Formal EEO Complaint Process
When does the complaint become formal?
An EEO complaint becomes formal when the Complainant completes the DHS Formal Complaint Form 3090, provided to them by their EEO Counselor at the conclusion of counseling, and that form is filed within 15 calendar days from receipt of the Notice of Right to File (NORTF) letter with the Privacy and Diversity Office (PDO).
The DHS Formal Complaint Form 3090 must be signed by the aggrieved party or that person’s attorney. The complaint must include the telephone number and address where the Complainant or the representative can be contacted. The complaint itself must precisely identify the Complainant and agency. A general description of the alleged discriminatory action or practice must also be included.
What happens when the Privacy and Diversity Office receives the formal complaint?
PDO will acknowledge receipt of the complaint in writing and inform the Complainant of his/her rights during the formal complaint process.
What is the formal complaint process?
Upon receipt of the NORTF, a decision will be made to either dismiss or investigate the claim. If insufficient information is included in the formal complaint in order to determine what action to take on the allegations, the Complainant will be contacted and additional information will be requested. The Complainant has a duty to respond to requests for addition information made by the PDO. Failure to respond in the specified time limits may result in dismissal of the formal complaint.
What if another issue arises during the investigation?
If another issue of discrimination arises during the course of the investigation, a Complainant may request to amend the complaint at any time prior to the conclusion of the investigation. The Complainant must make this request in writing to the PDO that outlines the new issue and explains why the Complainant believes this new issue to be discriminatory. This request must be signed and dated by the Complainant and/or their attorney representative. It is up to PDO to accept or dismiss the amendment as it must be "like or related" to the current claims accepted for investigation.
What is the difference between filing an EEO grievance and an EEO complaint?
Any employee who is covered by the National Treasury Employees’ Union (NTEU) Collective Bargaining Agreement (CBA) who believes that he or she has been discriminated against because of race, color, religion, sex, national origin, age, disability, or reprisal for filing a claim on one of these bases, except where required by statute or pursuant to bona fide occupational qualifications may file a grievance.
Any federal employee may initiate a statutory complaint of discrimination under EEOC regulation 29 C.F.R. §1614.
- The terms of this Agreement apply to all professional and nonprofessional CBP employees, excluding: Employees in the Office of Border Patrol assigned to Border Patrol Sectors; Employees of the Office of Chief Counsel; Management officials, supervisors, and other employees excluded from the bargaining unit in accordance with 5 U.S.C. § 7112(b) (2), (3), (4), (6) and (7).
- Discrimination bases under applicable Federal law and Executive Orders include: race, sex, religion, color, national origin, reprisal (for prior EEO activity), disability, age, genetic information, status as a parent, and sexual orientation.
What if the complaint is dismissed?
If your complaint is dismissed in its entirety, the Department of Homeland Security (DHS), Office for Civil Rights and Civil Liberties (CRCL), will issue a Final Agency Decision (FAD) to notify you in writing of the reason(s) your claim is being dismissed. The dismissal is appealable to the Equal Employment Opportunity Commission (EEOC).
Who conducts the formal complaint investigation?
An EEO Investigator will be assigned to conduct the EEO investigation. You will be notified in writing of the issues accepted for investigation and the name of your investigator, who is authorized to conduct the investigation. In most instances, CBP’s EEO Investigators are full-time CBP employees assigned to PDO.
What is the role of an EEO Investigator?
The EEO Investigator reviews the complaint to determine if it meets the requirements for acceptance. If the claim is accepted, the assigned EEO Investigator will conduct the investigation within 180 calendar days from the filing date of the claim. The EEO Investigator serves as an unbiased fact gatherer identifying and securing information through interviews of witnesses and review of written records. This information is compiled into a Report of Investigation (ROI), which must be thorough enough to enable an appointed decision maker to make a final decision as to whether unlawful employment discrimination occurred with regard to the claim(s) investigated.
What are the investigation timelines?
By regulation, CBP must complete the investigation within 180 calendar days from the date of receipt of the formal complaint. If the complaint is amended, CBP is allowed to complete the investigation within the earlier of 180 days after the last amendment to the complaint, or 360 days after filing the original complaint.
What happens during the investigation process?
An impartial and appropriate factual record will be drafted by the investigating agency. The EEO Investigator will solicit declarations from the involved parties and document evidence to compile an accurate record of the claims. From this record, a third-party will determine findings on the claims made by the aggrieved party. An appropriate factual record is defined as one that allows a reasonable fact finder to draw conclusion on whether discrimination occurred.
What happens when the investigation is completed?
Once PDO completes the investigation, it will provide the Complainant with an electronic copy of the ROI along with the election notice. The Complainant will get 15 days (from receipt of the ROI) to review and make a request to supplement the ROI and 30 days (from receipt of the election notice) to either request a hearing and decision from an EEOC Administrative Judge (AJ), or request an immediate FAD.
Do managers and supervisors receive copies of Reports of Investigations (ROI’s) on discrimination complaints?
No. PDO does not provide copies of ROI’s to managers and supervisors.
What happens after I elect an EEOC Hearing before an Administrative Judge?
If the Complainant requests a hearing before an AJ, PDO will immediately transmit the ROI to the appropriate EEOC Office. Once the file has been transmitted, PDO no longer retains jurisdiction over the complaint and all further questions should be directed to the appropriate EEOC Office. Procedures regarding the EEOC hearing process can be found at EEOC’s website.
What is a Final Agency Decision (FAD)?
If the Complainant does not request a hearing before an EEOC AJ, the Department of Homeland Security, Office for Civil Rights and Civil Liberties (CRCL) is required by regulation to issue a decision in 60 days. CRCL will notify the Complainant in writing of its decision. CRCL will also provide the Complainant with appeal rights, if they wish to appeal the FAD. In addition, if the Complainant elects a hearing before the EEOC, and the EEOC AJ issues a recommended decision, CRCL must issue a FAD on behalf of DHS within 60 calendar days.