administrative complaint before filing a lawsuit under the Equal Pay Act (EPA). If an aggrieved person nonetheless wants to file an administrative complaint, it will be processed like Title VII complaints under Part 1614. Complainants in EPA cases should be notified of the statute of limitations (two years or, if a willful violation is alleged, three years) which applies even if the individual files an administrative complaint, and of the right to file directly in a court of competent jurisdiction without first providing notice to the EEOC or exhausting administrative remedies.
- Complaints based on Sexual Orientation and Status as a Parent. An applicant for employment or Departmental employee who believes that he or she has been discriminated against or subjected to harassment on the basis of sexual orientation or status as a parent may file a complaint pursuant to 373 DM 7.
5.17 Disposition of Complaint Files.
- The Departmental OEO is the custodian of all of the official EEO complaint records including ROIs, related correspondence, withdrawal notices, records of hearings and meeting, settlement agreements and other associated records. Upon the resolution or final disposition of a formal EEO complaint, the Bureau must forward the original and one copy of the complete case files to the Department for administrative closure and archiving. The Bureau must ensure that all case files forwarded to the Department are identical and that all copies contain everything that is in the original file. Likewise, when a complaint is appealed to the EEOC or to the U.S. District Court, the Department must certify that all files are appropriately tabbed, indexed, paginated, and are identical to the original.
- The Departmental OEO will retain the original and one copy of the entire complaint files for four years after resolution/final disposition of the case. It will also be responsible for retiring the original case files to the Federal Records Center in accordance with the National Archives and Records Administration, General Records Schedule 1, Item 25, titled Equal Employment Opportunity Records.