DM4300-001, EEO COMPLAINT
PROCESSING PROCEDURES
Page
CHAPTER I – INTRODUCTION 1
1 Purpose and Scope 1
2 Special Instructions/Cancellations 1
3 Statement of Policy 2
4 Authorities 2
CHAPTER II – GLOSSARY OF TERMS 4
1 General 4
2 Terms 4
CHAPTER III – GENERAL PROVISIONS FOR PROCESSING EEO COMPLAINTS 7
1 General 7
2 Complainant’s Responsibility 7
3 Processing 8
4 Alternative Dispute Resolution 8
5 Freedom From Reprisal 9
6 Time Limit 10
7 Representation and Official Time 11
8 Access to Records 13
9 Sharing Information 13
10 Resolution Strategy 14
11 Factors of the Resolution Strategy 14
CHAPTER IV – INFORMAL EEO COMPLAINT PROCESS 17
1 Participation in Informal Process Required 17
2 Complainant May Amend A Pending Complaint 17
3 Authority to Resolve 17
4 The Informal EEO Counseling Process 17
5 Role and Responsibility of the EEO Counselor 18
6 Rights of Complainant 19
7 Approach/Activities During EEO Counseling Period 19
8 Election of ADR 20
9 Problem Resolution 21
10 EEO Counselor’s Report 22
11 Notice of Right to File 23
12 Training 23
13 Reporting Contacts 24
14 Cooperation 24
CHAPTER V – FILING AN INDIVIDUAL COMPLAINT 25
CHAPTER VI – ALTERNATIVE DISPUTE RESOLUTION 31
1 Opportunity 31
2 Offer 31
CHAPTER VII – INVESTIGATION 32
1 Notice 32
2 Coverage 32
3 Survey 33
4 Background 33
5 Impartiality 33
6 Cooperation 33
7 Responsible Management Officials 34
8 Distribution 34
9 Access to Report 34
10 Supplemental Investigation 35
11 Completion of the Investigation 35
12 Adequacy of the ROI 36
13 Evidentiary Consideration 36
CHAPTER VIII – HEARING 38
1 General 38
2 Policy 39
3 Processing 39
4 Costs 39
CHAPTER IX – FINAL AGENCY DECISIONS 40
1 Processing 40
2 Content 40
3 Corrective Actions 40
4 Rights to Review 41
5 Transmittal 41
CHAPTER X – RESOLUTIONS 42
1 Voluntary Dispute Resolution 42
2 Effect of a Resolution Offer 42
CHAPTER XI – REMEDIAL ACTIONS 45
1 Policy 45
2 Scope of Relief 45
3 Agency Discretion 45
4 Presumptions 46
5 Limitation 46
6 Relevance 46
7 Types of Remedial Relief 47
8 Agency Negotiations 47
9 Attorney Fees 48
CHAPTER XII – ATTORNEY’S FEES AND COSTS 49
CHAPTER XIII – COMPLIANCE WITH SETTLEMENTS AND FINAL AGENCY DECISIONS 51
CHAPTER XIV – CLASS DISCRIMINATION COMPLAINTS 52
1 General 52
2 Pre-Complaint Processing 52
3 Formal Complaints 53
4 Referral for a Recommendation to Accept or Dismiss 53
5 Processing Accepted Complaints 55
6 Recommended and Final Agency Decision on the Merits 55
CHAPTER XV – APPEALS TO THE EEOC 57
1 Right to Appeal and Applicable Time Limits 57
2 Processing 58
CHAPTER XVI – RIGHT TO FILE A CIVIL ACTION 61
1 Right to File 61
2 Time Limits 61
3 Processing 61
4 Termination of Administrative Processing 61
CHAPTER XVII – SPECIAL PROVISIONS 63
1 Allegations of Reprisal 63
2 Procedures for Complaints Alleging Reprisal 63
3 Formal Complaint Processing Stages 64
4 Notice of Intent to Sue 66
5 Mixed Case Complaints 67
6 Relationship to Other Dispute Resolution Systems 68
APPENDIX A A-1
EEO Counselor Checklist A-1
Manager Review of EEO A-3
Counselor’s Report A-5
Acceptance/Dismissal Checklist A-5
Nonselection Checklist A-7
Nonreferrals Checklist A-9
Appraisals Checklist A-11
Discharge (Discipline) Checklist A-13
Reprisal Checklist A-15
Sexual Harassment Checklist A-17
Resolution Strategy A-19
Settlement Agreement Analysis Form A-22
Attorney’s Fees Checklist A-23
Agreements Checklist A-25
Final Decision A-27
U.S.
DEPARTMENT OF AGRICULTURE
WASHINGTON,
D.C. 20250
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DEPARTMENTAL MANUAL |
Number: 4300-001 |
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SUBJECT: EEO Complaint Processing Procedures |
DATE: July 20, 2001 |
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OPI: Office of Civil Rights |
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CHAPTER I - INTRODUCTION
1 PURPOSE AND SCOPE
As part of its commitment to provide a work
environment free from employment actions and/or employment decisions based on
race, color, religion, sex, national origin, age, disabilities, retaliation for
prior equal employment activity, sexual orientation, genetic information,
political beliefs, parental status, and marital status, the USDA herein
establishes a system to process employment discrimination complaints, including
procedures for offering and conducting Alternative Dispute Resolution (ADR) in
employment discrimination complaints (Departmental Regulation 4710-1, USDA
Alternative Dispute Resolution). It is
USDA’s objective and policy to resolve complaints, when possible, via informal
or formal settlement negotiations with complainants. Agencies are primarily
responsible for carrying out this policy. USDA may, at its election, provide
assistance to agencies at any stage of the complaint process to facilitate an
amicable resolution to all complaints. The resolution strategy of USDA and its
use is explained in Sections 11 and 12 below.
2
SPECIAL INSTRUCTIONS/CANCELLATIONS
This manual superceeds and replaces DM
4300-1 dated October 18, 2000, which is hereby cancelled. The changes implemented in this manual
concern the use of Alternative Dispute Resolution in the EEO complaint process. In addition, a number of minor style and
typographic corrections have been made that do not affect the substantive
processing of a complaint.
3
STATEMENT OF
POLICY
Any employee who believes he/she has
suffered in the terms and/or conditions of employment, due to an action and/or
decision (including a failure to act or decide) by an official or employee of
USDA, and believes that this action and/or decision was motivated by a
discriminatory animus based on his/her race, color, sex, religion, age (40
years of age or over), national origin, physical or mental disability,
retaliation for prior equal employment activities, sexual orientation, genetic
information, political beliefs, parental status, or marital status may file an
individual complaint of employment discrimination in accordance with the USDA
Equal Employment Opportunity (EEO) Employment Complaint Processing Procedures.
Moreover, pursuant to 29 C.F.R. 1614.204, class complaints[1] of
discrimination may be filed on the behalf of a group of employees, former
employees, or applicants for employment who are alleged to have been adversely
affected by an agency personnel policy or practice which discriminates against
the group on the basis of their common race, color, religion, sex, national
origin, age, or disability.
4
AUTHORITIES
There are eleven bases of discrimination which are cognizable under the following statutes and Executive Orders:
a Statutory
(1) Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination against individuals based on race, color, sex, national origin, religion, and reprisal.
(2) The Age Discrimination in Employment Act (ADEA) of 1967, as amended, prohibits employment discrimination against individuals who are 40 years of age or older.
(3) The Rehabilitation Act of 1973, as amended, prohibits employment discrimination against qualified individuals with physical or mental disabilities.
(4) The Equal Pay Act, an amendment to the Fair Labor Standards Act, protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
b Executive Orders
(1) Executive Order 13087 provides that, as a matter of Federal policy, an individual’s sexual orientation should not be the basis for the denial of an employment or promotional opportunity.
(2) Executive Order 13145 (February 8, 2000) prohibits discrimination in Federal employment based on genetic information.
(3) Executive Order 13152 (May 12, 2000) provides for a uniform policy within the Federal Government to prohibit discrimination based on an individual’s status as a parent.
In addition to the above-noted eleven bases
of discrimination, the internal policies within the United States Department of
Agriculture (hereinafter referred to as the USDA) also prohibit employment
discrimination based on marital status and political beliefs.
CHAPTER II – GLOSSARY OF TERMS
1 GENERAL
The following words or acronyms have particular meanings when used in the context of the USDA Equal Employment Opportunity (EEO) Complaint System:
2 TERMS
a Alternative Dispute Resolution (ADR) - Any of a number of conflict resolution techniques listed in DR 4710-1 which use a neutral third party to assist the complainant and agency in resolving EEO complaints, including, but not limited to, mediation, facilitation, and arbitration
b Administrative Judge (AJ) - An individual assigned by the Equal Employment Opportunity Commission (EEOC) to conduct a hearing on the complaint if requested by the complainant.
c Agency - One of the primary components (Administration, Office, Service, or Staff) of USDA.
d Basis - The prohibited factors of discrimination (i.e., race, color, sex, age [over 40], religion, national origin, disability, parental or marital status, political beliefs, sexual orientation, genetics, or reprisal).
e Complaint - An allegation, formal or informal, that an action or decision in USDA (if an individual complaint) or a policy or practice of USDA (if a class action complaint), which has personally affected an employee was discriminatory on a prohibited basis.
f Complaint Process or System - The entire set of actions possible on an EEO complaint, including counseling, acceptance, rejection, dismissal, investigation, resolution, hearing, decision, appeal, and civil action.
g EEO Counselor - An individual assigned to discuss and attempt to resolve informal EEO complaints within USDA.
h Days – all timeframes referenced in days in this manual are calendar days.
i Director of Equal Emp