# [Rights and Responsibilities]{.underline}

Regulations of the U.S. Equal Employment Opportunity Commission (EEOC)
which became effective November 9, 1999, require counselors to advise
individuals in writing of their rights and responsibilities at the
initial counseling session. This memorandum summarizes these rights and
responsibilities.

You have the right to:

> 1\. ***remain anonymous*** in the counseling phase, unless you waive
> this right.
>
> 2\. ***be represented*** throughout the complaint process, including
> during the counseling stage and in any alternative dispute resolution
> (ADR) procedure. (Your EEO counselor is strictly neutral in the EEO
> process, *neither* an advocate for you *nor* an advocate for the
> agency against which you brought your complaint.)
>
> 3\. ***be advised of the time frames*** in the complaint process.
>
> 4\. ***choose between*** the agency's alternative dispute resolution
> (ADR) process (where the agency agrees to offer ADR in the particular
> case) and EEO counseling and ***receive information*** about each
> procedure. (The ADR process used at USDA/NRCS is mediation. The
> mediator, like an EEO counselor, is strictly neutral in the EEO
> process, not an advocate either for you or for the agency.)
>
> 5\. ***file a lawsuit when you allege age*** (under the Age
> Discrimination in Employment Act, or ADEA) as a basis for
> discrimination, instead of filing an administrative complaint of age
> discrimination. Before you can file such a lawsuit, you must file a
> notice of intent to sue with EEOC. *29 CFR 1614.201(a)*
>
> 6\. ***go directly to a court of competent jurisdiction on claims of
> sex-based wage discrimination*** under the Equal Pay Act, instead of
> pursuing your claim under the administrative system. *29 CFR 1614.408*
>
> 7\. ***be advised of class complaint procedures*** and the
> responsibilities of a class agent if you inform the counselor that you
> wish to file a class complaint.
>
> 8\. ***agree in writing to an extension*** of no more than 60 calendar
> days beyond the initial 30-day counseling period.

9.  ***receive in writing within 30 calendar days*** of the first
    counseling contact (unless you elect the ADR process or agree in
    writing to an extension of counseling) a notice terminating
    counseling and informing you of:

> · the right to file a formal individual or class complaint within 15
> calendar days of receiving the notice,
>
> · the appropriate official with whom to file a formal complaint, and
>
> · your duty to immediately inform the agency if you retain counsel or
> a representative.
>
> 10\. ***receive in writing at the conclusion of the ADR process,***
> where you have agreed to participate in that process, ***or within 90
> days*** of your first contact with the EEO counselor, if the ADR
> process has not been completed, written notice terminating the
> counseling period and providing your rights to file a formal complaint
> (see #9).
>
> 11\. ***file a formal complaint*** only on those claims raised in---or
> like or related to those claims raised in---counseling, and ***amend a
> formal complaint*** after it has been filed with claims like or
> related to those in the original complaint.
>
> 12\. ***receive notice*** when the agency consolidates two or more of
> your complaints, including notice that:
>
> · the agency shall complete its investigation within the earlier of
> 180 days after the filing of the last complaint or 360 days of the
> filing of the first complaint, but that
>
> · you may still request an EEOC hearing (see #13) at any time after
> 180 days from filing the first complaint.
>
> 13\. ***receive a copy of the investigative file*** at the close of
> the investigation and notice of the option of mediation as well as
> your right to request either a hearing or an immediate final decision
> by the agency.
>
> 14\. ***request a hearing*** before an EEOC administrative judge
> (except in a mixed case) after 180 calendar days from the filing of a
> formal complaint or after completion of the investigation, whichever
> comes first. (The agency's letter acknowledging your complaint will
> have provided you with: the address of the EEOC field office to which
> you must send the hearing request and the address of the agency
> official to whom you must send a copy of your hearing request.)
> *§1614.108(g)*
>
> 15\. ***request an immediate final decision*** by the agency after an
> investigation. *§1614.108(f)*
>
> 16\. ***go to U.S. District Court*** 180 calendar days after filing a
> formal complaint or 180 days after filing an appeal. *§1614.407*
>
> 17\. ***interim relief*** (see *§1614.502 and §1614.505* for details)
> should the agency appeal an EEOC decision or award.

You have the responsibility to:

18. ***choose either*** to use your union's negotiated grievance
    procedure (where the

> collective bargaining agreement permits raising claims of
> discrimination) or to pursue your complaint through the EEO complaint
> procedures at 29 CFR 1614.

19. ***choose either*** to take your claim to the Merit Systems
    Protection Board (MSPB) if your claim is appealable to MSPB (that
    is, is a "mixed case") or to pursue your mixed-case complaint
    through the EEO complaint procedures at 29 CFR 1614. (Actions
    appealable to the MSPB are listed on the back of this letter.)

> 20\. ***send your hearing request directly to EEOC,*** where you elect
> a hearing by an EEOC administrative judge, and provide a copy of the
> request to the USDA, Office of Civil Rights.

21\. ***meet timeframes in the complaint process***, including:

> · ***contacting an EEO counselor*** within 45 days of learning of the
> matter that causes you to be aggrieved;
>
> · ***filing a formal complaint*** within 15 days of receiving notice
> of right to file a formal complaint or on the 30^th^ day in counseling
> if you have not agreed to extend the process;
>
> · ***appealing to EEOC*** (see *§1614.402* for details):
>
> *within 30 days* of receiving a dismissal or agency final decision or
> final action or *35 days after* serving the EEO director with notice
> of agency noncompliance with a settlement agreement entered into in
> your case, but no later than *30 days after* receiving the agency
> determination
>
> · ***filing a civil action in U.S. District Court---***

*within 180 days* of filing a complaint, if no action has been taken
*(§1614.407)*

> *within 90 days* of receiving an agency final action, if no appeal has
> been filed *(§1614.407)*
>
> *within 180 days* of filing an appeal, if EEOC has not made a decision
> *(§1614.407)*
>
> *within specified time limits at various points in the process,* where
> a case is a mixed-case complaint or a mixed-case appeal to MSPB (see
> *§1614.310* for details)
>
> 22\. ***keep the agency and EEOC informed*** of your current mailing
> address and ***serve copies*** of hearing requests and appeal papers
> on the agency.
>
> 23\. ***mitigate damages***. If you are terminated, for example, you
> have a duty to pursue employment to minimize your losses, since
> interim earnings or amounts that *could be earned with reasonable
> diligence* are generally deducted from any award of back pay.
>
> 24\. ***examine an agency's offer of resolution*** (you have 30 days
> to accept or reject) with the understanding that rejecting an agency's
> offer of resolution made pursuant to §1614.109(c) may result in the
> limitation of the agency's payment of those attorney's fees or costs
> incurred *after* the 30-day acceptance period has expired.

**Actions Appealable to the Merit Systems Protection Board (MSPB)**

The EEO Counselor should determine whether the individual has appeal
rights to the MSPB for the appealable actions listed below. If yes, the
individual must elect (see item #13 above) to pursue a mixed-case appeal
through MSPB or a mixed-case complaint through the EEO complaint
process. (Processes for mixed-case complaints appear at 29 CFR 1614,
Subpart C.)

+-------------------------------------------+---+------------------------+
| ***Action***                              |   | ***More***             |
|                                           |   |                        |
|                                           |   | ***information         |
|                                           |   | at---***               |
+===========================================+===+========================+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Denial of restoration after recovery from |   | 5 CFR 302              |
| compensable injury of an excepted service |   |                        |
| employee                                  |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Termination during probation (under       |   | 5 CFR 315              |
| limited circumstances)                    |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Certain involuntary reassignments or      |   | 5 CFR 317              |
| demotions connected with conversions to   |   |                        |
| Senior Executive Service                  |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Improper application of reemployment      |   | 5 CFR 330              |
| priority rights                           |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Reduction-in-force                        |   | 5 CFR 351              |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Denial of reemployment rights under       |   | 5 CFR 352              |
| various circumstances                     |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Denial of restoration following military  |   | 5 CFR 353              |
| duty; recovery of competitive service     |   |                        |
| employees from certain injuries           |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Reduction-in-grade and removal based on   |   | 5 CFR 432              |
| unacceptable performance                  |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Denial of within-grade increases          |   | 5 CFR 531              |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Adverse suitability determinations        |   | 5 CFR 731              |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Adverse actions by agencies:              |   | 5 CFR 752              |
|                                           |   |                        |
| Removal                                   |   |                        |
|                                           |   |                        |
| Suspensions for more than 14 days         |   |                        |
|                                           |   |                        |
| Reduction-in-grade (demotion)             |   |                        |
|                                           |   |                        |
| Furloughs for 30 days or less             |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| All adverse retirement decisions of OPM   |   | 5 CFR 831              |
| except termination of annuity payments    |   |                        |
+-------------------------------------------+---+------------------------+
|                                           |   |                        |
+-------------------------------------------+---+------------------------+
| Adverse actions involving administrative  |   | 5 CFR 930              |
| law judges                                |   |                        |
+-------------------------------------------+---+------------------------+