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DHHS Statement of the Revised Rights and Responsibilities of Aggrieved
Persons in the EEO Complaint Process
November 9, 1999 marked the effective date of the Equal
Employment Opportunity Commission's (EEOC) revised regulations governing
the processing of complaints of employment discrimination by current
and former Federal employees and applicants. [Agencies are required
to establish or make available an Alternative Dispute Resolution (ADR)
program effective January 1, 2000.] The Department of Health and Human
Services (DHHS) Equal Employment Opportunity (EEO) Complaint Process
covers individual and class complaints of discrimination based on race,
color, national origin, religion, sex, physical or mental disability[1],
age (40 years of age and older), and reprisal for previous EEO activity.
You Have the Right to:
- Anonymity in the counseling phase of the complaint process unless
waived. You relinquish this right if you file a formal complaint.
Anonymity should be requested from the EEO Counselor, if desired.
- A representative of your choice at any stage in processing the
complaint, provided the choice of a representative does not involve
a conflict of interest and/or position, or unreasonably impact on
the work of the Agency. You must immediately inform the Agency and/or
the EEOC in writing of such representation (i.e.: name, address, phone
number), or any change in representation.
- Choose between EEO counseling and ADR. Unless you agree in writing
to extend the 30-day time frame for counseling, or choose ADR, you
will receive a termination notice with instructions on how to file
a formal EEO complaint. In either case, the maximum processing time
frame is 90 days.
- Receive a written acknowledgment of receipt from the agency after
filing a formal EEO complaint or an amendment to a complaint.
- Amend a formal complaint with issues that are "like or related"
to the original complaint, prior to the conclusion of the investigation,
or, after requesting a hearing, without the need for additional counseling.
- Receive a copy of the Report of Investigation (ROI) within either
180 days after the original complaint filing date/the last amendment
filing date/the last consolidated complaint filing date, or, 360 days
from the original filing date, whichever comes first. If you elect
a hearing before an EEOC Administrative Judge (AJ) (in a non-mixed
case or on consolidated complaints), or a final agency decision based
on the ROI, you should receive a final order or decision within 40
days from the agency’s receipt of the AJ’s decision, or
within 60 days from electing a decision on the record, respectively.
Note: If you file a claim based solely on sexual orientation,
you are not entitled to a hearing before the EEOC because sexual
orientation is not covered under a Federal statute. Claims of sexual
orientation receive a final decision from the Director, OEODM,
with appeal rights to the DHHS EEO Director.
- File a notice of intent to sue with the EEOC when age is alleged
as a basis for discrimination, and the right to file a lawsuit under
the Age Discrimination in Employment Act (ADEA) instead of an administrative
complaint of age discrimination.
- File a civil action in the appropriate U.S. District Court 90 days
after receipt of the agency’s final action if no appeal has
been filed, or, receipt of EEOC’s final decision on appeal;
180 days after filing a formal complaint if no appeal has been filed
and no final action has been issued, or, after filing an appeal with
the EEOC and no final decision has been issued.
- You may appeal to the U.S. District Court for appointment of an
attorney to represent you in the court proceeding if you elect to
file a civil action under Title VII or the Rehabilitation Act. The
Court may appoint an attorney to represent you and may permit commencement
of the civil action without payment of fees, costs, or security.
- Go directly to U.S. District Court on claims of sex-based wage
discrimination under the Equal Pay Act (EPA) within two years (three
years if the violation is willful) of the alleged violation, even
though such claims are also able to be heard under Title VII. Individuals
who believe themselves so aggrieved may, thus, claim violations
of both statutes simultaneously. In connection with an EPA claim,
be advised of the availability of liquidated damages for a willful
violation.
- Use a reasonable amount of official time in preparing and presenting
the complaint of discrimination. Such official time must be requested
in advance from the appropriate supervisor.
- Present and pursue a complaint free from reprisal, restraint, interference,
coercion, or harassment against an aggrieved person or their representative.
You Have the Responsibility to:
- Contact an EEO Counselor within 45 days of an alleged discriminatory
action.
- File a complaint within 15 days of receipt of the counselor's Notice
of Right to File a Formal Complaint in the event you wish to file
a formal complaint at the conclusion of counseling. You may be required
to choose between a negotiated grievance procedure[2], the EEO complaint
procedure, and filing an appeal with the Merit Systems Protection
Board (MSPB)[3].
- Make any request for a hearing before an EEOC AJ (in a non-mixed
case and on consolidated complaints) in writing to EEOC, and provide
the agency with a copy of the request, within 30 days of receipt of
the ROI and election notification.
- File any motion to amend a complaint with the EEOC AJ, once a request
for a hearing has been made, and provide the agency with a copy.
- File any appeal of an agency dismissal or final action to the
Office of Federal Operations (OFO) within 30 days of receipt, and
provide the agency with a copy.
- File any statement or brief in support of an appeal filed with
the OFO within 30 days of filing the notice of appeal, and provide
the agency with a copy.
- Serve any opposition brief on the agency within 30 days of receipt
of the brief in support of the appeal, or if no brief has been filed,
within 60 days of receipt of the appeal.
- Notify the agency of acceptance of a written resolution offer within
30 days of receipt. Your rejection of an agency’s offer of resolution
made pursuant to §1614.109(c) may limit the amount of attorney’s
fees or costs you can recover.
- Mitigate damages (e.g., those interim earnings or amounts which
could be earned by the individual with reasonable diligence). Generally,
such earnings must be deducted from an award of back pay. You must
also seek treatment for any injury you claim.
- Keep the agency and EEOC informed of your current mailing address.
- Fully cooperate with the presentation of information (including
the scheduling of meetings or conferences, responding to correspondence,
and providing requested material or information) in the processing
of the complaint.
Notes:
- Only matters raised at the counseling stage, or matters "like
or related" to matters raised at the counseling stage, may be
the subject of a formal complaint.
- Class complaint procedures and the responsibilities of a class
agent will be provided upon request.
- The time frames in this notification are stated in calendar days.
Footnotes:
[1] A disabled person is defined as one who has a physical
or mental impairment that substantially limits one or more major
life activities, has a record of impairment, or is regarded as
having such an impairment.
[2] Where an Agency
is covered by 5 U.S.C. section 7121(d) and where the negotiated
procedure and the statute cover the alleged discrimination, the
aggrieved individual would be required to elect either 1) the statutory
procedure for discrimination (the internal Agency EEO process)
or 2) the negotiated grievance procedure, but not both.
[3] The aggrieved
person has 20 calendar days from the date of the alleged discriminatory
act to file a mixed-case appeal with the Merit Systems Protection
Board (MSPB), or 15 calendar days from the date of a counselor's
notice of final interview, or 30 calendar days after the initial
EEO counselor contact to file a formal, mixed-case EEO complaint.
S/he may not file both an MSPB appeal and an EEO complaint on the
same matter. The process selected first is deemed the elected process.
Receipt:
This is to acknowledge that a copy of this document was provided to
me.
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Signature of Aggrieved Person
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Return this form via fax (301) 402-0994; or by mail to:
NIH OEODM
Division of Complaints Management and Resolution
Building 2, Third Floor Suite, MSC-0245
Bethesda, MD 20982
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