WASHINGTON – As part of its continuing efforts to improve the federal sector complaint process, the U.S. Equal Employment Opportunity Commission (EEOC) today released a new report, Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds.

In the equal employment opportunity (EEO) process for federal employees and applicants for federal employment, federal agencies initially process complaints of employment discrimination. In doing so, agencies may dismiss complaints without investigation on a variety of procedural grounds described in federal sector regulations (29 C.F.R. Part 1614).

These dismissal decisions may be appealed by complainants to EEOC. Of the appellate decisions issued each year by the EEOC on federal agency dismissals, approximately one-third are reversed, with the complaints being remanded by EEOC’s Office of Federal Operations (OFO) to the agencies for investigation.

“Preservation of access to the legal system is one of the Commission’s critical priorities,” said Carlton Hadden, director of OFO. “In support of that goal, the EEOC examined its appellate decisions, focusing on procedural dismissals by federal agencies of EEO discrimination complaints. Our report analyzed decisions which resulted in a reversal of dismissals, to identify any common errors. By doing so, we hope to reduce the number of incorrect procedural dismissals by federal agencies.”

OFO examined five years of decisions (2008-2012) and determined an average appellate reversal rate for procedural dismissals by federal agencies. The government-wide reversal rates for each fiscal year examined are as follows: FY 2008 – 30.3%; FY 2009 – 35.5%; FY 2010 – 37%; FY 2011 – 34.9%; and FY 2012 – 44.9%.

OFO identified those agencies with higher than the government-wide reversal rates and analyzed the appellate reversal decisions involving those agencies to identify the most common mistakes. This showed that 81% of the EEOC’s reversal decisions involved only two regulatory grounds for dismissal: failure to state a claim and failure to comply with regulatory time limitations.

These results have been shared with agency EEO directors and OFO is ready to assist agencies to ensure that access to the legal system is maintained for federal employees and applicants. Additionally, OFO has a training course available on procedural dismissals for agency EEO personnel through its EEO Training Institute.

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*The number of decisions and reversals in this Table reflect the # of procedural decisions the EEOC issued each year.  These numbers do not represent agency procedural decisions for each year.

Table 1*

All EEOC Appeals Decisions from Agency Dismissal Decisions
FY 2008	FY 2009	FY 2010	FY 2011	FY 2012
1483 Decisions 450 Reversals (30.3%)	1290 Decisions 458 Reversals (35.5%)	1656 Decisions 613 Reversals (37.0%)	1370 Decisions 478 Reversals (34.9%)	1548 Decisions 695 Reversals (44.9%)

Approximately 800 reversal decisions across the five fiscal years identified in Table 2 were individually reviewed, and the grounds for the dismissal decision and reasons for the reversal on appeal were noted.  OFO used this information to reach conclusions about the most common reversible errors in dismissing complaints and the reasons for those reversals.

In furtherance of EEOC’s Strategic Enforcement Plan, OFO analyzed its appellate decisions over the past five years on appeals from federal agencies’ procedural dismissals of EEO complaints.  The annual reversal rate for agency procedural dismissals government-wide over the five-year period ranged from 30% to 45%.  By examining its decisions to reverse procedural dismissals, OFO’s goal was to help identify the most frequent errors by agencies that result in denying federal employees access to the EEO complaints process.

The data showed that over three-quarters of the appellate reversals studied overturned agency dismissals on one of these two grounds:  (1) reversals for failure to state a claim under 29 C.F.R. §1614.107(a)(1), that accounted for about 57% of the appellate reversals, and (2) reversals for failure to comply with applicable regulatory time limits under 29 C.F.R. §1614.107(a)(2), that accounted for about 24% of the appellate reversals.  As demonstrated by the statistics in Tables 1 and 2 of this report, agency errors in procedurally dismissing federal sector EEO complaints appears to be a growing problem.  Based on the data gathered and discussed in this report, OFO expects to develop training and other outreach efforts aimed at EEO Directors and staff in federal agencies to reduce ongoing procedural dismissal errors.