EEO Complaint Process

It is the Virginia National Guards policy to provide a workplace free from unlawful discrimination and harassment, and we have a zero tolerance policy regarding sexual harassment. The Virginia National Guard prohibits workplace discrimination or harassment directed towards a person or group because of their:

  • Race,
  • Color,
  • National Origin,
  • Religion,
  • Age,
  • Sex (including pregnancy, gender identity, and sexual orientation),
  • Disability, OR
  • Genetic Information.

The Virginia National Guard prohibits retaliation if it is against people engaged in protected EEO activity, which includes:

  • Being a part of the EEO complaint process
  • Opposing discriminatory practices

If you are a Virginia National Guard employee or have applied for employment with the Virginia National Guard, and you believe you experienced discrimination, you have the right to file a complaint of discrimination. To do that, you must start contact with the Virginia National Guard EEO office within 45 calendar days of the discrimination.

 

Pre – Complaint Process Informal

If you believe that you have been discriminated against or harassed because of your:

  • Race,
  • Color,
  • Religion,
  • National Origin,
  • Sex,
  • Pregnancy,
  • Gender Identity,
  • Sexual Orientation,
  • Age (40 and over),
  • Disability,
  • Genetic Information, OR
  • Participation in the EEO process,

you should contact the Virginia National Guard’s EEO Office prior to filing a formal complaint. We will try to help informally resolve the matter.

You must contact the Virginia National Guard EEO Office within 45 calendar days of the date of the discrimination. If you feel that the incident or incidents occurred after 45 calendar days please contact the Virginia National Guard EEO Office.  We will assign you an EEO counselor, who will:

  • Provide information about the EEO process,
  • Provide information about other options that are available,
  • Provide a written explanation of your rights and responsibilities,
  • Gather basic information about the discrimination or harassment,
  • Determine your claims and your protected group, and
  • Do a limited inquiry.

Alternative Dispute Resolution (ADR) is an alternative solution to solve the issue. If you choose not to use this process the EEO counselor will attempt to resolve the situation informally.

EEO counseling will occur during the 30 calendar days after you contact the EEO office, but if more time is needed, the EEO office will ask if you are willing to extend the counseling up to 60 more days.

If you are not satisfied by the end, the EEO Counselor will tell you in writing about your Right to File a Discrimination Complaint. The notice will tell you:

  • That you may file a discrimination complaint within 15 days
  • How to file your complaint
  • If you retain counsel or a representative, you must immediately notify Virginia National Guard EEO office.

 

Filing a Formal Complaint

If the attempts to resolve informally have failed, you may file a formal EEO complaint with Virginia National Guard EEO Office within 15 calendar days of receiving the Notice of Right to File a Discrimination Complaint. The complaint must be:

  • Filed in writing
  • Signed by you, or by your attorney

A formal complaint can also just be a written statement, as long as it has:

  • Your name
  • Your telephone number (or your representative’s telephone number)
  • Your address (or your representative’s address)
  • The organization where the discrimination happened
  • Your description of the actions or practices that you are complaining about

You must send the complaint to the Virginia National Guard EEO Office.

After we get your formal complaint, we will reply to tell you the date when we got your complaint. This date will be the postmark date, or the date you gave it to us in person. We will then give your EEO Counselor 15 calendar days to complete the EEO Counselor’s Report and send a copy to you. The Virginia National Guard EEO Office will use this report to determine:

  • Whether you filed your complaint in time
  • Whether to accept it for formal EEO investigation

If the claims differ from the claims in the EEO Counselor’s Report or in your formal complaint, the Acceptance Letter will explain why. If Virginia National Guard EEO Office dismissed part of your complaint, the Acceptance Letter will also explain why.

If you disagree with how your Virginia National Guard EEO Office wrote your claims in the Acceptance Letter, you may write to Virginia National Guard EEO Office and explain your concerns. The VNG EEO Office will add this to the file for your complaint.

You may request to try Alternative Dispute Resolution any time during the formal EEO complaint process.

Adding to a Formal Complaint

Any time before the investigation ends, you may add related claims to your complaint. If you later request a hearing, you may also ask the administrative judge to amend your complaint to include related claims.

 

EEO Investigation

The VNG EEO Office will assign the investigation either to the Department of Defense Investigations and Resolution Directorate (IRD), or to a contract investigator. The Virginia National Guard is required to conduct a thorough and impartial investigation of your complaint within 180 days. You and the VNG EEO Office may agree in writing to extend the investigation up to 90 more days. If you amend your complaint, this will reset the 180-day limit, but an investigation may not take more than 360 days.

The investigation is complete after VNG EEO Office sends the Report of Investigation (ROI) to you, along with an explanation that you have the right to either:

  • Request a Hearing before an Administrative Judge with the EEO Commission, or
  • Request a Final Decision from the agency.

If we fail to finish the investigation before the deadline, we will write to you to tell you:

  • That we were unable to complete the investigation
  • The date when we expect to complete the investigation
  • About your right to:
    • File a Civil action, OR
    • Ask for a Hearing.

Civil Action

Starting 180 days after you file an EEO Complaint, if you haven’t received a final action, or filed an appeal, you gain the right to file a Civil Action in an appropriate United States District Court. This ends the EEO Process.

Hearings

180 days after filing your complaint, you gain the right to request a hearing with an EEOC Administrative Judge. This is not true if you can appeal your case to the Merit Systems Protection Board (MSPB). We call this a mixed case.

After we send the Report of Investigation to you, you have 30 days to decide whether you want a hearing with an EEOC Administrative Judge. To request a hearing, you must:

The EEO office will include contact information in the acceptance letter. You must send a copy of your request for a hearing to your EEO Office.

After the EEOC Administrative Judge gets your request, they will:

  • Conduct the hearing
  • Make a decision
  • Order relief if discrimination is found

If we do not get your hearing request within 30 days, we will issue a final decision instead.

Agency Final Order

After the EEO Office receives the Administrative Judge’s decision, we have 40 days to issue a Final Order. This Final Order will tell you:

  • If we agree with the Administrative Judge’s decision
  • If we will grant any relief the judge ordered
  • Your right to appeal to EEOC
  • Your right to file a civil action in federal district court, and name of the defendant
  • The deadlines for filing an appeal and a civil action

If we don’t agree with the Administrative Judge, we will also:

  • Appeal the decision to the EEOC
  • Append a copy of our appeal to our Final Order
  • Attach a copy of EEOC Form 573 to our final order.

Civil Action

If you just got the Final Order, you have 90 days to file a Civil Action in an appropriate United States District Court, which would end the EEO Process.

Final Agency Decision

If you decide not to request a hearing, you can tell the VNG EEO office in writing and we will begin making our final decision. If the VNG EEO office does not hear from you, the VNG EEO office will request a final decision after 30 days.

VNG EEO office has 60 days to issue our Final Agency Decision (FAD), which will consist of:

  • Our findings on the merits of each issue in your complaint, based on the report of investigation.
  • If we dismissed any of your claims, our rationale for dismissing them
  • If we found discrimination, the Remedies and Relief that we’re going to make.
  • Your right to appeal to the EEOC.
  • Your right to file a civil action in federal district court, and name of the defendant.
  • The deadlines for filing an appeal and a civil action.
  • EEOC Form 573.

 

Remedies and Relief

If the Virginia National Guard finds that you have been discriminated against, it will provide appropriate relief, possibly including:

  • Notify all Virginia National Guard employees in the affected facility of their EEO rights.
  • Assurance that the particular types of discrimination will not happen again.
  • Take corrective actions or preventive actions to ensure that similar violations will not happen again.
  • Offer to place you in the job you would have held if the discrimination didn’t happen, or into an equal job.
  • Pay you for any lost pay caused by the discrimination.
  • Commit to stop doing the specific discrimination.
  • Offer you the job that you would have held if the discrimination didn’t happen, or into an equal job. This will include pay for the amount of time that you would have worked, even if you decline the job.
  • Cancel unwarranted personnel actions.
  • Remove any negative records related to the discrimination.
  • Opportunity use any employee benefits that were denied, like training, preferential work assignments, or overtime scheduling.
  • Your attorney’s fees or costs.

If you disagree with our Dismissal, Agency Final Order or Final Agency Decision, you have the right to appeal our final decision to the EEOC. You must file your Appeal within 30 days after we issue our decision.

If you just got an EEOC final decision on your appeal, you have 90 days to file a civil action in an appropriate United States District Court.

Class Complaints

If your EEO complaint is about an issue that affects a group and not just yourself, it could be a Class Complaint.

Definition of a Class

A Class is a group of:

  • employees,
  • former employees, OR
  • applicants for employment

who complain that they have been harmed by an agency:

  • personnel management policy, OR
  • personnel management practice,

which discriminates against the group.

How a class complaint is filed

If you want to file an EEO Class Complaint, you must first get EEO counseling. If you later get class certification, you won’t have to repeat counseling.

After it becomes clear that the claims raised in your complaint have Class Implications, you may move for Class Certification. An EEOC Administrative Judge decide if your complaint meets the requirements of a class complaint.

Requirements of a Class Complaint

You must agree to be the Agent of the Class, who will:

  • Act for the class during the complaint process
  • Fairly and adequately protect the interests of the class.

In order for the Administrative Judge to accept your class complaint, it must be a written complaint of discrimination that claims:

  • There are questions of fact common to the class
  • Your claims are typical of the claims of the class

The class is so numerous that a consolidated complaint of the members of the class is impractical.

Mixed Case Complaint

A mixed case complaint is a complaint of employment discrimination filed with a Federal agency based on:

  • race,
  • color,
  • religion,
  • sex,
  • national origin,
  • age,
  • disability, OR
  • genetic information,

which you can also appeal to the Merit Systems Protection Board (MSPB) under their appellate jurisdiction. These situations are listed in Title 5 of the CFR, Section 1201.3, and include:

  • If, for a cause that will promote the efficiency of the service, you are removed, reduced in grade or pay, suspended for more than 14 days, or furloughed for 30 days or less.
  • If the Virginia National Guard makes a determinations that affected your rights or interests under the federal retirement laws.
  • If you were terminated as a probationary employee, you may appeal if the termination was motivated by:
    • partisan political reasons
    • your marital status, OR
    • a pre-appointment reason.
  • If, after you recover from a work-related injury, Virginia National Guard doesn’t properly restore your employment.
  • Reduction in grade or removal for unacceptable performance
  • If you were separated, demoted, or furloughed for more than 30 days due to a Reduction in Force.
  • If you want to appeal the employment practices administered by the Office of Personnel Management to examine and evaluate the qualifications of applicants for appointment in the competitive service.
  • If your within-grade pay increase was denied.
  • If Virginia National Guard took an action related to your character or conduct, such as removing you, cancelling your eligibility, cancelling your reinstatement eligibility, or debarment.
  • If you are a member of the Senior Executive Service and Virginia National Guard removes, suspends, or furloughs you.
  • If Virginia National Guard doesn’t follow a Reemployment Priority List
  • If Virginia National Guard doesn’t re-employ you under one of the reasons in Title 5 of the CFR, Section 352.

Your complaint of discrimination is not required to include any allegations that the MSPB has jurisdiction to address.

Civil Actions

You may have the right to file a Civil Action in an appropriate United States District Court. If you file a Civil Action, the administrative EEO Process immediately ends.

For additional information pertaining to the EEO Complaint Process, please contact the EEO Office that supports organization or the organization at which you applied for a position with Virginia National Guard.

*A mixed case complaint is a complaint of employment discrimination filed with a Federal agency based on race, color, religion, sex, national origin, age or disability related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). The complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address.

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