Developments at the EEOC: On September 15, 2014, the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations (OFO) published a report entitled Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds. The report’s findings revealed an alarming rate of erroneously dismissed EEO complaints by federal agencies.
OFO analyzed its appellate decisions on federal agencies’ procedural dismissals of EEO complaints brought by employees or applicants for employment over the past five years. OFO decides appeals on 1,300 to 1,500 agency dismissal decisions each year. According to OFO’s report, OFO reversed and remanded 44.9% of all appeal decisions of agency dismissals it issued in 2012. This number has risen steadily since 2008, when OFO reversed and remanded 30.3% of appeal decisions of agency dismissals.
OFO found that the agencies studied primarily erred in applying two regulatory grounds for dismissal. 81% of all appellate reversals studied overturned agency dismissals on one of these two grounds: (1) reversals for failure to state a claim, which accounted for about 57% of the appellate reversals, and (2) reversals for failure to comply with applicable regulatory time limits, which accounted for about 24% of the appellate reversals.
The most common errors by agencies in dismissing complaints for failure to state a claim concerned the following issues: (1) fragmentation (in particular, of harassment complaints); (2) dismissal of reprisal complaints which are viable under the lower standard for retaliation claims; (3) improper decisions on the merits at the dismissal stage; (4) issues of standing (especially for joint employer cases involving federal contractors); (5) dismissing as a collateral attack on another process; and (6) issues surrounding the cancellation of vacancy announcements.
The report also analyzed the most common areas where agencies fail to comply with applicable regulatory time limits: (1) the agency’s failure to meet its burden of proof in proving that the complaint was untimely; (2) miscalculating the filing deadline when the complaint is timely based on the effective date of an action or on reasonable suspicion; (3) “Lily Ledbetter” issues in pay discrimination claims; and (4) failure to consider a valid excuse for untimely filing.
OFO stated that it “expects to develop training and other outreach efforts aimed at EEO Directors and staff in federal agencies to reduce ongoing procedural dismissal errors.”
If you are a federal employee with a discrimination complaint, and wish to discuss your rights, please consider contacting Passman & Kaplan, P.C. to request an initial consultation.