Strategies for Federal employees who decide to bypass the EEOC Complaint Process.

Preface: There is a different the EEOC Complaint Process for federal employees/applicants and private sector employees.  Federal employees and employment applicants are provided Title VII protection, and they must initiate the process by first consulting with an EEO Counselor at their agency’s Civil Right Division; before filing a formal complaint at their agency.  Private sector employees are Title VII protection, but private sector applicants are not.  Private sector employees are encouraged to try to resolve the claim directly with the employer before filing a formal complaint at the EEOC.

Now, that we have clarified the employee status…

Last month, many readers (federal employees/applicants) submitted unpublished comments to inquiry about bypassing the lengthy EEOC Complaint Process.  The process is very simple, “ask the employer/respondent for a Right to Sue Letter”.  Understand that only a few employers/respondents agree to provide a Right to Sue Letter.  Most employers/respondents, want the protection of length process and the opportunity to conduct bias investigations to discredit your claim.  In our opinion, the second best strategy is to file a civil action immediately following 180 days from the date you filed the formal complaint; regardless of whether the agency has completed the internal bias investigation.

Again, the benefit to Complainants to file a civil action in District Court compared to matriculating through the EEOC Complaint Process is time and money.  Generally, trials are set 18 months from the date the civil action is filed, but the lengthy EEOC Complaint Process could last 2 to 4 years; after which the Complainant is offered the opportunity to file a civil action.  Consequently, many complainants employ expensive legal counsel during the lengthy EEOC Complaint Process due to the lack of support and resources to complainant.  Remember that Certified EEO Complaint Processors also provide paralegal services for Complainant who file civil actions in the Federal Court System.

READ this if you have more confidence in the Federal Court System and less confidence in the EEOC Complaint Process

It is not surprising that most Federal Employee Complainants have more confidents in the Federal Court System; contrary to matriculating through the EEOC Complaint Process, because the EEOC Complaint Process can take 2 to 4 years before it goes to the Federal Court System i.e. District Court.  The EEOC Complaint Process includes the following:

45 days – EEO Counselor

180 days – Agency Investigation

30 days – Decision for Hearing or Final Agency Decision

180 days – Hearing before an Administrative Judge

45 days – Final Agency Decision

30 days – Appeal to EEOC

180 days – EEOC could remand the complaint back to the agency; to conduct a secondary investigation

30 days – Decision for Hearing or Final Agency Decision

180 days – Hearing before an Administrative Judge

45 days – Final Agency Decision

30 days – Request EEOC for reconsideration

180 days – EEOC could remand the complaint back to the agency; to conduct a tertiary investigation

30 days – Decision for Hearing or Final Agency Decision

180 days – Hearing before an Administrative Judge

45 days – Final Agency Decision

90 days – EEOC could approve the complaint to be filed in Federal Court

Consequently, once Complainants file a civil action in District Court, the trial is set 18 months from the date the civil action is filed.  Unfortunately, most Complainants matriculate through a lengthy EEOC Complaint Process (2 to 4 years) before proceeding an additional 18 months from the date the civil action is filed.

According to the EEOC, Complainants must go through the administrative EEOC Complaint Process before you can file a lawsuit. HOWEVER, if a Complainant wants to avoid the lengthy administrative EEOC Complaint Process, there are SHORT CUTS to legally file a civil action in the Federal Court System.  There are several different points during the process; when the Complainant has the opportunity to quit the process and file a lawsuit in court, including:

• After 180 days have passed from the day you filed your complaint, if the agency has not issued a decision and no appeal has been filed
• Within 90 days from the day you receive the agency’s decision on your complaint, as long as no appeal has been filed
• After the 180 days from the day you filed your appeal if the EEOC has not issued a decision, or
• Within 90 days from the day you receive the EEOC’s decision on your appeal.

Certified EEO Complaint Processors also provides paralegal services for Complainant who file civil actions in the Federal Court System.

DISCLOSURE is a good movie and an excellent Case Study for EEO Cases

DISCLOSURE (with Michael Douglas and Demi Moore) is a good movie and an excellent Case Study for EEO Cases.  Plot:  A computer specialist is sued for sexual harassment by a former lover turned boss who initiated the act forcefully, which threatens both his career and his personal life. While there are some Title VII discrepancies in the movie, overall the movie can be used as a case study to analyze real issues relative to discrimination, supervisor harassment, coworker harassment, and sexual harassment.

We use the book as a part of our Professional Development Training and we have incorporated the movie in our contracted in-service training services because it is provocative, entertaining and realistic.  Many movie critics agree that this movie as sure to keep you on the edge of your seat. Michael Douglas and Demi Moore’s performances were excellent.

Keep in mind, it is not necessary to hire an attorney, and keep in mind the exuberant legal fees.  We highly recommend using the online assessment provided by the Certified EEO Complaint Processors, also provide competent EEO Consultation and paralegal services.

We recommend this movie if you are new to EEO topics and you would like a quick lesson on the basis of supervisor harassment, coworker harassment, and sexual harassment. This movie is sure to keep you guessing from start to finish.

Five Appeals in the Federal EEO Process

Complainants are allowed up to five appeals.

Employees or applicants who believe that they have been discriminated against by a federal agency have the right to file a complaint with that agency. The first step is to contact an EEO Counselor at the agency within 45 days of the discriminatory action. Accordingly, counseling must be completed within 30 days. At the end of counseling, the individual may then file a formal complaint with the agency. Consequently, filing the formal complaint does not guarantee that your complaint will be accepted and investigated; many formal complaints are dismissed by the agency.

• This is the first opportunity for the complainant to appeal; to the EEOC. Appeal to the agency’s final action (29 CFR 1614.401)

If your formal complaint is not dismissed initially it will be investigated to produce a decision to dismiss your complaint.

• This is the second opportunity for the complainant to appeal; to request an EEOC Hearing. Dismissal of complaint within 30 days of receipt (29 CFR 1614.402a)

If your formal complaint is dismissed by the Administrative Judge during the EEOC Hearing, you may again appeal.

• This is the third opportunity for the complainant to appeal; to request a Final Agency Decision. The agency’s final action and order do not fully implement the AJ’s decision (then the agency has to appeal to the EEOC) (29 CFR 1614.110a)

If the Final Agency Decision dismisses your formal complaint, you may again appeal.

• This is the fourth opportunity for the complainant to appeal; to the EEOC. Final decision of the agency when the issue of employment discrimination was raised in the grievance procedure (29 CFR 1614.401d)

If the EEOC dismisses your formal complaint, you may again appeal/request reconsideration.

• This is the Fifth opportunity for the complainant to appeal; requesting the EEOC for reconsideration.

Last, if the EEOC dismisses your formal complaint, you may file a civil action in an appropriate U.S. District Court, within 90 calendar days of receipt of this action.

 

The NEW Trend in Employment Discrimination Practices at the Federal Level

Among the many tasks performed by the Certified EEO Complaint Processors; that support the aggrieved, they conduct EEO Training and Mediation, and also attend various EEO and Employment Trainings, Conferences, Seminars, and Workshops to stay current on employment discrimination issues. During the last 2 months, the Certified EEO Complaint Processors attended several workshops, conducted by Federal EEO Trainers and Counselors, which advocated the “Bait and Switch” procedure as a new technique to identify federal employment applicants who were engaged in a prior EEO activity.

This is how it works: A federal agency post an open job announcement to fill a vacancy. Internal and external applicants apply for the position. After selecting the top candidates, interviews (formal or informal) are conducted. If the agency discovers or if the candidate reveals a prior EEO activity, the job announcement is cancelled or rescinded. The same vacancy exists and must be filled, so the cancelled job announcement and position description is modified slightly; and reposted. Now, the same applicants are identified and selected; except the applicants, who had engaged in a prior EEO Activity. The agency’s defense is “a different job announcement; a different selection criteria; and different applicants were selected for an interview.”

This unlawful discrimination practice is an example of pretext. If you are preparing to file an EEO charge or suspect unlawful discrimination, remember the professional group that support the aggrieved – Certified EEO Complaint Processors.

GOOD LUCK finding an attorney for EEO Charges

Here is an experiment:  Ask a lawyer’s family members to describe lawyers.  Surprisingly, most family members describe attorneys as arrogant because they feel that lawyers believe that they have more knowledge about the law and the rules that regulate court proceedings; compared to the average person.

If you have ever needed an attorney for assistance with a legal issue (civil or criminal), you are probably aware that it is difficult to find a good, trustworthy, dependable, honest, competent attorney.  Consequently, the internet has made the process easier to obtain a list of attorneys and their specialization, but without a personal reference you are vulnerable to be taken advantage by an unscrupulous attorney i.e. being charged a consultation fee without being informed prior to the consultation. Some lawyers offer fee consultation i.e. 30 minutes or one hour, but most lawyer charge a consultation fee (especially if they don’t advertise a free consultation).  Always ask before you make an appointment.  Unfortunately, it is equally difficult to find a competent attorney to protect your civil rights and human rights, under Title VII.  The best course of action before seeking legal consultation is completing the online EEO Probable Cause Assessments, to determine or establish probable cause. Many prospective complainants avoid delays and systematic dismissal by completing an online EEO Probable Cause Assessment.

Reasons it is difficult to find legal representation for EEO Charges:

• Employment Law and Title VII Law are different.  We hear many stories about complainants in an EEO charge, who consult a lawyer that specializes in employment law, but the lawyer does not appear to be confident. As a result, the complainants are not satisfied with the outcome; working with a lawyer that specialized in Employment Law.
• Discrimination Law and Title VII Law are different. We also hear stories about complainants in an EEO charge, who consults a lawyer that specializes in discrimination law, but the lawyer also appears to have a lack of confidence.  As a result, the complainants are not satisfied with the outcome; working with a lawyer that specialized in Discrimination Law.
• Most attorneys chose to represent employers; obviously because it is more lucrative.  Generally, legal representation is big business. Attorneys and law firms with a good reputation and record of settlements and favorable decisions, always demand a larger retainer fee (average $5000) and greater hourly rates (average $200 per hours).  For companies these legal expenses are included in their monthly budget, but for the average litigant/aggrieved party these legal fees are an investment (hopefully
• Contingency fees do not apply; unlike personal injury cases.  A contingency fees arrangement is when an attorney agrees to represent a litigant/aggrieved party without a retainer or legal fees.  Primarily in accident and personal injury cases, attorneys are willing to handle legal matters on a “contingency basis”. In such cases, you do not pay legal fees unless and until you win, and then the lawyer receives a percentage of your recovery as his or her fee (the average is 33% to 48%), but  if you lose your case, the lawyer receives no legal fee.
• The aggrieved have choices: EEO Complaint Processors and Complaint Processors.

How to Avoid Failure to State a Claim

Being experienced competent EEO Complaint Processors, we are fortunate to know the rules that regulate equal employment mandates and Title VII laws.

We are excited about the success stories from satisfied customers regarding their experience with our online EEO Probable Cause Assessments. Our Assessments have become so popular, the Equal Employment Opportunity Commission (EEOC) has developed a similar assessment to screen and promptly dismiss complaints for failure to establish probable cause. The EEOC’s basic assessment was designed and modeled after the EEO Probable Cause Assessments.

The major component of establishing Probable Cause is accurately stating a claim. Don’t feel bad if you are a pro se litigant and you do not have the expertise to state a claim using legal jargon. Accurately stating a claim for Title VII claims can be challenging because discrimination claims use a different formulation than stating civil and criminal claims. Therefore, many attorneys are at a disadvantage especially if they do not specialize in Title VII, discrimination, and other types of employment law. Accordingly, if you do not establish Probable Cause, there is a 90% chance that your complaint will: (1) be systematically dismissed, (2) not be investigated and (3) not be heard by Administrative Judge.

Consequently, accurately stating a claim for each Title VII basis (i.e. race, color, religion, sex, national origin, age, and disability) is slightly different. Generally, there are four item to keep in mind when formulating a discrimination claim. The Complainant must: (1) allege deprivation of rights and disparate treatment caused by discrimination (i.e. race, color, religion, sex, national origin, age, and disability), (2) provide incidents, situations, and circumstances that a similarly situated person (or people)[who are not the same race, color, religion, sex, national origin, age, and/or disability] was treated differently (better), (3) establish the employer’s purposeful intent to discriminate; proof of disparate impact alone is insufficient (sometimes), and (4) state that he/she has documentation and evidence to support his/her discrimination claim.

AFTER you complete the EEO Probable Cause Assessments, you will understand that these are the keys to successfully and accurately state a discrimination claim.

Preparing an EEO Charge is similar to preparing a good meal

Recently, we read a blog that gave advice to a complainant, which we strongly disagreed.

A person’s fiance’ was being threatened with termination. Advice was given to contact the Equal Employment Opportunity Commission (EEOC). Consequently, we strongly disagree with this advice for three reasons.

1.  The EEOC does not provide advice to complainants; they only prepare EEO charges. Here is one good analogy: if you want to eat; you would not go to a restaurant and ask “what should I eat” because they will only prepare what you ask for; they are not familiar with your likes and dislikes. The cook will use his/her ingredients, but will not guarantee that you will like his/her preparation. On the hand, if you want to eat; after you determine what you want to eat; prepare a meal using your ingredients. If you are not a knowledgeable cook consult a cookbook. If don’t want to prepare your meal, hire a cook to prepare the meal for you. Accordingly, the EEO counselors will only prepare your EEO Charge; impartially (not in your favor). Certified EEO Complaint Processor (the online assessment) is the cookbook to help you prepare a great tasting meal.

2.  It would be a conflict of interest for the EEOC to provide advice to complainants. EEO investigators and counselors are expected to be impartial and unbiased to the complainant and the employer (Respondent). Using the same “food” analogy: Restaurants prepare food for the general consumer, they do not cater to your individual taste preferences. If you want food prepared for your individual taste preference; prepare the food yourself, hire a private chef, or ask your mother for assistance to prepare your favorite dishes. Certified EEO Complaint Processor (the online assessment) is your mother to help you prepare a great tasting meal.

3.  Initially, the EEOC determines if there is probable cause before conducting an investigation. Consequently, if probable cause is not determined the EEO Charge is dismissed and not investigated. It has been our experience, that the EEOC dismisses at least 90% of all EEO Charges for failure to establish probable cause and failure to state a claim. Therefore, it is essential work with a Certified EEO Complaint Processor to ensure that your EEO Charge is not dismissed for failure to establish probable cause and/or for failure to state a claim. We strongly recommend complainants to use a service that helps you to determine whether your claim can justify probable cause and assist you to properly state a claim to avoid having your claim systematically dismissed. Staying with the same “food” theme: Restaurants prepare/offer dishes and entrées according to their menu. If you express interest in a dish that is not included on the menu; your request will be denied. Accordingly, if you prepare a special dish or entrée all is required are the ingredients to prepare a great tasting meal. Certified EEO Complaint Processor (the online assessment) is the ingredient to help you prepare a great tasting meal.

Our next blog will cover, “Accurately Stating a Claim”.

Beware of the PRETEXT!

Title VII prohibits employers from treating employees (federal applicants) differently because of their membership in a protected class. The Complainant must prove that the employer’s actions were motivated by discriminatory intent, which may be proved by either direct or circumstantial evidence.

 Pretext is a false reason/excuse that a person gives to justify conduct; instead of the real for reason.  Pretext is a major factor in most EEO Charges.  Complainant must prove pretext, if they allege the employer gave a different elusive reason to justify the disparate treatment.  Accordingly, if you can prove probable cause; you can prove pretext and vice-versa.  Certified Complaint Processors will assist you to establish the facts, probable cause and pretext; if it exists in your charge.

 The employer must prove and rebut the inference of discrimination, the employer must articulate, through admissible evidence, a legitimate, non-discriminatory reason for its actions.

The Complainant must produce documentation and evidence (i.e. direct evidence and comparative evidence) that supports their assertions.

 Direct evidence. Direct evidence in discrimination claims can be very powerful, but should include tangible evidences and less discriminatory remarks by a fellow employee.

 Comparative evidence. Comparative evidence is pretext.  The Complainant must prove pretext by offering evidence that similarly situated employees who are not in the same protected group were treated more favorably or did not receive the same adverse treatment.

 Certified Complaint Processors offer a variety of online EEO fact finding assessments to assist you in establishing PROBABLE CAUSE in your EEO complaint.

Do not forget about your right to amend your complaint

This article will address the issue of amending your complaint before the investigation is completed. Consequently, you cannot amend your claims until you are aware of all of the underlying facts, which established the probable cause in your EEO complaint.

Pursuant to 29 C.F.R. Section 1614.106(d), complainants have the right to amend their complaint prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint [(d) A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint…(e) The agency shall acknowledge receipt of a complaint or an amendment to a complaint in writing and inform the complainant of the date on which the complaint or amendment was filed….]. A well informed complainant does not need an attorney to amend their complaint; they need the knowledge and understanding of the facts surrounding the claim, which can be obtained using the online Certified Complaint Processors.

In addition to offering an online probability assessment, the Certified Complaint Processors provide reliable information to educate and prepare complainants to prepare a well documented EEO complaint, without the assistance of an attorney, who may not be “certified” as an EEO Complaint Processor.