U.S. Department of Commerce
Manual for Processing Discrimination Complaints
Part II, Section A, Chapter 6
OTHER ISSUES IN THE EEO COMPLAINT PROCESS

Representation

At all stages of the EEO complaint process, the complainant has the right to a representative of his/her choice. The representative may accompany and advise the complainant through each stage of the complaint process. The complainant is at all times responsible for proceeding with his/her complaint, regardless of whether or not s/he has designated a representative. A representative may or may not be an attorney.

If the representative is an attorney:

• s/he will be eligible for attorney's fees only for services performed after the formal complaint is filed and only after the complainant has notified the Department that s/he is represented by an attorney.
• all official correspondence will be sent to the attorney, with copies to the complainant. Timeliness will be calculated from the date the attorney receives the correspondence.

If the representative is not an attorney:

• all official correspondence will be sent to the representative, with copies to the complainant. Timeliness will be calculated from the date the complainant receives the correspondence.

Representatives who are Department employees. If the complainant's representative is an employee of the Department, the following rules apply:

• If the representative's participation in the complainant's case conflicts with his/her official or collateral duties, the Department or EEOC may disqualify the representative. The representative must be given an opportunity to explain why s/he should not be disqualified.
  • Employees of the Department's OCR and bureau EEO Offices may not serve as representatives.
     
  • The representative will be allowed reasonable official time to represent the complainant, upon request.

Notice of representation. Before disclosing complaint information to a person claiming to be a complainant's representative, the OCR or bureau EEO Office must obtain written notification that the complainant has designated the individual as his/her representative. If the representative is an attorney, correspondence from the attorney concerning the complainant's case is adequate notice. If the representative is not an attorney, written notification from the complainant must be obtained.

Conflicts of Interest

To maintain the integrity of the EEO complaint process, conflicts of interest, conflicts of positions, and the appearance of such conflicts must be avoided.

Conflict between EEO and personnel functions. Agency officials who are responsible for executing and advising on personnel actions may not be responsible for managing, advising, or overseeing the EEO pre-complaint or complaint process. The EEO process generally challenges the motivation and impact of personnel actions and decisions; therefore, the two functions must remain separate.

Neutrality of EEO staff. EEO Officers, Counselors, and Program Managers are disqualified from serving as representatives for complainants or agencies in connection with the processing of discrimination complaints. The official or collateral duties of EEO staff requires them to gain the confidence of both the agency and the employees by remaining neutral parties throughout the complaint process.

Special processing arrangements to address conflicts of interest involving EEO or high-level officials. Alternate arrangements for processing EEO complaints will be made when:

• officials responsible for EEO programs or high-level bureau or Department officials in their chain-of-command were involved in the matters at issue in a counseling or complaint; or
• there is some other conflict-of-interest situation making alternate processing arrangements.

All alternate processing arrangements must be made through the Program Implementation Division. EEO Officers or OCR staff should notify the Chief, Program Implementation Division, immediately when they become aware of a conflict or the appearance of a conflict.

Alternate processing arrangements may include:

• cross-counseling, i.e., counseling by a person employed by another Departmental bureau or another federal agency, or
• investigation and other aspects of formal complaint processing by the EEOC or another federal agency.

Computation of time and waiver of time limits

Computation of time limits. All time periods in this manual are stated in terms of calendar days unless otherwise noted. The first day counted shall be the day after the event from which the time period begins to run and the last day of the period shall be included, unless it falls on a Saturday, Sunday or federal holiday, in which case the period shall be extended to include the next business day.

A document shall be deemed timely if it is delivered or postmarked before the expiration of the applicable filing period. In the absence of a legible postmark, a document is deemed timely if it is received by mail within five days of the expiration of the applicable filing period.

Waiver, estoppel, and equitable tolling. Complaint processing time limits are subject to waiver, estoppel, and equitable tolling. This includes the 45-day time limit for initiating EEO counseling and the 15-day time limit for filing a formal complaint.

The Department will extend time limits when:

• the complainant shows that s/he was not notified of the time limits and was not otherwise aware of them; or
• the complainant did not know and reasonably should not have known that the matter or personnel action occurred;
• despite due diligence, the complainant was prevented by circumstances beyond his/her control, e.g., a debilitating illness, from contacting a counselor, filing a complaint, or taking other action on the complaint within the time limits; or
• there are other reasons considered sufficient by the Director of OCR or the EEOC.

The EEOC may also suspend the time limits when considering a complaint on appeal.

Continuing violations. Time limits for EEO counseling are waived as to all but one of the allegations that are part of a continuing violation allegation. A continuing violation is a series of related discriminatory acts, at least one of which falls within the time period for contacting an EEO Counselor. In determining whether a continuing violation is present, it is important to consider whether the complainant had prior knowledge or suspicion of discrimination. The complaint must also demonstrate a nexus between the timely and untimely allegations.

Official Time

Employees may be granted official time for processing EEO complaints. Official time is time granted to an employee when the employee would otherwise be in a duty status without charge to leave or loss of pay. It includes time spent by an employee on EEO activities during regular working hours (including regularly scheduled overtime hours) or during a period of irregular unscheduled overtime work when the employee's presence is required at this time at a meeting or hearing by Department, bureau, or EEOC officials.

A Department employee may be granted official time to:

• pursue the employee's own EEO complaint against the Department,
• represent other Department employees in pursuing their EEO complaints against the Department, and
• give evidence as a witness in an EEO inquiry or investigation, and/or at a hearing held on an EEO complaint before the EEOC.

Employee requests for annual leave, compensatory time, credit hours or any other type of leave for EEO activities are subject to normal leave granting procedures.

Official time for Complainants and Representatives. Complainants and their representatives, if they are Department employees and otherwise in pay status, shall be:

• granted official time for meetings regarding EEO complaints where their presence is required by Department, bureau, or EEOC officials, regardless of their normal tour of duty, and
• afforded a reasonable amount of official time for preparation and processing of a complaint if they are otherwise in duty status. This includes time spent in the appeal process.

The actual number of hours to which complainants and representatives are entitled will vary, depending on the particular circumstances. All requests for official time should be submitted to the employee's immediate supervisor. Supervisors who have questions concerning the amount of official time requested should contact the applicable bureau EEO Officer or the Office of General Counsel or their servicing Human Resources Officer.

Reasonable Time. The EEOC defines reasonable time as:

whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to agency requests for information.

EEO MD-110, Chapter 6, Section VIII.C.1.

In determining the reasonableness of requests from complainants and their representatives, the following factors are considered:

• the nature and complexity of the complaint,
• the amount of time needed to prepare for, and participate in meetings and hearings related to the pursuit of the complaint, and
• the agency's need to have the employee available to perform his/her normal duties on a regular basis.

Complaints against other federal agencies. Official time will not be granted to Department employees pursuing complaints against other federal agencies, or serving as representatives in such complaints.

Official time for serving as a witness in an EEO complaint. Witnesses shall, if federal employees, be in a duty status while being interviewed by EEO Counselors or investigators, and during the period of their availability at the hearing. Witnesses shall be granted official time whether the complaint is against the Department or another federal agency.

Processing requests for official time from complainants, representatives, and witnesses. Supervisors are responsible for approving or disapproving requests for official time to prepare and present EEO complaints, or to serve as a representative or witness. The servicing human resources office is available to assist supervisors in matters relating to the use of official time. The bureau EEO Officer may provide supervisors with specific information needed to verify the reasonableness of the official time request, such as:

• the length of time spent in meetings with EEO counselors, in interviews with the EEO investigator, or in a hearing before the EEOC; and
• the relative complexity of the issues.

For more information on this topic, see Leave Handbook, Section 11, Excused Absences, Equal Employment Opportunity Complaints.

Privacy Act Considerations in the EEO Process

The Federal government compiles a wide range of information on individuals. The Privacy Act of 1974 (Act) (5 U.S.C. § 552, et seq.) prohibits federal agencies from disclosing personal information without the permission of the individual to whom the record pertains, except under limited circumstances. The Act applies to "any record within a system of records," which means those records retrieved by name, Social Security number or other personal identifier. The Act defines a "record" as:

[A]ny item, collection, or grouping of information about an individual that is maintained by an agency, including but not limited to his education, financial transactions, medical history, criminal or employment history, and that contains his name or identifying number or symbol, or other identifying particular, such as a finger or voice print, or a photograph.

5 U.S.C. § 552a(a)(4)

The EEO process often requires disclosure of information that would otherwise be kept private. This includes data about race and disabilities compiled for affirmative employment purposes, personnel records, suitability investigations, job-related medical documentation and other records containing information about identifiable individuals.

Exceptions to the Privacy Act that are applicable to the EEO complaint process. There are four exceptions to the Act's prohibition of disclosure of private information. Two that are most applicable to the EEO complaint process permit disclosure:

• to officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties (§ 552a(b)(1); and
• for a "routine use," which is defined as the use of a record for the purpose for which it was collected ( § 552a(b)(3)).

EEO Officials and access to protected information. The EEO process involves fact-finding at both the informal and formal stage. EEO Officers, Counselors, investigators and other EEO personnel involved in processing complaints must obtain and/or view information that would otherwise be private so that actions taken on EEO complaints will be based on complete, impartial factual records. With the right to access private information comes the duty to protect it from unauthorized disclosure. Contractors in the EEO process are permitted the same access to protected information as Department employees and bear the same responsibility to guard against unauthorized disclosure.

EEO files and electronic records. To prevent unauthorized disclosure, those responsible for handling and processing EEO files must maintain the files in a secure manner. The Act makes no distinction between paper and electronic records.

EEO investigators must ensure that only relevant evidence is included in their reports. Private information that is not relevant to the issues in the complaint must be sanitized, i.e., removed or rendered illegible in accordance with the Chief Investigator's instructions. The investigator has the primary responsibility for sanitizing the ROI, but personnel charged with reviewing and approving the ROI before its release to the complainant must also ensure that only relevant information is disclosed.

The notes taken by EEO Counselors and investigators during interviews with the complainant and witnesses do not become part of the administrative file or ROI. If they are kept in the Counselor or investigator's own files, the notes are considered records subject to the Act's protection to the extent that they contain information about identifiable individuals.

Participants in the EEO process may communicate with OCR and operating unit EEO offices via electronic mail (e-mail), but should be aware that most of the Department's e-mail systems do not guarantee privacy. E-mail messages that contain Privacy Act information, whether printed or stored electronically, must be protected like any other record and are subject to the same disclosure requirements.

Disclosure of information to other entities. Under the "routine use" exception described above, OCR and operating unit EEO offices may disclose information contained in a ROI or other EEO file as follows:

• to disclose pertinent information to the appropriate federal, state or local agency responsible for investigating, prosecuting, enforcing or implementing a statute, rule, regulation or order, where the Department of Commerce becomes aware of an indication of a violation or potential violation of criminal or civil law or regulation.
• to disclose information to another federal agency, to a court, to a party in litigation before a court or in an administrative proceeding being conducted by a federal agency when the government is a party to the judicial or administrative hearing.
• to provide information to a Congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of that individual.
• to disclose to an authorized grievance examiner, formal complaints examiner, administrative judge, equal employment opportunity investigator, arbitrator or other duly authorized official engaged in investigation or resolution of a grievance, complaint or appeal filed by an employee.
• to disclose, in response to a request for discovery or for appearance of a witness, information that is relevant to the subject matter involved in a pending judicial or administrative proceeding.

Complainants, witnesses and access to protected information. At the conclusion of an investigation, a copy of the ROI is given to the complainant. The ROI usually contains personal information about people other than the complainant. Each ROI is prefaced by a statement to the complainant and his/her representative that the ROI contains information protected by the Privacy Act and that they are prohibited from disclosing information about third parties to persons not officially involved in the processing of the complaint. A complainant may, of course, disclose protected information about him/herself.

Witnesses are not entitled to view the entire ROI. However, the EEO investigator may disclose any information s/he deems necessary for the witness to make a full and fair response.

Penalties for Unlawful Disclosure. The Act provides that willful unauthorized disclosure by any employee or officer of the agency is a misdemeanor, punishable by a fine of up to $5,000. Both employees and contractors are subject to the same penalties, except that an employee who discloses or misuses private information may also be subject to discipline.

Offers of Resolution

EEOC regulations allow the agency to make a formal Offer of Resolution. An Offer of Resolution will limit attorney's fees and costs when a complainant rejects an offer and subsequently obtains less relief. This provision is intended to provide an incentive to settle complaints and to conserve resources where settlement of a complaint should reasonably occur.

When an Offer of Resolution may be made. The rules are different for complainants who are represented by an attorney and those who are not.

• If the complainant is represented by an attorney, an Offer of Resolution can be made at any time from the filing of the formal complaint until 30 days before a hearing.
• If the complainant is not represented by an attorney, an Offer of Resolution cannot be made before AJ is assigned to the case.

What an Offer of Resolution must provide. An Offer of Resolution must be in writing and must contain the following information:

• A notice explaining the possible consequences of failing to accept the offer;
• An offer to pay attorney's fees and costs, to date;
• Any non-monetary relief offered must be specified; and
• Any monetary relief, which may be offered as a lump sum covering all forms of monetary liability or may be itemized in amounts and types.

Time limit for responding to an Offer of Resolution. The complainant has 30 days to consider an Offer of Resolution and accept it. If the complainant does not accept an Offer of Resolution and is awarded relief (by an AJ, Department FAD, or EEOC decision on appeal), that is not more favorable than the offer, the complainant cannot recover attorney's fees or costs incurred after the end of the 30-day acceptance period. The regulation provides an "interest of justice" exception to the withholding of attorney's fees and costs in certain unusual circumstances, where the EEOC finds that equitable considerations make it unjust to apply the provision.

WITHDRAWAL OF EEO COMPLAINTS

A complainant may withdraw an informal or formal complaint of discrimination at any stage of the EEO complaint process. A written statement of withdrawal or a settlement agreement incorporating a provision to withdraw the complaint must be obtained by:

• the EEO Counselor,
• the EEO Officer, or
• the Office of General Counsel representative.

The statement must be forwarded immediately to OCR, Program Implementation Division. Upon receipt of the withdrawal notification, processing of the complaint will cease.

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