EOEEO, A Checklist or a Passion

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National Guard Bureau 2008 Training Conference
FRAMING THE ISSUES

• Margaret H. Tyus
• Complaints Adjudicator
• Margaret.H.Tyus_at_us.army.mil

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FRAMING THE ISSUES
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Critical Areas that should be addressed in an EEO
Counselors Report
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Critical Areas in a Counseling Report

• Identifying Basis Issues
• Establishing a Nexus between theBasis Issue
• Continuing Violations Fragmentation
• Identifying Harassment
• Gathering the Information
• The Interview Documents
• RMO Witness
• Final Interview

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Identifying Basis IssuesClearly Defined
The Counselor should assist the aggrieved in
defining a legal claim (i.e., termination/promotio
n/disciplinary action) that could form a basis of
a complaint (i.e., race, color, religion, sex,
national origin, age, disability or reprisal
(prior EEO activity).
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Identifying Basis
Basis of Discrimination

• Age (Over 40) Technicians only!!!
• Religion
• Race/Color
• I.D. status (Tech vs. Military at time of
  allegation)

• National Origin
• Sex
• Disability (Mental or Phys) Technicians only!!!
• Reprisal/Retaliation

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Identifying Basis Issues Establishing a
Nexus between theBasis Issue

• Forces the aggrieved to articulate the root
  cause of their issues
• Aids the SEEM, EO/EEO Specialist and Investigator
  in processing the complaint correctly
• It forces the aggrieved to actually think about
  EEO process (makes aggrieved consider that they
  may be pursuing their issues in the wrong venue)

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Identifying Events Issues

• What is the matter causing the complaint/issue?
• Who, What Where Why?
• The issue in a complaint refer to acts, personnel
  actions or employment decisions
• List any/all mgmt officials witnesses (phone
  title)

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Identifying Basis Issues Counselors Report
Nexus/Correlating statement

• The aggrieved feels that although the RMO was
  not named in her previous EEO complaint, her
  previous EEO activity has something to do with
  her non-selection. The aggrieved was unable to
  articulate a direct correlation between her basis
  and claim
• The aggrieved felt that the root cause for him
  receiving a Low Satisfactory on his performance
  appraisal was his race. The aggrieved was unsure
  of the races of his co-workers
• The aggrieved feels that a co-worker was allowed
  to work the overtime because of her race. The
  co-worker, and the RMO are both Caucasian, and
  The aggrieved is Black. The aggrieved clearly
  articulated a direct correlation between his
  basis and claim

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IDENTIFYING CONTINUING VIOLATIONS FRAGMENTATION

• Continuing violation situations involving
  claims or allegations related either to a
  discriminatory course of conduct, a
  discriminatory policy or condition of employment

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Considering Whether Continuing Violation Exists

• Alleged acts have the same basis of
  discrimination
• Acts are recurring, versus distinct and isolated
• Each act does not have the same degree of
  harshness that would trigger the employees
  awareness of possible discrimination
• A nexus/connection between the timely examples
  and untimely examples (i.e., same supervisor(s)
  is involved and the incidents are similar in
  nature)

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Continuing Violation case example

• 1) request for annual leave denied, 2) required
  to take leave on numerous occasions when he was a
  few minutes late for work, white employees were
  not, and 3) required to notify his supervisor
  when he was out of the office, white employees
  were not monitored
• This employee is raising a series of acts which
  are tied together with a common theme, uniting
  the acts into a continuous pattern otherwise
  known as a continuing violation.

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What is FRAGMENTATION

• Fragmentation occurs when there is a failure to
  distinguish between the allegation (i.e. issue or
  claim) the complainant is making and the evidence
  (factual/background information) offered to
  support the claim.

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When/How does FRAGMENTATION occur

• Fragmentation is the breaking up of a
  complainants legal claim or claims into separate
  allegations or incidents and then processing them
  separately.
• Fragmentation often begins when the allegation
  raised by complainant is identified/defined (i.e.
  in the EEO Counselors report or SEEMs
  acceptance letter).

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Results of FRAGMENTATION

• Adds to the number of complaints in the system
• Burdens the EEO process
• Harder (for aggrieved) to prove cases that depend
  on a critical mass of facts or incidents

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FRAGMENTATIONCase Example

• 1) request for annual leave denied, 2) required
  to take leave on numerous occasions when he was a
  few minutes late for work, white employees were
  not, and 3) required to notify his supervisor
  when he was out of the office, white employees
  were not monitored
• If each of these incidents (listed above) was
  considered to be separate allegations, this would
  be consider fragmentation

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FragmentationCase Example

• 1) request for annual leave denied, 2) required
  to take leave on numerous occasions when he was a
  few minutes late for work, white employees were
  not, and 3) required to notify his supervisor
  when he was out of the office, white employees
  were not monitored
• Instead of being consider separate incidents,
  this case should be viewed as a race-based claim
  of disparate treatment under the terms and
  conditions of employment with regard to time and
  attendance, the three issues above supporting the
  claim.

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FRAMING THE ISSUES

• A claim refers to an assertion of an unlawful
  employment practice or policy for which, if
  proven, there is a remedy under the federal equal
  employment statutes.

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FRAMING THE ISSUES

• A claim is an allegation that the complainant has
  suffered some harm because of an employment
  action on the part of the agency that is
  prohibited by Title VII, the Rehabilitation Act,
  the Age Discrimination in Employment Act (ADEA),
  or the Equal Pay Act (EPA)

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FRAMING THE ISSUES

• EEOC Breaks down a claim into two components
• A factual statement of the employment practice or
  policy being challenged and
• A legal claim that identifies the basis of
  prohibited discrimination (i.e. race, religion,
  color, sex, national origin, disability or
  reprisal for previous participation in protected
  EEO activity.

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FRAMING THE ISSUES

• Elements of claims/allegations consist of a brief
  and concise statement of the act or personnel
  action that the complainant believes was
  discriminatory.
• Explanations or descriptions of circumstances
  leading up to or surrounding the act or personnel
  action, discussion of the complainants feelings,
  statements regarding the aggrieved duties,
  justifications concerning any actions taken or
  not taken or similar materiel should be included
  in supporting statements even though such
  supporting statements and material may not
  constitute an issue/claim.
• The date on which the alleged discriminatory
  event occurred or the effective date of the
  alleged discriminatory personnel action.
• The bases (race, religion, color, sex, national
  origin, age, disability or reprisal for previous
  participation in protected EEO activity) on which
  the complainant feels or believes that they were
  discriminated.

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FRAMING THE ISSUES

• SAMPLE STATEMENT
• I believe that I was discriminated against on 25
  April 2008 based upon my gender (male) when my
  supervisor, George Goodfellow denied me the
  opportunity to attend the NGB-EEO Counselors
  Course conducted in Montgomery, Alabama

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FRAMING THE ISSUES

• Issues/claims that have not been counseled may
  not be raised in the formal complaint, but may
  be dismissed or referred to the EEO office for
  additional counseling-unless, they are considered
  like and related to the initial complaint.

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QUESTIONS
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Case Examples

• The complainant, an African American male has
  been employed as a Logistics Officer for 3 years
  in Office Z. For each of those years he received
  higher than average evaluations from his
  supervisor. In March he filed a complaint
  alleging that he was denied a promotion because
  of his race. A copy of the complaint was served
  on Office Z in April 2008. In May 2008 the
  complainant received his yearly evaluation which
  had lower than average ratings. The complainant
  had received no prior notification that his
  performance was anything other than above
  average.

1..Complainan
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Case Example

• Complainant stated that in early 1999, Andy
  Anderson, Director of the Denver Regional Office,
  began hinting that the region needed younger,
  fresher ideas. Complainant indicated that the
  Director started recruiting and hiring new young
  college students with management degrees.
  Complainant who does not have a management degree
  believed that the Director was using the
  management degree distinction to unfairly advance
  the new recruitment in an effort to force the
  retirement of some of the older senior staff
  members. Complainant stated that he never
  confronted the Director with his concerns, but
  was sure that age was the motivating factor.
  Complainant explained that the Director was
  constantly using the catch phrases to express
  feelings about older employees, such as fresh
  ideas, different thinking and new blood.

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Case Examples

• Nathanial Sampson, a white male, is a Supply
  Specialist in the base warehouse. On March 1,
  2008 he consulted with his supervisor, a black
  female, about being excused from duty on Friday
  morning March 12, 2008 to attend a special
  worship service at his church. The supervisor
  indicated it should not be a problem. However,
  when Sampson failed to report for duty the
  morning of March 12, he was informed by the
  Administrative Specialist that he had been marked
  Absent Without Leave by his supervisor. After
  learning this Nathan decided to seek advice from
  the EEO office.

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Case Example

• Complainant stated that the High Caparral Area
  Director, Bob Barker has continued the regions
  pattern of discriminating against Hispanic
  employees. Complainant indicated that was more
  than qualified than the selectee for a recent
  vacancy in terms of experience. He has eaten
  lunch with the selectee and they get along fine.
  They have been friendly outside of work on
  occasion. When the position became available
  they both agreed to apply. Complainant believes
  that the Area Director was motivated by bias due
  to cultural differences as well as the desire to
  work with the attractive female.

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