[Federal Register Volume 59, Number 220 (Wednesday, November 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28274]
Federal Register / Vol. 59, No. 220 / Wednesday, November 16, 1994 /
[[Page Unknown]]
[Federal Register: November 16, 1994]
VOL. 59, NO. 220
Wednesday, November 16, 1994
GENERAL ACCOUNTING OFFICE
4 CFR Parts 28 and 29
Personnel Appeals Board; Procedural Regulations
AGENCY: General Accounting Office Personnel Appeals Board.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The jurisdiction of the General Accounting Office Personnel
Appeals Board has recently been expanded by the Architect of the
Capitol Human Resources Act, which became effective on July 22, 1994.
Under this new legislation, employees of the Architect of the Capitol
may file appeals with the Board alleging discrimination in employment
based on race, color, sex, national origin, religion, age, or
disability. They may also file appeals alleging retaliation for
exercising rights under the new law. The Board is issuing procedural
regulations to implement this new authority. The regulations below also
include a few conforming amendments to the procedures governing claims
filed by employees of the General Accounting Office, and a change to
the procedures for obtaining judicial review of Board decisions
necessitated by a recent decision of the United States Court of Appeals
for the District of Columbia Circuit. Because of the need to have
procedures in place to implement the Board's new jurisdiction, these
regulations are being made effective immediately, on an interim basis.
The Board is, however, very interested in receiving comments from the
public before it finalizes these regulations.
DATES: These interim regulations are effective on November 16, 1994.
Comments on these regulations must be received by the Board on or
before February 24, 1995.
ADDRESSES: Comments should be addressed to: Patricia Reardon, Clerk of
the Board, General Accounting Office Personnel Appeals Board, Suite
830, Union Center Plaza II, 441 G Street, NW., Washington, DC 20548.
FOR FURTHER INFORMATION CONTACT: Barbara Lipsky, Attorney, Personnel
Appeals Board, 202-512-6137.
SUPPLEMENTARY INFORMATION: The Architect of the Capitol Human Resources
Act, Pub. L. 103-283, sec. 312, 108 Stat. 1443, went into effect on
July 22, 1994. Under this new legislation, the Architect of the Capitol
is required to ``establish and maintain a personnel management system
that incorporates fundamental principles that exist in other modern
personnel systems.'' Id. at sec. 312(b)(2). One important part of the
Act requires that all personnel actions affecting employees of the
Architect of the Capitol be taken free from discrimination based on
race, color, religion, sex, national origin, age, or disability. Id. at
sec. 312(e)(2)(A). The Act also bans intimidation of or reprisal
against employees who exercise their rights under the Act. Id. at sec.
312(e)(2)(B). In order to ensure enforcement of these rights, the Act
authorizes employees of the Architect of the Capitol to file charges
alleging discrimination or retaliation with the General Accounting
Office Personnel Appeals Board. Id. at sec. 312(e)(3)(A).
The regulations set forth in Part 29 below provide the procedures
that will govern this new area of the Board's jurisdiction. Because the
Board needs to have procedures in place to address any charge that is
filed by an Architect of the Capitol employee, these regulations are
being made effective immediately, on an interim basis. At the same
time, however, the Board is soliciting comments on the regulations from
the Architect of the Capitol and its employees, the General Accounting
Office and its employees, and the public. These comments will be
considered fully before final regulations are adopted.
In drafting these regulations, the Board has attempted, wherever
possible, to adopt the same procedures that are applicable to cases
brought before the Board by employees of the General Accounting Office
(GAO). In the Architect of the Capitol Human Resources Act, Congress
stated that employees of the Architect of the Capitol may file a charge
with the Board ``in accordance with the General Accounting Office
Personnel Act of 1980 [GAOPA] (31 U.S.C. 751-55).'' Id. at sec.
312(e)(3)(A). The referenced sections of the GAOPA establish both the
Board and its General Counsel. The Board is authorized to hear and to
adjudicate certain personnel appeals by GAO employees, and the General
Counsel is empowered to investigate prohibited personnel practices
(including prohibited discrimination) and other matters within the
Board's jurisdiction. 31 U.S.C. 752-753. Pursuant to its authority
under 31 U.S.C. 753(d), the Board has long had published regulations
which define the role of the General Counsel and the procedures to be
followed in pursuing an appeal before the Board. See, 4 CFR Part 28.
The Board concludes that, by selecting the PAB to hear appeals from
employees of the Architect of the Capitol and by stating that such
appeals should be filed ``in accordance with'' the GAOPA, Congress
intended the Board to follow the same enforcement scheme for Architect
of the Capitol employees as it does for GAO employees.
As a result, the Board's General Counsel will play the same
important enforcement role for Architect of the Capitol employees as he
does for GAO employees. Charges of discrimination or retaliation will
initially be filed with and investigated by the Board's General
Counsel. See Sec. 29.8 below. If the General Counsel concludes that
there are reasonable grounds to believe that the employee's rights have
been violated, the General Counsel will represent the individual before
the Board, unless the individual elects not to be represented by the
General Counsel. Sec. 29.9(d). This access to professional
representation is a significant procedural benefit. The General Counsel
is not, however, a ``gatekeeper'' who can limit an employee's right to
present his or her case to the Board. If the General Counsel does not
find reasonable grounds to believe that there has been discrimination
or retaliation, the employee may still pursue the matter before the
Board on his or her own or with private counsel.
Under the procedures applicable to GAO, the Board's General Counsel
may also initiate proceedings in his or her own name before the Board
seeking corrective action, disciplinary action, or a stay of a
personnel action, where the General Counsel concludes that there is
reason to believe that a prohibited personnel practice (including
prohibited discrimination) is occurring or has occurred. See, 4 CFR
Part 28, Subpart G. The Board's General Counsel will also have this
same enforcement authority with respect to alleged discriminatory
practices within the Architect of the Capitol. See, Sec. 29.12 below.
Some other notable features of the new part 29 are summarized
below:
1. Definition of ``Employee of the Architect of the Capitol''
(Sec. 29.2): The term ``employee of the Architect of the Capitol'' is
specifically defined in the Architect of the Capitol Human Resources
Act. See, Pub. L. 103-283, sec. 312(e)(1)(A). That definition is
restated in the Board's regulations. It includes all employees of the
Architect of the Capitol, the Botanic Garden, and the Senate
restaurants. It does not include House of Representatives garage or
parking lot attendants. ``Employee'' encompasses not only current
employees, but also applicants for employment and former employees when
certain specified requirements are met. Every time the term ``employee
of the Architect of the Capitol'' or ``employee'' is used in the
regulations, it includes all the individuals covered by the definition
in Sec. 29.2.
2. Description of the Board's jurisdiction over claims of
retaliation (Sec. 29.3(b)): The Architect of the Capitol Human
Resources Act prohibits ``intimidation of, or reprisal against,'' any
employee because of the exercise of a right under the Act. See, Pub. L.
103-283, sec. 312(e)(2)(B). In order to assist employees in knowing
what actions are covered by this term, the regulation enumerates four
particular kinds of retaliation claims that may be brought before the
Board. This list is patterned after the language of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-3. Using Title
VII as a model is appropriate because the Architect of the Capitol
Human Resources Act itself refers to Title VII to provide a definition
of what constitutes unlawful discrimination. See, sec. 312(e)(2)(A).
3. Exhaustion of administrative remedies (Sec. 29.6): The Architect
of the Capitol Human Resources Act states that an employee may not file
a charge with the Board until that employee has first filed a complaint
of discrimination with the Architect of the Capitol and exhausted the
remedies provided by the Architect for the resolution of such
complaints. Public Law 103-283, sec. 312(e)(3)(A). The Board's
regulations define what constitutes exhaustion of those remedies. The
Board will consider the Architect's internal procedures to be exhausted
when either of the following occurs: (a) The employee receives a final
decision on his or her complaint; or (b) 120 days have passed without
the issuance of a final decision by the Architect. This latter
provision is important to ensure that employees have a meaningful right
to present their claims to the Board, while witness memories are still
fresh and effective relief can be fashioned. The same provision is
contained in the Board's regulations applicable to GAO employees. See,
4 CFR 28.98(b)(2). It is also comparable to the procedures followed in
the executive branch for appeals of discrimination claims. See, 5 CFR
1201.154(b)(2); 29 CFR 1614.108(f).
The Board appreciates, however, that this provision may work a
hardship for complaints that are already pending before the Architect
of the Capitol on the date that these interim regulations are adopted.
For such pending cases, it may be difficult for the Architect to issue
a decision within 120 days because it had no prior notice that the
Board would consider administrative remedies exhausted after that
point. To ameliorate this problem, the Board is adopting a special rule
applicable only to charges filed with the Board's General Counsel prior
to March 1, 1995. Such charges may still be filed with the Board's
General Counsel after the passage of 120 days if no final decision has
been issued by the Architect of the Capitol. However, once the charge
is filed, the Architect may, upon request, obtain a deferral of
proceedings on the charge for up to 60 days in order to permit the
Architect to issue a final decision on the claim. This special rule
will not apply to charges filed with the General Counsel after March 1,
1995, and will not be included in the Board's final rules.
4. Class Actions (Secs. 29.6 and 29.8): These regulations permit an
employee to file a charge as representative of a class of employees of
the Architect of the Capitol. GAO employees currently enjoy this right,
as do executive branch employees. See, 4 CFR 28.97; 29 CFR 1614.204. In
interpreting the ban on discrimination in Federal employment contained
in Title VII of the Civil Rights Act, the United States District Court
for the District of Columbia held that executive branch agencies must
accept class complaints and provide class relief in appropriate
circumstances. Barrett v. U.S. Civil Service Commission, 69 F.R.D. 544
(D.D.C. 1975). A similar interpretation of the Architect of the Capitol
Human Resources Act is justified, as it essentially extends the Title
VII ban on discrimination to the Architect of the Capitol.
5. Time periods for filing charges with the General Counsel or
petitions for review with the Board (Secs. 29.8 and 29.10): The current
regulations applicable to claims filed by employees of the GAO require
such employees to file a charge with the Board's General Counsel within
20 days after receiving the agency's decision on a complaint of
discrimination or retaliation. 4 CFR 28.98(b). Similarly, employees
have 20 days after service of a Right to Appeal Letter by the Board's
General Counsel, in which to file a petition for review with the Board.
4 CFR 28.18(b). The Board was concerned that this 20-day period may not
provide sufficient time for employees of the Architect of the Capitol
to file their claims with the Board and its General Counsel. The Board
is not a part of their agency and it is not located in one of their
buildings. It will take some time for employees of the Architect of the
Capitol to become familiar with the Board's existence, its procedures,
and its location. For this reason the Board has increased the time
period for filing charges with the General Counsel and petitions for
review with the Board to 30 days. In order to have consistent
regulations for the two agencies within the Board's jurisdiction, the
Board is also increasing these filing times to 30 days for claims filed
by employees of the General Accounting Office.
6. Application of these regulations to pending cases (Sec. 29.13):
The Architect of the Capitol Human Resources Act became effective on
July 22, 1994. From that date forward, employees of the Architect of
the Capitol have enjoyed the right to bring their claims of
discrimination to the Board, once they have exhausted the necessary
remedies within their agency. The legislative history of the Act carves
out one exception to this rule. Certain employees of the Architect of
the Capitol had the right, prior to July 22, 1994, to file a complaint
of discrimination with the Office of Senate Fair Employment Practices.
See, Government Employee Rights Act of 1991, 2 U.S.C. 1201. Any
complaint of discrimination that was pending with or on appeal from
that office on July 22, 1994, is to continue to be processed by that
office, pursuant to the procedures of the Government Employee Rights
Act of 1991. See, H. R. Rep. No. 103-567, 103d Cong., 2d Sess. at 14
(1994).
Changes to the Procedures Applicable to Employees of the General
Accounting Office
The adoption of the new regulations concerning employees of the
Architect of the Capitol necessitates certain conforming amendments to
4 CFR Part 28, which sets forth the procedures applicable to employees
of the GAO. In addition, the Board is amending the provisions of its
regulations concerning judicial review of Board decisions to reflect a
recent decision by the United States Court of Appeals for the District
of Columbia Circuit. These changes are described below.
1. Purpose and scope (Sec. 28.1): Section 28.1 has been amended to
make clear that the procedures in Part 28 implement the Board's
authority with respect to GAO employees, while the procedures
applicable to Architect of the Capitol employees are set forth in Part
29.
2. Time periods for filing charges with the Board's General Counsel
and for filing petitions for review with the Board (Secs. 28.11, 28.18,
and 28.98): The Board is expanding the time periods for filing charges
with the Board's General Counsel and for filing petitions for review
with the Board. GAO employees will now have 30 days following the
relevant agency action in which to file charges with the Board's
General Counsel. In addition, they will have 30 days following service
of a Right to Appeal Letter by the Board's General Counsel in which to
file a petition for review with the Board.
As discussed above, the Board concluded that expanded filing
periods were necessary in order to give employees of the Architect of
the Capitol sufficient time in which to exercise their appeal rights.
The Board decided that it was desirable to have one consistent set of
time frames applicable to all claims that are filed with the Board. It
therefore decided to extend these expanded time periods to claims filed
by GAO employees. As a result, GAO employees will also have the benefit
of additional time in which to make decisions about their appeal
options, and to prepare and submit their papers to the Board. See
changes below to Secs. 28.11(b), 28.18(b), and 28.98(b) and (c).
3. Judicial review of Board decisions (Sec. 28.90): Two changes
have been made to the procedures for seeking judicial review of Board
decisions. First, the Architect of the Capitol Human Resources Act
amended the Board's governing statute to make clear that final Board
decisions concerning Architect of the Capitol employees may be appealed
to the United States Court of Appeals for the Federal Circuit. See,
Pub. L. 103-283, sec. 312(e)(4)(C). This statutory change is reflected
in the amendment to Sec. 28.90(a) below.
Several sections of the Board's regulations that concern judicial
remedies have also been amended in light of the decision of the United
States Court of Appeals for the District of Columbia Circuit in Ramey
v. Bowsher, 9 F.3d 133 (D.C. Cir. 1993). For many years, the Board's
regulations have provided that employees complaining of unlawful
discrimination on the basis on race, color, religion, sex, national
origin, age, or disability may file suit in Federal district court even
after they have received a final decision from the Board on their
claim. See, current 4 CFR 28.100. In Ramey, the District of Columbia
Circuit held that the Board's interpretation was erroneous and that an
employee's only recourse following a final decision of the Board on a
claim of discrimination is to seek appellate review before the United
States Court of Appeals for the Federal Circuit.
Ramey is binding in the District of Columbia Circuit where a great
many of the employees within the Board's jurisdiction are employed and
would be bringing suit. While there exists the possibility that another
circuit might some day render a different interpretation, it is clear
that the Board has no authority to define the jurisdiction of the
Federal courts. A Board regulation on this subject, therefore, could
not be binding and might have the effect of giving employees erroneous
advice on their judicial remedies. For this reason, the Board has
decided to confine the scope of its regulations to the conduct of
matters before the Board, and to eliminate any interpretations
concerning what alternate judicial remedies might be available to
employees. The Board has, therefore, deleted Sec. 28.100 in its
entirety and eliminated all cross references to that section. See
changes to Secs. 28.17, 28.90, 28.100, and 28.101.
The Board will retain Sec. 28.90 which informs employees of the
procedures for seeking judicial review of a final Board decision before
the Federal Circuit. This is retained because such appeals are
explicitly authorized by the Board's governing statute and because
there is no legal dispute about an employee's right to file such
appeals. The legal uncertainty highlighted by the Ramey case concerns
whether GAO employees have any other options for obtaining judicial
consideration of their claims of discrimination. The Board will leave
that matter for resolution by the courts.
List of Subjects
4 CFR Part 28
Administrative practice and procedure, Equal employment
opportunity, Government employees, Labor-management relations.
4 CFR Part 29
Administrative practice and procedure, Equal employment
opportunity, Government employees.
For the reasons set out in the preamble, Title 4, Chapter I,
Subchapter B, Code of Federal Regulations, is amended as follows.
1. The authority citation for Part 28 continues to read as follows:
Authority: 31 U.S.C. 753.
2. The heading of Part 28 is revised to read as follows:
PART 28--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD;
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT
THE GENERAL ACCOUNTING OFFICE
3. and 4. Section 28.1 is revised to read as follows:
Sec. 28.1 Purpose and scope.
(a) The regulations in this part implement the Board's authority
with respect to employment practices within the General Accounting
Office (GAO), pursuant to the General Accounting Office Personnel Act
of 1980, 31 U.S.C. 751-755. Regulations implementing the Board's
authority with respect to employment practices within the Architect of
the Capitol, pursuant to the Architect of the Capitol Human Resources
Act, Public Law 103-283, sec. 312, 108 Stat. 1443 (July 22, 1994),
appear in 4 CFR part 29.
(b) The purpose of the rules in this part is to establish the
procedures to be followed:
(1) By the GAO, in its dealings with the Board;
(2) By employees of the GAO or applicants for employment with the
GAO, or by groups or organizations claiming to be affected adversely by
the operations of the GAO personnel system;
(3) By employees or organizations petitioning for protection of
rights or extension of benefits granted to them under Subchapters III
and IV of Chapter 7 of Title 31, U.S.C.; and
(4) By the Board, in carrying out its responsibilities under
Subchapters III and IV of Chapter 7 of Title 31, U.S.C.
(c) The scope of the Board's operations encompasses the
investigation and, where necessary, adjudication of cases arising under
31 U.S.C. 753. In addition, the Board has authority for oversight of
the equal employment opportunity program at GAO. This includes the
review of policies and evaluation of operations as they relate to EEO
objectives and, where necessary, the ordering of corrective action for
violation of or inconsistencies with equal employment opportunity laws.
(d) In considering any procedural matter not specifically addressed
in these rules, the Board will be guided, but not bound, by the Federal
Rules of Civil Procedure.
5. Paragraph (b) of Sec. 28.11 is revised to read as follows:
Sec. 28.11 Filing a charge with the General Counsel.
* * * * *
(b) When to file. (1) Charges relating to adverse and performance-
based actions must be filed within 30 days after the effective date of
the action.
(2) Charges relating to other personnel actions must be filed
within 30 days after the effective date of the action or 30 days after
the charging party knew or should have known of the action.
(3) Charges which include an allegation of prohibited
discrimination shall be filed in accordance with the special rules set
forth in Sec. 28.98.
(4) Charges relating to continuing violations may be filed at any
time.
* * * * *
6. Paragraph (c)(3) of Sec. 28.17 is revised to read as follows:
Sec. 28.17 Internal appeals of Board employees.
* * * * *
(c) * * *
(3) In any event, whoever is so appointed shall possess all of the
powers and authority possessed by the Board in employee appeals cases.
The decision of the administrative law judge, administrative judge or
arbitrator shall be a final decision of the Board, in the same manner
as if rendered by the Board under Sec. 28.86(e). The procedure for
judicial review of the decision shall be the same as that described in
Sec. 28.90.
* * * * *
7. Paragraph (b) of Sec. 28.18 is revised to read as follows:
Sec. 28.18 Filing a petition for review with the Board.
* * * * *
(b) When to file. Petitions for review must be filed within 30 days
after service upon the charging party of the Right to Appeal Letter
from the General Counsel.
* * * * *
8. Section 28.90 is amended by revising paragraph (a), removing
paragraph (b) and redesignating paragraph (c) as paragraph (b) as
follows:
Sec. 28.90 Board procedures; judicial review.
(a) A final decision by the Board under 31 U.S.C. 753(a) (1), (2),
(3), (6), (7) or (9) may be appealed to the United States Court of
Appeals for the Federal Circuit within 30 days after the petitioner
receives notice of the Board's decision.
* * * * *
9. Paragraphs (b)(1), (b)(3) and (c)(1) of Sec. 28.98 are revised
to read as follows:
Sec. 28.98 Individual charges in EEO cases.
* * * * *
(b) * * *
(1) Within 30 days from the receipt by the charging party of a GAO
decision rejecting the complaint in whole or part;
(2) * * *
(3) Within 30 days from the receipt by the charging party of a
final GAO decision concerning the complaint of discrimination.
(c) * * *
(1) File a charge directly with the Board's General Counsel within
30 days of the effective date of the personnel action and raise the
issue of discrimination in the course of the proceedings before the
Board; or
* * * * *
Sec. 28.100 [Removed and Reserved]
10. Section 28.100 is removed and reserved.
11. Section 28.101 is revised to read as follows:
Sec. 28.101 Termination of Board proceedings when suit is filed in
Federal District Court.
Any proceeding before the Board shall be terminated when an
employee or applicant who is alleging violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16, the
Rehabilitation Act, 29 U.S.C. 791, or the Age Discrimination in
Employment Act, 29 U.S.C. 633a, files suit in Federal District Court.
12. Part 29 is added to read as follows:
PART 29--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD;
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT
THE ARCHITECT OF THE CAPITOL
Sec.
29.1 Purpose and scope.
29.2 Definitions.
29.3 Jurisdiction of the Board.
29.4 Computation of time.
29.5 Informal procedural advice.
29.6 Requirement for exhaustion of internal administrative remedies
provided by the Architect of the Capitol.
29.7 Notice of appeal rights.
29.8 Filing a charge with the General Counsel.
29.9 General Counsel procedures.
29.10 Filing a petition for review with the Board.
29.11 Board procedures on petitions for review.
29.12 Proceedings brought by the General Counsel seeking corrective
action, disciplinary action or a stay.
29.13 Applicability of this part to pending cases.
Authority: 31 U.S.C. 753.
Sec. 29.1 Purpose and scope.
(a) The purpose of this part is to implement the Board's authority
under the Architect of the Capitol Human Resources Act, Public Law 103-
283, sec. 312, 108 Stat. 1443 (July 22, 1994). That act authorizes the
Board to adjudicate certain claims of discrimination and retaliation
brought by employees of the Architect of the Capitol. The rules
contained in this part establish the procedures to be followed by:
(1) Employees of the Architect of the Capitol in pursuing
discrimination and retaliation claims before the Board;
(2) The Architect of the Capitol in its dealings with the Board;
and
(3) The Board in carrying out its responsibilities under the
Architect of the Capitol Human Resources Act.
(b) In considering any procedural matter not specifically addressed
by these rules, the Board will be guided, but not bound, by the Federal
Rules of Civil Procedure.
Sec. 29.2 Definitions.
In this part--
Board means the General Accounting Office Personnel Appeals Board
as established by 31 U.S.C. 751.
Charge means an allegation, filed with the Board's General Counsel,
of an unlawful discriminatory practice that is within the Board's
jurisdiction under the Architect of the Capitol Human Resources Act,
Public Law 103-283, sec. 312, 108 Stat. 1443 (July 22, 1994).
Charging party means an individual filing a charge with the Board's
General Counsel.
Clerk of the Board means the individual appointed by the Board to
receive papers filed with the Board, to maintain the Board's official
files, and to advise parties and members of the public on the Board's
procedures.
Days mean calendar days.
Employee of the Architect of the Capitol means any employee of or
applicant for employment with the Architect of the Capitol, the Botanic
Garden, or the Senate restaurants. It also includes, within 180 days
after the termination of such employment, any individual who was
formerly an employee of the Architect of the Capitol, the Botanic
Garden, or the Senate restaurants, and whose claim of violation arises
out of such employment. The term ``employee of the Architect of the
Capitol'' does not include any individual who is a House of
Representatives garage or parking lot attendant, including the
superintendent.
General Counsel means the General Counsel of the Board, as provided
for under 31 U.S.C. 752.
Petition for Review means any request filed with the Board for
action to be taken on matters within the Board's jurisdiction pursuant
to the Architect of the Capitol Human Resources Act, Public Law 103-
283, sec. 312, 108 Stat. 1443 (July 22, 1994).
Petitioner means any individual filing a petition for review with
the Board.
Solicitor means the attorney appointed by the Board to provide
advice and assistance to the Board in carrying out its adjudicatory
functions and to advise parties and members of the public on the
Board's procedures.
Sec. 29.3 Jurisdiction of the Board.
(a) The Board has jurisdiction to hear and adjudicate claims
brought by employees of the Architect of the Capitol alleging
discrimination in employment based on:
(1) Race, color, religion, sex, or national origin, within the
meaning of section 717 of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e-16;
(2) Age, within the meaning of section 15 of the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. 633a; or
(3) Handicap or disability, within the meaning of section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, and sections
102 through 104 of the Americans with Disabilities Act of 1990, 42
U.S.C. 12112-12114.
(b) The Board has jurisdiction to hear and adjudicate claims
brought by any individual alleging that he or she was subjected, by any
employee of the Architect of the Capitol, to intimidation or reprisal
because of the exercise of any right under the Architect of the Capitol
Human Resources Act. This includes claims of retaliation against an
individual because he or she:
(1) Opposed practices made unlawful by the Architect of the Capitol
Human Resources Act;
(2) Filed a charge or petition for review with the Board;
(3) Utilized the internal procedures provided by the Architect of
the Capitol for the resolution of claims of discrimination or reprisal
including, but not limited to, the filing of a request for formal or
informal advice or the filing of a formal complaint; or
(4) Participated in any proceedings before the Board or the
Architect of the Capitol for the resolution of complaints of
discrimination or reprisal.
(c) The Board has jurisdiction over proceedings brought by the
Board's General Counsel seeking:
(1) Corrective action for alleged employment discrimination or
retaliation (as described in paragraphs (a) and (b) of this section) by
the Architect of the Capitol;
(2) Disciplinary action against an employee of the Architect of the
Capitol who has allegedly engaged in employment discrimination or
retaliation as described in paragraphs (a) and (b) of this section;
(3) A stay of a personnel action that has occurred or is about to
occur and that is alleged to involve unlawful discrimination or
retaliation of the kind described in paragraphs (a) and (b) of this
section.
Sec. 29.4 Computation of time.
For the purposes of this part, time will be computed in the manner
described in 4 CFR 28.4.
Sec. 29.5 Informal procedural advice.
Any party or member of the public may seek advice on all aspects of
the Board's procedures by contacting the Board's Solicitor, the Board's
General Counsel or the Clerk of the Board. Informal advice will be
supplied within the limits of available time and staff.
Sec. 29.6 Requirement for exhaustion of internal administrative
remedies provided by the Architect of the Capitol.
(a) General. Under the provisions of the Architect of the Capitol
Human Resources Act, any employee of the Architect of the Capitol who
wishes to pursue a claim of discrimination or retaliation before the
Board must first file an internal complaint with the Architect of the
Capitol and exhaust the procedures for resolving such complaints. The
procedures for filing such complaints are at present set forth in the
Equal Employment Opportunity Procedures Manual issued by the Architect
of the Capitol. The internal procedures for resolving complaints of
discrimination or retaliation will be considered exhausted when either
of the following occurs:
(1) The employee receives a final decision by the Architect of the
Capitol on his or her complaint of discrimination or retaliation; or
(2) 120 days have passed after the filing of an internal complaint
of discrimination or retaliation and the Architect of the Capitol has
not issued a final decision on the complaint.
(b) Class claims. An employee of the Architect of the Capitol who
wishes to seek relief before the Board for a class of employees shall
first file an internal complaint of discrimination or retaliation with
the Architect of the Capitol and exhaust the internal remedies for
resolution of such complaints as described in paragraph (a) of this
section. It is not necessary that the employee raise class allegations
in his or her internal complaint in order to be able to pursue the
matter as a class action before the Board.
(c) Filing a charge with the Board's General Counsel following
exhaustion of administrative remedies. If, following the exhaustion of
internal administrative remedies as described in paragraphs (a) or (b)
of this section, an employee of the Architect of the Capitol wishes to
pursue the matter before the Board, the employee may file a charge with
the Board's General Counsel. The procedures for filing such a charge
are set forth in Sec. 29.8.
(d) Special rule applicable to charges filed with the General
Counsel prior to March 1, 1995. A special rule applies to charges filed
with the General Counsel prior to March 1, 1995. For these charges
only, the General Counsel shall defer proceedings on the charge for no
more than 60 days if the Architect of the Capitol certifies that such
action is necessary to enable the Architect to issue a final decision
on the charging party's internal complaint of discrimination or
retaliation.
Sec. 29.7 Notice of appeal rights.
(a) The Architect of the Capitol shall be responsible for ensuring
that employees are routinely advised of their appeal rights to the
Board. Any final decision on an internal complaint of discrimination
shall include a notice of the complainant's right to pursue the matter
before the Board including:
(1) The time limits for appealing to the Board;
(2) The address of the Board;
(3) The employee's right to representation before the Board;
(4) The availability of a hearing before the Board where factual
issues are in dispute; and
(5) The employee's right to a reasonable amount of official time
for the preparation and presentation of his or her appeal.
(b) A copy of the Board's regulations shall be attached to the
notice required by paragraph (a) of this section. The notice shall also
be accompanied by proof of service.
Sec. 29.8 Filing a charge with the General Counsel.
(a) Who may file. Any employee of the Architect of the Capitol who
claims that he or she has been subjected to unlawful discrimination or
retaliation (as defined in Sec. 29.3) may file a charge with the
Board's General Counsel. One or more employees may file a charge as
representative of a class of employees of the Architect of the Capitol.
(b) When to file. A charge by an employee of the Architect of the
Capitol must be filed at either of the following times:
(1) Within 30 days after the receipt of a final decision by the
Architect of the Capitol on the employee's internal complaint of
discrimination or retaliation; or
(2) At any time after the passage of 120 days following the filing
of an internal complaint of discrimination or retaliation, if the
Architect of the Capitol has not yet issued a final decision on the
internal complaint.
(c) How to file. Charges may be filed with the General Counsel in
person or by mail. Please note that the address to be used differs for
the two kinds of filing.
(1) Filing in person: A charge may be filed in person at the Office
of the General Counsel, Suite 840, Union Center Plaza II, 820 First
St., NE., Washington, DC.
(2) Filing by mail: A charge may be filed by mail addressed to the
General Counsel, Personnel Appeals Board, Suite 840, Union Center Plaza
II, 441 G Street, NW., Washington, DC 20548. When filed by mail, the
postmark shall be date of filing for all submissions to the General
Counsel.
(d) What to file. The charge should include the following
information:
(1) Name, address, and telephone number of the charging party. In
the case of a class action, a clear description of the class of
employees on whose behalf a charge is filed;
(2) The names and titles of persons, if any, responsible for
actions the charging party wishes to have the General Counsel review;
(3) The actions complained about, including dates and reason given;
(4) The charging party's reasons for believing that the actions
taken constitute unlawful discrimination;
(5) Remedies sought by the charging party;
(6) Information concerning the charging party's exhaustion of
administrative remedies before the Architect of the Capitol, including
the date the internal complaint of discrimination was filed and, if
applicable, the date on which the employee received a final decision
from the Architect of the Capitol on his or her complaint of
discrimination;
(7) Name and address of the representative, if any, who will act
for the charging party;
(8) Signature of the charging party or the charging party's
representative.
(e) Attorney fees only issue raised. The General Counsel shall not
represent the petitioner when the only issue raised is attorney fees.
When attorney fees are the only issue raised in a charge to the General
Counsel, the General Counsel shall transmit the charge to the Board for
processing as a petition for review.
Sec. 29.9 General Counsel procedures.
(a) The General Counsel shall serve on the Architect of the Capitol
a copy of the charge, investigate the matters raised in the charge,
refine the issues where appropriate, and attempt to settle all matters
at issue.
(b) The General Counsel's investigation may include gathering
information from the Architect of the Capitol, and interviewing and
taking statements from witnesses. Employees of the Architect of the
Capitol shall be on official time during the time that they are
responding to any requests from the General Counsel.
(c) Following the investigation, the General Counsel shall provide
the charging party with a Right to Appeal Letter. Accompanying this
letter will be a statement of the General Counsel advising the charging
party of the results of the investigation. This statement of the
General Counsel is not subject to discovery and may not be introduced
into evidence before the Board.
(d) If, following the investigation, the General Counsel determines
that there are not reasonable grounds to believe that the charging
party has been subjected to unlawful discrimination or retaliation as
described in Sec. 29.3, then the General Counsel shall not represent
the charging party. If the General Counsel determines that there are
reasonable grounds to believe that the charging party has been
subjected to such discrimination or retaliation, then the General
Counsel shall represent the charging party, unless the charging party
elects not to be represented by the General Counsel. Any charging party
may represent him- or herself or obtain other representation.
(e) When the charging party elects to be represented by the General
Counsel, the General Counsel is to direct the representation in the
charging party's case. The charging party may also retain a private
representative in such cases. However, the role of the private
representative is limited to assisting the General Counsel as the
General Counsel determines to be appropriate.
(f) When the General Counsel is not participating in a case, the
General Counsel may request permission to intervene with respect to any
issue in which the General Counsel finds a significant public interest
in the enforcement of the right to be free of unlawful discrimination
and retaliation in employment.
Sec. 29.10 Filing a petition for review with the Board.
(a) Who may file. A petition for review may be filed with the Board
by any employee of the Architect of the Capitol who has received a
Right to Appeal Letter from the General Counsel and who is claiming to
have been subjected to unlawful discrimination or retaliation as
described in Sec. 29.3.
(b) When to file. Petitions for review must be filed within 30 days
after service upon the charging party of the Right to Appeal Letter
from the General Counsel.
(c) How to file. Petitions for review may be filed in person or by
mail. Please note that the address to be used differs for the two kinds
of filing.
(1) Filing in person: A petition may be filed in person at the
office of the Board, Suite 830, Union Center Plaza II, 820 First
Street, NE., Washington, DC.
(2) Filing by mail: A petition may be filed by mail addressed to
the Personnel Appeals Board, Suite 830, Union Center Plaza II, 441 G
Street, NW., Washington, DC 20548. When filed by mail, the postmark
shall be the date of filing for all submissions to the Board.
(d) What to file. The petition for review shall include the
following information:
(1) The name, address, and telephone number of the petitioner. In
the case of a class action, a clear description of the class of
employees on whose behalf the petition is being filed;
(2) The names and titles of persons, if any, responsible for the
actions the petitioner wishes to have the Board review;
(3) The actions being complained about including dates and reasons
given;
(4) Petitioner's reasons for believing that the actions constituted
unlawful discrimination or retaliation;
(5) Remedies sought by petitioner;
(6) Information concerning petitioner's exhaustion of
administrative remedies before the Architect of the Capitol, including
the date that an internal complaint of discrimination or retaliation
was filed and the date, if applicable, that the petitioner received a
final decision from the Architect of the Capitol;
(7) Name, address, and telephone number of the representative, if
any, who will act for the petitioner;
(8) Signature of the petitioner or the petitioner's representative.
(e) Amendments to a petition for review. Failure to raise a claim
in the petition for review shall not bar its submission later unless to
do so would prejudice the rights of the other parties or unduly delay
the proceedings.
(f) Class Actions. One or more employees of the Architect of the
Capitol may file a petition for review as representatives of a class of
employees in any matter within the Board's jurisdiction as set forth in
Sec. 29.3. In determining whether it is appropriate to treat an appeal
as a class action, the Board will be guided, but not controlled, by the
applicable provisions of the Federal Rules of Civil Procedure.
Sec. 29.11 Board procedures on petitions for review.
In adjudicating petitions for review filed by employees of the
Architect of the Capitol, the Board will generally follow the same
procedures as it does for adjudicating petitions for review filed by
General Accounting Office (GAO) employees under 4 CFR part 28, subpart
B. The Board specifically adopts the regulations contained in 4 CFR
28.19 through 28.90 as the procedures it will follow for petitions for
review filed by Architect of the Capitol employees. The Architect of
the Capitol will have the same obligations and responsibilities as are
assigned to the GAO under those regulations. The regulations concerning
ex parte communications, contained in 4 CFR part 28, subpart I, will
also be applicable to all proceedings brought by or on behalf of
employees of the Architect of the Capitol.
Sec. 29.12 Proceedings brought by the General Counsel seeking
corrective action, disciplinary action or a stay.
The regulations contained in 4 CFR part 28, subpart G, concerning
proceedings brought by the General Counsel seeking corrective action,
disciplinary action or a stay, are hereby adopted and made applicable
to the Board's authority with respect to employment practices within
the Architect of the Capitol with the following qualifications:
(a) The authority of the General Counsel to bring proceedings
seeking corrective action, disciplinary action, or a stay will be
limited to matters involving allegations of unlawful discrimination or
retaliation as described in Sec. 29.3.
(b) Wherever the regulations in 4 CFR part 28, subpart G assign
rights, responsibilities, or obligations to the GAO or its employees
those same rights, responsibilities, or obligations will be assigned to
the Architect of the Capitol or its employees, respectively.
Sec. 29.13 Applicability of this part to pending cases.
(a) The regulations in this part apply to all claims brought by
employees of the Architect of the Capitol alleging discrimination or
retaliation (as described in Sec. 29.3) where:
(1) The alleged discrimination or retaliation occurred on or after
the July 22, 1994, effective date of the Architect of the Capitol Human
Resources Act; or
(2) The internal complaint of discrimination or retaliation was
filed with the Architect of the Capitol on or after the July 22, 1994,
effective date of the Architect of the Capitol Human Resources Act; or
(3) The final decision of the Architect of the Capitol on an
internal complaint of discrimination or retaliation was issued on or
after the July 22, 1994, effective date of the Architect of the Capitol
Human Resources Act.
(b) The regulations in this part do not apply to any claim of
discrimination or retaliation by an employee of the Architect of the
Capitol which was pending before, or an appeal from, the Office of
Senate Fair Employment Practices on the July 22, 1994, effective date
of the Architect of the Capitol Human Resources Act. Any such claims
shall continue to be processed pursuant to the procedures established
in the Government Employee Rights Act of 1991, 2 U.S.C. 1201, et seq.
Nancy A. McBride,
Chair, Personnel Appeals Board, U. S. General Accounting Office.
[FR Doc. 94-28274 Filed 11-15-94; 8:45 am]
BILLING CODE 1610-01-P
