Chapter 5 AGENCY PROCESSING OF FORMAL COMPLAINTS

Immediately upon receipt of a formal complaint of discrimination, the agency shall acknowledge receipt of the complaint in writing. The acknowledgment letter shall inform the complainant of the date on which the complaint was filed. If the complaint is mailed, the date of filing is the postmark date, not the date the agency received the complaint. Where the matter is appropriate for ADR, the agency may include a notice to that effect in its acknowledgment letter.

Commission regulations require that an EEO Counselor provide both the agency office designated to accept complaints and the complainant with a written report within fifteen (15) days of being advised that the complainant has filed a formal EEO complaint. 29 C.F.R. § 1614.105(c). Agencies thus should immediately notify the EEO Counselor that a complainant has filed a complaint so as to expedite the preparation and delivery of the written report.

Within a reasonable time after receipt of the written EEO Counselor report, the agency should send the complainant a second letter (commonly referred to as an "acceptance" letter), stating the claim(s) asserted and to be investigated. If the second letter's statement of the claim(s) asserted and claim(s) for investigation differs, the letter further shall explain the reasons for the difference, including whether the agency is dismissing a portion of the complaint. The agency shall advise the complainant that s/he may submit a statement to the agency concerning the agency's articulation of the claim, which shall become a part of the complaint file. (Dismissals are governed by 29 C.F.R. § 1614.107(a). Additional dismissal guidance is provided in Section IV of this Chapter of the Management Directive.) The agency shall notify the complainant of a partial dismissal by letter and further inform the complainant that there is no immediate right to appeal the partial dismissal. The agency should advise the complainant that the partial dismissal shall be reviewed either by a Commission Administrative Judge, if the complainant requests a hearing before an Administrative Judge, or by the Commission, if the complainant files an appeal of a final agency action or final agency decision. (See Section IV.C below for further discussion on the requirements of a partial dismissal.)

Unless the complainant states otherwise, copies of the acknowledgment and all subsequent actions on the complaint shall be mailed or delivered to the complainant's representative with a copy to the complainant.

1. To Investigate in a Timely Manner

   The agency is required to investigate the complaint in a timely manner. The investigation must be appropriate, impartial, and completed within 180 days of filing the complaint (as described more fully in Section V.D and in Chapter 6 of this Directive), or within the time period contained in an order from the Office of Federal Operations on an appeal from a dismissal pursuant to 29 C.F.R. § 1614.107(a). The EEO Director or designee and the complainant may agree in writing, consistent with 29 C.F.R. § 1614.108(e), to an extension of not more than ninety (90) days; or within the period of time set forth in 29 C.F.R. §§ 1614.108(e) or 1614.606 if there are multiple complainants with similar allegations of discrimination or complainant has filed multiple complaints which the agency has consolidated. If the agency fails to complete the investigation in 180 days, it shall issue written notice to complainant informing the complainant that it was unable to complete the investigation, the estimated date of completion, and complainant's right to file a civil action or request a hearing. See 29 C.F.R. § 1614.108(g). See Appendix K for a sample notice letter.

   Agencies are required to complete investigations within the earlier of 180 days after the filing of the last complaint or 360 days after the filing of the original complaint. Regardless of amendment 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.

   An investigation is deemed completed when the report of the investigation is served on the complainant in conjunction with the notice of the right to elect either a hearing before a Commission Administrative Judge or a final decision from the agency pursuant to 29 C.F.R. § 1614.108(f).

2. To Process Mixed Cases Timely

   The Commission deems a mixed case complaint timely investigated in the same manner and applying the same time limitations as non-mixed cases. However, if a final decision is not issued on the mixed case complaint within 120 days of filing, the complainant may appeal to the Merit Systems Protection Board (MSPB) at any time thereafter pursuant to MSPB regulation 5 C.F.R. § 1201.154(a) or may file a civil action as provided in 29 C.F.R. § 1614.310(g), but not both. See 29 C.F.R. § 1614.302(d)(1). The complainant is not entitled to a hearing before the Commission on a mixed case. See more instructions for processing these cases in Chapter 4 Section II.

3. Unilateral Extension for Sanitizing Classified Information

   After providing notice to the complainant, the agency may unilaterally extend the time period or any period of extension for no more than thirty (30) days where it must sanitize a complaint file that may contain information classified pursuant to Executive Order 12356 or successor orders as secret in the interest of national defense or foreign policy. 29 C.F.R. § 1614.108(e).

The agency shall provide every complainant in writing notice of all rights and responsibilities enumerated in Chapters 2, 3, and 4 of this Management Directive. This includes:

1. The Right to Request a Hearing

   Except in mixed cases, the complainant has the right to request a hearing before a Commission Administrative Judge after 180 calendar days from the filing of a formal complaint or after completion of the investigation, whichever comes first. 29 C.F.R. § 1614.106(e)(2). Complainants must request a hearing directly from the Commission's field office that has jurisdiction over the geographic area in which the complaint arose, as set forth in Appendix N of this Management Directive. See 29 C.F.R. § 1614.108(g). In an agency's written acknowledgment of receipt of a complaint or an amendment to a complaint, the agency shall advise the complainant of the Commission's office and address where a hearing request is to be sent as well as the agency office to which the copy of the request should be sent. The complainant shall certify to the Administrative Judge that s/he sent a copy of the request to the agency EEO office to the attention of the individual and at the address that the agency previously informed the complainant.

2. The Right to Appeal

   The complainant has the right to appeal a dismissal, final action, or decision. Partial dismissals are not immediately appealable. See 29 C.F.R. §§ 1614.107(b) and 1614.401, and, Section IV.C of this Chapter for further guidance.

   1. 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.

   2. 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).
   3. 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.
3. The Right to File a Civil Action

   The complainant has the right to file a civil action in a U.S. District Court on EEO discrimination claims raised in the administrative process:

   1. Within ninety (90) days of receipt of a final action on an individual or class complaint if no appeal has been filed;
   2. 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;
   3. Within 90 days of receipt of the Commission's final decision on appeal; or
   4. 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.
   5. 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.

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.

1. 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.

2. Often, when an agency identifies each piece of factual evidence (usually constituting a single incident) offered by the complainant as a separate and distinct legal claim, it ignores the complainant's real underlying issue of a pattern of ongoing discrimination.^[2] In contrast, fragmentation rarely occurs when the complainant presents a legal claim based on a single incident (such as a particular selection decision or a termination decision) rather than a series of events.

   In defining a legal claim, the agency must exercise care where a series of incidents offered by a complainant initially seem different from one another.

   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.

   Practice Tip: When defining a claim, two components must be identified. First, the claim must contain a factual statement of the employment practice or policy being challenged. As already discussed, it is critical that EEO Counselors, investigators, and other EEO staff members ensure that they understand the exact nature of the complainant's concerns so that the employment practice is defined broadly enough to reflect any allegation of a pattern of ongoing discrimination. Particular attention should be given to claims involving terms and conditions of employment. In Example 1 above, the employment practice being challenged is: disparate treatment in terms and conditions of employment with regard to time and attendance polices. In Example 2 above, the employment practice is: the creation of a hostile work environment because of sexual harassment. In Example 3 above, the employment practice might be defined as: management's failure to advance the complainant's career to a GS-14 position. The second component of a legal claim is the identification of the basis (because of race, color, national origin, sex, religion, reprisal, age, disability, or genetic information) for a violation of an equal employment statute.

3. Timeliness Issues: One of the reasons the distinction between legal claims and supporting evidence is important is because complainants frequently raise factual incidents that occur outside of the 45-day time period for contacting an EEO Counselor. In general, for a legal claim to be timely raised, at least one of the incidents the complainant cites as evidence in support of his/her claim must have occurred within the 45-day time period for contacting an EEO Counselor. (The usual exceptions should still be made. See Section IV of this Chapter on dismissals.) If the claim itself is timely raised, the question remains as to how the agency is to treat those factual incidents that the complainant cited as evidence in support of his/her claim that occurred outside the 45-day time limit.

   The answer is that an agency must consider, at least as background, all relevant evidence offered in support of a timely raised legal claim, even if the evidence involves incidents that occurred outside the 45-day time limit. This is true of supporting evidence that the complainant offered during EEO counseling as well as later in the investigative stage. During the investigation, the degree to which a certain piece of proffered evidence is relevant to the legal claim will determine what sort of investigation is necessary of that particular piece of evidence. For example, in a non-selection case, a selection decision made long before the one at issue, involving different agency officials, may have little relevance to the current claim. On the other hand, if the selecting official in the most recent non-selection also failed to select the complainant for a similar position six months before, that piece of evidence may be very relevant to the complainant's claim. Investigators should not simply disregard relevant information the complainant provided in support of his/her claim as untimely raised; nor should they send the complainant back to counseling as if the supporting evidence was a new claim to be processed as a separate complaint.

   With regard to the timeliness of a claim of harassment, because the incidents that make up a harassment claim collectively constitute one unlawful employment practice, the claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. Such a claim can include incidents that occurred outside the filing period that the complainant knew or should have known were actionable at the time of their occurrence. See Bulluck v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120114276 (Mar. 14, 2012); Richardson v. U.S. Postal Service, EEOC Appeal No. 0120111122 (Feb. 1, 2012). However, the Supreme Court has held that no recovery is available for discrete acts such as hiring, firing, and promotions that fall outside the filing period, even if they are arguably related to other discriminatory acts that occur within the filing period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). See also EEOC Compliance Manual 915.003, Section 2: "Threshold Issues,"(rev. July 21, 2005). However, as the Court recognized, an employee may use the prior discrete acts as background evidence in support of a timely harassment claim.

   Practice Tip: It is critical that agencies document their actions and the reasons for those actions in the record for Administrative Judge and Commission consideration later in the process. For example, if the agency's investigator decides that a certain factual incident raised by the complainant is of little relevance to his/her claim and, therefore, decides that an investigation of that incident is very minimal, the investigator should document that decision and the reasons for it in the investigative report.

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:

1. provides additional evidence offered to support the existing claim, but does not raise a new claim in and of itself;
2. raises a new claim that is like or related to the claim(s) raised in the pending complaint; or
3. 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.

1. 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).

2. New Incident That Raises a New Claim Like or Related to the Pending Claim

   While a complaint is pending, a complainant may raise a new incident of alleged discrimination that is not part of the existing claim, but may be part of a new claim that is like or related to the pending claim. In deciding if a subsequent claim is "like or related" to the original claim, a determination must be made as to whether the later incident adds to or clarifies the original claim, and/or could have reasonably been expected to grow out of the investigation of the original claim. See Complainant v. Dep't. of the Army, EEOC Appeal No. 0120142480 (Nov. 25, 2014; Scher v. U.S. Postal Service, EEOC Request No. 05940702 (May 30, 1995); Webber v. Dep't. of Health and Human Services, EEOC Appeal No. 01900902 (Feb. 28, 1990).

   In accordance with 29 C.F.R. § 1614.108(f) and guidance set forth in Section II(A)(1) of this Chapter, if the EEO Director or designee concludes that the new incident(s) raises a new claim, but that this new claim is like or related to the claim(s) raised in the pending complaint, the agency must amend the pending complaint to include the new claim. Accordingly, and pursuant to 29 C.F.R. § 1614.106(e), the agency shall acknowledge receipt of an amendment to a complaint in writing and inform the complainant of the date on which the amendment was filed. The EEO Director or designee should also send a copy of the letter to the EEO Investigator who is investigating the complainant's prior complaint with instructions to include the new incident(s) in the investigation.

   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.

   Pursuant to 29 C.F.R. § 1614.106(e)(2), the agency is required to complete its investigation of an EEO complaint within 180 days of the filing of a complaint unless the parties agree in writing to extend the time period. If a complaint is amended, however, this deadline is adjusted so that the agency must complete its investigation within the earlier of 180 days after the last amendment to the complaint or not more than 360 days after the filing of the original complaint.

   Pursuant to 29 C.F.R. § 1614.108(g) the agency is still required to issue a notice to complainant that the investigation is not complete and estimating a time in which it will be complete. A complainant retains the right to request a hearing, even in the case of an amended complaint, after 180 days have passed since the filing of the original complaint, even if the agency's investigation has not been completed. In such a case, an Administrative Judge may develop the record through discovery and the hearing process, or utilize other means within his/her discretion to ensure that the amended complaint is properly addressed.

3. New Incident Raises Claim That Is Not Like or Related to Pending Claim

   In cases where subsequent acts of alleged discrimination do not add to or clarify the original claim, and/or could not have been reasonably expected to grow out of the investigation of the original claim, the later incident should be the subject of a separate EEO complaint. In such cases, fragmented processing of an EEO complaint is not at issue because there are two distinct and unrelated legal claims being alleged.

   If the EEO Director or designee concludes that the new claim raised by the complainant is not like or related to the claim(s) raised in the pending complaint, then the complainant must be advised in writing that s/he should seek EEO counseling on the new claim. The postmark date of the letter (from complainant requesting an amendment) to the EEO Director or designee would be the date for time computation purposes used to determine if initial counselor contact was timely under 29 C.F.R. § 1614.105(b).

   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.

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.

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.

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.

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.

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.

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.

1. Untimely Counseling Contact - 29 C.F.R. § 1614.107(a)(2)
   1. A claim that was not brought to the attention of an EEO Counselor in a timely manner.
   2. 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. (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. (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).
2. Untimely Filing of the Formal Complaint - 29 C.F.R. § 1614.107(a) (2)

   The complainant failed to file a formal complaint within fifteen (15) days of his/her receipt of the EEO Counselor's Notice of Right to File a Formal Complaint in an individual complaint, 29 C.F.R. § 1614.105(d), or in a class complaint, 29 C.F.R. § 1614.204(c). The agency has the burden of proving that the complainant received the notice and that the notice clearly informed the aggrieved person of the 15-day filing time frame. See, for example, Paoletti v. U.S. Postal Service, EEOC Request No. 05950259 (Aug. 17, 1995). This time limit is also subject to waiver, estoppel, and equitable tolling under 29 C.F.R. § 1614.604(c).

3. Failure to State a Claim - 29 C.F.R. § 1614.107(a)(1)

   The complainant failed to state a claim under 29 C.F.R. § 1614.103. This may include a claim that does not allege discrimination on a basis encompassed in one of the statutes applicable to federal sector employees. In determining whether a complaint states a claim, the proper inquiry is whether the conduct if true would constitute an unlawful employment practice under the EEO statutes. Cobb v. Dep't. of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997) (a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief; the trier of fact must consider all of the alleged harassing incidents and remarks and, considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim). See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752-753 (1998) (referencing cases in which courts of appeals considered whether various employment actions were sufficient to state a claim under the civil rights laws). Dismissal for failure to state a claim also may be appropriate where the complainant named the improper agency. See 29 C.F.R. § 1614.106(a).

   An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that s/he was discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or retaliation. The Commission has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't. of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994); see also Wildberger v. Small Business Administration, EEOC Request No. 05960761 (Oct. 8, 1998). An agency is required to address EEO complaints only when filed by an individual who has suffered direct, personal deprivation at the hands of the employer; the agency's act must have caused some concrete effect on the aggrieved person's employment status. Quinones v. Dep't. of Defense, EEOC Request No. 05920051 (Mar. 12, 1992).

   Further, it is inappropriate for an individual to use the EEO process to lodge a collateral attack against another proceeding. For example, see Schneider v. U.S. Postal Service, EEOC Request No. 05A01065 (Aug. 16, 2002)(affirming agency dismissal of complaint alleging discriminatory delay in submission of worker's compensation claim as collateral attack on OWCP claim process); Jones v. Dep't. of the Army, EEOC Request No. 05A00428 (Mar. 1, 2002) (affirming dismissal of complaint regarding polygraph examination as a collateral attack on the agency's internal investigation of disappearance of agency property); or Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993) (holding that discriminatory actions taken to influence the outcome of decision rendered under the negotiated grievance procedure is outside the purview of EEO process). The proper forum to raise these kinds of issues is within the process itself. An agency should dismiss these complaints as failures to state a claim.

   When an individual alleges retaliation in a complaint, they do not need to make a showing of an adverse employment action. See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006); EEOC Compliance Manual 915.003 Section 8-Retaliation II.D.3 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim). The significance of the act of alleged retaliation will often depend upon the particular circumstances. For example, in Isom v. U.S. Postal Service, EEOC Appeal No. 0120113627 (Nov. 7, 2012), the complainant alleged that he was required to perform both forklift and jitney duties. The record revealed that other employees were required to perform either forklift or jitney duties but not both and that the supervisor involved was under pressure to discipline complainant for refusing an assignment even if the discipline was not warranted. The Commission found a viable claim of retaliation was stated and remanded the case to the agency to process.

4. Abuse of Process - 29 C.F.R. § 1614.107(a)(9)

   Section 1614.107(a)(9) of 29 C.F.R. is the appropriate provision under which an agency may dismiss a complaint on the extraordinary grounds of abuse of process.

   1. 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. See Buren 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 generally Love 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.
   2. 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.
   3. 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. (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. (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. (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 also Kessinger 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).
   4. The Commission has stressed in such cases that a party cannot be permitted to utilize the EEO process to circumvent other administrative processes; nor can individuals be permitted to overburden the EEO system, which is designed to protect individuals from discriminatory practices.

      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.)

5. States the Same Claim - 29 C.F.R. §1614.107(a)(1)

   The complaint states the same claim that is pending before or had been decided by the agency or Commission except in those cases where a class action complaint is pending.^[6] The Commission has interpreted this regulation to require that the complaint must set forth the "identical matters" raised in a previous complaint filed by the same complainant, in order for the subsequent complaint to be rejected. Terhune v. U.S. Postal Service, EEOC Request No. 05950907 (July 18, 1997); Russell v. Dep't. of the Army, EEOC Request No. 05910613 (Aug. 1, 1991) (interpreting 29 C.F.R. § 1613.215(a)(1), the predecessor of 29 C.F.R. § 1614.107(a)(1)).

6. Complainant Files a Civil Action - 29 C.F.R. § 1614.107(a)(3)

   The complainant files a civil action concerning the same allegation, at least one hundred eighty (180) days after s/he filed his/her administrative complaint. The requirement in 29 C.F.R. § 1614.409 that the civil action shall be dismissed only if it was filed pursuant to 29 C.F.R. § 1614.408 evidences the intent of the Commission to restrict the dismissals of EEO complaints for filing a civil action to those civil actions which were brought under the statutes enforced by the Commission. Where a complainant has not filed a civil action pursuant to the specific statutes listed in 29 C.F.R. § 1614.408, the complaint may not be dismissed pursuant to 29 C.F.R. § 1614.107(a)(3). See Krumholz v. Dep't. of Veterans Affairs, EEOC Appeal No. 01934799 (Dec. 15, 1993), aff'd, EEOC Request No. 05940346 (Oct. 21, 1994).

7. Issue Has Been Decided - 29 C.F.R. § 1614.107(a)(3)

   The same issue has been decided by a court of competent jurisdiction and the complainant was a party to the lawsuit. Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions. Stromgren v. Dep't. of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't. of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989). The proper inquiry to determine whether dismissal is warranted is whether the issues in the EEO complaint and the civil action are the same, that is, whether the acts of alleged discrimination are identical. Bellow v. U.S. Postal Service, EEOC Request No. 05890913 (Nov. 27, 1989). The factual allegations and not the bases or the precise relief requested should be the crux of the legal analysis.

8. Allegation Raised in Negotiated Grievance Proceeding - 29 C.F.R. § 1614.107(a)(4)

   The complainant has raised the allegation in a negotiated grievance procedure that permits allegations of discrimination, indicating an election to pursue a non-EEO process. Section 1614.301(a) of 29 C.F.R. provides that "a person wishing to file a complaint or a grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both." This subsection also provides that an election to proceed under 1614 is indicated by the "filing of a written complaint," while an election to proceed under a negotiated grievance procedure is indicated by the "filing of a timely written grievance." See Casey v. Dep't. of Veterans Affairs, EEOC Appeal No. 01944605 (Aug. 9, 1995).^[7] The withdrawal of a grievance does not abrogate its effect for purposes of an election. Bracket v. Dep't. of the Air Force, EEOC Request No. 05910383 (Aug. 8, 1991).

9. Appeal Made to MSPB - 29 C.F.R. § 1614.107(a)(4)

   The complainant has elected to appeal the claim to the Merit Systems Protection Board, rather than file a mixed case complaint under 29 C.F.R. § 1614.302.

10. Complaint Alleges a Preliminary Step - 29 C.F.R. § 1614.107(a)(5)

    The complaint alleges that a proposal to take or a preliminary step in taking a personnel action is discriminatory. This provision requires the dismissal of complaints that allege discrimination "in any preliminary steps that do not, without further action, affect the person: for example, progress reviews or improvement periods that are not a part of any official file on the employee." 57 Fed. Reg. 12,643 (Apr. 10, 1992); see, for example, McAlhaney v. U.S. Postal Service, EEOC Request No. 05940949 (July 7, 1995). However, if the complaint alleges that a proposal to take or a preliminary step in taking a personnel action is retaliatory, the complaint should not be dismissed because a proposed action could be considered adverse treatment in the context of reprisal if it is reasonably likely to deter protected activity.^[8] See Brown v. Dep't. of Defense, EEOC Appeal No. 0120103139 (Dec. 8, 2010) (complainant's claim that the agency discriminated against him when it placed him on a performance improvement plan stated a viable claim of retaliation). In addition, if the individual alleges that the preliminary step was part of a pattern of harassing the individual for a prohibited reason, the complaint cannot be dismissed under this section because the preliminary step has already affected the employee. See, for example, Noone v. Central Intelligence Agency, EEOC Request No. 05940422 (Jan. 23, 1995); see also Bennett v. U.S. Postal Service, EEOC Appeal No. 0120111470 (Jan. 5, 2012).

11. Complaint is Moot - 29 C.F.R. § 1614.107(a)(5)

    A complaint may be dismissed as moot where there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. See Wildberger v. Small Business Administration, EEOC Request No. 05960761 (Oct. 8, 1998), (citing County of Los Angeles v. Davis, 440 U.S. 625 (1979)). When such circumstances exist, no relief is available, and there is no need for a determination of the rights of the parties. The Commission has also held, however, that where a complainant has made a timely request for compensatory damages, an agency must address the issue of compensatory damages before it can dismiss a complaint for mootness. See, for example, Salazar v. Dep't. of Justice, EEOC Request No. 05930316 (Feb. 9, 1994).^[9]

12. Dissatisfaction with the Processing of a Complaint - 29 C.F.R. § 1614.107(a)(8)

    The complaint alleges dissatisfaction with the processing of a previously filed complaint. See discussion in Section IV.D of this Chapter of the Management Directive.

1. 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. See Clairborne v. Dep't. of the Air Force, EEOC Appeal No. 01972713 (Mar. 19, 1998).

2. 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. See Delancy 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. See Martinez 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).

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).

1. 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.

2. 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:

   1. findings of fact and conclusions of law on the merits of each issue in the complaint;
   2. appropriate remedies and relief in accordance with subpart E of part 1614 when discrimination is found;
   3. 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;
   4. notice of right to file a civil action in a U.S. District Court;
   5. the name of the proper defendant in any such lawsuit; and
   6. the applicable time limits for appeals and lawsuits.

1. 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.
2. 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.
3. 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:
   1. 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
   2. 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 20507

   Electronic 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.

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.

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.

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.

A timely completed investigation means that within the applicable time period the agency must complete several actions:

1. 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.
2. Copies of the investigative file, including a summary of the investigation must be provided to the complainant(s)^[10]; and
3. 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.

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.

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.

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.