The filing of the Formal Complaint of Discrimination starts the second stage of the EEO Complaint Process. The EDI Formal Complaints Branch is responsible for processing all Formal Complaints of discrimination filed against the NIH in compliance with 29 C.F.R. §1614, EEOC Management Directive 110 and pertinent court decisions.
Alternative Dispute Resolution (ADR)
Department of Health and Human Services' (HHS) policy, dictates that mediation is the form of Alternative Dispute Resolution (ADR) used to resolve Informal Complaints of Discrimination when shuttle diplomacy is not elected at the Informal stage. Mediation is a confidential process in which disputing parties meet and a neutral, impartial third party (mediator) who facilitates discussions to assist the parties in reaching a mutually acceptable resolution. The parties sit at the table with one another and with the assistance of the neutral mediator, attempts are made to resolve the dispute. If you are interested in mediation at the formal stage, please contact your assigned EDI Specialist.
How Do I File a Formal Complaint?
If a resolution is not achieved during the Informal stage, upon completion of the Informal stage an individual may file a written Formal Complaint of discrimination with EDI. The EDI Counselor will provide the individual a "Notice of Right to File a Discrimination Complaint." Formal Complaints must be filed within 15 calendar days from the date that individuals receive the Notice of Right to File a Discrimination Complaint. Formal Complaints should be filed with EDI. Once filed the individual filing the complaint is known as the Complainant.
Formal Complaint Process Basics
Once EDI receives a Formal Complaint of Discrimination, the Specialist will review the allegations contained in the Complaint and apply the 12 bases for dismissal as contained in 29 C.F.R. § 1614. A determination will be made as to whether any of these 12 bases of dismissal should be applied. It should be noted that none of the 12 bases of dismissal pertain to the merits of the case, rather, they are jurisdictional in nature and the Specialist does not have the right to dismiss based on the lack of merit of any complaint. If, after the legal review, none of the claims can be accepted for investigation, the case will be dismissed and the Complainant will be issued appeal rights. If some or all of the claims are accepted for investigation, the claims will be assigned to an EDI EEO Investigator or the claims will be referred to the Department of Health and Human Services (HHS) who will contract for an EEO investigation. Once the investigator is assigned they will reach out to the Complainant and to all of the third party witnesses and management witnesses to collect all documentary evidence, including affidavits. Once gathered this evidence will be compiled into a Report of Investigation (ROI) which serves as the evidence file in the case. Generally, investigator has 180 days to complete the ROI (barring any extensions or amendments). Once the ROI is completed the Complainant will be provided with a copy and they will have the election between a hearing before an administrative judge of the U.S. Equal Employment Opportunity Commission (EEOC) or a Final Agency Decision (FAD) which is a written decision based on the ROI prepared by the Department of Health and Human Services.
During the Formal Complaint stage, individuals have the following rights:
- Right to a representative of his or her choice, as long as the identified representative does not create a conflict of interest or the appearance thereof. Representatives may be attorneys or non-attorneys.
- Right to a reasonable amount of official time to present the complaint and to respond to requests for information from sources, including HHS, NIH, or the Equal Employment Opportunity Commission (EEOC).
- Right to request to participate in the ADR process at any time during the formal complaint process before requesting a hearing or Final Agency Decision.
- Right to amend the original Formal Complaint at any time prior to the conclusion of the investigation to include issues or claims that are like and related to those alleged in the original complaint.
- Right to request a Final Agency Decision based on the investigative record or to request a hearing before an EEOC administrative judge.
- Right to file a motion with the EEOC administrative judge to amend the complaint at the hearing stage.
- Right to appeal the outcome of the Final Agency Decision to the EEOC; or, in the case of a hearing the right to appeal the Agency’s final order.
- Right to bypass the administrative EEO complaint processing under the Age Discrimination in Employment Act and pursue a civil action in an appropriate U.S. District Court after providing written notice to the EEOC at least 30 calendar days before filing a civil action.
- Right to bypass the administrative EEO complaint process under the Equal Pay Act to pursue a civil action in U.S. District Court.
To avoid any undue delay in processing the Formal Complaint, individuals have the following responsibilities:
- Individuals must meet the required time frames at each stage of the Formal Complaint process.
- Individuals must provide a written explanation to the EDI Director of NIH EDI Office, if they fail to file the complaint within the required 15 calendar days of the alleged discriminatory occurrence.
- Individuals must cooperate with all EEO officials including EEO investigators.
- Individuals must provide a prompt response to requests for information.
- Individuals must keep EDI informed of their current address and telephone number; and, if they have a representative, individuals must provide EDI with the representative’s current contact information
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.
However, where appropriate, merit decisions in mixed case complaints -- complaints related to claims that are appealable to the Merit Systems Protection Board (MSPB) such as removals -- are first appealed to the MSPB.
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