Establishing and Controlling your Claim and Basis
As we discussed in many other articles and tell our clients in every initial briefing concerning EEO complaints, EEO complaints are won or lost on initial contact. In the complaint process, this is the inception point to establish both claims and basis upon which, either 1) the agency will elect to settle (our preferred outcome) or 2) an EEOC judge will later rule. It is therefore critical you both establish and control your claim and basis and not allow the EEO Counselor to change, in any way, your claim and basis, provided such claims and basis are properly presented and structured based on the facts of your circumstances. Both the presentation and structuring of your claim and basis must be in conformance with law and EEOC administrative guidelines. Therefore, the complainant who simply thinks they can walk into an EEO Counselor’s office, tell a sad story, and file a complaint on that story, is in in for a rude awakening. While you can file a complaint about nearly anything, filing a complaint is not the objective. The objective is to either win or settle the complaint on your terms. Sad, or even compelling stories, will not accomplish this objective.
An EEO complaint is easily dismissed (by Agency or Judge) for any of the reasons set forth in 29 CFR 1614.107(a) and for failure of a complainant to allege some prohibited basis. Also see, EEOC Directive MD-110, Ch. 5. Among those reasons is the “failure to state a claim.” In layman’s terms, despite what many federal employees believe, federal employees do not have a “right” or ability (in a case viability sense) to pursue any “perceived wrong” in the EEO process. Each EEO complaint must present a Claim and the EEO Basis for such a claim. This misconception by many federal employees explains, in significant part, the high rate of EEO complaint dismissals at various stages throughout the process. For this reason, and as we previously covered, only a limited amount of trust should be placed in the EEO Counselor to accurately document and present the claims and basis of a complainant. Even more importantly, it is critical that complainants establish and control both the claim and basis of an EEO complaint.
A basis must accompany each claim. Your complaint must establish the claim (action or non-action) was taken for the basis indicated; or, in other words, the action you are claiming occurred, would not have been taken “but for” the basis you indicate. So, for example (in simplest terms), if the Agency removed you for misconduct and your claim is the removal, you will need to prove the agency removed you for reasons other than those indicated in the decision notice; for example, race, color, religion, national origin, disability status, age, or retaliation for engaging in prior EEO protected activity. Often, the merits of the case are but a side discussion to the issues of basis applicability.
What is a Claim?
To explain what a claim is, it is important to first understand what a claim is not. A claim is not merely a complaint. For example, the simple belief your work environment is oppressive, unfair, or otherwise not a nice place to work, is not a claim; neither is the mere belief you were treated unfairly, even when compared to other employees. Instead, the EEOC describes a claim, with certain specificity, as, “a present harm or loss with respect to a term, condition or privilege of employment for which there is a remedy.” See, Diaz v. Department of the Air Force, 94 FEOR 30755 (EEOC 1994). With limited exception (notably certain aspects of a Hostile Work Environment), an employee must demonstrate a harm or loss through an employment action (or failure to take an action) by the agency affecting conditions or privilege of employment. The agency must also be able to provide a remedy for such a harm. If a remedy is not available, the Complaint cannot be addressed through the EEO process. Therefore, issues such as non-selection, removal, suspensions, poor performance ratings, details, reassignments, demotions, etc. serve clearly (and most easily) as viable claims.
What is a Basis?
Simply stated, in the context of EEO complaints, a basis concerns an underlying discriminatory reason for an action to have been taken or not taken. A complainant’s failure to allege a prohibited basis of discrimination is adequate basis for dismissal of the complaint. See, Fields v. USPS, 01831818, 1077 (1983). While it is not absolute a complainant specifically indicate the basis, or even properly do so, there must be some factual support for a basis that would allow a judge to link to the claims. If a complainant does not specifically identify or present the basis, the complainant leaves such identification (and necessary linkage to the claims) to chance.
Controlling Your Complaint
So, what is the bottom line for any potential EEO complainant? The EEO process is incredibly complex while trying to provide the illusion of relative simplicity (i.e., many complainants believe the EEO Counselor is there to help). Therefore, it is crucial potential complainants understand technical aspects of establishing both basis and claims and preserving the basis and claims through the initial (informal) stage of the complaint process. Prior to filing a complaint, the complainant should seek appropriate consultation to determine whether sufficient basis and claims exits to support a complaint. Once identified, the basis and claims should be structured properly for presentation to the EEO counselor. Not only will this effort create a more viable and sustainable complaint, it should have a dual effect of presenting conditions that will hopefully convince the agency to settle the case, which should always be the goal of a complainant. Furthermore, it will prevent the EEO counselor from speculating as to the claims and basis. Throughout the entire informal stage, the complainant should ensure the integrity and basis of the claims are preserved and only modified with deliberative effort. The success of such efforts will can be verified in the EEO counselor report and if any changes are noticed, the complainant should respond in writing regarding such changes and seek to re-establish the basis and claims as appropriate. Amending the claim and/or basis may be required.