U.S. Department of Commerce
Manual for Processing Discrimination Complaints
Part II, Section A, Chapter 4
THE FORMAL EEO COMPLAINT PROCESS

The formal complaint process begins when an individual files a formal EEO complaint with the Department. Processing of EEO complaints is governed by EEOC regulations at 29 C.F.R. Part 1614, EEO MD-110, other applicable guidance, case law of the EEOC and federal courts, and Department policy. This chapter describes the processing of individual complaints that are not mixed cases. See Chapter 9 for information on the processing of mixed case complaints and Chapter 10 for information on the processing of class complaints.

Mandatory EEO Counseling. A complainant must complete informal complaint stage before a formal complaint can be accepted for processing. To preserve the right to file a formal complaint, the informal complaint must be initiated within 45 calendar days of the date of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the complainant knew or should have known that the event or action may have been discriminatory.

Content and Format of Complaint. A formal complaint of discrimination must:

• be in writing
• be signed by the complainant or the complainant's attorney
• identify the complainant and the Departmental bureau or office responsible for the action or practice alleged to be discriminatory; and
• be sufficiently precise to identify the action or practice(s) alleged to be discriminatory.

In the interest of uniformity and to aid in processing complaints, complainants should be encouraged to submit complaints on Form CD-498, Complaint of Formal Discrimination. If a complainant submits a formal complaint that is not on Form CD-498, the OCR or the responsible EEO Officer shall complete a standard form using the information furnished by the complainant or ask the complainant to complete a form.

Filing the Complaint. Complaints may be filed by mail, hand-delivery, or fax.

EEO complaints must be filed with one of the following officials:

• Director, Office of Civil Rights
  U.S. Department of Commerce
  Mail Stop 6012
  Washington, D.C. 20230
  Fax: 202/482-5375 or 202/501-2937
• The EEO Officer for the bureau in which the alleged discrimination took place.

If a complaint is filed with the Director of OCR, OCR shall send a copy of the complaint to the EEO Officer. If a complaint is filed with the EEO Officer, the original complaint shall be sent to OCR. Any other Department or bureau official who receives an EEO complaint shall immediately forward it to the Director of OCR.

Time Limits and Filing Date. The complaint must be filed within 15 calendar days from the date the Notice of Right to File is received by the complainant.

The filing date is:

• the date the Director of OCR, or bureau EEO Officer receives the complaint, if hand-delivered or faxed to that official;
• the postmark date if mailed to an appropriate official;
• the date of receipt by an appropriate official, if received by mail with no legible postmark. Such complaints are considered timely filed if received within five (5) days of the end of the filing period.

Upon receipt of a complaint, OCR or the bureau EEO Office shall enter the filing date in the upper right-hand corner of the Form CD-498.

To ensure proper processing of the complaint, the filing date should be included on all correspondence relating to the complaint. Complainants should also be advised to include the filing date on correspondence or submissions related to the complaint.

Waiver of Time Limit. The Director of OCR may extend the time limit for filing a complaint if the complainant shows:

• that s/he was not informed of the time limits and was not otherwise aware of them;
• that circumstances beyond his/her control prevented the complaint from being filed within the time limits; or
• other circumstances considered sufficient by the Director.

Counselor's Report and EEO Officer's Recommendation. Within 15 days of receipt of the complaint or copy of the complaint, the EEO Officer shall:

• review the complaint, EEO Counselor's report and other relevant documents and may recommend to the Director of OCR, in writing, whether each allegation in the complaint should be accepted for processing;
• determine whether the issues covered in the complaint were raised in counseling and that all available information needed to assess the acceptability of the complaint is included in the report. If additional information is needed that is not available to the EEO Officer, the Counselor shall be asked to furnish a supplemental report containing the required information; and
• submit to the Director of OCR his/her recommendation, if any; the complaint and any attachments; the counseling report and any exhibits; copies of notices transmitted to the complainant with proofs of receipt; and any supplementary information required by the circumstances of the case.

Intake

Review for Procedural Sufficiency. Upon receipt of the EEO Officer's recommendation and accompanying documents, OCR shall review the complaint for procedural sufficiency.

If the file does not contain sufficient information to make this determination, OCR may:

• ask the bureau EEO Officer to obtain additional information; or
• request additional information from the complainant.

Grounds for dismissal of complaints. EEOC regulations require the Department to dismiss a complaint or portion of a complaint under the circumstances outlined below. Allegations are generally dismissed upon initial review. However, the Department may dismiss allegations at any time up to the complainant's request for a hearing or the issuance of a Final Agency Decision without a hearing.

• Failure to state a claim: The allegation fails to state a claim under the laws enforced through the EEO complaint process and the EEOC regulations implementing them. 29 C.F.R. Section1614.107(a)(1).
• Duplication of a claim: The allegation states a claim identical to one that was raised in a pending complaint or in a prior complaint that has been decided. 29 C.F.R. Section 1614.107(a)(1).
• Untimely counseling: The complainant did not initiate EEO Counseling on the matter within 45 calendar days of an alleged discriminatory event or the effective date of a personnel action alleged to be discriminatory, or when the complainant knew or should have know that an event or action may have been discriminatory and the Director of OCR did not extend the time limits. 29 C.F.R. Section 1614.107(a)(2).
• Untimely filing: The complainant did not file the complaint within 15 days of receiving the Notice of Right to File and the Director of OCR did not extend the time limits. 29 C.F.R. Section 1614.107(a)(2).
• Allegation not counseled: The allegation was not brought to the attention of an EEO Counselor and is not like or related to a matter that was brought to the attention of a Counselor. 29 C.F.R. Section 1614.107(a)(2).
• Allegation raised in a civil action: The allegation was raised in a civil action in a United States district court in which the complainant is a party and (a) the matter has been decided by the court or (b) the matter is pending and 180 days have passed since an EEO complaint raising the allegation was filed. 29 C.F.R. Section 1614.107(a)(3).
• Allegation raised in a Negotiated Grievance Procedure (NGP) prior to filing EEO complaint: Prior to filing the formal EEO complaint, the complainant challenged the action or practice alleged to be discriminatory in a NGP that permits allegations of discrimination. The complainant need not have alleged discrimination in the NGP. 29 C.F.R. Section 1614.107(a)(4).
• Allegation raised in an MSPB Appeal prior to filing the EEO complaint: Prior to filing the formal EEO complaint, the complainant challenged the action or practice alleged to be discriminatory in an MSPB appeal. The complainant need not have alleged discrimination in the appeal. 29 C.F.R. Section 1614.107(a)(4).
• Mootness. There is no reasonable expectation that the action or practice will happen again and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. 29 C.F.R. Section 1614.107(a)(5).

  When a complainant has raised a claim for compensatory damages, the Department shall not dismiss a complaint as moot until the complainant has had a reasonable amount of time to produce evidence of entitlement to compensatory damages. Reasonableness shall be determined by the nature of the claim and reference to current case law.

• Allegation concerns a proposal or preliminary step: The allegation concerns a proposal to take a personnel action or other preliminary step to taking a personnel action. Note that, where the complainant is alleging hostile work environment harassment, a proposal or preliminary step could be part of a pattern of harassment. 29 C.F.R. Section 1614.107(a)(5).
• The complainant cannot be located: The complainant cannot be located after reasonable efforts and has not responded to a notice of proposed dismissal sent to the last known address within 15 calendar days. 29 C.F.R.Section 1614.107(a)(6).
• Failure to cooperate: The complainant has failed to respond to a written request to provide relevant information within 15 calendar days of its receipt or otherwise proceed with the complaint, or the complainant's response does not address the Department's request, provided that the request included a notice of proposed dismissal. If there is sufficient information in the record, the Department may issue a FAD instead of dismissing the complaint. 29 C.F.R. Section 1614.107(a)(7).
• Spin-off complaint: The complaint alleges dissatisfaction with the processing of a previously filed complaint. When such issues are dismissed, complainants will be advised of appropriate procedures to raise these issues. 29 C.F.R. Section 1614.107(a)(8).
• Abuse of process: The complaint evidences a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination. A clear pattern of misuse of the EEO process requires: (1) evidence of multiple complaint filings; and (2) allegations that are similar or identical, lack specificity or involve matters previously resolved; or evidence of circumventing other administrative processes, or intentionally trying to clog the agency's in-house administrative processes or overburdening the EEO complaint system. 29 C.F.R. Section 1614.107(a)(9).

If the entire complaint is accepted for processing, the Chief of the PID shall issue a memo stating the accepted allegations. The complainant must notify the Chief of the PID within 15 calendar days of receiving the acceptance letter if an allegation is not stated correctly.

If part of a complaint is dismissed, the Department will issue a decision containing a full explanation of the reason(s) for dismissing that portion of the complaint, and evidence or documents necessary to support that conclusion, if appropriate. The Department will then investigate the remainder of the complaint, but not the dismissed portion. If the complainant requests a hearing, the EEOC Administrative Judge will evaluate the reasons given by the Department for the partial dismissal. If a FAD is issued without a hearing, the Department will address its rationale for dismissing the allegations. The complainant then has the right to appeal the dismissal to the EEOC, using the procedures outlined in Chapter 5.

Content of Notices. The notice that all or a portion of a complaint has been accepted will include information about the complainant’s rights and responsibilities in the formal process, including information about when the investigation must be completed, and when and how to amend the complaint, to requested a hearing (where appropriate), and to request mediation (where appropriate).

If the entire complaint is dismissed, the Director of OCR will issue a FAD explaining the reasons for dismissal and stating any accepted allegations. The complainant may appeal the decision to the EEOC. See Chapter 5 for more information on the appeal process.

Mediation

If the case is eligible for mediation through ADR, the complainant may elect ADR by contacting the Department’s EEO ADR Program Manager. The DOC EEO ADR Program Manager will issue the Mediation Election Form to the complainant and will contact the management official to determine the official’s willingness to participate in mediation. If the management official is receptive to participating in mediation, the DOC EEO ADR Program Manager will notify the complainant and will make arrangements for the mediation session. If the management official is not interested in participating in mediation, the complainant will be notified accordingly. Even if a complaint is referred for mediation, OCR will proceed with the investigation to ensure that a complete, impartial record is compiled within the time frame dictated by 29 C.F.R. § 1614.108. If the complaint is resolved during mediation, the parties will develop a settlement agreement in accordance with the procedure set forth in Chapter 8.

Investigation

Accepted issues are assigned for investigation. Investigations are generally conducted by OCR staff investigators. Testimony and relevant evidence is collected and compiled in the Report of Investigation (ROI).

Time Limits. EEOC regulations require that the ROI be issued to the complainant within 180 days from the date the formal complaint was filed with the Department. The Department may seek from the complainant an extension of up to 90 additional days.

Methods of Investigation. OCR determines the method used to investigate a particular complaint. Generally, the investigator interviews each witness and develops an affidavit for the witness' signature or obtains answers to interrogatories from each witness.

Letter of Authority. The investigator is provided with a Letter of Authority signed by either the Chief Investigator or the Chief of the PID empowering the specific investigator by name to investigate the specific complaint. The Letter of Authority officially identifies the Department's authorized investigator to the complainant, representatives, and other witnesses and defines the requirements to provide full cooperation and information as may be requested by the investigator.

Requirement to cooperate with an investigator. Complainants are required to cooperate with the investigation of their complaints and provide information requested by the investigator. Other employees of the Department are also required to cooperate by providing testimony and documents requested by the investigator.

The agency official(s) whose actions are alleged to be discriminatory -- whether identified by the formal complaint or during the course of the investigation -- are expected to cooperate with the investigation, to provide the replies to the information requested by the investigator, and to respond to any and all allegations made against them or against the agency. If requested, the investigator shall furnish to such agency officials the complainant's affidavit and all documents in which the agency official is identified and charged with discrimination or other wrongdoing that will appear in the ROI, in order to allow them full opportunity to respond. These documents include the EEO Counselor's Report and the formal complaint.

Report of Investigation. Each investigation must develop and report sufficient evidence to allow an independent trier of fact to adjudicate the charges of discrimination using the ROI as the sole source of evidence to make a final decision. The ROI must also contain adequate descriptions and explanations to allow a person unfamiliar with the Department of Commerce and its employment practices to understand the results of the investigation using only the ROI as the source of information. ROI's usually contain the following documents:

• the formal complaint.
• the EEO Counselor's report and attachments.
• complaint transmittal, acceptance, and decision letters.
• the Investigator's letter of authority.
• an accurate organizational chart prepared by the investigator identifying and defining the relationships of the organizations, involved parties and testifying witnesses by unit, job title, series, grade, and basis groups. Comparable employees or applicants shall be identified only by number and/or job title, unless specifically named as part of the complainant's allegations and/or the agency reply.
• the complainants' affidavit or other record of sworn testimony sufficient to explain the allegations and reasons for them, to establish complainants' prima facie case and pretext arguments, claims for compensatory damages, and to develop the evidence the complainant has to prove the complaint.
• affidavits or other record of sworn testimony of responding agency witnesses sufficient to fully articulate the agency's reply to all allegations raised by the complainant or developed by the investigation, and to fully report the existing evidence to defend the agency's actions.
• affidavits or other record of sworn testimony of witnesses sufficient to resolve the issues in the complaint, or to otherwise provide evidence of what actions occurred regarding the complainant and similarly situated employees or candidates, and to provide evidence relevant to whether discrimination occurred.
• documentation relevant to the matters at issue sufficient to substantiate the events and claims in the complaint; to provide the existing evidence of what happened to the complainant and similarly situated employees or candidates; to provide the regulations, authorities and/or standing practices of the agency which may have authorized, required or prohibited the actions being investigated; and to provide evidence relevant to whether discrimination occurred.
• a statistical survey of the comparable treatment of similarly situated employees or candidates, identified by base group membership(s), that is directly relevant to the actions at issue in the complaint or decisions covering the most recent two-year period from the effective date of the accepted issue(s) in the complaint. If there are no comparable actions, employees or candidates, the Report of Investigation must provide clear explanation and corroboration of that fact
• any investigator's testimony of record reviews, research, necessary observations, unsigned witness information, evidence of tampering with a document that may not be apparent from the copies to appear in the Report of Investigation, and any situation affecting the full coverage of the investigation.
• If necessary, as in the case allegations of discrimination based on national origin or religion, the investigator shall obtain information regarding the membership or nonmembership of a person in the complainant's protected group by asking each person concerned to provide the information voluntarily. The investigator shall not require or coerce an employee to provide this information.

ROIs must be reviewed and approved by the Chief Investigator. If the Chief Investigator determines that the record is not adequate for use by the adjudicator, s/he may assign the case for supplemental investigation. Prior to approval, the contents of the ROI may not be released to anyone outside of OCR. Following approval, complete copies of the ROI are sent to the complainant, and the complainant's representative of record, if any.

Supplemental Investigations. If a need for additional information is discovered after the ROI is issued, the Chief Investigator may order a supplemental investigation. Supplemental investigations use standard investigative methods to obtain additional information to satisfy requests from OCR or directives from the EEOC. Supplemental investigations shall contain only the information specified by the authorized requesting source giving rise to the additional investigation. Additional testimony and documentation gathered during a supplemental investigation is added to the original ROI.

Effects of withdrawal and/or resolution agreements. Any investigation shall be discontinued as soon as one of the following documents is received by the Chief or Deputy Chief Investigator or the Chief of the Program Implementation Division:

• a copy of a completed notice of withdrawal dated and signed by the complainant, or
• a copy of a completed resolution agreement signed by all required parties.

If the investigation is discontinued for one of these reasons, no ROI will be issued.

Amendment of complaints. A complainant may amend a complaint to add issues or claims that are "like or related" to the original complaint any time prior to the conclusion of the investigation. After requesting a hearing, a complainant may also seek leave from the Administrative Judge to amend a complaint to add issues or claims that are "like or related" to the original complaint by filing a motion to amend.

A later incident or factual allegation is "like or related" to the original complaint when the later incident or factual allegation adds to or clarifies the original claim and could have reasonably been expected to grow out of the investigation of the original claim.

The "like or related" issues added to the complaint need not be brought to EEO counseling. For purposes of timeliness, these issues relate back to the date of counselor contact for the original complaint.

When a complaint has been amended, the agency shall complete its investigation within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint, except that the complainant may request a hearing from an Administrative Judge (AJ) on the consolidated complaints any time after 180 days from the filing date of the first complaint.

Adjudication of EEO Complaints

Method of Adjudication. Upon completion of the investigation, a complainant has the right to elect a hearing conducted by the EEOC. The complainant must request a hearing:

• within 30 days of his/her receipt of the Notice of Right to Request a Hearing if the complainant is not represented by an attorney.
• within 30 days of the attorney's receipt of the Notice of Right to Request a Hearing if the complainant is represented by an attorney.

The complainant may also choose to have a final decision based solely on the written record. If the complainant does not make a choice within the time limit, the Department will issue a FAD without a hearing.

Requesting a hearing. The Chief of the PID sends the complainant a Notice of Right to Request a Hearing, along with Complainant's copy of the ROI. This notice is sent by certified mail or by other means of delivery that provides proof of the date of receipt.

Complainants must send requests for a hearing directly to the EEOC, and notify the Department at the same time. Upon receipt of this notice, the Department must forward the complaint file to the EEOC within 15 days. If the Department receives a request for a hearing that has not been sent to the EEOC, the Department shall forward both the request and the complaint file, notify the complainant, and advise complainant of the requirement that requests for hearings be sent directly to the EEOC.

Upon receipt of a request for a hearing, OCR will also notify the Department's Office of General Counsel (OGC) and the EEO Officer. The EEO Officer shall make arrangements for a meeting site and a court reporter to prepare a verbatim transcript of the hearing. OGC is responsible for representing the Department at EEOC hearings.

Hearings are conducted by an EEOC AJ in accordance with 29 C.F.R. Section 1614.109 and other rules established by the EEOC.

Authority of the AJ. Upon appointment to the case, the AJ assumes full responsibility for the complaint. AJs will review the complaint file, preside over discovery or other fact-finding, hold a hearing and issue a decision. The AJ also has authority to dismiss all of a complaint for any of the reasons listed earlier in this chapter. At the conclusion of the hearing process, the AJ will issue a decision to both parties, along with a copy of the hearing record. Regulations require that the AJ issue a decision within 180 days after receipt of the complaint file.

Final order on the complaint. Once the AJ issues a decision, the Department has 40 days to issue a final order on the complaint. The final order will notify the complainant whether or not the agency will fully implement the decision of the AJ and will contain notice of the complainant's civil action and appeal rights. If the Department's final order does not fully implement the AJ's decision, the agency must simultaneously file an appeal with the EEOC. The Department may not introduce new evidence or write a new decision in the case when issuing a final order. Any final order that would adopt a finding of discrimination must be reviewed and approved for legal sufficiency by the OGC. If the Department fails to issue a final order within 40 days, the AJ's decision automatically becomes the final action of the Department.

Full implementation of an AJ's decision. The Department fully implements an AJ's decision by adopting the decision. If the decision orders relief, the Department must also provide the ordered relief to the complainant.

Final Agency Decisions without a hearing. FADs on the merits of a complaint are issued by the Department's Director of OCR. If a FAD is requested, the Department must issue a decision within 60 calendar days of the request. If the complainant does not request a FAD or a hearing within the time limit, the Department shall issue a FAD within 90 days of the date the complainant received the Notice of Right to Request a Hearing. FADs must explain the reasons for the Department's findings on the merits of the accepted allegations and the reasons for dismissal of any allegations. Any FAD finding discrimination must be reviewed and approved for legal sufficiency by the Office of General Counsel.

Consolidation of Complaints for Joint Processing

Complaints filed by the same complainant. EEOC regulations require the Department to consolidate two or more complaints filed by the same complainant.

Complaints filed by different complainants. The Department or the EEOC may consolidate complaints of discrimination filed by two or more complainants consisting of substantially similar allegations of discrimination or relating to the same matter after appropriate notification to the parties.

Time frame for investigation of consolidated complaints. When a complaint has been consolidated with an earlier filed complaint, the Department must complete its investigation within the earlier of 180 days after the last complaint or 360 days after the filing of the original complaint, except that a complainant may request a hearing from an EEOC AJ any time after 180 days from the date of the first complaint. If a complainant requests a hearing on consolidated complaints prior to the agency's completion of the investigation, the AJ will decide how best to ensure an appropriate record.

Consolidation of complaints at hearing. When an AJ becomes aware that one or more complaints in the Department's EEO process should be consolidated with a complaint in the hearing process, the AJ may consolidate all claims at the hearing stage or hold the complaints in the hearing stage until the others are ready for hearing.

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