02-1735. Delegations of Authority-Equal Employment Opportunity (EEO) Responsibilities

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document delegates to certain Department of Veterans Affairs (VA) officials authority to supervise and control the operation of the administrative Equal Employment Opportunity (EEO) Discrimination Complaint Processing System; to make procedural decisions to accept or dismiss discrimination complaints; to decide breach of settlement agreement claims; to resolve claims of dissatisfaction with the processing of previously filed discrimination complaints; to make under limited circumstances substantive final agency decisions; and take final agency action following an Equal Employment Opportunity Commission (EEOC) Administrative Judge's decision; and to monitor agency compliance with orders and decisions of the Office of Employment Discrimination Complaint Adjudication (OEDCA) and EEOC. The document also requires that any complaint filed against the Secretary or Deputy Secretary based upon personal actions or decisions by these officials as opposed to ministerial actions will be transferred to another Federal agency for processing and adjudication on a cost reimbursable basis. This document also makes changes to reflect that the Deputy Assistant Secretary for Resolution Management is responsible for coordinating activities regarding allegations of discrimination on the basis of handicap in programs and activities conducted by VA.

DATES:

Effective Date: January 24, 2002.

FOR FURTHER INFORMATION CONTACT:

James S. Jones, Deputy Assistant Secretary for Resolution Management, 202-501-2800.

SUPPLEMENTARY INFORMATION:

When the Department's EEO complaint resolution process was reorganized several years ago, a cumbersome regulation was promulgated which outlined a transitional process for the transfer of procedural decision making authority from the Office of General Counsel to the Office of Resolution Management (ORM). Since that time, the authority transfer has been completed, and there is no further need for the bifurcated authority in the regulation. It is rescinded by this document, and in its place new regulations delegate a series of authorities to manage the employment discrimination complaint resolution process; to make procedural decisions to accept or dismiss complaints; to decide claims of breach of settlement agreement; to resolve claims of dissatisfaction related to the processing of a previously filed employment discrimination complaint; to make limited substantive final agency decisions and to take final agency action following an EEOC Administrative Judge's decision; to monitor agency compliance with the orders and decisions of OEDCA and EEOC; and to transfer to another federal agency for processing and adjudication any complaints filed against the Secretary or Deputy Secretary based upon their personal actions or decisions rather than ministerial actions.

The Deputy Assistant Secretary for Resolution Management is delegated authority to supervise and control the operation of the administrative EEO discrimination complaint processing within the Department. The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and Regional EEO Officers/Field Managers are delegated authority to accept or dismiss discrimination complaints filed by employees, former employees, and applicants for employment. The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and the Chief, Policy and Compliance are also delegated authority to decide breach of settlement agreement claims, resolve claims which express dissatisfaction with the processing of a previously filed employment discrimination complaint, and to monitor agency compliance with the orders and decisions of OEDCA and EEOC.

The Director and Associate Director of OEDCA are delegated authority to make procedural decisions to accept or dismiss employment discrimination complaints filed by employees, former employees and applicants for employment that may be pending before OEDCA, where the interests of administrative complaint processing efficiency may be best served by OEDCA making such decisions. The Director and Associate Director are also delegated authority to dismiss, in whole or in part, discrimination complaints filed by employees, former employees, and applicants for employment against ORM; to decide all breach of settlement claims raised by ORM employees, former employees, or applicants for employment; to consider and resolve claims by ORM employees, former employees, and applicants for employment that express dissatisfaction with the processing of previously filed complaints; and to make procedural decisions to accept or dismiss, in whole or in part, discrimination complaints filed by employees, former employees, and applicants for employment, where ORM must recuse itself because of an actual, apparent, or potential conflict of interest.

The Chairman, Board of Contract Appeals, is delegated authority to make procedural decisions to accept or dismiss, in whole or in part, discrimination complaints filed by employees, former employees, and applicants for employment and to make substantive decisions and take final agency actions following a decision by an EEOC Administrative Judge in cases where OEDCA has recused itself due to an actual, apparent, or potential conflict of interest.

Where an EEO complaint is based upon the personal actions or decisions of the Secretary or Deputy Secretary rather than ministerial acts, the complaint will be transferred to another Federal agency for processing and adjudication on a cost reimbursement basis. This document also makes changes to reflect that the Deputy Assistant Secretary for Resolution Mangement is responsible for coordinating activities regarding allegations of discrimination on the basis of handicap in programs and activities conducted by VA.

This document is published without regard to the notice and comment and effective date provisions of 5 U.S.C. 553 since it relates to agency management and personnel.

Regulatory Flexibility Act

The Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule would affect only individuals. Accordingly, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of §§ 603 and 604.

There is no Catalog of Federal Domestic Assistance number for this final rule.

List of Subjects

38 CFR Part 2

• Authority delegations (Government agencies)

38 CFR Part 15

• Administrative practice and procedure
• Civil rights
• Equal employment opportunity
• Federal buildings and facilities
• Individuals with disabilities

Approved: January 9, 2002.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR parts 2 and 15 are amended as set forth below.

PART 2—DELEGATIONS OF AUTHORITY

1. The authority citation for part 2 continues to read as follows:

Authority: 5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729; 44 U.S.C. 3702, unless otherwise noted.

2. Section 2.6 is amended by:

A. Removing paragraph (e)(6);

B. Redesignating paragraphs (e)(7) through (e)(12) as paragraphs (e)(6) through (e)(11), respectively;

C. Adding paragraphs (h), (i), (j), and (k) immediately following the authority citation for paragraph (g).

The additions and revisions read as follows:

§ 2.6

Secretary's Delegations of Authority to Certain Officials (38 U.S.C. 512).

* * * * *

(h) Delegations to Office Resolution Management Officials (ORM). (1) The Deputy Assistant Secretary for Resolution Management is delegated authority to supervise and control the operation of the administrative EEO Discrimination Complaint Processing System within the Department.

(2) The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and all Regional EEO Officers/Field Managers are delegated authority to make procedural agency decisions to either accept or dismiss, in whole or in part, EEO discrimination complaints based upon race, color, national origin, sex, religion, age, disability, or reprisal filed by employees, former employees, or applicants for employment.

(3) The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and the Chief, Policy and Compliance are delegated authority to make agency decisions on all breach of settlement claims raised by employees, former employees, and applicants for employment.

(4) The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and the Chief, Policy and Compliance are delegated authority to consider and resolve all claims raised by employees, former employees, and applicants for employment that allege dissatisfaction with the processing of a previously filed EEO discrimination complaint.

(5) The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and the Chief, Policy and Compliance are delegated authority to monitor compliance by Department organizational components with orders and decisions of the OEDCA and the EEOC.

(i) Delegations to officials of the Office of Employment Discrimination Complaint Adjudication (OEDCA). (1) The Director and Associate Director, OEDCA, are delegated authority to make procedural decisions to dismiss, in whole or in part, any EEO discrimination complaint filed by any employee, former employee, or applicant for employment that may be pending before OEDCA, where administrative complaint processing efficiency may be best served by doing so.

(2) The Director and Associate Director, OEDCA, are delegated authority to dismiss, in whole or in part any EEO discrimination complaint based upon race, color, religion, sex, national origin, age, disability, or reprisal filed by any ORM employee, former employee, or applicant for employment.

(3) The Director and Associate Director, OEDCA, are delegated authority to make the agency decision on all breach of settlement claims raised by ORM employees, former employees, and applicants for employment.

(4) The Director and Associate Director, OEDCA, are delegated authority to consider and resolve all claims raised by ORM employees, former employees, and applicants for employment that allege dissatisfaction with the processing of a previously filed EEO discrimination complaint.

(5) The Director and Associate Director, OEDCA, are delegated authority to make procedural agency decisions to either accept or dismiss, in whole or in part, EEO discrimination complaints filed by employees, former employees, or applicants for employment where the ORM must recuse itself from a case due to an actual, apparent, or potential conflict of interest.

(j) Delegation to the Chairman, Board of Contract Appeals. In cases where OEDCA has recused itself from a case due to an actual, apparent, or potential conflict of interest, the Chairman, Board of Contract Appeals, is delegated authority to make procedural agency decisions to dismiss, in whole or in part, EEO discrimination complaints filed by agency employees, former employees, and applicants for employment; to make substantive final agency decisions where complainants do not request an EEOC hearing; and to take agency action following a decision by an EEOC Administrative Judge.

(k) Processing complaints involving certain officials. A complaint alleging that the Secretary or the Deputy Secretary personally made a decision directly related to matters in dispute, or are otherwise personally involved in such matters, will be referred for procedural acceptability review, investigation, and substantive decisionmaking to another Federal agency (e.g., The Department of Justice) pursuant to a cost reimbursement agreement. Referral will not be made when the action complained of relates merely to ministerial involvement in such matters (e.g., ministerial approval of selection recommendations submitted to the Secretary by the Under Secretary for Health, the Under Secretary for Benefits, the Under Secretary for Memorial Affairs, assistant secretaries, or staff office heads).

PART 15—ENFORCEMENT OF NON-DISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF VETERANS AFFAIRS

3. The authority citation for part 15 continues to read as follows:

Authority: 29 U.S.C. 794, unless otherwise noted.

§ 15.170

[Amended]

4. In § 15.170, paragraph (c) is amended by removing “Equal Employment Opportunity” each time it appears, and adding, in its place, “Resolution Management”.