Volume XX, No. 1
Office of Federal Operations
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO)
Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Editor: Arnold Rubin
Writers: Robyn Dupont, Gerard Thomson, Arnold Rubin, Joseph Popiden
The Digest is now available online through EEOC's homepage at www.eeoc.gov.
This edition of the Digest is first of two Digests that provide a roadmap for the Federal Sector EEO Process, from its initiation through appeals. This Digest (Winter 2009) will detail the EEO process from initiation of the process through the investigation of the formal complaint (Parts 1 through 4). The next issue of the Digest (Spring 2009) will conclude with a discussion of the EEO process from Class Complaints through Settlement Agreements and Claims of Agency Noncompliance (Parts 5 through 8). To enhance the reader’s understanding of the EEO process, the parts in each of the two Digests track the EEO process as chronologically as possible. As with all Digest contents, the following material is not intended as legal advice, but, rather, to inform. The goal is not to provide an exhaustive study of complex legal subjects. For a more detailed discussion of the topics addressed in this Digest, see EEOC’s website at www.eeoc.gov and the statutes, regulations, decisions, guidance, and directives cited in these articles. Some decisions cited to for illustrative purposes may have appeared in previous Digests. Digest summaries and articles themselves do not have the force of law and the reader is advised to look to the actual decisions and other sources discussed for a more precise understanding of applicable EEO law.
The EEO process in the federal sector is initiated when an individual contacts an EEO counselor regarding an alleged violation of one or more of the laws that the EEOC enforces.2 The Commission’s regulations, promulgated under applicable statutory law, can be found in relevant parts in Title 29 of the Code of Federal Regulations (“Labor”).3 The federal sector process itself is detailed in 29 C.F.R. Part 1614 (1999); and further amplified in Management Directive 110 (1999) (hereinafter, MD-110).4 MD-110 has often been referred to as the EEO counselor’s “bible” for the wealth of information, appendices, and forms contained therein regarding the EEO process and is available online to the public at: www.eeoc.gov/federal/md110.html. Under the EEOC-enforced statutes currently in force, there are 8 bases of employment discrimination that may be alleged regarding an agency action, policy, or practice in the EEO process.5 These bases are: age, disability, race, color, religion, national origin, sex, and retaliation.6 Thus, an EEO claim will generally consist of an alleged basis or bases that are the asserted reason why a federal agency made a given employment decision involving an applicant for federal employment, a federal employee, or a former federal employee.
As a general rule, individuals must adhere to certain time frames and follow specified procedures in order to avoid dismissal of their complaints. For example, an EEO complaint may be dismissed for failure to initiate EEO counseling within 45 days of the alleged discriminatory event or effective date of alleged discriminatory personnel action.7
As a threshold matter, an “aggrieved person” or “counselee” must consult with an EEO counselor prior to filing a complaint in order to try to resolve the disputed matter informally.8 Such EEO contact must occur within 45 days of when the aggrieved person knew or should have known of the alleged discriminatory matter, or, in the case of a personnel action, within 45 days of the effective date of the personnel action.9 At the time of initiating EEO counseling and throughout the EEO process, the counselee is permitted to have a representative who may be, but is not required to be, an attorney.10 The counselor, who may be an agency employee and work either full-time in EEO or in a collateral duty role, is required to be neutral and favor neither the counselee nor the agency. The role of the counselor is to attempt resolution before the complaint is formally filed. During the 30-day period within which the Counselor is to complete counseling,11 the counselor will provide the counselee (i.e., the aggrieved person) with a written list of the counselee’s rights and responsibilities. Failure of the aggrieved person to raise a matter in counseling may result in subsequent dismissal of the formal EEO complaint.12 Through the counseling process claims are set forth and clarified, and the counselor conducts a limited inquiry (not an investigation) for the purpose of achieving resolution. In this latter role, the counselor may use certain techniques common to mediation but does not engage in actual mediation, even if that counselor is also a certified mediator.
During this counseling, or pre-complaint stage, the Counselor will also inform the counselee of certain available legal choices. During EEO counseling, the EEO counselor shall inform the counselee that, where the agency offers ADR,13 the counselee must elect to choose between engaging in ADR or continuing informal counseling, but not both.14 Whatever the election chosen by the counselee, if resolution is not achieved, the counselee will have the opportunity to file a formal EEO complaint. The ADR process in the pre-complaint phase is limited to a maximum of 90 days. However, the EEOC encourages the parties to engage in ADR to attempt to resolve their dispute at any subsequent time up to and including the appellate process.
The regulations further specify that, at the initial counseling session, counselors must advise individuals in writing of their rights and responsibilities. These include the following: (1) the right to request a hearing or an immediate final decision after an investigation by the agency; (2) the responsibility to exercise certain election rights (which will be specified later in this section) (3) the right to file a civil action in federal court after filing with EEOC a notice of intent to sue under the ADEA instead of pursuing a complaint of age discrimination in the administrative EEO process; (4) the need to be aware of administrative EEO and federal court time frames; and (5) an understanding that only the claims raised in precomplaint counseling (or issues and claims like or related to issues or claims raised in pre-complaint counseling) may be alleged in a subsequent complaint filed with the agency.15
Further, “Counselors must advise individuals of their duty to keep the agency and Commission informed of their current address and to serve copies of appeal papers on the agency. The notice [of the right to file a formal complaint within 15 days of the counselee’s receipt of the notice] shall include notice of the right to file a class complaint. If the aggrieved person informs the Counselor that he or she wishes to file a class complaint, the Counselor shall explain the class complaint procedures and the responsibilities of a class agent.”16 The Counselor shall also inform the counselee of his or her right to remain anonymous until the complaint is formally filed, where and with whom the formal complaint is to be filed, “and of the complainant’s duty to assure that the agency is informed immediately if the complainant retains counsel or a representative.”17 In addition, “[t]he Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint.”18
In the EEO process, there are certain legal “terms of art” setting forth specific rights and obligations. One of these terms is “exhaustion of administrative remedies.” This means that, before a complainant may go to federal court and file a civil action to pursue his/her discrimination claims, s/he must first go through the EEO administrative process. In complaints involving Title VII, the Rehabilitation Act, and the ADEA—where the complainant chooses to go through the EEO process--the “exhaustion” requirement is satisfied after 180 days from the filing of the individual complaint or the class complaint if an appeal has not been filed and final action has not been taken by the agency.19 Equal Pay Act claims, by contrast, must be filed within two years (or three years for willful violations) of the alleged discrimination, regardless of their status in the administrative process.20
There are exceptions to the above requirement. In the case of an EEO complaint filed under the ADEA, a complainant may bypass the EEO process and go directly to a U.S. District Court and file a civil action naming the head of an allegedly discriminating agency, so long as the complainant gives the Commission at least 30 days’ written notice of the intent to file such action.21 A complainant who is asserting a claim under the EPA, however, may bypass the EEO administrative process completely and go directly to court.22 The filing of a civil action by the complainant will terminate the processing of an administrative complaint or appeal filed with the EEOC, and, therefore, the complainant should notify the agency and Commission when s/he has filed a civil action. 23
In addition to the elections just discussed, a counselee may have to choose between pursuing his or her claims in the negotiated grievance process or the EEO process.24 When an aggrieved person is employed by an agency that is subject to 5 U.S.C. 7121(d), and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, that employee must elect to proceed either through the EEO process or the negotiated grievance procedure, but not both. The election occurs where the aggrieved person first files his or her complaint, whether or not the agency has informed the individual of the need to elect and irrespective of whether the grievance has raised a claim of discrimination.25 EEO Counselor contact is not an election. Employees whose agencies are not subject to the above statute26 may file in either or both forums. However, a complainant should be aware that, if he or she chooses to pursue a negotiated grievance prior to filing an EEO complaint, time limitations in the EEO process will not be tolled (e.g., extended) unless the agency agrees in writing.27
Another important election--and one for which the EEO Counselor must inform the counselee--involves mixed cases. This is a complex area of law, and the reader may find it helpful to explore The Fall Quarter 2004 Digest article in Question and Answer format: “Understanding the Mixed Case Process.” This topic is also addressed in EEO MD-110, Ch. 4, along with Negotiated Grievance Procedures, Age Discrimination Complaints, and Equal Pay Act Complaints.
Regulations pertaining to mixed cases can be found at 29 C.F.R. § 1614.302. In brief, a mixed case is a claim of discrimination arising out of an action that is appealable to the Merit Systems Protection Board (MSPB). There are two questions that must be answered to determine if MSPB may have jurisdiction. The first question is: Does the employee have “standing” to appear before the MSPB? For example, a probationary employee does not have standing to go to MSPB on an EEO-based claim. Employees of certain agencies, e.g., the FBI, CIA, TVA, the U.S. Postal Service,28 and certain non-appropriated fund activities (such as the Army and Air Force Exchange) do not have standing. Those employees may, however, pursue their claims through the regular EEO process with their agency. The second question is: Does the claim arise from an action appealable to MSPB? Generally, the more serious the personnel action at issue, the more likely it will be appealable to MSPB, e.g., removal, suspension for more than 14 days, and reduction in grade.29
Briefly stated, an aggrieved person may file a mixed case complaint with the agency or a mixed case appeal with the MSPB but not both at the same time. The aggrieved person must elect one or the other. Where the individual files first is controlling. EEO Counselor contact is not an election. If a mixed case complaint is first filed, the complaint proceeds through the EEO process as with any EEO complaint, with these exceptions: (1) there is no right to a hearing before an EEOC administrative judge (AJ) after an investigation; (2) the investigation is limited to 120 days (not 180); (3) the agency must issue a final agency decision (FAD) within 45 days following the investigation; and (4) if dissatisfied with the FAD, complainant must appeal the FAD, within 30 days of receipt of the FAD, to the MSPB (not to the EEOC).30 If the aggrieved person elects to file a mixed case appeal instead of a mixed case complaint, s/he may request a hearing before an MSPB AJ (not an EEOC AJ). If the aggrieved person is dissatisfied with the MSPB’s decision on his or her claims of discrimination under the statutes the EEOC enforces, s/he may then file a petition with the EEOC from the MSPB decision. The petition may be filed on the same Form 573 used for non-mixed case appeals.31
At the end of counseling, if there has been no resolution to the claim or claims, the EEO counselor provides the counselee with the Notice of Final Interview and the Right to File a Formal Complaint with the appropriate agency official. The counselee is required to file the formal complaint within 15 days of receiving the above notice.33 The complaint must be signed by complainant or his or her attorney, if one has been retained.34 The complaint must also contain a phone number and address where complainant or his or her attorney or representative can be reached.35 It is important to note that a “Complainant shall at all times be responsible for proceeding with the complaint whether or not he or she has designated a representative.”36
The formal complaint must contain a statement that is “sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action(s) or practice(s) that form the basis of the complaint.”37 The agency must provide complainant with written acknowledgement of the complaint (or amendment to the complaint) and the date of filing. The acknowledgement letter shall also include the following information: (1) the address of the EEOC office where a request for a hearing is to be sent; (2) the right to appeal the final action on or dismissal of a complaint;38 and (3) the requirement that the agency conduct an impartial and appropriate investigation within 180 days of the filing of the complaint unless the parties agree in writing to extend the time period.39
A complainant may amend a pending complaint to add claims that are like or related to those raised in the pending complaint, prior to the agency’s mailing of the notice required by 29 C.F.R. § 1614.108(f) at the conclusion of the investigation,40 A complainant who has requested a hearing may file a motion with the AJ to include claims like or related to those raised in the pending complaint.41 If complainant seeks to raise a new incident of alleged discrimination during the processing of an EEO complaint, the investigator or other EEO staff person shall instruct the complainant to submit a letter to the agency’s EEO Director or Complaints Manager or designee describing the new incident(s) and stating that s/he wants to amend the complaint to include the new incident(s). One of those two EEO officials “shall review this request and determine the correct handling of the amendment in an expeditious manner.”42 No new EEO counseling is required where: (1) additional evidence is offered in support of the existing claim, but does not raise a new claim; and (2) the incident raises a new claim that is like or related to the claims(s) raised in the pending complaint.43 Additional evidence becomes part of the investigation of the pending claim and the complainant is so notified. The complaint must be amended where a new claim is like or related to the claim(s) raised in the pending complaint, and the EEO official must notify both complainant and the investigator, in writing, acknowledging receipt of the amendment and the date it was filed. The EEO official will also instruct the investigator to investigate the new claim.44 New counseling will be required if the new claim is not like or related to the claim(s) in the pending complaint. The new claim will be the subject of a separate complaint and be “subject to all of the regulatory case processing requirements.”45
Nonetheless, an agency is required to consolidate two or more complaints filed by the same complainant for joint processing after appropriate notification to the complainant.46 “When a complaint has been consolidated with one or more earlier filed complaints, the agency shall complete its investigation within the earlier of 180 days after the filing of the last complaint or 360 days after the filing of the original complaint, except that the complainant may request a hearing from an [AJ] on the consolidated complaints any time after 180 days from the date of the first filed complaint. [AJs] or the Commission may, in their discretion, consolidate two or more complaints of discrimination filed by the same complainant.”47
EEO investigations are governed by 29 C.F.R. § 1614.108 and the instructions contained in the Commission’s Management Directives.48 An adequate agency investigation is one that is developed impartially and contains an appropriate factual record.49 “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.”50 All agency employees, including the complainant, are required to cooperate with the investigation and “witness testimony is given under oath or affirmation and without a promise that the agency will keep the testimony or information provided confidential.”51 The complainant and his or her representative, if agency employees, are entitled to a reasonable amount of official time, if otherwise on duty, to present his or her EEO complaint and to respond to agency requests for information.52
Investigators must thoroughly investigate the complaint and are authorized to administer oaths and require witness testimony and documentation. An investigator does not make or recommend findings of discrimination and must be free of conflicts or the appearance of conflicts of interest during the investigation of complaints. As part of the investigation, the investigator should gather evidence relevant for a factfinder to determine whether discrimination occurred and, if so, to fashion “an appropriate remedy.”53 Unless otherwise mandated, investigations are to be completed within 180 days of the filing of the individual complaint, unless the parties agree in writing to extend the period an additional 90 days.54 At the conclusion of the investigation, the agency must provide the complainant with a copy of the complaint file, including the report of investigation, and the notice of the right to request either an immediate final decision from the agency or a hearing before an EEOC AJ.55 A complainant also may request an AJ hearing after 180 days from the filing of the complaint even where the investigation has not been completed.56 The complainant must receive a copy of the complaint file, including the report of investigation (ROI), and a copy of the hearing transcript if a hearing was held.57
This issue of the Digest has detailed the EEO process with regard to the processing of individual EEO complaints of discrimination, in accordance with 29 C.F.R. Part 1614. The principles reflected in those procedures are also intended to guide the processing of class complaints of discrimination under 29 C.F.R. § 1614.204.58 The next issue of the Digest will detail the remainder of the EEO process, beginning with Part 5 (“Class Complaints”) and concluding with Part 8 (“Settlement Agreements and Claims of Agency Noncompliance”).
1 Arnold Rubin is a senior attorney with EEOC’s Office of Federal Operations, Special Services Staff, and Editor of The Digest of EEO Law. The staff of The Digest acknowledges the support of Carlton M. Hadden, Esq., Director of the Officer of Federal Operations, in the production of this edition.
2 EEOC enforces, in relevant parts, the Age Discrimination in Employment Act (ADEA) of 1967, as amended; the Equal Pay Act (EPA) of 1963, as amended; the Rehabilitation Act of 1973 as amended; Title VII of the Civil Rights Acts (Title VII) of 1964, as amended; and, effective November 21, 2009, the Genetic Information Nondiscrimination Act (GINA). Although the Americans With Disabilities Act (ADA) of 1990, as amended, does not apply to the federal government, Congress, in 1992, amended the Rehabilitation Act, which does cover the federal government, to apply the standards of the ADA to the Rehabilitation Act. In 2009, Congress amended the ADA (“ADAAA”), to broaden the coverage of persons under the Act consistent with the original Congressional intent of the ADA, after a series of Supreme Court decisions had narrowed the statute’s scope of coverage.
5 As mentioned earlier, GINA does not become effective until November 21, 2009. Title II of GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. GINA requires the EEOC to issue regulations implementing Title II of the Act, and pursuant to this authority, EEOC published a Notice of Proposed Rulemaking (NPRM) on March 2, 2009. The public comment period on the NPRM ended on May 1, 2009. See EEOC Q & A on Background Information for EEOC Notice of Proposed Rulemaking on Title II of the Genetics Information Nondiscrimination Act of 2008 (available at www.eeoc.gov/policy/docs/qanda_geneticinfo.html). Nonetheless, the federal government is already prohibited from discriminating against federal employees or applicants based on genetic information under Executive Order 13145, which is not enforced by EEOC. For more information on the Executive Order, see EEOC Policy Guidance on Executive Order 13145 to Prohibit Discrimination in Federal Employment Based on Genetic Information (July 26, 2000) (available at www.eeoc.gov/policy/docs/guidance-genetic.html).
6 See supra note 2. Other federal laws, not enforced by the EEOC, protect employees and applicants for federal employment from practices not based on merit. For more information on these protections, contact the Office of Personnel Management (OPM), www.opm.gov; The Office of Special Counsel (OSC), www.osc.gov; the Merit Systems Protection Board (MSPB), www.mspb.gov.; and/or The Department of Labor (DOL), www.dol.gov.
7 See generally 29 C.F.R. §§ 1614.105 and 107(a)(2) (providing 45 day time limits for counselor contact and authority to dismiss complaints on grounds of untimeliness. All regulations cited in this section refer to 29 C.F.R. Part 1614, unless otherwise noted. All time frames referred to are in calendar days, unless otherwise specified. Time limitations are computed according to 29 C.F.R. § 1614.604. This regulation also describes exceptions to these time limitations.
21 29 C.F.R. § 1614.201. The P.O. Box in this regulation has changed since the Commission, in late 2008, relocated its Washington, D.C., Headquarters. Notices should be sent to P.O. Box 77960, Washington, DC 20013, Attn: OFO/FSP.
35 Many complainants proceed pro se (i.e., represent themselves). Others may be represented by a union official, spouse, parent, co-worker, or other non-attorney representative. For the regulations pertaining to use of reasonable official time by agency employees in the EEO process, service of documents by complainant on the agency’s designated representative and by the agency’s representative on complainant, as well as calculation of time frames, see 29 C.F.R. §§ 1614.604 and 1614.605.
38 The grounds for dismissal of a complaint are set forth at 29 C.F.R. § 1614.107(a). An agency may not dismiss a complaint after a hearing--before an EEOC AJ-- has been requested. Dismissals are discussed in the section pertaining to Hearings, in the next issue of the Digest. The agency’s processing of formal complaints, the agency’s dismissal process, the requirement that the agency shall properly identify and define the claim and not fragment EEO complaints, amending and consolidating complaints, as well as the conduct of the investigation, are also set forth in greater detail in EEOC MD-110, Ch. 5.
40 29 C.F.R. § 1614.106(d); EEOC MD-110, Ch. 5-9. The notice referred to in 29 C.F.R. § 1614.108(f) shall inform the complainant that, within 30 days of his or her receipt of the investigative file, the complainant may request a hearing and decision from an AJ or may request an immediate final decision from the agency with which the complaint was filed. The agency shall issue the final decision within 60 days of receiving notice of the complainant’s request for an immediate final decision, or within 60 days of the end of the 30-day period within which complainant must choose between requesting an AJ hearing or an immediate final agency decision and complainant has not responded with a choice. 29 C.F.R. § 1614.110(b).
54 29 C.F.R. § 1614.108(e), which also provides that an agency may unilaterally extend a time period by 30 days to sanitize a file in the interest of national security where classified information is involved.