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Federal Employees News Digest : Dec 23, 2013
December 23, 2013 Vol. 63, No. 23 5 Visit us on the Internet at www.FederalDaily.com EEOC scrutinizing improper procedural dismissals of complaints N ot so fast. That appears to be the message of the Equal Employment Opportunity Commission (EEOC) for agencies that loosely interpret procedural regulations and are far too eager to dismiss federal employees' discrimination complaints. In its recently released Federal Sector Complement Plan to the Strategic Enforcement Plan, the EEOC's Office of Federal Operations (OFO) and Office of Field Programs (OFP) identified five priorities for "preserving access to the legal system." One of those priorities involves correcting improper agency dismissals. Under the plan, the OFO will examine federal-sector remands "to identify issues agencies most frequently dismiss on incorrect grounds, thereby denying Federal employees access to the EEO process." To stem this problem, OFO and OFP will use the findings of this study to train and reach out to equal employment opportunity (EEO) directors and staff. These steps are direly needed, as improper dismissals of federal-sector discrimination complaints have reached disturbing levels. In fiscal 2011, 478 of the 2,128 appellate procedural closures were reversed by the EEOC, according to the agency's latest Annual Report on the Federal Workforce. So, basically, one out of five appeals based on procedural dis- missals were reversed. Fifty-three percent of those reversals, or 253, involved U.S. Postal Service appeals. The Department of Veterans Affairs registered the second-highest number of appellate reversals of procedural closures at 43, followed by the Department of the Army at 31. Under 29 C.F.R. § 1614.107, agencies can entirely dismiss a complaint before a hearing for several reasons. Agencies typically dismiss complaints due to the employee's alleged failure to cooperate or his or her failure to state a claim. One of the most common reasons for formal complaint dismissal is untimely filing. The EEOC case Dennis J. Drew v. U.S. Postal Service (2009) provides an example of an improperly dismissed complaint on the failure to cooperate basis. In this case, the agency dismissed the complainant's complaint that alleged race, color, sex and disability discrimination, in addition to repri- sal, because he failed to complete an affidavit. However, the EEOC noted on appeal that, "as a general rule, an agency should not dismiss a complaint when it has sufficient infor- mation to adjudicate on the merits." The commission noted that the agency failed to claim there was insufficient informa- tion to adjudicate the complaint. Consequently, the EEOC deemed the dismissal improper and remanded the complaint to the agency for further processing. Federal employees who have been subjected to discrimina- tion should immediately contact a federal employment law attorney. An attorney can shield employees from agencies' improper dismissals by ensuring complaint timeliness and cooperation as well as properly stating a claim. By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at firstname.lastname@example.org. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
Dec 16, 2013