The federal regulations found at 29 C.F.R. 1614 do not permit federal agencies to dismiss Informal Pre-Complaints at the first stage of the EEO Complaints Process. The purpose of the Informal stage is to notify the parties of their rights in the EEO Complaint process, explain the process, gather basic information regarding the allegations and to assist the parties in seeking resolution of the workplace dispute. EDI is unable to review the Informal case to determine whether the case has merit. EDI Counselors serve as impartial administrators of the Informal stage and they offer alternative dispute resolution (ADR) options to the parties to assist in resolving the concerns. The ability to discmiss claims occurs at the second stage of the Complaints Process which is the Formal Complaint stage.
Once a formal complaint of discrimination is filed, an EDI Formal Complaints Specialist will review the complaint and apply one or more of the 12 Bases for Dismissal pursuant to 29 C.F.R. §1614 (below). None of the 12 Bases for Dismissal pertain to the merits of the case and the Formal Complaints Specialist does not have the authority to dismiss based on who was right or who was wrong. It is a strict review based on the 12 bases stated in the regulation.
If the complaint is accepted in full or in part, an Investigator will be assigned to collect relevant information pertaining to the complaint. If the entire complaint is dismissed, an individual will be provided, in writing, the reason(s) for dismissal and informed of his/her right to appeal the decision.
12 Bases for Dismissal
- Untimely Counseling Contact - A claim that has not been brought to the attention of an EEO Counselor in a timely manner. The complainant did not contact an EEO Counselor within forty-five (45) days of the discriminatory event or within 45 days of the effective date of the personnel action.
- Untimely Filing of the Formal Complaint - The complainant failed to file a formal complaint within fifteen (15) days of his/her receipt of the Counselor's notice of right to file a formal complaint ("Notice of Final Interview") in an individual complaint, § 1614.105(d), or in a class complaint, 1614.204(c).
- Failure to State a Claim - This may include a claim that does not allege discrimination on a basis encompassed in one of the statutes applicable to federal sector employees. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that s/he has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition.
- Abuse of Process - Defined as a clear pattern of misuse of the process for ends other than that which it was designed to accomplish. This requires an analysis of whether the complainant evidences an ulterior purpose to abuse or misuse the EEO process. However, multiple filings on the same issues, lack of specificity in the allegations, and the filing of complaints on allegations previously raised, may be considered in deciding whether a complainant has engaged in a pattern of abuse of the EEO process.
- States the Same Claim - The complaint states the same claim that is pending before or had been decided by the agency or Commission except in those cases where a class action complaint is pending.
- Complainant Files a Civil Action - The complainant files a civil action concerning the same allegation, at least one hundred eighty (180) days after s/he filed his/her administrative complaint.
- Issue Has Been Decided - The same issue has been decided by a court of competent jurisdiction and the complainant was a party to the lawsuit.
- Allegation Raised in Negotiated Grievance Proceeding - The complainant has raised the allegation in a negotiated grievance procedure that permits allegations of discrimination, indicating an election to pursue a non-EEO process.
- Appeal Made to MSPB - The complainant has elected to appeal the claim to the Merit Systems Protection Board, rather than file a mixed case complaint under § 1614.302.
- Complaint Alleges a Preliminary Step - The complaint alleges that a proposal to take or a preliminary step in taking a personnel action is discriminatory. This provision requires the dismissal of complaints that allege discrimination "in any preliminary steps that do not, without further action, affect the person.
- Complaint is Moot - A complaint may be dismissed as moot where there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.
- Dissatisfaction with the Processing of a Complaint - The complaint alleges dissatisfaction with the processing of a previously filed complaint.
Under 29 C.F.R. § 1614, the Department of Health and Human Services (HHS) must complete the Report of Investigation of the accepted claim(s) within 180 calendar days from the date on which the individual complaint was filed. This time period may be extended by up to an additional 90 calendar days if a) the individual and the agency voluntarily agree, in writing, to an extension, or b) if a complaint has been amended. The Report of Investigation contains all of the documentary evidence and affidavits of the pertinent witnesses associated with the administrative EEO complaint. Investigations at NIH are conducted by contract Investigators through a contract held by HHS.
An individual may amend a formal complaint with issues or claims that are “like or related” to the original complaint prior to the conclusion of the investigation without the need for additional EEO counseling. The EDI Resolutions and Equity Division will acknowledge all amendments in writing. Regulations require that the investigation be completed by the 180th day after the filing date of the complaint, or the 180th day after the filing date of the last amendment to the original complaint, or the 360th day from the filing date of the original complaint, whichever is earlier.
Right to Hearing or Final Agency Decision
Within 30 calendar days of receipt of the Report of Investigation, an individual may elect a hearing before an EEOC Administrative Judge, or a request a Final Agency Decision issued by the HHS EEO Director.
If the individual elects a hearing, an Administrative Judge will oversee discovery (or the gathering of facts from both parties), conduct a hearing, and issue a decision on the complaint. If a finding of discrimination is made, the Administrative Judge will order an appropriate remedy. The judge must complete this process within 180 calendar days of receipt of the complaint file from HHS. Within 40 calendar days of receipt of the Administrative Judge’s decision, HHS must take final action on the complaint by issuing a final order notifying the individual whether or not HHS will fully implement the Administrative Judge’s decision. The final order will also explain the individual’s appeal rights. If HHS does not issue a final order within the above stated time limit, the Administrative Judge’s decision will become the Final Agency Action of HHS.
If the individual requests a Final Agency Decision, the final decision shall consist of findings by HHS on the merits of each issue in the complaint or, as appropriate, the rationale for dismissing any claims in the complaint. If discrimination is found, the Final Agency Decision will also discuss appropriate remedies and relief in accordance with subpart E of Title 29 C.F.R. § 1614. The Final Agency Decision will contain the following:
- Notice of the right to appeal HHS’ final decision to the EEOC’s Office of Federal Operations
- Right to file a civil action in the appropriate District Court
- Name of the proper defendant in any such lawsuit
- Applicable time limits for appeals and lawsuits