**EEO Formal Complaint Processing Procedures**

The U. S. Department of Agriculture, Office of Adjudication and
Compliance (OAC), Employment Complaints Division, is responsible for
processing formal complaints of discrimination. The NRCS, Civil Rights
Division (CRD), Complaints Branch (CB) is responsible for tracking
formal complaints, providing assistance as appropriate and coordinating
activities which will facilitate the processing of formal complaints.

The role of the CB includes working closely with investigators, Agency
and Complainant representatives, managers, supervisors and employees
during the processing of EEO complaints, to include attempts at
resolution. During the course of the investigation, the CB will monitor
the investigation as well as assist the investigator in obtaining
information which is needed.

The first step in the formal EEO process begins at the OAC. Upon receipt
of a formal complaint, OAC will analyze the complaint and make a
determination on whether to accept the complaint for investigation or
dismiss the complaint without an investigation. OAC may dismiss a
complaint if the allegations are untimely; failure of the Complainant to
state a claim or show that he or she has been harmed; failure to allege
an adverse action due to one of the covered basis (i.e. race, sex, age,
etc.); or lack of jurisdiction (i.e. if the complaint is against a
contractor). OAC notifies the Complainant and the Agency whether the
complaint was accepted for investigation or dismissed.

Once an EEO complaint is accepted, a contractor is assigned by the CB to
investigate the complaint. The CB gives the contractor forty-five (45)
work days to complete the investigation and develop a Report of
Investigation (ROI). However, this date may be extended if necessary. A
case must be investigated within 180 days from the receipt of the Formal
Complaint. The contractor assigns an investigator. The investigator is a
neutral party. He or she will interview the Complainant, witnesses, and
management officials who are relevant to the investigation. It is
expected that the Complainant, management officials, and all witnesses
will cooperate in the investigation and make themselves available to be
interviewed.

The investigator will also request documents and information essential
to the investigation. The CB will send out the Requests for Information
to the appropriate management officials with the expectation that the
required documents will be sent within two (2) weeks to the CB. The CB
will forward the documentation which was obtained to the investigator.
The investigator will insert the documents into the final ROI. It is the
responsibility of all parties to cooperate with the investigator in
order to obtain as complete of a record as possible.

Following completion of the investigation, a ROI is provided to the CB
from the contractor. The CB will review the ROI for legal sufficiency. A
copy of the ROI will then be distributed to Complainant or his/her
representative and to the OAC.

Upon receipt of the ROI, the Complainant has the right to exercise one
of the following options: (1) withdraw the formal complaint; (2) request
a final agency decision (FAD) by the USDA based on the evidence of
record; or, (3) request an administrative hearing by an EEOC
Administrative Judge (EEOC AJ). If the CB does not receive the election
form regarding the chosen option within 30 calendar days of receipt of
the ROI, USDA will proceed to issue a FAD based on the evidence of
record. In order to assist the Complainant in processing the chosen
options, the CB encloses a "Final Agency Decision or Withdrawal Election
Form" and a "Hearing Election Form."

In addition to choosing one of the options, the Complainant may also
elect to participate in Alternative Dispute Resolution (ADR). This
attempt at resolution does not stop the hearing or final Agency decision
process.

If a Complainant elects a final decision without a hearing, OAC will
issue the decision. The decision will inform the Complainant whether or
not OAC found a violation of any Civil Rights Law(s) specified in
Complainant's EEO complaint. If a violation is found, the OAC will
specify the actions it will take to remedy the situation. If the
Complainant is dissatisfied with the decision, an appeal may be filed
with EEOC. Complainants who are dissatisfied with a decision from EEOC
may go to Federal District Court.\
\
A hearing is an adjudicatory proceeding that completes the process of
developing a full and appropriate record. The proceeding gives the
parties a fair and reasonable opportunity to explain and supplement the
record and, in appropriate instances, to examine and cross-examine
witnesses. The AJ has full responsibility for the adjudication of the
complaint. This authority includes, but is not limited to the following:
(1) Issue decisions on complaints; (2) Administer oaths; (3) Regulate
the conduct of hearings; (4) Limit the number of witnesses so as to
exclude irrelevant and repetitious evidence; (5) Order discovery or the
production of documents and witnesses by serving orders on both parties;
(6) Issue protective orders not to disclose information; (7) Exclude any
person who is disruptive from the hearing or who is a witness so that
s/he cannot hear the testimony of other witnesses; (8) Issues decisions
without a hearing if there are no material facts in issue; (9) Limit the
hearing to the issues in dispute; (10) Impose appropriate sanctions on
parties who fail to comply with orders or requests; (11) Calculate
compensatory damage awards; (12) Order a medical examination; (13)
Calculate and award the amount of attorney's fees or costs; (14) Engage
the parties or encourage the parties to engage in settlement
discussions; (15) Issue an order determining full relief; and, (16) Hold
a hearing in abeyance.

If the Complainant elects a hearing, the Complainant must send a copy of
the election form directly to the EEOC as well as to the CB. Upon
receipt of the election form, a copy of the ROI is sent by the CB to the
AJ at the EEOC within fifteen (15) days of receipt of the request. The
AJ will issue a decision to both parties within 180 days of receipt of
the case file unless the AJ determines that good cause exists for
extending the time for issuing findings of fact and conclusions of law.
If discrimination has been found, the AJ orders the appropriate relief
and remedies within that same time frame.

Within sixty (60) days of the receipt of the AJ's decision, the USDA
adopts the decision of the AJ by issuing a final order. However, if the
Agency does not plan to fully implement the AJ\'s decision, the USDA
must file an appeal with EEOC, Office of Federal Operations (OFO) within
forty (40) days of the decision and give the Complainant his appeal
rights. The USDA may file a brief or statement in support of its final
action within twenty (20) days of its filing of its appeal.\
\
If the Complainant is dissatisfied with the USDA's dismissal, final
action, or decision, he or she may file an appeal with EEOC, OFO within
thirty (30) days of the receipt of the decision. The Complainant may
also file a brief or statement in support of his/her appeal with OFO
within thirty (30) days of filing the notice of appeal.\
\
Both parties have thirty (30) days to submit a statement or brief in
opposition to an appeal from receipt of the statement or brief
supporting the appeal. If no brief or statement supporting the appeal is
filed, the party opposing the appeal must file its opposition within
sixty (0) days of the receipt of the appeal.

After the USDA is notified that Complainant has filed an appeal or
within thirty (30) days of submission of an appeal by the USDA, USDA
must submit the complete complaint file to OFO. If the record is
complete, OFO shall issue a decision. The standards of review from OFO
are [de novo]{.underline}, or examination of the record without regard
to the factual and legal determinations of the previous decision maker,
on appeals from USDA dismissals or final decisions. The standards of
review from OFO on factual findings in a decision by an AJ, shall be
based on a substantial evidence standard of review. In this instance,
the burden is on the party challenging the AJ's decision to demonstrate
that the AJ's factual determinations are not supported by substantial
evidence. The findings of OFO are final. If there is a finding of
discrimination, the Agency must provide full relief.