Information for Management Officials

What You Need to Know in Responding to an EEO Complaint

AS A MANAGEMENT OFFICIAL, you are likely to be involved in employment decisions that impact the lives and careers of others. As such, you are responsible for ensuring that your employment decisions are fair, equitable, and based on merit. During the course of deciding who gets hired, promoted, has opportunities to advance, etc., you might encounter objections to your decision, including someone's belief that it was based on non-merit factors that violate EEO laws.

You are also responsible for the quality of the work environment, and must ensure that individuals are free from harassment. This means that in addition to being responsible for your own actions, you become responsible for the interactions of other individuals in your workplace.

In the course of performing your official job duties as a management official, you represent the agency. Your actions and decisions also have the potential to create a liability for the agency. If an individual believes that your actions or decisions were based on illegal discrimination, s/he may choose to utilize the EEO complaint process to seek a remedy. The purpose of this brochure is to give you an idea of what to expect if you are alleged to have illegally discriminated.

IF YOU ARE ALLEGED TO HAVE DISCRIMINATED

1. Avoid taking it personally. Do not alter your behavior toward the individual or your supervision of him/her in a negative way.

2. Advise your supervisor that you are involved in an EEO case.

3. Treat this as a highly confidential matter and limit your discussions of it accordingly.

4. Do not retaliate or do anything that might be perceived to be retaliatory against the individual or any witnesses.

5. Demonstrate a good faith effort in resolution/settlement attempts. Keep in mind that a settlement decision will be based on what is in the best interest of the agency.

6. Answer questions to the best of your ability. Refer to your notes and supporting documentation, but if you do not know or cannot recall the answer, say so. Contact the Office of General Counsel (OGC) for assistance in preparing your statements or testimony.

7. You have the right to a personal representative, but at your own expense. The OGC represents the agency and cannot be your representative. In general, if you acted within the scope of your official job duties, you should not need a representative.

8. Contact your servicing EEO staff if you have any questions or concerns about the EEO complaint process.

THE FEDERAL EEO COMPLAINT PROCESS CONSISTS OF TWO STAGES - a pre-complaint and a formal complaint stage. The Aggrieved Person (AP) is required to complete the pre-complaint process before he/she can file a formal complaint.

IN THE PRE-COMPLAINT PROCESS, an EEO officer or counselor will notify you of the allegations you must respond to. The counselor is prohibited from revealing the identity of the aggrieved person, unless authorized to do so by him or her. In preparing for the EEO counseling, you should include the following:

• Be cooperative with the EEO counselor. The EEO counselor has a neutral role to play, and is not to represent either side or to form an opinion of the merits of either side, so nothing is gained by possibly alienating the EEO counselor.

• Be informative; the failure to do so may be reflected in the counselor's report.

• Be willing to resolve the matter. Frequently it is possible to do so at this stage on terms that both you and the AP can live with.

• Discuss the matter with your servicing EEO staff and attempt early informal resolution whenever possible.

• Be careful not to take any action or fail to take any action that may be considered to be retaliatory toward any persons whom you believe may have contacted the counselor. Retaliation can be found even if there is no merit to the complaint.

ONCE A FORMAL COMPLAINT IS FILED, the NIH Office of Equal Opportunity and Diversity Management (OEODM) assumes management of the case and provides a copy of the EEO counselor's report to the complainant. The counselor's report does not state whether discrimination occurred. Managers are not entitled to a copy of the formal complaint or the counselor's report, but will be advised of the status of the allegations raised.

The OEODM will send the complainant a letter stating the claim(s) asserted and to be investigated. This decision is based on jurisdictional and procedural criteria in accordance with EEOC regulations, not on the merits of the complaint.

AN INVESTIGATION IS CONDUCTED by a certified investigator who is a neutral party assigned by the agency. The investigator is authorized to gather evidence and take sworn statements. The investigator does not determine whether discrimination occurred. Some of the areas covered during the pre-complaint process might be repeated in the investigation. All management officials and witnesses are required to cooperate, respond truthfully, and provide a signed, sworn affidavit. The affidavit must accurately reflect witnesses' testimony and it should not be signed unless the witness is absolutely comfortable with it. If a witness does not know, or cannot recall specific information, it is acceptable to state this uncertainty. There are no "off the record" conversations with an investigator.

The investigator produces a Report of Investigation (ROI), which also does not judge whether discrimination occurred. EEOC regulations require that the ROI be issued within 180 days from the filing of a formal complaint. The complainant will be given a copy of the entire ROI.

Witnesses and management officials who give statements are entitled to a copy of their individual affidavits, but are not entitled to a copy of the ROI, nor copies of affidavits by any other witnesses.

IF YOU ARE CALLED TO TESTIFY DURING THE EEOC HEARING, it is important to prepare. Your preparation should include the following:

• Review carefully any statements previously given. Review pertinent documents that relate to the allegations.
• Attempt to anticipate the questions you may be asked by both sides during the hearing.
• Contact the agency representative (OGC) to find out in more detail what is expected during the hearing.
• Practice giving answers to the anticipated questions.
• During the hearing your demeanor is important.
• Listen to the question carefully and only answer the question that is being asked.
• Do not say anything that could be interpreted as being defensive, hostile, paranoid, or argumentative.
• Try to relax and direct your testimony toward the Administrative Judge who will be deciding the case.

IF A RESOLUTION IS REACHED AT ANY POINT IN THE EEO COMPLAINT PROCESS, it will be detailed in a document signed by the individual and authorized agency officials. Settlements are not an admission of discrimination. A settlement might be in the best interest of the agency (e.g., to avoid high litigation costs). The terms of the settlement are not subject to the approval of the individual managers involved in the complaint.