If the counselor is unable to effect informal resolution during the precomplaint counseling stage and a formal complaint is filed, a formal investigation is conducted. The EEO investigator contacts the appropriate officials to arrange interviews and to obtain necessary documents. After the investigation is completed, the Customs official authorized to resolve the matter will receive a copy of the investigative report for review and comments. This official again meets with the complainant in an attempt to resolve the matter informally. Any management official may become involved in the processing of the complaint if his/her assistance in resolving the matter becomes necessary. Any questions or concerns that arise during the processing of a complaint should be directed to the EEO Office staff. Rights of Parties in a Complaint (see also Appendix IV). Complainant The complainant has the following rights: • To remain anonymous during informal EEO counseling. • To be represented at all stages of the complaint process. To file a formal complaint if dissatisfied with the results of EEO counseling. • To receive a copy of the investigative report after an investigation is completed. Alleged Discriminating Official The alleged discriminating official has the following rights: • To be represented during all stages of the complaint process. • To be informed of the status of the complaint throughout the process. • To review those parts of the complaint, counseling report, and affidavits in which he/she is implicated. • To name witnesses who can corroborate any testimony. • To receive a copy of the proposed disposition and the final agency (Department of Treasury) decision on the complaint. Representation During all stages of the complaint process any party may be represented by a person of his/her choosing, including another Customs employee. While the complainant has administrative time to work on the complaint, the representative must use annual leave to do so if the duties are performed during work hours. If an attorney is chosen, payment is at the employee's expense. The representative cannot be someone for whom acting in this capacity would be a conflict of interest or position (such as selecting an employee in the Office of Chief Counsel, a member of the EEO Advisory Committee, or an EEO counselor). Cooperation All Customs employees who have knowledge of the circumstance(s) or incident(s) causing an employee to file a complaint must cooperate during all stages of the process. This includes assisting EEO counselors and investigators in their efforts to conduct timely and complete inquiries and investigations and providing testimony and documentary evidence. Complainants who fail to cooperate may have their complaints cancelled. Other parties, including alleged discriminating officials and witnesses, who do not cooperate may be discharged for failing to assist in official government matters. Formal Complaints A formal complaint should include: • A statement of specific harm that identifies the loss of opportunity or benefit that the person has suffered and the type of discrimination that caused the loss. • A statement of discrimination providing the pertinent facts which led the person to believe that an act, policy, or practice was discriminatory. This should include: -The date of the alleged discrimination. -The events surrounding it. -Identification (name, title and protected status) and role of all parties involved in the matter. -Examples of related discriminatory acts by the alleged discriminatory official(s). -An explanation of why the complainant believes his/her protected status was a factor in the matter. Confidentiality During a formal investigation, sworn testimony in the form of an affidavit is taken from all parties. Testimony and information given are not confidential. Parties named in the testimony may review and respond to those parts of the documents (the complaint and affidavits) in which they are mentioned. Prohibitions Against Reprisal or Interference Complainants, representatives, witnesses, and EEO Office staff, including counselors and investigators, shall be free from restraint, interference, coercion, discrimination or reprisal in connection with the processing of a complaint at any stage and thereafter. Adjudication of Complaints The Department of the Treasury adjudicates complaints of discrimination in accordance with the burden of proof principles developed by the Supreme Court in McDonnell-Douglas v. Green, 411 U.S. 792 (1973). Under the McDonnell-Douglas standard: • The complainant has the initial burden of establishing a prima facie case of discrimination. (This means that there is sufficient legal evidence to establish a case that raises an implication of discrimination.) Once a prima facie case has been established, management must articulate a legitimate, nondiscriminatory reason for its action. (This rebuttal of the prima facie case will result in a finding of no discrimination unless the following standard is met). • The final burden rests with the complainant to demonstrate that management's reasons for its actions are pretextual (a cover-up). Disciplinary Actions. Disciplinary action consistent with the nature and extent of the act(s) of discrimination will be initiated against Customs employees found to have discriminated or taken reprisals. Reprisal means that the employee suffered negative consequences because of filing or giving testimony in a complaint of discrimination. Disciplinary action may include: • Oral reprimand • Written reprimand • Public acknowledgement Suspension • Reassignment • Demotion • Dismissal |