[Code of Federal Regulations]
[Title 29, Volume 4, Parts 900 to 1899]
[Revised as of July 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1614]
[Page 255-287]
TITLE 29--LABOR
COMMISSION
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY
Subpart A--Agency Program To Promote Equal Employment Opportunity
1614.101 General policy.
1614.102 Agency program.
1614.103 Complaints of discrimination covered by this part.
1614.104 Agency processing.
1614.105 Pre-complaint processing.
1614.106 Individual complaints.
1614.107 Dismissals of complaints.
1614.108 Investigation of complaints.
1614.109 Hearings.
1614.110 Final action by agencies.
Subpart B--Provisions Applicable to Particular Complaints
1614.201 Age Discrimination in Employment Act.
1614.202 Equal Pay Act.
1614.203 Rehabilitation Act.
1614.204 Class complaints.
Subpart C--Related Processes
1614.301 Relationship to negotiated grievance procedure.
1614.302 Mixed case complaints.
1614.303 Petitions to the EEOC from MSPB decisions on mixed case
appeals and complaints.
1614.304 Contents of petition.
1614.305 Consideration procedures.
1614.306 Referral of case to Special Panel.
1614.307 Organization of Special Panel.
1614.308 Practices and procedures of the Special Panel.
1614.309 Enforcement of Special Panel decision.
1614.310 Right to file a civil action.
Subpart D--Appeals and Civil Actions
1614.401 Appeals to the Commission.
[[Page 256]]
1614.402 Time for appeals to the Commission.
1614.403 How to appeal.
1614.404 Appellate procedure.
1614.405 Decisions on appeals.
1614.406 Time limits. [Reserved]
1614.407 Civil action: Title VII, Age Discrimination in Employment Act
and Rehabilitation Act.
1614.408 Civil action: Equal Pay Act.
1614.409 Effect of filing a civil action.
Subpart E--Remedies and Enforcement
1614.501 Remedies and relief.
1614.502 Compliance with final Commission decisions.
1614.503 Enforcement of final Commission decisions.
1614.504 Compliance with settlement agreements and final action.
1614.505 Interim relief.
Subpart F--Matters of General Applicability
1614.601 EEO group statistics.
1614.602 Reports to the Commission.
1614.603 Voluntary settlement attempts.
1614.604 Filing and computation of time.
1614.605 Representation and official time.
1614.606 Joint processing and consolidation of complaints.
1614.607 Delegation of authority.
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 2000e-16;
E.O. 10577, 3 CFR, 1954-1958 Comp., p.218; E.O. 11222, 3 CFR, 1964-1965
Comp., p.306; E.O. 11478, 3 CFR, 1969 Comp., p.133; E.O. 12106, 3 CFR,
1978 Comp., p.263; Reorg. Plan No. 1 of 1978, 3 CFR, 1978 Comp., p.321.
Source: 57 FR 12646, Apr. 10, 1992, unless otherwise noted.
Subpart A--Agency Program To Promote Equal Employment Opportunity
Sec. 1614.101 General policy.
(a) It is the policy of the Government of the United States to
provide equal opportunity in employment for all persons, to prohibit
discrimination in employment because of race, color, religion, sex,
national origin, age or handicap and to promote the full realization of
equal employment opportunity through a continuing affirmative program in
each agency.
(b) No person shall be subject to retaliation for opposing any
practice made unlawful by title VII of the Civil Rights Act (title VII)
(42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act
(ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)) or
the Rehabilitation Act (29 U.S.C. 791 et seq.) or for participating in
any stage of administrative or judicial proceedings under those
statutes.
Sec. 1614.102 Agency program.
(a) Each agency shall maintain a continuing affirmative program to
promote equal opportunity and to identify and eliminate discriminatory
practices and policies. In support of this program, the agency shall:
(1) Provide sufficient resources to its equal employment opportunity
program to ensure efficient and successful operation;
(2) Provide for the prompt, fair and impartial processing of
complaints in accordance with this part and the instructions contained
in the Commission's Management Directives;
(3) Conduct a continuing campaign to eradicate every form of
prejudice or discrimination from the agency's personnel policies,
practices and working conditions;
(4) Communicate the agency's equal employment opportunity policy and
program and its employment needs to all sources of job candidates
without regard to race, color, religion, sex, national, origin, age or
handicap, and solicit their recruitment assistance on a continuing
basis;
(5) Review, evaluate and control managerial and supervisory
performance in such a manner as to insure a continuing affirmative
application and vigorous enforcement of the policy of equal opportunity,
and provide orientation, training and advice to managers and supervisors
to assure their understanding and implementation of the equal employment
opportunity policy and program;
(6) Take appropriate disciplinary action against employees who
engage in discriminatory practices;
(7) Make reasonable accommodation to the religious needs of
applicants and employees when those accommodations can be made without
undue hardship on the business of the agency;
[[Page 257]]
(8) Make reasonable accommodation to the known physical or mental
limitations of qualified applicants and employees with handicaps unless
the accommodation would impose an undue hardship on the operation of the
agency's program;
(9) Reassign, in accordance with Sec. 1614.203(g), nonprobationary
employees who develop physical or mental limitations that prevent them
from performing the essential functions of their positions even with
reasonable accommodation;
(10) Provide recognition to employees, supervisors, managers and
units demonstrating superior accomplishment in equal employment
opportunity;
(11) Establish a system for periodically evaluating the
effectiveness of the agency's overall equal employment opportunity
effort;
(12) Provide the maximum feasible opportunity to employees to
enhance their skills through on-the-job training, work-study programs
and other training measures so that they may perform at their highest
potential and advance in accordance with their abilities;
(13) Inform its employees and recognized labor organizations of the
affirmative equal employment opportunity policy and program and enlist
their cooperation; and
(14) Participate at the community level with other employers, with
schools and universities and with other public and private groups in
cooperative action to improve employment opportunities and community
conditions that affect employability.
(b) In order to implement its program, each agency shall:
(1) Develop the plans, procedures and regulations necessary to carry
out its program;
(2) Establish or make available an alternative dispute resolution
program. Such program must be available for both the pre-complaint
process and the formal complaint process.
(3) Appraise its personnel operations at regular intervals to assure
their conformity with its program, this part 1614 and the instructions
contained in the Commission's management directives;
(4) Designate a Director of Equal Employment Opportunity (EEO
Director), EEO Officer(s), and such Special Emphasis Program Managers
(e.g., People With Disabilities Program, Federal Women's Program and
Hispanic Employment Program), clerical and administrative support as may
be necessary to carry out the functions described in this part in all
organizational units of the agency and at all agency installations. The
EEO Director shall be under the immediate supervision of the agency
head;
(5) Make written materials available to all employees and applicants
informing them of the variety of equal employment opportunity programs
and administrative and judicial remedial procedures available to them
and prominently post such written materials in all personnel and EEO
offices and throughout the workplace;
(6) Ensure that full cooperation is provided by all agency employees
to EEO Counselors and agency EEO personnel in the processing and
resolution of pre-complaint matters and complaints within an agency and
that full cooperation is provided to the Commission in the course of
appeals, including granting the Commission routine access to personnel
records of the agency when required in connection with an investigation;
and
(7) Publicize to all employees and post at all times the names,
business telephone numbers and business addresses of the EEO Counselors
(unless the counseling function is centralized, in which case only the
telephone number and address need be publicized and posted), a notice of
the time limits and necessity of contacting a Counselor before filing a
complaint and the telephone numbers and addresses of the EEO Director,
EEO Officer(s) and Special Emphasis Program Managers.
(c) Under each agency program, the EEO Director shall be responsible
for:
(1) Advising the head of the agency with respect to the preparation
of national and regional equal employment opportunity plans, procedures,
regulations, reports and other matters pertaining to the policy in
Sec. 1614.101 and the agency program;
(2) Evaluating from time to time the sufficiency of the total agency
program
[[Page 258]]
for equal employment opportunity and reporting to the head of the agency
with recommendations as to any improvement or correction needed,
including remedial or disciplinary action with respect to managerial,
supervisory or other employees who have failed in their
responsibilities;
(3) When authorized by the head of the agency, making changes in
programs and procedures designed to eliminate discriminatory practices
and to improve the agency's program for equal employment opportunity;
(4) Providing for counseling of aggrieved individuals and for the
receipt and processing of individual and class complaints of
discrimination; and
(5) Assuring that individual complaints are fairly and thoroughly
investigated and that final action is taken in a timely manner in
accordance with this part.
(d) Directives, instructions, forms and other Commission materials
referenced in this part may be obtained in accordance with the
provisions of 29 CFR 1610.7 of this chapter.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37655, July 12, 1999]
Sec. 1614.103 Complaints of discrimination covered by this part.
(a) Individual and class complaints of employment discrimination and
retaliation prohibited by title VII (discrimination on the basis of
race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is at
least 40 years of age), the Rehabilitation Act (discrimination on the
basis of handicap) or the Equal Pay Act (sex-based wage discrimination)
shall be processed in accordance with this part. Complaints alleging
retaliation prohibited by these statutes are considered to be complaints
of discrimination for purposes of this part.
(b) This part applies to:
(1) Military departments as defined in 5 U.S.C. 102;
(2) Executive agencies as defined in 5 U.S.C. 105;
(3) The United States Postal Service, Postal Rate Commission and
Tennessee Valley Authority;
(4) All units of the judicial branch of the Federal government
having positions in the competitive service, except for complaints under
the Rehabilitation Act;
(5) The National Oceanic and Atmospheric Administration Commissioned
Corps;
(6) The Government Printing Office; and
(7) The Smithsonian Institution.
(c) Within the covered departments, agencies and units, this part
applies to all employees and applicants for employment, and to all
employment policies or practices affecting employees or applicants for
employment including employees and applicants who are paid from
nonappropriated funds, unless otherwise excluded.
(d) This part does not apply to:
(1) Uniformed members of the military departments referred to in
paragraph (b)(1) of this section:
(2) Employees of the General Accounting Office;
(3) Employees of the Library of Congress;
(4) Aliens employed in positions, or who apply for positions,
located outside the limits of the United States; or
(5) Equal Pay Act complaints of employees whose services are
performed within a foreign country or certain United States territories
as provided in 29 U.S.C. 213(f).
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37655, July 12, 1999]
Sec. 1614.104 Agency processing.
(a) Each agency subject to this part shall adopt procedures for
processing individual and class complaints of discrimination that
include the provisions contained in Secs. 1614.105 through 1614.110 and
in Sec. 1614.204, and that are consistent with all other applicable
provisions of this part and the instructions for complaint processing
contained in the Commission's Management Directives.
(b) The Commission shall periodically review agency resources and
procedures to ensure that an agency makes reasonable efforts to resolve
complaints informally, to process complaints in a timely manner, to
develop
[[Page 259]]
adequate factual records, to issue decisions that are consistent with
acceptable legal standards, to explain the reasons for its decisions,
and to give complainants adequate and timely notice of their rights.
Sec. 1614.105 Pre-complaint processing.
(a) Aggrieved persons who believe they have been discriminated
against on the basis of race, color, religion, sex, national origin, age
or handicap must consult a Counselor prior to filing a complaint in
order to try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a Counselor
within 45 days of the date of the matter alleged to be discriminatory
or, in the case of personnel action, within 45 days of the effective
date of the action.
(2) The agency or the Commission shall extend the 45-day time limit
in paragraph (a)(1) of this section when the individual shows that he or
she was not notified of the time limits and was not otherwise aware of
them, that he or she did not know and reasonably should not have been
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond
his or her control from contacting the counselor within the time limits,
or for other reasons considered sufficient by the agency or the
Commission.
(b)(1) At the initial counseling session, Counselors must advise
individuals in writing of their rights and responsibilities, including
the right to request a hearing or an immediate final decision after an
investigation by the agency in accordance with Sec. 1614.108(f),
election rights pursuant to Secs. 1614.301 and 1614.302, the right to
file a notice of intent to sue pursuant to Sec. 1614.201(a) and a
lawsuit under the ADEA instead of an administrative complaint of age
discrimination under this part, the duty to mitigate damages,
administrative and court time frames, and that only the claims raised in
precomplaint counseling (or issues or claims like or related to issues
or claims raised in pre-complaint counseling) may be alleged in a
subsequent complaint filed with the agency. Counselors must advise
individuals of their duty to keep the agency and Commission informed of
their current address and to serve copies of appeal papers on the
agency. The notice required by paragraphs (d) or (e) of this section
shall include a notice of the right to file a class complaint. If the
aggrieved person informs the Counselor that he or she wishes to file a
class complaint, the Counselor shall explain the class complaint
procedures and the responsibilities of a class agent.
(2) Counselors shall advise aggrieved persons that, where the agency
agrees to offer ADR in the particular case, they may choose between
participation in the alternative dispute resolution program and the
counseling activities provided for in paragraph (c) of this section.
(c) Counselors shall conduct counseling activities in accordance
with instructions contained in Commission Management Directives. When
advised that a complaint has been filed by an aggrieved person, the
Counselor shall submit a written report within 15 days to the agency
office that has been designated to accept complaints and the aggrieved
person concerning the issues discussed and actions taken during
counseling.
(d) Unless the aggrieved person agrees to a longer counseling period
under paragraph (e) of this section, or the aggrieved person chooses an
alternative dispute resolution procedure in accordance with paragraph
(b)(2) of this section, the Counselor shall conduct the final interview
with the aggrieved person within 30 days of the date the aggrieved
person contacted the agency's EEO office to request counseling. If the
matter has not been resolved, the aggrieved person shall be informed in
writing by the Counselor, not later than the thirtieth day after
contacting the Counselor, of the right to file a discrimination
complaint. The notice shall inform the complainant of the right to file
a discrimination complaint within 15 days of receipt of the notice, of
the appropriate official with whom to file a complaint and of the
complainant's duty to assure that the agency is informed immediately if
the complainant retains counsel or a representative.
[[Page 260]]
(e) Prior to the end of the 30-day period, the aggrieved person may
agree in writing with the agency to postpone the final interview and
extend the counseling period for an additional period of no more than 60
days. If the matter has not been resolved before the conclusion of the
agreed extension, the notice described in paragraph (d) of this section
shall be issued.
(f) Where the aggrieved person chooses to participate in an
alternative dispute resolution procedure in accordance with paragraph
(b)(2) of this section, the pre-complaint processing period shall be 90
days. If the claim has not been resolved before the 90th day, the notice
described in paragraph (d) of this section shall be issued.
(g) The Counselor shall not attempt in any way to restrain the
aggrieved person from filing a complaint. The Counselor shall not reveal
the identity of an aggrieved person who consulted the Counselor, except
when authorized to do so by the aggrieved person, or until the agency
has received a discrimination complaint under this part from that person
involving that same matter.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999]
Sec. 1614.106 Individual complaints.
(a) A complaint must be filed with the agency that allegedly
discriminated against the complainant.
(b) A complaint must be filed within 15 days of receipt of the
notice required by Sec. 1614.105 (d), (e) or (f).
(c) A complaint must contain a signed statement from the person
claiming to be aggrieved or that person's attorney. This statement must
be sufficiently precise to identify the aggrieved individual and the
agency and to describe generally the action(s) or practice(s) that form
the basis of the complaint. The complaint must also contain a telephone
number and address where the complainant or the representative can be
contacted.
(d) A complainant may amend a complaint at any time prior to the
conclusion of the investigation to include issues or claims like or
related to those raised in the complaint. After requesting a hearing, a
complainant may file a motion with the administrative judge to amend a
complaint to include issues or claims like or related to those raised in
the complaint.
(e) The agency shall acknowledge receipt of a complaint or an
amendment to a complaint in writing and inform the complainant of the
date on which the complaint or amendment was filed. The agency shall
advise the complainant in the acknowledgment of the EEOC office and its
address where a request for a hearing shall be sent. Such acknowledgment
shall also advise the complainant that:
(1) The complainant has the right to appeal the final action on or
dismissal of a complaint; and
(2) The agency is required to conduct an impartial and appropriate
investigation of the complaint within 180 days of the filing of the
complaint unless the parties agree in writing to extend the time period.
When a complaint has been amended, the agency shall complete its
investigation within the earlier of 180 days after the last amendment to
the complaint or 360 days after the filing of the original complaint,
except that the complainant may request a hearing from an administrative
judge on the consolidated complaints any time after 180 days from the
date of the first filed complaint.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999]
Sec. 1614.107 Dismissals of complaints.
(a) Prior to a request for a hearing in a case, the agency shall
dismiss an entire complaint:
(1) That fails to state a claim under Sec. 1614.103 or
Sec. 1614.106(a) or states the same claim that is pending before or has
been decided by the agency or Commission;
(2) That fails to comply with the applicable time limits contained
in Secs. 1614.105, 1614.106 and 1614.204(c), unless the agency extends
the time limits in accordance with Sec. 1614.604(c), or that raises a
matter that has not been brought to the attention of a Counselor and is
not like or related to a matter that has been brought to the attention
of a Counselor;
(3) That is the basis of a pending civil action in a United States
District Court in which the complainant is a party provided that at
least 180 days
[[Page 261]]
have passed since the filing of the administrative complaint, or that
was the basis of a civil action decided by a United States District
Court in which the complainant was a party;
(4) Where the complainant has raised the matter in a negotiated
grievance procedure that permits allegations of discrimination or in an
appeal to the Merit Systems Protection Board and Sec. 1614.301 or
Sec. 1614.302 indicates that the complainant has elected to pursue the
non-EEO process;
(5) That is moot or alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory;
(6) Where the complainant cannot be located, provided that
reasonable efforts have been made to locate the complainant and the
complainant has not responded within 15 days to a notice of proposed
dismissal sent to his or her last known address;
(7) Where the agency has provided the complainant with a written
request to provide relevant information or otherwise proceed with the
complaint, and the complainant has failed to respond to the request
within 15 days of its receipt or the complainant's response does not
address the agency's request, provided that the request included a
notice of the proposed dismissal. Instead of dismissing for failure to
cooperate, the complaint may be adjudicated if sufficient information
for that purpose is available;
(8) That alleges dissatisfaction with the processing of a previously
filed complaint; or
(9) Where the agency, strictly applying the criteria set forth in
Commission decisions, finds that the complaint is part of a clear
pattern of misuse of the EEO process for a purpose other than the
prevention and elimination of employment discrimination. A clear pattern
of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings; and
(ii) Allegations that are similar or identical, lack specificity or
involve matters previously resolved; or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
(b) Where the agency believes that some but not all of the claims in
a complaint should be dismissed for the reasons contained in paragraphs
(a)(1) through (9) of this section, the agency shall notify the
complainant in writing of its determination, the rationale for that
determination and that those claims will not be investigated, and shall
place a copy of the notice in the investigative file. A determination
under this paragraph is reviewable by an administrative judge if a
hearing is requested on the remainder of the complaint, but is not
appealable until final action is taken on the remainder of the
complaint.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999]
Sec. 1614.108 Investigation of complaints.
(a) The investigation of complaints shall be conducted by the agency
against which the complaint has been filed.
(b) In accordance with instructions contained in Commission
Management Directives, the agency shall develop an impartial and
appropriate factual record upon which to make findings on the claims
raised by the written complaint. An appropriate factual record is one
that allows a reasonable fact finder to draw conclusions as to whether
discrimination occurred. Agencies may use an exchange of letters or
memoranda, interrogatories, investigations, fact-finding conferences or
any other fact-finding methods that efficiently and thoroughly address
the matters at issue. Agencies are encouraged to incorporate alternative
dispute resolution techniques into their investigative efforts in order
to promote early resolution of complaints.
(c) The procedures in paragraphs (c) (1) through (3) of this section
apply to the investigation of complaints:
(1) The complainant, the agency, and any employee of a Federal
agency shall produce such documentary and testimonial evidence as the
investigator deems necessary.
[[Page 262]]
(2) Investigators are authorized to administer oaths. Statements of
witnesses shall be made under oath or affirmation or, alternatively, by
written statement under penalty of perjury.
(3) When the complainant, or the agency against which a complaint is
filed, or its employees fail without good cause shown to respond fully
and in timely fashion to requests for documents, records, comparative
data, statistics, affidavits, or the attendance of witness(es), the
investigator may note in the investigative record that the decisionmaker
should, or the Commission on appeal may, in appropriate circumstances:
(i) Draw an adverse inference that the requested information, or the
testimony of the requested witness, would have reflected unfavorably on
the party refusing to provide the requested information;
(ii) Consider the matters to which the requested information or
testimony pertains to be established in favor of the opposing party;
(iii) Exclude other evidence offered by the party failing to produce
the requested information or witness;
(iv) Issue a decision fully or partially in favor of the opposing
party; or
(v) Take such other actions as it deems appropriate.
(d) Any investigation will be conducted by investigators with
appropriate security clearances. The Commission will, upon request,
supply the agency with the name of an investigator with appropriate
security clearances.
(e) The agency shall complete its investigation within 180 days of
the date of filing of an individual complaint or within the time period
contained in an order from the Office of Federal Operations on an appeal
from a dismissal pursuant to Sec. 1614.107. By written agreement within
those time periods, the complainant and the respondent agency may
voluntarily extend the time period for not more than an additional 90
days. The agency may unilaterally extend the time period or any period
of extension for not more than 30 days where it must sanitize a
complaint file that may contain information classified pursuant to Exec.
Order No. 12356, or successor orders, as secret in the interest of
national defense or foreign policy, provided the investigating agency
notifies the parties of the extension.
(f) Within 180 days from the filing of the complaint, or where a
complaint was amended, within the earlier of 180 days after the last
amendment to the complaint or 360 days after the filing of the original
complaint, within the time period contained in an order from the Office
of Federal Operations on an appeal from a dismissal, or within any
period of extension provided for in paragraph (e) of this section, the
agency shall provide the complainant with a copy of the investigative
file, and shall notify the complainant that, within 30 days of receipt
of the investigative file, the complainant has the right to request a
hearing and decision from an administrative judge or may request an
immediate final decision pursuant to Sec. 1614.110 from the agency with
which the complaint was filed.
(g) Where the complainant has received the notice required in
paragraph (f) of this section or at any time after 180 days have elapsed
from the filing of the complaint, the complainant may request a hearing
by submitting a written request for a hearing directly to the EEOC
office indicated in the agency's acknowledgment letter. The complainant
shall send a copy of the request for a hearing to the agency EEO office.
Within 15 days of receipt of the request for a hearing, the agency shall
provide a copy of the complaint file to EEOC and, if not previously
provided, to the complainant.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999]
Sec. 1614.109 Hearings.
(a) When a complainant requests a hearing, the Commission shall
appoint an administrative judge to conduct a hearing in accordance with
this section. Upon appointment, the administrative judge shall assume
full responsibility for the adjudication of the complaint, including
overseeing the development of the record. Any hearing will be conducted
by an administrative judge or hearing examiner with appropriate security
clearances.
(b) Dismissals. Administrative judges may dismiss complaints
pursuant to
[[Page 263]]
Sec. 1614.107, on their own initiative, after notice to the parties, or
upon an agency's motion to dismiss a complaint.
(c) Offer of resolution. (1) Any time after the filing of the
written complaint but not later than the date an administrative judge is
appointed to conduct a hearing, the agency may make an offer of
resolution to a complainant who is represented by an attorney.
(2) Any time after the parties have received notice that an
administrative judge has been appointed to conduct a hearing, but not
later than 30 days prior to the hearing, the agency may make an offer of
resolution to the complainant, whether represented by an attorney or
not.
(3) The offer of resolution shall be in writing and shall include a
notice explaining the possible consequences of failing to accept the
offer. The agency's offer, to be effective, must include attorney's fees
and costs and must specify any non-monetary relief. With regard to
monetary relief, an agency may make a lump sum offer covering all forms
of monetary liability, or it may itemize the amounts and types of
monetary relief being offered. The complainant shall have 30 days from
receipt of the offer of resolution to accept it. If the complainant
fails to accept an offer of resolution and the relief awarded in the
administrative judge's decision, the agency's final decision, or the
Commission decision on appeal is not more favorable than the offer,
then, except where the interest of justice would not be served, the
complainant shall not receive payment from the agency of attorney's fees
or costs incurred after the expiration of the 30-day acceptance period.
An acceptance of an offer must be in writing and will be timely if
postmarked or received within the 30-day period. Where a complainant
fails to accept an offer of resolution, an agency may make other offers
of resolution and either party may seek to negotiate a settlement of the
complaint at any time.
(d) Discovery. The administrative judge shall notify the parties of
the right to seek discovery prior to the hearing and may issue such
discovery orders as are appropriate. Unless the parties agree in writing
concerning the methods and scope of discovery, the party seeking
discovery shall request authorization from the administrative judge
prior to commencing discovery. Both parties are entitled to reasonable
development of evidence on matters relevant to the issues raised in the
complaint, but the administrative judge may limit the quantity and
timing of discovery. Evidence may be developed through interrogatories,
depositions, and requests for admissions, stipulations or production of
documents. It shall be grounds for objection to producing evidence that
the information sought by either party is irrelevant, overburdensome,
repetitious, or privileged.
(e) Conduct of hearing. Agencies shall provide for the attendance at
a hearing of all employees approved as witnesses by an administrative
judge. Attendance at hearings will be limited to persons determined by
the administrative judge to have direct knowledge relating to the
complaint. Hearings are part of the investigative process and are thus
closed to the public. The administrative judge shall have the power to
regulate the conduct of a hearing, limit the number of witnesses where
testimony would be repetitious, and exclude any person from the hearing
for contumacious conduct or misbehavior that obstructs the hearing. The
administrative judge shall receive into evidence information or
documents relevant to the complaint. Rules of evidence shall not be
applied strictly, but the administrative judge shall exclude irrelevant
or repetitious evidence. The administrative judge or the Commission may
refer to the Disciplinary Committee of the appropriate Bar Association
any attorney or, upon reasonable notice and an opportunity to be heard,
suspend or disqualify from representing complainants or agencies in EEOC
hearings any representative who refuses to follow the orders of an
administrative judge, or who otherwise engages in improper conduct.
(f) Procedures. (1) The complainant, an agency, and any employee of
a Federal agency shall produce such documentary and testimonial evidence
as the administrative judge deems necessary. The administrative judge
shall
[[Page 264]]
serve all orders to produce evidence on both parties.
(2) Administrative judges are authorized to administer oaths.
Statements of witnesses shall be made under oath or affirmation or,
alternatively, by written statement under penalty of perjury.
(3) When the complainant, or the agency against which a complaint is
filed, or its employees fail without good cause shown to respond fully
and in timely fashion to an order of an administrative judge, or
requests for the investigative file, for documents, records, comparative
data, statistics, affidavits, or the attendance of witness(es), the
administrative judge shall, in appropriate circumstances:
(i) Draw an adverse inference that the requested information, or the
testimony of the requested witness, would have reflected unfavorably on
the party refusing to provide the requested information;
(ii) Consider the matters to which the requested information or
testimony pertains to be established in favor of the opposing party;
(iii) Exclude other evidence offered by the party failing to produce
the requested information or witness;
(iv) Issue a decision fully or partially in favor of the opposing
party; or
(v) Take such other actions as appropriate.
(g) Decisions without hearing. (1) If a party believes that some or
all material facts are not in genuine dispute and there is no genuine
issue as to credibility, the party may, at least 15 days prior to the
date of the hearing or at such earlier time as required by the
administrative judge, file a statement with the administrative judge
prior to the hearing setting forth the fact or facts and referring to
the parts of the record relied on to support the statement. The
statement must demonstrate that there is no genuine issue as to any such
material fact. The party shall serve the statement on the opposing
party.
(2) The opposing party may file an opposition within 15 days of
receipt of the statement in paragraph (d)(1) of this section. The
opposition may refer to the record in the case to rebut the statement
that a fact is not in dispute or may file an affidavit stating that the
party cannot, for reasons stated, present facts to oppose the request.
After considering the submissions, the administrative judge may order
that discovery be permitted on the fact or facts involved, limit the
hearing to the issues remaining in dispute, issue a decision without a
hearing or make such other ruling as is appropriate.
(3) If the administrative judge determines upon his or her own
initiative that some or all facts are not in genuine dispute, he or she
may, after giving notice to the parties and providing them an
opportunity to respond in writing within 15 calendar days, issue an
order limiting the scope of the hearing or issue a decision without
holding a hearing.
(h) Record of hearing. The hearing shall be recorded and the agency
shall arrange and pay for verbatim transcripts. All documents submitted
to, and accepted by, the administrative judge at the hearing shall be
made part of the record of the hearing. If the agency submits a document
that is accepted, it shall furnish a copy of the document to the
complainant. If the complainant submits a document that is accepted, the
administrative judge shall make the document available to the agency
representative for reproduction.
(i) Decisions by administrative judges. Unless the administrative
judge makes a written determination that good cause exists for extending
the time for issuing a decision, an administrative judge shall issue a
decision on the complaint, and shall order appropriate remedies and
relief where discrimination is found, within 180 days of receipt by the
administrative judge of the complaint file from the agency. The
administrative judge shall send copies of the hearing record, including
the transcript, and the decision to the parties. If an agency does not
issue a final order within 40 days of receipt of the administrative
judge's decision in accordance with 1614.110, then the decision of the
administrative judge shall become the final action of the agency.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37657, July 12, 1999]
[[Page 265]]
Sec. 1614.110 Final action by agencies.
(a) Final action by an agency following a decision by an
administrative judge. When an administrative judge has issued a decision
under Sec. 1614.109(b), (g) or (i), the agency shall take final action
on the complaint by issuing a final order within 40 days of receipt of
the hearing file and the administrative judge's decision. The final
order shall notify the complainant whether or not the agency will fully
implement the decision of the administrative judge and shall contain
notice of the complainant's right to appeal to the Equal Employment
Opportunity Commission, the right to file a civil action in federal
district court, the name of the proper defendant in any such lawsuit and
the applicable time limits for appeals and lawsuits. If the final order
does not fully implement the decision of the administrative judge, then
the agency shall simultaneously file an appeal in accordance with
Sec. 1614.403 and append a copy of the appeal to the final order. A copy
of EEOC Form 573 shall be attached to the final order.
(b) Final action by an agency in all other circumstances. When an
agency dismisses an entire complaint under Sec. 1614.107, receives a
request for an immediate final decision or does not receive a reply to
the notice issued under Sec. 1614.108(f), the agency shall take final
action by issuing a final decision. The final decision shall consist of
findings by the agency on the merits of each issue in the complaint, or,
as appropriate, the rationale for dismissing any claims in the complaint
and, when discrimination is found, appropriate remedies and relief in
accordance with subpart E of this part. The agency shall issue the final
decision within 60 days of receiving notification that a complainant has
requested an immediate decision from the agency, or within 60 days of
the end of the 30-day period for the complainant to request a hearing or
an immediate final decision where the complainant has not requested
either a hearing or a decision. The final action shall contain notice of
the right to appeal the final action to the Equal Employment Opportunity
Commission, the right to file a civil action in federal district court,
the name of the proper defendant in any such lawsuit and the applicable
time limits for appeals and lawsuits. A copy of EEOC Form 573 shall be
attached to the final action.
[64 FR 37657, July 12, 1999]
Subpart B--Provisions Applicable to Particular Complaints
Sec. 1614.201 Age Discrimination in Employment Act.
(a) As an alternative to filing a complaint under this part, an
aggrieved individual may file a civil action in a United States district
court under the ADEA against the head of an alleged discriminating
agency after giving the Commission not less than 30 days' notice of the
intent to file such an action. Such notice must be filed in writing with
EEOC, at P.O. Box 19848, Washington, DC 20036, or by personal delivery
or facsimile within 180 days of the occurrence of the alleged unlawful
practice.
(b) The Commission may exempt a position from the provisions of the
ADEA if the Commission establishes a maximum age requirement for the
position on the basis of a determination that age is a bona fide
occupational qualification necessary to the performance of the duties of
the position.
(c) When an individual has filed an administrative complaint
alleging age discrimination that is not a mixed case, administrative
remedies will be considered to be exhausted for purposes of filing a
civil action:
(1) 180 days after the filing of an individual complaint if the
agency has not taken final action and the individual has not filed an
appeal or 180 days after the filing of a class complaint if the agency
has not issued a final decision;
(2) After final action on an individual or class complaint if the
individual has not filed an appeal; or
(3) After the issuance of a final decision by the Commission on an
appeal or 180 days after the filing of an appeal if the Commission has
not issued a final decision.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37658, July 12, 1999]
[[Page 266]]
Sec. 1614.202 Equal Pay Act.
(a) In its enforcement of the Equal Pay Act, the Commission has the
authority to investigate an agency's employment practices on its own
initiative at any time in order to determine compliance with the
provisions of the Act. The Commission will provide notice to the agency
that it will be initiating an investigation.
(b) Complaints alleging violations of the Equal Pay Act shall be
processed under this part.
Sec. 1614.203 Rehabilitation Act.
(a) Definitions--(1) Individual with handicap(s) is defined for this
section as one who:
(i) Has a physical or mental impairment which substantially limits
one or more of such person's major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) Physical or mental impairment means:
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological, musculoskeletal, special sense organs, cardiovascular,
reproductive, digestive, respiratory, genitourinary, hemic and
lymphatic, skin, and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(3) Major life activities means functions, such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(4) Has a record of such an impairment means has a history of, or
has been classified (or misclassified) as having, a mental or physical
impairment that substantially limits one or more major life activities.
(5) Is regarded as having such an impairment means has a physical or
mental impairment that does not substantially limit major life
activities but is treated by an employer as constituting such a
limitation; has a physical or mental impairment that substantially
limits major life activities only as a result of the attitude of an
employer toward such impairment; or has none of the impairments defined
in paragraph (a)(2) of this section but is treated by an employer as
having such an impairment.
(6) Qualified individual with handicaps means with respect to
employment, an individual with handicaps who, with or without reasonable
accommodation, can perform the essential functions of the position in
question without endangering the health and safety of the individual or
others and who, depending upon the type of appointing authority being
used:
(i) Meets the experience or education requirements (which may
include passing a written test) of the position in question; or
(ii) Meets the criteria for appointment under one of the special
appointing authorities for individuals with handicaps.
(b) The Federal Government shall become a model employer of
individuals with handicaps. Agencies shall give full consideration to
the hiring, placement, and advancement of qualified individuals with
mental and physical handicaps. An agency shall not discriminate against
a qualified individual with physical or mental handicaps.
(c) Reasonable accommodation. (1) An agency shall make reasonable
accommodation to the known physical or mental limitations of an
applicant or employee who is a qualified individual with handicaps
unless the agency can demonstrate that the accommodation would impose an
undue hardship on the operations of its program.
(2) Reasonable accommmodation may include, but shall not be limited
to:
(i) Making facilities readily accessible to and usable by
individuals with handicaps; and
(ii) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, appropriate
adjustment or modification of examinations, the provision of readers and
interpreters, and other similar actions.
(3) In determining whether, pursuant to paragraph (c)(1) of this
section, an accommodation would impose an undue
[[Page 267]]
hardship on the operation of the agency in question, factors to be
considered include:
(i) The overall size of the agency's program with respect to the
number of employees, number and type of facilities and size of budget;
(ii) The type of agency operation, including the composition and
structure of the agency's work force; and
(iii) The nature and the cost of the accommodation.
(d) Employment criteria. (1) An agency may not make use of any
employment test or other selection criterion that screens out or tends
to screen out qualified individuals with handicaps or any class of
individuals with handicaps unless:
(i) The agency demonstrates that the test score or other selection
criterion is job-related for the position in question and consistent
with business necessity; and
(ii) OPM or other examining authority shows that job-related
alternative tests, or the agency shows that job-related alternative
criteria, that do not screen out or tend to screen out as many
individuals with handicaps are unavailable.
(2) An agency shall select and administer tests concerning
employment so as to insure that, when administered to an applicant or
employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately reflect the applicant's or
employee's ability to perform the position or type of positions in
question rather than reflecting the applicant's or employee's impaired
sensory, manual, or speaking skill (except where those skills are the
factors that the test purports to measure).
(e) Preemployment inquiries. (1) Except as provided in paragraphs
(e)(2) and (e)(3) of this section, an agency may not conduct a
preemployment medical examination and may not make preemployment inquiry
of an applicant as to whether the applicant is an individual with
handicaps or as to the nature or severity of a handicap. An agency may,
however, make preemployment inquiry into an applicant's ability to meet
the essential functions of the job, or the medical qualification
requirements if applicable, with or without reasonable accommodation, of
the position in question, i.e., the minimum abilities necessary for safe
and efficient performance of the duties of the position in question. The
Office of Personnel Management may also make an inquiry as to the nature
and extent of a handicap for the purpose of special testing.
(2) Nothing in this section shall prohibit an agency from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty, provided
that: all entering employees are subjected to such an examination
regardless of handicap or when the preemployment medical questionnaire
used for positions that do not routinely require medical examination
indicates a condition for which further examination is required because
of the job-related nature of the condition, and the results of such an
examination are used only in accordance with the requirements of this
part. Nothing in this section shall be construed to prohibit the
gathering of preemployment medical information for the purposes of
special appointing authorities for individuals with handicaps.
(3) To enable and evaluate affirmative action to hire, place or
advance individuals with handicaps, the agency may invite applicants for
employment to indicate whether and to what extent they are handicapped,
if:
(i) The agency states clearly on any written questionnaire used for
this purpose or makes clear orally if no written questionnaire is used,
that the information requested is intended for use solely in conjunction
with affirmative action; and
(ii) The agency states clearly that the information is being
requested on a voluntary basis, that refusal to provide it will not
subject the applicant or employee to any adverse treatment, and that it
will be used only in accordance with this part.
(4) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be kept confidential
except that:
(i) Managers, selecting officials, and others involved in the
selection process or responsible for affirmative action
[[Page 268]]
may be informed that an applicant is eligible under special appointing
authority for the disabled;
(ii) Supervisors and managers may be informed regarding necessary
accommodations;
(iii) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment;
(iv) Government officials investigating compliance with laws,
regulations, and instructions relevant to equal employment opportunity
and affirmative action for individuals with handicaps shall be provided
information upon request; and
(v) Statistics generated from information obtained may be used to
manage, evaluate, and report on equal employment opportunity and
affirmative action programs.
(f) Physical access to buildings. (1) An agency shall not
discriminate against applicants or employees who are qualified
individuals with handicaps due to the inaccessibility of its facility.
(2) For the purpose of this subpart, a facility shall be deemed
accessible if it is in compliance with the Architectural Barriers Act of
1968 (42 U.S.C. 4151 et seq.) and the Americans with Disabilities Act of
1990 (42 U.S.C. 12183 and 12204).
(g) Reassignment. When a nonprobationary employee becomes unable to
perform the essential functions of his or her position even with
reasonable accommodation due to a handicap, an agency shall offer to
reassign the individual to a funded vacant position located in the same
commuting area and serviced by the same appointing authority, and at the
same grade or level, the essential functions of which the individual
would be able to perform with reasonable accommodation if necessary
unless the agency can demonstrate that the reassignment would impose an
undue hardship on the operation of its program. In the absence of a
position at the same grade or level, an offer of reassignment to a
vacant position at the highest available grade or level below the
employee's current grade or level shall be required, but availability of
such a vacancy shall not affect the employee's entitlement, if any, to
disability retirement pursuant to 5 U.S.C. 8337 or 5 U.S.C. 8451. If the
agency has already posted a notice or announcement seeking applications
for a specific vacant position at the time the agency has determined
that the nonprobationary employee is unable to perform the essential
functions of his or her position even with reasonable accommodation,
then the agency does not have an obligation under this section to offer
to reassign the individual to that position, but the agency must
consider the individual on an equal basis with those who applied for the
position. For the purpose of this paragraph, an employee of the United
States Postal Service shall not be considered qualified for any offer of
reassignment that would be inconsistent with the terms of any applicable
collective bargaining agreement.
(h) Exclusion from definition of ``individual(s) with handicap(s)''.
(1) The term ``individual with handicap(s)'' shall not include an
individual who is currently engaging in the illegal use of drugs, when
an agency acts on the basis of such use. The term ``drug'' means a
controlled substance, as defined in schedules I through V of section 202
of the Controlled Substances Act (21 U.S.C. 812). The term ``illegal use
of drugs'' means the use of drugs, the possession or distribution of
which is unlawful under the Controlled Substances Act, but does not
include the use of a drug taken under supervision by a licensed health
care professional, or other uses authorized by the Controlled Substances
Act or other provisions of Federal law. This exclusion, however, does
not exclude an individual with handicaps who:
(i) Has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
such use;
(ii) Is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(iii) Is erroneously regarded as engaging in such use, but is not
engaging in such use.
(2) Except that it shall not violate this section for an agency to
adopt or administer reasonable policies or procedures, including but not
limited to
[[Page 269]]
drug testing, designed to ensure that an individual described in
paragraph (h)(1) (i) and (ii) of this section is no longer engaging in
the illegal use of drugs.
Sec. 1614.204 Class complaints.
(a) Definitions. (1) A class is a group of employees, former
employees or applicants for employment who, it is alleged, have been or
are being adversely affected by an agency personnel management policy or
practice that discriminates against the group on the basis of their
race, color, religion, sex, national origin, age or handicap.
(2) A class complaint is a written complaint of discrimination filed
on behalf of a class by the agent of the class alleging that:
(i) The class is so numerous that a consolidated complaint of the
members of the class is impractical;
(ii) There are questions of fact common to the class;
(iii) The claims of the agent of the class are typical of the claims
of the class;
(iv) The agent of the class, or, if represented, the representative,
will fairly and adequately protect the interests of the class.
(3) An agent of the class is a class member who acts for the class
during the processing of the class complaint.
(b) Pre-complaint processing. An employee or applicant who wishes to
file a class complaint must seek counseling and be counseled in
accordance with Sec. 1614.105. A complainant may move for class
certification at any reasonable point in the process when it becomes
apparent that there are class implications to the claim raised in an
individual complaint. If a complainant moves for class certification
after completing the counseling process contained in Sec. 1614.105, no
additional counseling is required. The administrative judge shall deny
class certification when the complainant has unduly delayed in moving
for certification.
(c) Filing and presentation of a class complaint. (1) A class
complaint must be signed by the agent or representative and must
identify the policy or practice adversely affecting the class as well as
the specific action or matter affecting the class agent.
(2) The complaint must be filed with the agency that allegedly
discriminated not later than 15 days after the agent's receipt of the
notice of right to file a class complaint.
(3) The complaint shall be processed promptly; the parties shall
cooperate and shall proceed at all times without undue delay.
(d) Acceptance or dismissal. (1) Within 30 days of an agency's
receipt of a complaint, the agency shall: Designate an agency
representative who shall not be any of the individuals referenced in
Sec. 1614.102(b)(3), and forward the complaint, along with a copy of the
Counselor's report and any other information pertaining to timeliness or
other relevant circumstances related to the complaint, to the
Commission. The Commission shall assign the complaint to an
administrative judge or complaints examiner with a proper security
clearance when necessary. The administrative judge may require the
complainant or agency to submit additional information relevant to the
complaint.
(2) The administrative judge may dismiss the complaint, or any
portion, for any of the reasons listed in Sec. 1614.107 or because it
does not meet the prerequisites of a class complaint under
Sec. 1614.204(a)(2).
(3) If the allegation is not included in the Counselor's report, the
administrative judge shall afford the agent 15 days to state whether the
matter was discussed with the Counselor and, if not, explain why it was
not discussed. If the explanation is not satisfactory, the
administrative judge shall dismiss the allegation. If the explanation is
satisfactory, the administrative judge shall refer the allegation to the
agency for further counseling of the agent. After counseling, the
allegation shall be consolidated with the class complaint.
(4) If an allegation lacks specificity and detail, the
administrative judge shall afford the agent 15 days to provide specific
and detailed information. The administrative judge shall dismiss the
complaint if the agent fails to provide such information within the
specified time period. If the information
[[Page 270]]
provided contains new allegations outside the scope of the complaint,
the administrative judge shall advise the agent how to proceed on an
individual or class basis concerning these allegations.
(5) The administrative judge shall extend the time limits for filing
a complaint and for consulting with a Counselor in accordance with the
time limit extension provisions contained in Secs. 1614.105(a)(2) and
1614.604.
(6) When appropriate, the administrative judge may decide that a
class be divided into subclasses and that each subclass be treated as a
class, and the provisions of this section then shall be construed and
applied accordingly.
(7) The administrative judge shall transmit his or her decision to
accept or dismiss a complaint to the agency and the agent. The agency
shall take final action by issuing a final order within 40 days of
receipt of the hearing record and administrative judge's decision. The
final order shall notify the agent whether or not the agency will
implement the decision of the administrative judge. If the final order
does not implement the decision of the administrative judge, the agency
shall simultaneously appeal the administrative judge's decision in
accordance with Sec. 1614.403 and append a copy of the appeal to the
final order. A dismissal of a class complaint shall inform the agent
either that the complaint is being filed on that date as an individual
complaint of discrimination and will be processed under subpart A or
that the complaint is also dismissed as an individual complaint in
accordance with Sec. 1614.107. In addition, it shall inform the agent of
the right to appeal the dismissal of the class complaint to the Equal
Employment Opportunity Commission or to file a civil action and shall
include EEOC Form 573, Notice of Appeal/Petition.
(e) Notification. (1) Within 15 days of receiving notice that the
administrative judge has accepted a class complaint or a reasonable time
frame specified by the administrative judge, the agency shall use
reasonable means, such as delivery, mailing to last known address or
distribution, to notify all class members of the acceptance of the class
complaint.
(2) Such notice shall contain:
(i) The name of the agency or organizational segment, its location,
and the date of acceptance of the complaint;
(ii) A description of the issues accepted as part of the class
complaint;
(iii) An explanation of the binding nature of the final decision or
resolution of the complaint on class members; and
(iv) The name, address and telephone number of the class
representative.
(f) Obtaining evidence concerning the complaint. (1) The
administrative judge notify the agent and the agency representative of
the time period that will be allowed both parties to prepare their
cases. This time period will include at least 60 days and may be
extended by the administrative judge upon the request of either party.
Both parties are entitled to reasonable development of evidence on
matters relevant to the issues raised in the complaint. Evidence may be
developed through interrogatories, depositions, and requests for
admissions, stipulations or production of documents. It shall be grounds
for objection to producing evidence that the information sought by
either party is irrelevant, overburdensome, repetitious, or privileged.
(2) If mutual cooperation fails, either party may request the
administrative judge to rule on a request to develop evidence. If a
party fails without good cause shown to respond fully and in timely
fashion to a request made or approved by the administrative judge for
documents, records, comparative data, statistics or affidavits, and the
information is solely in the control of one party, such failure may, in
appropriate circumstances, caused the administrative judge:
(i) To draw an adverse inference that the requested information
would have reflected unfavorably on the party refusing to provide the
requested information;
(ii) To consider the matters to which the requested information
pertains to be established in favor of the opposing party;
(iii) To exclude other evidence offered by the party failing to
produce the requested information;
[[Page 271]]
(iv) To recommend that a decision be entered in favor of the
opposing party; or
(v) To take such other actions as the administrative judge deems
appropriate.
(3) During the period for development of evidence, the
administrative judge may, in his or her discretion, direct that an
investigation of facts relevant to the complaint or any portion be
conducted by an agency certified by the Commission.
(4) Both parties shall furnish to the administrative judge copies of
all materials that they wish to be examined and such other material as
may be requested.
(g) Opportunity for resolution of the complaint. (1) The
administrative judge shall furnish the agent and the representative of
the agency a copy of all materials obtained concerning the complaint and
provide opportunity for the agent to discuss materials with the agency
representative and attempt resolution of the complaint.
(2) The complaint may be resolved by agreement of the agency and the
agent at any time pursuant to the notice and approval procedure
contained in paragraph (g)(4) of this section.
(3) If the complaint is resolved, the terms of the resolution shall
be reduced to writing and signed by the agent and the agency.
(4) Notice of the resolution shall be given to all class members in
the same manner as notification of the acceptance of the class complaint
and to the administrative judge. It shall state the relief, if any, to
be granted by the agency and the name and address of the EEOC
administrative judge assigned to the case. It shall state that within 30
days of the date of the notice of resolution, any member of the class
may petition the administrative judge to vacate the resolution because
it benefits only the class agent, or is otherwise not fair, adequate and
reasonable to the class as a whole. The administrative judge shall
review the notice of resolution and consider any petitions to vacate
filed. If the administrative judge finds that the proposed resolution is
not fair, adequate and reasonable to the class as a whole, the
administrative judge shall issue a decision vacating the agreement and
may replace the original class agent with a petitioner or some other
class member who is eligible to be the class agent during further
processing of the class complaint. The decision shall inform the former
class agent or the petitioner of the right to appeal the decision to the
Equal Employment Opportunity Commission and include EEOC Form 573,
Notice of Appeal/Petition. If the administrative judge finds that the
resolution is fair, adequate and reasonable to the class as a whole, the
resolution shall bind all members of the class.
(h) Hearing. On expiration of the period allowed for preparation of
the case, the administrative judge shall set a date for hearing. The
hearing shall be conducted in accordance with 29 CFR 1614.109 (a)
through (f).
(i) Report of findings and recommendations. (1) The administrative
judge shall transmit to the agency a report of findings and
recommendations on the complaint, including a recommended decision,
systemic relief for the class and any individual relief, where
appropriate, with regard to the personnel action or matter that gave
rise to the complaint.
(2) If the administrative judge finds no class relief appropriate,
he or she shall determine if a finding of individual discrimination is
warranted and, if so, shall recommend appropriate relief.
(3) The administrative judge shall notify the agency of the date on
which the report of findings and recommendations was forwarded to the
agency.
(j) Agency decision. (1) Within 60 days of receipt of the report of
findings and recommendations issued under Sec. 1614.204(i), the agency
shall issue a final decision, which shall accept, reject, or modify the
findings and recommendations of the administrative judge.
(2) The final decision of the agency shall be in writing and shall
be transmitted to the agent by certified mail, return receipt requested,
along with a copy of the report of findings and recommendations of the
administrative judge.
(3) When the agency's final decision is to reject or modify the
findings and
[[Page 272]]
recommendations of the administrative judge, the decision shall contain
specific reasons for the agency's action.
(4) If the agency has not issued a final decision with 60 days of
its receipt of the administrative judge's report of findings and
recommendations, those findings and recommendations shall become the
final decision. The agency shall transmit the final decision to the
agent within five days of the expiration of the 60-day period.
(5) The final decision of the agency shall require any relief
authorized by law and determined to be necessary or desirable to resolve
the issue of discrimination.
(6) A final decision on a class complaint shall, subject to subpart
D of this part, be binding on all members of the class and the agency.
(7) The final decision shall inform the agent of the right to appeal
or to file a civil action in accordance with subpart D of this part and
of the applicable time limits.
(k) Notification of decision. The agency shall notify class members
of the final decision and relief awarded, if any, through the same media
employed to give notice of the existence of the class complaint. The
notice, where appropriate, shall include information concerning the
rights of class members to seek individual relief, and of the procedures
to be followed. Notice shall be given by the agency within 10 days of
the transmittal of its final decision to the agent.
(l) Relief for individual class members. (1) When discrimination is
found, an agency must eliminate or modify the employment policy or
practice out of which the complaint arose and provide individual relief,
including an award of attorney's fees and costs, to the agent in
accordance with Sec. 1614.501.
(2) When class-wide discrimination is not found, but it is found
that the class agent is a victim of discrimination, Sec. 1614.501 shall
apply. The agency shall also, within 60 days of the issuance of the
final decision finding no class-wide discrimination, issue the
acknowledgement of receipt of an individual complaint as required by
Sec. 1614.106(d) and process in accordance with the provisions of
subpart A of this part, each individual complaint that was subsumed into
the class complaint.
(3) When discrimination is found in the final decision and a class
member believes that he or she is entitled to individual relief, the
class member may file a written claim with the head of the agency or its
EEO Director within 30 days of receipt of notification by the agency of
its final decision. Administrative judges shall retain jurisdiction over
the complaint in order to resolve any disputed claims by class members.
The claim must include a specific, detailed showing that the claimant is
a class member who was affected by the discriminatory policy or
practice, and that this discriminatory action took place within the
period of time for which the agency found class-wide discrimination in
its final decision. Where a finding of discrimination against a class
has been made, there shall be a presumption of discrimination as to each
member of the class. The agency must show by clear and convincing
evidence that any class member is not entitled to relief. The
administrative judge may hold a hearing or otherwise supplement the
record on a claim filed by a class member. The agency or the Commission
may find class-wide discrimination and order remedial action for any
policy or practice in existence within 45 days of the agent's initial
contact with the Counselor. Relief otherwise consistent with this Part
may be ordered for the time the policy or practice was in effect. The
agency shall issue a final decision on each such claim within 90 days of
filing. Such decision must include a notice of the right to file an
appeal or a civil action in accordance with subpart D of this part and
the applicable time limits.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37658, July 12, 1999]
Subpart C--Related Processes
Sec. 1614.301 Relationship to negotiated grievance procedure.
(a) When a person is employed by an agency subject to 5 U.S.C.
7121(d) and is covered by a collective bargaining agreement that permits
allegations of discrimination to be raised in a negotiated grievance
procedure, a person
[[Page 273]]
wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either
part 1614 or the negotiated grievance procedure, but not both. An
election to proceed under this part is indicated only by the filing of a
written complaint; use of the pre-complaint process as described in
Sec. 1614.105 does not constitute an election for purposes of this
section. An aggrieved employee who files a complaint under this part may
not thereafter file a grievance on the same matter. An election to
proceed under a negotiated grievance procedure is indicated by the
filing of a timely written grievance. An aggrieved employee who files a
grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614 irrespective of
whether the agency has informed the individual of the need to elect or
of whether the grievance has raised an issue of discrimination. Any such
complaint filed after a grievance has been filed on the same matter
shall be dismissed without prejudice to the complainant's right to
proceed through the negotiated grievance procedure including the right
to appeal to the Commission from a final decision as provided in subpart
D of this part. The dismissal of such a complaint shall advise the
complainant of the obligation to raise discrimination in the grievance
process and of the right to appeal the final grievance decision to the
Commission.
(b) When a person is not covered by a collective bargaining
agreement that permits allegations of discrimination to be raised in a
negotiated grievance procedure, allegations of discrimination shall be
processed as complaints under this part.
(c) When a person is employed by an agency not subject to 5 U.S.C
7121(d) and is covered by a negotiated grievance procedure, allegations
of discrimination shall be processed as complaints under this part,
except that the time limits for processing the complaint contained in
Sec. 1614.106 and for appeal to the Commission contained in
Sec. 1614.402 may be held in abeyance during processing of a grievance
covering the same matter as the complaint if the agency notifies the
complainant in writing that the complaint will be held in abeyance
pursuant to this section.
Sec. 1614.302 Mixed case complaints.
(a) Definitions--(1) Mixed case complaint. A mixed case complaint is
a complaint of employment discrimination filed with a Federal agency
based on race, color, religion, sex, national origin, age or handicap
related to or stemming from an action that can be appealed to the Merit
Systems Protection Board (MSPB). The complaint may contain only an
allegation of employment discrimination or it may contain additional
allegations that the MSPB has jurisdiction to address.
(2) Mixed case appeals. A mixed case appeal is an appeal filed with
the MSPB that alleges that an appealable agency action was effected, in
whole or in part, because of discrimination on the basis of race, color,
religion, sex, national origin, handicap or age.
(b) Election. An aggrieved person may initially file a mixed case
complaint with an agency pursuant to this part or an appeal on the same
matter with the MSPB pursuant to 5 CFR 1201.151, but not both. An agency
shall inform every employee who is the subject of an action that is
appealable to the MSPB and who has either orally or in writing raised
the issue of discrimination during the processing of the action of the
right to file either a mixed case complaint with the agency or to file a
mixed case appeal with the MSPB. The person shall be advised that he or
she may not initially file both a mixed case complaint and an appeal on
the same matter and that whichever is filed first shall be considered an
election to proceed in that forum. If a person files a mixed case appeal
with the MSPB instead of a mixed case complaint and the MSPB dismisses
the appeal for jurisdictional reasons, the agency shall promptly notify
the individual in writing of the right to contact an EEO counselor
within 45 days of receipt of this notice and to file an EEO complaint,
subject to Sec. 1614.107. The date on which the person filed his or her
appeal with MSPB shall be deemed to be the date of initial contact with
the counselor. If a person files a
[[Page 274]]
timely appeal with MSPB from the agency's processing of a mixed case
complaint and the MSPB dismisses it for jurisdictional reasons, the
agency shall reissue a notice under Sec. 1614.108(f) giving the
individual the right to elect between a hearing before an administrative
judge and an immediate final decision.
(c) Dismissal. (1) An agency may dismiss a mixed case complaint for
the reasons contained in, and under the conditions prescribed in,
Sec. 1614.107.
(2) An agency decision to dismiss a mixed case complaint on the
basis of the complainant's prior election of the MSPB procedures shall
be made as follows:
(i) Where neither the agency nor the MSPB administrative judge
questions the MSPB's jurisdiction over the appeal on the same matter, it
shall dismiss the mixed case complaint pursuant to Sec. 1614.107(d) and
shall advise the complainant that he or she must bring the allegations
of discrimination contained in the rejected complaint to the attention
of the MSPB, pursuant to 5 CFR 1201.155. The dismissal of such a
complaint shall advise the complainant of the right to petition the EEOC
to review the MSPB's final decision on the discrimination issue. A
dismissal of a mixed case complaint is not appealable to the Commission
except where it is alleged that Sec. 1614.107(d) has been applied to a
non-mixed case matter.
(ii) Where the agency or the MSPB administrative judge questions the
MSPB's jurisdiction over the appeal on the same matter, the agency shall
hold the mixed case complaint in abeyance until the MSPB's
administrative judge rules on the jurisdictional issue, notify the
complainant that it is doing so, and instruct him or her to bring the
allegation of discrimination to the attention of the MSPB. During this
period of time, all time limitations for processing or filing under this
part will be tolled. An agency decision to hold a mixed case complaint
in abeyance is not appealable to EEOC. If the MSPB's administrative
judge finds that MSPB has jurisdiction over the matter, the agency shall
dismiss the mixed case complaint pursuant to Sec. 1614.107(d), and
advise the complainant of the right to petition the EEOC to review the
MSPB's final decision on the discrimination issue. If the MSPB's
administrative judge finds that MSPB does not have jurisdiction over the
matter, the agency shall recommence processing of the mixed case
complaint as a non-mixed case EEO complaint.
(d) Procedures for agency processing of mixed case complaints. When
a complainant elects to proceed initially under this part rather than
with the MSPB, the procedures set forth in subpart A shall govern the
processing of the mixed case complaint with the following exceptions:
(1) At the time the agency advises a complainant of the acceptance
of a mixed case complaint, it shall also advise the complainant that:
(i) If a final decision is not issued within 120 days of the date of
filing of the mixed case complaint, the complainant may appeal the
matter to the MSPB at any time thereafter as specified at 5 CFR
1201.154(b)(2) or may file a civil action as specified at
Sec. 1614.310(g), but not both; and
(ii) If the complainant is dissatisfied with the agency's final
decision on the mixed case complaint, the complainant may appeal the
matter to the MSPB (not EEOC) within 30 days of receipt of the agency's
final decision;
(2) Upon completion of the investigation, the notice provided the
complainant in accordance with Sec. 1614.108(f) will advise the
complainant that a final decision will be issued within 45 days without
a hearing; and
(3) At the time that the agency issues its final decision on a mixed
case complaint, the agency shall advise the complainant of the right to
appeal the matter to the MSPB (not EEOC) within 30 days of receipt and
of the right to file a civil action as provided at Sec. 1614.310(a).
[57 FR 12646, Apr. 10, 1992, as amended at 61 FR 17576, Apr. 22, 1996;
64 FR 37659, July 12, 1999]
Sec. 1614.303 Petitions to the EEOC from MSPB decisions on mixed case
appeals and complaints.
(a) Who may file. Individuals who have received a final decision
from the MSPB on a mixed case appeal or on the appeal of a final
decision on a mixed case complaint under 5 CFR part 1201,
[[Page 275]]
subpart E and 5 U.S.C. 7702 may petition EEOC to consider that decision.
The EEOC will not accept appeals from MSPB dismissals without prejudice.
(b) Method of filing. Filing shall be made by certified mail, return
receipt requested, to the Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, DC 20036.
(c) Time to file. A petition must be filed with the Commission
either within 30 days of receipt of the final decision of the MSPB or
within 30 days of when the decision of a MSPB field office becomes
final.
(d) Service. The petition for review must be served upon all
individuals and parties on the MSPB's service list by certified mail on
or before the filing with the Commission, and the Clerk of the MSPB,
1120 Vermont Ave., NW., Washington, DC 20419, and the petitioner must
certify as to the date and method of service.
Sec. 1614.304 Contents of petition.
(a) Form. Petitions must be written or typed, but may use any format
including a simple letter format. Petitioners are encouraged to use EEOC
Form 573, Notice Of Appeal/Petition.
(b) Contents. Petitions must contain the following:
(1) The name and address of the petitioner;
(2) The name and address of the petitioner's representative, if any;
(3) A statement of the reasons why the decision of the MSPB is
alleged to be incorrect, in whole or in part, only with regard to issues
of discrimination based on race, color, religion, sex, national origin,
age or handicap;
(4) A copy of the decision issued by the MSPB; and
(5) The signature of the petitioner or representative, if any.
Sec. 1614.305 Consideration procedures.
(a) Once a petition is filed, the Commission will examine it and
determine whether the Commission will consider the decision of the MSPB.
An agency may oppose the petition, either on the basis that the
Commission should not consider the MSPB's decision or that the
Commission should concur in the MSPB's decision, by filing any such
argument with the Office of Federal Operations and serving a copy on the
petitioner within 15 days of receipt by the Commission.
(b) The Commission shall determine whether to consider the decision
of the MSPB within 30 days of receipt of the petition by the
Commission's Office of Federal Operations. A determination of the
Commission not to consider the decision shall not be used as evidence
with respect to any issue of discrimination in any judicial proceeding
concerning that issue.
(c) If the Commission makes a determination to consider the
decision, the Commission shall within 60 days of the date of its
determination, consider the entire record of the proceedings of the MSPB
and on the basis of the evidentiary record before the Board as
supplemented in accordance with paragraph (d) of this section, either:
(1) Concur in the decision of the MSPB; or
(2) Issue in writing a decision that differs from the decision of
the MSPB to the extent that the Commission finds that, as a matter of
law:
(i) The decision of the MSPB constitutes an incorrect interpretation
of any provision of any law, rule, regulation, or policy directive
referred to in 5 U.S.C. 7702(a)(1)(B); or
(ii) The decision involving such provision is not supported by the
evidence in the record as a whole.
(d) In considering any decision of the MSPB, the Commission,
pursuant to 5 U.S.C. 7702(b)(4), may refer the case to the MSPB for the
taking of additional evidence within such period as permits the
Commission to make a decision within the 60-day period prescribed or
provide on its own for the taking of additional evidence to the extent
the Commission considers it necessary to supplement the record.
(e) Where the EEOC has differed with the decision of the MSPB under
Sec. 1614.305(c)(2), the Commission shall refer the matter to the MSPB.
Sec. 1614.306 Referral of case to Special Panel.
If the MSPB reaffirms its decision under 5 CFR 1201.162(a)(2) with
or without modification, the matter shall be immediately certified to
the Special
[[Page 276]]
Panel established pursuant to 5 U.S.C. 7702(d). Upon certification, the
Board shall, within five days (excluding Saturdays, Sundays, and Federal
holidays), transmit to the Chairman of the Special Panel and to the
Chairman of the EEOC the administrative record in the proceeding
including--
(a) The factual record compiled under this section, which shall
include a transcript of any hearing(s);
(b) The decisions issued by the Board and the Commission under 5
U.S.C. 7702; and
(c) A transcript of oral arguments made, or legal brief(s) filed,
before the Board and the Commission.
Sec. 1614.307 Organization of Special Panel.
(a) The Special Panel is composed of:
(1) A Chairman appointed by the President with the advice and
consent of the Senate, and whose term is 6 years;
(2) One member of the MSPB designated by the Chairman of the Board
each time a panel is convened; and
(3) One member of the EEOC designated by the Chairman of the
Commission each time a panel is convened.
(b) Designation of Special Panel member--(1) Time of designation.
Within five days of certification of the case to the Special Panel, the
Chairman of the MSPB and the Chairman of the EEOC shall each designate
one member from their respective agencies to serve on the Special Panel.
(2) Manner of designation. Letters of designation shall be served on
the Chairman of the Special Panel and the parties to the appeal.
Sec. 1614.308 Practices and procedures of the Special Panel.
(a) Scope. The rules in this subpart apply to proceedings before the
Special Panel.
(b) Suspension of rules in this subpart. In the interest of
expediting a decision, or for good cause shown, the Chairman of the
Special Panel may, except where the rule in this subpart is required by
statute, suspend the rules in this subpart on application of a party, or
on his or her own motion, and may order proceedings in accordance with
his or her direction.
(c) Time limit for proceedings. Pursuant to 5 U.S.C. 7702(d)(2)(A),
the Special Panel shall issue a decision within 45 days of the matter
being certified to it.
(d) Administrative assistance to Special Panel. (1) The MSPB and the
EEOC shall provide the Panel with such reasonable and necessary
administrative resources as determined by the Chairman of the Special
Panel.
(2) Assistance shall include, but is not limited to, processing
vouchers for pay and travel expenses.
(3) The Board and the EEOC shall be responsible for all
administrative costs incurred by the Special Panel and, to the extent
practicable, shall equally divide the costs of providing such
administrative assistance. The Chairman of the Special Panel shall
resolve the manner in which costs are divided in the event of a
disagreement between the Board and the EEOC.
(e) Maintenance of the official record. The Board shall maintain the
official record. The Board shall transmit two copies of each submission
filed to each member of the Special Panel in an expeditious manner.
(f) Filing and service of pleadings. (1) The parties shall file the
original and six copies of all submissions with the Clerk, Merit Systems
Protection Board, 1120 Vermont Avenue, NW., Washington, DC 20419. One
copy of each submission shall be served on the other parties.
(2) A certificate of service specifying how and when service was
made must accompany all submissions of the parties.
(3) Service may be by mail or by personal delivery during normal
business hours (8:15 a.m.-4:45 p.m.). Due to the short statutory time
limit, parties are required to file their submissions by overnight
delivery service should they file by mail.
(4) The date of filing shall be determined by the date of mailing as
indicated by the order date for the overnight delivery service. If the
filing is by personal delivery, it shall be considered filed on that
date it is received in the office of the Clerk, MSPB.
(g) Briefs and responsive pleadings. If the parties wish to submit
written argument, briefs shall be filed with the Special Panel within 15
days of the
[[Page 277]]
date of the Board's certification order. Due to the short statutory time
limit responsive pleadings will not ordinarily be permitted.
(h) Oral argument. The parties have the right to oral argument if
desired. Parties wishing to exercise this right shall so indicate at the
time of filing their brief, or if no brief is filed, within 15 days of
the date of the Board's certification order. Upon receipt of a request
for argument, the Chairman of the Special Panel shall determine the time
and place for argument and the time to be allowed each side, and shall
so notify the parties.
(i) Post-argument submissions. Due to the short statutory time
limit, no post-argument submissions will be permitted except by order of
the Chairman of the Special Panel.
(j) Procedural matters. Any procedural matters not addressed in this
subpart shall be resolved by written order of the Chairman of the
Special Panel.
Sec. 1614.309 Enforcement of Special Panel decision.
The Board shall, upon receipt of the decision of the Special Panel,
order the agency concerned to take any action appropriate to carry out
the decision of the Panel. The Board's regulations regarding enforcement
of a final order of the Board shall apply. These regulations are set out
at 5 CFR part 1201, subpart E.
Sec. 1614.310 Right to file a civil action.
An individual who has a complaint processed pursuant to 5 CFR part
1201, subpart E or this subpart is authorized by 5 U.S.C. 7702 to file a
civil action in an appropriate United States District Court:
(a) Within 30 days of receipt of a final decision issued by an
agency on a complaint unless an appeal is filed with the MSPB; or
(b) Within 30 days of receipt of notice of the final decision or
action taken by the MSPB if the individual does not file a petition for
consideration with the EEOC; or
(c) Within 30 days of receipt of notice that the Commission has
determined not to consider the decision of the MSPB; or
(d) Within 30 days of receipt of notice that the Commission concurs
with the decision of the MSPB; or
(e) If the Commission issues a decision different from the decision
of the MSPB, within 30 days of receipt of notice that the MSPB concurs
in and adopts in whole the decision of the Commission; or
(f) If the MSPB does not concur with the decision of the Commission
and reaffirms its initial decision or reaffirms its initial decision
with a revision, within 30 days of the receipt of notice of the decision
of the Special Panel; or
(g) After 120 days from the date of filing a formal complaint if
there is no final action or appeal to the MSPB; or
(h) After 120 days from the date of filing an appeal with the MSPB
if the MSPB has not yet made a decision; or
(i) After 180 days from the date of filing a petition for
consideration with Commission if there is no decision by the Commission,
reconsideration decision by the MSPB or decision by the Special Panel.
Subpart D--Appeals and Civil Actions
Sec. 1614.401 Appeals to the Commission.
(a) A complainant may appeal an agency's final action or dismissal
of a complaint.
(b) An agency may appeal as provided in Sec. 1614.110(a).
(c) A class agent or an agency may appeal an administrative judge's
decision accepting or dismissing all or part of a class complaint; a
class agent may appeal a final decision on a class complaint; a class
member may appeal a final decision on a claim for individual relief
under a class complaint; and a class member, a class agent or an agency
may appeal a final decision on a petition pursuant to
Sec. 1614.204(g)(4).
(d) A grievant may appeal the final decision of the agency, the
arbitrator or the Federal Labor Relations Authority (FLRA) on the
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised. A
grievant may not appeal under this part, however, when the
[[Page 278]]
matter initially raised in the negotiated grievance procedure is still
ongoing in that process, is in arbitration, is before the FLRA, is
appealable to the MSPB or if 5 U.S.C. 7121(d) is inapplicable to the
involved agency.
(e) A complainant, agent or individual class claimant may appeal to
the Commission an agency's alleged noncompliance with a settlement
agreement or final decision in accordance with Sec. 1614.504.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37659, July 12, 1999]
Sec. 1614.402 Time for appeals to the Commission.
(a) Appeals described in Sec. 1614.401(a) and (c) must be filed
within 30 days of receipt of the dismissal, final action or decision.
Appeals described in Sec. 1614.401(b) must be filed within 40 days of
receipt of the hearing file and decision. Where a complainant has
notified the EEO Director of alleged noncompliance with a settlement
agreement in accordance with Sec. 1614.504, the complainant may file an
appeal 35 days after service of the allegations of noncompliance, but no
later than 30 days after receipt of an agency's determination.
(b) If the complainant is represented by an attorney of record, then
the 30-day time period provided in paragraph (a) of this section within
which to appeal shall be calculated from the receipt of the required
document by the attorney. In all other instances, the time within which
to appeal shall be calculated from the receipt of the required document
by the complainant.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37659, July 12, 1999]
Sec. 1614.403 How to appeal.
(a) The complainant, agency, agent, grievant or individual class
claimant (hereinafter appellant) must file an appeal with the Director,
Office of Federal Operations, Equal Employment Opportunity Commission,
at P.O. Box 19848, Washington, DC 20036, or by personal delivery or
facsimile. The appellant should use EEOC Form 573, Notice of Appeal/
Petition, and should indicate what is being appealed.
(b) The appellant shall furnish a copy of the appeal to the opposing
party at the same time it is filed with the Commission. In or attached
to the appeal to the Commission, the appellant must certify the date and
method by which service was made on the opposing party.
(c) If an appellant does not file an appeal within the time limits
of this subpart, the appeal shall be dismissed by the Commission as
untimely.
(d) Any statement or brief on behalf of a complainant in support of
the appeal must be submitted to the Office of Federal Operations within
30 days of filing the notice of appeal. Any statement or brief on behalf
of the agency in support of its appeal must be submitted to the Office
of Federal Operations within 20 days of filing the notice of appeal. The
Office of Federal Operations will accept statements or briefs in support
of an appeal by facsimile transmittal, provided they are no more than 10
pages long.
(e) The agency must submit the complaint file to the Office of
Federal Operations within 30 days of initial notification that the
complainant has filed an appeal or within 30 days of submission of an
appeal by the agency.
(f) Any statement or brief in opposition to an appeal must be
submitted to the Commission and served on the opposing party within 30
days of receipt of the statement or brief supporting the appeal, or, if
no statement or brief supporting the appeal is filed, within 60 days of
receipt of the appeal. The Office of Federal Operations will accept
statements or briefs in opposition to an appeal by facsimile provided
they are no more than 10 pages long.
[64 FR 37659, July 12, 1999]
Sec. 1614.404 Appellate procedure.
(a) On behalf of the Commission, the Office of Federal Operations
shall review the complaint file and all written statements and briefs
from either party. The Commission may supplement the record by an
exchange of letters or memoranda, investigation, remand to the agency or
other procedures.
(b) If the Office of Federal Operations requests information from
one or both of the parties to supplement the
[[Page 279]]
record, each party providing information shall send a copy of the
information to the other party.
(c) When either party to an appeal fails without good cause shown to
comply with the requirements of this section or to respond fully and in
timely fashion to requests for information, the Office of Federal
Operations shall, in appropriate circumstances:
(1) Draw an adverse inference that the requested information would
have reflected unfavorably on the party refusing to provide the
requested information;
(2) Consider the matters to which the requested information or
testimony pertains to be established in favor of the opposing party;
(3) Issue a decision fully or partially in favor of the opposing
party; or
(4) Take such other actions as appropriate.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37659, July 12, 1999]
Sec. 1614.405 Decisions on appeals.
(a) The Office of Federal Operations, on behalf of the Commission,
shall issue a written decision setting forth its reasons for the
decision. The Commission shall dismiss appeals in accordance with
Secs. 1614.107, 1614.403(c) and 1614.410. The decision shall be based on
the preponderance of the evidence. The decision on an appeal from an
agency's final action shall be based on a de novo review, except that
the review of the factual findings in a decision by an administrative
judge issued pursuant to Sec. 1614.109(i) shall be based on a
substantial evidence standard of review. If the decision contains a
finding of discrimination, appropriate remedy(ies) shall be included
and, where appropriate, the entitlement to interest, attorney's fees or
costs shall be indicated. The decision shall reflect the date of its
issuance, inform the complainant of his or her or her civil action
rights, and be transmitted to the complainant and the agency by first
class mail.
(b) A decision issued under paragraph (a) of this section is final
within the meaning of Sec. 1614.407 unless the Commission reconsiders
the case. A party may request reconsideration within 30 days of receipt
of a decision of the Commission, which the Commission in its discretion
may grant, if the party demonstrates that:
(1) The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
(2) The decision will have a substantial impact on the policies,
practices or operations of the agency.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37659, July 12, 1999]
Sec. 1614.406 Time limits. [Reserved]
Sec. 1614.407 Civil action: Title VII, Age Discrimination in Employment
Act and Rehabilitation Act.
A complainant who has filed an individual complaint, an agent who
has filed a class complaint or a claimant who has filed a claim for
individual relief pursuant to a class complaint is authorized under
title VII, the ADEA and the Rehabilitation Act to file a civil action in
an appropriate United States District Court:
(a) Within 90 days of receipt of the final action on an individual
or class complaint if no appeal has been filed;
(b) After 180 days from the date of filing an individual or class
complaint if an appeal has not been filed and final action has not been
taken;
(c) Within 90 days of receipt of the Commission's final decision on
an appeal; or
(d) After 180 days from the date of filing an appeal with the
Commission if there has been no final decision by the Commission.
[57 FR 12646, Apr. 10, 1992. Redesignated and amended at 64 FR 37659,
July 12, 1999]
Sec. 1614.408 Civil action: Equal Pay Act.
A complainant is authorized under section 16(b) of the Fair Labor
Standards Act (29 U.S.C. 216(b)) to file a civil action in a court of
competent jurisdiction within two years or, if the violation is willful,
three years of the date of the alleged violation of the Equal Pay Act
regardless of whether he or she pursued any administrative complaint
processing. Recovery of back wages is limited to two years prior to the
date of filing suit, or to three years if the violation is deemed
willful; liquidated damages in an equal amount may also be awarded. The
filing of a complaint or appeal under this part shall not toll the time
for filing a civil action.
[57 FR 12646, Apr. 10, 1992. Redesignated at 64 FR 37659, July 12, 1999]
[[Page 280]]
Sec. 1614.409 Effect of filing a civil action.
Filing a civil action under Sec. 1614.408 or Sec. 1614.409 shall
terminate Commission processing of the appeal. If private suit is filed
subsequent to the filing of an appeal, the parties are requested to
notify the Commission in writing.
[57 FR 12646, Apr. 10, 1992. Redesignated at 64 FR 37659, July 12, 1999]
Subpart E--Remedies and Enforcement
Sec. 1614.501 Remedies and relief.
(a) When an agency, or the Commission, in an individual case of
discrimination, finds that an applicant or an employee has been
discriminated against, the agency shall provide full relief which shall
include the following elements in appropriate circumstances:
(1) Notification to all employees of the agency in the affected
facility of their right to be free of unlawful discrimination and
assurance that the particular types of discrimination found will not
recur;
(2) Commitment that corrective, curative or preventive action will
be taken, or measures adopted, to ensure that violations of the law
similar to those found will not recur;
(3) An unconditional offer to each identified victim of
discrimination of placement in the position the person would have
occupied but for the discrimination suffered by that person, or a
substantially equivalent position;
(4) Payment to each identified victim of discrimination on a make
whole basis for any loss of earnings the person may have suffered as a
result of the discrimination; and
(5) Commitment that the agency shall cease from engaging in the
specific unlawful employment practice found in the case.
(b) Relief for an applicant. (1)(i) When an agency, or the
Commission, finds that an applicant for employment has been
discriminated against, the agency shall offer the applicant the position
that the applicant would have occupied absent discrimination or, if
justified by the circumstances, a substantially equivalent position
unless clear and convincing evidence indicates that the applicant would
not have been selected even absent the discrimination. The offer shall
be made in writing. The individual shall have 15 days from receipt of
the offer within which to accept or decline the offer. Failure to accept
the offer within the 15-day period will be considered a declination of
the offer, unless the individual can show that circumstances beyond his
or her control prevented a response within the time limit.
(ii) If the offer is accepted, appointment shall be retroactive to
the date the applicant would have been hired. Back pay, computed in the
manner prescribed by 5 CFR 550.805, shall be awarded from the date the
individual would have entered on duty until the date the individual
actually enters on duty unless clear and convincing evidence indicates
that the applicant would not have been selected even absent
discrimination. Interest on back pay shall be included in the back pay
computation where sovereign immunity has been waived. The individual
shall be deemed to have performed service for the agency during this
period for all purposes except for meeting service requirements for
completion of a required probationary or trial period.
(iii) If the offer of employment is declined, the agency shall award
the individual a sum equal to the back pay he or she would have
received, computed in the manner prescribed by 5 CFR 550.805, from the
date he or she would have been appointed until the date the offer was
declined, subject to the limitation of paragraph (b)(3) of this section.
Interest on back pay shall be included in the back pay computation. The
agency shall inform the applicant, in its offer of employment, of the
right to this award in the event the offer is declined.
(2) When an agency, or the Commission, finds that discrimination
existed at the time the applicant was considered for employment but also
finds by clear and convincing evidence that the applicant would not have
been hired even absent discrimination, the agency shall nevertheless
take all steps necessary to eliminate the discriminatory practice and
ensure it does not recur.
(3) Back pay under this paragraph (b) for complaints under title VII
or the Rehabilitation Act may not extend
[[Page 281]]
from a date earlier than two years prior to the date on which the
complaint was initially filed by the applicant.
(c) Relief for an employee. When an agency, or the Commission, finds
that an employee of the agency was discriminated against, the agency
shall provide relief, which shall include, but need not be limited to,
one or more of the following actions:
(1) Nondiscriminatory placement, with back pay computed in the
manner prescribed by 5 CFR 550.805, unless clear and convincing evidence
contained in the record demonstrates that the personnel action would
have been taken even absent the discrimination. Interest on back pay
shall be included in the back pay computation where sovereign immunity
has been waived. The back pay liability under title VII or the
Rehabilitation Act is limited to two years prior to the date the
discrimination complaint was filed.
(2) If clear and convincing evidence indicates that, although
discrimination existed at the time the personnel action was taken, the
personnel action would have been taken even absent discrimination, the
agency shall nevertheless eliminate any discriminatory practice and
ensure it does not recur.
(3) Cancellation of an unwarranted personnel action and restoration
of the employee.
(4) Expunction from the agency's records of any adverse materials
relating to the discriminatory employment practice.
(5) Full opportunity to participate in the employee benefit denied
(e.g., training, preferential work assignments, overtime scheduling).
(d) The agency has the burden of proving by a preponderance of the
evidence that the complainant has failed to mitigate his or her damages.
(e) Attorney's fees or costs--(1) Awards of attorney's fees or
costs. The provisions of this paragraph relating to the award of
attorney's fees or costs shall apply to allegations of discrimination
prohibited by title VII and the Rehabilitation Act. In a decision or
final action, the agency, administrative judge, or Commission may award
the applicant or employee reasonable attorney's fees (including expert
witness fees) and other costs incurred in the processing of the
complaint.
(i) A finding of discrimination raises a presumption of entitlement
to an award of attorney's fees.
(ii) Any award of attorney's fees or costs shall be paid by the
agency.
(iii) Attorney's fees are allowable only for the services of members
of the Bar and law clerks, paralegals or law students under the
supervision of members of the Bar, except that no award is allowable for
the services of any employee of the Federal Government.
(iv) Attorney's fees shall be paid for services performed by an
attorney after the filing of a written complaint, provided that the
attorney provides reasonable notice of representation to the agency,
administrative judge or Commission, except that fees are allowable for a
reasonable period of time prior to the notification of representation
for any services performed in reaching a determination to represent the
complainant. Agencies are not required to pay attorney's fees for
services performed during the pre-complaint process, except that fees
are allowable when the Commission affirms on appeal an administrative
judge's decision finding discrimination after an agency takes final
action by not implementing an administrative judge's decision. Written
submissions to the agency that are signed by the representative shall be
deemed to constitute notice of representation.
(2) Amount of awards. (i) When the agency, administrative judge or
the Commission determines an entitlement to attorney's fees or costs,
the complainant's attorney shall submit a verified statement of
attorney's fees (including expert witness fees) and other costs, as
appropriate, to the agency or administrative judge within 30 days of
receipt of the decision and shall submit a copy of the statement to the
agency. A statement of attorney's fees and costs shall be accompanied by
an affidavit executed by the attorney of record itemizing the attorney's
charges for legal services. The agency may respond to a statement of
attorney's fees and costs within 30 days of its receipt. The verified
statement, accompanying affidavit and any agency
[[Page 282]]
response shall be made a part of the complaint file.
(ii)(A) The agency or administrative judge shall issue a decision
determining the amount of attorney's fees or costs due within 60 days of
receipt of the statement and affidavit. The decision shall include a
notice of right to appeal to the EEOC along with EEOC Form 573, Notice
of Appeal/Petititon and shall include the specific reasons for
determining the amount of the award.
(B) The amount of attorney's fees shall be calculated using the
following standards: The starting point shall be the number of hours
reasonably expended multiplied by a reasonable hourly rate. There is a
strong presumption that this amount represents the reasonable fee. In
limited circumstances, this amount may be reduced or increased in
consideration of the degree of success, quality of representation, and
long delay caused by the agency.
(C) The costs that may be awarded are those authorized by 28 U.S.C.
1920 to include: Fees of the reporter for all or any of the stenographic
transcript necessarily obtained for use in the case; fees and
disbursements for printing and witnesses; and fees for exemplification
and copies necessarily obtained for use in the case.
(iii) Witness fees shall be awarded in accordance with the
provisions of 28 U.S.C. 1821, except that no award shall be made for a
Federal employee who is in a duty status when made available as a
witness.
[57 FR 12646, Apr. 10, 1992, as amended at 60 FR 43372, Aug. 21, 1995;
64 FR 37659, July 12, 1999]
Sec. 1614.502 Compliance with final Commission decisions.
(a) Relief ordered in a final Commission decision is mandatory and
binding on the agency except as provided in this section. Failure to
implement ordered relief shall be subject to judicial enforcement as
specified in Sec. 1614.503(g).
(b) Notwithstanding paragraph (a) of this section, when the agency
requests reconsideration and the case involves removal, separation, or
suspension continuing beyond the date of the request for
reconsideration, and when the decision orders retroactive restoration,
the agency shall comply with the decision to the extent of the temporary
or conditional restoration of the employee to duty status in the
position specified by the Commission, pending the outcome of the agency
request for reconsideration.
(1) Service under the temporary or conditional restoration
provisions of this paragraph (b) shall be credited toward the completion
of a probationary or trial period, eligibility for a within-grade
increase, or the completion of the service requirement for career
tenure, if the Commission upholds its decision after reconsideration.
(2) When the agency requests reconsideration, it may delay the
payment of any amounts ordered to be paid to the complainant until after
the request for reconsideration is resolved. If the agency delays
payment of any amount pending the outcome of the request to reconsider
and the resolution of the request requires the agency to make the
payment, then the agency shall pay interest from the date of the
original appellate decision until payment is made.
(3) The agency shall notify the Commission and the employee in
writing at the same time it requests reconsideration that the relief it
provides is temporary or conditional and, if applicable, that it will
delay the payment of any amounts owed but will pay interest as specified
in paragraph (b)(2) of this section. Failure of the agency to provide
notification will result in the dismissal of the agency's request.
(c) When no request for reconsideration is filed or when a request
for reconsideration is denied, the agency shall provide the relief
ordered and there is no further right to delay implementation of the
ordered relief. The relief shall be provided in full not later than 60
days after receipt of the final decision unless otherwise ordered in the
decision.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37660, July 12, 1999]
Sec. 1614.503 Enforcement of final Commission decisions.
(a) Petition for enforcement. A complainant may petition the
Commission for enforcement of a decision issued
[[Page 283]]
under the Commission's appellate jurisdiction. The petition shall be
submitted to the Office of Federal Operations. The petition shall
specifically set forth the reasons that lead the complainant to believe
that the agency is not complying with the decision.
(b) Compliance. On behalf of the Commission, the Office of Federal
Operations shall take all necessary action to ascertain whether the
agency is implementing the decision of the Commission. If the agency is
found not to be in compliance with the decision, efforts shall be
undertaken to obtain compliance.
(c) Clarification. On behalf of the Commission, the Office of
Federal Operations may, on its own motion or in response to a petition
for enforcement or in connection with a timely request for
reconsideration, issue a clarification of a prior decision. A
clarification cannot change the result of a prior decision or enlarge or
diminish the relief ordered but may further explain the meaning or
intent of the prior decision.
(d) Referral to the Commission. Where the Director, Office of
Federal Operations, is unable to obtain satisfactory compliance with the
final decision, the Director shall submit appropriate findings and
recommendations for enforcement to the Commission, or, as directed by
the Commission, refer the matter to another appropriate agency.
(e) Commission notice to show cause. The Commission may issue a
notice to the head of any Federal agency that has failed to comply with
a decision to show cause why there is noncompliance. Such notice may
request the head of the agency or a representative to appear before the
Commission or to respond to the notice in writing with adequate evidence
of compliance or with compelling reasons for non-compliance.
(f) Certification to the Office of Special Counsel. Where
appropriate and pursuant to the terms of a memorandum of understanding,
the Commission may refer the matter to the Office of Special Counsel for
enforcement action.
(g) Notification to complainant of completion of administrative
efforts. Where the Commission has determined that an agency is not
complying with a prior decision, or where an agency has failed or
refused to submit any required report of compliance, the Commission
shall notify the complainant of the right to file a civil action for
enforcement of the decision pursuant to Title VII, the ADEA, the Equal
Pay Act or the Rehabilitation Act and to seek judicial review of the
agency's refusal to implement the ordered relief pursuant to the
Administrative Procedure Act, 5 U.S.C. 701 et seq., and the mandamus
statute, 28 U.S.C. 1361, or to commence de novo proceedings pursuant to
the appropriate statutes.
Sec. 1614.504 Compliance with settlement agreements and final action.
(a) Any settlement agreement knowingly and voluntarily agreed to by
the parties, reached at any stage of the complaint process, shall be
binding on both parties. Final action that has not been the subject of
an appeal or civil action shall be binding on the agency. If the
complainant believes that the agency has failed to comply with the terms
of a settlement agreement or decision, the complainant shall notify the
EEO Director, in writing, of the alleged noncompliance within 30 days of
when the complainant knew or should have known of the alleged
noncompliance. The complainant may request that the terms of settlement
agreement be specifically implemented or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
(b) The agency shall resolve the matter and respond to the
complainant, in writing. If the agency has not responded to the
complainant, in writing, or if the complainant is not satisfied with the
agency's attempt to resolve the matter, the complainant may appeal to
the Commission for a determination as to whether the agency has complied
with the terms of the settlement agreement or decision. The complainant
may file such an appeal 35 days after he or she has served the agency
with the allegations of noncompliance, but must file an appeal within 30
days of his or her receipt of an agency's determination. The complainant
must serve a copy of the appeal on the agency and the agency may submit
a response to the Commission
[[Page 284]]
within 30 days of receiving notice of the appeal.
(c) Prior to rendering its determination, the Commission may request
that parties submit whatever additional information or documentation it
deems necessary or may direct that an investigation or hearing on the
matter be conducted. If the Commission determines that the agency is not
in compliance and the noncompliance is not attributable to acts or
conduct of the complainant, it may order such compliance or it may order
that the complaint be reinstated for further processing from the point
processing ceased. Allegations that subsequent acts of discrimination
violate a settlement agreement shall be processed as separate complaints
under Sec. 1614.106 or Sec. 1614.204, as appropriate, rather than under
this section.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37660, July 12, 1999]
Sec. 1614.505 Interim relief.
(a)(1) When the agency appeals and the case involves removal,
separation, or suspension continuing beyond the date of the appeal, and
when the administrative judge's decision orders retroactive restoration,
the agency shall comply with the decision to the extent of the temporary
or conditional restoration of the employee to duty status in the
position specified in the decision, pending the outcome of the agency
appeal. The employee may decline the offer of interim relief.
(2) Service under the temporary or conditional restoration
provisions of paragraph (a)(1) of this section shall be credited toward
the completion of a probationary or trial period, eligibility for a
within-grade increase, or the completion of the service requirement for
career tenure, if the Commission upholds the decision on appeal. Such
service shall not be credited toward the completion of any applicable
probationary or trial period or the completion of the service
requirement for career tenure if the Commission reverses the decision on
appeal.
(3) When the agency appeals, it may delay the payment of any amount,
other than prospective pay and benefits, ordered to be paid to the
complainant until after the appeal is resolved. If the agency delays
payment of any amount pending the outcome of the appeal and the
resolution of the appeal requires the agency to make the payment, then
the agency shall pay interest from the date of the original decision
until payment is made.
(4) The agency shall notify the Commission and the employee in
writing at the same time it appeals that the relief it provides is
temporary or conditional and, if applicable, that it will delay the
payment of any amounts owed but will pay interest as specified in
paragraph (b)(2) of this section. Failure of the agency to provide
notification will result in the dismissal of the agency's appeal.
(5) The agency may, by notice to the complainant, decline to return
the complainant to his or her place of employment if it determines that
the return or presence of the complainant will be unduly disruptive to
the work environment. However, prospective pay and benefits must be
provided. The determination not to return the complainant to his or her
place of employment is not reviewable. A grant of interim relief does
not insulate a complainant from subsequent disciplinary or adverse
action.
(b) If the agency files an appeal and has not provided required
interim relief, the complainant may request dismissal of the agency's
appeal. Any such request must be filed with the Office of Federal
Operations within 25 days of the date of service of the agency's appeal.
A copy of the request must be served on the agency at the same time it
is filed with EEOC. The agency may respond with evidence and argument to
the complainant's request to dismiss within 15 days of the date of
service of the request.
[64 FR 37660, July 12, 1999]
Subpart F--Matters of General Applicability
Sec. 1614.601 EEO group statistics.
(a) Each agency shall establish a system to collect and maintain
accurate employment information on the race, national origin, sex and
handicap(s) of its employees.
[[Page 285]]
(b) Data on race, national origin and sex shall be collected by
voluntary self-identification. If an employee does not voluntarily
provide the requested information, the agency shall advise the employee
of the importance of the data and of the agency's obligation to report
it. If the employee still refuses to provide the information, the agency
must make visual identification and inform the employee of the data it
will be reporting. If an agency believes that information provided by an
employee is inaccurate, the agency shall advise the employee about the
solely statistical purpose for which the data is being collected, the
need for accuracy, the agency's recognition of the sensitivity of the
information and the existence of procedures to prevent its unauthorized
disclosure. If, thereafter, the employee declines to change the
apparently inaccurate self-identification, the agency must accept it.
(c) The information collected under paragraph (b) of this section
shall be disclosed only in the form of gross statistics. An agency shall
not collect or maintain any information on the race, national origin or
sex of individual employees except when an automated data processing
system is used in accordance with standards and requirements prescribed
by the Commission to insure individual privacy and the separation of
that information from personnel record.
(d) Each system is subject to the following controls:
(1) Only those categories of race and national origin prescribed by
the Commission may be used;
(2) Only the specific procedures for the collection and maintenance
of data that are prescribed or approved by the Commission may be used;
(3) The Commission shall review the operation of the agency system
to insure adherence to Commission procedures and requirements. An agency
may make an exception to the prescribed procedures and requirements only
with the advance written approval of the Commission.
(e) The agency may use the data only in studies and analyses which
contribute affirmatively to achieving the objectives of the equal
employment opportunity program. An agency shall not establish a quota
for the employment of persons on the basis of race, color, religion,
sex, or national origin.
(f) Data on handicaps shall also be collected by voluntary self-
identification. If an employee does not voluntarily provide the
requested information, the agency shall advise the employee of the
importance of the data and of the agency's obligation to report it. If
an employee who has been appointed pursuant to special appointment
authority for hiring individuals with handicaps still refuses to provide
the requested information, the agency must identify the employee's
handicap based upon the records supporting the appointment. If any other
employee still refuses to provide the requested information or provides
information which the agency believes to be inaccurate, the agency
should report the employee's handicap status as unknown.
(g) An agency shall report to the Commission on employment by race,
national origin, sex and handicap in the form and at such times as the
Commission may require.
Sec. 1614.602 Reports to the Commission.
(a) Each agency shall report to the Commission information
concerning pre-complaint counseling and the status, processing and
disposition of complaints under this part at such times and in such
manner as the Commission prescribes.
(b) Each agency shall advise the Commission whenever it is served
with a Federal court complaint based upon a complaint that is pending on
appeal at the Commission.
(c) Each agency shall submit annually for the review and approval of
the Commission written national and regional equal employment
opportunity plans of action. Plans shall be submitted in a format
prescribed by the Commission and shall include, but not be limited to:
(1) Provision for the establishment of training and education
programs designed to provide maximum opportunity for employees to
advance so as to perform at their highest potential;
[[Page 286]]
(2) Description of the qualifications, in terms of training and
experience relating to equal employment opportunity, of the principal
and operating officials concerned with administration of the agency's
equal employment opportunity program; and
(3) Description of the allocation of personnel and resources
proposed by the agency to carry out its equal employment opportunity
program.
Sec. 1614.603 Voluntary settlement attempts.
Each agency shall make reasonable efforts to voluntarily settle
complaints of discrimination as early as possible in, and throughout,
the administrative processing of complaints, including the pre-complaint
counseling stage. Any settlement reached shall be in writing and signed
by both parties and shall identify the claims resolved.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37661, July 12, 1999]
Sec. 1614.604 Filing and computation of time.
(a) All time periods in this part that are stated in terms of days
are calendar days unless otherwise stated.
(b) A document shall be deemed timely if it is received or
postmarked before the expiration of the applicable filing period, or, in
the absence of a legible postmark, if it is received by mail within five
days of the expiration of the applicable filing period.
(c) The time limits in this part are subject to waiver, estoppel and
equitable tolling.
(d) The first day counted shall be the day after the event from
which the time period begins to run and the last day of the period shall
be included, unless it falls on a Saturday, Sunday or Federal holiday,
in which case the period shall be extended to include the next business
day.
[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37661, July 12, 1999]
Sec. 1614.605 Representation and official time.
(a) At any stage in the processing of a complaint, including the
counseling stage Sec. 1614.105, the complainant shall have the right to
be accompanied, represented, and advised by a representative of
complainant's choice.
(b) If the complainant is an employee of the agency, he or she shall
have a reasonable amount of official time, if otherwise on duty, to
prepare the complaint and to respond to agency and EEOC requests for
information. If the complainant is an employee of the agency and he
designates another employee of the agency as his or her representative,
the representative shall have a reasonable amount of official time, if
otherwise on duty, to prepare the complaint and respond to agency and
EEOC requests for information. The agency is not obligated to chang