Informal Complaints/Pre-Complaint Counseling

The EEO Director at the DNFSB Centers have responsibility for administering the pre-complaint or counseling stage of the discrimination complaints process.  In accordance with Title 29 of the Code of Federal Regulations Part 1614 Section 105 (29 CFR 1614.105), individuals who believe they have been discriminated against on the basis of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information by DNFSB must seek counseling before filing a complaint of discrimination in order to try to informally resolve the matter. This office is responsible for  Conducting timely (EEO) investigations, facilitating hearing request and issues Final Agency Actions.

How To Initiate an Informal Complaint

An individual who believes that she or he has been discriminated against should:

Immediately contact the EEO office within 45 calendar days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 calendar days of the effective date of the action.

Request counseling with an EEO Counselor.  Generally, counseling must be completed within 30 calendar days.  An extension may be granted up to an additional 60 calendar days.

If Alternative Dispute Resolution (ADR) is elected at this stage, counseling is extended for an additional 60 calendar days.

If the issue has not been resolved, the aggrieved individual is issued a Notice of Right to File a Formal Complaint.

Class Complaint

A class is a group of employees, former employees or applicants for employment who, it is alleged, have been or are being adversely affected by an agency personnel management policy or practice that discriminates against the group on the basis of their race, color, religion, sex, national origin, age, disability, or genetic information. See 29 CFR 1614.204(a)(1).

How To Initiate a Class Complaint

In accordance with 29 CFR § 1614.204, an employee or applicant who wishes to file a class complaint must seek counseling and be counseled in accordance with § 1614.105.  A 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 raised in an individual complaint.  If a complainant moves for class certification after completing the counseling process contained in § 1614.105, no additional counseling is required. The administrative judge shall deny class certification when the complainant has unduly delayed in moving for certification.

Individual must contact the EEO office within 45 calendar days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 calendar days of the effective date of the action.

Request counseling with an EEO Counselor.  Generally, counseling must be completed within 30 calendar days.  An extension may be granted up to an additional 60 calendar days.

If Alternative Dispute Resolution (ADR) is elected at this stage, counseling is extended for an additional 60 calendar days.

If the issue has not been resolved, the aggrieved individual is issued a Notice of Right to File a Formal Complaint.

Request for counseling.

If the issue is not resolved during the informal process, the aggrieved individual is eligible to file a formal discrimination complaint

FORMAL COMPLAINT

All formal complaints must be filed with the EEO Director within 15 calendar days from receipt of the Notice of Right to File a Formal Complaint.

How To File a FORMAL Complaint

If you choose to file a formal discrimination complaint, you may use one of the following options to submit your complaint:

Requirements:

• Have you completed informal complaint counseling?
• Are in receipt of the Notice of Right to File a Formal Complaint; and
• You have access to a computer?

If you do not meet all of the requirements above, please contact your EEO Office for further assistance or guidance on how to initiate a Complaint.

Ways to Initiate a Complaint

Telephone No.  Cell: (202) 631.1824
E-mail: EEOInfo@dnfsb.gov.
Hand-delivery: Express mail, courier, standard or certified mail, to:
Director, Equal Employment Office
Defense Nuclear Facilities Safety Board
625 Indiana AVE, NW, Suite 700, DC 20004
Attention:   Dr. Ngozi Butler-Guerrier

Remember, you can enter the Alternative Dispute Resolution at any time during the complaints process in an attempt to resolve your complaint.

Immediately upon receipt of a formal complaint of discrimination, the Agency will acknowledge receipt of the complaint in writing. 

The acknowledgment letter will include Agency’s date of receipt of formal complaint and date complaint is considered as filed.

If the complaint is mailed, the date of filing is the postmark date, not the date the agency received the complaint.

Where the matter is appropriate for ADR, the Agency may include a notice to that effect in its acknowledgment letter.

Complaints Based on Sexual Orientation

According to the Equal Employment Opportunity Commission (EEOC) gender discrimination includes discriminatory behavior resulting from a person’s failure to conform to gender stereotypes. Included in these stereotypes is the concept that men should only be attracted to women and women should only be attracted to men; or men should engage in masculine behavior, and women should engage in feminine behavior, as these have been traditionally defined.  Based on the EEOC’s definition of gender stereotyping, administrative complaints based on sexual orientation may be processed under Title VII/1614. EEOC’s decision in Macy v. Dept. of Justice, Appeal No. 0120120821 (April 20, 2012) represents its position that discrimination against an individual because that person is transgender (this basis is referred to as “gender identity”) is discrimination because of gender. Complaints of discrimination on the basis of gender identity therefore should be processed under the Title VII/Part 1614 based on gender discrimination.

Pursuant to Executive Order 13087 and DNFSB Policy Directive (DNFSBPD) 3713.2, Federal Equal Employment Opportunity (EEO) Programs of DNFSB, discrimination based on sexual orientation is prohibited in the DNFSB workplace and the Agency's employment practices, to the extent permitted by law.

Individuals should know that they: (1) have a right to file a complaint under the Title VII/1614 process, because they may have experienced gender discrimination in the form of gender stereotyping; (2) have a right to file a complaint under NPR 3713.4, because discrimination based on sexual orientation is prohibited in the DNFSB workplace; or (3) have a right to have their complaint processed simultaneously.

An employee who believes that he or she has been discriminated against based on sexual orientation should contact an EEO Counselor at the Center where the alleged discrimination took place within 45 calendar days of the alleged discriminatory act.

Appeals to the Commission

If an employee or applicant for employment files a complaint of sexual orientation discrimination under the Title VII/1614 process and the Agency dismisses the complaint due to failure to state a claim of gender discrimination, the Agency should ensure that it provides the employee or applicant for employment with the appropriate notice of right to appeal as set forth in EEOC regulations (29 CFR 1614.401) and MD-110.

Laws Enforced by EEOC

Formal Complaint Filing Form

 

Investigations, Hearings, Final Agency Actions

INVESTIGATION OF COMPLAINTS

If complaint is accepted for investigation, the EEO Complaints Office is responsible for securing an investigator, monitoring timely completion of investigation, and issuing the notice of right to either request for a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) or a final agency decision (FAD) without a hearing. DNFSB shall complete its investigation within 180 calendar days of the date of the filing of an individual complaint, within 270 calendar days if Complainant grants an extension, within 360 calendar days if Complaint amends the complaint or within the time period contained in an order from the EEOC.  Once the investigation is completed, DNFSB shall provide the complainant with a copy of the report of investigation (ROI), and depending on the issues in the complaint, shall notify the complainant that he or she has the right to request a hearing and decision from an EEOC AJ or may request an immediate FAD without a hearing from Director, Office of Equal Employment Opportunity within 30 calendar days of receipt of the report of investigation.

HEARING

If an EEOC hearing is requested, it is the responsibility of the EEO Complaints Office to submit the report of investigation and other official complaints records to the EEOC AJ, arrange for a court reporter to transcribe testimonies taken at the hearing, coordinate with the Office of the General Council (OGC) to make the necessary logistical arrangements for the hearing.  DNFSB is represented at the hearing by an attorney in the Office of General Counsel (OGC).  

If complainant wishes to request a hearing, she or he must file the request directly with the appropriate EEOC District Office with a copy of the request sent to DNFSB’s EEO office. 

FINAL AGENCY DECISIONS

The EEO Office is responsible for coordinating with OGC for the preparing of a FAD on all formal complaints of discrimination, and for notifying appropriate Agency officials when a FAD has been rendered.

If complainant wishes to request a FAD without a hearing, she or he must provide written notice to the EEO Director within 30 calendar days of receipt of the report of investigation.

If a finding of discrimination is made in a FAD, DNFSB determines appropriate attorney’s fees, costs, and other applicable remedies and is responsible for ensuring implementation of the corrective actions.  If there is no finding, this office will provide complainant her or his right to appeal the FAD to the EEOC's Office of Federal Operations (OFO). 

Appeals and Compliance

APPEALS

Complainant may appeal an Agency’s final decision or dismissal of a complaint to the EEOC OFO within 30 calendar days of receipt of the dismissal, final agency decision (FAD) or final order. The EEO Office is responsible for submission of report of investigation and other official complaint records to the EEOC Office of Federal Operations (OFO) when an appeal is filed.  The appropriate Office of General Counsel or Office of Chief Counsel is responsible for filing the Agency’s opposition brief or supporting brief.

If complaint is on a matter that is appealable to the Merit Systems Protection Board (MSPB), e.g., a mixed case such as a termination of a career employee, complainant may appeal the FAD to the MSPB within 20 calendar days of receipt or go to the appropriate United States District Court within 30 calendar days.  Complainant may petition the EEOC for review of the MSPB decision concerning the claim of discrimination.

COMPLIANCE

If a settlement agreement is reached between the parties in a dispute, the EEO Office is responsible for monitoring the implementation of the terms of the agreement.  If complainant believes that an agreement has been breached, she or he must bring that matter to the attention of the EEO Director within 30 calendar days of the alleged violation.  Complainant may request that a complaint be reinstated or that a settlement agreement be enforced.   The EEO office will investigate allegations of breaches of settlement agreements and make determinations if there was a breach.

The EEO office is also responsible for tracking compliance with orders issued by EEOC OFO and implementation of corrective actions arising from a FAD.  If complainant believes the Agency has not complied with the orders issued by EEOC or FAD, the complainant must bring that matter to the attention of the EEO Director within 30 calendar days of the alleged non-compliance.

Alternative Dispute Resolution

The EEO office supports the Implementation of policy and procedures and provides training and technical guidance for ADR Program DNFSB-wide. In concert with the Office of General Council (OGC), manages DNFSB’s Cadre of Mediators and facilitates ADR to proactively address and resolve workplace conflicts in the EEO area.

All agencies are required to have an alternative dispute resolution (ADR) program. The Equal Employment Opportunity Commission (EEOC) has certain requirements that all agencies must follow when developing ADR programs.  The most important ADR program requirement is fairness. Generally, an ADR program is fair if it is voluntary, confidential, enforceable by the parties (if an agreement is reached), and led by a neutral person, like a mediator, who has no personal interest in the dispute.

At DNFSB, when parties agree to use ADR to try to resolve EEO complaints or other workplace disputes, the most common type of ADR used is mediation. Mediation is an informal meeting between the parties that is conducted by a neutral mediator. A mediator is trained to help people who have disagreements talk to each other. The mediator does not decide who is right or wrong or issue a decision. Instead, the mediator helps the parties work out their own solutions to their dispute. A mediator makes primarily procedural suggestions regarding how parties can reach agreement. Occasionally, a mediator may suggest some substantive options as a means of encouraging the parties to expand the range of possible resolutions under consideration. A mediator often works with the parties individually, in caucuses, to explore acceptable resolution options or to develop proposals that might move the parties closer to resolution.

There are real advantages to participating in ADR.

ADR offers both complainant and DNFSB the opportunity for a fast and informal settlement of the dispute at the lowest level.

Rather than leaving the decision to a third party, such as an EEOC Administrative Judge, ADR is an opportunity to reach an agreement that works for both parties.

Other Types of ADR

Ombud’s: Ombud’s are individuals who rely on several techniques to resolve disputes. These techniques include counseling, mediating, conciliating, and factfinding. Usually, when an Ombud receives a complaint, s/he interviews the parties, reviews files, and makes recommendations to the disputants. The Ombud do not impose solutions. The power of the Ombud lies in his/her ability to persuade the parties to accept his/her recommendations. An individual not accepting the proposed solution of the Ombud is free to pursue a remedy in other forums for dispute resolution.

Facilitation: this involves the use of techniques to improve the flow of information in a meeting between parties to a dispute. The term facilitator is often used interchangeably with the term mediator, but a facilitator does not typically become as involved in the substantives issues as does a mediator. The facilitator focuses more on the process involved in resolving a matter. The facilitator generally works with all the participants at once and provides procedural directions as to how the group can efficiently move through the problem-solving steps of the meeting and arrive at the jointly agreed upon goal. The facilitator focuses on procedural assistance and remains impartial to the topics under discussion.

Peer Review: Peer Review is a problem-solving process where an employee takes a dispute to a group or panel of fellow employees and managers for a decision. The decision is not binding on the employee, and s/he would be able to seek relief in traditional forums for dispute resolution if dissatisfied with the decision. The principal objective of peer review is to resolve disputes early before they become formal complaints. Typically, the panel consists of employees and managers who volunteer for this duty and who are trained in listening, questioning, and problem-solving skills as well as the specific policies and guidelines of the panel. A peer review panel may be a standing group of individuals who are available to address whatever disputes employees might bring to the panel at any given time. Other panels may be formed on an ad hoc basis through some selection process initiated by the employee, e.g., blind selection of a certain number of names from a pool of qualified employees and managers.

Fact Finding: is the use of an impartial expert (or group) selected by the parties, by the agency, or by an individual with the authority to appoint a fact finder, in order to determine what the "facts" are in a dispute. The fact finder may be authorized only to investigate or evaluate the matter presented and file a report establishing the facts in the matter. In some cases, s/he may be authorized to issue either a situation assessment or a specific procedural or substantive recommendation as to how a dispute might be resolved. If used as an ADR technique, the findings of fact must remain confidential.

Early Neutral Evaluation: Early Neutral Evaluation uses a neutral or an impartial third party to provide an objective evaluation, sometimes in writing, of the strengths and weaknesses of a case. Under this method, the parties will usually make informal presentations to the neutral party to highlight their respective cases or positions.