Complaints at the Agency Level
EEO complaints and Agency investigations
Employees who believe that they have been subjected to an unlawful and discriminatory personnel action or harassment on the basis of their race, color, sex, national origin, religion, age, disability, or because they have opposed discrimination in the past must contact an EEO counselor within 45 days if they wish to pursue a complaint of employment discrimination.(Please note that an EEO counselor, particularly at larger agencies, is often not the same person as the Agency’s EEO director.)
After you make contact with the EEO counselor, the Agency has thirty days to try to resolve the complaint with you informally, either through the EEO counselor or through Agency mediation (although this period may in some cases be extended). If the case is not resolved, the Agency will then issue a Notice of Right to File a formal, written EEO complaint. You must do this within 15 days or your complaint will be dismissed as untimely.
The Agency then has 180 days to investigate your complaint of discrimination and issue a Report of Investigation. Once the Agency issues its report, you have 30 days to Request a Hearing from the Equal Employment Opportunity Commission (EEOC) (or in some cases involving suspensions of more than 14 days, demotions, or terminations, the Merit Systems Protection Board. (MSPB)) You also have options to let the Agency decide your case or to take your case directly to the U.S. District Court.
Note that in some cases within the MSPB’s jurisdiction, you may have a right to appeal directly to the MSPB within 30 days. Alternatively, you may be able to appeal an Agency’s action either through the Agency’s administrative grievance process or, if you are a member of a union, through the union’s negotiated grievance process pursuant to the Collective Bargaining Agreement (CBA). Be very careful, however, because once you select any one of the above options, you have “elected a remedy” and don’t usually get to go back and choose a different option. An attorney versed in federal employment law can explain the pros and cons of each process and help you make the right decision.
Office of Inspector General
Unlike the EEOC and the MSPB, Agency Inspectors General are charged with ferreting out “waste, fraud, abuse” rather than dealing with issues of discrimination or adverse personnel actions. Whether you are contemplating making a disclosure to the OIG or have been contacted by OIG with a request for an interview as part of an investigation, an attorney can help guide you through the process and protect your rights, including your right to be free of retaliation and, in certain rare cases, your right not to testify.
Employee Grievance Process
In the case of Agencies with a federal employee union, employees in the bargaining unit can often take advantage of the negotiated grievance process under the CBA. This has the advantage that usually you will receive free representation as opposed to having to hire an attorney. In addition, the Agency does not ultimately get to decide your grievance if the union is willing to take it to arbitration. For cost reasons, unions are often unwilling to take cases to arbitration, so you need to understand your union’s position before you commit yourself. Grievances usually have very tight time limits, so you need to get good information from your union right away. If you file a negotiated grievance, you will not longer be allowed to file an EEO complaint over the same issue (and vice versa)
As an alternative to the negotiated grievance process, most Agencies also have an administrative grievance process. Unlike the negotiated grievance process, administrative grievances are an option for non-bargaining unit employees. In general, they also do not necessarily preclude you from filing an EEO complaint. However, you need to understand exactly what you are doing when you file a complaint or grievance. The biggest disadvantage of administrative grievances is that they generally are decided within the Agency, so you do not get a hearing from an independent tribunal.
Special Rules for Veterans Affairs Medical Personnel
Doctors and nurses at the Department of Veterans Affairs are governed by Title 38 of the United States Code, unlike most federal employees, who are covered by Title 5. As a result, their rights are more limited than those of most members of the civil service, including long probationary periods and limited recourse for personnel actions. In addition, personnel actions based on “clinical care or competence” can have an impact on providers’ licenses and may result in reports to the National Practitioners Database and State Licensing Boards. In light of limited avenues for recourse and potentially severe consequences, medical personnel should seek out an attorney experienced in dealing with the VA at the earliest sign of trouble.