Quick Facts: Commissioned Corps Discrimination Complaint Processing

The Office of Equal Opportunity and Diversity Management (OEODM) manages the National Institutes of Health, Equal Employment Opportunity (EEO) Complaint Process. This fact sheet includes basic information about the processing of discrimination complaints filed by Commissioned Corps Officers.

On December 21, 2001, the Surgeon General re-issued INSTRUCTION 6, SubChapter CC26.1, "Equal Opportunity: Discrimination Complaints Processing," of the Commissioned Corps Personnel Manual (CCPM). The INSTRUCTION establishes the rights of commissioned officers to be free from discrimination and reprisal for filing discrimination complaints. It also establishes the procedures to be used by active-duty officers in processing complaints. The INSTRUCTION is available on the Division of Commissioned Personnel's (DCP) website at http://dcp.psc.gov/PDF_docs/2616.pdf (Download the PDF file).

Q. What is an equal employment opportunity (EEO) complaint, and when is it appropriate to file one?

A. An EEO complaint is an allegation of discrimination or reprisal based on race, color, religion, sex, national origin, or to a limited extent, age or disability. It is appropriate to file one when you have been subjected to harassment or discrimination based upon race, color, religion, sex, national origin, or to a limited extent, age or disability.

Q. Do I follow the same procedures as my civilian co-workers?

A. No. In civil service, EEO counseling is an absolute prerequisite for filing a formal complaint and will not be waived under any circumstances. Although counseling is highly recommended as a first stage in the complaint process, commissioned officers can file a formal complaint from the outset. Also, since commissioned officers are not covered by laws related to discrimination on the basis of race, color, religion, sex, national origin, age, and disability, certain avenues of redress available to civilians, such as appeals to the Equal Employment Opportunity Commission (EEOC) and the court system are not available.

Q. How do I file an EEO complaint if I am detailed to another organization?

A. Members of the Public Health Service (PHS) Commissioned Corps who are assigned or detailed to another Agency or organization may only file a complaint under the procedures specified in INSTRUCTION 6, SubChapter CC26.1 of the CCPM when the subject of the complaint is a matter under the control of the Department of Health and Human Services (DHHS). For matters not under the control of DHHS, the officer must file his or her complaint with the Agency or organization to which detailed, in accordance with the Memorandum of Agreement between the DHHS and that Agency or organization.

PHS commissioned officers detailed to the United States Navy, Marine Corp, Army, Air Force, and Coast Guard remain subject to the law of the Armed Forces to which detailed. EEO complaints filed by these officers will be processed in accordance with the procedures of the Service to which detailed.

Q. Is there a time frame for filing a complaint?

A. Yes. Officers have 60 days after an offending incident or occurrence in which to reach an informal resolution or to file a formal complaint. Officers are encouraged to seek informal resolution of a complaint during that 60-day period.

Q. What is the difference between the informal and formal processes?

A. Officers who wish to attempt informal resolution may seek EEO counseling through OEODM or may seek informal resolution through his or her administrative chain, beginning with the immediate supervisor.

Exhibit I - Informal Complaint Process

In the formal process, a written complaint is submitted to the Director, OEODM who reviews the complaint for jurisdiction and to insure that it was filed in a timely manner; it raises EEO issues; that the officer has not separated from the Corps; and that the complaint is not an abuse of the process. If the complaint is accepted, an investigation is conducted. A report of investigation is prepared which consists of a detailed, complete, and accurate written record of all the information developed in the investigation which supports or refutes the significant charges made by the officer. The report is then provided to the officer for review. Within 30 days of receiving comments from the officer, DHHS prepares a recommended decision for transmittal to the Surgeon General.

Exhibit II - Formal Complaint Process

Q. How do I go about filing a complaint?

A. Going the informal route, you consult OEODM and request assignment of an EEO counselor. Cooperate fully with the efforts of the EEO counselor to provide information and gather evidence giving rise to the allegations.

OR

You can discuss the matter with your supervisor and seek an administrative resolution. If the matter is not resolved at this level, you may request Alternative Dispute Resolution (ADR) or choose to elevate the complaint to the second line supervisor.

The formal process begins with the submission of a written and signed discrimination complaint to the Director, OEODM. The complaint includes a statement of the issues, the date of the event, and the basis of the discrimination. It must also identify the desired outcome or remedy that you are seeking. The complaint is addressed to the EEO Director for the organization in which the alleged act of discrimination occurred. Attempts taken to resolve the matter at the informal level must also be included.

Q. Do I need representation? What kind of assistance is available to me?

A. Representation is not required, however, you may have a representative of your own choosing at all stages of the informal and formal process. Your OPDIV Commissioned Corps Liaison is available to give you guidance. Legal counsel may be obtained at your own expense as may be considered necessary to prosecute a complaint.

Q. What is ADR?

A. ADR describes a number of techniques which provide alternatives to the traditional mechanisms-negotiations and litigation-for resolving EEO complaints. ADR techniques are generally voluntary, consensual, and convened by a neutral third party.

Q. Can I appeal an EEO decision? To EEOC? To Court? To the Board for Corrections of PHS Commissioned Corps Records?

A. PHS commissioned officers are not covered by anti-discrimination legislation. As such, there is no recourse through the EEOC or the court system. You can make application to the Board for Correction of PHS Commissioned Corps records after exhausting the administrative avenues open to you.

Q. What is the effect of filing an EEO complaint on pending grievances, Board for Correction of PHS Commissioned Corps Records, and Board of Inquiry actions?

A. When allegations of discrimination are raised in connection with a grievance, processing of the grievance is terminated with respect to those allegations. Similarly, when allegations of discrimination are raised in connection with a Board for Correction of PHS Commissioned Corps Records, the Board for Correction will dismiss the application to allow you to exhaust EEO and other relevant administrative processes.

When an allegation of discrimination is made in connection with an adverse action, the question of discrimination may be presented together with the adverse action for review and recommendation by the Board which considers the adverse action.

Q. How can the EEO officer of the OPDIV against which I filed the complaint handle the complaint objectively?

A. EEO officers are trained professionals whose duties are to uphold the EEO laws, regulations, and policies. In carrying out these duties, formal complaints are investigated by neutral third parties, usually contractors. These individuals provide an objective review of the facts. The final decision is made by the Surgeon General.

Q. Civilian personnel can get money as a result of winning an EEO case. What remedies are available to commissioned officers?

A. Members of the Uniformed Services are considered fully compensated for injuries sustained in the line of duty. Therefore, compensatory damages are not available to members of the Uniformed Services who were victims of discrimination. However, administrative actions can be taken to correct injustices. This includes correcting records to remove any offending documents and reassignments. Additionally, disciplinary actions may be taken against the officer or employee who has been found to have engaged in discriminatory conduct.

Q. I believe that I was not selected for an assignment that could improve my chances of promotion, solely because of my sexual orientation. I believe that I was the best qualified candidate for the position. I know that the military rule is "don't ask, don't tell." However, since PHS does not come under the Uniform Code of Military Justice, this does not apply.

A. In a special message dated December 6, 1993, the Secretary, DHHS issued an order prohibiting discrimination on the basis of sexual orientation. That order extends to uniformed members of the PHS Commissioned Corps. In a February 4, 1994 memorandum, the Assistant Secretary for Personnel Administration outlined the implementation of the Department's EEO policy. Allegations of discrimination or harassment because of sexual orientation may, at the officer's election, be the subject of a procedure which mirrors the informal counseling and investigation process. The procedure provides for an impartial decision on the allegations and, if necessary, an appellate decision by the Department's Director of EEO.

For more information about this complaint process, See OEODM's website or call (301) 496-1551 (voice) or (301) 480-3122 (TTY) to speak with a member of the Division of Complaints

This document is intended as a general overview and does not hold the force of legal opinion.