Watch Those EEO Counselors
When reading this post, please remember our position that an EEO Complaint can be an incredibly powerful and effective tool, eclipsing other appeal routes such as negotiated grievance procedures and administrative grievances. The issue is whether you are able to control that process to leverage it in your favor.
We previously covered making initial contact regarding EEO Complaints and the Federal EEO Complaint Process, both of which are recommended reading to accompany this post. Initial contact with an EEO Counselor is a seemingly simple, but incredibly critical task to establish and preserve appeal rights. Counselors are the designated “Gateway” to obtain a hearing on your claims and they file a report that forms the basis for the critical Report of Investigation (ROI). Counselors, in theory, are a “neutral” and neither advocate for the Agency or the Complainant (you). Also, in theory, they are regulated by EEOC Directive MD-110 and supplemental agency regulations, intended to conform with the same Directive. Our first hand experiences reveal a far different story.
Without a doubt, there are professional and capable EEO Counselors who take their job seriously; it’s just that they do not represent the majority in our opinion. Here are some very specific issues we encountered with EEO Counselors. These issues prove our point that you, as the Complainant, must protect and control your claim. This is especially true during the informal stage of the Complaint.
Our Experiences: Specific Issues with Agency EEO Counselors
- Complete lack of fundamental knowledge regarding process and law
- Reporting wrong dates of initial contact with Complainant
- Intentionally failing or delaying response to Complainant and subsequently reporting delayed date as date of initial contact
- Wrongly telling Complainant they did not have “status” to file a Complaint (the employee resigned a few days prior); we recommend you read a previous post entitled, “Non-Employees” Can File and EEO
- Dissuading Complainant from filing, demonstrable bias against Complainant, advocating for Agency
- Failing to send Complainant proper paperwork
- Requiring Complainant to present arguments and evidence in support of claims during informal counseling
- Changing and/or failing to record the Complainant reported claims and basis
- Forcing arbitrary time limits for Complainants to return information
- Dismissing Complaints (they do not have authority)
- Claiming they never received required information from Complainant
- Providing patently false information to Complainant
- Failing to promote Alternative Dispute Resolution
- Failing to try to resolve the matter informal (See, 29 CFR 1614.105(a))
- Failing to disclose conflicts of interest (real or potential)
- Disclosing Complainant information to parties not authorized to receive such information
- Threatening to terminate the informal process (they do not have the authority)
- Filing Counselor reports with false or misleading information
These issues present a very daunting situation for Complaints not familiar with the EEO process or administrative litigation. We discovered many Complainants who simply “walked away” from the process believing there was nothing they could do to bypass the EEO Counselor. Nothing could be further from the truth. In fact, the actions of an EEO Counselor can weigh in a Complainant’s favor both at mediation and at hearing. However, the burden in this regard shifts to the Complainant to present and prove the circumstances (to assist in this regard, we recommend reading our post entitled, Keep Organized to Prove Your Case.
During the informal stage, other than establishing timely contact with an EEO Counselor, the most important concern for a Complainant initiating a complaint should be the establishment and control of both basis and claims. This is critical since an Agency may dismiss (and probably will), a complaint for failure to state a claim (what the agency did and how the Complainant was “aggrieved”). This is one of the reasons we authored the FAQ entitled, When to Contact a Consultant.