DISCRIMINATION COMPLAINT PROCESS 2 What Is a Complaint of Discrimination? A complaint of discrimination is any allegation that a person has been denied employment, promotion, or training or has been affected in any other condition of employment because of his/her protected status. Example Susan, a female Contract Specialist, GS-12, received an acceptable rating on the technical skills element. The rating official's reason was that Susan had not performed the full range of work necessary to demonstrate "consistent working knowledge" at the fully successful level. Susan believed that it was her supervisor's responsibility to assign her the full range of duties at her level and that she should not be penalized because she did not have the opportunity to perform certain tasks. Susan also believed that her supervisor often made decisions about assignments based on gender. That is, the supervisor tended to give the more challenging assignments to the male specialists and the more routine tasks to the female specialists. She believed that she could support this allegation with specific examples and decided to pursue the matter through the discrimination complaint process. Every employee and applicant for Customs employment has the right to use the discrimination complaint process. Coverage Requirements The employee or applicant must seek EEO counseling within 30 days of the alleged discriminatory act, or within 30 days of discovering the alleged discrimination. Processing The following procedures are used in processing an individual complaint: • The employee contacts the EEO counselor, who has 21 calendar days to attempt to resolve the matter informally with a management official authorized to effect or direct remedial action. • If counseling is not completed in 21 days, the counselor must on the 21st day give written notice of right to file an individual complaint. In certain situations, counseling may continued beyond the 21 days and is concluded by a final interview. • If informal resolution fails, the employee may file an individual formal complaint with the Regional Complaint Center (RCC) within 15 days of the final interview with the counselor. • The RCC decides whether to accept the case for processing. There are very limited grounds for rejection. • The RCC assigns an investigator to the complaint. • An investigation is conducted; the complainant and management official responsible for resolution are given a copy of the investigative report. The EEO Officer and RCC provide further opportunity for informal adjustment between management and the complainant. • If adjustment is not made, the RCC notifies the complainant in writing of the proposed disposition, and of his/her choice of: -A right to a hearing by an Equal Employment Opportunity Commission (EEOC) complaints examiner, or -A decision by the Department of Treasury without a hearing. • If the complainant does not reply within 15 calendar days, the RCC may adopt the proposed disposition as the final decision of the Department of Treasury and so notify the complainant. Upon receipt of the decision, the complainant may either appeal the final decision to EEOC within 15 days or file a civil suit in the appropriate U.S. District Court within 30 days. • If the complainant elects a decision by the Department of the Treasury without a hearing, the decision of the EEO Director, becomes the final agency decision. The complainant has a right to appeal to the EEOC Appeal Review Board within 20 calendar days after receiving the Department of Treasury's notice of final decision. • If the complainant requests a hearing, the RCC contacts an EEOC complaints examiner to conduct it. • The complaints examiner reviews the file, remands the complaint to the RCC if further investigation is necessary, and schedules and conducts a hearing. • The complaints examiner develops and clarifies evidence through testimony. The hearing is recorded and transcribed verbatim. The complaint examiner analyzes evidence, prepares findings, recommends a decision, and forwards the report and complaint file to the Department of Treasury. • The EEO Director (or designee) makes an agency decision based on the file and gives the complainant a copy of the complaints examiner's report. The Director gives specific, detailed reasons for rejection or modification of the complaints examiner's recommended decision. • The complainant has a right to appeal to the EEOC Appeal Review Board within 20 calendar days of receipt of the agency's notice of final decision. NOTE: The complainant has a right to file a civil action in an appropriate U.S. District Court: • Within 30 calendar days of his/her receipt of the notice of final agency action on his or her complaint. • After 180 calendar days from date of filing an individual complaint with the agency if there has been no decision. • Within 30 calendar days of receipt of the notice of final action taken by EEOC on the complaint. • After 180 calendar days from date of filing an appeal with EEOC if no decision has been received. Generally, allegations of discrimination because of age (40 years and older) are processed in accordance with these procedures. However, Title 29 USC 631.633a permits persons who believe they have been discriminated against because they are over 40 to bypass the administrative process and file a civil action in a U.S. District Court. They are required to provide the EEOC with a 30-day notice of intent to sue. Role of Participants_ EEO Counselor The EEO counselor conducts the first stage of the informal complaint process. The counselor does not represent the aggrieved person or management, but is an impartial third party. The counselor does not make a determination on the merits of the matter. He/she is responsible for: • Counseling the aggrieved person. • Conducting an inquiry, not a formal investigation, into the alleged discrimination. • Interviewing persons. Analyzing evidence and obtaining the facts. • Meeting with management to resolve the complaint informally. EEO Investigator An EEO investigator, an impartial factfinder, conducts a formal investigation into the complaint, compiling a record of his/her findings. The investigation includes interviewing persons, taking sworn affidavits and compiling documentary evidence. The investigator does not represent the aggrieved person or management and does not make a determination on the merits of the complaint. The EEO Officer makes all determinations as to whether discrimination actually occurred. (See "Adjudication of Complaints" for guidelines on how a determination is made, page 27). Customs Management The goal of the complaint process is to resolve the complaint to the satisfaction of both the employee and management. Managers should make every effort to resolve an EEO matter at any stage of the complaint process, not only prior to the filing of a formal complaint. EEO counselors contact a management official in the area in which the matter arose to brief him/her and make whatever arrangements are necessary to carry out their duties. During the counseling stage, the EEO counselor works with a management official who is able to direct or effect remedial action, if appropriate, to informally resolve the problem. The EEO counselor will pursue resolution of the complaint to the highest level of management necessary to reach a settlement. |