Animal and Plant Health Inspection Service
Civil Rights Enforcement and Compliance
Internal Policy Issuance #: 1

1. INTRODUCTION

This issuance outlines the procedures that govern the Formal Complaints Process in the APHIS Civil Rights Enforcement and Compliance (CREC) Program. The Formal Complaints Process is an avenue that any present or former employee or applicant for employment can use, if he or she feels that they have been discriminated against on any of the following bases: race, color, religion, national origin, age, sex, disability, marital or family status, sexual orientation and/or reprisal. It is the goal of the Administrator of APHIS to make APHIS an Agency where equal employment opportunity is the standard. Every employee has the right to work in an environment where they are treated fairly and equitably, with dignity and respect, and are given the opportunity to reach their full potential.

2. REFERENCES/AUTHORITIES

The civil rights statutes, laws and regulations governing federal sector employment discrimination complaints include the following:

Title VII of the Civil Rights Act of 1964, as amended in 1991
Supreme Court Case Law
Administrative Case Law, i.e., Merit Systems Protection Board and the Equal Employment Opportunity Commission (EEOC)
EEOC's Management Directive 110
29 Code of Federal Regulations, Section 1614

3. COVERAGE

These procedures apply to any and all formal complaints filed by any present or former employee or applicant for employment.

4. POLICY
 

A. Receipt of Formal Complaint - Once an employee completes counseling or mediation, and the parties do not reach a settlement of the issues, the employee is given a Notice of Right to File (NRF). The employee must file his or her complaint, within 15 days from receipt of the NRF, with the Office of Civil Rights (OCR). OCR sends the complaint form to CREC, so that the Agency is put on notice that a formal complaint has been filed. The EEO Specialist assigned to do the database tracking creates a folder for the formal complaint, and the preliminary information is input into the database. The EEO Specialist assigned to do the database tracking also requests a copy of the counselor's report, to include in the complaint folder.

B. Case Acceptance -  OCR determines if a case meets the minimum requirements for a prima facie case. Prima facie means that the preliminary facts meet the established criteria to allow the case to proceed to the next step. For example, in a case of nonselection, the employee must meet the following criteria:

1) the employee is a member of a protected group, by virtue of his or her race, color, age, disability, etc. (Same bases listed above)
2) the employee applied for the position
3) the employee was qualified for the position
4) the selecting official continued to seek applications, even though the employee applied and was qualified

Once a case is accepted, OCR sends an acceptance letter to CREC. The EEO Specialist assigned to the database tracking inputs the information, and the case is assigned to the appropriate EEO Specialist. Each EEO Specialist is assigned a designated program area. From the case acceptance to the conclusion of the case, the EEO Specialist is responsible for monitoring the processing of the case. The EEO Specialist is also responsible for conveying any changes in the case to the database tracking person.

C. Document Request/Investigation - Once the case is accepted, OCR assigns the case to an EEO Investigator, of their choosing. CREC does not have any authority or jurisdiction over the investigation process. All EEO Contract Investigations are commenced and monitored by OCR. However, the EEO Investigator makes contact with CREC, once he or she has been assigned a case to investigate. The investigators usually fax a document request to CREC. The document request consists of documents the investigator believes will complete the record. However, managers and
supervisors are encouraged to provide any and all documents that support the decisions made regarding the specific case. The document request is faxed to the EEO Assistant, and he logs in the case name, number and the EEO Specialist assigned to the specific program area. It is the EEO Specialist's responsibility to ensure that all of the requested documents are retrieved and sent to the EEO Investigator.

D. Case Analyses - Once the investigation is completed, and the Report of Investigation (ROI) is sent to CREC, the EEO Specialist analyzes the case, using the appropriate Analysis Model, located in the EEOC's Management Directive 110. When the case has been analyzed, the EEO Specialist will contact the appropriate manager, to discuss the strengths and weaknesses of the case. The EEO Specialist will also discuss possible terms of settlement to with the appropriate manager.

E. Negotiation - After discussing the strengths and weaknesses of the case with the appropriate manager, the EEO Specialist will make contact with the employee or the employee's representative, if a representative has been assigned, and negotiations will commence. In the event the negotiations do not lead to a settlement of the case, the case will continue to be processed through the formal complaints system. The employee has the option of electing a Final Agency Decision (FAD), which is rendered by OCR or the employee can elect an Administrative Hearing, before an Administrative Judge at the EEOC.

F. Settlement and Implementation - In the event a settlement agreement is reached between the employee and the Agency, the assigned EEO Specialist will prepare a draft settlement agreement for the parties to review. Additionally, the draft settlement agreement must be reviewed by the Director and the Employment Complaints Compliance Manager. Once the settlement agreement has been approved by all parties, the agreement is signed and the terms are implemented. The EEO Specialist is responsible for carrying out the implementation of the agreement, by contacting the appropriate Employee Relations Specialist for the program and monitoring the terms of the agreement, until all of the terms have been completed. The EEO Specialist should also send a copy of the settlement agreement to OCR, so that the complaint can be removed from OCR's database. Once the terms of the settlement agreement have been implemented, the case is closed and the file is stored in CREC's closed case files.

G. Noncompliance - In the event the terms of the settlement agreement are not completed, the employee has the right to file a noncompliance allegation against the Agency with OCR. The Agency will have to prove that the terms of the settlement agreement have been implemented, by providing proof. For example, if the term called for a promotion, the Agency must provide a copy of the personnel action promoting the employee.

H. Appeal  - The employee has the right to appeal a FAD, if he or she is not satisfied with the decision. Once an employee files an appeal, CREC does not have any jurisdiction over the case. OCR is the point of contact for all cases that have been appealed.

I. Civil Actions - Once the employee's case is accepted, and 180 days have passed, the employee can file a civil action in Federal District Court. This means that the employee can bypass steps C-F.

APPROVED:__________________________________ DATE:________________
Anna P. Grayson, Director
Civil Rights Enforcement and Compliance