Informal Pre-complaint Counseling Process

➤How to file an Informal Discrimination Complaint with EEO Counselor involving federal employment discrimination (29 C.F.R. §1614.105):

You must contact your local EEO counselor within 45 days of the act of discrimination ("act of harm") to begin the "informal" counseling ("pre-complaint") process.  This is the first step to filing discrimination complaint in federal government.  Although this is an "informal" process, nothing is "informal."  See below.  The counseling period should not exceed more than 30 days from your "initial contact," unless you have requested mediation or granted extension. Within 30 days of your "initial contact." the final interview by the counselor must be conducted; and the counselor must issue you a Notice of Right to File a Formal Complaint.  See 29 C.F.R. §167;1614.105(d).  Within 15 days of your filing a formal complaint, the counselor must issue you a Counselor's Report.  See 29 C.F.R. §167;1614.105(c).  See below for Counselor Report.

➤To file a class (action) complaint, one must seek EEO counseling within 45 days of act of harm and must be counseled regarding the class complaint procedures upon requesting a class complaint counseling. See 29 C.F.R. §1614.204 below.

• Note: To use when contacting EEO Counselor and designating a representative.

➤ US Postal Service employees can file a discrimination complaint by mailing to: NEEOISO-Informal Complaint, U.S. Postal Service, P.O. Box 25438, Tampa, FL  33622-5438; or call 1-888-336-8777 (or for deaf and hard of hearing individuals 1-888-325-2914).

➤ For information regarding the class action complaint against USPS National Reassessment Process (NRP), click on: http://www.nrpclassaction.com/faq.  Click for the NRP class action questionnaire.  If you received the questionnaire without the address to which to send it back, contact the law firm representing the class complainant:  Thomas & Solomon, LLP, 693 East Avenue Rochester, NY 14607. 585-272-0540 (tel); 585-272-0574 (fax) or click on their website on NRP Class Action.  For EEOC's Office of Federal Operation (OFO) decision certifying the class action, click OFO Decision issued on January 14, 2010.

➤ Employees of the Department of Veterans Affairs can file a discrimination complaint by contacting: 

• Department of Veterans Affairs, Office of Resolution Management (08), 810 Vermont Avenue, NW, Washington, DC 20420, call 1-202-501-2800, or visit http://www4.va.gov/orm.

➤ The date of your initial contact with EEO counselor is very important.  Because it starts the time clock backward for determining the 45 day window period within which you must contact EEO counselor to initiate federal EEO complaint process.  If the contact date falls on the 46th day after the act of harm, you have missed the deadline.  Your claim will be deemed untimely and be dismissed.  Many valid complaints are dismissed for untimely filing.

However, the 45 day time limit may be extended later (during the formal complaint process or during the EEOC hearing process) if the complainant "was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission [EEOC]." 29 C.F.R.§1614.105(a)(2).  So, even if you missed the 45-day time limits, it is better to contact the EEO counselor and file an informal complaint--if the above exceptions apply--and argue during the (subsequent) formal complaint process why the Agency should afford you an equitable tolling or estople of the 45-day time limits.

• Note: Unless you allege discrimination with specific issues and bases, your first contact may not be counted by the Counselor as the "initial contact."  Therefore, establish your "initial contact" with the EEO counselor in writing by sending your affidavit containing the issues and bases by mail, email, or fax.  Alleging: "I was suspended unfairly" is not enough.  You must state: "I was suspended based on my race or age [etc]."  Without 

the mention of "based on age or race [etc]" your contact may not be considered an EEO contact activating the
EEO process.  Another example: "I was harassed" is not enough.  You must specify for example: "I was
harassed based on my prior EEO claim."  See warnings about claiming "harassment" rather than "disparate
treatment in terms and conditions of employment."

➤ Interview with the Counselor

Do not be intimidated by your EEO counselor.  Do not let him/her put words in your mouth.  You must be prepared to identify issues and bases of discrimination.  Attach your own affidavit containing issues and bases to the pre-complaint form the counselor will fill out for you and write in the pre-complaint form: "See attached my affidavit." Know your dates associated with the events you are alleging.  An event without a date is not a fact.

Insist on having your representative present, if you have a representative.

Do not talk with the Counselor without your representative, if you have one.

What you did not mention to the EEO counselor may not be alleged later when you file a formal complaint.

29 C.F.R. §1614.105(g) states: "The Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint." Unfortunately, based on what my clients tell me, too many EEO counselors do "restrain the aggrieved person from filing a complaint."

29 C.F.R.§1614.105(b) says: "At the initial counseling session, Counselors must advise individuals in writing of their rights and responsibilities, including the right to request a hearing after an investigation by the agency, election rights pursuant to   1614.301 and 1614.302, the right to file a notice of intent to sue pursuant to 1614.201(a) and a lawsuit under the ADEA instead of an administrative complaint of age discrimination under this part, the duty to mitigate damages, administrative and court time frames, and that only the matter(s) raised in pre-complaint counseling (or issues like or related to issues raised in pre-complaint counseling) may be alleged in a subsequent complaint filed with the agency."

In my experience, the provision just cited above is hardly observed by the EEO counselors.  The forms and information you were supposed to be given "at the initial counseling session" are hardly given in the beginning. Rather, they are usually given at the end of the counseling session (close to the 30th day from the initial contact--if you declined mediation and extension--or close to the 90th day  from the initial contact--if you agreed to mediation or extension). The forms are given sometimes via email or fax with no explanation.

Friendly chats or verbal consultation with the EEO counselor may not be count as a contact. Please use the word 'discrimination' and identify issues and bases when you report to the EEO counselor. Also leave a clear paper trail to verify and to prove your contact with EEO counselor, what you stated to him or her. If you cannot prove that you have contacted your EEO counselor on certain date, it will be deemed that you have not made the initial contact on the date you thought you did.  Email or fax is the best way to contact and report discrimination to an EEO counselor, even if you are told to call first.  The date of call may not be counted as the initial contact day, even though it should (if you stated your issues and bases clearly to the EEO counselor).

It is advisable to submit an affidavit stating and supporting your allegations. Don't rely on or expect the EEO counselor to do the necessary work for you. He or she won't. I have seen many EEO counselors sabotaging discrimination complaints at the outset. Why?  

1.  The less cases, the less work they have to do.
2.  EEO counselors are on the management's payroll.  
3.  Some counselors may have been instructed by the Agency EEO Director to suppress, desist, or otherwise deter discrimination complaints in violation of law.  

Agencies do not like discrimination complaints and may, in violation of law, retaliate against you vigorously for filing.

Advice:

Keep records of all contacts with your local EEO counselor: as to when, who you contacted, how the contact was made, and what you stated. Issues and bases must be articulated properly, otherwise your claim won't be recognized as valid. Many valid allegations are ignored or dismissed based on a 'failure to state a claim,' 'non jurisdiction,' or 'untimely filing.' 'Failure to state a claim' means allegations are vague, general, or unspecific, or lack details such as dates, names, the act of harm, etc.  'Non jurisdiction' may involve failure to identify the bases or the filing was untimely.  Examples:  "I am discriminated against" means nothing.  This claim is vague, has no date, no act of harm, and no basis.  To make an acceptable claim you may want to say: "On May 5, 2009, I was issued a warning based on my age, 55."  Here you have stated the act of harm: warning; and the basis of discrimination: age 55.  By stating the date, you can establish whether the claim is timely filed or not (depending on when you initiated contact with the EEO counselor). 

Caveat:

EEO counselor is not your advocate. He or she thinks she is part of the management. Do not believe what your EEO counselor says unless it is written. Follow up everything with writing as much as possible. Do not hand-deliver your complaint or supporting documents to EEO Counselor. He or she may deny ever receiving such things later on.

➤ Do not grant an extension to your EEO counselor. Many think that by granting an extension (of maximum 60 additional days) one extends one's time to file the discrimination complaint. This is not true; and this is how the extension request is presented by the EEO counselor sometimes. In reality the extension only benefits the EEO counselor and the Agency.  Because the extension would give more time to the Agency to respond to your complaint and to the EEO counselor to compile the Counselor's Report (see below). Also, when you grant an extension, you won't get additional time to prepare your allegations and records. Therefore, do not grant an extension. It does not benefit you in most cases.

Upon contacting the EEO counselor--and regardless of whether the EEO Counselor deems your allegations to be valid or not--he or she must give you several forms to read and sign. Your rights and complaint/appeal process should be written clearly and understandably. Depending on Agency, you may be given a pre-complaint form, which must be submitted within 5 or 7 days of receipt (depending on the EEO counselor). Do not miss the deadline.  You won't be given any extension for additional time to submit the pre-complaint form, unless you can show hospitalization, death in the family, etc. Be careful with the question in the pre-complaint form inquiring: why you feel you are discriminated against, or something to that affect.  Feel free to attach your statement or affidavit. See an affidavit form and how to write a complaint.  Make sure you check off all issues and bases. If an issue or basis is missing, your allegation on that issue or basis may not be accepted later for investigation.  Sometimes the Counselor writes his or her own "worksheet."  Do not sign off on it unless you are fully satisfied with what is stated in the "worksheet." Do not let them put words into your mouth, as it were. Do not let the counselor water down your allegations by letting them omits dates, names, or put wrong dates. Again, it is better to present your own statement in an affidavit form than let the counselor write your allegations for you.

After your initial contact with the EEO Counselor, the Counselor may want to interview you to get the issues and bases, regardless of what you may have stated or submitted before. You have a right to be represented. You must articulate your allegations with specifics: with dates, names, and details of the act of harm based on your protected class. Beware of what you say to the EEO counselor. It will be recorded and may be used against you in the Counselor's Report (see below), which must be issued to you within 15 days of your filing a formal complaint.

During the mediation, do not drop or withdraw your complaint without getting what you want in return or before the matter is resolved amicably, completely, and verifiably. Do not settle/mediate unless in writing executed with your and management's signatures.

➤ Amendments:

You can amend your charge or file a new charge, if valid and timely, at any time before the Report of Investigation (see Formal Complaint Process) is issued, or after your case is accepted by EEOC for a hearing before an administrative judge (see EEOC Hearing). After a formal complaint is filed, you may file additional claims without going through the counseling (pre-complaint) period by submitting the written (amended) complaint to EEO headquarter or to EEO Director.  Request that the pending claims be amended to include the new issues.  EEO Director will decide if the new issues are "related" or "stemming from" the pending claims already filed.  If they are, the pending claim will be amended to include the new issues.  If they are not, the pending claim won't be amended; and you have to go back to your counselor to begin the process again with the new issues.  The date of your submission to EEO headquarters or Director (with the new issues) should be considered as your "initial contact" for the new issues for the purpose of tolling the 45-day jurisdictional time limits within which you must file. 

Under the Freedom of Information Act, you have the right to request your agency to produce documents relevant to you case.  This may be the only tool of discovery you may have in the EEO process (until you request an EEOC hearing).  This tool should be used well in advance, however, as the Agency may drag its feet in responding to or producing your request.  When requesting, be very specific and time bound.  Name the documents or describe them as much as possible with specific date range or date of issuance of such docs.  Many requests are responded to by the Agency trying to understand or pretending to not understand what was requested.  In other words, don't request any and all documents ranging over 10 years or more with no date range specified and with no specific names associated with records or with no issuer's name or title or with no date of issuance. 

➤ Mediation:

Upon your consent or request, EEO Counselor will schedule a mediation or the Alternative Dispute Resolution (ADR) meeting. EEO Counselor may relay your complaint to the management and may seek to solicit the Agency's verbal response to your complaint.  You have the option to decline the mediation or ADR. If you want to mediate, you must fill out the Mediation Consent form.  You have a right to be represented at the mediation. See how to negotiate a settlement agreement. Mediation will extend the pre-complaint process period automatically up to additional 90 days. Without mediation or your granting extension, the pre-complaint counseling period is 30 days. It seems that mediations are promoted only to extend the pre-complaint process, Agency management would not negotiate in good faith at mediation meetings.

Advice:  

Decline mediation. But if you want mediation, do not short change yourself by asking or accepting too little. Be realistic and yet exercise your maximum rights. Consult your representative on what to ask. Be prepared for and reject the Agency's minimal offer (like $500 or a handshake). Always be willing to walk off the mediation/settlement conference. Try not to talk about the merits of the case, despite Agency's attempt to do so. Nothing will be recorded in the mediation meeting. (So it is waste of time to try to demonstrate your case at the mediation; because nothing will be recorded and mediator has no authority to rule on your case.) Be prepared to backup your damage claims however. See guideline on compensatory damage. General rule of negotiation: start high (but be realistic) and negotiate downward.  Do not raise your demands higher later--this is a bad negotiation tactic and would most likely fail.  Don't be intimidated by Agency lawyer or manager.  In the mediation meeting you are equal to them. Do not trust anything stated unless committed in writing. See more on settlement and mediation.

➤ EEO Counselor Report:

Within 15 days of your filing a formal complaint, the EEO Counselor must submit a Counselor Report to the Agency's EEO office and to you, summarizing your allegations and Agency's responses and the actions taken, if any.

If you don't file a formal complaint, there won't be any counselor report filed, as there won't be any records of your complaint; because the pre-complaint process is 'informal' or is 'pre-complaint'.  As such, it is unofficial.  That is, your complaint does not exist on record.  So, don't submit any evidence to your EEO counselor or during the pre-complaint counseling period.  You may never see the docs again later on, unless you file a formal complaint and unless you forward your docs once again to the EEO investigator (at the risk or cost of duplicating the records). Many times, to one's amazement, the docs are not forwarded to EEO investigator from the EEO counselor.

The Counselor Report will become a part of the official record Report of the Investigation (ROI) or Investigation File (IF); see Formal Complaint Process). Again, be aware of what you say to the Counselor.  Your statements that may undermine your discrimination claims may be recorded, such as: "My supervisor treats her better than I because she is his brother's friend".  Such statement will undermine your sex discrimination claim, if you are claiming discrimination based on your sex, Male.  (All the more reason to report discrimination in writing or via email when you contact your EEO Counselor to report discrimination/retaliation). With the Counselor Report, the role of EEO Counselor is finished with your case. Records you submitted to the counselor should be forwarded to the EEO Investigator once the case is assigned to him/her.  But in many cases your records may not be so forwarded.  

Advice:

Don't submit any supporting records to the Counselor, since they won't be forwarded to the EEO investigator and since Counselors do not investigate and should not decide on the merits of the case.  Even the EEO investigators do not have the authority to determine the merits of the case.  Their role is to gather information and records to submit and compile the Report of Investigation (ROI) or the Investigation File (IF).

The Notice to Right to File a formal complaint  should be issued within 30 days of your 'initial contact' with the EEO counselor.  It should include the formal discrimination complaint form.   You need to fill out the form carefully and submit within 15 days of receipt of the Notice, if you want to proceed to the next level.  See Formal Complaint process.  See how to write a complaint of discrimination.  Again, attach your affidavit containing issues and bases and write in the formal complaint form: "See attached my affidavit dated ......"

You many need to re-submit to the EEO Investigator (see Formal Complaint process) everything you submitted to the EEO Counselor.  Sometimes, the evidence you submitted to the EEO Counselor may get "lost" and may never be forwarded to the EEO Investigator.   It is better therefore to submit your evidence to the EEO Investigator (after filing a formal complaint and after an investigator is assigned to your case) rather than to EEO Counselor (during the informal pre-complaint counseling process).

Disclaimer: All information contained in this page is subject to change.  EEO 21, LLC, is not responsible for any errors or misrepresentation.

Disclaimer

• Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
• Mr. Lee does not practice law and cannot provide attorney-client protection privileges.  However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
• Mr. Lee cannot and does not represent clients at court proceedings.