Traditional Counseling

Traditional Counseling

EEOC has established six clearly defined duties that must be performed for each completed counseling session; (1) advise the complainant of the EEO complaint process under 29 CFR 1614; (2) assist in determining the issue(s) and basis(es) of the potential complaint; (3) conduct a limited inquiry for the purpose of furnishing information for settlement/resolution efforts and determining jurisdictional questions if a formal complaint is filed; (4) seek a resolution at the lowest possible level; (5) document the resolution or advise the complainant of their right to file a formal complaint if resolution fails; and (6) prepare a report sufficient to determine that the required counseling actions have been taken and resolve any jurisdictional questions that may arise.

The complainant has the responsibility of cooperating in the complaint during counseling by providing as much information as possible as to the issue/issues, basis/bases and circumstance protected by the Privacy Act.

The complainant must communicate with the Counselor and provide, when available, information pertaining to the complaint that may be requested by the Counselor. Also, he or she is to respond to any offers of resolution. If the Agency wishes to offer a resolution, but the complainant will not waive anonymity, the counselor will advise the complainant of the EEO complaint process, and if appropriate, issue a notice of right to file.

The Counselor conducts a limited inquiry to determine what facts will be needed to resolve the issues that the employee has raised during the discussion of the problem. There is no set formula for the Counselor to follow in attempting a resolution. The Counselor is not an investigator and will not investigate an informal complaint. However, the scope of the Counselor’s inquiry and discussions with the complainant and appropriate management officials will meet criteria established by EEOC. Since the inquiries are conducted informally and do not involve sworn testimony or extensive documentation, a Counselor does not make findings on the issues of discrimination.

In order to resolve an EEO informal complaint/EEO dispute, the agency and the complainant must agree on a solution. However, if resolution is not achieved within 30 calendar days from initial contact, or with a written authorization from the complainant to extend counseling, not to exceed 60 days, the Counselor must advise the complainant in writing of their right to file a formal complaint and the time limit for doing so.

This is known as issuing the Notice of Right to File a Formal Complaint (NRF). The complainant has fifteen (15) calendar days from the date she or he receives this notice to file a complaint with USDA’s Office of Civil Rights, Employment Complaints Division.
 

Checklist for the Aggrieved Person (Charging Party)
Involved in the EEO Complaint Process

This check list is to assist you in preparing for either a traditional counseling session or mediation. Regardless of the option you have selected, the EEO Specialist will need to know:

  1. WHO: Identify the 'individuals who are the decision makers in the alleged discriminatory treatment. Are they supervisors, managers or co workers?
  2. WHAT: Identify the nature of the alleged discrimination. Is it related to a termination, a suspension, work assignments, etc.?
  3. WHERE: Identify the location of the incident/discriminatory act, and witnesses, if any.
  4. WHY: Identify the job related reason why you believe the alleged discriminatory action occurred. Are you comparing your situation to others that may have been treated differently for the same or similar event?
  5. WHEN: Identify the date that the alleged discrimination occurred. If it is beyond the 45 dav Limit for contacting, an EEO Counselor, explain the delay.
  6. HOW: Identify how management actions influenced the decision or motivated the discriminatory act.

NOTICE OF RIGHTS AND RESPONSIBILITIES INFORMAL EEO COMPLAINT PROCESS

The Equal Employment opportunity Commission's (EEOC) regulations, effective November 9, 1999, governing the processing of complaint of employment discrimination by federal applicants and employees were revised. Your rights and responsibilities under the revised regulations include the following:

a. Prior to filing a formal complaint, you have the right to anonymity.

b. You have the right to representation throughout the complaint process including the counseling stage. The EEO Counselor is not an advocate for either the aggrieved person or the agency.

c. You have the right to choose between Alternative Dispute Resolution (ADR), or EEO Counseling, where the agency agrees to offer ADR. The EEOC's revised regulations require that agencies establish or make available an ADR program beginning January 1, 2000.

d. You may be required to choose between a negotiated grievance procedure and the EEO complaint procedure. Consult your EEO Counselor for clarification.

e. You may be required to choose between the EEO complaint procedure and an appeal to the Merit Systems Protection Board (MSPB). Consult your EEO Counselor for clarification.

f. In the event that you wish to file a formal complaint at the conclusion of counseling or ADR, you are required to file a complaint within 15 calendar days of receipt of the Counselor's notice of right to file a formal complaint.

g. You may file a notice of intent to me and file a lawsuit under the ADEA instead of an administrative complaint of age discrimination when age is alleged as a basis of discrimination, pursuant to 29 CFR 1614.20 1 (a).

h. You have the right to a go directly to a court of competent jurisdiction on claims of sex based wage discrimination under the Equal Pay Act even though such claims are also cognizable under Title VII.

You have the right to request a hearing before an EEOC Administrative Judge (except in a mixed case) after completion of the investigation or 180 calendar days from the filing of a formal complaint, whichever comes first.

After November 9, 1999, your request should be made directly to the appropriate EEOC office, and you must notify the responding agency of your hearing request. Consult the EEO Counselor for information on where a request for a hearing and notice to the agency should be sent.

j. You have the right to an immediate final decision after an investigation by the
agency in accordance with 29 CFR 1614.108(f).

k. You have the right to go to U.S. District Court 180 calendar days after filing a formal complaint if no final action has been taken on the complaint or 180 calendar days after filing an appeal if no decision has been issued on the appeal.

1. You must mitigate damages, i.e., you must look for other appropriate employment and you must seek treatment for any injury you claim.

m. You must keep the agency and EEOC informed of your current mailing address and serve copies of hearing requests and appeal papers on the agency.

n. Where counseling is selected, you have the right to receive in writing within 30 calendar days of the first counseling contact (unless you agree in writing to an extension) a notice terminating counseling and informing you of:

(1) the right to file a formal individual or class complaint within 15 calendar days of receipt of the notice,

(2) the appropriate official with whom to file a formal complaint and

(3) your duty to immediately inform the agency if you retain counsel or a representative.

o. Where you agree to participate in an established ADR program, the written notice terminating the counseling period will be issued upon completion of the dispute resolution process or within ninety (90) calendar days of the first contact with the EEO Counselor, whichever is earlier.

p. Only claims raised at the counseling stage or claims that are like or related to them may be subject of a formal complaint, or an amendment to a complaint after it has been filed.

q. Your rejection of an agency's offer of resolution made pursuant to 29 CFR 1614. 109(c) may limit the amount of attorney's fees or costs you can recover.

r. If you have filed two or more complaints, the agency must consolidate them after appropriate notice to you 29 CFR, 1614.606. When a complaint has been consolidated with one or more earlier complaints, the agency shall complete investigation within the earlier 180 days after the filing of the last complaint or 360 days of the filing of the first complaint.

USDA Animal and Plant Health Inspection Service
Office of Civil Rights, Diversity, and Inclusion
Office of Civil Rights
 

Supervisor's and Manager's
Rights and Responsibilities in the EEO
Complaint Process

 

The Equal Employment Opportunity Commission governs the processing of complaints of employment discrimination. Complaints are filed against the agency. Employees or applicants for employment often name an individual as the person they perceived to have discriminated against them. The following information is being provided as a framework for understanding the nuances of the complaint process.

If you are involved in a complaint of employment discrimination, you are encouraged to cooperate with the EEO Counselor, Mediator, Investigator, Administrative Judge or others who have responsibilities for administering the complaint process. As such, you are expected to answer questions and provide requested documents.

If identified as a Responsible Management Official (RMO) you will have the opportunity to know precisely what has been alleged, and should be afforded an opportunity to respond to the allegations of discrimination and provide information. Exactly what is an RMO? The responsible management official is the individual who is responsible, in whole or in part, for the actions or conditions under dispute.

When an informal complaint is filed, the Counselor/Mediator is required to solicit the views of the RMO by interviewing the management official and advise that individual that they have been named or identified by a complainant. The counselor will inform you of the nature of any allegations, accusations being made, and of the right to have a representative present during the interview to provide advice on how to respond to any questions the Counselor may ask.

There may be occasions when the EEO Counselor may contact you regarding to a complaint being filed but not identify the complainant. Under EEOC regulations, the EEO Counselor must be careful not to reveal the identity of the complainant unless that individual has authorized the Counselor to do so. A written authorization is required. Such requirements are not necessary during a mediation.

If a complaint is accepted for investigation, you must be given a full opportunity to state the facts in affidavit form for inclusion in the investigative file. You may also suggest witnesses who might be contacted for corroborating testimony.

This information sheet is a brief snapshot of the role of the supervisor or manager in the process.

The EEO Counselor or Mediator can assist in answering any questions. Or you may contact the Manager for the Counseling and Resolution Branch, at 1 (800) 342-7231 or (301) 851-4201.

 

 

 

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