- Agencies shall inform the complainant that s/he may appeal within thirty (30) days of receipt of the dismissal, final action, or decision. Appeals may be mailed to: Equal Employment Opportunity Commission
Office of Federal Operations
P.O. Box 77960
Washington D C 20013 or hand delivered to: Equal Employment Opportunity Commission
Office of Federal Operations
Appellate Review Programs
131 M Street NE. Suite 5SW12G
Washington, DC 20507 or may be submitted through the Commission's electronic document submission portal or by fax at (202) 663-7022. - Agencies shall provide the information at 29 C.F.R. § 1614.403 (a)-(f) (use of appeal form EEOC Form 573, Notice of Appeal/Petition (a copy of which is appended hereto as Appendix P); content of petition; service of copies on agency EEO Director; certification of delivery; and opposition brief schedule).
- With regard to a mixed case, if the complainant is dissatisfied with the agency's final decision on the mixed case complaint, the complainant may appeal the matter to the MSPB, not the Commission, within 30 days of receipt of the agency's final decision.
- Within ninety (90) days of receipt of a final action on an individual or class complaint if no appeal has been filed;
- After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and a final action has not been taken;
- Within 90 days of receipt of the Commission's final decision on appeal; or
- After 180 days from the date of the filing of an appeal with the Commission if there has been no final decision by the Commission.
- See Appendix C of this Management Directive, which sets forth a detailed list of a complainant's rights about which the agency must advise the complainant.
III. AGENCIES MUST AVOID FRAGMENTING EEO COMPLAINTS
The fragmentation, or breaking up, of a complainant's legal claim during EEO complaint processing has been a significant problem in the federal sector. For complainants, fragmented processing can compromise their ability to present an integrated and coherent claim of an unlawful employment practice for which there is a remedy under the federal equal employment statutes. For agencies and the Commission, fragmented processing substantially increases case inventories and workloads when it results in the processing of related matters as separate complaints. [1]
The fragmentation of EEO claims must be prevented at all levels of the complaint process, including pre-complaint EEO counseling. This section is designed to promote understanding of the concept of fragmentation and to provide guidance on avoiding fragmented complaint processing.
Note that because the MSPB does not have jurisdiction to hear non-appealable matters, complaints not containing those matters should be processed by the agency under the 1614 process and not mixed with matters that are appealable to the MSPB through amendment, consolidation or held in abeyance. See Complainant v. Inter-American Foundation, EEOC Appeal No. 0120132968, (Jan. 8, 2014) (wherein the Commission essentially overturned the doctrine of inextricably intertwined). We note, however, that a proposed action merges with the decision on an appealable matter - for example, a proposed removal merges into the decision to remove. See Wilson v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120122103 (September 10, 2012).
This section is not designed to address claims that include both a mixed and non-mixed matters. Where the complainant has or brings an amendment which contains a mixed issue (one that can be appealed directly to the MSPB), fragmentation does not occur where the agency assigns a second complaint number and processes the non-mixed matters under the 29 C.F.R. 1614 process and the mixed matters under the 5 C.F.R. 1201 process.
A. Identifying and Defining the Claim in an EEO Complaint
- Fragmentation often occurs at the point where the agency identifies and defines the complainant's claim, most commonly during the counseling and investigative stages. A claim refers to an assertion of an unlawful employment practice or policy for which, if proven, there is a remedy under the federal equal employment statutes. Fragmentation often results from a failure to distinguish between the claim the complainant is raising and the evidence (factual information) s/he is offering in support of that claim.
Example 1 An African-American employee complains to the EEO Counselor that his supervisor is stricter about his time and attendance than with the unit's Caucasian employees. This is a legal claim of race-based disparate treatment in the terms and conditions of the complainant's employment with regard to time and attendance. In support of this claim, the complainant tells the EEO Counselor about a number of different occasions when the supervisor denied his request for annual leave or required him to use leave because he was tardy, while treating similarly situated Caucasian employees more favorably. These specific incidents should be considered the evidence supporting the complainant's claim that the supervisor is treating him differently because of his race with regard to his time and attendance. Fragmentation would occur if each of these incidents were considered a separate claim and processed as a separate complaint.
Example 2 A female employee complains to the EEO Counselor that she is being subjected to a hostile work environment due to the ongoing sexual harassment by her male co-workers. This is the complainant's legal claim. In support of this claim, the complainant tells the EEO Counselor of specific incidents of a sexual advance, a sexual joke and a comment of a sexual nature. These individual incidents are evidence in support of the complainant's claim and should not be considered as separate claims in and of themselves.
Example 3 A complainant tells the EEO Counselor that she believes that the agency discriminated against her when she was not selected for a GS-14 Engineer position, when she was not detailed to serve in a similar position, and when she was denied access to a particular training program. All of these seemingly different incidents are part of the same claim of a discriminatory non-selection as the complainant has alleged that the detail and the training would have enhanced her qualifications for the GS-14 Engineer position and, therefore, are relevant to the agency's failure to select her for that position.
B. A Complainant May Amend a Pending Complaint
At any time prior to the agency's mailing of the notice required by 29 C.F.R. § 1614.108(f) at the conclusion of the investigation, 29 C.F.R. § 1614.106(d) permits a complainant to amend a pending EEO complaint to add claims that are like or related to those claim(s) raised in the pending complaint. [3] There is no requirement that the complainant seek counseling on these new claims. See Braxton v. U.S. Postal Service, EEOC Appeal No. 0120102410 (Oct. 29, 2010). After the complainant has requested a hearing, s/he may file a motion with the Administrative Judge to amend the complaint to include claims that are like or related to those raised in the pending complaint.
This situation most frequently occurs when an alleged discriminatory incident occurs after the filing of an EEO complaint. In the past, agencies usually made these subsequent incidents the basis of a separate EEO complaint. A separate EEO complaint is not appropriate, however, if the new incident of discrimination raises a claim that is like or related to the original complaint. Rather, the original complaint should be amended to include the new incident of discrimination.
When a complainant raises a new incident of alleged discrimination during the processing of an EEO complaint, it must be determined whether this new incident:
- provides additional evidence offered to support the existing claim, but does not raise a new claim in and of itself;
- raises a new claim that is like or related to the claim(s) raised in the pending complaint; or
- raises a new claim that is not like or related to the claim(s) raised in the pending complaint.
In order to facilitate such a determination, the complainant shall be instructed by the investigator (or any other EEO staff person with whom complainant raises the new incident) to submit a letter to the agency's EEO Director or a designee describing the new incident(s) and stating that s/he wishes to amend his/her complaint to include the new incident(s). The EEO Director or designee shall review this request, determine whether a fair and impartial investigation of the new claims can be accomplished within 360 days of the original filed complaint, and determine the correct handling of the amendment in an expeditious manner.
-
New Incident That Is Part of the Existing Claim If the EEO Director or designee concludes that the new incident(s) provides additional evidence offered in support of the claim raised in the pending complaint, but does not raise a new claim in and of itself, then the EEO Director or designee should instruct the investigator to include the new incident in the investigation. A copy of this letter should be sent to the complainant unless they have provided notice that they have a representative. In such a case, the acknowledgment and all subsequent actions on the complaint should be mailed or delivered to complainant's representative with a copy to the complainant, unless the complainant has stated otherwise.
Example 4 During EEO counseling and in her formal complaint, an agency employee has alleged that her co-workers were harassing her because of her gender, and she cites five examples of harassment. During the investigation, she provides an initial affidavit detailing these incidents. Shortly thereafter, the employee contacts the investigator and tells him of several new incidents of gender-based harassment by these same co-workers. In this case, these new incidents are additional evidence offered by complainant in support of her pending claim of discriminatory harassment, and the investigator should be instructed to incorporate these new facts into his investigation of the pending claim. In this instance, the investigative period is not extended beyond 180 days, except with the consent of the complainant pursuant to 29 C.F.R. § 1614.108(e).
Example 5 An agency employee files a race discrimination complaint alleging he was not selected for a particular supervisory position, despite his belief that he was the best qualified candidate for the job. During the investigation into his complaint, the same selecting official does not select the complainant for another supervisory position. Complainant again asserts he was not selected because of his race. This new claim of a discriminatory non-selection is sufficiently like or related to the original non-selection claim that the agency should amend the original complaint to include the subsequent non-selection.
Example 6 During the investigation into her claim that the agency is discriminating against her in the terms and conditions of her employment because her supervisor denied her developmental assignments that could lead to upward mobility in the agency, the complainant informs the investigator that her supervisor just issued her a letter of warning for attendance problems. The complainant asserts that the supervisor took this action in retaliation for her complaint about the denial of development assignments. This new claim of retaliation is related to the pending claim because it grew out of the investigation into that claim. The agency should amend the original complaint to include this subsequent, but related, claim.
Example 7 An agency employee files a complaint of discrimination when his request for a hardship transfer is denied. During the investigation into his complaint, the complainant sends a letter to the EEO office stating that he has decided to resign from the agency because of the agency's failure to transfer him and the resulting stress. He further states that he is no longer seeking the transfer as a remedy to his complaint, but asserts he is entitled to a compensatory damages award instead. The EEO office should amend the original complaint to include the complainant's new like or related claim of constructive discharge.
Example 8 An agency employee sought EEO counseling and filed a formal complaint concerning his allegation that the agency discriminated against him in the terms and conditions of his employment by requiring that he adhere to a specific work schedule while not imposing a similar requirement on a comparative employee. During the investigation into this complaint, the complainant tells the investigator that he was recently not selected for a position in another facility and believes this occurred as a result of discrimination. In this case, the discriminatory non-selection claim is not like or related to the adherence to the work schedule claim, as it is factually distinct and cannot reasonably be said to add to or clarify the original claim.
C. Consolidation of Complaints
As noted above, a new claim that is not like or related to a previously filed complaint provides the basis for a new, and separate, complaint. The complainant must present the new, unrelated claim to an EEO Counselor and the new claim is subject to all of the regulatory case processing requirements. In order to address a different fragmentation concern, 29 C.F.R. § 1614.606 requires agencies to consolidate for joint processing two or more complaints of discrimination filed by the same complainant, after appropriate notification is provided to the parties. [4] While it is anticipated that most consolidated complaints will be investigated together, in certain circumstances, such as significant geographic distance between the sites of two complaints, consolidation does not preclude an agency from investigating each complaint separately. In all instances, however, where an individual requests a hearing, the consolidated complaints should be heard by a single Administrative Judge; or where the complainant requests a final agency decision, the agency should issue a single decision. An agency must consolidate complaints filed by the same complainant before the agency issues the notice required by 29 C.F.R. § 1614.108(f) at the conclusion of the investigation.
When a complaint has been consolidated with an earlier filed complaint, the agency must complete its investigation within the earlier of 180 days after the filing of the last complaint or not later than 360 days after the filing of the original complaint. See Section II.A.1 of this Chapter for more information on time limits. A complainant has the right to request a hearing, even in the case of consolidated complaints, after 180 days have passed since the filing of the original complaint, even if the agency's investigation is not complete. If not already consolidated, an Administrative Judge or the Commission in their discretion may consolidate two or more complaints of discrimination filed by the same complainant.
Section 1614.606 of 29 C.F.R. permits, but does not require, the consolidation of complaints filed by different complainants that consist of substantially similar allegations or allegations related to the same matter.
D. Partial Dismissals
Another method of addressing the fragmentation problem is 29 C.F.R. § 1614.107(b), which provides for no immediate right to appeal a partial dismissal of a complaint. See Section IV.C of this Chapter for a more detailed discussion of partial dismissals. Partial dismissals will be preserved and decided within the context of the rest of the complaint.
E. No Remands by Administrative Judges
To further avoid the fragmenting of EEO claims, Administrative Judges will not remand issues to agencies for counseling or other processing. Once a case is before an Administrative Judge, that Administrative Judge is fully responsible for processing it. Chapter 7, "Hearings," in this Management Directive discusses more fully this provision.
F. "Spin-off" Complaints
Section 1614.107(a)(8) of 29 C.F.R. provides for the dismissal of spin-off complaints, which are complaints about the processing of existing complaints. Complaints about the processing of existing complaints should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint, as set forth in Section IV.D of this Chapter.
G. Training
As already emphasized, the EEO Counselor and investigator have critical roles in identifying, defining, and clarifying an aggrieved employee's legal claims. Therefore, agencies must provide all agency EEO Counselors and investigators with mandatory training in this area as well as ensure that all contract EEO Counselors and investigators have received training in this area. See Chapter 2, Section II (EEO Counselor training) and Chapter 6, Section II (investigator training) of this Management Directive.
IV. AGENCY DISMISSAL PROCESS
Circumstances under which an agency may dismiss a complaint are set forth in 29 C.F.R. § 1614.107(a). An agency's authority to dismiss a complaint ends when a complainant requests a hearing. An agency should process dismissals expeditiously. To avoid common errors in dismissing complaints of discrimination see EEOC, Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds, issued in September of 2014 on the Commission's website.
The agency should clearly set forth its reasoning for dismissing the complaint in all dismissal decisions and include evidence in the record that supports the grounds for dismissal. For example, if the agency dismisses a claim under 29 C.F.R. § 1614.107(a)(3) because a civil action was filed by complainant, the agency should ensure that a copy of the civil complaint is included in the record.
A. Bases for Dismissals That May Exist as of the Filing of the Complaint or Develop Thereafter
- Untimely Counseling Contact - 29 C.F.R.§ 1614.107(a)(2)
- A claim that was not brought to the attention of an EEO Counselor in a timely manner.
- The complainant did not contact an EEO Counselor within forty-five (45) days of the discriminatory event or within 45 days of the effective date of the personnel action, 29 C.F.R. § 1614.105(a)(1), and the complainant did not show that the 45-day contact period should be extended pursuant to 29 C.F.R. § 1614.105(a)(2). See, for example, Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988) (reasonable suspicion standard used to determine when the 45-day limitation period begins; time limit is not triggered until the complainant reasonably suspects discrimination, but before all of the facts that support the charge of discrimination have become apparent). An agency may be barred from dismissing a complaint on timeliness grounds where:
- (1) the agency could not establish that the complainant was notified of the time limits and was otherwise aware of them, or did know and reasonably should have known that the discriminatory practice or personnel action occurred or that despite due diligence was prevented by circumstances beyond his/her control from contacting an EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission; or
- (2) the complainant contends that the claim is a part of a pattern of discrimination or establishes that there are other equitable circumstances that mitigate untimely contact. Time limits are subject to waiver, estoppel, and equitable tolling under 29 C.F.R. § 1614.604(c).
- Abuse of process is defined as a clear pattern of misuse of the process for ends other than that which it was designed to accomplish. SeeBuren v. U.S. Postal Service, EEOC Request No. 05850299 (Nov. 18, 1985); Kleinman v. U.S. Postal Service, EEOC Appeal No. 01943637 (September 22, 1994); Sessoms v. U.S. Postal Service, EEOC Appeal No. 01973440 (June 11, 1998). The Commission has a strong policy in favor of preserving a complainant's EEO rights whenever possible. The occasions in which application of the standards are appropriate must be rare, because of the strong policy in favor of preserving a complainant's EEO rights whenever possible. See generallyLove v. Pullman, 404 U.S. 522 (1972); Wrenn v. Equal Employment Opportunity Commission, EEOC Appeal No. 01932105 (Aug. 19, 1993). Therefore, such dismissals must be taken only in cases where there is a clear misuse or abuse of the administrative process.
- In order to determine whether a complaint, or a number of consolidated complaints, should be dismissed for this reason under 29 C.F.R. § 1614.107(a)(9), the agency or Administrative Judge must strictly apply the criteria established by the Commission on this issue. [5] This requires an analysis of whether the complainant evidences an ulterior purpose to abuse or misuse the EEO process. Agencies are cautioned that numerous complaint filings alone is not a sufficient basis for determining that there has been an abuse of the process. However, multiple filings on the same issues, lack of specificity in the allegations, and the filing of complaints on allegations previously raised, may be considered in deciding whether a complainant has engaged in a pattern of abuse of the EEO process. All pending complaints from a complainant which satisfy these criteria should be consolidated for dismissal under this section.
- Cases in which the Commission has found an abuse of the EEO process include those where, upon review of the complainant's record, including the number and types of complaints filed, the Commission has concluded that the complainant has pursued a scheme involving the misuse and misapplication of the EEO process for an end other than that which it was designed to accomplish.
- (1) For example, in reviewing a complainant's prior complaints, the Commission has found abuse of process where the complainant presented similar or identical allegations, evidencing a pattern of initiating the complaint process whenever the agency did anything that dissatisfied the complainant. Hooks v. U.S. Postal Service, EEOC Appeal No. 01953852 (Nov. 28, 1995).
- (2) The Commission has also found abuse of process when the complainant presented similar or identical allegations related to the complainant's dissatisfaction with the EEO process itself. Goatcher v. U.S. Postal Service, EEOC Request No. 05950557 (Oct. 18, 1996). The complainant in Goatcher filed numerous complaints concerning the agency's purported denial of access to sufficient equipment and storage for EEO claims, denial of official time for such claims, inadequate EEO counseling, agency monitoring of time spent in the EEO process, and failure to maintain her anonymity during EEO counseling.
- (3) In Sessoms v. U.S. Postal Service, EEOC Appeal No. 01973440 (June 11, 1998), the Commission noted that the appellant was experienced in the EEO process, but that he pursued a clear pattern of abuse of the EEO process by filing numerous frivolous complaints. The Commission noted, "A definite pattern of initiating the complaint machinery with respect to any matter with which appellant was dissatisfied has developed . . . clearly has amounted to an abuse of process." See alsoKessinger v. U.S. Postal Service, EEOC Appeal No. 01976399 (June 8, 1999) (clear pattern of abuse from multiple filings, totaling over 160 complaints and 150 appeals, many of which were duplicate complaints of earlier, dismissed filings; the Commission found the complainant's actions an intentional effort to clog the agency's in-house administrative machinery); Stoyanov v. Dep't. of the Navy, EEOC Appeal Nos. 0120113142, 0120113817, and 0120114019 (Dec. 6, 2011) (clear pattern of abuse from multiple filings many of which concerned selections for positions for which complainant was not eligible to apply).
Example 1 The complainant originally filed a complaint of discrimination in non-selection for promotion. Subsequently, he repeatedly filed complaints of reprisal, alleging that the agency was denying him official time to prepare EEO complaints, denying him the use of facilities and storage space for his EEO materials, providing improper EEO counseling, and unfairly keeping tabs on the amount of official time he was spending on his EEO complaints. Many of the allegations in these complaints were vague, and raised allegations previously raised in earlier complaints. In fact, he had on several occasions copied a previous complaint on which he would write a new date in order to file new complaint. Over the course of several months, he filed a total of 25 complaints in this manner. The agency could consolidate the subsequent complaints and dismiss them under 29 C.F.R. § 1614.107(a) for abuse of process. The complainant had demonstrated a pattern of abuse of the process, involving multiple complaints containing identical or similar allegations. (See, for example, Kessinger v. U.S. Postal Service, EEOC Appeal No. 01976399 (June 8, 1999); Story v. U.S. Postal Service, EEOC Request No. 05970083 (May 22, 1998).)
Example 2 The complainant originally filed a complaint of discrimination in non-selection for promotion. Subsequently she filed a total of 15 complaints, many alleging specific and distinct acts of reprisal for her prior EEO activity. Based on the number of complaints alone, the agency attempted to dismiss them all for abuse of process. There was insufficient evidence to dismiss the complaints for abuse of process. Evidence of numerous complaint filings, in and of itself, is not a sufficient basis for determining that there has been an abuse of the process. In this case, there was no evidence that the complainant's ulterior purpose was to abuse the EEO process, or that she was misusing the process for ends other than that which it was designed to accomplish. It may be appropriate, however, for the agency to consolidate the individual complaints for processing. (See, for example, Manley v. Dep't. of the Air Force, EEOC Appeal No. 01975901 (May 29, 1998); and Donnelly v. Dep't. of Energy, EEOC Appeal No. 01972171 (Nov. 17, 1997) for decisions rejecting agency contentions of abuse of process.)
B. Dismissals that Generally Occur after the Agency Accepts the Complaint Based on Complainant's Actions or Inactions
- The Complainant Cannot Be Located - 29 C.F.R. § 1614.107(a)(6) The regulations permit dismissal where the complainant cannot be located. The provision requires that the agency make reasonable efforts to locate the complainant and inform the complainant that s/he must respond to the agency's notice of proposed dismissal within fifteen (15) days sent to his/her last known address. A matter may not be "dismissed" under this section until after the complaint has been filed. SeeClairborne v. Dep't. of the Air Force, EEOC Appeal No. 01972713 (Mar. 19, 1998).
- The Complainant Failed to Respond or Proceed in a Timely Fashion-29 C.F.R. § 1614.107(a)(7) The regulations permit dismissal where the complainant has failed to respond to a written "request to provide relevant information or to otherwise proceed" within 15 days of receipt, provided that the request contained notice of the proposed dismissal and further provided that there is otherwise insufficient available information to adjudicate the claim. The regulation further states that an agency may not dismiss on this basis where the record includes sufficient information to issue a decision. SeeDelancy v. U.S. Postal Service, EEOC Appeal No. 0120111686 (Mar. 13, 2012). The Commission also has held that the regulation is applicable only in cases where there is a clear record of delay or contumacious conduct by the complainant. SeeMartinez v. U.S. Postal Service, EEOC Appeal No. 0120113028 (Nov. 2, 2011) (dismissal of complaint for failure to cooperate was improper where there was insufficient evidence to support a conclusion that complainant purposely engaged in delay or contumacious conduct, and there was sufficient information in the record to have permitted the agency to continue the investigation, including extensive information as to the alleged discriminatory action and the responsible officials).
C. Processing of Partially Dismissed Complaints
There is no immediate right to appeal a partial dismissal of a complaint. Where an agency believes that some but not all of the claims in a complaint should be dismissed for the reasons contained in 29 C.F.R. § 1614.107(a), the agency must notify the complainant in writing of its determination, set forth its rationale for that determination, and notify the complainant that the allegations will not be investigated. The agency must place a copy of the notice in the investigative file. The agency should advise the complainant that an Administrative Judge shall review its dismissal determination if s/he requests a hearing on the remainder of the complaint, but the complainant may not appeal the dismissal until a final action is taken by the agency on the remainder of the complaint. See 29 C.F.R. § 1614.107(b).
- Where a Hearing Is Requested If the complainant requests a hearing from an Administrative Judge, the Administrative Judge will evaluate the agency's reasons for believing that a portion of the complaint met the standards for dismissal before holding the hearing. If the Administrative Judge believes that all or part of the agency's reasons are not well taken, the entire complaint or all of the portions not meeting the standards for dismissal will continue in the hearing process. The parties may conduct discovery to develop the record for all portions of the complaint continuing in the hearing process. The Administrative Judge's decision on the partial dismissal will become part of the Administrative Judge's final decision on the complaint and may be appealed by either party after final action is taken on the complaint.
- Where a Final Decision by the Agency Is Requested Where a complainant requests a final decision by the agency without a hearing, the agency will issue a decision addressing all claims in the complaint, including its rationale for dismissing claims, if any, and its findings on the merits of the remainder of the complaint. The complainant may appeal the agency's decision, including any partial dismissals, to the Commission. Agency decisions shall include the following:
- findings of fact and conclusions of law on the merits of each issue in the complaint;
- appropriate remedies and relief in accordance with subpart E of part 1614 when discrimination is found;
- notice of right to appeal to the Commission (with EEOC Form 573, Notice of Appeal/Petition attached), unless the complaint involves a mixed case, where the agency should provide notice of right to appeal to the MSPB (not the Commission) within thirty (30) days of receipt of the agency final decision;
- notice of right to file a civil action in a U.S. District Court;
- the name of the proper defendant in any such lawsuit; and
- the applicable time limits for appeals and lawsuits.
D. Allegations of Dissatisfaction Regarding Processing of Pending Complaints
- If a complainant is dissatisfied with the processing of his/her pending complaint, whether or not it alleges prohibited discrimination as a basis for dissatisfaction, including that agency counsel/representatives improperly interfered during the investigation of the complaint, s/he should be referred to the agency official responsible for the quality of complaints processing. Agency officials should earnestly attempt to resolve dissatisfaction with the complaints process as early and expeditiously as possible.
- The agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the agency's reason(s) for not taking any action.
- A complainant must always raise his/her concerns first with the agency, in the above manner. However, in cases where the complainant's concerns have not been resolved informally with the agency, the complainant may present those concerns to the Commission at either of the following stages of processing:
- Where the complainant has requested a hearing, to the Commission's Administrative Judge when the complaint is under the jurisdiction of the Administrative Judge; or
- Where the complainant has not requested a hearing, to the Commission's Office of Federal Operations (OFO) on appeal.
A complainant must raise any dissatisfaction with the processing of his/her complaint before the Administrative Judge issues a decision on that complaint, the agency takes final action on the complaint, or either the Administrative Judge or the agency dismisses the complaint. The complainant has the burden of showing improper processing. No concerns regarding improper processing raised after a decision will be accepted by the agency, the Administrative Judge, or OFO.
Where the Administrative Judge or OFO finds that an agency has improperly processed the original complaint and that such improper processing has had a material effect on the processing of the original complaint, the Administrative Judge or OFO may impose sanctions on the agency as deemed appropriate. For example, where the complainant asserts that the agency's investigation of the complaint was improper, the Administrative Judge may determine whether the complainant has properly characterized the investigation and whether the agency's failure properly to investigate the complaint had a material effect on the processing of the complaint. Or, for example, where the complainant asserts that agency counsel or representatives improperly directed, or interfered with, the investigation of the complaint, the Administrative Judge may determine whether the Agency did, in fact, interfere in the investigation, and whether such interference so undermined the neutrality of the investigation that it materially affected the processing of the complaint. If the Administrative Judge finds that the processing of the complainant's complaint was materially affected by the agency's actions, the Administrative Judge shall issue an appropriate order addressing the deficiencies in the investigation. If the Administrative Judge finds that although the agency's actions were inconsistent with its requirements under the 29 C.F.R. Part 1614 regulations, but had no material effect on the processing of the complaint, the Administrative Judge, in the exercise of his/her discretion, may suggest that the complainant submit a letter to the following Commission office for consideration regarding the agency's conduct:
Equal Employment Opportunity Commission
Office of Federal Operations
Federal Sector Programs
131 M Street, NE
Washington, DC 20507Electronic submission may be made using email transmission of documents to federalsectoreeo@eeoc.gov or by using the Commission's electronic document submission portal.
Where the complainant contends that an agency improperly denied him/her official time and the Administrative Judge or OFO finds in the complainant's favor, the Administrative Judge or OFO may order the agency to restore such personal leave as the complainant may have used in lieu of official time.
V. CONDUCTING THE INVESTIGATION
A. Agency Retains Responsibility
Agencies are responsible for conducting an appropriate investigation of complaints filed against them. An agency may contract out an investigation or may arrange for another agency to conduct the investigation, but the agency remains responsible for the content and timeliness of the investigation.
B. Investigations Must Be Timely Completed
Investigations must be completed within 180 days of filing a complaint or within the time period contained in an order from the Office of Federal Operations to investigate a complaint following an appeal from a dismissal, unless the EEO Director or designee and the complainant agree in writing to an extension of not more than an additional ninety (90) days. Where a complaint has been amended or consolidated with another complaint, the investigation must be completed within the earlier of 180 days after the filing of the last complaint or not later than 360 days after the filing of the original complaint. A complainant has the right to file a civil action or request a hearing, even in the case of consolidated complaints, after 180 days have passed since the filing of the original complaint, even if the agency's investigation has not been completed.
Agencies are required to complete investigations within the earlier of 180 days after filing last complaint or 360 days after the filing of the original complaint. Regardless of amendment of or consolidation of complaints, the investigation shall be complete in not more than 360 days.
For example, if a complainant amends a complaint or files another complaint the agency will consolidate on day 179 of the originally filed complaint, and then the investigation must be complete by the 359th day.
If the complainant wants to add another amendment on the 358th day of the investigation, the agency will have only 2 days to investigate that amendment if the agency is unable to conduct an impartial and appropriate investigation in 2 days it should not consolidate or accept the amendment; rather, the agency should advise the complainant to seek counseling on the newest matter and process it as a new complaint.
C. Failure to Complete Investigation within Time Limit
If the investigation is not completed within the 180-day time limit, the agency must send a notice to complainant informing him/her that the investigation is not complete, providing an estimated date by which it will be complete and explaining that s/he has a right to request a hearing from a Commission Administrative Judge or to file a civil action in the appropriate U.S. District Court. The notice must be in writing, must describe the hearing process including some explanation of discovery and burdens of proof, and must acknowledge that its issuance does not bar complainant from seeking sanctions. A sample notice is provided at Appendix K.
D. What Must Be Done for an Investigation to Be Considered Appropriate
A timely completed investigation means that within the applicable time period the agency must complete several actions:
- The complaint must be appropriately investigated in a manner consistent with Chapter 6 of this Management Directive. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.
- Copies of the investigative file, including a summary of the investigation must be provided to the complainant(s) [10] ; and
- The agency must give complainant a notice of his/her right to request a hearing (if it is not a mixed case), within 30 days from receipt of the investigative file, , or of the right to request a final action by the agency pursuant to 29 C.F.R. § 1614.110.
VI. FINAL ACTIONS
There are two types of final actions by agencies. One is a final action by an agency following a decision by an Administrative Judge. The other is a final action in all other circumstances.
A. Final Action by Agency Following an Administrative Judge's Decision
When an Administrative Judge issues a decision under 29 C.F.R. §§ 1614.109 (b), (g), or (i), or § 1614.204(d)(7), the agency shall take final action on the complaint by issuing an order within forty (40) days of the date of its receipt of the Administrative Judge's decision. The agency's final order shall inform the complainant as to whether the agency will fully implement that decision. The term "fully implement" means that the agency adopts without modification the decision of the Administrative Judge. The agency's final order shall further inform the complainant of his/her right to file an appeal with the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in such appeal or civil action, and the applicable time limits for such appeals or civil actions. If the agency's final order does not fully implement the decision of the Administrative Judge, the agency shall file an appeal with the Commission in accordance with 29 C.F.R. § 1614.403, appending a copy of its appeal to the final order, simultaneously with its issuance of a decision to the complainant. A copy of EEOC Form 573, Notice of Appeal/Petition - Complainant, shall be attached to the final order.
When an Administrative Judge issues a decision under 29 C.F.R. § 1614.204(j), the agency shall take final action on the complaint by issuing an order within sixty (60) days of the date of its receipt of the Administrative Judge's decision. The agency's final order shall inform the class agent as to whether the agency will fully implement that decision. The term "fully implement" means that the agency adopts without modification the decision of the Administrative Judge. The agency's final order further shall inform the class agent of his/her right to file an appeal with the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in such appeal or civil action, and the applicable time limits for such appeals or civil actions. If the agency's final order does not fully implement the decision of the Administrative Judge, the agency shall file an appeal with the Commission in accordance with 29 C.F.R. § 1614.403, appending a copy of its appeal to the final order, simultaneously with its issuance of a decision to the class agent. A copy of EEOC Form 573, Notice of Appeal/Petition, shall be attached to the final order.
B. Final Actions in All Other Circumstances
When an agency dismisses an entire complaint under 29 C.F.R. § 1614.107(a), receives a request for an immediate final decision, or does not receive a reply to the notice issued under 29 C.F.R. § 1614.108(f), the agency will take final action by issuing a final decision. The final decision consists of findings by the agency on the merits of each claim in the complaint, or, as appropriate, the rationale for dismissing any claims in the complaint and, when discrimination is found, appropriate remedies, and relief in accordance with subpart E of Part 1614. The agency will issue the final decision within sixty (60) days of receiving notification that a complainant has requested an immediate final decision from the agency, or within 60 days of the end of the thirty (30)-day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested a hearing or a decision. The final decision shall contain notice of the right to appeal the final action to the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits. A copy of EEOC Form 573, Notice of Appeal/Petition, shall be attached to the final decision/determination.
[2] See, for example, Reid v. Dep't. of Commerce, EEOC Request No. 05970705 (Apr. 22, 1999); Ferguson v. Dep't. of Justice, EEOC Request No. 05970792 (Mar. 30, 1999); Manalo v. Dep't. of the Navy, EEOC Appeal Nos. 01960764 and 01963676 (Nov. 5, 1996), request for reconsideration denied, EEOC Request No. 05970254 (May 29, 1998).
[3] Note that technical amendments to a complaint, such as changing the name of the agency head, should be handled quickly and without adding additional case processing time.
[4] Through mandatory consolidation, the Commission seeks to address the situation where a single complainant has multiple complaints pending against an agency. Even if the complaints are unrelated, their resolution in a single proceeding may make better use of agency and Commission resources.
[5] The Commission retains the authority on appeal to protect its administrative processes from abuse by either party.
[6] In that case, an individual complaint will be subsumed under the class complaint. See Chapter 8 Section III of this Management Directive for detailed information on when a case should be subsumed.
[7] An agency cannot deny a complainant his statutory and regulatory right to file an EEO complaint because the union exercised its right to file its own grievance pursuant to the terms of a Collective Bargaining Agreement. See Callahan v. Dep't. of the Interior, EEOC Appeal No. 0120110309 (Jan. 5, 2012) (complainant stated that the union filed a grievance without his knowledge and there was no evidence in the record that complainant was involved in filing the grievance); see also Cate v. Dep't. of the Army, EEOC Appeal No. 0120110083 (Nov. 21, 2011).
[8] Dismissal of allegedly retaliatory proposals and other preliminary steps may be appropriate under 29 C.F.R. § 1614.107(a)(1) if the alleged retaliatory actions are not "materially adverse," that is, would not dissuade a reasonable employee in complainant's circumstances from engaging in protected activity. See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).
[9] A different situation is presented where an agency unilaterally and unconditionally promises in writing to provide the full and complete remedy as defined by the Administrative Judge. Although the complaint is Amoot@ in the sense that the guarantee of complete relief completely and irrevocably eradicates the effects of the alleged violation, the Administrative Judge will not dismiss the complaint as moot, but will issue an order determining the appropriate remedy. The purpose of this requirement is to ensure that the complainant will be able to seek enforcement of the agency's agreement to provide full relief should the agency fail to do so. See Chapter 7, Section III.D.15 of this Management Directive.
[10] See Chapter 6 of this Management Directive for the nature and content of an investigative summary.
