A Brief Guide to GAO’s Administrative Process for Unlawful Discrimination Complaints

A. Allegations of Discrimination Involving Adverse and Performance Based Actions

If an employee is the subject of an adverse or performance based action (i.e., removal, suspension for more than 14 days, reduction in grade or pay, or furlough of not more than 30 days), and believes he/she has been the subject of prohibited discrimination, the employee may either file a charge directly with the Personnel Appeals Board’s Office of General Counsel or file a complaint of discrimination with the GAO’s Office of Opportunity and Inclusiveness. See 4 C.F.R. § 28.98(c).

If the employee elects to file a charge with the Personnel Appeals Board’s Office of General Counsel, then he/she must do so within 30 days of the effective date of the personnel action and raise the issue of discrimination in the course of the proceedings.   

B.  Allegations of Discrimination NOT Involving Adverse and Performance Based Actions

Unless there is an adverse or performance based action (i.e., removal, suspension more than 14 days, reduction in grade or pay, or furlough of not more than 30 days), allegations of discrimination on the basis of Race, Color, Religion, Age, Sex, National Origin,or Disability must first be filed with the GAO pursuant to GAO Order 2713.2, Discrimination Complaint Process.  (Note:  An employee, former employee, or applicant for employment who believes he or she has been subjected to discrimination on the basis of age is not required to file a complaint with GAO prior to filing a complaint under the Age Discrimination in Employment Act with an appropriate United States District Court.  However, he/she must first give GAO at least 30 days notice of the intent to file such action.)  

Generally, before filing a discrimination complaint with an appropriate United States District Court or the Personnel Appeals Board’s Office of General Counsel, the following steps must be taken: (these steps also apply if the employee wishes to pursue an age discrimination complaint that does not involve an adverse or performance based action at the Personnel Appeals Board Office of General Counsel instead of filing directly with an appropriate United States District Court).

STEP 1—Contact with an EEO Counselor in GAO’s Office of Opportunity and Inclusiveness: Before filing a Formal Complaint, an employee, former employee, or applicant for employment who believes he or she has been subjected to discrimination on the basis of race, color, religion, disability, national origin, age, or sex, must first contact a counselor in the Office of Opportunity and Inclusiveness within 45 calendar days of the alleged discriminatory action or, in the case of a personnel action, within 45 calendar days of the effective date of the action.  Pursuant to GAO Order 2713.2, Chapter 3, at the initial meeting the counselor will inform the person in writing:

1. that he/she can file a Notice of Intent to File a Civil Action directly with the United States District Court if she/he believes there has been discrimination on the basis of age.  This would be in lieu of filing a Formal Complaint with the Office of Opportunity and Inclusiveness or a charge with the Personnel Appeals Board’s Office of General Counsel;
   
2. that he/she has a duty to mitigate damages;
   
3. of the administrative and court time frames;
   
4. that only those matters raised in pre-complaint counseling or mediation can subsequently be alleged in a Formal Complaint filed with GAO; and
   
5. that he/she must keep GAO informed of his/her current address.

The counselor shall also:

1. discuss the mediation program and explain that choosing to attempt mediation would extend the informal counseling phase for up to 60 days; and
   
2. attempt to facilitate informal resolution of the complaint through informal inquiry(ies) with the involved unit managers.
   

STEP 2—Pre-complaint Processing: During this period, the counselor shall make attempts to informally resolve the issues involved in the complaint.  The counselor is required to conduct a final informal counseling session within 30 days of the date the aggrieved person initially contacted the Office of Opportunity and Inclusiveness, unless the aggrieved person elects to mediate the dispute or agrees to an extension of informal counseling.  If mediation was elected, the pre-complaint process is extended for 60 days from the date of the initial mediation session.  In cases where mediation was not elected, or if the aggrieved person is not satisfied with any proposed informal resolution, not later than the 30th day, the counselor shall inform the person, in writing, of his/her right to file a formal discrimination complaint.  The notice shall inform her/him of:

1. her/his right to file a formal complaint of discrimination within 15 days of receipt of the notice;
   
   
2. the appropriate official with whom (s)he should file the complaint;
   
   
3. his/her duty to inform the Office of Opportunity and Inclusiveness immediately if counsel or a representative is retained; and
   
   
4. her/his right to file a class complaint.
   
   

Mediation: If the aggrieved person elects mediation under GAO Order 2713.2, Chapter 2, the mediator will make similar notifications of rights and obligations at the appropriate time.  See GAO Order 2713.2, Chapter 2, Paragraph 2(c).

STEP 3—Formal Complaint: If the complainant exercises his/her right to file a formal complaint with GAO, the Director, Office of Opportunity and Inclusiveness, will accept or dismiss the complaint, in whole or in part.  (Such dismissals may be appealed; see procedures and time limits for filing appeals in Step 4).  The Agency shall investigate an accepted complaint (or accepted portions of the complaint) and shall:

1. notify the complainant when the investigation has been completed;
   
   
2. provide a copy of the Report of Investigation to the complainant; and
   
   
3. notify the complainant that, within 30 days of receiving a copy of the investigative file, he/she may provide a response that notes any deficiencies in the file.
   

STEP 4—Filing a Civil Action in District Court or Filing a Charge with the Personnel Appeals Board:

Filing in District Court

1. If she/he has not filed a Petition for Review with the Personnel Appeals Board (see paragraph b. below), the complainant may file a civil action with an appropriate United States District Court:
   
   
   1. Within 90 days of receiving GAO’s final decision; or
      
      
   2. Within 90 days of receiving GAO’s dismissal of all or a portion of an individual or class complaint; or
      
      
   3. Anytime after 180 days have elapsed from the date the formal complaint was filed with the Office of Opportunity and Inclusiveness (provided that GAO has not issued a final decision).
      
      
   4. In cases involving allegations of age discrimination, the complainant may by-pass the administrative (internal) complaint process and elect to file directly with an appropriate United States District Court, under the Age Discrimination in Employment Act, after giving GAO (through the Office of Opportunity and Inclusiveness) at least 30 days notice of the intent to file such an action.  The notice must be filed, in writing, within 180 days of the occurrence of the alleged unlawful practice.

Filing a Charge with the Personnel Appeals Board

1. A complainant may file a (appeal) with the Personnel Appeals Board’s Petition for Review Office of General Counsel:
   
   
1. Within 30 days of receiving GAO’s final decision; or
   
   
2. Within 30 days of receiving notification of GAO’s dismissal of all or a portion of his/her individual or class complaint; or
   
   
3. Anytime after 120 days have elapsed from the date the complaint was filed (provided GAO has not issued a final decision).