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Complaints complainant

The commander must decide what corrective action to take. Corrective action may be administrative or punitive.

(a) Administrative action . Offenders will, as a minimum, undergo counseling by a member of the chain of command, presumably their company-level commander. Commanders have the full range of administrative actions available to them to deal with offenders of Army policy on EO (including the prevention/eradication of sexual harassment), to include discharge from the Service, bar to reenlistment, adverse performance evaluations and/or specific comments concerning nonsupport of EO/EEO programs on evaluation reports, relief for cause, administrative reduction, admonition, reprimand, administrative withholding of privileges, and rehabilitative transfer to another unit. Commanders should determine whether the victim desires to be transferred to another unit, but should not subject the complainant to "double victimization" by requiring that he or she be transferred to another unit while leaving the offender in the unit.

(b) UCMJ . Violators of Army policies on EO and the prevention/eradication of sexual harassment, whose conduct violates a punitive article of the UCMJ, may be charged and prosecuted. Nonjudicial punishments (for example, Article 15) will be posted in the unit area in accordance with AR 27-10. Courts-Martial convictions may be published in installation newspapers and/or posted in the unit area where deemed appropriate.

(2) Actions upon an unsubstantiated complaint : An unsubstantiated complaint is one for which the preponderance of evidence (that is, the greater weight of evidence) does not support and verify that the alleged unlawful discrimination or sexual harassment occurred. In this situation, the commander should determine whether the allegations, though unsubstantiated, might be indicative of problems in the unit that require resolution through EO initiatives or other leadership actions. Should the complaint be found unsubstantiated, the commander will notify the complainant in writing (DA Form 7279, Part II) and, consistent with the limitations of the Privacy Act and the Freedom of Information Act (FOIA), provide the complainant with a copy of the results of the investigation. The complainant will sign and date the DA Form 7279 to acknowledge receiving this information. This acknowledgment does not necessarily signify the complainant's agreement with the actions taken.

(3) Avoid victim focus . Actions to resolve complaints should focus on changing inappropriate behavior of offending personnel and avoid targeting the complainant. The complainant's job and status should not be affected unless he or she requests such a remedy, and the chain of command will do so only after weighing the impact on readiness.

b. Feedback . The commander shall provide periodic feedback, throughout the process, to the complainant and the subject on the status of the investigation.

(1) The commander shall provide written feedback to the complainant not later than the 14th calendar day (by the end of the third MUTA 4 period for Reserve components) after receiving the complaint and then provide updates every 14 calendar days (three MUTA 4 drill periods) until final resolution. Written feedback should incorporate any verbal updates provided to the complainant. Written feedback will be as complete as possible consistent with limitations of the Privacy Act and the FOIA. Whenever possible, the commander should meet with the complainant to discuss the status of the investigation to include findings and actions to resolve the issue. Oral feedback should be consistent with the limitations of the Privacy Act and the FOIA.

(2) Commanders will also provide written feedback to the subject on the outcome of the investigation and subsequent actions to be taken by the chain of command. The chain of command is advised to use discretion in limiting feedback to personnel involved. This feedback should also be consistent with the limitations of the Privacy Act and the FOIA.

8. Appeals process

If the complainant perceives the investigation failed to reveal all relevant facts to substantiate the allegations, or that the actions taken by the command on his or her behalf were insufficient to resolve the complaint, the complainant has the right to appeal to the next higher commander in his or her chain of command. The complainant may not appeal the action taken against the perpetrator, if any is taken. If subject(s) of the complaint perceive the investigation has failed to reveal all relevant facts to prove his or her innocence, he or she has the right to appeal to the next higher commander in his or her chain of command. Geographically remote units, field operating agencies, and various other organizations (including tenant units on the installation) will promulgate Memoranda of understanding or installation standing support agreements between the installation (supporting) commander and their units. These documents will serve to provide the necessary guidance to unit personnel for the courses of action to be taken with appeals. EO appeals that may potentially leave the Army chain of command must be forwarded to HQDA, ODCS, G-1, ATTN: DAPE-HR-L for resolution.

a. The appeal must be presented within 7 calendar days (at the next MUTA 4 drill period for Reserve components) following notification of the results of investigation and acknowledgment of the actions of the command to resolve the complaint. The complainant must provide a brief statement that identifies the basis of the appeal. This will be done in writing on the DA Form 7279, Part IV, and the complaint form will be returned to the commander in the chain of command who either conducted the investigation or appointed the investigating officer.

b. Once the appeal is initiated by the complainant, the commander has three calendar days (or one MUTA 4 drill period for Reserve components) to refer the appeal to the next higher unit commander (or installation commander for those tenant units with Memoranda of Understanding that designate an appellate authority).

c. The commander to which the appeal is made has 14 calendar days (or three MUTA 4 periods for Reserve components) to review the case and act on the appeal (that is, approve it, deny it, or conduct an additional investigation). Not later than the 14th calendar day following receipt of the appeal (or appropriate RC time-lines), this commander will provide written feedback, consistent with Privacy Act and FOIA limitations, to the complainant on the results of the appeal. This process applies equally to subsequent appeals submitted through the chain of command.

9. Final resolution upon appeal

Complaints that are not resolved at brigade level may be appealed to the General Courts-Martial Convening Authority. The only exception to this is where organizations have memorandums of understanding or support that delegate Uniform Code of Military Justice authority to a local commander. Decisions at this level are final.

10. Follow-up assessment

The EO Advisor (EOA) will conduct a follow-up assessment of all formal EO and sexual harassment complaints, both for substantiated and unsubstantiated complaints, 30 to 45 calendar days (four to six MUTA 4 drill periods for Reserve components) following the final decision rendered on the complaint. The purpose of the assessment is to measure the effectiveness of the actions taken and to detect and deter any acts or threats of reprisal. The EOA will also assess the complainant's satisfaction with the procedures followed in the complaint process to include timeliness, staff responsiveness and helpfulness, and resolution of the complaint. The findings of this assessment will be annotated on DA Form 7279-1 (EO Complaint Resolution Assessment) and maintained by the EOA. The EOA shall present findings and recommendations to the commander for further consideration/action within 15 calendar days (second MUTA 4 drill period for Reserve components). After the commander reviews the EOA findings and recommendation, the assessment is attached to the original complaint and maintained with the rest of the file. DA Form 7279-1 is available on the APD Web site.

11. Documentation on reporting of formal complaints

a. After the complainant's case is closed, the entire complaint packet will be filed by the EOA who is the first in the complainant's chain of command.

b. The EOA retains the complaint file. Complaints will be retained on file for 2 years from the date of the final decision on the case, using Army Record Information Management System (ARIMS).

c. In addition to the completed DA Forms 7279 and DA Form 7279-1, the EOA will retain the following information (using the memorandum for record format) for each case:

(1) The name, rank, and organization of the individual who conducted the inquiry/investigation;

(2) Complete report of investigation to include written review by EOA and servicing Staff Judge Advocate; and,

(3) The status or results of any judicial action, nonjudicial punishment, or other ukjjyfqg. moncler mens wool hataction taken to resolve the case.

d. The commander processing the complaint involving Army National Guard Soldiers will send an information copy of the information in c, above to NGB-EO within 30 days.

12. Actions against soldiers submitting false complaints

Soldiers who knowingly submit a false EO complaint (a complaint containing information or allegations that the complainant knew to be false) may be punished under the UCMJ.

13. Complaint procedures for Army Reserve Soldiers serving in the Individual Ready Reserve or those Soldiers not assigned to a unit

a. Complaint filed during active duty tour . Complaint procedures will remain the same as for active duty personnel. Active and reserve Army commanders, upon receiving a complaint from members of the Individual Ready Reserve (IRR) or Individual Mobilization Augmentee (IMA), from Soldiers performing active duty for special work or temporary tour of active duty, or from any reservist who is not a member of a troop program unit, will make every attempt to resolve the complaint prior to the completion of the Soldier's active duty tour.

(1) Timelines . Should the complaint be filed but not resolved prior to the Soldier's release from active duty (REFRAD), the timelines will be modified. The active Army or Reserve Component commander will have 30 calendar days from the filing of the complaint to notify the complainant of the results of the investigation/actions taken to resolve the complaint.

(2) Appeals . The complainant and subject(s) of the complaint will have 30 calendar days from notification of the results of the investigation to file an appeal. Appeals filed more than 30 calendar days after notification must be accompanied by a written explanation of the reasons for delay. The commander has the discretion to consider an appeal based on its merits.

(3) Final decision . Notification of the commander's final decision will be provided to the complainant and subject(s) of the complaint with information copies to the next higher headquarters and HRC within 30 calendar days of the receipt of the appeal.

b. Complaint filed subsequent to REFRAD . In the event the complaint is filed after the active duty tour has ended, the complainant will file a sworn complaint on DA Form 7279 (Part I through item 9) to the HRC EOA. (Soldiers may contact the HRC EOA office for this form at Commander, HRC, ATTN: ARPC-ZEQ, 9700 Page Boulevard, St. Louis, MO 63132-5200.) Upon the receipt of DA Form 7279, HRC will forward the complaint to the appropriate commander of the subject(s) of the complaint active duty unit for investigation.

(1) Timelines . That commander will have 30 calendar days from date of receipt of the complaint to conduct an investigation and to provide feedback to the complainant. (Extensions, not to exceed an additional 45 calendar days, may be granted by higher echelon commander.)

(2) Appeals . Complainants and subject(s) of the complaint will have 30 calendar days from notification of the results of investigation/to appeal/decline appeal. Appeals filed more than 30 calendar days after notification must be accompanied by a written explanation of the reasons for delay. The commander has the discretion to consider an appeal based on its merits.

(3) Final notification . Within 30 calendar days of receipt of appeal, the commander will provide notification of final decision to the complainant and subject(s) of the complaint, next higher headquarters, and HRC.

14. Complaint procedures for Army National Guard Soldiers

While on active duty for 30 days or more, ARNG Soldiers will follow the complaint procedure outlined in this regulation. In all other cases, ARNG Soldiers will follow the complaints procedures outlined in National Guard Regulation (NGR) 600-22, National Guard Military Discrimination Complaint System.

a. Jurisdiction . The responsibility for processing the complaint belongs to the commander at the lowest echelon of the subject's chain of command that can assure a thorough, expeditious, and unbiased investigation of the allegations.

b. Complaints involving ARNG Soldiers filed, but not resolved, during an active duty tour . If the duty status changes for the subject of an unresolved complaint, the commander with UCMJ or equivalent authority over the subject will receive the complaint and complete the processing of the complaint.

c. Complaints filed after release from active duty . An ARNG Soldier may file a complaint with the State Equal Employment Manager (SEEM) based upon unlawful discrimination that occurred while the Soldier was on active duty. The complaint must be filed within 180 calendar days of the date of the alleged unlawful discrimination or of the time that the Soldier knew or reasonably should have known of the unlawful discrimination.

(1) If both the complainant and the subject are ARNG, follow NGR 600-22 to coordinate with the appropriate National Guard agency representative for processing.

(2) If the subject is from a different component or branch of the service than the complainant, contact the senior Equal Opportunity office of the subject's component or branch of the service to determine the appropriate jurisdiction with the purview to remedy.

d. Commanders processing a complaint involving an ARNG Soldier will send an information copy of the completed to NGB-EO-CR within 30 days as per para C-11


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moncler shoes womens Plaintiff From Wikipedia, the free encyclopedia   (Redirected from Complainant ) Jump to: navigation , search "Pursuer" redirects here. For the comic book character by that name, see Pursuer (comics) . This article needs additional citations for verification . Please help improve this article by adding citations to reliable sources . Unsourced material may be challenged and removed. (December 2007) ( Learn how and when to remove this template message )

A plaintiff ( Π in legal shorthand ) is the party who initiates a lawsuit (also known as an action ) before a court . By doing so, the plaintiff seeks a legal remedy , and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order (e.g., an order for damages ). "Plaintiff" is the term used in civil cases in most English-speaking jurisdictions, the notable exception being England and Wales , where a plaintiff has, since the introduction of the Civil Procedure Rules in 1999, been known as a "claimant", but that term also has other meanings. In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the "complainant".

In some jurisdictions the commencement of a lawsuit is done by filing a summons , claim form or a complaint . These documents are known as pleadings , that set forth the alleged wrongs committed by the defendant or defendants with a demand for relief. In other jurisdictions the action is commenced by service of legal process by delivery of these documents on the defendant by a process server; they are only filed with the court subsequently with an affidavit from the process server that they had been given to the defendant according to the rules of civil procedure .

Terminology [ edit ]

In most English speaking jurisdictions, including Hong Kong , Nigeria , Australia , Canada and the United States , as well as in both Northern Ireland and the Republic of Ireland , the legal term "plaintiff" is still in use, as a general term for the party taking action in a civil case.

The word plaintiff can be traced to the year 1278 and stems from the Anglo-French word pleintif meaning "complaining". It was identical to " plaintive " at first and receded into legal usage with the -iff spelling in the 15th century. [1]

A plaintiff identified by name in a class action is called a named plaintiff .

In most common law jurisdictions, the term "claimant" used in England and Wales since 1999 (see below) is used only in specific, often non-judicial contexts. In particular, in American usage, terms such as "claimant" and "claim form" are limited to extrajudicial process in insurance and administrative law . After exhausting remedies available through an insurer or government agency , an American claimant in need of further relief would turn to the courts, file a complaint (thus establishing a real court case under judicial supervision) and become a plaintiff.

In England and Wales , the term "claimant" replaced "plaintiff" after the Civil Procedure Rules 1998 came into force on 26 April 1999. [2] The move, which brings England and Wales out of line with general usage in English-speaking jurisdictions, was reportedly based on an assessment that the word "claimant" is more acceptable as " plain English " than the word "plaintiff". [3] In Scottish law a plaintiff is referred to as a "pursuer" and a defendant as a "defender". [4]

The party against whom the complaint is made is the defendant ; or, in the case of a petition, a respondent. Case names are usually given with the plaintiff first, as in Plaintiff v. Defendant .

The similar term "complainant" denotes the complaining witness in a criminal proceeding.

See also [ edit ] Look up plaintiff , petitioner , claimant , or complainant in Wiktionary, the free dictionary. Legal financing Defendant Lawsuit References [ edit ] ^ "Etymology Online" . . Retrieved 2008-04-24 .   ^ "Civil - Civil Procedure Rules" . .   ^ BBC, " UK Civil courts to modernize ", 24 April 1999 ^ "Glossary" . Judiciary of Scotland . Retrieved 24 January 2017 .   Retrieved from " https://en./w/index.php?title=Plaintiff&oldid=787245583 " Categories : Legal terminology Hidden categories: Articles needing additional references from December 2007 All articles needing additional references

and the Merit Systems Protection Board's (MSPB's) website at . In addition, the reader may consult EEOC's regulations pertaining to "mixed case" matters,explained more fully below, at 29 C.F.R. Section 1614.302; as well as EEOC's Management Directive (EEO-MD-110) for 29 C.F.R. Part 1614, Ch. 4, Section II at 4-1; and MSPB's regulations found at 5 C.F.R. Part 1201.

1. What is a "mixed case" claim?

A "mixed case" claim is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). Bases of discrimination include race, color, sex, national origin, religion, age, disability, and retaliation. The complaint may contain additional allegations that MSPB has jurisdiction to address. 1 For the purposes of this article, however, the focus is on EEO claims.

2. What is the Merit Systems Protection Board?

The MSPB is an independent quasi-judicial agency, which was established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for employees against abuses by agency management. As part of its mission, the Board adjudicates employee appeals of personnel actions over which MSPB has jurisdiction, such as removals, suspension, furloughs, and demotions. The MSPB's mission can be found at .

3. Can anyone bring an EEO discrimination claim to MSPB?

No. Only certain employees may appeal to the MSPB, and only concerning certain types of employment actions. In other words, a person must have the right to be heard before the MSPB, and that the individual's EEO claim must involve the type of claim over which the MSPB has jurisdiction. The MSPB will have no jurisdiction over the matter unless the complainant meets both criteria, i.e., the person has the employment status to appear before the MSPB; and his/her EEO claim that is, the agency's alleged action--is the kind of EEO claim that the MSPB can decide. Again, we are only referring to EEO matters in this article.

4. Who may appeal to the MSPB?

Those employees who generally have the right to appeal to the MSPB, and thus to file a mixed case complaint or appeal, include: (1) competitive service employees not serving a probationary or trial period under an initial appointment; (2) career appointees to the Senior Executive Service (SES); (3) non-competitive service veterans preference eligible employees with one or more years of current continuous service (e.g., postal employees and attorneys with veterans preference); and (4) non-preference eligible excepted service employees who have completed their probationary period or with two or more years of current continuous service (e.g., attorneys).

Examples of the types of employees who have a right to file a mixed case complaint or a mixed case appeal, as well as examples of the types of actions that are appealable to MSPB, can be found in EEO MD-110, at 4-2 and 4-3. These lists are not all-inclusive and are subject to change. Employees should be referred to the personnel office at the agency or to the MSPB itself, with questions concerning whether an employee may appeal an action to the MSPB.

Employees who generally do not have a right to appeal to the MSPB, from an EEO standpoint, include: (1)probationary employees (there may be other grounds for appeal, such as discrimination based on marital status or party affiliation); (2) certain non-appropriated fund activity employees; (3) employees serving under a temporary appointment limited to one year or less; and (4) employees of the Central Intelligence Agency, the Federal Bureau of Investigation, the United States Postal Service, and the Tennessee Valley Authority.

An example of an employee who did not have a right to file a mixed case claim, but whose complaint was mistakenly processed as such, is Weatherspoon v. United States Postal Service . 2 The complainant, after seeking EEO counseling, filed a formal complaint alleging discrimination on several protected EEO bases with regard to training, non-sexual harassment, and reassignment. The agency processed the complaint as a mixed case complaint, and at the conclusion of the investigation, complainant was provided with a copy of the investigative file and informed that a final agency decision (FAD) would be issued within 45 days of receipt of the investigative report. The agency issued the FAD and notified complainant that she had the right to appeal the decision to the MSPB or file a civil action in U.S. District Court within 30 days of receipt. The Commission found that the agency had improperly characterized complainant's complaint as a mixed case complaint. EEOC noted that Postal Service employees are generally excluded from MSPB coverage, pursuant to 5 U.S.C. § 2105(e), and do not have MSPB appeal rights unless they are eligible for veterans' preference and have a year of continuous service in the same or similar position. 3 Complainant's complaint revealed that she did not have veterans' preference eligibility. The Commission, therefore, vacated the agency's finding of no discrimination and remanded the matter for the agency to process complainant's complaint as it would a non-mixed case, i.e. , as it would any other EEO complaint without claims appealable to MSPB.

5. What types of employment actions are appealable to the MSPB?

Most appealable actions fall into the following six categories:

(1) reduction in grade or removal for unacceptable performance; (2) removal, reduction in grade or pay, suspension for more than 14 days, or furlough for 30 days or less for cause that will promote the efficiency of the service; (3) separation, reduction in grade, or furlough for more than 30 days, when the action was effected because of a reduction-in-force; (4) reduction-in-force action affecting a career appointee in the Senior Executive Service (SES); (5) reconsideration decision sustaining a negative determination of competence for a general schedule employee; and (6) disqualification of an employee or applicant because of a suitability determination.

6. What is a mixed case appeal?

A mixed case appeal is an appeal filed directly with the MSPB that alleges that an agency action was effected , in whole or in part, because of discrimination on one or more of the bases referred to above, e.g. , race, color, national origin, sex, age, or disability. 4

7. What is the difference between a mixed case complaint and a mixed case appeal?

The distinction is best understood this way: a "complaint" is just that a complaint filed with an agency, just as one would file a regular EEO complaint, with a decision rendered on the complaint by the agency. An appeal, however, is simply an appeal filed directly with the MSPB.

8. So a mixed case complaint is the same as any other EEO complaint?

There are major differences in the way agencies process mixed case EEO complaints. To reiterate, bear in mind that complaint is called a "mixed case" complaint because it contains one or more claims that are appealable to the MSPB.

9. What are the major differences?

When a mixed case complaint is filed with an agency, and the agency accepts the issue or issues for investigation, the time for investigation is limited to 120 days, as opposed to 180 days for a non-mixed case complaint, 5 after which the agency will issue its FAD. There is no right to a hearing before an EEOC Administrative Judge on a mixed case complaint. 6 Appeals from the FAD are filed with MSPB and not with EEOC. 7 If a complainant is dissatisfied with the final decision of the MSPB, a petition may be filed with the EEOC to review the MSPB decision on the allegation of employment discrimination. 8 Should EEOC determine that it will consider the decision of the MSPB, EEOC may either concur or differ with the MSPB, or it may refer the case back to the MSPB for the taking of additional evidence. 9 Unlike some other decisions issued by EEOC, a decision on a petition to review an MSPB decision is not subject to a request for reconsideration from either party. In Luongo v. United States Postal Service , 10 complainant appealed the agency's decision on his mixed case complaint to EEOC. The Commission dismissed the appeal as being premature and noted that the agency had given complainant appeal rights to the MSPB under 29 C.F.R. §1614.302(d).

10. Can an individual file a mixed case complaint and mixed case appeal at the same time?

No. An election to proceed is required. The regulations provided that a covered individual may raise claims of discrimination in a mixed case either as a direct appeal to the MSPB or as a mixed case complaint with the agency, but not both. 11 Whichever action the individual files first is considered an election to proceed in that forum. Filing a formal complaint constitutes an election to proceed in the EEO forum. However, merely contacting an EEO Counselor or receiving EEO counseling does not constitute an election. Where an aggrieved person files an MSPB appeal and timely seeks EEO counseling, counseling may continue pursuant to 29 C.F.R. § 1614.105, at the option of the parties. In any event, counseling must be terminated with the appropriate notice of rights under that regulation, i.e. , 29 C.F.R. § 1614.105.

11. What if an individual does a dual filing, and the agency does not dispute whether the case is appealable to the MSPB?

Where an appeal is first filed with the MSPB, the EEO Counselor must: (1) advise the complainant that MSPB must be informed of the alleged discrimination; (2) advise the complainant that the agency must dismiss a subsequent EEO complaint on the same matter; and (3) advise the complainant that s/he may appeal the MSPB's final decision on the discrimination issue(s) to the EEOC.

12. What happens when there is a dual filing and the agency questions whether the complaint is appealable to the MSPB?

The EEO Counselor must then advise the complainant as follows: (1) the agency will hold the complaint until an MSPB judge hands down a ruling; and (2) the complainant must inform the MSPB of the discrimination allegation. If the MSPB judge decides that the MSPB has jurisdiction of the appeal, the agency must: (1) dismiss the complainant that has been on hold; and (2) advise the complainant of his/her right to appeal the MSPB's final decision on the discrimination issue(s) to the EEOC. Where the MSPB judge determines that the MSPB lacks jurisdiction over the appeal, the agency must: (1) treat the complaint as a non-mixed complaint; and (2) inform the complainant that: (a) s/he has 45 days to contact an EEO Counselor; and (b) the date the appeal was initially filed with the MSPB will serve as the date the complainant contacted the EEO Counselor.


1 See 29 C.F.R. § 1614.302(a)(1).

2 EEOC Appeal No. 01A42528 (June 22, 2004).

3 See 5 U.S.C. § 7511; EEO MD-110, 4-2. 4-3 (November 9, 1999).

4 See 29 C.F.R. § 1614.302(a)(2).

5 See 29 C.F.R. § 1614.302(d)(1)(i).

6 See 29 C.F.R. § 1614.302(d)(2)

7 See 29 C.F.R. § 1614.302(d)(1)(ii) and (d)(3).

8 29 C.F.R. § 1614.303.

9 29 C.F.R. § 1614.305.

10 EEOC Appeal No. 01A42552 (June 16, 2004).

11 See 29 C.F.R. § 1614.302(b).