Many federal employees begin the EEO process without understanding the process and requirements. This can lead to a dismissal for “failure to state a claim”. For example, federal employees will often make contact with an EEO Counselor and file a complaint in a drawn out narrative, even dramatic, format, often reading like a novel, which we strongly advise against. Many employees believe merely telling what they believe to be a compelling story is enough to pursue an EEO complaint. It is not. An EEO complaint, from the onset, must be well planned and structured in consideration of processes and legal requirements.
In Matilda C. v. Department of the Treasury, Internal Revenue Service, EEOC No. 0120172217 (EEOC OFO 09/12/17), the complainant made an allegation a coworker took a photo of her and posted it to Facebook and another coworker yelled at her. She claimed the agency subjected her to discrimination based on race, sex, disability, and age. The Agency dismissed the complaint and the EEOC agreed with the agency dismissal. The Agency and EEOC determined the complaint failed to state a claim because the affected employee failed to claim she suffered harm or loss with respect to a term, condition, or privilege of employment, for which there was a remedy. The case was dismissed.
A federal employee can file an EEO complaint over anything, no matter how ridiculous, frivolous, or untrue. Whether the complaint will survive to the investigative phase (ROI), much less survive at hearing, is a different question. Having worked both sides of the equation, we witnessed the extremes from the most legitimate complaints supported by irrefutable direct physical evidence and sworn testimony to the most outrageous easily provable lies that left agency representatives laughing. Agencies have no direct or indirect control in this regard. However, as the employee’s complaint progresses through the process, a number of “system checks” are in place, designed to filter out less credible, if not untrue, complaints. Among those “system checks”, in fact the first real filter, is the ability of the agency to either accept or reject the complaint, or claims within a complaint, for investigation under EEOC dismissal rules at 29 CFR 1614.107. While the agency must process any and all complaints at the informal (pre-complaint) stage, that obligation ends when filing a formal complaint. This is where many dismissals for failure to state a claim arise.
As previously indicated, an EEO complaint may be dismissed for reasons outlined in EEOC regulations at 29 CFR 1614.107. Therefore, a complainant can tell an EEOC Counselor what he or she believes is a compelling story spanning ten years of employment, and it will be a waste of time unless the claim is carefully structured to conform to EEOC dismissal rules and other process considerations. It is also important to remember EEO Counselors have a reputation of being inaccurate when converting (as documented in the EEO Counselor’s report) a complainant’s narrative to EEO claims that will be reviewed for acceptance, modification, or dismissal by the agency. Neither the EEO Counselor or the Agency EEO office have an obligation to construct or interpret your claims in such a manner to ensure acceptance for investigation should you file a formal complaint. The burden of getting your claims accepted by the agency falls on the complainant.
Even in instances in which a complainant’s claims are dismissed by the agency, the Complainant may still advance to the hearing stage. However, it will be without the benefit of an investigation. Further, the EEOC Administrative Law Judge and the complainant will have to address the threshold issue of whether the EEOC has jurisdiction over the claims since they were previously not accepted. Assuming the judge accepts the complaint or any aspect of the claims, the Complainant will need to engage in significant discovery since no investigation was conducted or the Complaint may be remanded back to the agency for investigation.
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