“Representing Federal Employees in Discrimination Cases” Part 2 – Initiating The Process and The Formal Complaint
The following excerpt is part of a series on “Representing Federal Employees in Discrimination Cases” by James Weliky. Click here for more information.
Initiating The Process
As noted above, the EEO process is initiated by making known to an EEO Counselor that the employee believes that she or he has suffered discrimination. This must be done within 45 days from the date the employee receives notice of the discrimination, 29 C.F.R. §1614.105(a), although this deadline may be extended under certain specified circumstances. An EEO Counselor is sometimes an employee of the EEO program, or more typically, is an ordinary agency employee who has volunteered to serve in this capacity.
Contact with an EEO Counselor triggers the 30-day “counseling” period, which must contain at least one formal counseling session with the complainant, often the required “final interview.” 29 U.S.C. §1614.105(b). While this “counseling” period is intended to facilitate the informal resolution of the complaint, it is almost always a useless exercise in that regard. Nevertheless, it is important, first, because the counselor is obligated to inform the employee of how the EEO process works and deadlines applicable to the EEO and other processes, and second, because the succeeding formal complaint is limited to issues raised during the counseling process. Hence, it is this firm’s practice to have the employee submit a written “informal complaint of discrimination” to the counselor which, with little amendment, is re-submitted as the formal complaint when counseling proves, unsurprisingly, unsuccessful.
The Formal Complaint
Unless the 30-day counseling period is extended (to no more than 60 days from the end of the 30-day period) with the employee’s consent, at the end of the period, but no later, the counselor must issue a notice to the employee informing her of her right to file a formal discrimination complaint. The employee then has fifteen days in which to file her formal complaint. Whether counseling is completed or not, however, the employee has an absolute right to file a formal complaint within 30 days of initiating counseling. The filing of the complaint initiates the EEO “investigation” process.
 The counselor is required to inform the employee that if she is covered by a collective bargaining agreement, she may elect to make use of its grievance procedure to pursue her EEO claims, but may not use both the normal EEO process and the collective bargaining agreement (except for some limited exceptions, including postal employees, who may pursue both). The counselor is also required to inform the employee that she may institute a “mixed case” proceeding, permitting appeal to the Merit Systems Protection Board if she alleges that the discrimination she has suffered involved an adverse employment action appealable to the MSPB (typically a termination, suspension, demotion or denial of promotion). Again, the employee can only pursue the EEO option or the MSPB option, but not both. Finally, if the employee is pursuing an age discrimination case, she must be informed that she may forego the EEO process altogether and file directly in federal court (after filing a notice of intent to sue with the EEOC).
 One of the more helpful aspects of the administrative process is the fact that at each stage, the agency is required to provide the employee with a detailed explanation of the employee’s options and applicable deadlines.