EEO Formal Complaint Process | Civil Rights Division | NRCS
EEO Formal Complaint Processing Procedures
The U. S. Department of Agriculture, Office of Adjudication and Compliance (OAC), Employment Complaints Division, is responsible for processing formal complaints of discrimination. The NRCS, Civil Rights Division (CRD), Employment Compliance Branch (ECB) is responsible for tracking formal complaints, providing assistance as appropriate and coordinating activities which will facilitate the processing of formal complaints.
The role of the ECB includes working closely with investigators, Agency and Complainant representatives, managers, supervisors and employees during the processing of EEO complaints, to include attempts at resolution. During the course of the investigation, the ECB will monitor the investigation as well as assist the investigator in obtaining information which is needed.
The first step in the formal EEO process begins at the OAC. Upon receipt of a formal complaint, OAC will analyze the complaint and make a determination on whether to accept the complaint for investigation or dismiss the complaint without an investigation. OAC may dismiss a complaint if the allegations are untimely; failure of the Complainant to state a claim or show that he or she has been harmed; failure to allege an adverse action due to one of the covered basis (i.e. race, sex, age, etc.); or lack of jurisdiction (i.e. if the complaint is against a contractor). OAC notifies the Complainant and the Agency whether the complaint was accepted for investigation or dismissed.
Once an EEO complaint is accepted, a contractor is assigned by the ECB to investigate the complaint. The ECB gives the contractor forty-five (45) work days to complete the investigation and develop a Report of Investigation (ROI). However, this date may be extended if necessary. A case must be investigated within 180 days from the receipt of the Formal Complaint. The contractor assigns an investigator. The investigator is a neutral party. He or she will interview the Complainant, witnesses, and management officials who are relevant to the investigation. It is expected that the Complainant, management officials, and all witnesses will cooperate in the investigation and make themselves available to be interviewed.
The investigator will also request documents and information essential to the investigation. The ECB will send out the Requests for Information to the appropriate management officials with the expectation that the required documents will be sent within two (2) weeks to the ECB. The ECB will forward the documentation which was obtained to the investigator. The investigator will insert the documents into the final ROI. It is the responsibility of all parties to cooperate with the investigator in order to obtain as complete of a record as possible.
Following completion of the investigation, a ROI is provided to the ECB from the contractor. The ECB will review the ROI for legal sufficiency. A copy of the ROI will then be distributed to Complainant or his/her representative and to the OAC.
Upon receipt of the ROI, the Complainant has the right to exercise one of the following options: (1) withdraw the formal complaint; (2) request a final agency decision (FAD) by the USDA based on the evidence of record; or, (3) request an administrative hearing by an EEOC Administrative Judge (EEOC AJ). If the ECB does not receive the election form regarding the chosen option within 30 calendar days of receipt of the ROI, USDA will proceed to issue a FAD based on the evidence of record. In order to assist the Complainant in processing the chosen options, the ECB encloses a “Final Agency Decision or Withdrawal Election Form” and a “Hearing Election Form.”
In addition to choosing one of the options, the Complainant may also elect to participate in Alternative Dispute Resolution (ADR). This attempt at resolution does not stop the hearing or final Agency decision process.
If a Complainant elects a final decision without a hearing, OAC will issue the decision. The decision will inform the Complainant whether or not OAC found a violation of any Civil Rights Law(s) specified in Complainant’s EEO complaint. If a violation is found, the OAC will specify the actions it will take to remedy the situation. If the Complainant is dissatisfied with the decision, an appeal may be filed with EEOC. Complainants who are dissatisfied with a decision from EEOC may go to Federal District Court.
If the Complainant elects a “Hearing,” an EEOC AJ will hold an administrative hearing. An administrative hearing is an adjudicatory proceeding that completes the process of developing a full and appropriate record. The proceeding gives the parties a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses. The AJ has full responsibility for the adjudication of the complaint. This authority includes, but is not limited to the following: (1) Issue decisions on complaints; (2) Administer oaths; (3) Regulate the conduct of hearings; (4) Limit the number of witnesses so as to exclude irrelevant and repetitious evidence; (5) Order discovery or the production of documents and witnesses by serving orders on both parties; (6) Issue protective orders not to disclose information; (7) Exclude any person who is disruptive from the hearing or who is a witness so that s/he cannot hear the testimony of other witnesses; (8) Issues decisions without a hearing if there are no material facts in issue; (9) Limit the hearing to the issues in dispute; (10) Impose appropriate sanctions on parties who fail to comply with orders or requests; (11) Calculate compensatory damage awards; (12) Order a medical examination; (13) Calculate and award the amount of attorney’s fees or costs; (14) Engage the parties or encourage the parties to engage in settlement discussions; (15) Issue an order determining full relief; and, (16) Hold a hearing in abeyance.
If the Complainant elects a hearing, the Complainant must send a copy of the election form directly to the EEOC as well as to the ECB. Upon receipt of the election form, a copy of the ROI is sent by the ECB to the AJ at the EEOC within fifteen (15) days of receipt of the request. The AJ will issue a decision to both parties within 180 days of receipt of the case file unless the AJ determines that good cause exists for extending the time for issuing findings of fact and conclusions of law. If discrimination has been found, the AJ orders the appropriate relief and remedies within that same time frame.
Within sixty (60) days of the receipt of the AJ’s decision, the USDA adopts the decision of the AJ by issuing a final order. However, if the Agency does not plan to fully implement the AJ's decision, the USDA must file an appeal with EEOC, Office of Federal Operations (OFO) within forty (40) days of the decision and give the Complainant his appeal rights. The USDA may file a brief or statement in support of its final action within twenty (20) days of the filing of its appeal.
If the Complainant is dissatisfied with the USDA’s dismissal, final action, or decision, he or she may file an appeal with EEOC, OFO within thirty (30) days of the receipt of the decision. The Complainant may also file a brief or statements in support of his/her appeal with OFO within thirty (30) days of filing the notice of appeal.
Both parties have thirty (30) days to submit a statement or brief in opposition to an appeal from receipt of the statement or brief supporting the appeal. If no brief or statement supporting the appeal is filed, the party opposing the appeal must file its opposition within sixty (60) days of the receipt of the appeal.
After the USDA is notified that Complainant has filed an appeal or within thirty (30) days of submission of an appeal by the USDA, USDA must submit the complete complaint file to OFO. If the record is complete, OFO shall issue a decision. The standards of review from OFO are de novo, or examination of the record without regard to the factual and legal determinations of the previous decision maker, on appeals from USDA dismissals or final decisions. The standards of review from OFO on factual findings in a decision by an AJ shall be based on a substantial evidence standard of review. In this instance, the burden is on the party challenging the AJ’s decision to demonstrate that the AJ’s factual determinations are not supported by substantial evidence. The findings of OFO are final. If there is a finding of discrimination, the Agency must provide full relief.