The EEOC has developed a five year strategic plan in which it has outlined five major priorities/strategic goals. One of the major strategic goals is “Access to Justice.”
To that end, the EEOC is concerned about, and decided to undertake a study of agencies’ procedural dismissals of EEO complaints because they believed this was one way in which access to justice was being denied.
FINDINGS OF EEOC STUDY ON PROCEDURAL DISMISSALS
The EEOC conducted a study where they examined 1500 decisions of procedural dismissals. They found that 33% to 40% of these dismissals were revised on appeal and remanded to the agency. Those numbers are only increasing. The EEOC concluded, based on this study, that there is a misunderstanding between the agencies and the EEOC with regard to what is required in order to procedurally dismiss a complaint.
The purpose of yesterday’s brown bag outreach event was to provide clarification and guidance to the agencies on when and on what basis a complaint can be procedural dismissed. One major takeaway for me was that the EEOC is advocating for a very liberal processing of the agencies’ EEO complaints, which is to say, the EEOC does not want these complaints dismissed for relatively minor reasons; and it would prefer that the benefit of the doubt be given to the Complainant, wherever possible.
FAILURE TO STATE A CLAIM
58% of the procedural dismissals that the EEOC studied were on the basis of failure to state a claim. Most of these dismissals are erroneous because of fragmentation of the complaint in hostile work environment type complaints. The EEOC stressed that you have to examine the totality of the circumstances in these cases. Specialist have to take care to review the complainant’s formal complaint as well as the EEO Counselor’s report to get an idea of what is occurring on the complainant’s work environment that would constitute a hostile work environment.
This lead to a very long, in depth and confusing discussion about the whole discrete and indiscrete thing…one of the EEOC panelist stated “there is no such thing as background evidence, it’s all just evidence” with regard to the issue of untimely discrete actions being “background evidence.” But the major takeaway from this discussion is that the EEOC wants to see all of the evidence with regard to these hostile environment cases. Labeling incidents and events as discrete or indiscrete, and determining their timeliness is only an issue with regard to what kind of remedy is available to the Complainant; and so at the accept/dismiss stage, one need not be to concerned about these issues.
Amber’s Personal Commentary: But the specialist asking the questions in the audience seemed to be very confused by exactly what is being required then. I too, felt like the panelist never really cleared up the major question which is how do you deal with determining what is timely and what is not, when you are dealing with a continuing violation that could go back for a number of years. I don’t feel like that question was ever really clearly answered. The overall response from the EEOC panelists was- we want to see everything that could be relevant with regard to these kinds of cases, and it has to be determined on a case by case basis.
Another specialist asked, “Isn’t allowing background evidence or discrete actions to go back years and years and years, unfair?”
The EEOC panelist response to that was, “Not if the events are all connected by a certain person and/or a certain theme.”
Then the specialist said, “But this is unfair because one timely discrete event will allow a complainant who otherwise would be barred from bringing these claims due to the timeliness issue, get all of these claims in by connecting them to the one discrete event. (And it’s true, it happens. I just wrote an acceptance letter that did just that.) Again, the EEOC said, it isn’t unfair because the remedy is going to be limited to whatever is timely….yeah, I guess.
TIMELINESS
25% of the procedural dismissals that the EEOC studied were on the basis of untimeliness. The EEOC explained that the burden is on the agency to ensure that the NRF is received by the complainant in a timely manner. They stated that they would not accept computer generated delivery receipts that just document that the certified item was delivered to a city or town. They must see the documentation that the NRF was signed for and received by the complainant.
Amber’s Personal Commentary: (Interesting because this can be an issue, a lot of times the EEO counselor’s do not include the green card, and don’t know where it is, I’ve found. Sometimes they don’t even send the NRF via certified mail.)
They stated that with constructive notice with regard to timeliness, the agency must have the NO Fear Act training certification or submit an affidavit from management that the EEO posters were up and visible.
PERSONNEL ACTIONS
The EEOC wanted to clarify that with regard to personnel actions, the clock does not begin running on the filing date for the EEO complaint until the effective date of the action, not the date of the proposal.
Beyond Failure to State a Claim and Timeliness, which constitute the basis for most of the dismissals, there were a few other areas were the EEOC expressed concern. They are explored below.
IMPROPER RETALIATION STANDARD
EEOC urges the agencies to remember that there is a lower standard for articulating a claim of retaliation. There does not have to be a personnel action, in order for a complainant to bring a valid retaliation claim but simply, something has to happen that creates a “chilling effect,” that would cause a reasonable person to think twice about coming forward with their EEO issues.
Amber’s Personal Commentary: blah, blah, blah, this was all a review for me since the EEOC pretty much says the same thing about retaliation in the private sector. I get it. The EEOC takes retaliation claims very seriously.
MERITS OF THE CASE
Agencies cannot touch on any of the merits of the claims before they are investigated. This means that you have to view all the facts at this preliminary stage in the light most favorable to the complainant.
Amber’s Personal Commentary: blah, blah, blah, this was all a review for me since we had already gone over this at the ECD retreat; but this is still a confusing area because sometimes you cannot get around the merits.
STANDING
CONTRACTORS
Whether or not a complainant has standing to use the federal EEO process comes up most often with contractors. The EEOC explained that the federal government workforce heavily relies upon contractors and if these contractors are treated as though they are employees, then they do have a right to use the federal EEO process.
What is at issue, primarily, is how much control federal management has over the contractors work experience and environment. Does the federal supervisor determine if the contractor is hired, fired, how their performance is rated, where they work, what kind of equipment they use? If the answers to those questions are yes, then the contractor is an employee with dual employers from the perspective of the EEOC.
They did note that the Supreme Court has taken a different view of this issue, with regard to other statutes and laws; yet the EEOC said, until the Supreme Courts specifically states that contractors are not to be viewed as employees with regard to EEO law, they believe their interpretation of the law on this point is sound.
What the EEOC wants agencies to do with contractors, which is apparently not being done to their satisfaction as the issue stands now, is to determined whether or not the contractor is like and employee, and if that determination is made (which is, they pointed out, fact-finding and a decision has to be reached that is technically on the merits, but that’s okay, because the issue is standing.) In order to determine the issue, a twelve point criteria taken from the Marshall A. Marik v. Department of the Army, EEOC Appeal No. 01A4339 (July 29, 2005) needs to be explored.
Amber’s personal commentary : This is one of those issues that comes up again in the private sector with so many places hiring contract and temporary employees; but it is really a tricky situation to deal with, when you have contractors complaining about fulltime employees. I’ve handled those kinds of complaints. It’s not so simple to deal with in practice, even if you (being in the position of an EEO counselor) try your very best to make sure that the contractors rights are respected.
GRIEVANCES V. THE AGENCIES’ INTERNAL EEO PROCESS
There was also a great deal of confusion around the whole election of forum issue. When can an agency say for sure, to the complainant, you have elected a different forum and you can’t bring your EEO complaint in this forum? The EEOC’s basic response was that if a complainant begins with an administrative grievance and EEO process and/or a negotiated Grievance EEO process, they will have to stay with that forum. However, if they began with the agencies internal EEO process, they will stay in that forum.
Then there was this whole discussion about (concurrent processing?) It was, quite honestly, very confusing to me. One specialist remarked, “It’s a very murky area as to when and whether a complainant can elect a grievance procedure over the EEO process.” I would tend to agree.
COLLATERAL ATTACK
The EEOC ‘s view of the collateral attack issue is that agencies’ use of it is overbroad. If someone references a collective bargaining agreement in their formal complaint, the agency cannot dismiss the complaint because of that reference. The EEOC stated that there was a rumor going around that if “IG” is mentioned in a complaint, it is automatically going to be dismissed on a collateral attack issue. But the EEOC said that is an incorrect assumption because if a complainant says,” my supervisor referred me to the IG in retaliation for filing complaint,” then that is a valid EEO complaint.
Amber’s personal commentary : This is one of those times when you are afraid to ask the question…umm what is the IG, because everyone else is acting like that is oh so obvious…..
In the end, I have to agree with Eleanore, the session with the EEOC confirmed that this group has a really firm handle on what is being required by the EEOC, as well as the rationale behind the requirements. I found most of this to be a review, however it did clarify for me, some of the odd things that I find confusing about this process. For example, I wasn’t clear on what role the EEO counselor is supposed to be serving in the federal sector complaint process, because these reports vary greatly from counselor to counselor. According to the EEOC, they are supposed to be assisting the complainant with clarifying what is or is not an EEO issue and helping them to frame their formal EEO complaint in terms that can be understood and investigated. Some of them did not get that memo…
Employment Complaints Are Us 