Unique Cases

Mixed Cases

  • A complaint of employment discrimination based on race, color, religion, sex, national origin, age, or disability related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB).
  • An individual is required to contact an EEO counselor within 45 calendar days of “the matter alleged to be discriminatory or, in the case of personnel actions, within 45 days of the effective date of the action.”
  • A covered individual may raise claims of discrimination in a mixed case either as a direct appeal to the MSPB or as a mixed-case EEO complaint with the agency,but not both.
  • Whatever action the individual files is considered an election to proceed in that forum.Use of the pre-complaint process does not constitute an election to proceed.
  • Filing a formal EEO complaint constitutes an election to proceed in the EEO forum.
  • Mixed-case complainants do not have a right to a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge on a mixed- case complaint.
  • A Final Decision must be issued to the Complainant within 120 days of the date of filing a mixed case complaint.
  • Complainant may appeal the Final Decision to MSPB (not the EEOC).

Commissioned Corps

  • Although EEO counseling is highly recommended, an Officer may elect to file a formal complaint from the outset and must do so within 60 calendar days after the offending incident.
  • The Agency will give the Complainant with a copy of the Report of Investigation within 90 days of filing the formal complaint.The Complainant will have 30 calendar days to review, comment, and supplement the Report of Investigation, and seek informal resolution of the case.
  • If informal resolution is successful, the resolution will be put into writing, signed by the officer and management, and the case will be closed.
  • The Complainant may withdraw a complaint by submitting a signed statement which shall become part of the complaint file.Withdrawals are final and the complaint cannot be revived.
  • If a resolution cannot be reached, the Office of Equity, Diversity and Inclusion (EDI) will issue a recommended decision to the Surgeon General and provide the officer with a copy.
  • Within 30 days, the Surgeon General will review the complaint file and:

  • a) Render a final decision.

    b) Request that the EDI Director conduct further investigation as is deemed necessary and appropriate for a well-reasoned decision. Within 30 days, the Surgeon General will render a final decision based upon the record as supplemented.

    c) Convene a Commissioned Corps Equal Opportunity Review Board (EORB) to review the record and make a recommendation.The EORB will make a recommendation, submit it to the Surgeon General, and within 30 days will render a final decision.

  • Since Commissioned Corps Officers are not covered by Title VII of the Civil Rights Act of 1964 as amended, or by Executive Order 11478 as amended, there are no additional appeal rights of a Final Decision within the administrative process.

Sexual Orientation Cases

  • In a Supreme Court decision decided in June 2020, the Supreme Court determined that claims of discrimination based on transgender status and sex stereotype non-conformity constitute sex discrimination under Title VII, indicating that, “an employer who fires an individual merely for being gay or transgender violates Title VII.” Accordingly, although discrimination on these bases was previously handled using a different complaint process, these cases are now being handled in the same manner as other claims alleging sex discrimination filed under Title VII.
  • Sexual Orientation is covered by the protected basis of Sex under Title VII of the Civil Rights Act of 1964 and through the federal sector EEO complaint process at 29 C.F.R. Part 1614. Employees may file a complaint under the Part 1614 EEO process and/or may utilize any additional complaint procedures provided by the Agency. Additionally, They may also utilize the process set forth in the Civil Service Reform Act of 1978 by taking their complaint to the Office of Special Counsel or the Merit Systems Protection Board.

Contractors

  • Generally, independent contractors are not covered by the anti-discrimination laws and, therefore, should use the contracting company’s EEO process.
  • In limited circumstances, the contractor may utilize NIH’s process.EDI will determine on a case-by-case basis the level of control the NIH has over the contractor, the legal standard applied to determine if a contractor has a right to pursue an EEO complaint at NIH.

Class Complaints

  • A group of employees, former employees, or applicants 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, genetic information, or disability.
  • An individual, who wants to file as an agent on behalf of a group alleging discrimination based on a protected category, must first initiate EEO counseling before filing a formal complaint. The individual must seek counseling within forty-five (45) days of the discriminatory event.
  • If the complaint is not resolved on the thirtieth (30th) day following initial EEO counseling, the Agency will provide the individual with a written notice that s/he has fifteen (15) days to file a formal complaint.
  • An EEOC Administrative Judge will determine if the complaint meets the prerequisites of a class complaint.