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.

Before filing an EEO Charge

This article will address the most frequently asked question; regarding the online probability assessments provided by the Certified Complaint Processors. EEO Probability Assessments

Question: Why should I pay for a probability assessment?

This is an excellent question. The online probability assessment is a dual web-based tool that first; determines whether your case has PROBABLE CAUSE in your EEO complaint and second; assists you in establishing PROBABLE CAUSE in your EEO complaint.  Establishing Probable Cause is extremely important. If you do not establish Probable Cause, there is a 90% chance that your complaint will be systematically dismissed.

The online probability assessments are great tools because they cover a range of EEO violations. The assessments are part of the EEO Probably Cause Series (EEO-PCS). The EEO-PCS includes:

• Discrimination Assessment

a. Age Discrimination

b. Race Discrimination

c. Sex Discrimination

d. Religious Discrimination

• Harassment Assessment

a . Coworker Discrimination

b. Supervisor Discrimination

• Retaliation Assessment

a. Constructive Discharge

b. Hostile Work Environment

c. Reprisal for Prior Complaint

• Accommodations Assessment.

a. Disability Discrimination

b. Medical Discrimination

Each assessment is available as an online questionnaire and is designed to establish PROBABLE CAUSE in your EEO complaint.  Additionally, the assessments are divided in two categories: (1) for federal employees and employment applicants and (2) non-federal employees.

In summary, you are paying for 4 BENEFITS:

1. Determine whether your EEO complaint has PROBABLE CAUSE to prevent a systematic dismissal.

2. Assist you to establish PROBABLE CAUSE in your EEO complaint.

3. Results within 24-hours.

4. Reliable results supported by a CONDITIONAL Money Back GUARANTEE, which provides you with assurance that your  complaint/claims will not be dismissed for the issues covered in the EEO Probable Cause Assessments.

The choice is yours:

Chose to complete the online probability assessment prior to filing an EEO complaint; become knowledge with the EEO complaint process; confident that your complaint will not be systematically dismissed, due to a minor technicality; and increase your chances for a victory.

Or

Chose NOT to use the probability assessments prior to filing an EEO complaint; be alone because EEOC counselors and EEO investigators do not represent you.

Remember, in life: “you get what you pay for; and you don’t get what you don’t pay for.” EEO Probability Assessments

Have a great day.