Part 401 - Equal Employment Opportunity

Subpart D - EEO Complaint Process

The purpose of this directive is to provide guidelines and procedures on the Equal Employment Opportunity (EEO) counseling and complaint process within the Natural Resources Conservation Service (NRCS).

401.41 Informal or Pre-Complaint Process

A. The EEO counseling, mediation, and complaint process provides procedures whereby an employee, applicant, or management official alleging charges of discrimination may file an informal EEO complaint. The EEO Counselor will discuss the issues of the complaint with the complainant and the responding official. The EEO Counselor will conduct a fact-finding session and provide technical advice, guidance, and consultation on employment discrimination matters to employees, applicants, and management officials. The Counselor will also provide professional expertise on EEO case law and personnel rules and regulations to identify discriminatory practices and policies that surface from individual complaints or patterns of complaints, advise the appropriate officials, and recommend alternatives for resolution.

B. Any employee or an applicant seeking employment with NRCS who feels that he or she may have been discriminated against on the basis of their race, color, national origin, sex, religion, age (40+), disability, retaliation (for prior participation in the equal employment opportunity complaint process), sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information may file an informal complaint by contacting an EEO counselor.

C. The complainant must make initial contact with an EEO counselor within 45 days of the date of the alleged discriminatory event, or in the case of a personnel action, within 45 days of the effective date of the action. At the initial counseling session, the EEO counselor must ensure that the complainant understands his or her rights and responsibilities as an employee or applicant.

D. The EEO counselor must provide written documentation explaining the complainant’s rights and responsibilities along with the following processes: Equal Employment Opportunity, Alternative Dispute Resolution (ADR), Merit System Protection Board (MSPB), and Administrative Grievance Process. The EEO counselor must advise the complainant of his/her right to elect the ADR Process or the traditional EEO Counseling process.

E. The initial contact with the EEO counselor:

(1) Helps to establish the timeliness of the complaint (within 45 days of the alleged discriminatory event);

(2) Provides the complainant an opportunity to understand the EEO complaint process;

(3) Provides the complainant an opportunity to talk about the issue, impact, and ways to resolve the complaint; and

(4) Determines the issue(s) and basis(es) raised by the complainant.

F. The EEO counselor must perform the following tasks in all cases, regardless of whether the complainant elects ADR or traditional counseling:

(1) Receives the signed informal complaint form that identifies the alleged discriminatory events and their dates;

(2) Conducts an inquiry during the initial interview with the complainant to determine jurisdictional questions;

(3) EEO counseling is generally completed within 30 calendar days. However, counseling may be extended to an additional 60 calendar days, with the complainant's approval, in order to permit further resolution efforts;

(4) Seek a resolution of the dispute at the lowest possible level, unless the complainant elects to participate in the ADR process. The complainant should specify what remedy (ies) he or she is seeking in order to resolve their complaint. If the dispute is resolved in counseling, the EEO counselor must document the resolution;

(5) After 30 calendar days of EEO counseling, or if ADR fails, conduct a final counseling session and issue the complainant a Notice of Right to File a Formal Complaint (NRF); and

(6) Prepare a written EEO Counselor's Summary Report that documents the facts gathered from the complainant, as well as the supervisor or person(s) responsible for the alleged discriminatory action.

401.42 Benefits of the EEO Counseling Process

The EEO complaint process provides one avenue where employees can get help in understanding and resolving workplace problems. It enables complainants to ease into the EEO complaint process, permitting them time to understand it. The EEO counseling process provides breathing space for both the complainant and supervisor, often brings learning and resolution of problems, reduces the number of cases that require full investigation, and reduces disruption to the lives of the parties involved and to the workplace.

401.43 Formal Process

Filing an Individual Complaint

If all attempts at an informal resolution have failed, the complainant may exercise his or her rights by filing a formal EEO complaint with the USDA, Office of Civil Rights (CR). The formal EEO complaint should be sent to the USDA, Office of Civil Rights (OCR), Employment Complaints Division, Reporters Building, 300 7th Street, SW, Room 607, Washington, D.C. 20024.

A. Time limits. A formal complaint must be signed by the complainant and filed in writing within 15 days of receipt of the Notice of Final Interview with the EEO counselor. A complaint is deemed filed on the date postmarked, if addressed to the official designated to receive complaints; or, if not postmarked, on the date received by the office of such a designated official. For purposes of timeliness, in the absence of a returned receipt, the USDA will presume that the Notice of Final Interview was received by the complainant within 5 calendar days of mailing.

B. Location. All formal complaints must be submitted to the Director of the Office of Civil Rights. No other office is authorized to receive formal complaints, and filing with any other office does not toll the necessary time frames. A complaint is filed on the date complete information, as required by regulations, is actually received by the Office of Civil Rights (OCR), and all time frames for processing begin from that date.

CR prepares an acknowledgment letter and mails it to the complainant and the representative. A copy of the acknowledgment letter, including the complaint, is also forwarded to the NRCS Civil Rights Division (CRD) complaint processing office. The letter of acceptance may serve as the acknowledgment letter if mailed within 30 days from the filing of the complaint.

C. Complaint content. A complaint must include:

(1) The complainant’s name, address, and telephone numbers;

(2) The name of the EEO counselor contacted. CR may prescribe a form for use in filing an EEO complaint with USDA;

(3) The name, address, and telephone number of any representative;

(4) A specific description, including the dates, of the decision involved in any individual complaint or the policy or practice and incident of application in any class complaint;

(5) The agency that made the decision or applied the policy; and

(6) The basis on which discrimination is alleged.

D. Acceptance. The Director, Office of Civil Rights, or a designee, shall accept complaints that are timely submitted and covered by this Subpart. (See 401.37 Acceptance/ Dismissal Checklist). Complainants will be notified of the acceptance and all administrative and legal rights to which they are entitled as well as the opportunity to request ADR (see 401.35, ADR) as a means of resolution, and include a detailed explanation of available ADR options. Once CR has acknowledged receipt of the formal EEO complaint, they will notify NRCS CRD that the complainant has filed a formal EEO complaint and request NRCS CRD to provide the Counselor's Report within 15 calendar days. This report is used to help the OCR staff determine whether the EEO complaint of discrimination was timely and whether or not to accept it for formal EEO investigation.

If the initial material submitted as a complaint is not complete, CR will request that the complainant clarify the complaint and/or provide the missing material and allow 15 days for its submission.

E. Dismissal. A complaint that is not properly filed will be dismissed by the Director, Office of Civil Rights (see 401.37 Dismissal Checklists). A complaint will be dismissed if:

(1) The issue was not brought to the attention of an EEO counselor or submitted formally within the prescribed time limits, unless the time limits are extended and the issue is not remanded for counseling;

(2) The action or decision, or the factor or basis alleged, is not within the control of USDA or the scope of this subpart;

(3) The action or decision involved in the complaint is moot and there is no further potential relief available through the complaint process (when two conditions are satisfied). There is no reasonable expectation that the alleged violation(s) will recur; and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation;

(4) It sets forth an issue identical to a complaint that is pending, or that has already been decided (such as in a complaint within USDA, or under a negotiated grievance procedure that covers discrimination allegations, or as an appeal to the MSPB, or as a civil action in a Federal Court);

(5) the issues deal with a proposed action that is nonspecific to the complainant;

(6) The complainant fails to prosecute the complaint after being provided 15 days notice of the requirement to proceed and the potential dismissal;

(7) The allegation concerns the processing of a previous complaint (unless the allegation is consolidated with the previous complaint); or

(8) There is a clear pattern of abuse of the EEO complaint system. A dismissal is a final decision.

F. Amendments. A complainant may amend a formal complaint, either before or after acceptance, to add additional factors or bases. Complainants may request to add additional issues to complaints, but only if each additional issue has been presented properly to an EEO counselor. An additional incident cited as evidence in support of previously accepted issues does not need to be discussed with an EEO counselor to be reviewed in the complaint. USDA may, in its discretion, join individual complaints from the same complainant or from different complainants on the same issue for processing. CR will notify complainants and NRCS CRD of such actions. When a complainant wishes to amend a complaint after the initial complaint is filed, USDA will determine, on a case-by-case basis, how any additional issues will be processed and notify complainants and NRCS CRD.

At anytime prior to the conclusion of the investigation, a complainant may amend a pending EEO complaint to add claims that are like or related to those claim(s) raised in the pending complaint. The complainant is not required to seek EEO counseling on these new claims. After the complainant has requested a hearing, he or she may file a motion with the EEOC AJ to amend the complaint to include claims that are like or related to those raised in the pending complaint.

(1) When a complainant raises a new incident of alleged discrimination during the processing of an EEO complaint, it must be determined whether this new incident:

(i) Provides additional evidence offered to support the existing claim, but does not raise a new claim in and of itself;

(ii) Raises a new claim that is like or related to the claim(s) raised in the pending complain;, or

(iii) Raises a new claim that is not like or related to the claim(s) raised in the pending complaint.

(2) In order to facilitate such a determination, the complainant must submit a letter to the Employment Complaints Division (ECD), Office of Civil Rights, specifically describing the new incident.

(3) If the ECD concludes that the new incident(s) raises a new claim, but that the new claim is like or related to the claim(s) raised in the pending complaint, the pending complaint will be amended to include the new claim. The ECD will send a copy of the letter to the NRCS CRD. NRCS CRD will provide a copy of the letter to the EEO investigator with instructions to include the new incident(s) in the investigation.

(4) If ECD concludes that the new claim raised by the complainant is not like or related to the claim(s) raised in the pending complaint, the complainant will be advised in writing that he/she must seek EEO counseling on the new claim and the applicable time limit. The postmark date of the letter from the complainant would be considered the actual date for the time computation purposes used to determine if the initial EEO counselor contact was timely in accordance with the EEOC regulations. Actual contact with a counselor will initiate the counseling time frames in EEOC regulations.

G. Continuing violations. A complainant may also proceed with a discrimination claim where some or all of the discriminatory acts took place more than 45 days prior to contact with an EEO counselor by alleging and proving that the alleged discriminatory violation constituted a continuing violation. A continuing violation is a series (serial violation) of related acts, one or more of which falls within the 45-day limitation period, none of which is significant enough by itself to trigger the need to initiate the complaint process to protect an individual’s rights. Under a serial violation theory, a complainant must show that:

(1) There are a series of related acts, at least one of which occurred within the 45-day limitation period, and,

(2) The untimely and timely acts are sufficiently related by a common nexus. The key factors in determining whether a series of acts are sufficiently related include:

(i) subject matter;

(ii) frequency (are the acts recurring or are they isolated?);

(iii) permanency (were the acts of sufficient impact that an exercise of a right to challenge should have occurred); and

(iv) the involvement of the same individuals or the maintenance of a practice concerning the issue.

H. NRCS CRD’s responsibilities once an EEO complaint is accepted. The agency is responsible for ensuring that all Responsible Management Officials are notified of any accepted issues and the procedures involved in processing the complaint. The assigned Complaints Branch staff member identifies the accepted issues, the appropriate statement of work for the investigation, and any background issues.

I. An investigator is then assigned to conduct a thorough and impartial investigation within 180 days of the date the complaint was filed with CR. The NRCS CRD Director or designee and the complainant may agree in writing to an extension of not more than 90 days. Though an EEO complaint may be resolved at any time during the EEO complaint process, the investigator's focus, unlike the EEO counselor's, is on uncovering the facts of the case that will clearly demonstrate whether or not discrimination has taken place.

J. NRCS CRD is required to retain records relating to the action involved, irrespective of any other retention schedule regulations. Willful failure to retain records will result in an adverse inference being drawn by the Office of Civil Rights or the EEOC with regard to the actions at issue.

The Right to Hearing

Except in mixed cases, the complainant has the right to request a hearing before an EEOC Administrative Judge after 180 calendar days from the filing of a formal EEO complaint or after completion of the investigation, whichever comes first. Complainants must request a hearing directly from the EEOC field office that has jurisdiction over the geographic area where the complaint arose. In the written acknowledgement of receipt of the formal EEO complaint or amendment to a complaint, CR will advise the complainant of the EEOC office and address where a hearing request is to be sent as well as a copy of the request being sent to CR.

The Right to Appeal

A. The complainant has the right to appeal a dismissal, final action, or final decision. However, formal EEO complaints alleging discrimination on the basis of sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information are not appealable before the EEOC.

B. Complainants may appeal within 30 days of receipt of the dismissal, final action, or final decision to:

Equal Employment Opportunity Commission (EEOC)
Office of Federal Operations (OFO)
P.O. Box 19848
Washington, DC 20036

Or hand delivered to:

Equal Employment Opportunity Commission (EEOC)

Office of Federal Operations (OFO)

Appellate Review Programs

1801 L Street, NW,

Washington, DC 20507

C. CR will provide the complainants the information for use of the appeal form EEOC Form 573, Notice of Appeal/Petition. With regard to a mixed case, if the complainant is dissatisfied with CR's final decision on the mixed case complaint, the complainant may appeal the matter to the MSPB, not the EEOC, within 30 days of receipt of CR's final decision.

The Right to File a Civil Action

A. The complainant has the right to file a civil action in Federal district court on claims raised in the administrative process:

(1) Within 90 days of receipt of a final action on an individual or class complaint, if no appeal has been filed;

(2) After 180 days from the date of filing an individual or class complaint, if an appeal has not been filed and a final action has not been taken;

(3) Within 90 days of receipt of the EEOC's final decision on appeal; and

(4) After 180 days from the date of the filing of an appeal with the EEOC, if there has been no final decision by the EEOC.

B. Unless the complainant withdraws or the EEO complaint is settled, the OCR Director of Employment or an EEOC Administrative Judge will issue a Final Decision on whether or not discrimination took place.

401.44 Class Complaints

An individual who wishes to file a class complaint as an agent alleging discrimination based on race, color, national origin, sex, religion, age (40+), physical or mental disability, and/or retaliation in a personnel management policy or practice of the Department or the Natural Resources Conservation Service (NRCS), must seek counseling and be counseled. The complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim(s) raised in an individual complaint. If the complainant moves for class certification after completing the counseling process contained in GM 230, Part 401.40 Subpart E (Steps in EEO Complaint Procedure), no additional counseling is required. An EEOC Administrative Judge will make the determination on whether or not the class complaint meets the prerequisites of a class complaint.

401.45 Alternative Dispute Resolution (ADR)

A. Purpose

NRCS establishes policy on the use of Alternative Dispute Resolution (ADR) and related techniques to prevent and resolve workplace and program conflicts.

B. Policy

The benefits of using ADR include achieving effective and mutually satisfactory resolutions of conflicts, decreasing time, cost, and other resources expended in resolving conflicts, fostering a culture of respect and trust between NRCS and its customers and employees, and increasing customer satisfaction and employee morale. NRCS will attempt to prevent conflicts whenever possible and, when conflicts do occur, make every effort to reach early, consensual resolution of conflicts and issues, using ADR as an essential tool toward achieving that goal.

C. General Provisions

(1) NRCS shall utilize ADR as a standard tool for resolving workplace conflicts and conflicts between NRCS and its customers;

(2) NRCS shall seek to resolve conflicts at the earliest stage possible;

(3) In any ADR proceeding involving a conflict with NRCS or other organizational entity, an individual with authority to fully resolve the matter on behalf of the entity should be in attendance whenever possible. If that is not possible, an individual with authority to negotiate on behalf of the entity should attend the ADR proceeding, and should have access to an individual with authority to fully resolve the matter on behalf of the entity;

(4) All parties participating in ADR are expected to participate in good faith. Except in those instances specified in this regulation, participation in ADR is voluntary for all;

(5) Agreement to resolve a conflict shall be voluntary for all parties participating in ADR;

(6) Parties are entitled to be accompanied, represented, and advised by a personally chosen representative in ADR proceedings;

(7) The use of ADR shall not adversely affect the rights of individuals to seek resolution of their issues through the established complaint, grievance, and appeal systems, provided established time frames in each system are otherwise met;

(8) No employee shall commit, authorize, or condone any retaliation against any employee or customer because of the pursuit of, or participation in, ADR; and

(9) NRCS shall make available training and educational services designed to promote effective conflict management.

For additional information concerning ADR, refer to General Manual 110, Part 404, and/or contact NRCS ADR Program at (301) 504-2287 or 1-866-ADR-NRCS.

401.46 EEO Counselors

Training Requirements

A. To ensure quality counseling, NRCS in accordance with the EEOC, requires that new EEO Counselors receive a minimum of thirty-two (32) hours of EEO Counselor training prior to assuming counseling duties.

B. Individuals currently designated as EEO Counselors may also benefit from such training. All EEO Counselors are required to receive at least eight (8) hours of continuing EEO counselor training annually.

C. The EEOC, as well as the USDA Graduate School, have developed training courses to satisfy this requirement, and offer them to agencies through a fee-for-service basis.

D. Individuals designated as counselors must receive an EEO counseling course which includes:

(1) EEO Counselor Training;

(2) EEO Counselor Refresher Course;

(3) Counseling Techniques;

(i) Mediation

(ii) Negotiation

(iii) Conflict Resolution

(iv) EEO laws and regulations

(v) Background and history of EEO laws

(vi) Affirmative Employment Program

(vii) Theories of Discrimination

(viii) Special Emphasis Programs

(ix) Role of Counselor

(x) Report Writing

(xi) Sexual Harassment

(4) Personnel procedures/practices, including:

(i) Classification Principles

(ii) General Staffing

(iii) Merit Promotion Principles

(iv) Performance appraisals/evaluations

(v) Discipline (responsibilities and conduct)

(vi) Grievance and appeals procedures

(vii) Pertinent Department and NRCS policy

E. All new EEO counselors must receive this training before counseling unless the individual already has the knowledge or skill.

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