[Federal Register Volume 61, Number 136 (Monday, July 15, 1996)]
[Rules and Regulations]
[Pages 36809-36811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17873]



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 Rules and Regulations
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  Federal Register / Vol. 61, No. 136 / Monday, July 15, 1996 / Rules 
and Regulations  

[[Page 36809]]



GENERAL ACCOUNTING OFFICE

4 CFR Parts 28 and 29


Personnel Appeals Board; Procedural Regulations

AGENCY: General Accounting Office Personnel Appeals Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The General Accounting Office Personnel Appeals Board is 
issuing a final rule to govern appeals of employees who are separated 
from employment as a result of a Reduction in Force (RIF) action. The 
rule is published according to the Board's authority under section 
753(d) of the General Accounting Office Personnel Act of 1980 (GAOPA). 
The revision provides affected employees with an optional streamlined 
process for pursuing appeals of RIF-based terminations.

EFFECTIVE DATE: July 15, 1996.

FOR FURTHER INFORMATION CONTACT: Catherine McNamara, Solicitor, 
Personnel Appeals Board, 202-512-6137.

SUPPLEMENTARY INFORMATION: The Personnel Appeals Board (PAB) authority 
with respect to employment practices within the General Accounting 
Office (GAO or the agency) includes authority over appeals from RIF 
actions taken by the agency. The GAO recently revised Order 2351.1, 
Reduction in Force, applicable to GAO employees.
    The PAB has long had published regulations which define the role of 
its Office of General Counsel (PAB/OGC) and the procedures to be 
followed in pursuing an appeal before the Board. See 4 CFR part 28. 
Previous regulations required that in all cases an individual obtain a 
Right to Appeal Letter from the PAB's Office of General Counsel before 
filing with the Board. See 4 CFR 28.18(a). The Board or an 
administrative judge can waive a PAB regulation in an individual case 
for good cause shown, consistent with the requirements of the GAOPA. 4 
CFR 28.16(b).
    On March 7, 1996, the Board adopted interim regulations (61 FR 
9089) to provide employees who are separated from employment as a 
result of a RIF action with the option of appealing directly to the PAB 
without first filing a charge with the Board's Office of General 
Counsel, as prescribed in Sec. 28.11 of this part, and obtaining a 
Right to Appeal Letter. This change was designed to expedite the appeal 
process, at the employee's option, in situations in which the RIF 
action results in separation from employment. Because of the need to 
have regulations in place prior to agency implementation of its RIF 
order, the revisions were made effective immediately on an interim 
basis. With several modifications as explained below, the regulations 
are adopted as final. Because the appeal period for recent RIF action 
at GAO is currently running, this final rule is made effective 
immediately.

Brief Summary of the Interim Regulations

    The interim regulations published by the Board on March 7, 1996, 
contained a new Sec. 28.13, defining a special procedure for actions 
challenging a RIF-based termination to bypass the PAB/OGC at the option 
of the employee. See 61 FR 9089 (March 7, 1996). In addition, the 
interim regulations amended Sec. 28.18, paragraphs (a) and (b), to 
specify that a person whose employment was terminated as a result of a 
RIF action may choose to file directly with the Board, and that such an 
action must be filed within 30 days of the effective date of the RIF 
action.
    The PAB invited comments from the public through May 31, 1996, and 
stated that it would carefully consider such comments before the 
regulations were adopted in final form. See 61 FR 9089. In addition to 
publishing the interim regulations in the Federal Register, the PAB 
also provided GAO employees with notice of the revised procedures, 
applicable to individuals separated from employment because of a RIF, 
by means of a summary of the changes in the ``GAO Management News.'' 
See GAO Management News, Vol. 23, No. 25 (Week of April 8-12, 1996).
    The Board received one comment concerning the interim regulations. 
That comment, submitted by Patricia Shahen, Acting Director of GAO's 
Affirmative Action/Civil Rights Office, addressed a perceived ambiguity 
in the regulations as revised. The perceived ambiguity involved whether 
an employee raising discrimination issues in challenging a RIF-based 
separation may bypass the Civil Rights Office as well as the PAB/OGC.
    In revised Sec. 28.13, the Board streamlined the appeal process for 
employees separated by a RIF by allowing them to file directly with the 
Board without first filing a charge with the PAB's Office of General 
Counsel. Ms. Shahen's comment pointed out that under 4 CFR 28.98(a), 
employees raising charges of prohibited discrimination are required to 
file a discrimination complaint with GAO's Civil Rights Office before 
filing such a complaint with the PAB General Counsel. Section 28.98(c) 
provides an exception to this rule for employees affected by a removal, 
suspension for more than 14 days, reduction in grade or pay, or 
furlough of not more than 30 days. If an employee alleges that the 
subject action was due at least in part to unlawful discrimination, he 
or she may elect to file a charge directly with the PAB General 
Counsel. The comment pointed out that the exception in Sec. 28.98(c) 
does not specifically refer to RIF actions.
    Ms. Shahen expressed concern that the revised regulations ``could 
be interpreted to mean that employees who allege discrimination because 
of a RIF, may go directly to the Board without going through the Civil 
Rights Office process; but if they want to go through the PAB General 
Counsel, they must first go through the Civil Rights Office process. 
This does not seem to be the intent of the proposed regulation.''

Summary of Changes

    After carefully considering the comment received, the Board has 
adopted several modifications to the regulations to clarify their 
effect on RIF-based termination actions raising discrimination claims. 
In addition, conforming changes were made to assure that the 
streamlined procedures would be available to Board employees, and 
several technical changes were made to reflect a revision to the 
Board's address.
    Section 28.13, added in the interim regulations, is revised to 
clarify that individuals raising discrimination issues in RIF-based 
actions may avail

[[Page 36810]]

themselves of the streamlined procedures which allow bypassing the PAB/
OGC. The revised section also specifies that, pursuant to Sec. 28.98, 
such individuals also may bypass the agency Civil Rights Office in the 
interest of reaching an expeditious resolution of their complaints.
    Section 28.98, which was not specifically addressed in the interim 
regulations, is amended to clarify that in RIF-based actions raising 
discrimination claims, an employee may elect to (1) file directly with 
the PAB/OGC, (2) proceed through the agency's discrimination complaint 
processing system, or (3) file directly with the PAB, thus bypassing 
both the PAB/OGC and the Civil Rights Office. The Board notes that when 
Sec. 28.98(c) was published for comment, the agency did not object to 
the change which gave employees a choice of procedures for adverse or 
performance-based actions alleged to be due to discrimination. See 58 
FR 61988, 61990-91 (November 23, 1993).
    In reconsidering the regulatory revisions, the Board also concluded 
that a further change was necessary to clarify that PAB personnel may 
avail themselves of the streamlined procedures for pursuing RIF-based 
termination appeals. Section 28.17(a) was revised to specify that Board 
employees, whether or not raising equal employment opportunity (EEO) 
claims, may choose to file an appeal of a RIF-based termination 
directly with the PAB.
    Several technical changes were made in 4 CFR parts 28 and 29 to 
reflect the Board's change of address. These sections specify where to 
file at the PAB or the PAB/OGC: Secs. 28.11(c) (1) and (2); 28.18(c) 
(1) and (2); 28.86(b) (1) and (2); 29.8(c) (1) and (2); and 29.10(c) 
(1) and (2).
    Accordingly, 4 CFR parts 28 and 29 are amended and the interim rule 
amending title 4, part 28, Code of Federal Regulations, which was 
published at 61 FR 9089 on March 7, 1996, is adopted as final, with 
changes as follows.

List of Subjects

4 CFR Part 28

    Administrative practice and procedure, Equal employment 
opportunity, Government employees, Labor-management relations, 
Reductions in force.

4 CFR Part 29

    Administrative practice and procedure, Equal employment 
opportunity, Government employees.

PART 28--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; 
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT 
THE GENERAL ACCOUNTING OFFICE

    1. The authority citation for part 28 continues to read as follows:

    Authority: 31 U.S.C. 753.

    2. Section 28.11, paragraph (c)(1) and the first sentence of 
paragraph (c)(2) are revised to read as follows:


Sec. 28.11  Filing a charge with the General Counsel.

* * * * *
    (c) * * *
    (1) Filing in person: A charge may be filed in person at the Office 
of the General Counsel, Suite 580, Union Center Plaza II, 820 First 
Street, NE., Washington, DC.
    (2) Filing by mail: A charge may be filed by mail addressed to the 
General Counsel, Personnel Appeals Board, Suite 580, Union Center Plaza 
II, 441 G Street, NW., Washington, DC 20548. * * *
* * * * *
    3. Section 28.13 is revised to read as follows:


Sec. 28.13  Special procedure for Reduction in Force.

    In the event of a Reduction in Force resulting in an individual's 
separation from employment, an aggrieved employee may choose to file an 
appeal directly with the Personnel Appeals Board, without first filing 
the charge with the PAB's Office of General Counsel pursuant to 
Sec. 28.11. This option is available to individuals raising 
discrimination issues in connection with a RIF action. Pursuant to 
Sec. 28.98, such individuals need not file a complaint with GAO's Civil 
Rights Office before pursuing a RIF challenge alleging discrimination, 
either by filing directly with the PAB or by filing a charge with the 
PAB's Office of General Counsel.
    4. In Sec. 28.17, paragraphs (a)(2) and (a)(3) are revised to read 
as follows:


Sec. 28.17  Internal appeals of Board employees.

    (a) * * *
    (1) * * *
    (2) When an employee of the Board believes that he or she has been 
denied his or her right to equal employment opportunity, the employee 
shall consult either with the Solicitor or with the General Counsel and 
seek advice on filing an EEO complaint. If the matter cannot be 
resolved within 10 days, the Solicitor or General Counsel shall notify 
the employee of his or her right to file an EEO complaint. The employee 
shall have 20 days from service of this notice to file an EEO complaint 
with the General Counsel. Upon receipt of an EEO complaint, the General 
Counsel shall arrange for processing in accordance with paragraph (b) 
of this section. If the EEO allegations involve challenge to a RIF-
based separation, the employee may choose to expedite the procedures by 
filing a charge directly with the Board.
    (3) When an employee of the Board wishes to raise any other issue 
that would be subject to the Board's jurisdiction, the employee shall 
file a charge with the General Counsel and the General Counsel shall 
arrange for processing in accordance with paragraph (b) of this 
section. If the challenged action is a RIF-based separation from 
employment, the employee may choose to expedite the procedures by 
filing a charge directly with the Board.
* * * * *
    5. Section 28.18, paragraph (c)(1) and the first sentence of 
paragraph (c)(2) are revised as follows:


Sec. 28.18  Filing a petition for review with the Board.

* * * * *
    (c) * * *
    (1) Filing in person: A petition may be filed in person at the 
office of the Board, Suite 560, 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 560, Union Center Plaza II, 441 G 
Street NW., Washington, DC 20548. * * *
* * * * *
    6. Section 28.86, paragraph (b)(1) and the first sentence of 
paragraph (b)(2) are revised to read as follows:


Sec. 28.86  Board procedures; recommended decisions.

* * * * *
    (b) * * *
    (1) Filing by hand delivery: Exceptions may be filed by hand 
delivery at the office of the Board, Suite 560, Union Center Plaza II, 
820 First Street NE., Washington, DC.
    (2) Filing by mail: Exceptions may be filed by mail addressed to 
the Personnel Appeals Board, Suite 560, Union Center Plaza II, 441 G 
Street, NW., Washington DC 20548. * * *
* * * * *
    7. Section 28.98 is amended by redesignating paragraph (d) as 
(e)(1), by adding new paragraphs (d) and (e)(2), by revising the 
paragraph heading of

[[Page 36811]]

paragraph (c) and by revising newly redesignated paragraph(e)(1) as 
follows:


Sec. 28.98  Individual charges in EEO cases.

* * * * *
    (c) Special rules for adverse and performance based actions. * * *
    (d) Special rules for RIF based actions. An individual alleging 
discrimination issues in connection with a RIF-based separation may 
follow the procedures outlined above in paragraph (c) of this section 
for adverse and performance based actions, or may choose instead a 
third option. In accordance with the provisions of Sec. 28.13, such an 
individual may appeal that action by filing directly with the PAB, thus 
bypassing both the Civil Rights Office and the PAB's Office of General 
Counsel.
    (e)(1) The charging party shall file the charge with the General 
Counsel in accordance with Sec. 28.11. The General Counsel shall 
investigate the charge in accordance with Sec. 28.12.
    (2) A charging party challenging a RIF action by filing directly 
with the PAB shall follow the procedures prescribed in Sec. 28.13 and 
Sec. 28.18.
* * * * *

PART 29--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; 
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT AT THE 
ARCHITECT OF THE CAPITOL

    8. The authority citation for part 29 continues to read as follows:

    Authority: 31 U.S.C. 753.

    9. Section 29.8, paragraph (c)(1) and the first sentence of 
paragraph (c)(2) are revised to read as follows:


Sec. 29.8  Filing a charge with the General Counsel.

* * * * *
    (c) * * *
    (1) Filing in person: A charge may be filed in person at the Office 
of the General Counsel, Suite 580, 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 580, Union Center Plaza 
II, 441 G Street, NW., Washington, DC 20548. * * *
* * * * *
    10. Section 29.10, paragraph (c)(1) and the first sentence of 
paragraph (c)(2) are revised to read as follows:


Sec. 29.10   Filing a petition for review with the Board.

* * * * *
    (c) * * *
    (1) Filing in person: A petition may be filed in person at the 
office of the Board, Suite 560, 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 560, Union Center Plaza II, 441 G 
Street, NW., Washington DC 20548. * * *
* * * * *
Nancy A. McBride,
Chair, Personnel Appeals Board General Accounting Office.
[FR Doc. 96-17873 Filed 7-12-96; 8:45 am]
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