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.
must be counseled regarding the class complaint procedures upon requesting a class complaint
counseling. See 29 C.F.R. §1614.204.
Counselor and designating a representative).
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).
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.
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.
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.
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."
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.
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."
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 used 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). See how to write a
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.
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
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
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.
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. See more on Amending Complaints.
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. See EEOC
hearing on discoveries.
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. See 29 C.F.R.§1614.105(c). 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
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