Navigating the Federal EEO Process

1. Navigating the Federal EEO Process Presentation by: Joseph A. Salazar, Esq.

2. We will cover: • What is covered by Federal EEO? • Pre-complaint filing • Formal complaint filing • Investigations and Investigators • Final Agency Decisions • Hearings • Nuts and Bolts

3. Statutes covered by Federal EEO • Title VII • Race • Color • National Origin • Sex • Religion • Rehabilitation Act • Age Discrimination in Employment Act (ADEA) • Retaliation – covered under Title VII, ADEA and Rehabilitation Act

4. Agencies Covered by Federal EEO • Pretty much every: • Executive Department • Government Corporation • Independent Establishment - 5 U.S.C. §§ 103, 104 and 105

5. Employees Covered by Federal EEO • Pretty much everyone, except: • Uniformed military personnel (unless person performs both military and civilian duties)

6. How to File a Federal EEO Complaint – Precomplaint Stage • Within 45 calendar daysof the matter alleged to be discriminatory, the federal employee is required to contact an EEO counselor. 29 C.F.R. § 1614.105(a). • If contact is not done within 45 calendar days, an agency is free to reject the complaint. • EEO counselor is there to discuss federal employee’s complaint • EEO counselor shall advise the federal employee about Alternative Dispute Resolution, which must be completed within 90 days of the initial request for counseling.

7. How to File a Federal EEO Complaint – Pre-complaint Stage • If informal counseling is unsuccessful, the EEO counselor shall advise the federal employee of his/her right to file a formal complaint. • This advisement of right must state that the federal employee has 15 calendar daysfrom receipt of the notice to file a formal complaint.

8. How to File a Federal EEO Complaint – Formal Complaint • Within 15 days of receipt of the notice of final interview the federal employee must submit a written complaint to the agency. 29 C.F.R. § 1614.106(b). • Statement of claim(s) should get to the point and should include: • Employee’s name and position • Name of employing agency and location • Brief description of personnel action or incident which forms the basis of the complaint • Basis of discrimination (i.e. race, religion, sex, age) • Date of personnel action or incident • Date employee contacted the EEO counselor • Date the notice of final interview was received • Telephone number and address of the complainant or representative.

9. Framing the Claim(s) is Important!!!! • A properly framed complaint should provide the meat and potatoes of the discriminatory action! • Examples of a bad complaint: • “My boss fired me because I came into work late and other employees can get away with doing the same thing!” • “Other employees called me a name and they just don’t like me because I look better than they do!” • “There was this one time when I complained about the work environment and my employer then demoted me!”

10. Examples of a Proper Complaint • “That on or about October 20, 2010, Complainant was denied a promotional opportunity to a GS-13 position (position #00-044), for which she was otherwise qualified, because of her sex, female.” • “That on or about September 2, 2010, the Agency retaliated against Complainant by terminating his employment after he complained of discriminatory employment practices (his initial complaint of discrimination occurring on August 31, 2010).”

11. What Happens to Poorly Drafted Complaints? • The Agency can dismiss the entire complaint or partially dismiss some of the claims! • Dismissal or partial dismissal can occur because of, among other things: • Complaint fails to state a claim • Complaint fails to comply with applicable time limits • The complainant is part of a clear pattern of misuse of the EEO process

12. Investigation Stage • Once a formal complaint is accepted, the complainant is notified about what claims were accepted. • The agency is then obligated to conduct an investigation into the accepted claims. • If a complainant believes that the accepted claims have been defined improperly, it is at this stage that something must be said… in writing! Saying something now may prove helpful to the complainant later on. • The investigation must be completed within 180 days of the filing of the complaint. A 90-day extension is allowed only upon the agreement of both parties. • In cases of amended complaints, the investigation must be completed within 180 days of the amendment or 360 days, whichever is earlier, from the date of the initial complaint.

13. Role of the Investigator • To be impartial and to develop an appropriate factual record. • An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. • An investigator has the power to: • Gather documentary and testimonial evidence • Administer oaths

14. Post Investigation • Complainant is provide a copy of the Report of Investigation (“ROI) and all documents and statements collected by the investigator. • Complainant is advised that he/she has 30 days to elect to have a hearing or to allow the complaint and investigation go to a Final Agency Decision (“FAD”).

15. To FAD or Not to FAD, is that a question? • Final Agency Decisions are agency decisions based only on the statements and documents provided by the investigator. • FAD Advantages • Typically receive a quicker decision than going to hearing • No Administrative Judge • FAD Disadvantages • The Agency makes the decision • The only items in consideration are those in the file • There is no discovery • FADs typically are found in favor of the Agency • No Administrative Judge

16. How about a side of Hearing with that Complaint? • Hearings are in front of an EEOC Administrative Judge. • Hearing Advantages • Discovery!!!! • Settlement discussions • Ability to present your case/Ability to tear down the other party’s case • Administrative Judges • Hearing Disadvantages • Time consuming – months to years! • Discovery!!!! • Having the other side tear down your case • Administrative Judges

17. Which one? FAD or Hearing? • It depends on the case, resources, and time. Typically: • Agency’s like FADs • Complainants like hearings

18. Nuts & Bolts • Adhere to all timelines/deadlines • Draft an appropriate complaint • Use discovery wisely • Think outside the box