APPENDIX II FEDERAL SECTOR EEO COMPLAINT PROCESSING PROCEDURES

A. Contact EEO Counselor

Aggrieved persons who believe they have been discriminated against must contact an agency EEO counselor prior to filing a formal complaint. The person must initiate counselor contact within 45 days of the matter alleged to be discriminatory. 29 C.F.R. Section 1614.105(a)(1). This time limit shall be extended where the aggrieved person shows that: he or she was not notified of the time limits and was not otherwise aware of them; he or she did not and reasonably should not have known that the discriminatory matter occurred; despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits. 29 C.F.R. Section 1614.105(a)(2).

B. EEO Counseling

EEO counselors provide information to the aggrieved individual concerning how the federal sector EEO process works, including time frames and appeal procedures, and attempt to informally resolve the matter. At the initial counseling session, counselors must advise individuals in writing of their rights and responsibilities in the EEO process, including the right to request a hearing before an EEOC Administrative Judge or an immediate final decision from the agency following its investigation of the complaint. Individuals must be informed of their right to elect between pursuing the matter in the EEO process under part 1614 and a grievance procedure (where available) or the Merit Systems Protection Board appeal process (where applicable). The counselor must also inform the individuals of their right to proceed directly to court in a lawsuit under the Age Discrimination in Employment Act or the Equal Pay Act, of their duty to mitigate damages, and that only claims raised in pre-complaint counseling or claims like or related to those raised in counseling may be alleged in a subsequent complaint filed with the agency. 29 C.F.R. Section 1614.105(b)(1).

Counseling must be completed within 30 days of the date the aggrieved person contacted the agency's EEO office to request counseling. If the matter is not resolved in that time period, the counselor must inform the individual in writing of the right to file a discrimination complaint. This notice ("Notice of Final Interview") must inform the individual that a complaint must be filed within 15 days of receipt of the notice, identify the agency official with whom the complaint must be filed, and of the individual's duty to inform the agency if he or she is represented. 29 C.F.R. Section 1614.105(d). The 30-day counseling period may be extended for an additional 60 days: (1) where the individual agrees to such extension in writing; or (2) where the aggrieved person chooses to participate in an ADR procedure. If the claim is not resolved before the 90^th day, the Notice of Final Interview described above must be issued to the individual. 29 C.F.R. Section 1614.105(e), (f). When a complaint is filed, the EEO counselor must submit a written report to the agency's EEO office concerning the issues discussed and the actions taken during counseling. 29 C.F.R. Section 1614.105(c).

C. Alternative Dispute Resolution (ADR)

Beginning January 1, 2000, all agencies were required to establish or make available an ADR program. Such program must be available for both the pre-complaint process and the formal complaint process. 29 C.F.R. Section 1614.102(b)(2). At the initial counseling session, counselors must advise individuals that, where an agency agrees to offer ADR in a particular case, the individual may choose between participation in the ADR program and EEO counseling. 29 C.F.R. Section 1614.105(b)(2). As noted above, if the matter is not resolved in the ADR process within 90 days of the date the individual contacted the agency's EEO office, a Notice of Final Interview must be issued to the individual giving him or her the right to proceed with a formal complaint.

D. Complaints

A complaint must be filed with the agency that allegedly discriminated against the complainant within 15 days of receipt of the Notice of Final Interview. The complaint must be a signed statement from the complainant or the complainant's attorney, containing the complainant's (or representative's) telephone number and address, and must be sufficiently precise to identify the complainant and the agency, and describe generally the action or practice which forms the basis of the complaint. 29 C.F.R. Section 1614.106.

A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. After requesting a hearing, a complainant may file a motion with the AJ to amend a complaint to include issues or claims like or related to those raised in the complaint. 29 C.F.R. Section 1614.106(d).

The agency must acknowledge receipt of the complaint in writing and inform the complainant of the date on which the complaint was filed, of the address of the EEOC office where a request for a hearing should be sent, that the complainant has the right to appeal the agency's final action or dismissal of a complaint, and that the agency must investigate the complaint within 180 days of the filing date. The agency's acknowledgment must also advise the complainant that when a complaint has been amended, the agency must complete the investigation within the earlier of: (1) 180 days after the last amendment to the complaint; or (2) 360 days after the filing of the original complaint. A complainant may request a hearing from an EEOC AJ on the consolidated complaints any time after 180 days from the date of the first filed complaint. 29 C.F.R. Section 1614.106(e).

E. Dismissals of Complaints

Prior to a request for a hearing, in lieu of accepting a complaint for investigation, an agency may dismiss an entire complaint for any of the following reasons: (1) failure to state a claim, or stating the same claim that is pending or has been decided by the agency or the EEOC; (2) failure to comply with the time limits; (3) filing a complaint on a matter that has not been brought to the attention of an EEO counselor and which is not like or related to the matters counseled; (4) filing a complaint which is the basis of a pending civil action, or which was the basis of a civil action already decided by a court; (5) where the complainant has already elected to pursue the matter through either the negotiated grievance procedure or in an appeal to the Merit Systems Protection Board; (6) where the matter is moot or merely alleges a proposal to take a personnel action, unless the complaint alleges the proposal or preliminary step is retaliatory; (7) where the complainant cannot be located; (8) where the complainant fails to respond to a request to provide relevant information; (9) where the complaint alleges dissatisfaction with the processing of a previously filed complaint; (10) where the complaint is part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination. 29 C.F.R. Section 1614.107.

If an agency believes that some, but not all, of the claims in a complaint should be dismissed for the above reasons, it must notify the complainant in writing of the rationale for this determination, identify the allegations which will not be investigated, and place a copy of this notice in the investigative file. This determination shall be reviewable by an EEOC AJ if a hearing is requested on the remainder of the complaint, but is not appealable until final action is taken by the agency on the remainder of the complaint. 29 C.F.R. Section 1614.107(b).

F. Investigations

Investigations are conducted by the respondent agency. The agency must develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint. An appropriate factual record is defined in the regulations as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. 29 C.F.R. Section 1614.108(b).

The investigation must be completed within 180 days from the filing of the complaint.[21] A copy of the investigative file must be provided to the complainant, along with a notification that, within 30 days of receipt of the file, the complainant has the right to request a hearing and a decision from an EEOC AJ or may request an immediate final decision from the agency. 29 C.F.R. Section 1614.108(f). Where an agency is unable to complete the investigation within the prescribed timeframes, it must issue a written notice to complainant informing that the investigation is not complete, an estimated time it believes the investigation will be complete and explain that complainant may request a hearing or file a civil action in an appropriate US District Court if s/he does not wish to wait for the agency to complete its investigation. 29 C.F.R. Section 1614.108(g)

An agency may make an offer of resolution to a complainant who is represented by an attorney at any time after the filing of a complaint, but not later than the date an AJ is appointed to conduct a hearing. An agency may make an offer of resolution to a complaint, represented by an attorney or not, after the parties have received notice that an administrative judge was appointed to conduct a hearing, but not later than 30 days prior to a hearing.

Such offer of resolution must be in writing and include a notice explaining the possible consequences of failing to accept the offer. If the complainant fails to accept the offer within 30 days of receipt, and the relief awarded in the final decision on the complaint is not more favorable than the offer, then the complainant shall not receive payment from the agency of attorney's fees or costs incurred after the expiration of the 30-day acceptance period. 29 C.F.R. Section 1614.109(c).

G. Hearings

Requests for a hearing must be sent by the complainant to the EEOC office indicated in the agency's acknowledgment letter, with a copy to the agency's EEO office. Within 15 days of receipt of the request for a hearing, the agency must provide a copy of the complaint file to EEOC. The EEOC will then appoint an AJ to conduct a hearing. 29 C.F.R. Section 1614.108(h).

Prior to the hearing, the parties may conduct discovery. The purpose of discovery is to enable a party to obtain relevant information for preparation of the party's case. Each party initially bears their own costs for discovery. For a more detailed description of discovery procedures, see EEOC Management Directive 110, Chapter 6.

Agencies provide for the attendance of all employees approved as witnesses by the AJ. Hearings are considered part of the investigative process, and are closed to the public. The AJ conducts the hearing and receives relevant information or documents as evidence. The hearing is recorded and the agency is responsible for paying for the transcripts of the hearing. Rules of evidence are not strictly applied to the proceedings. If the AJ determines that some or all facts are not in genuine dispute, he or she may limit the scope of the hearing or issue a summary judgment.

An EEOC AJ may dismiss a complaint for any of the reasons set out above under Dismissals or the AJ must conduct the hearing and issue a decision on the complaint within 180 days of receipt by the AJ of the complaint file from the agency. 29 C.F.R. Section 1614.109(b). The AJ will send copies of the hearing record, the transcript and the decision to the parties. If an agency does not issue a final order within 40 days of receipt of the AJ's decision, then the decision becomes the final action by the agency in the matter. 29 C.F.R. Section 1614.109(i).

H. Final Action by Agencies

When an AJ issues a decision (either a dismissal, a summary judgment decision or a decision following a hearing), the agency must take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and the AJ's decision. The final order must notify the complainant whether or not the agency will fully implement the decision of the AJ, and shall contain notice of the complainant's right to appeal to EEOC or to file a civil action. If the final order does not fully implement the decision of the AJ, the agency must simultaneously file an appeal with EEOC and attach a copy of the appeal to the final order. 29 C.F.R. Section 1614.110(a).

When an AJ does not issue a decision (i.e., when an agency dismisses an entire complaint under 1614.107, receives a request for an immediate final decision, or does not receive a reply to the notice providing the complainant the right to either request a hearing or an immediate final decision), the agency must take final action by issuing a final decision. The agency's final decision will consist of findings by the agency on the merits of each issue in the complaint. Where the agency has not processed certain allegations in the complaint for procedural reasons set out in 29 C.F.R. Section 1614.107, it must provide the rationale for its decision not to process the allegations. The agency's decision must be issued within 60 days of receiving notification that the complainant has requested an immediate final decision. The agency's decision must contain notice of the complainant's right to appeal to the EEOC, or to file a civil action in federal court. 29 C.F.R. Section 1614.110(b).

I. Appeals to the EEOC

Several types of appeals may be brought to the EEOC. A complainant may appeal an agency's final action or dismissal of a complaint within 30 days of receipt. 29 C.F.R. Sections 1614.401(a), 1614.402(a). A complainant may also appeal to the EEOC for a determination as to whether the agency has complied with the terms of a settlement agreement or decision. 29 C.F.R. Section 1614.504(b). A grievant may appeal the final decision of the agency, arbitrator or the FLRA on a grievance when an issue of employment discrimination was raised in the grievance procedure. 29 C.F.R. Section 1614.401(d). If the agency's final action and order do not fully implement the AJ's decision, the agency must appeal to the EEOC. 29 C.F.R. Section 1614.110(a); 29 C.F.R. Section 1614.401(b).

If the complaint is a class action, the class agent or the agency may appeal an AJ's decision accepting or dismissing all or part of the class complaint. A class agent may appeal an agency's final action or the agency may appeal the AJ's decision on a class complaint. A class member may appeal a final decision on an individual claim for relief pursuant to a finding of class-wide discrimination. Finally, either the class agent or the agency may appeal from an AJ decision on the adequacy of a proposed settlement of a class action. 29 C.F.R. Section 1614.401(c).

Appeals must be filed with EEOC's Office of Federal Operations (OFO). Any statement or brief on behalf of a complainant in support of an appeal must be submitted to OFO within 30 days of filing the notice of appeal. Any statement or brief on behalf of the agency in support of its appeal must be filed within 20 days of filing the notice of appeal. An agency must submit the complaint file to OFO within 30 days of initial notification that the complainant has filed an appeal or within 30 days of submission of an appeal by the agency. Any statement or brief in opposition to an appeal must be submitted to OFO and served on the opposing party within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal has been filed, within 60 days of receipt of the appeal. 29 C.F.R. Section 1614.403. Federal agencies must submit all case related documentation to EEOC in an acceptable digital format and complainants are encouraged to do so. 29 C.F.R. Section 1614.403(g). EEOC has the authority to draw adverse inferences against a party failing to comply with its appeal procedures or requests for information. 29 C.F.R. Section 1614.404(c). The decision on an appeal from an agency's final action is based on a de novo review, except that the review of the factual findings in a decision by an AJ following a hearing is based on a substantial evidence standard of review. 29 C.F.R. Section 1614.405(a).

A party may request that EEOC reconsider its decision within 30 days of receipt of the Commission's decision. Such requests are not a second appeal, and will be granted only when the previous EEOC decision involved a clearly erroneous interpretation of material fact or law; or when the decision will have a substantial impact on the policies, practices or operations of the agency. 29 C.F.R. Section 1614.405(b). The EEOC's decision will be based on a preponderance of the evidence. The decision will also inform the complainant of his or her right to file a civil action.

J. Civil Actions

Prior to filing a civil action under Title VII of the Civil Rights Act of 1964 or the Rehabilitation Act of 1973, a federal sector complainant must first exhaust the administrative process set out at 29 C.F.R. Part 1614. "Exhaustion," for the purposes of filing a civil action, may occur at different stages of the process. The regulations provide that civil actions may be filed in an appropriate federal court: (1) within 90 days of receipt of the final action where no administrative appeal has been filed; (2) after 180 days from the date of filing a complaint if an administrative appeal has not been filed and final action has not been taken; (3) within 90 days of receipt of EEOC's final decision on an appeal; or (4) after 180 days from the filing of an appeal with EEOC if there has been no final decision by the EEOC. 29 C.F.R. Section 1614.407.

Under the Age Discrimination in Employment Act (ADEA), an individual may proceed directly to federal court after giving the EEOC notice of intent to sue. 29 C.F.R. Section 1614.201. An ADEA complainant who initiates the administrative process in 29 C.F.R. Part 1614 may also file a civil action within the time frames noted above. 29 C.F.R. Section 1614.407.

Under the Equal Pay Act, an individual may file a civil action within 2 years (3 years for willful violations), regardless of whether he or she has pursued an administrative complaint. 29 C.F.R. Section 1614.408. Filing a civil action terminates EEOC processing of an appeal. 29 C.F.R. Section 1614.409.

K. Class Complaints

Class complaints of discrimination are processed differently from individual complaints. See 29 C.F.R. Section 1614.204. The employee or applicant who wishes to file a class complaint must first seek counseling and be counseled, just like an individual complaint. However, once counseling is completed the class complaint is not investigated by the respondent agency. Rather, the complaint is forwarded to the nearest EEOC Field or District Office, where an EEOC AJ is appointed to make a decision as to whether to accept or dismiss the class complaint. The AJ examines the class to determine whether it meets the class certification requirements of numerosity, commonality, typicality and adequacy of representation. The AJ may issue a decision dismissing the class because it fails to meet any of these class certification requirements, as well as for any of the reasons for dismissal discussed above for individual complaints.

A class complaint may begin as an individual complaint of discrimination. At a certain point, it may become evident that there are many more individuals than the complainant affected by the issues raised in the individual complaint. EEOC's regulations provide that a complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claims raised in an individual complaint. 29 C.F.R. Section 1614.204(b).

The AJ transmits his or her decision to accept or dismiss a class complaint to the class agent and the agency. The agency must then take final action by issuing a final order within 60 days of receipt of the AJ's decision. The final order must notify the agent whether or not the agency will implement the decision of the AJ. If the agency's final order does not implement the AJ's decision, the agency must simultaneously appeal the AJ's decision to EEOC's OFO. A copy of the agency's appeal must be appended to the agency's final order. 29 C.F.R. Section 1614.204(d)(7).

A dismissal of a class complaint shall inform the class agent either that the complaint is being filed on that date as an individual complaint and processed accordingly, or that the complaint is also dismissed as an individual complaint for one of the reasons for dismissal (discussed in section E, above). In addition, a dismissal must inform the class agent of the right to appeal to EEOC's OFO or to file a civil action in federal court.

When a class complaint is accepted, the agency must use reasonable means to notify the class members of the acceptance of the class complaint, a description of the issues accepted as part of the complaint, an explanation of the binding nature of the final decision or resolution on the class members, and the name, address and telephone number of the class representative. 29 C.F.R. Section 1614.204(e). In lieu of an investigation by the respondent agency, an EEOC AJ develops the record through discovery and a hearing. The AJ then issues a recommended decision to the agency. Within 60 days of receipt of the AJ's recommended decision on the merits of the class complaint, the agency must issue a final decision which either accepts, rejects or modifies the AJ's recommended decision. If the agency fails to issue such a decision within that time frame, the AJ's recommended decision becomes the agency's final decision in the class complaint.

When discrimination is found in the final decision and a class member believes that he or she is entitled to relief, the class member may file a written claim with the agency within 30 days of receipt of notification by the agency of its final decision. The EEOC AJ retains jurisdiction over the complaint in order to resolve disputed claims by class members. The claim for relief must contain a specific showing that the claimant is a class member entitled to relief. EEOC's regulations provide that, when a finding of discrimination against a class has been made, there is a presumption of discrimination as to each member of the class. The agency must show by clear and convincing evidence that any class member is not entitled to relief. The agency must issue a final decision on each individual claim for relief within 90 days of filing. Such decision may be appealed to EEOC's OFO, or a civil action may be filed in federal court. 29 C.F.R. Section 1614.204(l)(3).

A class complaint may be resolved at any time by agreement between the agency and the class agent. Notice of such resolution must be provided to all class members, and reviewed and approved by an EEOC AJ. If the AJ finds that the proposed resolution is not fair to the class as a whole, the AJ will issue a decision vacating the agreement, and may replace the class agent with some other eligible class member to further process the class complaint. Such decision may be appealed to
EEOC. If the AJ finds that the resolution is fair to the class as a whole, the resolution is binding on all class members. 29 C.F.R. Section 1614.204(g).

L. Grievances

Persons covered by collective bargaining agreements which permit allegations of discrimination to be raised in the grievance procedure, and who wish to file a complaint or grievance on an allegation of employment discrimination, must elect to proceed either under the procedures of 29 C.F.R. Part 1614 or the negotiated grievance procedures, but not both. 29 C.F.R. Section 1614.301(a). An election to proceed under Part 1614 is made by the filing of a complaint, and an election to proceed under the negotiated grievance procedures is made by filing a grievance. Participation in the pre-complaint procedures of Part 1614 is not an election of the 1614 procedures. The election requirement does not apply to employees of agencies not covered by 5 U.S.C. Section 7121(d), notably employees of the United States Postal Service.

M. Mixed Case Complaints

Some employment actions which may be the subject of a discrimination complaint under Part 1614 may also be appealed to the Merit Systems Protection Board (MSPB). In such cases, the employee must elect to proceed with a complaint as a "mixed case complaint" under Part 1614, or a "mixed case appeal" before the MSPB. Whichever is filed first is considered an election to proceed in that forum. 29 C.F.R. Section 1614.302.

Mixed case complaints are processed similarly to other complaints of discrimination, with the following notable exceptions: (1) the agency has only 120 days from the date of the filing of the mixed case complaint to issue a final decision, and the complainant may appeal the matter to the MSPB or file a civil action any time thereafter; (2) the complainant must appeal the agency's decision to the MSPB, not the EEOC, within 30 days of receipt of the agency's decision; (3) at the completion of the investigation the complainant does not have the right to request a hearing before an EEOC AJ, and the agency must issue a decision within 45 days. 29 C.F.R. Section 1614.302(d). Individuals who have filed either a mixed case complaint or a mixed case appeal, and who have received a final decision from the MSPB, may petition the EEOC to review the MSPB final decision.

In contrast to non-mixed matters, individuals who wish to file a civil action in mixed-case matters must file within 30 days (not 90) of receipt of: (1) the agency's final decision; (2) the MSPB's final decision; or (3) the EEOC's decision on a petition to review. Alternatively, a civil action may be filed after 120 days from the date of filing the mixed case complaint with the agency or the mixed case appeal with the MSPB if there has been no final decision on the complaint or appeal, or 180 days after filing a petition to review with EEOC if there has been no decision by EEOC on the petition. 29 C.F.R. Section 1614.310.