Complaint Process

The EEO Team, within the Office of Diversity Management (EEO), is charged with the function of processing of EEO complaints. The EEO complaint process is governed by Title 29 Code of Federal Regulations Section 1614. These regulations set forth very specific procedures, each of which has strict time requirements. Failure to adhere to the time requirements can negate the attempted EEO action. For example, failure to contact an EEO counselor within 45 days of the alleged discriminatory event can result in a procedural dismissal of the complaint.

There are two phases involved in the initial processing of EEO Complaints, the Informal Counseling Phase and the Formal Complaint Phase. These are discussed below, together with separate sections on Alternative Dispute Resolution (ADR) as it relates to the EEO process, a section on Closing of EEO Complaints, and, a section on Appeal Procedures. Note that there are some procedural variances for cases appealable to MSPB, class complaints and Age Discrimination cases. For an overview of the entire complaint process, see, PDF Flow Chart.

Informal Counseling Phase

Employees or applicants who believe they have been discriminated against have the right to file a complaint with the Agency. The first step is to contact one of the Agency's EEO Counselors within 45 days of the discriminatory action. The complainant has the right to choose any counselor within the Agency. See, EEO Counselor List. It is the responsibility of the complainant to provide the EEO Counselor with the following information:

  1. A "basis" or "bases" of discrimination, that is, their protected group or class that is protected from discrimination;
  2. Events which lead complainant to believe discrimination has occurred, to include the date of the most recent event; and,
  3. A requested remedy(ies) .

At the outset of counseling, usually upon the initial contact, the counselor has a responsibility to provide the complainant with a Notice of Rights and Responsibilities. This Notice provides the necessary specifics the complainant will require with regard to bringing an EEO complaint. The complainant has a duty to abide by the guidelines contained in the Notice.

The counselor is a neutral party and does not advocate for either the Agency or the complainant. The counselor does not conduct an investigation, nor does the counselor look to whether or not discrimination has occurred. Rather, the counselor serves as a facilitator between Agency officials and the complainant, with the goal of effecting a resolution. As part of the resolution attempts, the counselor may conduct a limited inquiry, usually through informal interviews of involved parties. All parties are expected to keep EEO information and discussion content in a close hold.

Ordinarily, counseling must be completed within 30 days. If no resolution is achieved at the end of the counseling, the counselor will provide the complainant with a written Notice of Right to File a Formal Complaint. That notice explains complainant's right to file a formal complaint, and describes the process that should be followed to do so. A PDF Form 197, Formal Complaint Form will be provided with the Notice.

Formal Counseling Phase

The formal complaint must be filed within 15 days from the date of receipt of the Notice of Right to File. The filing date of the complaint is considered to be the date it is postmarked, the date it is faxed or the date it is hand delivered. The nature and issues of the complaint determine which government entity, or Agency division, will have jurisdiction.

If a formal complaint is one containing issues that must be appealed to the Merit Systems Protection Board (MSPB), the complaint is a "mixed case." It is then processed under MSPB procedures versus EEOC regulations. MSPB issues are generally held to be personnel actions of a more severe nature, e.g., separation, reduction in grade or suspension of more than 14 days. For further information, see, MSPB.gov.

An individual, acting as a class agent, may also file a class complaint with the Agency. Class complaints must be certified by an EEOC Administrative Judge (AJ) in order to be accepted for processing.

If the basis for the complaint is age, the complainant may, either bypass the EEO counseling process and go directly to U.S. district court to file a civil action, or, enter into EEO counseling with the option of filing an action in district court once all administrative remedies under the EEO complaint process have been exhausted. The complainant is prohibited from attempting to use both options simultaneously.

If a formal complaint is filed with the Agency, the Agency may either accept or reject the issues brought forward by the complainant. If any of the issues are accepted, the Agency must then conduct an investigation of the accepted issues. Under the regulations, investigations must be completed within 180 days of the filing date of the complaint. Once 180 days have passed, the complainant is permitted to go directly to the EEOC to request a hearing, regardless as to whether or not the investigation has been received. Investigations of DSS EEO complaints are conducted by the Office of Complaint Investigations (OCI). See also, Investigation of EEO Complaint (OCI). Upon completion of the investigation, OCI will issue a Report of Investigation (ROI). The complainant will be provided with a copy of the ROI, together with information regarding their next procedural options. These options are to either request a hearing before an EEOC AJ, or request that the Agency render a final decision.

If the complainant requests that the Agency issue a final decision, the Agency has 60 days to render its determination. Upon issuance of the Final Agency Action/Decision, the complainant will also be advised of appropriate appeal rights.

If the complainant requests a hearing, the EEOC will provide notification of the date of the hearing. Once a hearing occurs, the Administrative Judge (AJ) issues a decision within 180 days and sends it to both parties. Where discrimination is found, the AJ orders appropriate relief. If the Agency does not issue a final order within 40 days after receiving the AJ's decision, the decision becomes the final action of the Agency. Both the Agency and the complainant have appeal rights if they disagree with the AJ's decision.

Alternative Dispute Resolution (ADR)

ADR is an option that may be afforded to a complainant at the Agency's discretion at any point in the EEOC process. If ADR is offered to, and then requested by, the complainant during the initial counseling phase, the time requirement for completion of informal counseling is extended up to 90 days from the date of the initial counseling contact. However, as with all other EEO matters, the ADR will be expeditiously handled. (For detailed information about the EEO ADR program, see, ADR.

Closing of an EEO Case

DSS considers an EEO case closed when one of the following occurs:

  1. The complainant withdraws the complaint.
  2. A final decision has been issued and all appeal rights have been exhausted.
  3. A resolution is achieved, either through the efforts of the EEO Counselor or through a mediator at ADR. If the resolution is reduced to writing, the signing authority for the Agency is the Office of General Counsel.

Filing an Appeal with the EEOC

A dissatisfied complainant may appeal to the EEOC the Agency's final action within 30 days of receipt. The Agency may appeal a decision by an EEOC AJ within 40 days of receiving the AJ's decision.

On class complaints, a class agent may appeal an Agency's final decision on the merits of the class complaint within 30 days from receipt, or a class member may appeal the final decision on his or her claim for individual relief.

If the complaint is a "mixed case," the complainant may appeal the final agency decision to the Merit Systems Protection Board or ask the Board for a hearing. Once the Board issues its decision on the complaint, the complainant may petition the EEOC for review of the Board decision concerning the claim of discrimination.