The Revised Federal EEO Complaint Process Prepared by the IHS Equal Employment Opportunity and Civil Rights Office May 16, 2000

INTRODUCTION The Equal Employment Opportunity Commission (EEOC) revised Federal regulations for Discrimination Complaint processing as part of its ongoing effort to improve the effectiveness and fairness of its operation. This briefing will give you an overview of the revisions and the potential impact on IHS managers and employees.

Code of Federal Regulations Part 1614 The EEOC revised the Code of Federal Regulations Part 1614, Processing Federal Sector EEO Discrimination Complaints effective 11/9/1999.

Synopsis of the New EEO Complaint Process –Title VII Employee/applicant may file a pre-complaint within 45 days of an alleged discriminatory action. Complainant chooses traditional EEO counseling or alternative dispute resolution (ADR) is conducted (30-90 days). If resolved, a memorandum of agreement (settlement) is signed and implemented. If unresolved, complainant has 15 days to file a formal complaint.

Synopsis of the New EEO Complaint Process An investigation is conducted and a report issued to complainant and management (180 days from filing). A hearing is conducted by an EEOC Administrative Judge or complainant requests a final decision without a hearing (180 days). EEOC Administrative Judge issues a final decision (180 days from the complainant’s request for a hearing).

Synopsis of the New EEO Complaint Process The agency may appeal the final decision within 40 days with 20 additional days to submit a statement; The agency must abide by the appeal decision. The complainant may appeal within 30 days with 30 additional days to submit a statement. The complainant may then file a civil action within 90 days after EEOC’s appeal decision.

Revisions Pre-complaint Process IHS is required to make available an Alternative Dispute Resolution (ADR) Program during the pre-complaint and formal complaint process. Complainants must be asked to elect to pursue traditional EEO counseling or use ADR. If ADR is elected and is not successful, the complainant may file a formal complaint rather than go through traditional counseling after ADR attempt. ADR mediators must take EEO counselor training. New EEO collateral-duty counselors must have 32 hours basic training. All EEO counselors must take 8 hours continuing education units annually. Attorney fees may be paid at pre-complaint stage if included in settlement offer or the final decision results in finding of discrimination.

Revisions Formal Complaint Process Multiple complaints by the same complainant must be consolidated. Complainants may amend a complaint any time prior to completion of the formal investigation; no additional counseling is required. Complaints that allege unfairness in processing a complaint (spin-offs) and complaints that demonstrate a pattern of abuse of the EEO process must be dismissed. Partial dismissals (one or more of the allegations is not accepted for investigation) may not be appealed by the complainant until after the final decision.

Revisions Formal Complaint Process continued Issues cannot be remanded to the agency for investigation after dismissal. The Administrative Judge will review reasons for dismissal in making final decision on entire complaint. Agencies may give an offer of resolution but may not dismiss the case if a complainant does not accept an offer of full relief. Complainants have 30 days to accept an offer of resolution. If not accepted at that time, and later settlement is not more favorable, complainant may not recover attorney fees incurred after offer was rejected.

Revisions Formal Complaint Process continued Complainants must send request for hearing directly to EEOC. Complainant must notify agency of hearing request. Agency must forward file to EEOC within 15 days of notification. Administrative judge issues the final decision. Agency has 40 days to implement decision or file an appeal. Complainant has 30 days to file an appeal. If no appeals filed, decision becomes final after 40 days.

Revisions Formal Complaint Process continued If decision finding discrimination is issued, agency must provide interim relief, including placing complainant in the position, during agency appeal to EEOC. Agency may not restore complainant if unduly disruptive but must provide prospective pay and benefits. Administrative Judge determines. Attorney Fees Compensatory Damages

Revision Highlights – Spin-Off Complaints against the EEO process are eliminated. Abuse of Process Dismissals allowed Alternative Dispute Resolution process must be offered. Complaints may be amended or multiple complaints consolidated. Agencies may give an Offer of Resolution that could freeze attorney fees at the hearing stage.

Revision Highlights EEOC makes final agency decisions. If a decision finding discrimination occurs, Interim Relief (including pay and benefits) must be provided to the complainant pending agency appeal to EEOC. Elimination of fragmentation of complaints - complainants may allege a pattern of discrimination by tying actions which occurred prior to the 45 days timeliness requirement to a current action.

Final Points Open communication between managers and employees is the most effective tool to prevent and resolve issues. Employees and applicants have the right to utilize the complaint process without reprisal or retaliation. The IHS EEO/CR Office is available to assist managers and employees at any time. Please call X

Commissioned Corp Revisions November 13, 1998, The President signed Health Professions Education Partnerships Act of The effect of this law was that Commissioned officers were not covered under anti- discrimination legislation. October 13, 1999, new procedures went into effect.

Commissioned Corp Revisions Informal process Officer may choose one of 2 options Consult an EEO Officer or counselor within 15 days of the incident. Administrative chain: consult with the first line supervisor; may request ADR or; choose to elevate complaint to second level supervisor; if unsuccessful may file a formal complaint

Commissioned Corp Revisions informal process continued EEO Counselor has 30 day to conduct fact- finding and attempt resolution. Officers have 60 days from the incident to reach an informal resolution or file a formal complaint. Officers are not required to seek informal resolution before filing a formal complaint.

Commissioned Corp Revisions Formal complaint process Intake process Accept/ Dismissal Investigation 90 days from filing to provide officer with ROI. Officers had 30 day to review file and comment. Recommended Decision issue within 30 days after receiving comments.

Commissioned Corp Revisions Formal process continued Surgeon General has 30 days to render a final decision based upon the record, or Request supplemental investigation, or Convene a Commissioned Corps EORB

Commissioned Corp Revisions continued Not available to officers: Compensatory damages Attorney fees District Courts

Commissioned Corp Revisions continued