Filing a Complaint
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29 C.F.R. PART 1614
A person who believes that he or she has been discriminated against on the basis of race, color, religion, sex, national origin, age, physical or mental handicap or subjected to reprisal, must first seek Equal Employment Opportunity (EEO) counseling, and if counseling is not successful, file a written complaint of discrimination with the U.S. Department of Health and Human Services. The administrative complaint process is divided into two stages: the pre-complaint processing stage and the formal complaint processing stage.
The Pre-Complaint Processing Stage
EEO counseling is an essential part of the federal system for addressing and resolving the EEO concerns of employees and applicants for employment. The opportunity for informal resolution at an early stage is an important feature of the counseling stage. If the counselor is unable to resolve the EEO complaint, he/she sets the stage for the EEO investigation by identifying the relevant issues and the remedies sought by the complaining party.
- An aggrieved person must contact an EEO counselor within 45 calendar days of the date of the alleged discriminatory act. In the Program Support Center, and the Agency for Healthcare Research and Quality (AHRQ), this is done by contacting the servicing EEO office and requesting an EEO counselor. Each of the HHS agencies has delegated authority to process their complaints.
- Counseling must be completed within 30 calendar days of the date the aggrieved person first contacted the EEO counselor, except where an agency has an established dispute resolution procedure and both parties have agreed to use it. In this case, the Director, Office of Equal Employment Opportunity (OEEO) may extend the period for counseling up to 90 calendar days.
- If counseling is successful, the terms of the informal agreement are reduced to writing and each party signs the agreement.
- If the matter has not been informally resolved, the counselor must inform the aggrieved party in writing at the end of the 30 day counseling period of his or her right to file a discrimination complaint within 15 days from the receipt of the Notice of Final Interview (NOFI).
Formal Complaints Processing Stage
- Upon receiving the NOFI, the complainant must file a complaint of discrimination with OEEO.
When the OEEO receives a properly filed complaint of discrimination, it must:
- Acknowledge receipt of the complaint in writing.
- Decide which allegations to dismiss in accordance with 29 C.F.R. Section 1614.107. The OEEO must inform the complainant in writing, which allegations it has accepted and explain why it has dismissed some of the allegations.
- If a hearing is requested, the dismissed allegations may be reviewed by the administrative judge. If a final agency decision is elected by the complainant the dismissed allegation is appealable to the EEOC Office of Federal Operations. Allegations dismissed by an administrative judge are also appealable to EEOC, once final action has been taken on remainder of the complaint.
- An agency must dismiss a complaint or allegations in a complaint when:
- The complaint fails to state a claim or states a claim that is pending before another federal agency or has been decided by the agency.
- The complainant fails to meet the applicable time limits or raises a matter that has not been brought to the attention of a counselor.
- The complaint/allegation is the basis of a pending civil action in a Federal court or was the basis of a civil action decided by a U.S. District Court in which the complainant was a party.
- The complaint or allegation was raised before in a negotiated grievance procedure that allows allegations of discrimination or in an appeal to the Merit System Protect Board.
- The complaint or allegation is moot or alleges that a proposal to take a personnel action or other preliminary steps is discriminatory.
- The complainant cannot be located after reasonable efforts have been made to locate the complainant and he/she has not responded to a notice of proposed dismissal within 15 days of being sent to his or her last known address.
- The agency has provided the complainant with a written request to provide relevant information and the complainant has failed to respond to the request within 15 days, or the complainant's response does not address the agency's request.
- The complaint alleges dissatisfaction with the processing of a previously filed complaint.
- The agency finds that the complaint is part of a clear pattern of misuse of the EEO process.
- The OEEO is responsible for conducting a complete and fair investigation of the complaint within 180 days from the filing date of the complaint. This period may be extended an additional 90 days upon the consent of the complainant. The complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to the issues raised in the original complaint. After requesting a hearing, the complainant may file a motion with the administrative judge to amend the complaint. When a complaint is amended, the agency must complete the investigation within the earlier of 180 days after the last amendment was filed or 360 days after the filing of the original complaint. The DEEO usually contracts the investigation out to private independent contractors.
- If the administrative judge's findings and conclusions sustain the complainant's allegation that he or she has been discriminated against, the Department has 40 days to issue a final order notifying the complainant whether or not it will fully implement the decision of the administrative judge. The complainant may appeal an agency's final action to the EEOC.
- If the Department adopts the administrative judge's findings of discrimination, it must make every effort to resolve the complaint by offering the complainant full relief.
- Once the Department adopts the administrative judge's findings and conclusions and issues a final agency decision, if adverse to the complainant, he or she may file an appeal, in writing, with the EEOC Office of Federal Operations (OFO).
- A complainant has 30 days to appeal an agency's final decision and the procedural dismissal of allegations in the complaint. If a complainant does not file an appeal within the 30-day period, the appeal will be untimely and subject to being dismissed by EEOC.
- Once the OFO receives a timely appeal, it will review the complaint file and all written statements and briefs from both parties. Should there be a need, the OFO may supplement the record by an investigation, by an exchange of letters or memoranda, and may remand to the Department to obtain the need of information.
- The OFO will issue a written decision based on the preponderance of the evidence and will set forth its reasons for the decision. If the decision contains a finding of discrimination, it must also contain an appropriate remedy. In a decision that contains a finding of "no discrimination," the EEOC must notify the complainant of his or her right to file a civil action in the U.S. District Court.
- A complainant may file a civil action in an appropriate U.S. District Court within 90 days of receipt of the agency's final decision, if no appeal has been filed, within 90 days of receipt of EEOC's final decision of an appeal.
- A complainant may also file a civil action in U.S. District Court after 180 days from the date of filing a complaint if he or she has not appealed and the agency has not issued a final decision.
- A complainant may also file suit after 180 days from the date of filing an appeal if the OFO has not issued a final decision.
- Filing a civil action will terminate all administrative processing.