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EEO DISCRIMINATION COMPLAINT PROCESS
Formal Complaints
A complaint must be filed with the agency that allegedly discriminated against the complainant within 15 days of receipt of the Notice of Right to File a Complaint of Discrimination. The complaint must be a signed statement from the complainant or the complainant's attorney, containing the complainant's (or representative's) telephone number and address, and must be sufficiently precise to identify the complainant and VA, and describe generally the action or practice which forms the basis of the complaint.
A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. After requesting a hearing, a complainant may file a motion with the AJ to amend a complaint to include issues or claims like or related to those raised in the complaint.
ORM must acknowledge receipt of the complaint in writing and inform the complainant of the date on which the complaint was filed, of the address of the EEOC office where a request for a hearing should be sent, that the complainant has the right to appeal the agency's final action or dismissal of a complaint, and that the agency must investigate the complaint within 180 days of the filing date. ORM's acknowledgment must also advise the complainant that when a complaint has been amended, the agency must complete the investigation within the earlier of: (1) 180 days after the last amendment to the complaint; or (2) 360 days after the filing of the original complaint. A complainant may request a hearing from an EEOC AJ on the consolidated complaints any time after 180 days from the date of the first filed complaint.
Dismissals of Complaints
Prior to a request for a hearing, in lieu of accepting a complaint for investigation an ORM may dismiss an entire complaint for any of the following reasons: (1) failure to state a claim, or stating the same claim that is pending or has been decided by the agency or the EEOC; (2) failure to comply with the time limits; (3) filing a complaint on a matter that has not been brought to the attention of an EEO counselor and which is not like or related to the matters counseled; (4) filing a complaint which is the basis of a pending civil action, or which was the basis of a civil action already decided by a court; (5) where the complainant has already elected to pursue the matter through either the negotiated grievance procedure or in an appeal to the Merit Systems Protection Board; (6) where the matter is moot or merely alleges a proposal to take a personnel action; (7) where the complainant cannot be located; (8) where the complainant fails to respond to a request to provide relevant information; (9) where the complaint alleges dissatisfaction with the processing of a previously filed complaint; (10) where the complaint is part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination.
If ORM believes that some, but not all, of the claims in a complaint should be dismissed for the above reasons, it must notify the complainant in writing of the rationale for this determination, identify the allegations which will not be investigated, and place a copy of this notice in the investigative file. This determination shall be reviewable by an EEOC AJ if a hearing is requested on the remainder of the complaint, but is not appealable until final action is taken by the OEDCA on the remainder of the complaint.
Investigations
Investigations are conducted by ORM. ORM must develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint. An appropriate factual record is defined in the EEOC regulations as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.
The investigation must be completed within 180 days from the filing of the complaint. A copy of the investigative file must be provided to the complainant, along with a notification that, within 30 days of receipt of the file, the complainant has the right to request a hearing and a decision from an EEOC AJ or may request an immediate final decision from VA.
Hearings
Requests for hearing must be sent by the complainant to the EEOC office indicated in the ORM's acknowledgment letter, with a copy to ORM. Within 15 days of receipt of the request for a hearing, the agency must provide a copy of the complaint file to EEOC. The EEOC will then appoint an AJ to conduct a hearing.
An EEOC AJ may dismiss a complaint for any of the reasons set out above under Dismissals.
Hearings are considered part of the investigative process, and are closed to the public. The AJ conducts the hearing and receives relevant information or documents as evidence. If the AJ determines that some or all facts are not in genuine dispute, he or she may limit the scope of the hearing or issue a decision without a hearing.
The AJ must conduct the hearing and issue a decision on the complaint within 180 days of receipt by the AJ of the complaint file from ORM. The AJ will send copies of the hearing record, the transcript and the decision to the parties. If OEDCA does not issue a final order within 40 days of receipt of the AJ's decision, then the decision becomes the final action by the agency in the matter.
Final Action by VA
When an AJ has issued a decision (either a dismissal, a summary judgment decision or a decision following a hearing), the OEDCA must take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and the AJ's decision. The final order must notify the complainant whether or not the agency will fully implement the decision of the AJ, and shall contain notice of the complainant's right to appeal to EEOC or to file a civil action.
When an AJ has not issued a decision (i.e., when an ORM receives a request for an immediate final decision, or does not receive a reply to the notice providing the complainant the right to either request a hearing or an immediate final decision), the OEDCA must take final action by issuing a final decision. The agency's final decision will consist of findings by OEDCA on the merits of each issue in the complaint.
Appeals to the EEOC
Several types of appeals may be brought to the EEOC. A complainant may appeal an agency's final action or dismissal of a complaint within 30 days of receipt
A grievant may appeal the final decision of the agency, arbitrator or the FLRA on a grievance when an issue of employment discrimination was raised in the grievance procedure.
Civil Actions
Prior to filing a civil action under Title VII of the Civil Rights Act of 1964 or the Rehabilitation Act of 1973, a federal sector complainant must first exhaust the administrative process set out at 29 C.F.R. Part 1614. "Exhaustion" for the purposes of filing a civil action may occur at different stages of the process. The regulations provide that civil actions may be filed in an appropriate federal court: (1) within 90 days of receipt of the final action where no administrative appeal has been filed; (2) after 180 days from the date of filing a complaint if an administrative appeal has not been filed and final action has not been taken; (3) within 90 days of receipt of EEOC's final decision on an appeal; or (4) after 180 days from the filing of an appeal with EEOC if there has been no final decision by the EEOC.
Under the Age Discrimination in Employment Act (ADEA), a complainant may proceed directly to federal court after giving the EEOC notice of intent to sue. An ADEA complainant who initiates the administrative process in 29 C.F.R. Part 1614 may also file a civil action within the time frames noted above.
Under the Equal Pay Act, a complainant may file a civil action within 2 years (3 years for willful violations), regardless of whether he or she has pursued an administrative complaint.
Filing a civil action terminates EEOC processing of an appeal.
Class Complaints
Class complaints of discrimination are processed differently than individual complaints. The employee or applicant who wishes to file a class complaint must first seek counseling and be counseled, just like an individual complaint. However, once counseling is completed the class complaint is not investigated by ORM. Rather, the complaint is forwarded to the nearest EEOC Field or District Office, where an EEOC AJ is appointed to make decision as to whether to accept or dismiss the class complaint. The AJ examines the class to determine whether it meets the class certification requirements of numerosity, commonality, typicality and adequacy of representation. The AJ may issue a decision dismissing the class because it fails to meet any of these class certification requirements, as well as for any of the reasons for dismissal discussed above for individual complaints.
The AJ transmits his or her decision to accept or dismiss a class complaint to the class agent and OEDCA. OEDCA must then take final action by issuing a final order within 40 days of receipt of the AJ's decision. A dismissal of a class complaint shall inform the class agent either that the complaint is being filed on that date as an individual complaint and processed accordingly, or that the complaint is also dismissed as an individual complaint for one of the reasons for dismissal. In addition, a dismissal must inform the class agent of the right to appeal to EEOC's OFO or to file a civil action in federal court.
When a class complaint is accepted, the agency must use reasonable means to notify the class members of the acceptance of the class complaint, a description of the issues accepted as part of the complaint, an explanation of the binding nature of the final decision or resolution on the class members, and the name, address and telephone number of the class representative. In lieu of an investigation by ORM, an EEOC AJ develops the record through discovery and a hearing. The AJ then issues a recommended decision to the agency. Within 60 days of receipt of the AJ's recommended decision on the merits of the class complaint, the OEDCA must issue a final decision which either accepts, rejects or modifies the AJ's recommended decision.
Grievances
Persons covered by collective bargaining agreements which permit allegations of discrimination to be raised in the grievance procedure, and who wish to file a complaint or grievance on an allegation of employment discrimination, must elect to proceed either under the EEO complaint procedures or the negotiated grievance procedures, but not both. An election to proceed under EEO complaint procedures is made by the filing of a formal complaint, and an election to proceed under the negotiated grievance procedures is made by filing a grievance. Participation in the pre-complaint (EEO counseling) procedures is not an election.
Mixed Case Complaints
Some employment actions which may be the subject of a discrimination complaint may also be appealed to the Merit Systems Protection Board (MSPB). In such cases, the employee must elect to proceed with a complaint as a "mixed case complaint" under EEOC’s complaint procedures, or a "mixed case appeal" before the MSPB. Whichever is filed first is considered an election to proceed in that forum.
Mixed case complaints are processed similarly to other complaints of discrimination, with the following notable exceptions: (1) VA has only 120 days from the date of the filing of the mixed case complaint to issue a final decision, and the complainant may appeal the matter to the MSPB or file a civil action any time thereafter; (2) the complainant must appeal the agency's decision to the MSPB, not the EEOC, within 30 days of receipt of the agency's decision; (3) at the completion of the investigation the complainant does not have the right to request a hearing before an EEOC AJ, and the agency must issue a decision within 45 days.
Individuals who have filed either a mixed case complaint or a mixed case appeal, and who have received a final decision from the MSPB, may petition the EEOC to review the MSPB final decision.
In contrast to non-mixed matters, individuals who wish to file a civil action in mixed- case matters must file within 30 days (not 90) of receipt of: (1) the OEDCA's final decision; (2) the MSPB's final decision; or (3) the EEOC's decision on a petition to review. Alternatively, a civil action may be filed after 120 days from the date of filing the mixed case complaint with ORM or the mixed case appeal with the MSPB if there has been no final decision on the complaint or appeal, or 180 days after filing a petition to review with EEOC if there has been no decision by EEOC on the petition.
For more detailed information, please contact the ORM office nearest to you.
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