Framing a Claim

What is a Claim?

A "claim" in an EEO complaint is what the complainant alleges management did or failed to do for an allegedly discriminatory reason. A claim refers to an assertion of an unlawful employment practice or policy for which, if proven, there is a remedy under the federal equal employment statutes. The "basis" for the complaint is the factor or factors prohibited by EEO law upon which the complainant alleges that management's action or inaction was based (i.e., race, color, sex, pregnancy, religion, national origin, age, disability, retaliation for participation in protected activity, or genetics).

Framing Claims

How Do We Frame Claims?

We "frame" the claim when we articulate the matter involved and the applicable basis or bases in a reasonably clear and concise manner. We frame it by developing a statement or question which addresses, to the extent possible, the who, what, when, and where of the allegation. The following exemplifies a well-framed claim: Was the Complainant discriminated against based on her sex (female) and race (African American) when she was not selected, on October 31, 2011, by the Chief, Transportation Division from Merit Promotion Certificate XYZ for the position of Driver in the Motor Pool.

Who

The person or persons who are allegedly responsible for the discrimination. Be sure to identify them by a title that will show their organizational relationship in the complaint, for example, "not selected by the Chief, Transportation Division."

What

The action or inaction that the complainant alleges was based on discrimination, such as nonselection or performance appraisal. Be sure to identify it with enough detail to clearly establish what is in question, for example, "not selected by the Chief, Transportation Division from Merit Promotion Certificate XYZ for the position of Driver."

When

The timeframe of the action or inaction that the complainant alleges was based on discrimination. Be sure to give a specific date, for example, "not selected, on October 31, 2011, by the Chief, Transportation Division from Merit Promotion Certificate XYZ for the position of Driver."

Where

The organization involved in the action or inaction that the complainant alleges was based on discrimination. Be sure to pinpoint the lowest organizational level involved, for example "not selected, on October 31, 2011, by the Chief, Transportation Division from Merit Promotion Certificate XYZ for the position of Driver in the Motor Pool?"

Why is Framing Claims Important?

Properly framing the claim is fundamentally important because it:

  • Defines the nature of the complaint;
  • Limits the matters that will be addressed;
  • Establishes what evidence will be gathered;
  • Determines what relief may be granted.
Claims that are clearly and properly defined allow the parties to focus on those facts that are relevant and necessary to the inquiry. Claims that are improperly or imprecisely defined distract from the real matters of concern and the parties spend valuable resources developing evidence, which is irrelevant and unnecessary.

Whose Job is it to Frame Claims?

In practical terms, responsibility for framing the claim is shared between the complainant, the EEO counselor, and the EEO Office.

The Complainant

The complainant has the burden to state a claim in reasonably clear terms. Only the complainant can make the allegations. Beyond this, the complainant is responsible for working with the agency to clarify their claims.

The EEO Counselor

The EEO counselor must determine what management action (or lack of action) causes complainants to believe they are the victims of discrimination. EEOC guidance states that the counselor "must be certain that the claims(s) that are clearly defined and the aggrieved person agrees on how the agency defines the claim(s) that are to be the subject of the inquiry and subsequent attempts at resolution" (MD-110, Ch. 2, Sec. III). The counselor has an affirmative obligation to assist complainants in articulating their allegations.

The EEO Office

The activity EEO Office generally prepares the letters that accept or dismiss claims. This involves articulating what specific claims have been accepted or dismissed. Given their experience and training, EEO professionals are generally best able to frame the claims. Particularly when the claims are complex, it is useful to obtain advice from other knowledgeable professionals, such as the Legal Office, EEO personnel at higher headquarters, and Investigations and Resolutions.

What is a Well-Framed Claim?

A well-framed claim includes the who, what, when, and where of the matter. For the purpose of this discussion, claims are grouped into three categories: Straightforward Claims, More Complex Claims, and Continuing Violations.

Straightforward Claims

In many cases framing the claim is not a difficult task. Examples of the types of claims that commonly fall in this category are non-selection, performance rating, disciplinary action, and denial of an award. Answer the who, what, when, and where of the claim and provide sufficient information to avoid confusion with similar actions. For example, if the claim concerns a performance rating, identify the specific rating at issue. An example of this type of claim is: Was the Complainant discriminated against on the basis of her sex (female) when the Director of Human Resources suspended her from duty and pay on March 31, 2011?

Sample Straightforward Claims:

  1. Was the Complainant discriminated against based on her sex (female) and race (African American) when she was not selected, on October 31, 2011, by the Chief, Transportation Division from Merit Promotion Certificate XYZ for the position of Driver in the Motor Pool?
  2. Was Complainant issued a satisfactory performance appraisal by Mr. Smith, Supervisor of the Work Branch, on October 23, 2011 because of discrimination based on her sex (female)?
  3. Was the Complainant discriminated against on the basis of her sex (female) when the Director of Human Resources suspended her from duty and pay on March 31, 2012?
  4. Was the Complainant discriminated against based on his race (Black) and age (62/born April 2, 1950) when he was not selected on April 20, 2012, by the Head of the Engineering Directorate, for the position of Supervisory General Engineer, GS-801-13, under Job Announcement No. 97-NY-003?
  5. Was the Complainant discriminated against because of her race (Black) when her supervisor, Mr. John Smith, charged her 3 hours AWOL on July 1, 2012, for leaving the work site at the Complaint Window in Building 6?

More Complex Claims

Some claims cannot be precisely framed. Such claims are typically broad in scope, sometimes involve numerous incidents (some or all of which may be vague in nature), or are otherwise difficult to specifically identify. Such a claim generally requires more skill to define because it often involves multiple incidents in a dynamic and involved situation. Examples of the types of claims that commonly fall in this category are harassment (both sexual and non-sexual) and hostile work environment. In defining these claims, answer as many of the who, what, when, and where questions as possible so that a reasonable degree of focus results.

An example of this type of claim is: Was the Complainant discriminated against on the basis of his religion (Jewish) when he was subjected to curt and rude remarks and a harsh tone of voice by Ms. Mary Jones (his immediate supervisor) on a daily basis during the period February through August 2011? For example, on February 12, 2011, Ms. Jones told the Complainant he was "penny wise and dollar foolish," on April 23, 2011 she told him he needed to "stop thinking he was smart and start being smart," and on August 3, 2011 she told him "Israel was just another third world developing country that didn't deserve the amount of foreign aid it was receiving."

Sample More Complex Claims:

Was the Complainant discriminated against on the basis of her sex (female) and in reprisal for EEO complaint activity (January 2012) when the Chief of the Case Work Division, allegedly harassed her between May 1 and June 30, 2012 by:
  1. The denial of computer training (Microsoft Excel) on May 1, 2012;
  2. Absent without leave charges for May 12 and June 14, 2012;
  3. The assignment of overly complex cases (the Smith case, assigned May 13, 2012; the Cordell case, assigned May 22, 2012; and the CFX case, assigned June 9, 2012); and
  4. Regular and recurring derogatory remarks made about her weight during the same period?
Was the Complainant discriminated against based on her sex (female) and reprisal for current EEO involvement (June 2011) when her supervisor harassed her by (1) subjecting her to disparate treatment in the distribution of work assignments during the period January 1, 2011 through December 31, 2011 and (2) by rating her performance for that same period Fully Successful instead of Outstanding?

Was the Complainant discriminated against because of her sex (female) and age (47, born October 12, 1964) by the following actions?
  • The Logistics Division Chief, Mr. David Murphy, informed the Commander, on April 17, 2011, that she had mishandled government property and had made an unauthorized commitment of Government funds.
  • The Quality Assurance report, dated April 25, 2011, charged her with mismanagement of the branch she supervises.
  • On April 30, 2011, she received a Performance Improvement Plan.
Was the Complainant discriminated against because of her disability (physical/asthma) when her first level supervisor gave her written admonishment for poor time and attendance on March 30, 2011; and was she discriminated against for meeting with an EEO counselor about this admonishment when the same supervisor denied her attendance at a training session on file management on April 25, 2011?

Continuing Violations

Many times complainants will raise a number of different allegations in the form of miscellaneous events which when taken separately do not result in a legal claim. However, when these incidents are viewed as a whole, they result in a pattern of ongoing, connected actions. Some of the incidents may be outside of the normal time limits for filing a complaint; however, when at least one is timely, the incidents will perhaps fall under the continuing violation theory.

It is important to distinguish between separate and discrete claims and continuing violations. The following factors should be considered when determining whether to accept and frame a claim under the continuing violation theory when acts of a recurring nature are involved:
  • Similarity of the subject matter;
  • Frequency of the incidents (isolated versus recurring); and
  • Permanence of the effects or consequences of otherwise untimely allegations
For example, a complainant may raise removal of certain job responsibilities in 2008, change of reporting relationships in 2009, removal of other job responsibilities in 2010, notice that her job had been abolished in 2011, and a subsequent management directed reassignment. At first glance these might be viewed as separate incidents. From this perspective, the first three are seemingly untimely. However, when viewed under the continuing violation theory, the following claim may be framed: Was the Complainant discriminated against based on her race (Black) when the responsibilities of the position she held as Writer-Editor, GS-1082-09 in the Public Affairs Office were systematically diminished over the ten years of her incumbency, causing the eventual abolishment of the position and her reassignment?

Sample Continuing Violations

Was the Complainant discriminated against based on her race (Black) when the responsibilities of the position she held as Writer-Editor, GS-1082-09 in the Public Affairs Office were systematically diminished over the ten years of her incumbency, causing the eventual abolishment of the position and her reassignment? Was the Complainant discriminated against based on national origin (Hispanic) and sex (male) when his supervisors in the Supply Division required him to perform IMPAC card duties from July 2011 to July 2012, without including them in his official position description?

Was the Complainant subjected to continual harassment because of his race (Caucasian), between June 1, 2009 and November 30, 2011, when he was (1) subjected to numerous safety violations at the Water Treatment Plant as well as the specific following incidents: (2) on September 15, 2009, an unqualified worker was assigned to replace him and a comment he made about it was erased from the plant logbook; (3) on February 20, 2010,he was not provided with a copy of the Standard Operating Procedures Manual that he requested from the Plant Foreman; and (4) on November 30, 2011, he was questioned by the Plant Foreman because he had notified the Safety Department about unsafe chemical dumping?

What if there are Disagreements about how the Claim is Framed?

Sometimes the complainant disagrees with the way in which the claim is framed in the agency’s acceptance letter. The activity should consider the complainants input and respond accordingly. This response normally takes the form of either a revised acceptance letter or a letter that explains to the complainant why their disagreement could not be accommodated. When this happens, be sure to include copies of all correspondence in the complaint file.

Avoiding Pitfalls in Framing Claims

  • When there is more than one claim, number them accordingly.
  • When dealing with multiple claims and bases, be careful to specify which basis or bases are applicable to each specific claim.
  • Claims should be stated as clearly and succinctly as circumstances permit.
  • Claims may be framed as either narrative statements or questions. However, experience shows the question format lends itself to more precisely framed claims.
  • When allegations are related and otherwise timely, try to frame them as a single claim, with supporting allegations.
  • Take care to properly identify continuing violations
  • Avoid simply repeating statements made by the complainant as the accepted claim, unless the complainants statement precisely defines the who, what, when and where of the allegation.
  • Avoid citing "reprisal" as a claim. "Reprisal" may be a basis in a complaint, but the claim is the specific action that the complainant alleges management took or failed to take for this reason.
  • Avoid including the complainant’s arguments or background information in the claim statement. For example, when the claim is non-selection, do not include the complainant’s statements about her qualifications, or when the claim is discipline, do not list the names of those whom the complainant believes were similarly situated but treated differently. However, be sure this information is included in the complaint file.

Checklist for Framing Claims

  • Is the claim stated as clearly and succinctly as circumstances permit? If not, restate the claim.
  • Does the claim statement contain any argument or factual background? Unless it is essential to defining the claim, delete it.
  • Does the claim statement include the who, what, when, and where of the allegation?
  • Are the allegations connected or are they separate and discrete? If they are connected and timely, consider grouping them as a single claim. If they are connected but some are "untimely," consider grouping under the continuing violation theory.
  • Is there more than one claim? If so, number the claims accordingly.
  • Are there multiple claims and bases? If so, specify which bases apply to each claim.

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