[Federal Register Volume 62, Number 69 (Thursday, April 10, 1997)]
[Rules and Regulations]
[Pages 17542-17548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9162]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1603
RIN 3046-AA45
Procedures for Previously Exempt State and Local Government
Employee Complaints of Employment Discrimination Under the Government
Employee Rights Act of 1991
AGENCY: Equal Employment Opportunity Commission.
ACTION: Interim rule.
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SUMMARY: Title III of the Civil Rights Act of 1991, entitled the
Government Employee Rights Act of 1991, extends the protections against
employment discrimination based on race, color, religion, sex, national
origin, age and disability to previously exempt state and local
government employees. This interim rule establishes EEOC procedures for
resolving employment discrimination complaints filed by those
individuals.
DATES: This rule will become effective on April 10, 1997. Written
comments on the interim rule must be received on or before June 9,
1997.
[[Page 17543]]
ADDRESSES: Comments should be submitted to the Office of the Executive
Secretariat, Equal Employment Opportunity Commission, 1801 L Street,
N.W., Washington, D.C. 20507. Copies of comments submitted by the
public will be available for review at the Commission's library, room
6502, 1801 L Street, N.W., Washington, D.C. between the hours of 9:30
a.m. and 5:00 p.m.
FOR FURTHER INFORMATION CONTACT: Nicholas M. Inzeo, Deputy Legal
Counsel, Thomas J. Schlageter, Assistant Legal Counsel or Stephanie D.
Garner, Senior Attorney, at (202) 663-4669 or TDD (202) 663-7026. This
notice is also available in the following formats: Large print,
braille, audio tape and electronic file on computer disk. Requests for
this notice in an alternative format should be made to the Publications
Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION: Title III of the Civil Rights Act of 1991
contains the Government Employee Rights Act of 1991. 2 U.S.C. 1201 et
seq. Section 321 of the Government Employee Rights Act of 1991 (the
Act) provides new equal employment opportunity protections for
previously exempt state and local government employees. The Act
designates the Equal Employment Opportunity Commission as the
enforcement agency for previously exempt state and local government
employees covered by section 321. 2 U.S.C. 1220.
Section 321 of the Act provides for an administrative enforcement
mechanism that is different from EEOC's normal charge resolution
procedures contained in 29 C.F.R. Part 1601. Under section 321, a
covered individual who believes he or she was discriminated against has
180 days to file a complaint. Thereafter, the Act provides that the
matter be processed in accordance with the formal adjudication
principles and procedures set forth in sections 554 through 557 of the
Administrative Procedure Act, 5 U.S.C. 554-557. Section 321 provides
for judicial review of a Commission final order under chapter 158 of
title 28 of the United States Code.
This interim rule sets out the Commission's procedures for handling
complaints brought by individuals covered by section 321 of the Act.
The filing procedures for complaints follow established Commission
procedures for charges published at 29 CFR Part 1601. Previously exempt
state and local government employees may file a complaint with the
Commission at its offices in Washington, D.C. or any of its field
offices. The Commission will review each complaint for jurisdiction
under section 321 and dismiss those complaints that fail to state a
claim. EEOC may refer a complaint from a previously exempt state or
local government employee to a neutral mediator or to any other
alternative dispute resolution process. EEOC may investigate a 321
complaint using a variety of fact-finding methods. In an investigation,
EEOC can issue subpoenas for the production of evidence or witnesses.
EEOC's existing subpoena procedures, found at 29 CFR 1601.16, will
apply to subpoenas issued under this part. The investigative procedures
of this rule are modeled after those in Part 1601 of this Chapter. It
is the Commission's intention to apply these procedures consistently
with its application of the Part 1601 procedures.
If the complaint is not dismissed or resolved during mediation or
investigation, the Commission will send the complaint to an
administrative law judge for formal adjudication in accordance with the
Administrative Procedure Act. Discovery under this part will be
conducted in accordance with the Federal Rules of Civil Procedure and
the administrative law judge will accept evidence in accordance with
the Federal Rules of Evidence, except that the rules on hearsay will
not be strictly applied. The administrative law judge will issue a
decision within 270 days after referral of a complaint for hearing.
Within 30 days of issuance, any party may appeal the dismissal of a
complaint, a matter certified for interlocutory review, an
administrative law judge's denial of a motion for withdrawal or a
decision of an administrative law judge to the Commission. After the
parties have briefed the issues, the Commission will issue a final
order. In the absence of a timely appeal, the final decision of the
administrative law judge will become the final order of the Commission.
Previously exempt state and local government employees may seek
judicial review of an EEOC final order within 60 days after its
issuance in the judicial circuit in which the petitioner resides, or
has its principle office, or in the United States Court of Appeals for
the District of Columbia Circuit.
The Commission is publishing part 1603 as an interim rule to
provide for immediate processing of complaints already filed under
section 321 of the Act. The Commission will consider all comments
received on part 1603 and, if necessary, will publish a revised final
rule.
Executive Order 12866
In promulgating the interim rule implementing section 321 of the
Act, the Commission has adhered to the regulatory philosophy and the
applicable principles of regulation set forth in section 1 of Executive
Order 12866, Regulatory Planning and Review. In addition, it has been
determined that this regulation is not a significant regulatory action
within the meaning of section 3(f).
Regulatory Flexibility Act
As Chairman of the Equal Employment Opportunity Commission, I
certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that
this interim rule will not have a significant economic impact on a
substantial number of small entities because it establishes procedures
for complaints of discrimination by formerly exempt state and local
government employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. Chapter 35) does not apply
to this interim rule because it does not contain information collection
requirements that require the approval of the Office of Management and
Budget.
List of Subjects in 29 CFR Part 1603
Administrative practice and procedure, Equal employment
opportunity, Intergovernmental relations, Investigations, State and
local governments.
For the Commission.
Gilbert F. Casellas,
Chairman.
For the reasons set forth in the preamble, title 29, chapter XIV of
the Code of Federal Regulations is amended by adding part 1603 to read
as follows:
PART 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL
GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER
SECTION 321 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991
Sec.
1603.100 Purpose.
Subpart A--Administrative Process
1603.101 Coverage.
1603.102 Filing a complaint.
1603.103 Referral of complaints.
1603.104 Service of the complaint.
1603.105 Withdrawal of a complaint.
1603.106 Computation of time.
1603.107 Dismissals of complaints.
1603.108 Settlement and alternative dispute resolution.
1603.109 Investigations.
[[Page 17544]]
Subpart B--Hearings
1603.201 Referral and scheduling for hearing.
1603.202 Administrative law judge.
1603.203 Unavailability or withdrawal of administrative law judges.
1603.204 Ex parte communications.
1603.205 Separation of functions.
1603.206 Consolidation and severance of hearings.
1603.207 Intervention.
1603.208 Motions.
1603.209 Filing and service.
1603.210 Discovery.
1603.211 Subpoenas.
1603.212 Witness fees.
1603.213 Interlocutory review.
1603.214 Evidence.
1603.215 Record of hearings.
1603.216 Summary decision.
1603.217 Decision of the administrative law judge.
Subpart C--Appeals
1603.301 Appeal to the Commission.
1603.302 Filing an appeal.
1603.303 Briefs on appeal.
1603.304 Commission decision.
1603.305 Modification or withdrawal of Commission decision.
1603.306 Judicial review.
Authority: 2 U.S.C. 1220.
Sec. 1603.100 Purpose.
This part contains the regulations of the Equal Employment
Opportunity Commission (hereinafter the Commission) for processing
complaints of discrimination filed under section 321 of the Government
Employee Rights Act, 2 U.S.C. 1220.
Subpart A--Administrative Process
Sec. 1603.101 Coverage.
Section 321 of the Government Employee Rights Act of 1991 applies
to employment, which includes application for employment, of any
individual chosen or appointed by a person elected to public office in
any State or political subdivision of any State by the qualified voters
thereof:
(a) To be a member of the elected official's personal staff;
(b) To serve the elected official on the policymaking level; or
(c) To serve the elected official as an immediate advisor with
respect to the exercise of the constitutional or legal powers of the
office.
Sec. 1603.102 Filing a complaint.
(a) Who may make a complaint. Individuals referred to in
Sec. 1603.101 who believe they have been discriminated against on the
basis of race, color, religion, sex, national origin, age or disability
or retaliated against for opposing any practice made unlawful by
federal laws protecting equal employment opportunity or for
participating in any stage of administrative or judicial proceedings
under federal laws protecting equal employment opportunity may file a
complaint not later than 180 days after the occurrence of the alleged
discrimination.
(b) Where to file a complaint. A complaint may be filed in person
or by mail or by facsimile machine to the offices of the Commission in
Washington, D.C., or any of its field offices or with any designated
agent or representative of the Commission. The addresses of the
Commission's field offices appear in 29 CFR 1610.4.
(c) Contents of a complaint. A complaint shall be in writing,
signed and verified. In addition, each complaint should contain the
following:
(1) The full name, address and telephone number of the person
making the complaint;
(2) The full name and address of the person, governmental entity or
political subdivision against whom the complaint is made (hereinafter
referred to as the respondent);
(3) A clear and concise statement of the facts, including pertinent
dates, constituting the alleged unlawful employment practices (See 29
CFR 1601.15(b)); and
(4) A statement disclosing whether proceedings involving the
alleged unlawful employment practice have been commenced before a State
or local FEP agency charged with the enforcement of fair employment
practice laws and, if so, the date of such commencement and the name of
the agency.
(d) Amendment of a complaint. Notwithstanding paragraph (c) of this
section, a complaint is sufficient when the Commission receives from
the person making the complaint a written statement sufficiently
precise to identify the parties and to describe generally the alleged
discriminatory action or practices. A complaint may be amended to cure
technical defects or omissions, including failure to verify the
complaint, or to clarify and amplify its allegations. Such amendments,
and amendments alleging additional acts that constitute discriminatory
employment practices related to or growing out of the subject matter of
the original complaint, will relate back to the date the complaint was
first received. A complaint that has been amended after it was referred
shall not be again referred to the appropriate state or local fair
employment practices agency.
(e) Misfiled complaint. A charge filed pursuant to 29 CFR part 1601
or part 1626, that is later deemed to be a matter under this part,
shall be processed as a complaint under this part and shall relate back
to the date of the initial charge or complaint. A complaint filed under
this part that is later deemed to be a matter under 29 CFR part 1601 or
part 1626 shall be processed as a charge under the appropriate
regulation and shall relate back to the date of the initial complaint.
Sec. 1603.103 Referral of complaints.
(a) The Commission will notify an FEP agency, as defined in 29 CFR
1601.3(a), when a complaint is filed by a state or local government
employee or applicant under this part concerning an employment practice
within the jurisdiction of the FEP agency. The FEP agency will be
entitled to process the complaint exclusively for a period of not less
than 60 days if the FEP agency makes a written request to the
Commission within 10 days of receiving notice that the complaint has
been filed, unless the complaint names the FEP agency as the
respondent.
(b) The Commission may enter into an agreement with an FEP agency
that authorizes the FEP agency to receive complaints under this part on
behalf of the Commission, or waives the FEP agency's right to exclusive
processing of complaints.
Sec. 1603.104 Service of the complaint.
Upon receipt of a complaint, the Commission shall promptly serve
the respondent with a copy of the complaint.
Sec. 1603.105 Withdrawal of a complaint.
The complainant may withdraw a complaint at any time by so advising
the Commission in writing.
Sec. 1603.106 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 delivered by
facsimile not exceeding 20 pages, in person 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) All 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.
[[Page 17545]]
Sec. 1603.107 Dismissals of complaints.
(a) Where a complaint on its face, or after further inquiry, is
determined to be not timely filed or otherwise fails to state a claim
under this part, the Commission shall dismiss the complaint.
(b) Where the complainant cannot be located, the Commission may
dismiss the complaint provided that reasonable efforts have been made
to locate the complainant and the complainant has not responded within
30 days to a notice sent by the Commission to the complainant's last
known address.
(c) Where the complainant fails to provide requested information,
fails or refuses to appear or to be available for interviews or
conferences as necessary, or otherwise refuses to cooperate, the
Commission, after providing the complainant with notice and 30 days in
which to respond, may dismiss the complaint.
(d) Written notice of dismissal pursuant to paragraphs (a), (b), or
(c) of this section shall be issued to the complainant and the
respondent. The Commission hereby delegates authority to the Program
Director, Office of Program Operations, or to his or her designees, and
District Directors, or to their designees, to dismiss complaints.
(e) A complainant who is dissatisfied with a dismissal issued
pursuant to paragraphs (a), (b), or (c) of this section may appeal to
the Commission in accordance with the procedures in subpart C of this
part.
Sec. 1603.108 Settlement and alternative dispute resolution.
(a) The parties are at all times free to settle all or part of a
complaint on terms that are mutually agreeable. Any settlement reached
shall be in writing and signed by both parties and shall identify the
allegations resolved. A copy of any settlement shall be served on the
Commission.
(b) With the agreement of the parties, the Commission may refer a
complaint to a neutral mediator or to any other alternative dispute
resolution process authorized by the Administrative Dispute Resolution
Act, 5 U.S.C. 571 to 583, or other statute.
(c) The Commission may use the services of the Federal Mediation
and Conciliation Service, other federal agencies, appropriate
professional organizations, employees of the Commission and other
appropriate sources in selecting neutrals for alternative dispute
resolution processes.
(d) The alternative dispute resolution process shall be strictly
confidential, and no party to a complaint or neutral shall disclose any
dispute resolution communication or any information provided in
confidence to the neutral except as provided in 5 U.S.C. 584.
Sec. 1603.109 Investigations.
(a) Before referring a complaint to an administrative law judge
under section 201 of this part, the Commission may conduct
investigation using an exchange of letters, interrogatories, fact-
finding conferences, interviews, on-site visits or other fact-finding
methods that address the matters at issue.
(b) During an investigation of a complaint under this part, the
Commission shall have the authority to sign and issue a subpoena
requiring the attendance and testimony of witnesses, the production of
evidence and access to evidence for the purposes of examination and the
right to copy. The subpoena procedures contained in 29 CFR 1601.16
shall apply to subpoenas issued pursuant to this section.
Subpart B--Hearings
Sec. 1603.201 Referral and scheduling for hearing.
(a) Upon request by the complainant under paragraph (b) of this
section or if the complaint is not dismissed or resolved under subpart
A of this part, on behalf of the Commission, the Office of Federal
Operations shall transmit the complaint file to an administrative law
judge, appointed under 5 U.S.C. 3105, for a hearing.
(b) If the complaint has not been referred to an administrative law
judge within 180 days after filing, the complainant may request that
the complaint be immediately transmitted to an administrative law judge
for a hearing.
(c) The administrative law judge shall fix the time, place, and
date for the hearing with due regard for the convenience of the
parties, their representatives or witnesses and shall notify the
parties of the same.
Sec. 1603.202 Administrative law judge.
The administrative law judge shall have all the powers necessary to
conduct fair, expeditious, and impartial hearings as provided in 5
U.S.C. 556(c). In addition, the administrative law judge shall have the
power to:
(a) Change the time, place or date of the hearing;
(b) Enter a default decision against a party failing to appear at a
hearing unless the party shows good cause by contacting the
administrative law judge and presenting arguments as to why the party
or the party's representative could not appear either prior to the
hearing or within two days after the scheduled hearing; and
(c) Take any appropriate action authorized by the Federal Rules of
Civil Procedure (28 U.S.C. appendix).
Sec. 1603.203 Unavailability or withdrawal of administrative law
judges.
(a) In the event the administrative law judge designated to conduct
the hearing becomes unavailable or withdraws from the adjudication,
another administrative law judge may be designated for the purpose of
further hearing or issuing a decision on the record as made, or both.
(b) The administrative law judge may withdraw from the adjudication
at any time the administrative law judge deems himself or herself
disqualified. Prior to issuance of the decision, any party may move
that the administrative law judge withdraw on the ground of personal
bias or other disqualification, by filing with the administrative law
judge promptly upon discovery of the alleged facts an affidavit setting
forth in detail the matters alleged to constitute grounds for
withdrawal.
(c) The administrative law judge shall rule upon the motion for
withdrawal. If the administrative law judge concludes that the motion
is timely and has merit, the administrative law judge shall immediately
withdraw from the adjudication. If the administrative law judge does
not withdraw, the adjudication shall proceed.
Sec. 1603.204 Ex parte communications.
(a) Oral or written communications concerning the merits of an
adjudication between the administrative law judge or decision-making
personnel of the Commission and an interested party to the adjudication
without providing the other party a chance to participate are
prohibited from the time the matter is assigned to an administrative
law judge until the Commission has rendered a final decision.
Communications concerning the status of the case, the date of a
hearing, the method of transmitting evidence to the Commission and
other purely procedural questions are permitted.
(b) Decision-making personnel of the Commission include members of
the Commission and their staffs and personnel in the Office of Federal
Operations, but do not include investigators and intake staff.
(c) Any communication made in violation of this section shall be
made part of the record and an opportunity for rebuttal by the other
party allowed. If the communication was oral, a memorandum stating the
substance of the discussion shall be placed in the record.
(d) Where it appears that a party has engaged in prohibited ex
parte
[[Page 17546]]
communications, that party may be required to show cause why, in the
interest of justice, his or her claim or defense should not be
dismissed, denied or otherwise adversely affected.
Sec. 1603.205 Separation of functions.
(a) The administrative law judge may not be responsible to or
subject to the supervision or direction of a Commission employee
engaged in investigating complaints under this part.
(b) No Commission employee engaged in investigating complaints
under this part shall participate or advise in the decision of the
administrative law judge, except as a witness or counsel in the
adjudication, or its appellate review.
Sec. 1603.206 Consolidation and severance of hearings.
(a) The administrative law judge may, upon motion by a party or
upon his or her own motion, after providing reasonable notice and
opportunity to object to all parties affected, consolidate any or all
matters at issue in two or more adjudications docketed under this part
where common parties, or factual or legal questions exist; where such
consolidation would expedite or simplify consideration of the issues;
or where the interests of justice would be served. For purposes of this
section, no distinction is made between joinder and consolidation of
adjudications.
(b) The administrative law judge may, upon motion of a party or
upon his or her own motion, for good cause shown, order any
adjudication severed with respect to some or all parties, claims or
issues.
Sec. 1603.207 Intervention.
(a) Any person or entity that wishes to intervene in any proceeding
under this subpart shall file a motion to intervene in accordance with
Sec. 1603.208.
(b) A motion to intervene shall indicate the question of law or
fact common to the movant's claim or defense and the complaint at issue
and state all other facts or reasons the movant should be permitted to
intervene.
(c) Any party may file a response to a motion to intervene within
15 days after the filing of the motion to intervene.
Sec. 1603.208 Motions.
(a) All motions shall state the specific relief requested. All
motions shall be in writing, except that a motion may be made orally
during a conference or during the hearing. After providing an
opportunity for response, the administrative law judge may rule on an
oral motion immediately or may require that it be submitted in writing.
(b) Unless otherwise directed by the administrative law judge, any
other party may file a response in support of or in opposition to any
written motion within ten (10) business days after service of the
motion. If no response is filed within the response period, the party
failing to respond shall be deemed to have waived any objection to the
granting of the motion. The moving party shall have no right to reply
to a response, unless the administrative law judge, in his or her
discretion, orders that a reply be filed.
(c) Except for procedural matters, the administrative law judge may
not grant a written motion prior to the expiration of the time for
filing responses. The administrative law judge may deny a written
motion without awaiting a response. The administrative law judge may
allow oral argument (including that made by telephone) on written
motions. Any party adversely affected by the ex parte grant of a motion
for a procedural order may request, within five (5) business days of
service of the order, that the administrative law judge reconsider,
vacate or modify the order.
(d) The administrative law judge may summarily deny dilatory,
repetitive or frivolous motions. Unless otherwise ordered by the
administrative law judge, the filing of a motion does not stay the
proceeding.
(e) All motions and responses must comply with the filing and
service requirements of Sec. 1603.209.
Sec. 1603.209 Filing and service.
(a) Unless otherwise ordered by the administrative law judge, a
signed original of each motion, brief or other document shall be filed
with the administrative law judge, with a certificate of service
indicating that a copy has been sent to all other parties, and the date
and manner of service. All documents shall be on standard size (8\1/2\
x 11) paper. Each document filed shall be clear and legible.
(b) Filing and service shall be made by first class mail or other
more expeditious means of delivery, including, at the discretion of the
administrative law judge, by facsimile. The administrative law judge,
may in his discretion, limit the number of pages that may be filed or
served by facsimile. Service shall be made on a party's representative,
or, if not represented, on the party.
(c) Every document shall contain a caption, the complaint number or
docket number assigned to the matter, a designation of the type of
filing (e.g., motion, brief, etc.), and the filing person's signature,
address, telephone number and telecopier number, if any.
Sec. 1603.210 Discovery.
(a) Unless otherwise ordered by the administrative law judge,
discovery may begin as soon as the complaint has been transmitted to
the administrative law judge pursuant to Sec. 1603.201. Discovery shall
be completed as expeditiously as possible within such time as the
administrative law judge directs.
(b) Unless otherwise ordered by the administrative law judge,
parties may obtain discovery by written interrogatories (not to exceed
20 interrogatories including subparts), depositions upon oral
examination or written questions, requests for production of documents
or things for inspection or other purposes, requests for admission or
any other method found reasonable and appropriate by the administrative
law judge.
(c) Except as otherwise specified, the Federal Rules of Civil
Procedure shall govern discovery in proceedings under this part.
(d) Neutral mediators who have participated in the alternative
dispute resolution process in accordance with Sec. 1603.108 shall not
be called as witnesses or be subject to discovery in any adjudication
under this part.
Sec. 1603.211 Subpoenas.
(a) Upon written application of any party, the administrative law
judge may on behalf of the Commission issue a subpoena requiring the
attendance and testimony of witnesses and the production of any
evidence, including, but not limited to, books, records,
correspondence, or documents, in their possession or under their
control. The subpoena shall state the name and address of the party at
whose request the subpoena was issued, identify the person and evidence
subpoenaed, and the date and time the subpoena is returnable.
(b) Any person served with a subpoena who intends not to comply
shall, within 5 days after service of the subpoena, petition the
administrative law judge in writing to revoke or modify the subpoena.
All petitions to revoke or modify shall be served upon the party at
whose request the subpoena was issued. The requestor may file with the
administrative law judge a response to the petition to revoke or modify
within 5 days after service of the petition.
(c) Upon the failure of any person to comply with a subpoena issued
under this section, the administrative law judge may refer the matter
to the Commission for enforcement in accordance with 29 CFR 1601.16(c).
[[Page 17547]]
Sec. 1603.212 Witness fees.
Witnesses summoned under this part shall receive the same fees and
mileage as witnesses in the courts of the United States. Those fees
must be paid or offered to the witness by the party requesting the
subpoena at the time the subpoena is served, or, if the witness appears
voluntarily, at the time of appearance. A federal agency or corporation
is not required to pay or offer witness fees and mileage allowances in
advance.
Sec. 1603.213 Interlocutory review.
(a) Interlocutory review may not be sought except when the
administrative law judge determines upon motion of a party or upon his
or her own motion that:
(1) The ruling involves a controlling question of law or policy
about which there is substantial ground for difference of opinion;
(2) An immediate ruling will materially advance the completion of
the proceeding; or
(3) The denial of an immediate ruling will cause irreparable harm
to the party or the public.
(b) Application for interlocutory review shall be filed within ten
(10) days after notice of the administrative law judge's ruling. Any
application for review shall:
(1) Designate the ruling or part thereof from which appeal is being
taken; and
(2) Contain arguments or evidence that tend to establish one or
more of the grounds for interlocutory review contained in paragraph (a)
of this section.
(c) Any party opposing the application for interlocutory review
shall file a response to the application within 10 days after service
of the application. The applicant shall have no right to reply to a
response unless the administrative law judge, within his or her
discretion, orders that a reply be filed.
(d) The administrative law judge shall promptly certify in writing
any ruling that qualifies for interlocutory review under paragraph (a)
of this section.
(e) The filing of an application for interlocutory review and the
grant of an application shall not stay proceedings before the
administrative law judge unless the administrative law judge or the
Commission so orders. The Commission shall not consider a motion for a
stay unless the motion was first made to the administrative law judge.
Sec. 1603.214 Evidence.
The administrative law judge shall accept relevant non-privileged
evidence in accordance with the Federal Rules of Evidence (28 U.S.C.
appendix), except the rules on hearsay will not be strictly applied.
Sec. 1603.215 Record of hearings.
(a) All hearings shall be mechanically or stenographically
reported. All evidence relied upon by the administrative law judge for
decision shall be contained in the transcript of testimony, either
directly or by appropriate reference. All exhibits introduced as
evidence shall be marked for identification, with a copy provided for
all parties, if not previously provided, and incorporated into the
record. Transcripts may be obtained by the parties and the public from
the official reporter at rates fixed by the contract with the reporter.
(b) Corrections to the official transcript will be permitted upon
motion, only when errors of substance are involved and upon approval of
the administrative law judge. Motions for correction must be submitted
within ten (10) days of the receipt of the transcript unless additional
time is permitted by the administrative law judge.
Sec. 1603.216 Summary decision.
Upon motion of a party or after notice to the parties, the
administrative law judge may issue a summary decision without a hearing
if the administrative law judge finds that there is no genuine issue of
material fact or that the complaint may be dismissed pursuant to
Sec. 1603.107 or any other grounds authorized by this part. A summary
decision shall otherwise conform to the requirements of Sec. 1603.217.
Sec. 1603.217 Decision of the administrative law judge.
(a) The administrative law judge shall issue a decision on the
merits of the complaint within 270 days after referral of a complaint
for hearing, unless the administrative law judge makes a written
determination that good cause exists for extending the time for issuing
a decision. The decision shall contain findings of fact and conclusions
of law, shall order appropriate relief where discrimination is found,
and shall provide notice of appeal rights consistent with subpart C of
this part.
(b) The administrative law judge shall serve the decision promptly
on all parties to the proceeding and their counsel. Thereafter, the
administrative law judge shall transmit the case file to the Office of
Federal Operations including the decision and the record. The record
shall include the complaint; the investigative file, if any; referral
notice; motions; briefs; rulings; orders; official transcript of the
hearing; all discovery and any other documents submitted by the
parties.
Subpart C--Appeals
Sec. 1603.301 Appeal to the Commission.
Any party may appeal to the Commission the dismissal of a complaint
under Sec. 1603.107, any matter certified for interlocutory review
under Sec. 1613.213, or the administrative law judge's decision under
Sec. 1603.216 or Sec. 1603.217.
Sec. 1603.302 Filing an appeal.
(a) An appeal shall be filed within 30 days after the date of the
appealable decision or certification for interlocutory review, unless
the Commission, upon a showing of good cause, extends the time for
filing an appeal for a period not to exceed an additional 30 days.
(b) An appeal shall be filed with the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036, by mail or personal delivery or facsimile.
Sec. 1603.303 Briefs on appeal.
(a) The appellant shall file a brief or other written statement
within 30 days after the appeal is filed, unless the Commission
otherwise directs.
(b) All other parties may file briefs or other written statements
within 30 days of service of the appellant's brief or statement.
(c) Every brief or statement shall contain a statement of facts and
a section setting forth the party's legal arguments. Any brief or
statement in support of the appeal shall contain arguments or evidence
that tend to establish that the dismissal, order or decision:
(1) Is not supported by substantial evidence;
(2) Contains an erroneous interpretation of law, regulation or
material fact, or misapplication of established policy;
(3) Contains a prejudicial error of procedure; or
(4) Involves a substantial question of law or policy.
(d) Appellate briefs shall not exceed 50 pages in length.
(e) Filing and service of the appeal and appellate briefs shall be
made in accordance with Sec. 1603.209.
Sec. 1603.304 Commission decision.
(a) On behalf of the Commission, the Office of Federal Operations
shall review the record and the appellate briefs submitted by all the
parties. The Office of Federal Operations shall
[[Page 17548]]
prepare a recommended decision for consideration by the Commission.
(b) When an administrative law judge certifies a matter for
interlocutory review under Sec. 1603.213, the Commission may, in its
discretion, issue a decision on the matter or send the matter back to
the administrative law judge without decision.
(c) The Commission will not accept or consider new evidence on
appeal unless the Commission, in its discretion, reopens the record on
appeal.
(d) The decision of the Commission on appeal shall be its final
order and shall be served on all parties.
(e) In the absence of a timely appeal under Sec. 1603.302, the
decision of the administrative law judge under Sec. 1603.217 or a
dismissal under Sec. 1603.107 shall become the final order of the
Commission. A final order under this paragraph shall not have
precedential significance.
Sec. 1603.305 Modification or withdrawal of Commission decision.
At any time, the Commission may modify or withdraw a decision for
any reason provided that no petition for review in a United States
Court of Appeals has been filed.
Sec. 1603.306 Judicial review.
Any party to a complaint who is aggrieved by a final decision under
Sec. 1603.304 may obtain a review of such final decision under chapter
158 of title 28 of the United States Code by filing a petition for
review with a United States Court of Appeals within 60 days after
issuance of the final decision. Such petition for review should be
filed in the judicial circuit in which the petitioner resides, or has
its principal office, or in the United States Court of Appeals for the
District of Columbia Circuit.
[FR Doc. 97-9162 Filed 4-9-97; 8:45 am]
BILLING CODE 6570-06-P
