[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37644-37661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17497]
[[Page 37643]]
_______________________________________________________________________
Part V
Equal Employment Opportunity Commission
_______________________________________________________________________
29 CFR Part 1614
Federal Sector Equal Employment Opportunity; Final Rule
Federal Register / Vol. 64, No. 132 / Monday, July 12, 1999 / Rules
and Regulations
[[Page 37644]]
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA66
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: This rule revises the Equal Employment Opportunity
Commission's federal sector complaint processing regulations to
implement the recommendations made by its Federal Sector Workgroup. The
rule revises procedures throughout the complaint process, addressing
the continuing perception of unfairness and inefficiency in the
process. The Commission is requiring that agencies make available
alternative dispute resolution programs, and is revising the counseling
process, the bases for dismissal of complaints and the procedures for
requesting a hearing. EEOC is providing administrative judges with
authority to dismiss complaints and issue decisions on complaints.
Agencies will have the opportunity to issue a final order stating
whether they will implement the administrative judge's decision. The
Commission is also revising the class complaint procedures, the appeals
procedures, and the attorney's fees provisions.
DATES: Effective Date: This final rule will become effective on
November 9, 1999.
Applicability Dates: The requirement in Secs. 1614.102(b)(2) and
1614.105(b)(2) will apply on January 1, 2000 for agencies that do not
currently have ADR programs. All actions taken by agencies and by the
Commission after November 9, 1999 shall be in accordance with this
final rule.
FOR FURTHER INFORMATION CONTACT: Nicholas M. Inzeo, Deputy Legal
Counsel, Thomas J. Schlageter, Assistant Legal Counsel or Kathleen
Oram, Senior Attorney, Office of Legal Counsel, 202-663-4669 (voice),
202-663-7026 (TDD). This final rule is also available in the following
formats: large print, braille, audio tape and electronic file on
computer disk. Requests for the final rule in an alternative format
should be made to EEOC's Publication Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION:
Introduction
The Equal Employment Opportunity Commission, as part of an ongoing
effort to evaluate and improve the effectiveness of its operations,
established the Federal Sector Workgroup, which was composed of
representatives from offices throughout the Commission. The Workgroup
focused on the effectiveness of the EEOC in enforcing the statutes that
prohibit workplace discrimination in the federal government: section
717 of Title VII of the Civil Rights Act of 1964, which prohibits
discrimination against applicants and employees based on race, color,
religion, sex and national origin; section 501 of the Rehabilitation
Act of 1973, which prohibits employment discrimination on the basis of
disability; section 15 of the Age Discrimination in Employment Act,
which prohibits employment discrimination based on age; and the Equal
Pay Act, which prohibits sex-based wage discrimination.
The Workgroup reviewed and evaluated EEOC's administrative
processes governing its enforcement responsibilities in the federal
sector and, after consulting with affected agencies and groups of
stakeholders, developed recommendations to improve its effectiveness.
In addition, the review sought to implement the goals of Vice President
Gore's National Performance Review (NPR), including eliminating
unnecessary layers of review, delegating decision-making authority to
front-line employees, developing partnership between management and
labor, seeking stakeholder input when making decisions, and measuring
performance by results.
The Commission drafted a Notice of Proposed Rulemaking (NPRM) that
was circulated to all agencies for comment pursuant to Executive Order
12067 and subsequently published in the Federal Register on February
20, 1998. The Notice proposed changes to the Commission's federal
sector complaint processing regulations at 29 CFR Part 1614 to
implement the regulatory recommendations of the Federal Sector
Workgroup. 63 FR 8594 (1998). It sought public comment on those
proposals.
The Commission received over sixty comments on the NPRM. Federal
agencies and departments submitted 19 comments. Ten comments were
submitted by civil rights groups and attorneys groups and law firms,
four were submitted by federal employee unions and union
representatives, one by an association of federal EEO executives, and
one was submitted by a Member of Congress. EEOC also received 27
comments from individuals, including federal employees, attorneys and
other interested persons. The Commission has carefully considered all
of the comments and, as stated in the February Notice, also considered
the comments of agencies made during the interagency comment period.
The Commission has made a number of changes to the proposals contained
in the NPRM in response to the comments. In making these changes, the
Commission intends to continue its efforts to reform the federal sector
discrimination procedures. While the Commission believes that these
changes will make the procedures fairer, the Commission will continue
to seek improvements in the procedures. The comments on the NPRM and
all of the changes to the proposals are discussed more fully below.
Alternative Dispute Resolution
In the NPRM, the Commission proposed to require all agencies to
establish or make available an alternative dispute resolution (ADR)
program for the EEO pre-complaint process. In addition, EEOC proposed
to require that counselors advise aggrieved persons at the initial
counseling session that they may choose between participation in the
ADR program offered by the agency and the traditional counseling
activities provided for in the current regulation.
The commenters generally supported both proposals, agreeing that
providing an ADR mechanism in the pre-complaint stage of the EEO
process will resolve more claims earlier in the process. Many of the
agency commenters emphasized their need for flexibility in developing
their ADR programs. Small agencies, in particular, requested that they
have the authority to determine on a case-by-case basis whether to
offer ADR to an aggrieved person for his or her claim. Other agencies
urged the Commission to ensure that the election provision take into
account that ADR should be voluntary for both parties, the aggrieved
person and the agency. Commenters also requested that EEOC clarify how
the pre-complaint process will operate when ADR is involved and address
the responsibilities of the Counselors throughout that process.
The Commission has revised the ADR and counseling provisions in
response to the comments. Agencies will be required to establish or
make available an ADR program. The ADR program must be available during
both the pre-complaint process and the formal complaint process. The
Commission encourages agencies to use ADR as a valuable tool in
resolving EEO disputes at all stages of the EEO process.
Agencies are free to develop ADR programs that best suit their
particular
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needs. While many agencies have adopted the mediation model, other
resolution techniques are acceptable, provided that they conform to the
core principles set forth in EEOC's policy statement on ADR, contained
in Management Directive 110. The Commission believes that agencies
should have flexibility in defining their ADR programs. EEOC expects
that, overall, agencies will develop an array of ADR programs, designed
to suit their particular circumstances. Agencies with limited funds and
resources could use the services, in whole or in part, of another
agency, a volunteer organization or other resources to make available
an ADR program.
In keeping with the Commission's emphasis on voluntariness as a
component of ADR, agencies may decide on a case-by-case basis whether
it is appropriate to offer ADR to individual aggrieved persons. EEOC
does not anticipate that ADR will be used in connection with every
claim brought to a Counselor. For example, some agencies may wish to
limit pre-complaint ADR geographically (if extensive travel would be
required), or by issue (excluding, for example, all claims alleging
discriminatory termination). Some agencies may wish to exclude class
allegations from their ADR programs. Agencies may not, however, exclude
entire bases of discrimination from ADR programs. For example, it would
be inappropriate for an agency to exclude from its ADR program all
claims alleging race discrimination.
In response to a comment, the Commission has revised the regulatory
provision governing the initial counseling session. The Commission has
removed from section 1614.105(b)(1) the requirement that Counselors
advise individuals both orally and in writing of their rights and
responsibilities, revising the section to require only that Counselors
provide that information in writing. Counselors are encouraged to
discuss the rights and responsibilities involved in the EEO process
orally with individuals, but are only required to provide that
information to the individuals in writing.
When an agency offers ADR to an individual during the pre-complaint
process, the individual may choose to participate in the ADR program at
any point in the pre-complaint process. In all cases, the Counselor
will conduct an initial counseling session, as currently provided,
identifying claims and fully informing individuals about their rights.
When ADR is selected, resolution attempts through traditional
counseling will be eliminated and the limited inquiry of the
traditional counseling will change. Counselors must also inform
individuals that if the ADR process does not result in a resolution of
the dispute, they will receive a final interview and have the right to
file a formal complaint. Management Directive 110 will contain
additional guidance on these pre-complaint procedures.
The Commission's intention in requiring an ADR program is that
agencies establish informal processes to resolve claims. Thus any
activity conducted in connection with an agency ADR program during the
EEO process would not be a formal discussion within the meaning of the
Civil Service Reform Act. Generally, the agency should have an official
at any ADR session with full authority to resolve the dispute. To the
extent consultations with other agency officials would be necessary
during any session, the agency is accountable for making sure those
consultations can be accommodated.
If the ADR attempt succeeds in resolving the claim, the agency must
notify the Counselor that the claim was resolved. If the ADR attempt is
unsuccessful, the agency must return the claim to the Counselor to
write the counseling report. That report will describe the initial
counseling session, frame the issues, and report only that ADR was
unsuccessful.
Dismissals
In the NPRM, the Commission proposed three changes to the dismissal
provision contained in section 1614.107. First, the Commission proposed
to remove the provision contained in section 1614.107(h) permitting
agencies to dismiss complaints for failure to accept a certified offer
of full relief. As explained in the preamble to the NPRM, the full
relief dismissal policy was premised on the view that adjudication of a
claim is unnecessary if the agency is willing to make the complainant
whole. The regulatory process, however, has been criticized because
complainants are placed in the position of risking dismissal of their
complaints if they do not believe the offer of their opposing party is
an offer of full relief. If a complainant makes the wrong assessment of
the offer and EEOC decides on appeal that the agency did offer full
relief, the complainant is precluded from proceeding with the complaint
or from accepting the offer. In addition, difficulties assessing what
constitutes full relief increased when, as a result of the Civil Rights
Act of 1991, damages became available to federal employees. The
Commission found that offers of full relief must address compensatory
damages, where appropriate. Jackson v. USPS, Appeal No. 01923399
(1992); Request No. 05930306 (1993). Unless the agency offers the full
amount of damages permitted under the statutory caps in the law, it is
virtually impossible for the complainant to assess whether the agency
has offered full relief.
The non-agency commenters uniformly supported the proposal to
eliminate the full relief dismissal provision. Agency comments were
mixed with nearly as many agencies supporting the change as opposing
it. For the foregoing reasons, the Commission has decided to remove the
failure to accept a certified offer of full relief dismissal basis from
the regulations. At the same time, the Commission is retaining the
provision from the NPRM that permits agencies to make an offer of
resolution in a case. This offer of resolution is similar, but not
identical, to the procedure under Rule 68 of the Federal Rules of Civil
Procedure for an offer of judgment, and is discussed in greater detail
below.
In the NPRM, EEOC proposed to add two dismissal provisions to
section 1614.107. One of the new provisions will require dismissal of
complaints that allege dissatisfaction with the processing of a
previously filed complaint (spin-off complaints). As was explained in
the NPRM, EEOC's regulations at 29 CFR Part 1613, which were superseded
by 29 CFR Part 1614 in 1992, expressly permitted complainants to file
separate complaints alleging dissatisfaction with agencies' processing
of their original complaints. 29 CFR 1613.262 (1991). The procedure
resulted in the filing of multiple spin-off complaints. The Commission
recognized the need to limit these complaints, and did not include the
Part 1613 provision in Part 1614. Guidance was provided in Management
Directive 110. Spin-off complaints continued to be filed, however,
despite there being no provision in either the regulations or the
management directive permitting the filing of a separate complaint on
this issue.
The comments on the proposal to add a dismissal provision for spin-
off complaints fell into three categories. Agencies favored the
addition. Some individual federal employees and attorneys opposed the
dismissal provision and others encouraged EEOC to provide detailed
guidance in Management Directive 110 on how to handle spin-off
allegations outside of the EEO process.
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The Commission continues to believe that any alleged unfairness or
discrimination in the processing of a complaint can--and must--be
raised during the processing of the underlying complaint and there is
ample authority to deal with such allegations in that process. The
spin-off allegations are so closely related to the underlying complaint
that a separate complaint would result in redundancy, duplication of
time and waste of resources. Such allegations need to be addressed
within the over-all context of the initial complaint while that
complaint is still pending. The Commission has decided to add the
provision requiring dismissal of spin-off complaints to ensure that a
balance is maintained between fair and nondiscriminatory agency
processing of complaints and the need to eliminate the multiple filing
of burdensome complaints about the manner in which an original
complaint was processed.
In conjunction with this regulatory change, the Commission will
issue detailed companion guidance in Management Directive 110
addressing the procedures to be followed to resolve allegations of
dissatisfaction with the complaints process quickly and effectively.
Individuals who are dissatisfied with the processing of a complaint
will be advised to bring this dissatisfaction to the attention of the
official responsible for the complaint, whether it be an investigator,
the agency EEO manager, an EEOC administrative judge, or the
Commission's Office of Federal Operations on appeal. The allegation of
dissatisfaction, and any appropriate evidence, will then be considered
during the processing of the existing complaint by the individuals
responsible for that step of the process, who will be required to take
appropriate action. If any official throughout the process becomes
aware of a systemic problem of discriminatory complaint processing,
that official may refer the matter to the Complaints Adjudication
Division of the Office of Federal Operations at EEOC.
Proper handling of spin-off allegations is important because such
allegations involve the overall quality of the complaints process and
implicate the resources devoted to those allegations. The procedures in
the Management Directive will ensure that any evidence of
discriminatory or improper handling will be considered as part of the
claim before the agency or Commission without unnecessarily adding
complaints to the system. When an individual presents a counselor, an
agency official, or the Commission with a spin-off allegation, the
complainant shall be advised where and how to have the allegation of
dissatisfaction made part of the existing complaint record. The
Commission believes that agency and Commission resources should not be
used to process the allegation as a separate complaint because many of
these allegations involve evidentiary matters or disagreements with
agency decisions made in the processing of the underlying complaint.
Counselors, investigators and agency officials are required to note
these allegations of dissatisfaction in the complaint record so that
reviewing entities can ensure that the allegation was properly
addressed. As a result, individuals who file separate complaints will
have such complaints dismissed by the agency or by the Commission. The
Commission has decided to delegate appellate decision-making authority
for appeals from dismissals of spin-off complaints to the Office of
Federal Operations to ensure expeditious handling of any such appeals.
The second new dismissal provision proposed by the Commission in
the NPRM provides for dismissal of complaints through strict
application of the criteria set forth in Commission decisions where
there is a clear pattern of abuse of the EEO process. The proposed
section would codify the Commission's decisions in Buren v. USPS,
Request No. 05850299 (1985), and subsequent cases, in which the
Commission has defined ``abuse of process'' as a clear pattern of
misuse of the EEO process for ends other than those that it was
designed to accomplish. The Commission has stated that it has the
inherent power to control and prevent abuse of its processes, orders,
or procedures.
Comments from agencies generally supported the proposal to add
abuse of process as a basis for dismissal, while non-agency commenters
opposed it or, while supporting its purpose, expressed concern that
agencies would invoke this authority too frequently based arbitrarily
on the number of complaints filed by an individual. Several commenters,
including agencies and individuals, suggested the criteria for
dismissal be clearly set forth in the regulation. A few agencies
thought the criteria should be expanded beyond those set forth in the
Commission's decisions and that the Commission should provide for
sanctions for complainants who abuse the process. Some non-agency
commenters maintained that only administrative judges should have the
authority to dismiss complaints for abuse of process because agencies
will abuse their discretion under this provision.
The Commission has decided to include this dismissal provision in
its regulation with additional language defining abuse of process as
``a clear pattern of misuse of the EEO process for a purpose other than
the prevention and elimination of employment discrimination'' and
setting forth the factors found in Commission decisions. The Commission
reiterates that dismissing complaints for abuse of process should be
done only on rare occasions because of the strong policy in favor of
preserving complainants' EEO rights whenever possible. Kleinman v.
Postmaster General, Request No. 05940579 (1994). Evaluating complaints
for dismissal for abuse of process requires careful deliberation and
application of strict criteria. Agencies must analyze whether a
complainant's behavior evidences an ulterior purpose to abuse the EEO
process. Improper purposes would include circumventing other
administrative processes such as the labor-management dispute process;
retaliating against the agency's in-house administrative machinery; or
overburdening the EEO complaint system, which is designed to protect
individuals from discriminatory practices. Hooks v. USPS, Appeal No.
01953852 (1995). Evidence of numerous complaint filings, in and of
itself, is an insufficient basis for making a finding of abuse of
process. Id. However, as stated in the regulation, evidence of multiple
complaint filings combined with the subject matter of the complaints
(such as frivolous, similar or identical allegations; lack of
specificity in the allegations; and allegations involving matters
previously resolved) may be considered in determining whether a
complainant has engaged in a pattern of abuse of the EEO process. See
Goatcher v. USPS, Request No. 05950557 (1996).
The Commission will require strict adherence to these criteria.
With respect to the argument that only administrative judges should
have the authority to dismiss complaints for abuse of process, the
Commission sees no reason to treat this basis for dismissal differently
than the others listed in section 1614.107 by disallowing it to
agencies. The Commission believes that review by the Commission on
appeal will fully safeguard complainants against arbitrary or unjust
dismissals.
The Commission believes that the new dismissal provisions for spin-
off complaints and abuse of process will improve the efficiency and
effectiveness of the EEO process. In addition, dealing summarily with
abuse of process complaints will make the process fairer both for
agencies that must process
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complaints and for complainants who raise bona fide allegations by
focusing resources on bona fide allegations.
Partial Dismissals
In the NPRM, the Commission proposed changes to the regulations to
eliminate interlocutory appeals of partial dismissals of complaints.
Currently, where an agency dismisses part of a complaint, but not the
entire complaint, the complainant has the right to immediately appeal
the partial dismissal to EEOC. The Commission provided for
interlocutory appeals of partial dismissals in Part 1614, hoping to
streamline the process and avoid holding two or more hearings on the
same complaint. Multiple hearings could have occurred absent an
interlocutory appeal when EEOC reversed an agency's partial dismissal
after a hearing was held on the rest of the complaint. The Commission
believes that this result can be accomplished without the unintended
delays or fragmentation of complaints that may have resulted from
implementation of the current provision. The Commission proposed to
amend section 1614.401 to remove the right to immediately appeal the
dismissal of a portion of a complaint. In addition, the Commission
proposed to add a paragraph to the dismissals section, section
1614.107, explaining how to process complaints where a portion of the
complaint, but not the entire complaint, meets one or more of the
standards for dismissal contained in that section.
Comments on eliminating interlocutory appeals for partial
dismissals were mixed. Many commenters, agencies and others, supported
the proposal believing that it will simplify the process. The
commenters who opposed the change expressed concerns that there will be
no investigatory record of the portion of a complaint dismissed by an
agency but reinstated by the administrative judge or the Office of
Federal Operations. Some agencies questioned how the administrative
judge will be able to evaluate a partial dismissal if there is no
record on that part of the complaint.
The Commission believes that eliminating interlocutory appeals of
partial dismissals will result in a more efficient complaint process
and will help avoid fragmentation of complaints. The Commission has
decided, therefore, to finalize the proposals without change. The
concerns raised by some of the commenters are addressed by the
procedure contained in new section 1614.107(b). If an agency determines
that a portion of a complaint, but not all of the complaint, meets one
or more of the standards for dismissal contained in section
1614.107(a), the agency must document the file with its reasons for
believing that the portion of the complaint meets the standards for
dismissal. Accordingly, the agency must fully explain its reasons for
dismissing that portion of the complaint, and, if appropriate, include
any evidence or documents necessary to support that conclusion. The
agency's rationale and any record supporting that rationale must be
sufficiently developed for an administrative judge or the Office of
Federal Operations to evaluate the appropriateness of the partial
dismissal without further investigation or inquiry. The agency will
then investigate the remainder of the complaint.
If the complainant requests a hearing, the administrative judge
will, as soon as practicable, evaluate the reasons given by the agency
for believing a portion of the complaint meets the standards for
dismissal. If the administrative judge believes that the agency's
reasons are not well taken, the entire complaint or all of the portions
not meeting the standards for dismissal will continue in the hearing
process. Where a portion of a complaint is reinstated in the hearing
process and the investigatory record from the agency is incomplete as
to the portion the agency dismissed, the administrative judge will
oversee supplementation of the record by discovery or any other
appropriate method. Administrative judges will no longer remand
complaints or portions of complaints for supplemental investigations by
the agency, but will ensure that the record is sufficiently developed
during the hearing process.
The administrative judge's decision on the partial dismissal will
become part of the decision on the complaint. Where a complainant
requests a final decision from the agency without a hearing, the agency
will issue a decision addressing all claims in the complaint, including
its rationale for dismissing claims, if any, and its findings on the
merits of the remainder of the complaint. The complainant may appeal
the agency's final action, including any partial dismissals, to the
EEOC. If the Office of Federal Operations finds that a dismissal was
improper, it will give the complainant the choice between a hearing and
an agency final decision on the claim.
Offer of Resolution
The Commission proposed to add this provision, limiting attorney
fees and costs when a complainant rejects an offer and subsequently
obtains less relief, in place of the dismissal for failure to accept
full relief. The purpose of the offer of resolution is to provide
incentive to settle complaints and to conserve resources where
settlement should reasonably occur. Some commenters preferred the full
relief dismissal to the proposed offer of resolution. Two stated that
the relief offered should be compared to the relief obtained, rather
than to the decision obtained, in order to determine which is more
favorable. A few commenters asked for clarification of what the offer
must contain, for example, suggesting that it must contain attorney's
fees. Several commenters raised concerns that a complainant might not
have enough information to judge whether the offer is reasonable or may
not fully appreciate the significance of the offer if the offer is made
early in the process. Others questioned how non-monetary remedies would
be evaluated for determining whether the relief awarded was more
favorable than that offered. Some commenters objected that the
``interest of justice'' exception was too vague; some asked that it be
defined in the regulation while others suggested that it be deleted for
that reason. Finally, several commenters believed the proposed
provision was a good alternative to the dismissal for failure to accept
full relief.
After considering these comments, the Commission has decided that
the offer of resolution is an appropriate alternative to and preferable
to the dismissal for failure to accept full relief, but has made
several changes to the provision to address the commenters' concerns.
Simply to clarify, we have revised the provision so that the relief
offered is compared with the final relief obtained rather than with the
decision when determining which is more favorable. That formulation is
more practicable and expresses the Commission's original intent. We
have also added a sentence stating that the agency's offer, to be
effective, must include attorney's fees and costs that have been
incurred and must specify any non-monetary relief. With regard to
monetary relief, an agency may make a lump sum offer or it may itemize
the amounts and types of monetary relief being offered.
We have revised the offer of resolution provision to include a two-
tiered approach. An offer of resolution can be made to a complainant
who is represented by an attorney at any time from the filing of a
formal complaint until 30 days before a hearing. If, however, the
complainant is not represented by an attorney, an offer cannot be made
before the parties have received notice that an administrative
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judge has been assigned. We will include model language in the
Management Directive that agencies are required to include in each
offer of resolution.
We note that, when comparing the relief offered in an offer of
resolution with that actually obtained, we intended that non-monetary
as well as monetary relief would be considered. Although a comparison
of non-monetary relief may be inexact and difficult in some cases, non-
monetary relief can be significant and cannot be overlooked.
The Commission believes that equitable considerations may make it
unjust to apply the offer of resolution provision in particular cases
and, thus, the interest of justice exception is necessary to prevent
the denial of fees in those circumstances. We do not envision many
circumstances in which the interest of justice provision will apply.
One example, however, of appropriate use of the exception would be
where the complainant received an offer of resolution, but was informed
by a responsible agency official that the agency would not comply in
good faith with the offer (e.g., would unreasonably delay
implementation of the relief offered). The complainant did not accept
the offer for that reason, and then obtained less relief than was
contained in the offer of resolution. We believe that it would be
unjust to deny attorney's fees and costs in this case.
Fragmentation
In the NPRM, the Commission requested public comment on the issue
of fragmentation of complaints in the federal sector EEO process.
Specifically, the Commission asked whether regulatory changes are
necessary to correct the fragmentation problem. EEOC believes that
agencies are not properly distinguishing between factual allegations in
support of a legal claim and the legal claim itself, resulting in the
fragmentation of some claims that involve a number of different
allegations. Certain kinds of claims are especially susceptible to
fragmentation, for example, harassment claims and continuing violation
claims. Fragmentation of claims is undesirable both because it
unnecessarily multiplies complaints and can improperly render non-
meritorious otherwise valid and cognizable claims.
The Commission received some comments on the fragmentation issue.
Commenters recommended the elimination of remands by administrative
judges, the elimination of partial dismissals (see discussion above),
and the revision of the consolidation procedures in the regulation.
Commenters also suggested that EEO Counselors need more training to
recognize the difference between claims and allegations.
The Commission has revised the regulation in several places to
address the fragmentation problem. Section 1614.108(b) has been amended
to replace the phrase ``matter alleged to be discriminatory'' with the
word ``claim.'' The Commission believes that agencies may be
interpreting ``matter'' to mean something less than a claim. Where a
complainant raises a claim of retaliation or a claim involving terms
and conditions of employment, subsequent events or instances involving
the same claim should not be filed as separate complaints, but should
be treated as part of the first claim. For the same reasons, the
Commission has revised section 1614.603 to remove the word
``allegations'' and replace it with ``claims.''
The Commission is removing from the hearings section the provision
permitting administrative judges to remand issues to agencies for
counseling or other processing. The Commission intends that
administrative judges will have full responsibility for complaints
after they enter the hearing stage and should no longer remand them to
the agencies. This change and others involving hearings are discussed
more fully below.
Finally, the Commission is adding a provision permitting amendment
of complaints, and is revising the consolidation section of the
regulation. Section 1614.106 now permits complainants to amend
complaints to add issues or claims that are like or related to the
original complaint any time prior to the conclusion of the
investigation. After requesting a hearing, complainants may seek leave
from the administrative judge to amend a complaint to add issues or
claims that are like or related to the original complaint by filing a
motion to amend. The Commission has amended section 1614.606, which
governs joint processing and consolidation of complaints, to require
that agencies consolidate two or more complaints filed by the same
complainant. The current consolidation provision is permissive only.
Moreover, the current provision, the Commission believes, may serve to
discourage consolidation of complaints because it provides that the
date of the first filed complaint controls the applicable complaint
processing time frames. Under this provision, if a complainant filed a
second complaint 175 days after the first complaint, the current
regulation would provide the agency with only 5 days to investigate the
second complaint if it were consolidated with the first complaint. As
part of the revision to the consolidation section, the Commission
provides in the final rule that when a complaint has been consolidated
with an earlier filed complaint the agency must complete its
investigation within the earlier of 180 days after the filing of the
last complaint or 360 days after the filing of the original complaint,
except that a 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. If a complainant requests a hearing
on consolidated complaints prior to the agency's completion of the
investigation, the administrative judge will decide how best to insure
an appropriate record, whether by staying the hearing process for some
period of time during which the agency can finish its investigation or
by supplementation of the record through discovery or other methods
ordered by the administrative judge. When an administrative judge
becomes aware that one or more complaints in the agency process should
be consolidated with a complaint in the hearing process, the
administrative judge may consolidate all claims at the hearing stage or
hold the complaint in the hearing process until the others are ready
for hearing.
Management Directive 110 will contain additional guidance on
amendment of complaints, consolidation of complaints, and
fragmentation, including what constitutes a cognizable claim under the
employment discrimination statutes.
Hearings
The Commission proposed several changes to the hearings provisions
in the Notice of Proposed Rulemaking, the most significant being the
proposal to make administrative judge's decisions final in complaints
referred to them for hearing. The Commission received dozens of
comments on this proposal, with the majority of agency commenters
opposing it and the non-agency commenters overwhelmingly favoring it. A
number of agencies challenged EEOC's statutory authority to make
administrative judges' decisions final, arguing that section 717(c) of
Title VII requires that agencies take final action on EEO complaints
before a complainant may appeal to EEOC. In addition, an agency argued
that agency final action is required to trigger federal court suit
rights. Section 717(c) permits an individual to file a lawsuit in
federal court in four instances, including within 90 days of receipt of
notice of final
[[Page 37649]]
action. One agency suggested that EEOC could make administrative
judges' decisions final by moving the hearing process to the appellate
stage. Agencies also expressed concern about EEOC's resources,
believing that there will be an increase in requests for hearings if
administrative judges' decisions are made final. Agencies also
questioned the quality and consistency of administrative judges'
decisions in opposing the change. Several agencies complained that they
would be unable to defend themselves if administrative judges'
decisions were made final.
Several agencies, however, supported the proposal. One noted that
EEOC's statistics demonstrate a problem with the EEO process
government-wide that undermines the confidence of complainants in the
system and creates a perception of unfairness. The civil rights groups,
unions and attorneys' groups that commented on the proposal strongly
supported it and some noted that it is the most important change
proposed by EEOC in the NPRM.
The Commission has carefully considered all of the comments on this
issue. The Commission strongly believes that allowing agencies to
reject or modify an administrative judge's findings of fact and
conclusions of law and to substitute their own decision leads to an
unavoidable conflict of interest and creates a perception of unfairness
in the federal EEO system. While the Commission believes that its
interpretation of the statute regarding the Commission's authority is
correct, the Commission has decided to revise the proposal in order to
make needed improvements in the procedures while recognizing the
concerns expressed by the agencies. At the same time the Commission
will preserve the functional goal of the earlier proposal: agencies
will no longer be able to simply substitute their view of a case for
that of an independent decision-maker.
In response to comments from agencies that the Office of Federal
Operations was upholding agency decisions that reversed administrative
judge's decisions finding discrimination, we made two independent
inquiries of EEOC's information systems. The Commission had not
previously studied that information or reported it, although it had
collected it. The first inquiry showed that in 1994 and 1996, there
were 80 administrative judges' decisions favorable to complainants that
were reversed by the agency, appealed to the Office of Federal
Operations, and for which the Office of Federal Operations issued a
decision on the merits. Of those 80 decisions, EEOC upheld the
administrative judge in 53 instances and upheld the agency in 27
instances. In the second inquiry, we found that in fiscal year 1998,
there were 157 decisions by the Office of Federal Operations reviewing
administrative judges' decisions adverse to agencies. Of those
decisions, 135 (86%) affirmed the administrative judge in whole, 8 (5%)
reversed in whole or in part, and 14 (9%) modified the administrative
judge's decision. These inquiries demonstrated that the arguments made
by the agencies were not supported by the facts. EEOC upholds
administrative judges' decisions in a significant majority of all
cases.
The final rule provides that administrative judges will issue
decisions on all complaints referred to them for hearings. Agencies
will have the opportunity to 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 will notify the
complainant whether or not the agency will fully implement the decision
of the administrative judge and will contain notice of the
complainant's suit and appeal rights. If the agency's final order does
not fully implement the decision of the administrative judge, the
agency must simultaneously file an appeal of the decision with EEOC. In
this way, agencies will take final action on complaints referred to
administrative judges by issuing a final order, but they will not
introduce new evidence or write a new decision in the case. Agencies
will have an additional 20 days to file a brief in support of their
appeal.
To parallel the provision on interim relief in section 1614.502(b),
we are adding a provision requiring an agency to provide interim relief
in limited circumstances when the agency appeals. When the agency
issues a final order notifying the complainant that it will not fully
implement the administrative judge's decision, the case involves
removal, separation or suspension continuing beyond the date of the
order, and the administrative judge's decision provided for retroactive
restoration, the agency must comply with the decision to the extent of
the temporary or conditional restoration of the employee to duty status
in the position stated by the administrative judge pending the outcome
of the appeal. In response to agency comments, we have revised the
regulation to more closely track the MSPB's interim relief provision,
including a provision permitting agencies to 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. Prospective pay and benefits must be provided,
however. In addition, we have noted in the regulation that an employee
may decline an offer of interim relief, and a grant of interim relief
does not insulate a complainant from subsequent disciplinary or adverse
action for another reason. Interim relief does not apply in cases where
the complainant alleges that she or he was not retained beyond the
period of a temporary appointment which expired prior to the appeal or
that the temporary position was not converted to a permanent position.
For example, where the Census hires temporary employees and the
temporary appointment would have expired prior to the appeal, or the
employee was not converted to a career position, the interim relief
provision would not apply.
In another proposed change to the hearings process in the NPRM, we
proposed that at the end of the investigation or after 180 days,
complainants who want to request a hearing will send their requests
directly to the EEOC office instead of to the agency EEO office in
order to eliminate delays. Almost all of the commenters agreed with
this proposal. A few commenters asked that complainants be required to
notify the agency at the same time that they make the request to EEOC.
That requirement was already contained in the proposal so no change is
being made. We have made some minor changes to the provision. We added
a requirement that all requests for hearings must be in writing. The
proposal stated that EEOC would request the complaint file after it
received a request for hearing. The final rule has been revised to
state that the agency must forward the file within 15 days of the date
of receipt of the request for hearing. Since the agency will be
receiving notice directly from the complainant when a hearing is
requested, eliminating the request from EEOC and the time incident to
preparation of that letter will result in a more efficient process. If
any agency receives a request for a hearing that has not also been
submitted to EEOC, the agency should forward the request along with the
file to EEOC and should advise the complainant of its actions and of
the requirement that requests be submitted directly to EEOC.
In response to comments, the Commission has decided to revise
section 1614.109(a) to better explain the administrative judge's
responsibilities in the hearing process and to remove the current
provision permitting
[[Page 37650]]
administrative judges to remand for counseling issues that are like or
related to those issues raised in the complaint. Section 1614.109(a)
now provides that upon appointment, the administrative judge will
assume full responsibility for adjudication of the complaint, including
overseeing the development of the record. The Commission intends that
the administrative judge will take complete control of the case once a
hearing is requested. The new sentence clarifies that the agency's
authority to dismiss a complaint ceases once a hearing is requested.
Administrative judges will preside over any necessary supplementation
of the record in the hearing process without resort to remands of
complaints to agencies for additional investigations. Remands of
complaints to agencies for supplemental investigations have
proliferated, resulting in fragmentation or unwarranted delays. The
changes to the regulation will eliminate these remands and improve the
timeliness and efficiency of the complaint process.
In the NPRM, the Commission proposed to add a new section
1614.109(b) providing that administrative judges have the authority to
dismiss complaints during the hearing process for all of the reasons
contained in section 1614.107. Nearly all commenters, agencies and
others, supported this proposal. In response to comments, the
Commission has revised the regulation to provide that administrative
judges may dismiss complaints on their own initiative, after notice to
the parties, or upon an agency's motion to dismiss a complaint.
The Commission has made several minor revisions to the hearings
section of the regulations. In response to a comment, we have added a
new section (f)(1) providing that the administrative judge must serve
all orders to produce evidence on both parties. We have revised section
1614.109(i) to provide that the time frame for issuing a decision will
run from the administrative judge's receipt of the complaint file from
the agency, rather than, as currently provided, from receipt by EEOC of
a request for a hearing. In addition, the Commission has revised the
section to provide that administrative judges send the hearing record,
rather than the entire record, to the parties with the final decision.
Finally, the Commission has removed the requirement that administrative
judges send final decisions and the record to the parties by certified
mail. This will save the Commission scarce resources.
Procedures for Handling Clearly Meritless Cases
The growing inventory of cases pending at agencies, in the hearings
units and on appeal to the Commission causes delays across the board.
The problem is exacerbated by the allocation of scarce resources to
meritless cases. Many commenters representing all points of view
identified this situation as an urgent priority, and the Federal Sector
Workgroup devoted considerable attention to the problem. The Workgroup
noted the widespread concern among stakeholders that the system is
overburdened by meritless complaints and misused as a forum for
workplace disputes that do not involve EEO matters. Its Report
concluded that ``Government resources should be targeted to addressing
colorable claims of discrimination. Excessive resources devoted to non-
meritorious claims of discrimination undermines the credibility of the
process and impairs the rights of those with meritorious claims.'' The
Commission agrees.
Among the measures proposed by the Commission in its NPRM to
address this problem were two provisions to give administrative judges
additional procedures for quickly resolving complaints that are
inappropriately in the EEO process or that lack merit. First, the
Commission proposed to give administrative judges the authority to
dismiss complaints during the hearing process for all of the reasons
contained in the dismissal section, 29 CFR 1614.107, including for
failure to state a claim. As discussed above, the Commission has
included this proposed section 1614.109(b), which most commenters
supported, in its final rule.
The second proposal was a provision for decisions without a hearing
in cases that lack merit, which would have supplemented administrative
judges' existing authority to issue summary judgment decisions
currently contained in 29 CFR 1614.109(e). The Commission proposed to
add a provision, section 1614.109(g)(4), permitting administrative
judges to issue a decision without a hearing where they determine, even
though material facts remain in dispute, that there is sufficient
information in the record to decide the case, that the material facts
in dispute can be decided on the basis of the written record, that
there are no credibility issues that would require live testimony in
order to evaluate a witness' demeanor and that the case lacks merit.
Almost all non-agency commenters as well as about half of the
agency commenters opposed granting administrative judges this new
authority, arguing that there must be a hearing if material facts are
in dispute. Individual commenters and those representing civil rights
groups and unions also doubted that the administrative judge would have
sufficient information in the record to decide the case under this
procedure because the agency compiles the record and the complainant is
likely not to have had an opportunity to develop evidence. Some
suggested that complainants have won cases that may have seemed non-
meritorious when filed, based on discovery and live testimony at the
hearing. Several agency commenters believed the procedure would also
adversely affect agencies by leading to erroneous decisions based on
incomplete evidence. Agencies also thought it was unclear and difficult
to distinguish from traditional summary judgment. A number of agency
commenters supported the proposal as an appropriate way to streamline
the process and deal with the increasing workload. When the
investigatory record is complete, they argued, a hearing may waste
resources and cause agency employees to be absent from work when their
testimony is not really necessary.
The Commission has decided that it is not necessary to add this
provision at this time. We believe that the problem of meritless
complaints can be addressed through appropriate application of the
failure to state a claim dismissal basis and the traditional summary
judgment provision. Dismissal for failure to state a claim is
appropriate when a complaint alleges conduct that does not rise to the
level of a violation of the anti-discrimination statutes. Summary
judgment under section 1614.109(e) is appropriate for complaints that
state a claim but that involve no genuine dispute over material facts.
Continued processing of cases that should have been dismissed for
failure to state a claim or decided on summary judgment contributes to
the growing inventory and the perception that the system gives too much
consideration to trivial matters. Such cases should be resolved more
quickly at earlier stages in the process using existing legal
standards. The Commission summarizes these standards below and intends
to provide more detailed guidance in Management Directive 110.
Dismissal for Failure to State a Claim: Existing section
1614.107(a) requires that agencies dismiss a complaint that fails to
state a claim under section 1614.103. Under the new section
1614.109(b), administrative judges may dismiss complaints for the same
reasons
[[Page 37651]]
as contained in section 1614.107. In determining whether a complaint
states a claim, the proper inquiry is whether the conduct as alleged
would constitute an unlawful employment practice under the EEO
statutes. Cobb v. Department of the Treasury, Request No. 05970007
(March 13, 1997). See Burlington Industries, Inc. v. Ellerth, 118 S.
Ct. 2257, 2268-9 (1998)(referencing cases in which courts of appeals
considered whether various employment actions were sufficient to state
a claim under the civil rights laws).
When a complainant does not challenge agency action or inaction
with respect to an employment decision or a specific term, condition or
privilege of employment, but alleges a hostile and discriminatory
working environment, the severity of the alleged conduct must be
evaluated to determine whether the complaint is actionable under the
statutes. As the Supreme Court has stated, ``Conduct that is not severe
or pervasive enough to create an objectively hostile or abusive work
environment--an environment that a reasonable person would find hostile
or abusive--is beyond Title VII's purview.'' Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21-22 (1993); see Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986).
In Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the
Court reemphasized that conduct must rise above a certain minimum level
to be actionable: `` `[S]imple teasing,' * * * offhand comments, and
isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the `terms and conditions of employment.' ''
118 S. Ct. at 2283 (citations omitted). To determine whether an
environment is sufficiently hostile or abusive, courts must look at all
of the circumstances, including the frequency and severity of the
conduct. Id. These standards should ``ensure that Title VII does not
become a `general civility code.' * * * Properly applied, they will
filter out complaints attacking `the ordinary tribulations of the
workplace'' * * *.'' Id. at 2283-84 (citations omitted).
The Commission also has repeatedly stated that isolated comments,
petty slights, and trivial annoyances are not actionable. See EEOC
Compliance Manual Section 8, ``Retaliation,'' No. 915.003 (May 20,
1998) at 8-13; EEOC Policy Guidance on Current Issues of Sexual
Harassment, No. N-915.050 (March 19, 1990) at 14; EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., No. 915.002 (March 8,
1994) at 6 n.4; see also, e.g., Cobb v. Department of the Treasury,
supra.; Moore v. United States Postal Service, Appeal No. 01950134
(April 17, 1997); Backo v. United States Postal Service, Request No.
05960227 (June 10, 1996); Phillips v. Department of Veterans Affairs,
Request No. 05960030 (July 12, 1996); Miller v. United States Postal
Service, Request No. 05941016 (June 2, 1995); Banks v. Department of
Health and Human Services, Request No. 05940481 (February 16, 1995) .
However, a persistent pattern of harassing conduct or a particularly
severe individual incident, when viewed in light of the work
environment as a whole, may constitute a hostile environment. See,
e.g., Brooks v. Department of the Navy, EEOC Request No. 05950484 (June
25, 1996).
The Commission cautions that before dismissing a complaint the
administrative judge must ensure that the claim has not been fragmented
inappropriately into more than one complaint. As discussed above under
the heading ``Fragmentation,'' a series of subsequent events or
instances involving the same claim should not be treated as separate
complaints, but should be added to and treated as part of the first
claim.
Summary Judgment: The problem identified by the Workgroup can also
be addressed through more effective use of the existing summary
judgment authority. Summary judgment is proper when ``material facts
are not in genuine dispute.'' 29 CFR 1614.109(e). Only a dispute over
facts that are truly material to the outcome of the case should
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (only disputes over facts that might affect the outcome
of the suit under the governing law, and not irrelevant or unnecessary
factual disputes, will preclude the entry of summary judgment). For
example, when a complainant is unable to set forth facts necessary to
establish one essential element of a prima facie case, a dispute over
facts necessary to prove another element of the case would not be
material to the outcome. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).
Moreover, a mere recitation that there is a factual dispute is
insufficient. The party opposing summary judgment must identify the
disputed facts in the record with specificity and demonstrate that
there is a dispute by producing affidavits or records that tend to
disprove the facts asserted by the moving party. In addition, the non-
moving party must explain how the facts in dispute are material under
the legal principles applicable to the case. 29 CFR 1614.109(e)(2);
Anderson, 477 U.S. at 257; Celotex, 477 U.S. at 322-24; Patton v.
Postmaster General, Request No. 05930055 (1993) (summary judgment
proper where appellant made only a general pleading that his job
performance was good but set forth no specific facts regarding his
performance and identified no specific inadequacies in the
investigation).
Class Complaints
The Federal Sector Workgroup identified a series of concerns with
the class complaint process. It found that despite studies indicating
that class-based discrimination may continue to exist in the federal
government, recent data reflect that very few class complaints are
filed or certified at the administrative level. While an effective
administrative process for class complaints offers several important
advantages over litigation in federal court, including informality,
lower cost, and speed of resolution, the Workgroup found that the
current process does not adequately address class-based discrimination
in the federal government. As a result, complainants often have elected
to pursue their complaints in federal court.
Class actions play a particularly vital role in the enforcement of
the equal employment laws. They are an essential mechanism for
attacking broad patterns of workplace discrimination and providing
relief to victims of discriminatory policies or systemic practices. The
courts have long recognized that class actions ``are powerful stimuli
to enforce Title VII,'' providing for the ``removal of artificial,
arbitrary, and unnecessary barriers to employment when the barriers
operate invidiously to discriminate on the basis of racial or other
impermissible classification.'' Wetzel v. Liberty Mutual Ins. Co., 508
F.2d 239, 254 (3d Cir.), cert. denied, 421 U.S. 1011 (1975). The class
action device exists, in large part, to vindicate the interests of
civil rights plaintiffs. See 5 James W. Moore, Moore's Federal Practice
Sec. 23.43[1][a], at 23-191 (3d ed. 1997).
These same policies apply with equal force in the federal sector.
Accordingly, the Commission is making several changes in its regulation
to strengthen the class complaint process. The purpose of these changes
is to ensure that complaints raising class issues are not unjustifiably
denied class certification in the administrative process and that class
cases are resolved under appropriate legal standards consistent with
the principles applied by federal courts.
In the NPRM, the Commission proposed four regulatory changes to the
class complaint procedures found at 29
[[Page 37652]]
CFR 1614.204. The Commission proposed to revise section 1614.204(b) to
provide that a complainant may move for class certification at any
reasonable point in the process when it becomes apparent that there are
class implications raised in an individual complaint. If a complainant
moves for class certification after completing counseling, the
complainant will not be required to return to the counseling stage.
Individual commenters and those representing civil rights groups
uniformly endorsed the proposed change. Some agency commenters
supported the change but asked that the regulation define ``reasonable
point in the process''; some suggested that this point be during the
investigation or within a short time after distribution of the agency
investigative file, rather than during discovery. Other agencies
opposed the change, arguing that it would entail additional
investigative costs, cause delays and invite abuse by complainants
seeking to bypass the counseling process by making frivolous class
allegations. They maintained that a complainant should have to elect
between a class or an individual claim at the pre-complaint stage. If a
complainant can move for class certification on the eve of hearing,
they argued, the agency would be required to put the individual
complaint on hold and start its investigation all over again as a class
case. Others objected only to eliminating counseling, as that is how
the complainant is informed of his or her rights and responsibilities
as class agent.
The Commission believes that this revision is an important step
toward removing unnecessary barriers to class certification of
complaints that are properly of a class nature. The Commission has
consistently recognized that its decisions on class certification must
be guided by the complainant's lack of access to pre-certification
discovery on class issues; this is different from the situation of a
federal court Rule 23 plaintiff who does have access to pre-
certification discovery on class issues. Similarly, an individual
complainant often will not have reason to know at the counseling stage,
and sometimes even after the agency's investigation, that the
challenged action actually reflects an agency policy or practice
generally applicable to a class of similarly situated individuals.
Because of the importance of discovery, the Commission has decided
not to place the restrictions suggested by some of the commenters on
the time at which a complainant may seek class certification. The
Commission intends that ``reasonable point in the process'' be
interpreted to allow a complainant to seek class certification when he
or she knows or suspects that the complaint has class implications,
i.e., it potentially involves questions of law or fact common to a
class and is typical of the claims of a class. Normally, this point
will be no later than the end of discovery at the hearing stage. The
complainant must seek class certification within a reasonable time
after the class nature of the case becomes apparent. The administrative
judge will deny class certification if the complainant has unduly
delayed in moving for certification. In response to the comments, the
Commission has added language to this effect in the regulation. The
Commission disagrees with those commenters who advocated returning the
complaint for additional counseling. It will be the responsibility of
the agency or administrative judge, as appropriate, to ensure that the
class agent is advised of his or her obligations at the time the
complainant moves for certification. The Commission believes it is
impracticable and unproductive to require the complainant to return to
counseling at this stage.
A request for class certification made after the filing of an
individual complaint but before the issuance of the notice required by
section 1614.108(f) will be forwarded to an EEOC administrative judge
for a decision on whether to accept or dismiss a class complaint. The
administrative judge's decision will be appealable to the Office of
Federal Operations. The filing of an appeal will not stay further
proceedings, although either party may request that the administrative
judge stay the administrative process pending a decision on appeal.
The Commission proposed in the Notice of Proposed Rulemaking to
amend section 1614.204(d) to provide that administrative judges would
issue final decisions on whether a class complaint will be accepted (or
certified) or dismissed. Currently, administrative judges make
recommendations to agencies on acceptance or dismissal. For the same
reasons noted in the discussion of administrative judges' decisions
above, the Commission has decided to provide that administrative judges
will issue decisions to accept or dismiss class complaints, and
agencies will take final action by issuing a final order, and,
simultaneously appealing the decision to EEOC if the final order does
not fully implement the decision of the administrative judge. Some
agency commenters said they supported making certification decisions
final only if the agency is given the right to an interlocutory appeal.
That was the Commission's intent. The Commission has revised current
section 1614.401(b) (redesignated section 1614.401(c)), which sets
forth appeal rights in all the situations that might arise in class
cases, to include agency interlocutory appeals from administrative
judges' certification decisions.
In the proposed rule, the Commission proposed to amend section
1614.204(g)(2) to require that administrative judges must approve class
settlement agreements pursuant to the ``fair and reasonable'' standard,
even when no class member has asserted an objection to the settlement.
Some agency commenters supported this proposal while most others
disagreed, arguing that it would add an unnecessary layer of review
when the parties are satisfied with the settlement and that adequate
safeguards exist in section 1614.204(g)(4), which gives dissatisfied
class members the right to petition to vacate a settlement, and
1614.204(a)(2), which requires the class agent to fairly and adequately
represent the class.
Because it believes that the administrative judge's approval of
settlements in all cases is the best way to protect the interests of
the class, the Commission has decided to add this proposal to its
regulation. As one agency commenter noted, class agents sometimes seek
to settle their individual claims without full regard for the interests
of the class. The change makes the regulations consistent with the
practice in federal courts where the court must approve any settlement
of a class case under a fair and reasonable standard. Thus, the same
standard applies whether or not any petitions to vacate the resolution
have been filed. In response to the suggestion of one agency, the
Commission has elaborated upon the standard by revising the regulation
to follow the language used by the Court of Appeals for the District of
Columbia Circuit in Thomas v. Albright, 139 F.3d 227, 233 (1998), which
held that to approve a settlement under Rule 23, a district court must
find that it is ``fair, adequate, and reasonable to the class as a
whole.'' The court is to evaluate the terms of the settlement in
relation to the strength of the plaintiffs' case, and should not reject
a settlement merely because individual class members contend that they
would have received more had they prevailed after a trial. 139 F.3d at
231, 232. See also Manual for Complex Litigation (Third) (1995)
Secs. 30.41-.42.
The Commission also has made additional revisions to the procedures
for notice and approval of settlements contained in section
1614.204(g)(4) to
[[Page 37653]]
reflect the changes in the administrative judge's authority. Currently,
any member of the class who is dissatisfied may petition the agency EEO
Director to vacate the resolution because it benefits only the class
agent or is otherwise not fair and reasonable. The administrative judge
issues a recommended decision, and the agency makes the final decision
whether to vacate the resolution. 29 CFR 1614.204(g)(4). In the new
section 1614.204(g)(4), a class member may petition the administrative
judge to vacate the resolution. The administrative judge reviews the
notice of resolution and considers any petitions filed. The
administrative judge must issue a decision vacating or approving the
settlement on the basis of whether it is fair, adequate and reasonable
to the class as a whole. A decision to vacate a settlement, as well as
a decision to approve settlement over the objections of petitioning
class members, is appealable to the Office of Federal Operations.
Finally, the Commission proposed to amend section 1614.204(l)(3) in
the proposed rule to clarify the burdens of proof applicable to
individual class members who believe they are entitled to relief. The
change makes explicit that the burdens enunciated in Teamsters v.
United States, 431 U.S. 324 (1977), and subsequent lower court
decisions apply. In Teamsters, the Court stated that where a finding of
discrimination has been made, there is a presumption of discrimination
as to every individual who can show he or she is a member of the class
and was affected by the discrimination during the relevant period of
time. 431 U.S. at 361-62. Lower courts have held that this presumption
may be rebutted only by clear and convincing evidence that the class
member is not entitled to relief. See McKenzie v. Sawyer, 684 F.2d 62,
77-78 (D.C. Cir. 1982); Trout v. Lehman, 702 F.2d 1094, 1107 (D.C. Cir.
1983), vacated on other grounds, 465 U.S. 1056 (1984); United States v.
City of Chicago, 853 F.2d 572, 575 (7th Cir. 1988); Cox v. American
Cast Iron Pipe Co., 784 F.2d 1546, 1559 (11th Cir.), cert. denied, 479
U.S. 883 (1986); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437,
444-45 (5th Cir.), cert. denied, 419 U.S. 1033 (1974); Reynolds v.
Alabama Department of Transportation, 996 F. Supp. 1156, 1195 (N.D.
Ala. 1998). Other courts, however, have held that the standard is
preponderance of the evidence. See Wooldridge v. Marlene Indus. Corp.,
875 F.2d 540, 549 (6th Cir. 1989); Craik v. Minnesota State Univ. Bd.,
731 F.2d 465, 470 n.8 (8th Cir. 1984); Sledge v. J.P. Stevens & Co.,
Inc., 585 F.2d 625, 637 (4th Cir. 1978); Richerson v. Jones, 551 F.2d
918, 923-25 (3d Cir. 1977).
Comments on this provision were divided, with non-agency commenters
uniformly endorsing it and most agency commenters objecting that
``clear and convincing'' was too high a standard, inappropriate for a
class case, and a misreading of Teamsters. The objecting commenters
wanted the standard to be preponderance of the evidence.
The Commission has decided to retain the ``clear and convincing''
standard and emphasizes that this regulatory revision merely codifies
the longstanding rule in the federal sector, see McKenzie v. Sawyer,
supra. In 1992, when the Commission first issued its Part 1614
regulation, we considered the burden of proof issue with respect to
relief when discrimination has been found. The Commission determined at
that time that no change was required to its requirement, included in
the predecessor Part 1613 regulation and in the new section 1614.501,
that relief should be provided to an individual when discrimination is
found unless clear and convincing evidence indicates that the personnel
action at issue would have been taken even absent discrimination. See
57 Fed. Reg. 12634, 12641 (April 10, 1992); 29 CFR 1614.501. The
Commission concluded that the Supreme Court's decision in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that an employer
could avoid liability in a mixed motive case under a preponderance of
the evidence standard, did not require a change in the regulation. As
we then noted, the Hopkins decision cited and distinguished the
Commission's Part 1613 regulation on the basis that it relates to proof
at the relief stage rather than the liability stage. 490 U.S. at 253-
54. The Commission further noted that the relief provision in the
regulation ``will be applied most often to determining whether class
members are entitled to individual relief after a class finding of
discrimination, but it is also applicable to individual cases where
there has been a finding of discrimination.'' 57 FR at 12641.
The Commission is now making this presumption explicit in its
revised class regulation. The Commission believes that requiring proof
at the ``clear and convincing'' level when the agency has been found to
have engaged in classwide discrimination furthers the remedial and
deterrent purposes of the statutes. ``By making it more difficult for
employers to defeat successful plaintiffs'' claims to retroactive
relief, the higher standard of proof may well discourage unlawful
conduct by employers. . . . In addition, the higher standard of proof
is justified by the consideration that the employer is a wrongdoer
whose unlawful conduct has made it difficult for the plaintiff to show
what would have occurred in the absence of that conduct.'' Toney v.
Block, 705 F.2d 1364,1373 (D.C. Cir. 1983) (Tamm, J., concurring); see
also Teamsters, 341 U.S. at 359 n.45, 372.
Thus, agencies are required to show by clear and convincing
evidence that any class member is not entitled to relief, as is
provided currently in sections 1614.501(b) and (c). To be presumptively
entitled to relief, the class member first must have filed a written
claim pursuant to section 1614.204(l)(3) making a specific, detailed
showing that the claimant is a class member who was affected by the
discriminatory policy or practice, and that the discriminatory action
took place within the period of time for which class-wide
discrimination was found. To reflect the administrative judge's new
role and to provide a procedure for resolving issues related to
individual relief, the Commission additionally has revised section
1614.204(l)(3) to state that the administrative judge may hold a
hearing or otherwise supplement the record on a claim filed by a class
member.
In response to a comment, we have clarified that the agency or the
Commission may find classwide discrimination, and provide a remedy, for
any policy or practice in existence within 45 days of the class agent's
initial contact with the counselor. We also note, as we stated when
Part 1614 was promulgated in 1992, that the 45-day time limit in
section 204(l)(3) defining the period for which class-wide
discrimination can be found is not intended to limit the two-year time
period for which back pay can be recovered by a class member. See 57 FR
12634, 12644 (April 10, 1992); 29 CFR 1614.204(l)(3). Under the
continuing violation theory, moreover, incidents occurring earlier than
45 days before contact with the counselor must also be remedied
provided that the initial contact with the counselor was timely and the
earlier incidents were part of the same continuing policy or practice
found to have been discriminatory. That is, where contact with the
counselor is timely as to one of the events comprising the continuing
violation, then the counseling contact is timely as to the entire
violation.
Appeals
In the proposed rule, the Commission proposed two different appeal
briefing schedules, depending on the matter
[[Page 37654]]
being appealed: 30 days to file both a notice of appeal and any
statement or brief in support of the appeal from a dismissal (a
``procedural'' appeal); and 30 days to file a notice of appeal and an
additional 30 days thereafter to file a brief or statement in support
of an appeal from a final decision (a ``merits'' appeal). Those who
commented on this section were nearly unanimous that this distinction
was confusing and that there should be a single briefing schedule. The
Commission has revised the regulation to provide that a complainant
must file an appeal within 30 days of receipt of the agency dismissal
or final action, and any supporting statement or brief shall be filed
within 30 days of the filing of the notice of appeal. In cases where
there has been a decision by an administrative judge, agencies must
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. If the final order does not fully implement the
administrative judge's decision, agencies must simultaneously file an
appeal with the EEOC. They have an additional 20 days to file a brief
in support of that appeal. The final regulation also provides that
briefs or statements in support of an appeal and papers filed in
opposition to an appeal can be filed by facsimile, provided that they
are no more than 10 pages in length. Briefs and statements longer than
10 pages must be mailed or delivered in person.
In response to the Commission's statement in the NPRM that the
Commission will strictly apply appellate time frames, a number of
commenters suggested that provision be made for extending the appellate
time limits for good cause shown. Part 1614 already provides that
regulatory time limits ``are subject to waiver, estoppel and equitable
tolling.'' 29 CFR Sec. 1614.604(c).
Most commenters agreed with the Commission's proposal that the
Office of Federal Operations be empowered to impose sanctions or
otherwise take appropriate action regarding any party who fails,
without good cause shown, to comply with appellate procedures or to
respond fully and timely to a Commission request for information. Some
commenters were concerned that this provision could unfairly impact
unrepresented complainants. To the extent an unrepresented complainant
fails to comply due to mistake, lack of knowledge, or misunderstanding,
the Commission will take such factors into consideration when
determining whether good cause has been shown.
Most commenters also agreed with the proposed appellate standards
of review --factual findings rendered by administrative judges after a
hearing will be subject to a substantial evidence standard of review;
all other decisions will be subject to a de novo review. No new
evidence will be considered on appeal unless the evidence was not
reasonably available during the hearing process. As we noted in the
preamble to the proposed rule, the substantial evidence standard does
not preclude meaningful review of factual findings. Moreover, applying
the de novo standard of review to the factual findings in
administrative judges' final decisions after hearings would be an
inefficient use of EEOC's limited resources.
Finally, the Commission proposed to revise the reconsideration
process to approximate the process used by the MSPB, reallocate some
resources to the improvement of the appellate process and discourage
automatic requests for reconsideration whenever a party loses on
appeal. Parties may still request reconsideration but it will only be
granted, in the discretion of the Commission, if the requester has
demonstrated that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or the appellate decision will
have a substantial impact on the policies, practices or operations of
the agency. The comments received were mixed. The unfavorable comments
were mostly from agencies although many other agencies favored the
change. The objectors raised the same objections discussed in the
preamble to the proposed rule. After considering all comments, we have
decided to adopt the proposed rule without change. The proposal makes
the reconsideration procedure available for those cases where the
requestor demonstrates that there are errors of fact or law that would
affect the outcomes of the cases and for those cases that will have a
substantial impact. By preserving the Commission's discretion, it also
will allow the Commission to reallocate its resources to the
improvement of the appellate process.
Attorney's Fees
In its NPRM, the Commission proposed two changes to the attorney's
fees regulatory scheme: administrative judges would be authorized to
determine the amount of the fee award, not just entitlement to the
award; and attorney's fees and costs would be available to prevailing
complainants for services rendered prior to the filing of the formal
complaint (e.g., during the counseling and ADR phases). Most commenters
were in favor of the former change. Comments were split on the latter
change; agencies were opposed and plaintiffs' attorneys and employees
were in favor of the proposal.
The commenters opposed to an administrative judge determining the
amount of attorney's fees and costs to be awarded generally were
concerned that an administrative judge would not be able to assess
adequately the reasonableness of the time spent by an attorney working
on the complaint prior to the hearing. The Commission believes that an
administrative judge is in a comparable position to a federal district
court judge in making a determination of attorney's fees. To address
this concern, though, the Commission has clarified section
1614.501(e)(2) to provide that, when a decision-making authority, that
is, an agency, an administrative judge, or the Commission, determines
that a complainant is entitled to an award of attorney's fees and
costs, the complainant's attorney shall submit a statement of fees and
costs to the decision-making authority. The agency may respond to and
comment on the statement of fees and costs. The decision-making
authority will then determine the amount of fees and costs to be
awarded. The Commission believes this procedure will best facilitate
the determination of the amount of attorney's fees and costs to be
awarded, once an entitlement to a fee award has been determined. The
Commission has also updated the discussion in the regulation on
calculating fees. Management Directive 110 will contain additional
guidance on attorney's fees.
The Commission received many comments on the second change to the
attorney's fees provisions, allowing fees for services rendered prior
to the formal complaint filing. Agencies expressed significant concern
about the proposal, arguing that the change would render the
preliminary complaint processing phase more formal and adversarial. The
decision was made to provide that agencies are not required to pay for
attorney's fees for services rendered during the pre-complaint process
unless an administrative judge issues a decision finding
discrimination, the agency issues a final order disagreeing with the
finding, and EEOC upholds the administrative judge's finding on appeal.
In addition, the agency and the complainant can agree that the agency
will pay attorney's fees for pre-complaint process representation.
These changes were made to preserve the incentive to resolve matters
during the
[[Page 37655]]
pre-complaint process and, at the same time, to create the incentive
for agencies to accept administrative judges' decisions, unless they
are clearly erroneous.
Matters of General Applicability
The Commission proposed to amend section 1614.103(b) of the
regulations to include the Public Health Service Commissioned Corps and
the National Oceanic and Atmospheric Administration Commissioned Corps
in the coverage of part 1614. As we noted in the preamble to the NPRM,
we intended these changes to clarify coverage of these employees and be
consistent with the determination of the Solicitor General, in
connection with litigation, that Commissioned Corps members are covered
by federal sector anti-discrimination statutes. Congress amended the
Public Health Service Act, however, in Public Law 103-183, and, as a
result, we have decided not to finalize the amendment to section
1614.103(b) adding the Public Health Service Commissioned Corps. We are
making final the inclusion of the National Oceanic and Atmospheric
Administration Commissioned Corps. In the final rule, the Commission is
also amending section 1614.103(b) to make the regulation consistent
with the changes made to section 717(a) by the Congressional
Accountability Act of 1995, Pub. L. 104-1, Sec. 201(c), 109 Stat. 8,
and the Workforce Investment Act of 1998, Pub. L. 105-220, Sec. 341(a),
112 Stat. 936, 1092. These Acts amended the scope of coverage of
section 717, eliminating the legislative branch and adding several
agencies. We are amending section 1614.103(b) to remove the legislative
branch from coverage and to add the Government Printing Office and the
Smithsonian Institution to Part 1614 coverage.
Some commenters suggested that the Commission adopt its private
sector charge prioritization procedures in whole or in part in the
federal sector. We are making one change to the regulation related to
those comments. The current regulation requires a full and fair
investigation of every complaint that is not dismissed. Some have
interpreted it to require the same amount of investigative effort in
each case. That interpretation is not reasonable or desirable and is
inconsistent with EEOC's private sector charge prioritization
procedures. The Commission believes that the proper scope of an
investigation should be dictated by the facts at issue and that a
cookie-cutter, one-size-fits-all approach wastes resources and
needlessly delays resolution of that complaint and all other
complaints. The investigation and the amount of effort expended should
be appropriate to determine the issues raised by the complaint. To
remedy the misconception that more is required, we have revised
sections 1614.106(e)(2) and 1614.108(b) to remove the word ``complete''
and replace with ``appropriate.'' An appropriate investigation is one
that allows a reasonable fact finder to draw conclusions as to whether
discrimination occurred.
Based on comments the Commission received pertaining to the
administrative EEO process in general, the Commission has decided to
fine-tune certain sections. In section 1614.604, which pertains to
methods of filing and the computation of time limits, the Commission is
replacing the phrase ``delivered in person'' with the word
``received.'' This change is intended to ensure that a document will be
deemed timely if it is received on or before the applicable due date
regardless of the manner in which it is transmitted or delivered.
Section 1614.605(d), pertaining to service of papers and
computation of time when a complainant has a representative, has been
modified. Under the current language, if a complainant is represented
by an attorney, correspondence is to be served only on the attorney.
The section has been revised to require all papers to be served on both
the attorney and the complainant. Dual notification currently is
required under section 1614.605(d) if the representative is a non-
attorney. For reasons of consistency, the same service rules will apply
regardless of the status of the representative. Timeframes for receipt
of materials shall be computed, however, from the time of receipt by
the attorney where the representative is an attorney.
Regulatory Procedures
Executive Order 12866
In promulgating this final rule, the Commission has adhered to the
regulatory philosophy and applicable principles of regulation set forth
in section 1 of Executive Order 12866, Regulatory Planning and Review.
This regulation has been designated as a significant regulation and
reviewed by OMB consistent with the Executive Order.
Regulatory Flexibility Act
In addition, the Commission certifies under 5 U.S.C. Sec. 605(b),
enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this
rule will not have a significant economic impact on a substantial
number of small entities, because it applies exclusively to employees
and agencies and departments of the federal government. For this
reason, a regulatory flexibility analysis is not required.
Paperwork Reduction Act
This regulation contains no information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Aged, Civil rights, Equal
employment opportunity, Government employees, Individuals with
disabilities, Religious discrimination, Sex discrimination.
For the Commission.
Ida L. Castro,
Chairwoman.
Accordingly, for the reasons set forth in the preamble, chapter XIV
of title 29 of the Code of Federal Regulations is amended as follows:
PART 1614--[AMENDED]
1. The authority citation for 29 CFR part 1614 continues to read as
follows:
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.
2. Section 1614.102 is amended by redesignating paragraphs (b)(2)
through (b)(6) as paragraphs (b)(3) through (b)(7), by adding paragraph
(b)(2) and by revising paragraph (c)(5) to read as follows:
Sec. 1614.102 Agency program.
* * * * *
(b) * * *
(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.
* * * * *
(c) * * *
(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.
* * * * *
3. Section 1614.103 is amended by removing the word ``and'' at the
end of paragraph (b)(3), revising paragraph (b)(4), and adding
paragraphs (b)(5) through (b)(7) to read as follows:
[[Page 37656]]
Sec. 1614.103 Complaints of discrimination covered by this part.
* * * * *
(b) * * *
(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.
* * * * *
4. Section 1614.105 is amended by redesignating paragraph (b) as
paragraph (b)(1), revising the first sentence of redesignated paragraph
(b)(1), adding paragraph (b)(2), revising the first sentence of
paragraph (d) and revising paragraph (f) to read as follows:
Sec. 1614.105 Pre-complaint processing.
* * * * *
(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. * * *
(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.
* * * * *
(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.* * *
* * * * *
(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.
* * * * *
5. Section 1614.106 is amended by redesignating paragraph (d) as
paragraph (e), adding a new paragraph (d), and revising redesignated
paragraph (e) to read as follows:
Sec. 1614.106 Individual complaints.
* * * * *
(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.
6. Section 1614.107 is amended by redesignating paragraphs (a)
through (h) as paragraphs (a)(1) through (a)(8), redesignating the
introductory text as paragraph (a) introductory text and revising it,
removing the word ``or'' at the end of redesignated paragraph (a)(7),
revising redesignated paragraph (a)(8) and adding new paragraphs (a)(9)
and (b) to read as follows:
Sec. 1614.107 Dismissals of complaints.
(a) Prior to a request for a hearing in a case, the agency shall
dismiss an entire complaint:
* * * * *
(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.
7. Section 1614.108 is amended by removing the first sentence of
paragraph (b) and adding two sentences in its place, revising paragraph
(f) and adding a new paragraph (g) to read as follows:
Sec. 1614.108 Investigation of complaints.
* * * * *
(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. * * *
* * * * *
(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
[[Page 37657]]
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.
8. Section 1614.109 is amended by revising paragraph (a),
redesignating paragraphs (b) through (g) as paragraphs (d) through (i),
adding new paragraphs (b) and (c), removing the introductory text of
redesignated paragraph (f) and adding a heading, adding a sentence at
the end of redesignated paragraph (f)(1), revising the introductory
text of redesignated paragraph (f)(3), in the heading of redesignated
paragraph (g) removing the words ``Findings and conclusions'' and
adding, in their place the word ``Decisions'', in redesignated
paragraphs (g)(2) and (g)(3) removing the phrases ``findings and
conclusions'' and adding, in their place, the words ``a decision'', and
revising redesignated paragraph (i) to read as follows:
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 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.
* * * * *
(f) Procedures.
(1) * * * The administrative judge shall serve all orders to
produce evidence on both parties.
* * * * *
(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) 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.
9. Section 1614.110 is revised to read as follows:
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,
[[Page 37658]]
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.
Sec. 1614.201 [Amended]
10. Section 1614.201 is amended by removing the words ``Federal
Sector Programs, 1801 L St., NW., Washington, DC 20507'' in the second
sentence of paragraph (a) and adding the words ``at P.O. Box 19848,
Washington, DC 20036, or by personal delivery or facsimile'' in their
place, removing the words ``issued a final decision'' in paragraph
(c)(1) and adding the words ``taken final action'' in their place and
removing the words ``the issuance of a final decision'' in paragraph
(c)(2) and adding the words ``final action'' in their place.
11. Section 1614.204 is amended by revising paragraph (b), removing
the words ``recommend that the agency'' from paragraphs (d)(2), (d)(3),
(d)(4), and (d)(5), removing the word ``recommend'' and adding the word
``decide'' in its place in paragraph (d)(6), revising paragraphs
(d)(7), (e)(1), (g)(2), (g)(4), and (l)(3), and removing the word
``agency'' and adding the word ``agent'' in its place in paragraph
(j)(7), to read as follows:
Sec. 1614.204 Class complaints.
* * * * *
(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.
* * * * *
(d) * * *
(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) * * * (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.
* * * * *
(g) * * *
(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.
* * * * *
(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.
* * * * *
(l) * * *
(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
[[Page 37659]]
subpart D of this part and the applicable time limits.
Sec. 1614.302 [Amended]
12. Section 1614.302 is amended by removing the words ``5 CFR
1201.154(a)'' in paragraph (d)(1)(i) and adding the words ``5 CFR
1201.154(b)(2)'' in their place.
13. Section 1614.401 is amended by redesignating paragraphs (b)
through (d) as paragraphs (c) through (e), revising paragraph (a),
adding a new paragraph (b), and revising redesignated paragraph (c) to
read as follows:
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).
* * * * *
14. Section 1614.402 is amended by revising paragraph (a) to read
as follows:
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.
* * * * *
15. Section 1614.403 is revised to read as follows:
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.
16. Section 1614.404 is amended by adding a new paragraph (c) to
read as follows:
Sec. 1614.404 Appellate procedure.
* * * * *
(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.
17. Section 1614.405 is amended by revising the third sentence of
paragraph (a), by removing the words ``certified mail, return receipt
requested'' from the last sentence of paragraph (a) and adding the
words ``first class mail'' in their place and revising paragraph (b) to
read as follows:
Sec. 1614.405 Decisions on appeals.
(a) * * * 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. * * *
(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.
Sec. 1614.407 [Removed]
Secs. 1614.408 through 1614.410 [Redesignated as Secs. 1614.407
through 1614.409]
18. Section 1614.407 is removed and Secs. 1614.408 through 1614.410
are redesignated as Secs. 1614.407 through 1614.409.
19. Redesignated Sec. 1614.407 is amended by removing the words
``final decision'' from paragraph (a) and adding the words ``final
action'' in their place and by removing the words ``a final decision
has not been issued'' from paragraph (b) and adding the words ``final
action has not been taken'' in their place.
20. Section 1614.501 is amended by revising the last sentence of
the introductory text of paragraph (e)(1), and revising paragraphs
(e)(1)(iv) and (e)(2)(i), the first sentence of paragraph (e)(2)(ii)(A)
and paragraph (e)(2)(ii)(B) to read as follows:
Sec. 1614.501 Remedies and relief.
* * * * *
(e) Attorney's fees or costs--(1) * * * In a decision or final
action, the agency, administrative judge, or Commission may award the
applicant or employee
[[Page 37660]]
reasonable attorney's fees (including expert witness fees) and other
costs incurred in the processing of the complaint.
* * * * *
(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) * * * (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 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. * * *
(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.
* * * * *
21. Section 1614.502 is amended by revising the first sentence of
paragraph (a), revising the introductory text of paragraph (b),
revising paragraph (b)(2) and adding a new paragraph (b)(3) to read as
follows:
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. * * *
(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.
* * * * *
(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.
* * * * *
Sec. 1614.504 [Amended]
22. Section 1614.504 is amended by removing the words ``final
decisions'' from the section heading and adding the words ``final
action'' in their place, removing the words ``A final decision'' from
the second sentence of paragraph (a) and adding the words ``Final
action'' in their place, and removing the word ``final'' from the third
sentence of paragraph (a) and the second sentence of paragraph (b).
23. Section 1614.505 is added to subpart E to read as follows:
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
[[Page 37661]]
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.
Sec. 1614.603 [Amended]
24. Section 1614.603 is amended by removing the word
``allegations'' from the last sentence and adding the word ``claims''
in its place.
Sec. 1614.604 [Amended]
25. Section 1614.604 is amended by removing the words ``delivered
in person'' and adding the word ``received'' in their place in
paragraph (b).
26. Section 1614.605 is amended by revising the second sentence of
paragraph (d) to read as follows:
Sec. 1614.605 Representation and official time.
* * * * *
(d) * * * When the complainant designates an attorney as
representative, service of all official correspondence shall be made on
the attorney and the complainant, but time frames for receipt of
materials shall be computed from the time of receipt by the attorney. *
* *
* * * * *
27. Section 1614.606 is revised to read as follows:
Sec. 1614.606 Joint processing and consolidation of complaints.
Complaints of discrimination filed by two or more complainants
consisting of substantially similar allegations of discrimination or
relating to the same matter may be consolidated by the agency or the
Commission for joint processing after appropriate notification to the
parties. Two or more complaints of discrimination filed by the same
complainant shall be consolidated by the agency for joint processing
after appropriate notification to the complainant. When a complaint has
been consolidated with one or more earlier filed complaints, the agency
shall complete its investigation within the earlier of 180 days after
the filing of the last 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.
Administrative judges or the Commission may, in their discretion,
consolidate two or more complaints of discrimination filed by the same
complainant.
[FR Doc. 99-17497 Filed 7-9-99; 8:45 am]
BILLING CODE 6570-01-P
