[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
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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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.
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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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