Mixed Cases
A complaint of employment discrimination based on race, color, religion, sex, national origin, age, or disability related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB).
An individual is required to contact an EEO counselor within 45 calendar days of “the matter alleged to be discriminatory or, in the case of personnel actions, within 45 days of the effective date of the action.”
A covered individual may raise claims of discrimination in a mixed case either as a direct appeal to the MSPB or as a mixed-case EEO complaint with the agency, but not both.
Whatever action the individual files is considered an election to proceed in that forum.Use of the pre-complaint process does not constitute an election to proceed.
Filing a formal EEO complaint constitutes an election to proceed in the EEO forum.
Mixed-case complainants do not have a right to a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge on a mixed-case complaint.
A Final Decision must be issued to the Complainant within 120 days of the date of filing a mixed case complaint.
Complainant may appeal the Final Decision to MSPB (not the EEOC).
Commissioned Corps
Although EEO counseling is highly recommended, an Officer may elect to file a formal complaint from the outset and must do so within 60 calendar days after the offending incident.
The Agency will give the Complainant with a copy of the Report of Investigation within 90 days of filing the formal complaint. The Complainant will have 30 calendar days to review, comment, and supplement the Report of Investigation, and seek informal resolution of the case.
If informal resolution is successful, the resolution will be put into writing, signed by the officer and management, and the case will be closed.
The Complainant may withdraw a complaint by submitting a signed statement which shall become part of the complaint file. Withdrawals are final and the complaint cannot be revived.
If a resolution cannot be reached, the Office of Equity, Diversity and Inclusion (EDI) will issue a recommended decision to the Surgeon General and provide the officer with a copy.
Within 30 days, the Surgeon General will review the complaint file and:
a) Render a final decision.
b) Request that the EDI Director conduct further investigation as is deemed necessary and appropriate for a well-reasoned decision. Within 30 days, the Surgeon General will render a final decision based upon the record as supplemented.
c) Convene a Commissioned Corps Equal Opportunity Review Board (EORB) to review the record and make a recommendation.The EORB will make a recommendation, submit it to the Surgeon General, and within 30 days will render a final decision.
Since Commissioned Corps Officers are not covered by Title VII of the Civil Rights Act of 1964 as amended, or by Executive Order 11478 as amended, there are no additional appeal rights of a Final Decision within the administrative process.
Sexual Orientation Cases
In a Supreme Court decision decided in June 2020, the Supreme Court determined that claims of discrimination based on transgender status and sex stereotype non-conformity constitute sex discrimination under Title VII, indicating that, “an employer who fires an individual merely for being gay or transgender violates Title VII.” Accordingly, although discrimination on these bases was previously handled using a different complaint process, these cases are now being handled in the same manner as other claims alleging sex discrimination filed under Title VII.
Sexual Orientation is covered by the protected basis of Sex under Title VII of the Civil Rights Act of 1964 and through the federal sector EEO complaint process at 29 C.F.R. Part 1614. Employees may file a complaint under the Part 1614 EEO process and/or may utilize any additional complaint procedures provided by the Agency. Additionally, They may also utilize the process set forth in the Civil Service Reform Act of 1978 by taking their complaint to the Office of Special Counsel or the Merit Systems Protection Board.
Contractors
All workers, regardless of employment status, are entitled to meet with an EEO Counselor to discuss their rights and responsibilities, or the informal complaints process.
However, unlike informal complaints, the formal EEO complaint process is generally not available to contractors; there are limited circumstances under which a contractor can file a formal EEO complaint. The most common situation in which a contractor may file a formal EEO complaint is when the contractor believes that they have been discriminated against by a federal employee who has a legally-defined level of supervisory control over the contractor’s day to day functions. This level of control is reviewed on a case-by-case basis.
Contractors who believe they have been discriminated against and are unsure whether or not they may file a formal EEO complaint are encouraged to contact a National Institute of Health EEO Counselor, or their employer’s EEO office, within 45 days of the discriminatory act. We cannot accept formal EEO complaints against an employee of another organization, such as an employee of a private contracting company. If a contractor believes that he or she has been discriminated against by an employee of his or her private contracting company, the contractor should contact the Equal Employment Opportunity Commission, the Department of Labor, or the contracting company’s EEO office.
Generally, independent contractors are not covered by the anti-discrimination laws and, therefore, should use the contracting company’s EEO process.
In limited circumstances, the contractor may utilize NIH’s process.EDI will determine on a case-by-case basis the level of control the NIH has over the contractor, the legal standard applied to determine if a contractor has a right to pursue an EEO complaint at NIH.
Class Complaints
Class complaints allow large numbers of affected individuals with a common characteristic, or characteristics, of race, color, sex (including transgender, sex stereotyping), religion, national origin, age, or disability, to challenge discriminatory agency policies and practices. A class action complaint may also be brought on the basis of retaliation/reprisal. Class complaints are similar to individual complaints in that both complaints must begin by initiating the EEO Counseling process.
In order to bring a class action, there must be a class agent. A class agent acts as a representative for the class during the processing of the complaint. If an individual wishes to act as a class agent in a class complaint, he or she must initiate EEO Counseling within 45 days of discriminatory practices that affected him or her. A class action brought by a class agent includes all unnamed and unidentified persons who are members of the class and have been subject to the same discriminatory policies and practices.
An individual may move to certify his or her complaint as a class complaint at any reasonable point in the process when it becomes apparent that there are class implications to the claim or claims raised in an individual complaint. An Equal Employment Opportunity Commission (EEOC) Administrative Judge will make the determination on whether or not the complaint meets the prerequisites of a class complaint.
The formal requirements for filing a class complaint are set forth at 29 C.F.R. § 1614.204(a):
A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that:
The class is so numerous that a consolidated complaint of the members of the class is impractical;
There are questions of fact common to the class;
The claims of the agent of the class are typical of the claims of the class;
The agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class.
An agent of the class is a class member who acts for the class during the processing of the class complaint.
Affected individuals could include:
A group of employees, former employees, or applicants who are alleged to have been adversely affected by an Agency personnel policy or practice which discriminates against the group on the basis of their common race, color, religion, sex, national origin, age, genetic information, or disability.
An individual, who wants to file as an agent on behalf of a group alleging discrimination based on a protected category, must first initiate EEO counseling before filing a formal complaint. The individual must seek counseling within forty-five (45) days of the discriminatory event.
If the complaint is not resolved on the thirtieth (30th) day following initial EEO counseling, the Agency will provide the individual with a written notice that s/he has fifteen (15) days to file a formal complaint.