Roles and Responsibilities for Responsible Management Officials (RMO)

1. If you are named as a Responsible Management Official (RMO), it is important for you to understand the Federal Equal Employment Opportunity (EEO) process so you can help the Agency resolve the complaint promptly.

2. The federal discrimination complaint process consists of a precomplaint and a formal complaint process. During the precomplaint process, an EEO Counselor is assigned to make an inquiry into a matter of concern set forth by an individual. The individual presenting the matter(s) or issue(s) of concern is referred to as the "Aggrieved Person"(AP) during the precomplaint complaint process. You should understand that the EEO counselor cannot reveal the identity of the AP unless that person has authorized the counselor to do so. You should also understand that the counseling stage is an informal process for resolving the matter(s) at issue. Your timely participation in the counseling process may help resolve the matter(s) quickly at the lowest level possible.

A. Traditional Counseling Process

AP may elect either traditional counseling or ADR process to address the matter(s) or issue(s) of concern. Counseling or ADR process procedures will be applied as follows:

1. An EEO Counselor is a neutral party whose primary responsibility is to facilitate a resolution of this matter. If a resolution cannot be achieved, the EEO Counselor will conduct a limited inquiry of this precomplaint and obtain information to satisfy jurisdictional issues. The EEO Counselor will solicit your input concerning the claim(s) of discrimination. If you possess any documents that support your responses, you should have copies of such documents available for the EEO counselor. If there are persons who can provide information or refute the claims issued, you should be prepared to furnish the EEO Counselor with their names, positions, office locations, and telephone numbers, as well as the information you expect them to present. Please bear in mind that the EEO Counselor determines what interviews and documentation are necessary. If the EEO counselor deems information to be redundant or irrelevant, s/he is not obligated to accept it.

2. You have the right to have a representative of your choice at the interview with the counselor and at any other meeting necessary for the processing of the complaint. You may be represented by a person of your own choosing, provided the choice of a representative does not involve a conflict of either interest or position. Anyone from the Office of General Counsel (OGC), the Office of Equal Opportunity and Diversity Management (OEODM), or the Office of Human Resources (OHR) is ineligible from being chosen to represent you. The EEO Counselor will inform you of the nature of any claims that pertain to you. If you choose to have a representative present during the counseling stage, please provide the name and job title of your designated representative to the EEO Counselor when he/she contacts you.

3. Please be assured that you will be given ample opportunity to attempt resolution and respond to all claims made by the AP. You are urged to avail yourself of this opportunity, as any failure by you to provide information on such claims may be construed as an admission that such claims are true. Therefore, it will be to your benefit, as well as the Agency's, that you cooperate fully with the EEO Counselor at all times. Please be aware that the role of the EEO Counselor is to facilitate resolutions. S/he has no decision-making authority.

B. Alternative Dispute Resolution Process (ADR)

1. If you are named as a Responsible Management Official (RMO), it is important for you to understand the Federal Equal Employment Opportunity (EEO) ADR process so you can help the Agency resolve the complaint promptly. Your participation and cooperation in the ADR process is necessary as required by EEO regulations.

2. The individual presenting the matter(s) has the option during the pre-complaint process to elect either ADR or traditional EEO Counseling to resolve matters raised in the allegation of discrimination. In this case, the individual has chosen ADR. The ADR process gives both sides an opportunity to attempt to resolve the matter in a way that is mutually acceptable.

3. In the ADR process, an Ombudsman from the Office of the Ombudsman/Center for Cooperative Resolution will contact you to arrange for mediation. Mediation is a dispute resolution process in which a neutral third party, who has no formal decision-making authority, helps the parties work toward a mutually acceptable resolution. The Ombudsman is a neutral, confidential person who will serve as the mediator.

4. You have the right to a representative of your choice at the mediation. You do not need legal representation in ADR. However, if you choose to have a representative present during the counseling stage, please inform the Ombudsman.

5. The ADR process is confidential. Nothing mentioned in the ADR process can be used at a later formal proceeding. The only documentation of ADR is a settlement agreement, if an agreement is reached, or a communication to the OEODM that the ADR did not result in a settlement agreement.

6. Please remember that choosing the ADR process shows interest in discussing and resolving issues of concern. Attempting to discuss such issues outside the presence of the mediator, despite the best of intentions, can result in a negative experience for the person who raised the concern and make the manager vulnerable to a reprisal claim for the filing of the pre-complaint.

C. Formal Complaint Process

1. Upon completion of the precomplaint process, the AP may decide to file a formal complaint. If the formal complaint is accepted, it will be investigated by an investigator from the Agency. The AP is referred to as the "complainant" during the formal process.

2. Confidentiality must be maintained in the complaint process and in the implementation of a counseling resolution. Once the formal EEO complaint is filed, the complaint file (or part of it) may be shared with those who are involved and need access to it. Access to documents contained in the complaint file, including the Report of Investigation and EEO Counselor Report, is protected by the Privacy Act and the Freedom of Information Act. The complaint files may be accessed only by those OEODM employees who need access to the records in the performance of their duties. During the investigative stage, you may be instructed by the investigator to review the case file to the extent needed to respond to allegations and give evidence. You may contact the OEODM staff for a review of relevant documents that were contained in the complaint file, including the affidavit of the complainant and the Counselor's report. The OEODM will determine what case materials may be released to you in accordance with the Privacy Act.

3. Investigations and hearings in formal discrimination complaint cases are essentially fact-finding processes. The burden of proof remains at all times with the complainant. S/he must prove discrimination through a preponderance of the evidence. However, if the complainant brings forth sufficient evidence to show that the alleged discrimination did occur, the burden of production shifts to the Agency to articulate legitimate, nondiscriminatory reason(s) for its action(s). Then the burden of proof would shift back to the complainant to prove that the Agency's articulated reason(s) is only a pretext for discrimination.

4. Upon completion of the investigation, the investigator will submit a Report of Investigation to the OEODM. The complainant will be provided a copy of the Report of Investigation and advised of his or her right to request either a hearing before an Equal Employment Opportunity (EEOC) administrative judge or a final Agency decision based on the merits of the complaint.

5. If, after investigation by the Agency, the complainant requests a hearing, the EEOC will appoint an administrative judge to conduct the hearing and issue a decision on the complaint, including appropriate remedies and relief if discrimination is found. Again, you have the right to have a representative present during the EEOC hearing. Upon completion of the hearing, the EEOC administrative judge will then forward his/her decision to the Agency for final action. Both the complainant and the Agency have the right to appeal the decision issued by the administrative judge.

6. If, after investigation by the Agency, the complainant does not request a hearing before an EEOC administrative judge, the complaint will be forwarded to the Agency for the issuance of a final Agency decision on the merits of the complaint. The complainant still retains the right to appeal the Agency's final decision.

7. If an EEOC administrative judge, the Agency EEO Director, or another designee determines that the alleged discrimination did occur in the complaint, s/he may conduct further investigation to determine necessary corrective actions based on the degree of culpability.

3. The Department of Health and Human Services (DHHS) will not tolerate harassment, intimidation, or reprisal against the complainant for having filed this complaint. The DHHS's Standard of Conduct (45 CFR, Part 73) requires all employees to assist EEO officials in the performance of their duties and functions (Section 73.735-302(d)). This requirement includes the giving of statements or evidence to EEO officials and investigators. Violations of the Standards may be cause for disciplinary action (Section 73.735 - 1201).

4. If you have any questions or concerns about the complaint process or the conduct of the EEO official, please contact the Director, DCMR, OEODM at 301-496-1551 (voice) or (301) 480-3122 (TTY).