Counseling

A person who wishes to pursue a claim of employment discrimination against CBP must do so by contacting the servicing EEO Officer within 45 days of the date of the alleged discriminatory act or within 45 days of the effective date of the personnel or employment action. This contact initiates the informal counseling process provided for by the EEOC regulations.

The EEO official is then required to conduct a limited inquiry into the claim. The purposes of this inquiry are to identify the bases and issues being raised by the person and to seek a resolution regarding the claim. The EEO official must complete the limited inquiry within 30 calendar days from the date of the initial contact. If the matter is not resolved, the person making the claim of discrimination will be given a “Notice of Right to File a Discrimination Complaint (NORTF).”
 

Mediation

Mediation is a process in which a trained neutral third party assists in resolving a dispute, or at least narrowing and clarifying issues, in a manner that is acceptable to both sides. Mediation is different from traditional litigation in that it is informal, the rules of evidence do not apply, testimony is not taken, and the mediator does not decide the dispute. Regarding complaints against CBP, mediation may be requested at either the informal or formal stages.  When mediation is elected during informal counseling, the counseling period is extended to 90 days.
 

Informal EEO Complaint Process Resources

• CBP EEO Regulatory Poster
• FAQ:  Informal EEO Complaint Process
• Discriminatory Harassment FAQs
• FAQ:  Class Action Complaint Process
• FAQ: Mediation

Once a person alleging employment discrimination has been given a “Notice of Right to File a Discrimination Complaint (NORTF),” the person may elect to proceed by filing a formal complaint. The formal complaint must be filed with CBP’s Complaints Management and Investigations Group at the address listed below, within 15 calendar days of receipt of the “Notice of Right to File a Discrimination Complaint (NORTF):"

U.S. Customs and Border Protection
Privacy and Diversity Office
1300 Pennsylvania Avenue, N.W.
Room 3.3D
Washington, D.C. 20229
Telephone: (202) 344-1610
Fax: (202) 325-1476 or at the following e-mail box:

cbpeeocomplaintfiling@cbp.dhs.gov (digital signature or scanned signed copy)

The formal complaint must be in writing and signed by the complainant, or his or her attorney. Please note that representatives who are not attorneys cannot file or sign a formal claim on behalf of another individual. The complaint must be sufficiently precise to describe the actions or practices, which form the basis of the complaint.

To file a complaint of discrimination, a person may use the DHS Formal Complaint Form, which will be provided if a NORTF is issued. Use of the DHS form is not required, but is recommended. However, if this form is not used, a complainant must provide sufficient information to identify the practices or polices that are being challenged as discriminatory and the bases for the challenge. Only issues or claims presented during the informal counseling stage, or claims that are like or related to those claims, may be the subject of the formal complaint.

It is the complainant’s obligation to immediately inform CBP if he or she obtains and/or changes representation.

The formal processing of a complaint consists of the following:
 

Acceptance/Dismissal of Formal Claim

After a formal EEO claim has been filed, the complainant will receive notification regarding the receipt and acceptance or dismissal of the claim. If the claim is accepted, an investigation will be scheduled. The EEOC regulations provide a number of threshold requirements that the complaint must meet in order to be actionable in the formal process (for example, the complaint must be timely filed and must allege a basis of discrimination that is unlawful).

If those threshold requirements are not met, the complaint will be dismissed. Once a complaint is dismissed, no further action on the complaint will be taken by the agency. However, if the complaint is dismissed, appropriate appeal rights to the EEOC will be provided. If an appeal is filed, and the EEOC disagrees with the agency’s dismissal, the EEOC may remand the complaint back to the agency for processing.
 

Investigation

If the claim is accepted, the investigation is to be conducted within 180 calendar days from the date of the filing of the formal claim. A voluntary agreement may be made to extend the investigation for a period of not more than an additional 90 calendar days. After the investigation is completed, the complainant will be provided a copy of the investigative file. In general, the complainant will also be notified of his or her right to request a hearing before an EEOC administrative judge, or a final agency decision from DHS’s CRCL.
 

EEOC Hearing  

In most situations, a hearing before an EEOC administrative judge may be requested within 30 calendar days of receipt of the investigative file, or at any time after 180 calendar days of the filing of the formal EEO claim, whichever comes first. A request for a hearing should be made in writing directly to the appropriate local EEOC Office and a copy of the request to the Complaints Management and Investigation Group.
 

Final Agency Decision

If a hearing is not elected, the complainant may request a final agency decision from DHS’s CRCL, based on the evidence contained in the investigative file, within 30 calendar days from receipt of the investigative file.

 

Formal EEO Complaint Process Resources

• FAQ:  Formal EEO Complaint Process
• FAQ:  Mediation

Role of EEO Investigator

The EEO Investigator is a person officially designated and authorized to conduct inquiries into discrimination claims raised in EEO complaints. The investigator serves as an unbiased fact gatherer identifying and securing information through interviews of witnesses and review of written records. Investigators execute affidavits, and gather and organize evidence for those who have the responsibility for settling complaints or rendering final decisions. Initially, the EEO investigator reviews the complaint to determine if it meets the requirements for acceptance. If the claim is accepted, the assigned EEO Investigator will conduct the investigation within 180 calendar days from the filing date of the claim. Based on the information gathered during the investigation, the investigator compiles the information into an electronic investigative file (eIF) which will enable an appointed decision maker to make a final decision as to whether unlawful employment discrimination occurred with regard to the claims investigated.
 

Role of Complainant

The Complainant is responsible for providing a statement and supporting evidence addressing the alleged act of discrimination. The Complainant has the burden of proving, by a preponderance of the evidence that unlawful discrimination occurred.
 

Role of Alleged Responsible Official(s)

The alleged Responsible Official is a management official and/or deciding official who took the action that is allegedly discriminatory. He or she is responsible for providing a statement addressing the alleged discriminatory act and providing documentary evidence explaining his or her reason for taking the action. Management officials are expected to cooperate fully in all stages of the processing of an employment discrimination complaint.
 

Role of Witnesses

Witnesses are persons who provide information that tends to prove or disprove allegations of discrimination. Their information may be provided through formal statements called affidavits or declarations, or they may be called to testify at an administrative hearing. Witnesses may be identified by the complainant or by agency officials. Witnesses who are government employees are expected to cooperate fully in all stages of the processing of an employment discrimination complaint.
 

Investigative File (IF)

The Investigative File contains statements, documentary evidence and policies and procedures secured by the EEO Investigator addressing the alleged discriminatory acts. The IF must contain information sufficient to allow a decision-maker to determine whether unlawful discrimination occurred.
 

EEO Investigations Resources

• Guidance for Witness Participation During the Processing of a Formal EEO Complaint
• FAQ:  Formal EEO Complaint Process
• FAQ:  Mediation

Election

At the conclusion of the investigation, the complainant will be issued an Election Notice and given 30 days to choose how they wish to proceed. The Notice provides the Complainant with three options:  1) Request a hearing before an EEOC Administrative Judge; 2) Request an agency decision from the Department of Homeland Security as to whether discrimination occurred; or 3) Withdraw entirely from the process.
 

Final Agency Decision

If the complainant does not request a hearing before the EEOC, the Department of Homeland Security, Office for Civil Rights and Civil Liberties is expected to issue a decision in 60 days.  The Office for Civil Rights and Civil Liberties will notify the Complainant in writing of its decision and will also provide appeal rights.  If no discrimination is found, or the Complainant disagrees with some part of the decision, the Complainant may appeal the decision to EEOC or challenge it in federal district court.
 

Hearing Stage

Complainants may elect a hearing by submitting a written request directly to the EEOC office indicated in the Complaints Management and Investigations Group's election letter and a copy of the request to the Complaints Management and Investigations Group.

Hearings provide the parties with a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses. During the hearing process, the parties are entitled to engage in discovery, i.e., a reasonable development of evidence on issues relevant to the complaint, although the Administrative Judge (AJ) may limit the quantity and timing of discovery. The AJ has full responsibility for the adjudication of the complaint, including the final selection of the witnesses and the determination of the hearing site.

Generally, an AJ will conduct a full hearing on the merits of a complaint. However, an AJ may dismiss a complaint for failing to meet the same procedural and jurisdictional requirements for which the agency is authorized to dismiss complaints, or issue a final decision on the merits without a hearing if the AJ determines that the complaint presents no material facts in genuine dispute.

The DHS must take final action on the complaint by issuing a final order within forty (40) days of receipt of the hearing file and AJ’s decision. The final order informs the complainant as to whether the DHS will fully implement the decision. The final order also informs the complainant of the right to file an appeal with the EEOC, the right to file a civil action in federal district court, the name of the proper defendant in such appeal or civil action, and the applicable time limits for such appeals or civil action. If the DHS’s final order does not fully implement the AJ’s decision, the DHS simultaneously files an appeal with the EEOC. If the DHS does not issue a final order within forty (40) days of receipt of the AJ’s decision, then the decision becomes the final action of the DHS.

U.S. Customs and Border Protection is committed to resolving equal employment opportunity (EEO) complaints alleging discrimination at the earliest possible point in the complaint process. When an employee believes he or she has been discriminated against because of race, color, religion, sex, sexual orientation, national origin, age, physical or mental disability, status as a parent, genetic information, or retaliation for prior EEO involvement, the first step is to seek informal EEO counseling by contacting the Privacy and Diversity Office (PDO) EEO Complaint Intake Hotline at 1-877-MY-EEO-HELP (1-877-693-3643), by submitting a Request for EEO Counseling.

PDO staff members remain available to discuss specific situations and provide information to employees seeking consultation before entering the EEO complaint process. To preserve the right to file a formal EEO complaint, individuals who believe they have been subjected to unlawful discrimination must seek informal EEO counseling within 45 calendar days of the alleged discriminatory act. The allegation will be assigned to a PDO staff member to facilitate the informal EEO counseling. At the initial interview, the EEO counselor will explain the EEO complaint process and the option to participate in mediation.
 

Mediation Resources

FAQ: Mediation

Employment issues and concerns should be discussed with the appropriate management officials as quickly as possible. Consider using the mediation process to resolve your employment issue, as it provides an environment for expedient resolution with the appropriate CBP management official.