[Federal Register Volume 63, Number 34 (Friday, February 20, 1998)]
[Proposed Rules]
[Pages 8594-8606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4165]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA66
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission (EEOC).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Equal Employment Opportunity Commission is proposing
revisions to its federal sector complaint processing regulations to
implement recommendations made by the Chairman's Federal Sector
Workgroup. The Commission proposes to require that agencies establish
or make available alternative dispute resolution (ADR) programs during
the EEO pre-complaint process. The Commission proposes revisions to the
counseling process, the bases for dismissal of complaints, and
procedures for requesting a hearing. The Commission also proposes to
provide administrative judges with the authority to issue dismissals
and final decisions on complaints. The Commission proposes a number of
changes to the class complaint procedures, including authorizing
administrative judges to issue final decisions on class certification
and requiring that administrative judges determine whether a settlement
agreement is fair and reasonable. The Commission proposes changes to
the appeals procedures to provide agencies the right to appeal an
administrative judge's final decision, to revise the appellate briefing
schedule, to establish different standards of review for agency final
decisions and administrative judges' final decisions, and to revise the
process for seeking reconsideration of a decision on appeal. Finally,
the Commission proposes to amend the remedies section of the regulation
to permit administrative judges to award attorney's fees and to provide
for payment of attorney's fees for all services provided by an attorney
throughout the equal employment opportunity (EEO) process, including
counseling.
DATES: Comments on the notice of proposed rulemaking must be received
on or before April 21, 1998.
ADDRESSES: Written comments should be submitted to Frances M. Hart,
Executive Officer, Executive Secretariat, Equal Employment Opportunity
Commission, 1801 L Street, N.W., Washington, D.C. 20507. As a
convenience to commentators, the Executive Secretariat will accept
comments transmitted by facsimile (``FAX'') machine. The telephone
number of the FAX receiver is (202) 663-4114. (This is not a toll free
number.) Only comments of six or fewer pages will be accepted via FAX
transmittal. This limitation is necessary to assure access to the
equipment. Receipt of FAX transmittals will not be acknowledged, except
that the sender may request confirmation of receipt by calling the
Executive Secretariat staff at (202) 663-4078 (voice) or (202) 663-4077
(TDD). (These are not toll free numbers.) Copies of comments submitted
by the public will be available for review at the Commission's Library,
room 6502, 1801 L Street, N.W., Washington, D.C. between the hours of
9:30 a.m. and 5:00 p.m.
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 notice is also available in the following
formats: large print, braille, audio tape and electronic file on
computer disk. Requests for this notice in an alternative format should
be made to EEOC's Publications Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION:
Introduction
As part of an ongoing effort to evaluate and improve the
effectiveness of the Equal Employment Opportunity Commission's
operations, the Chairman established the Federal Sector Workgroup to
review the federal sector equal employment opportunity process. The
Workgroup 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, namely: 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's review evaluated the Commission's administrative
processes governing its enforcement responsibilities in the federal
sector and developed recommendations to improve
[[Page 8595]]
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 Federal Sector Workgroup issued a report entitled ``The Federal
Sector EEO Process * * * Recommendations for Change'' in May 1997. The
report contains numerous recommendations for changing the federal
sector complaint process, including changes to the Part 1614
regulations, changes to EEOC's Management Directive 110 which contains
additional guidance and instructions on the federal complaint process,
and changes to EEOC's internal procedures.
The Commission proposes to amend Part 1614 to implement the
regulatory recommendations. The proposed changes, which are discussed
in greater detail below, address the continuing perception of
unfairness and inefficiency in the federal sector complaint process. In
addition, the proposals accomplish the National Performance Review
goals of removing unnecessary layers of review and delegating decision-
making authority to front-line employees.
EEOC spent over a year and a half in the development of the federal
sector NPRM. During that time period, EEOC consulted extensively with
all stakeholders in the federal sector process, very much including the
other federal agencies. On April 22, 1996, prior to the development of
any recommendations, the EEOC's Federal Sector Workgroup held a meeting
with federal EEO and Civil Rights personnel organized by the President
of the Council of Federal and Civil Rights Executives. At that time the
Council supported EEOC's interest in making the administrative judge
decisions final and eliminating agency final decisions following those
decisions. The Council subsequently changed its view on this question.
On May 21, 1996, then-Chairman Casellas wrote to the EEO Directors of
all departments and agencies requesting their written comment on a
number of subjects related to the federal sector complaint process. We
received comments from 27 agencies, all of which were fully considered
in developing the recommendations contained in the Workgroup's report.
On September 26, 1997, the Workgroup held a briefing for EEO Directors
on the Workgroup's recommendations.
The Commission coordinated this proposed regulation with all
federal agencies pursuant to Exec. Order No. 12067 (1978). A number of
comments were received from agencies, which included helpful
suggestions to improve the proposed regulation as well as criticisms of
essential elements of the proposals. The Commission has included a
discussion of its proposal, the rationale for the changes, as well as
the criticisms of the agencies, in this statement of Supplementary
Information and has made certain changes to the proposal. It prefers to
decide whether or how to make other changes to this proposal after the
benefit of public comment. Federal agencies are, of course, the
entities whose conduct would be regulated by these proposals and making
decisions based only on their input, without having the opportunity to
consider the input of other stakeholders, including complaining parties
and their representatives, would be insufficient. The Commission will
seriously consider the agency comments in conjunction with the public
comments. The Commission will retain the comments received from the
agencies during the coordination period in the rulemaking file and will
consider and address those comments in the final rule.
In proposing these changes, the Commission seeks to serve two
different yet intertwined purposes: first, to ensure that the process
for federal employee complaints is fair and is perceived to be fair,
and second, to make the process more efficient by eliminating
unnecessary layers, dealing expeditiously with meritless claims and by
delegating authority to front-line employees.
Alternative Dispute Resolution
The Commission proposes to amend section 1614.102 to require all
agencies to establish or make available an alternative dispute
resolution (ADR) program for the EEO pre-complaint process. The
required pre-complaint ADR program would be in addition to the
provisions in the current regulation that encourage the use of ADR at
all stages of the complaint process. Agencies would be free to develop
the programs that best suit their particular needs. While many agencies
have adopted the mediation model as their ADR initiative, other
resolution techniques would be acceptable, provided that they conform
to the core principles set forth in EEOC's policy statement on ADR,
which will be contained in Management Directive 110. Although ADR is
believed to be most effective at the early stages of a dispute,
agencies may continue their ADR efforts at any stage in the process,
including after the formal complaint has been filed. An effective ADR
program will serve both goals set out by the Commission. By resolving
complaints early on, ADR will make the process more efficient. ADR will
also serve to make the process fairer, by giving complainants an
alternative to the counseling process that has been criticized by
agency officials and employee representatives.
The Commission also proposes changes to section 1614.105, which
covers pre-complaint processing, to require that counselors advise
aggrieved persons 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. If a matter is not resolved
during ADR or during traditional counseling activities, the counselor
will conduct a final interview and the aggrieved person may file a
formal complaint. As noted above, agencies would be free to establish
the type of ADR program they offer during the counseling period as long
as it is consistent with the ADR program core principles set out by
EEOC. Before aggrieved persons make a choice between counseling and
ADR, they will have an initial counseling session in which counselors
must fully inform them about their rights and the choice between the
counseling process and the ADR program. Counselors must also inform
aggrieved persons 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. If the aggrieved person chooses
to participate in the agency's ADR program, the role of the counselor
would be limited to advising that person of his or her rights and
responsibilities in the EEO complaint process, as set forth currently
in section 1614.105(b). Counselors would not be required, in those
instances, to attempt to resolve the dispute, but would not be
precluded from doing so, if they believe a matter could be resolved
quickly.
Many agencies who submitted comments on the draft revisions when it
was coordinated under Exec. Order No. 12067 (1978) welcomed Alternative
Dispute Resolution (ADR) at the pre-complaint process stating that ADR
would result in an early resolution of many cases and create a positive
view of the EEO process. A number of agencies suggested that not all
cases are appropriate for ADR. Rather, these
[[Page 8596]]
agencies requested that they should have the flexibility to establish
what type of matter or circumstance would be eligible for ADR. Several
agencies also requested that consideration be given to the practical
difficulties of creating an ADR program, and accordingly, that ample
time be provided to them to obtain the necessary expertise, personnel
and funds for ADR. An effective date will be included in the final rule
and the governing management directive.
Under the proposed regulations, agencies would be free to develop
ADR programs that would best serve their particular needs and unique
circumstances. The EEOC encourages creativity and flexibility in
establishing ADR programs. This would certainly encompass an array of
ADR programs. 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 provide for their ADR programs.
Keeping with our emphasis on flexibility, an agency could exclude
circumstances or matters that it believes are not appropriate for its
ADR program. The Commission does not anticipate that ADR will be used
in connection with every complaint. For example, agencies may exclude
class allegations from its ADR program. As circumstances and needs
change within a particular agency, it could modify its ADR program.
However, it is essential that all agency ADR programs comply with the
spirit of the EEOC's policy statement on the core principles of ADR.
Equal Employment Opportunity Commission's Alternative Dispute
Resolution Policy Statement (July 17, 1995). Management Directive 110
(MD 110) will provide further information and amplify these core
principles.
Some agencies urged that the regulations should clarify the precise
roles and responsibilities of the person responsible for conducting ADR
during the pre-complaint process and the EEO counselor, for example,
whether the mediator or counselor will complete the counselor's report
if mediation or other means of ADR fails. These concerns and other
questions raised by the agencies about how ADR and EEO counseling will
coexist will be explained in MD 110. Each agency will have discretion
to develop its own procedures in accordance with the regulation and MD
110. With this flexibility, there will most likely not be uniformity
among agencies in the precise roles and responsibilities of EEO
counselors and persons conducting ADR activities.
Dismissals
The Commission proposes to amend section 1614.107 to remove one
basis for dismissal of EEO complaints and add two new bases for
dismissal. The Commission proposes to eliminate the provision in
section 1614.107(h) that permits agencies to dismiss complaints for
failure to accept a certified offer of full relief. 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. Unless the
agency offers the full amount of damages permitted under the statutory
caps in the law, it is virtually impossible to assess whether the
agency has offered full relief. 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).
During coordination of EEOC's proposals pursuant to Exec. Order No.
12067, some agencies agreed with EEOC's position that full relief
dismissals have become rare since compensatory damages became available
to federal employees. Other agencies recommended that EEOC revise the
procedure to permit an independent review and certification of full
relief offers by EEOC, arguing that certification of offers by EEOC
would minimize the risk complainants must now take in determining on
their own whether an agency's offer constitutes full relief. Finally,
some agencies simply disagreed with the proposal to eliminate the full
relief dismissal provision, arguing that they continue to use it in
some cases. As noted above, without certification of full relief offers
by EEOC, complainants are in the unfortunate position of trying to
evaluate whether the agencies they believe discriminated against them
have truly offered them all the relief they would be entitled to in a
federal court, and jeopardizing their whole case if they decide in
error. The Commission has determined that it would not be a wise use of
our limited resources at this time to create a certification procedure
for full relief offers. In response to agency comments, though, as more
fully explained below, the Commission has added a provision permitting
agencies to make an ``offer of resolution'' in a case. The 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.
Hence, for all of the reasons set forth above, the Commission proposes
eliminating the regulatory provision permitting agencies to dismiss
complaints for failure to accept a certified offer of full relief.
The Commission proposes to add dismissal provisions permitting
agencies to dismiss complaints for two reasons. First, the Commission
proposes to permit agencies to dismiss complaints that allege
dissatisfaction with the processing of a previously filed complaint
(commonly called spin-off complaints). 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.
Complainants continued, however, to file spin-off complaints. 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. There is no provision in either the regulations or the
management directive permitting the filing of a separate complaint on
this issue. Accordingly, separate complaints should be dismissed. The
Commission proposes to add the dismissal provision permitting 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 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 companion guidance in Management Directive 110 addressing the
procedures agencies must follow to resolve allegations of
dissatisfaction with the complaints process quickly. Individuals
[[Page 8597]]
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, 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. Proper handling of spin-off allegations is important to the
Commission because it involves the overall quality of the complaints
process. Individuals who do not follow the process set out in the
Management Directive for allegations of dissatisfaction will have such
complaints dismissed by the agency or by the Commission. The procedure
to be used will ensure that any evidence of discrimination or improper
handling will be considered as part of the claim before the agency or
Commission without unnecessarily adding complaints to the system.
The Commission also proposes to add a dismissal provision to
section 1614.107 permitting an agency to dismiss a complaint where it
finds a clear pattern of abuse of the EEO process through strict
application of the criteria set forth in Commission decisions. The
proposed section codifies the Commission's decision in Buren v. USPS,
Request No. 05850299 (1985). The Commission has stated that it has the
inherent power to control and prevent abuse of its processes, orders or
procedures. It is within the Commission's purview to determine that
either complainants or agencies are engaging in conduct that
constitutes a scheme designed to frustrate the administrative process.
The Commission also has recognized 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).
The Commission believes that evaluating complaints for dismissal for
abuse of process requires careful deliberation and application of
strict criteria. Agencies must analyze whether a complainant's prior
behavior evidences an ulterior purpose to abuse the EEO process.
Evidence of numerous complaint filings, in and of itself, is an
insufficient basis for making such a finding. Hooks v. USPS, Appeal No.
01953852 (1995). However, multiple filings combined with the nature of
the subject matter of the complaints, lack of specificity in the
allegations, and allegations involving matters previously raised may be
considered in determining whether a complainant has engaged in a
pattern of abuse of the EEO process. Goatcher v. USPS, Request No.
05950557 (1996). The Commission proposes to add the dismissal provision
based on abuse of process, as well as the dismissal for spin-off
complaints, because it believes that they will improve the efficiency
and effectiveness of the EEO process. In addition, dealing summarily
with abusive complaints will make the process fairer for agencies that
must process complaints and for complainants who raise bona fide
allegations by focusing resources on bona fide allegations.
Offer of Resolution
The Commission proposes to add a provision to the procedures
permitting agencies to make offers of resolution to complainants as
long as they are made at least 30 days prior to the hearing. Offers of
resolution must be in writing and must explain to the complainant the
possible consequences of failing to accept the offer. Complainants will
have 30 days to consider the offer and decide whether to accept it. If
a complainant is represented by an attorney at the time that the offer
is made and fails to accept an offer of resolution, and the decision on
the complaint is not more favorable than the offer, then, except where
the interest of justice will not be served, the complainant will not
receive payment from the agency of attorney's fees or costs incurred
after the date of rejection or the expiration of the 30-day period of
the offer of resolution if there has been no rejection. If the offer of
resolution is not accepted within thirty days it is deemed to have been
rejected. Failure to accept an offer of resolution will not preclude an
agency from making other offers of resolution or either party from
seeking to negotiate a settlement of the complaint at any time. If an
agency believes that it has made a fair offer to an unrepresented
complainant who later obtains representation and seeks to avoid further
liability for attorney's fees, the agency can make a new offer in
writing at that time.
The Commission proposes the offer of resolution procedure, in part,
in response to comments from the agencies requesting that the failure
to accept a certified offer of full relief dismissal provision be
retained or modified. The Commission wishes to encourage resolution of
complaints at all times in the complaint process and believes the
proposed offer of resolution provision will provide incentive for
agencies and complainants to resolve complaints. The Commission seeks
comment on the offer of resolution proposal, particularly on the
interest of justice exception to the preclusion of costs and fees. The
Commission believes that the interest of justice standard in the
proposal will apply to those situations in which an administrative
judge determines that it would be unfair to preclude payment of
attorney's fees and costs.
Fragmentation of Complaints
The Commission seeks public comment on whether regulatory changes
are necessary to correct the problem of fragmented processing of EEO
claims. A recurring problem found by the Federal Sector Workgroup was
that many agencies do not distinguish between allegations in support of
a legal claim and the legal claim itself. As a result, some claims
involving a number of different allegations are fragmented or
separated. What should be one legal claim then becomes a number of
miscellaneous events, losing its character as a claim. A hypothetical
example would be a harassment claim where a pattern of incidents are
used to support a claim, but the separate incidents would not
constitute a legally cognizable claim of discrimination. As a result of
fragmentation, the number of discrimination complaints by federal
employees is unnecessarily multiplied and cognizable claims are
fragmented to such an extent that potentially valid claims become
meaningless. The Commission plans on amending its Management Directive
to address this problem and seeks comment on what, if any, regulatory
changes are necessary to correct this problem.
Partial Dismissals
The Commission proposes 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 of complaints
or fragmentation of complaints that may have resulted from the current
provision.
[[Page 8598]]
The Commission proposes to amend section 1614.401 to remove the
right to immediately appeal the dismissal of a portion of a complaint.
In addition, the Commission proposes 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. In those circumstances, the agency will document the
file with its reasons for believing that the portion of the complaint
meets the standards for dismissal and will investigate the remainder of
the complaint. If the complainant requests a hearing from an
administrative judge, the administrative judge will evaluate the
reasons given by the agency for believing a portion of the complaint
meets the standards for dismissal before holding the hearing. If the
administrative judge believes that all or a part of 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. The parties may conduct discovery to develop a record for all
portions of the complaint continuing in the hearing process. The
administrative judge's decision on the partial dismissal will become
part of the final decision on the complaint, which either party may
appeal to EEOC, in accordance with proposed section 1614.401. 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 decision, including any
partial dismissals, to the EEOC.
Hearings
The Commission proposes four changes to the hearings process.
First, the Commission proposes to amend section 1614.108, by adding a
new paragraph (g), providing that complainants who wish to have a
hearing on their complaints after the 180 days period for investigation
has expired would be required to submit requests for hearings directly
to EEOC, rather than to their agencies, as is the current practice.
Agencies will be required to inform complainants in their
acknowledgment letters of the EEOC office and address where a request
for hearing is to be sent. When requesting a hearing from EEOC,
complainants will be required at the same time to send a copy of the
request for a hearing to their agencies' EEO offices. Upon receipt of a
request for hearing, EEOC would request that the agency provide copies
of the complaint file to EEOC and, if not previously provided, to the
complainant. The Commission believes that the proposed change will
expedite the complaint process. Complainants will communicate directly
with EEOC with copies to their agency, rather than through their agency
whose only function was to serve as a conduit for getting the request
to EEOC. In addition, the proposed change would alleviate concerns that
agencies are not responding to requests for hearings quickly enough by
allowing the parties to communicate directly with EEOC.
Second, the Commission proposes to specify in the regulation at
section 1614.109(b) that administrative judges have the authority to
dismiss complaints during the hearing process for all of the reasons
contained in the dismissal section, 29 CFR 1614.107. Currently,
administrative judges do not have the authority to dismiss complaints
that are in the hearing process, but will remand a complaint back to
the agency for dismissal, where appropriate. The proposed change would
eliminate an unnecessary layer by giving the administrative judge the
authority to dismiss without the need for remanding the complaint to
the agency.
Third, the Commission proposes to add a provision permitting
administrative judges to issue a final 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. A new paragraph 1614.109(f)(4) would contain this
provision, which would supplement administrative judges' existing
authority to issue summary judgment decisions currently contained in 29
CFR 1614.109(e). While the decision is like a dismissal in that it will
result in a ruling against the complainant, it is set out as a separate
subsection because it will be an adjudication on the merits of the
complaints.
Finally, the Commission proposes to amend the regulations to
provide that administrative judges issue final decisions on complaints
that have been referred to them for a hearing. Complainants or agencies
could appeal administrative judges' final decisions to EEOC. Agencies
would continue to issue final decisions in cases where the complainants
request an immediate final decision without a hearing.
The Commission believes that allowing agencies to reject or modify
an administrative judge's findings of fact and conclusions of law leads
to an unavoidable conflict of interest. This is particularly true
because those cases have been referred to a neutral third party, an
EEOC administrative judge, to hear the dispute. Historically, agencies
have rejected or modified a majority of administrative judges' findings
of discrimination, but have adopted nearly all findings of no
discrimination. In fiscal year 1996, Commission administrative judges
issued 3,083 decisions, of which 284, or 9.2%, found discrimination.
Agencies accepted only 101 of those decisions and rejected 178, or
62.7%. Conversely, of the 2,799 findings of no discrimination, agencies
rejected only four or 0.1%. The Commission does not have available
current information containing the percentage of agency decisions it
accepts or rejects on appeal following administrative judge decisions.
The Commission believes that the proposed change will address the
perception of unfairness and conflict of interest in agencies deciding
complaints of discrimination against them. In addition, this proposal
eliminates a layer of review and permits decision-making at an earlier
state, central goals of the National Performance Review, thus making
the process more efficient.
Of those federal agencies that commented on the draft regulation
when the regulation was coordinated under Exec. Order No. 12067 (1978),
some supported the proposal to make the decision of the administrative
judge final. A number of agencies opposed it, however, chiefly arguing
that the Commission did not have authority to allow administrative
judges to issue final decisions, while some agencies believed that the
administrative judge could only issue a final decision if the hearing
was the first level of an appeal to the Commission. The Commission
believes that it has broad authority to restructure the discrimination
complaint process for federal employee complaints and that
administrative judges can issue decisions as proposed.
Section 717(b) of the Civil Rights Act of 1964 authorizes the
Commission to ``issue such rules, regulations, orders, and instructions
as it deems necessary and appropriate to carry out its responsibilities
under this section.'' 42 U.S.C. Sec. 2000e-16(b). Such broad language
has been interpreted by the courts to constitute a delegation of
legislative rulemaking authority. E.g.,
[[Page 8599]]
Mourning v. Family Publications Service, Inc., 411 U.S. 356 (1973);
Public Utilities Commission of California v. United States, 355 U.S.
534, 542-43 n. 4 (1958).
In 1972 Congress gave this rulemaking authority to the Civil
Service Commission, which was the predecessor to the EEOC in having
responsibility for enforcing the employment discrimination laws in the
federal sector. In so doing, Congress made it clear that it was
granting the Commission complete authority to restructure the complaint
process to ensure protection of the interests of all parties involved
in the process. It explained:
One feature of the present equal employment opportunity program
which deserves special scrutiny by the Civil Service Commission is
the complaint process. The procedure under the present system,
intended to provide for the informal disposition of complaints, may
have denied employees adequate opportunity for impartial
investigation and resolution of complaints.
Under present procedures, in most cases, each agency is still
responsible for investigating and judging itself. Although provision
is made for the appointment of an outside examiner, the examiner
does not have the authority to conduct an independent investigation,
and his conclusions and findings are in the nature of
recommendations to the agency head who makes the final agency
determination on whether there is, in fact, discrimination in that
particular case. The only appeal is to the Board of Appeals and
Review in the Civil Service Commission.
The testimony before the Labor Subcommittee reflected a general
lack of confidence in the effectiveness of the complaint procedure
on the part of Federal employees. Complainants have indicated
skepticism regarding the Commission's record in obtaining just
resolution of complaints and adequate remedies. This has, in turn,
discouraged persons from filing complaints with the Commission for
fear that doing so will only result in antagonizing their
supervisors and impairing any future hope of advancement. The new
authority given to the Civil Service Commission in the bill is
intended to enable the Commission to reconsider its entire complaint
structure and the relationships between the employee, agency, and
Commission in these cases.
S. Rept. No. 92-415 (1971), reprinted in Legislative History of the
Equal Employment Opportunity Act of 1972, 410 at 423 (1972) (emphasis
added).
In 1979, the authority for enforcement of the federal employee
complaint process was transferred from the Civil Service Commission to
EEOC. In proposing this transfer, the President stated:
Transfer of the Civil Service Commission's equal employment
opportunity responsibilities to EEOC is needed to ensure that: (1)
Federal employees have the same rights and remedies as those in the
private sector and in state and local government; (2) Federal
agencies meet the same standards as are required of other employers;
and (3) potential conflicts between an agency's equal employment
opportunity and personnel management functions are minimized.... The
Civil Service Commission has in the past been lethargic in enforcing
fair employment requirements within the Federal government.
Hearings Before a Subcommittee of the Committee on Government
Operations, Reorganization Plan No. 1 of 1978 (Equal Employment
Opportunity), at 6-7 (1978). In its report on the Plan, the Office of
Management and Budget stated that ``The Civil Service Commission is
expected to be lawmaker, prosecutor, judge and jury on employment
discrimination in the Federal workforce. Organizational deficiencies
like these inevitably lead to less rigorous compliance.'' Hearings,
Reorganization Plan No. 1 of 1978 at 186. In addition, OMB stated that
``[t]he Civil Service Commission's regulations concerning the filing of
class action complaints are highly restrictive.'' Hearings,
Reorganization Plan No. 1 of 1978 at 193. The type of organization
conflict of interest that the Commission seeks to eliminate in this
proposal, where an agency both takes an action and then serves as the
final decision maker on the complaint, has been of concern for years.
By proposing these changes, the EEOC is doing precisely what the
Congress envisioned would be done, i.e., the Commission is
reconsidering the complaint structure and the relative positions of the
employee, the agency and the Commission. The language of section 717,
its legislative history, and the transfer of that responsibility to
EEOC under Reorganization Plan No. 1 of 1978 all confirm that the EEOC
has been given the broadest possible authority to restructure the
complaints process for individual and class complaints.
Those agencies that assert that EEOC lacks the authority to change
its regulations to make administrative judges' decisions final, or that
it can only be done as part of an appellate procedure, rely on section
717(c), 42 U.S.C. Sec. 2000e-16(c). Section 717(c) provides:
Within thirty days of receipt of notice of final action taken by a
department, agency, or unit referred to in subsection 717(a), or by
the Civil Service Commission upon an appeal from a decision or order
of such department, agency, or unit on a complaint of
discrimination, * * * or after one hundred and eighty days from the
filing of the initial charge with the department, agency, or unit,
until such time as final action may be taken by a department, or
unit, an employee or applicant for employment, if aggrieved by the
final disposition of his complaint, or by the failure to take final
action on his complaint, may file a civil action as provided in
section 706, * * *
This language, which permits a federal employee to file suit against
the agency alleged to have discriminated, waives the government's
sovereign immunity from suit. Chandler v. Roudebush, 425 U.S. 849
(1976); Brown v. GSA, 425 U.S. 820 (1976). Nothing in this statutory
language limits EEOC's ability to issue regulations under subsection
717(b) or to structure the administrative process to enhance its
effectiveness and fairness. The language delineates when, under the
procedures that existed at that time, an individual could file suit in
court. There is no indication that Congress also intended to codify any
parts of the existing administrative procedures by the language of this
sentence. Indeed, the legislative history of section 717 demonstrates
that Congress expected the then-Civil Service Commission to make
significant changes to the complaint process. The importance of
administrative flexibility to improve the complaint process was
reaffirmed in 1978 when the President transferred the responsibilities
for federal employee complaints to EEOC.
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. Only a very small
number of cases are brought as class actions and those that are filed
generally result in a denial of class certification. While an effective
administrative process for class complaints offers several advantages
over litigation in federal court, including informality, lower cost,
and the speed of resolution, the Workgroup found there is a perception
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
[[Page 8600]]
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, we propose several changes 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. Where a class of individuals have
been affected by a policy or practice, it is far more efficient to
address those concerns in one action rather than requiring numerous
individual complaints. These proposed changes seek to make the class
complaint process fairer by allowing individuals to seek class
certification at any reasonable stage in the process. The class
implications of a complaint may not be apparent until the complainant
receives the investigative file or information in discovery that would
indicate that the agency has acted in a way that will have implications
for a class. In addition, to further address the concerns identified by
the Workgroup, the Commission has undertaken a pilot program in which
all decisions on class certification will be made centrally by the
Complaint Adjudication Division of its Office of Federal Operations to
explore possible operational changes.
The Commission proposes four regulatory changes to the class
complaint procedures found at 29 CFR 1614.204. The Commission proposes
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. Some agencies who commented on this
proposal when it was coordinated under Exec. Order No. 12067 supported
the change but asked that the regulation define ``reasonable point in
the process'' and indicate what criteria would be used to determine
that a complaint has class implications. Some agencies opposed the
change, arguing that it would entail additional investigative costs 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. Others objected only to eliminating
counseling, as that it is how the complainant is informed of his or her
rights and responsibilities as class agent.
The Commission believes that the proposed change 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; this is different from the situation of a Rule 23 plaintiff
who does have access to pre-certification discovery on class issues.
Similarly, often an individual complainant will not have reason to know
at the counseling stage that the challenged action actually reflects an
agency policy or practice generally applicable to a class of similarly
situated individuals. 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 should know that the complaint
has class implications, i.e., it potentially involves questions of fact
common to a class and is typical of the claims of a class. Normally,
this point would be no later than the end of discovery at the hearing
stage. It would 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 this time. The Commission believes it would be
impracticable and unproductive to require the complainant to return to
counseling at this stage.
The Commission proposes 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. The Commission particularly invites comment on
this proposal. Agencies who commented on this proposal when it was
coordinated under Exec. Order No. 12067 said they either supported or
opposed it for the same reasons they gave with respect to the proposal
for administrative judges to issue final decisions on individual
complaints. Some agencies said they supported it only if the agency is
given the right to appeal a certification decision. Under the
Commission's proposal, an agency would have such a right under section
1614.401(b), which provides that an agency may appeal an administrative
judge's final decision. The Commission also seeks public comment on
whether to make administrative judges' decisions on the merits final in
class cases, consistent with the proposal to allow administrative
judges to issue final decisions in section 1614.109(h).
In addition, the Commission proposes 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.
Several agency commenters under Exec. Order No. 12067 supported this
proposal while others disagreed, arguing that it would add an
unnecessary layer of review 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.
The Commission believes this proposed change is necessary to protect
the interests of the class. 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 would make 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.
Finally, the Commission proposes to amend section 1614.204(l)(3) to
clarify the burdens of proof applicable to individual class members who
believe they are entitled to relief. The proposed change would make
explicit that the burdens enunciated in Teamsters v. United States, 431
U.S. 324 (1977), 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. Agencies then would be 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).
[[Page 8601]]
Appeals
In addition to the proposal to allow complainants or agencies to
appeal administrative judges' final decisions, noted above, the
Commission proposes to revise the briefing schedules for appeals to
EEOC, to add a provision permitting the Office of Federal Operations to
sanction parties for failure to comply with the regulations, to change
the standard of review for some appeals, and to revise the process for
seeking reconsideration of appeals decisions. The Commission proposes
to amend section 1614.403 of the regulations to require that
complainants submit any statement or brief in support of an appeal of
dismissal of a complaint to EEOC within 30 days of receipt of the
dismissal. Any statement or brief in support of an appeal of a final
decision on a complaint would have to be submitted to EEOC within 30
days of filing the notice of appeal. Statements or briefs in opposition
to appeals would have to be served on the opposing party within 30 days
of receipt of a statement or brief in support of an appeal. The
Commission will strictly apply appellate time frames. Currently,
complainants have 30 days after filing the notice of appeal to submit a
statement or brief. The Commission believes that 30 days is sufficient
time to file briefs in procedural cases (cases that are dismissed by
the agency or the administrative judge) because those cases usually do
not raise voluminous factual issues. On the other hand, appeals of
final decisions on the merits of cases generally require a thorough
review of the record and warrant additional time to formulate arguments
to support the appeals. In connection with the briefing schedule
changes, the Commission proposes to amend the regulation to require
agencies to submit the complaint file to EEOC within 30 days of
notification that the complainant has filed an appeal or within 30 days
of submission of an appeal by the agency.
The Commission proposes to amend section 1614.404 to add a
paragraph authorizing the Office of Federal Operations to take
appropriate action where a party to an appeal fails without good cause
shown to comply with the appellate procedures or to respond fully and
in timely fashion to a request for information. The proposal would
allow the Office of Federal Operations to draw an adverse inference
that requested information a party failed to provide would have
reflected unfavorably on that party, to consider the matters to which
the requested information pertains to be established in favor of the
opposing party, to issue a decision fully or partially in favor of the
opposing party, or to take such other actions as appropriate.
The Commission proposes to amend section 1614.405 of the
regulations to provide that decisions on appeal from final decisions by
administrative judges after a hearing will be based on a substantial
evidence standard of review, but review of all other decisions will be
based on a de novo standard of review. The version of the NPRM
circulated for interagency coordination had included a clearly
erroneous standard of review for administrative judges' factual
findings; this was changed to the substantial evidence standard now in
the NPRM at the request of agencies, who took the position that the
clearly erroneous standard was too restrictive. No new evidence will be
considered on appeal unless the evidence was not reasonably available
during the hearing process. It should be emphasized that the
substantial evidence standard does not preclude meaningful review of
factual findings. However, 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. In
addition, since EEOC's Office of Federal Operations did not see and
hear the witnesses, it would not be in a position to second-guess the
administrative judge during the appellate process, especially with
respect to credibility determinations based on a witness' demeanor.
Factual findings based on documentary evidence are more susceptible to
review in the appellate process.
Finally, the Commission proposes to amend sections 1614.405 and
1614.407 to model its reconsideration process after the process used by
the Merit Systems Protection Board (MSPB). Reconsideration is an extra
layer of review that is duplicative and time-consuming but that does
little to improve the complaints process. The Commission denies the
majority of requests for reconsideration, whether in procedural or
merits cases. The purpose of this change is to enable the Commission to
direct more resources to decision-making at the first appellate level,
focusing on policy issues it deems important and developing a
consistent body of decisional law on those issues. Restructuring the
reconsideration process will permit the Commissioners to become more
involved in the initial appellate decision. This proposal would also
effectuate one of the central goals of the National Performance Review
by, in many cases permitting decision-making at an earlier stage. The
Commission will retain its discretion to reconsider any decision under
section 1614.407(a).
Most agency commenters who commented on this proposal when it was
coordinated under Exec. Order No. 12067 opposed eliminating the right
to seek reconsideration. They urged retention of the right to request
reconsideration as a safeguard for agencies against mistakes and
inconsistencies by the Office of Federal Operations. It would be unfair
to deny agencies this last opportunity for recourse, they maintained,
particularly if administrative judges' decisions are made final and
given greater deference. They argued the change would unjustifiably tip
the balance in favor of complainants, who have the right to file suit
in federal court and receive a de novo review. As they noted, agencies
do not have the right to any court review if dissatisfied with a
Commission decision. Several commenters also argued in favor of
preservation of the right to request reconsideration of at least those
decisions involving important legal issues or having a significant
impact on agency policies or programs beyond the case at hand. In
response to these comments the Commission has provided standards for
parties to meet in seeking reconsideration. While reconsideration will
continue to be discretionary, parties can seek reconsideration where
there is a clear mistake of fact or law or where the decision will have
a far ranging impact on the agency.
Reformation of the reconsideration process is an important
component of the proposed federal sector reforms. It will provide the
resources to improve the timeliness and quality of the Commission's
Office of Federal Operations decisions across the board. The broad
availability of reconsideration has not significantly enhanced the
overall decision-making process. Many requests are simply a reargument
of previously unsuccessful positions. They are sometimes used only to
delay the finality of an adverse decision. The overwhelming majority of
requests are denied. For example, in fiscal year 1997, requests for
reconsideration resulting in a reversal of an order on the merits
occurred in only seven instances or about 4% of the cases. For fiscal
years 1996, 1995, 1994 and 1993, the figures were 5%, 2%, 2% and 3%,
respectively.
To the extent agencies have legitimate complaints about erroneous
Office of Federal Operations decisions, the Commission believes the
principal remedy is to seek to improve the quality timeliness and
consistency of the
[[Page 8602]]
decision-making process as a whole. This is best accomplished by
shifting resources to the appeal stage. Although the agencies view it
as unfair that, unlike complainants, they cannot go to court if they
are dissatisfied with the administrative process, the Commission does
not believe that this argument supports adding another layer to the
process. Regardless of how the reconsideration process is structured,
complainants will still have the right to obtain court review while
agencies will not. This inherent aspect of the process does not
outweigh the need for finality at an earlier stage and the value of a
more streamlined process. Finally, some agencies have argued that
reconsideration is an important step to ensure full consideration of
the agency position in cases involving significant legal issues or
broader consequences for agency policies and programs. In the first
instance, it is incumbent upon the agency to identify and thoroughly
address such policy or legal issues in its brief at the appellate stage
so that the Commission can give the case the level of scrutiny
warranted at the most appropriate level of review. Moreover, the
proposed standards address this concern.
Attorney's Fees
The Commission proposes to amend the attorney's fees section of the
regulations to authorize administrative judges to calculate reasonable
attorney's fees in cases where a hearing is requested. Currently,
administrative judges decide the entitlement to attorney's fees.
Agencies, however, calculate the amount of the award. The Commission
believes that administrative judges are in a better position to render
an impartial decision on the reasonableness of the fees request. They
have heard the evidence and can assess the complexity of the case as
presented by the attorney as the basis of the award. Moreover, because
administrative judges are neutral third parties to the dispute, their
attorney's fees calculations will not be perceived as biased in favor
of one party or the other. This proposal has been questioned by some
agencies because administrative judges generally have not issued such
awards previously. In light of these concerns, the Commission will
issue guidance to administrative judges on the calculation of
reasonable attorney's fees. The Commission will consult with other
agencies prior to issuing the guidance.
In addition, the Commission proposes to amend section
1614.501(e)(1)(iv) to provide that an award of attorney's fees may
include compensation for the time spent during the counseling period
including any ADR process. The Commission believes that the current
regulation, which limits attorney's fees awards to fees for work
performed after a formal complaint is filed, could serve as a
disincentive to participate in alternative dispute resolution, which
often occurs during the counseling period, or otherwise settle a case
during counseling.
During inter-agency coordination of the proposed rule, many
agencies expressed opposition to this proposal to provide for
attorney's fees awards for pre-complaint activities, arguing that
providing for attorney's fees will formalize the informal counseling
process and make it more legalistic and adversarial. While the
Commission believes that the availability of attorney's fees will
permit settlement early on, agencies believe that it will draw out the
process. The Commission proposes the change, in part, to make the EEO
complaint remedies consistent with the remedies available to Federal
employees in other forums. The Office of Personnel Management's (OPM)
Back Pay Act regulations provide for the payment of attorney's fees
without a temporal restriction in cases correcting unjustified or
unwarranted personnel actions. 5 CFR 550.807. In other words, OPM's
regulations provide for full attorney's fees, including cases resolved
during the informal stage (first step) of the grievance process.
Likewise, the Merit System Protection Board's (MSPB) regulations do not
contain any restriction on attorney's fees. 5 CFR 1201.37. The
Commission does not believe that federal employees who have been
discriminated against should receive a lesser remedy than federal
employees who prevail in grievances and MSPB appeals. The Commission is
particularly interested in comments on this proposal.
In addition to the proposed changes outlined above, the Commission
proposes 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. This inclusion is consistent with prior Commission decisions and
with the determination of the Solicitor General that Commissioned Corps
member are covered by federal sector anti-discrimination statutes.
In proposing these changes, the Commission wishes to reiterate its
intention to monitor the federal employee complaint process and to
propose changes that may become necessary to correct problems that may
develop. In order to better monitor the system, the Commission will
examine the data that it maintains on complaints and appeals to ensure
that appropriate information about appeals from final decisions,
attorney's fees awarded and other costs exists.
Regulatory Procedures
Executive Order 12866
In promulgating this notice of proposed rulemaking, the Commission
has adhered to the regulatory philosophy and applicable principles of
regulation set forth in section 1 of the 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, Age discrimination, Equal
employment opportunity, Government employees, Individuals with
disabilities, Race discrimination, Religious discrimination, Sex
discrimination.
For the Commission.
Paul M. Igasaki,
Chairman.
Accordingly, for the reasons set forth in the preamble, it is
proposed to amend chapter XIV of title 29 of the Code of Federal
Regulations 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.
[[Page 8603]]
2. Section 1614.102 is amended by redesignating paragraphs (b)(2)
through (b)(6) as paragraphs (b)(3) through (b)(7), and by adding
paragraph (b)(2) to read as follows:
Sec. 1614.102 Agency program.
* * * * *
(b) * * *
(2) Establish or make available an alternative dispute resolution
program for the equal employment opportunity pre-complaint process.
* * * * *
3. Section 1614.103 is amended by removing the word ``and'' at the
end of paragraph (b)(3), removing the period at the end of paragraph
(b)(4), adding the word ``; and'' at the end of paragraph (b)(4) and
adding paragraphs (b)(5) and (b)(6) to read as follows:
Sec. 1614.103 Complaints of discrimination covered by this part.
* * * * *
(b) * * *
(5) The Public Health Service Commissioned Corps, except when, in
time of war or national emergency, the President declares the Corps to
be a military service in accordance with 42 U.S.C. 217;
(6) The National Oceanic and Atmospheric Administration
Commissioned Corps.
* * * * *
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 orally and 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 matter(s) raised in precomplaint counseling (or issues
like or related to issues raised in pre-complaint counseling) may be
alleged in a subsequent complaint filed with the agency. * * *
(2) Counselors shall advise aggrieved persons that they may choose
between participation in the alternative dispute resolution program
offered by the agency 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 matter 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 adding a sentence after the first
sentence of the introductory text of paragraph (d) to read as follows:
Sec. 1614.106 Individual complaints.
* * * * *
(d) * * * 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. * * *
* * * * *
6. Section 1614.107 is amended by redesignating paragraphs (a)
through (h) as paragraphs (a)(1) through (8), redesignating the
introductory text as paragraph (a) introductory text and revising it,
revising paragraph (a)(8) and adding new paragraph (a)(9) and paragraph
(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 applies the criteria set forth in
Commission decisions and finds a clear pattern of misuse of the EEO
process.
(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 allegations 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 a final decision is issued on the remainder of
the complaint.
7. Section 1614.108 is amended by revising paragraph (f) and adding
a new paragraph (g) to read as follows:
Sec. 1614.108 Investigation of complaints.
* * * * *
(f) Within 180 days from the filing of the 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 final
decision from an administrative judge or may receive 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 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. Upon receipt of a request for a hearing, EEOC will request that
the agency provide copies of the complaint file to EEOC and, if not
previously provided, 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), revising the introductory text of
redesignated paragraph (f)(3), in redesignated paragraph (g) removing
the phrases ``findings and conclusions'' and adding, in their place,
the words ``final decisions'', adding a new paragraph (g)(4), and
revising 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
[[Page 8604]]
hearing in accordance with this section. Any hearing will be conducted
by an administrative judge or hearing examiner with appropriate
security clearances. Where the administrative judge determines that the
complainant is raising or intends to pursue issues like or related to
those raised in the complaint, but which the agency has not had an
opportunity to address, the administrative judge may remand any such
issue for counseling in accordance with Sec. 1614.105 or for such other
processing as ordered by the administrative judge.
(b) Dismissals. Administrative judges shall dismiss complaints
pursuant to Sec. 1614.107.
(c) Offer of resolution. Any time after the initial counseling
session but more than 30 days prior to the hearing, the agency may make
an offer of resolution of the complaint to the complainant. The offer
of resolution shall be in writing and shall include a notice explaining
the possible consequences of failing to accept the offer. The
complainant shall have 30 days from receipt of the offer of resolution
to accept or reject it. If the complainant is represented by an
attorney when the offer is made and fails to accept an offer of
resolution, and the final decision on the complaint 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 date of rejection
or the expiration of the 30-day period of the offer of resolution if no
rejection has been made. 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 or either party may seek to
negotiate a settlement of the complaint at any time.
(f) * * *
(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:
* * * * *
(g) * * *
(4) Where the administrative judge determines, 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, the
administrative judge may issue a final decision without a hearing.
* * * * *
(i) Final decisions by administrative judges. Unless the
administrative judge makes a written determination that good cause
exists for extending the time for issuing a final decision, within 180
days of receipt by EEOC of a request for a hearing, an administrative
judge shall issue a final decision on the complaint, and shall order
appropriate remedies and relief where discrimination is found with
regard to the matter that gave rise to the complaint. The
administrative judge shall send copies of the entire record, including
the transcript, and the final decision to the parties by certified
mail, return receipt requested. The final decision shall contain notice
of the right of either party to appeal to the Commission, notice of the
right of the complainant 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 decision.
9. Section 1614.110 is amended by revising the title and first and
second sentence to read as follows:
Sec. 1614.110 Final decisions by agencies.
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 agency shall issue 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, appropriate remedies and relief in accordance
with subpart E of this part.* * *
10. 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 replacing it
with the word ``decide'' in paragraph (d)(6), revising paragraph
(d)(7), paragraph (e)(1), paragraph (g)(2) and paragraph (l)(3) 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.
* * * * *
(d) * * *
(7) The administrative judge shall transmit his or her decision to
accept or dismiss a complaint to the agency and the agent. The
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 Office of Federal
Operations 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 as long as the administrative judge finds the
agreement to be fair and reasonable.
* * * * *
(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. The claim must include a specific,
detailed showing that the claimant is a class member who was affected
by a personnel action or matter resulting from the discriminatory
policy or practice, and that this discriminatory
[[Page 8605]]
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 period of time for which the agency
finds class-wide discrimination shall begin not more than 45 days prior
to the agent's initial contact with the Counselor and shall end not
later than the date when the agency eliminates the policy or practice
found to be discriminatory in the agency decision. 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 subpart D of this part and the
applicable time limits.
11. Section 1614.401 is amended by redesignating paragraphs (b)
through (d) as paragraphs (c) through (e), revising paragraph (a) and
adding a new paragraph (b) to read as follows:
Sec. 1614.401 Appeals to the Commission.
(a) A complainant may appeal an agency's final decision or the
agency's dismissal of a complaint.
(b) A complainant or an agency may appeal an administrative judge's
final decision or an administrative judge's dismissal of a complaint.
* * * * *
12. 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 will be untimely and shall be dismissed by
the Commission.
(d) Where an appellant appeals a dismissal, any statement or brief
in support of the appeal must be submitted to the Office of Federal
Operations within 30 days of receipt of the dismissal. Where an
appellant appeals a final decision, any statement or brief in support
of the appeal must be submitted within 30 days of filing the notice of
appeal.
(e) The agency must submit the complaint file to the Office of
Federal Operations within 30 days of 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.
13. 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.
14. Section 1614.405 is amended by revising the third sentence of
paragraph (a) and revising paragraph (b) to read as follows:
Sec. 1614.405 Decisions on appeals.
(a) * * * The decision on an appeal from a final decision 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(h) 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. 1614.408 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.
15. Section 1614.407 is removed and sections 1614.408 through
1614.410 are redesignated sections 1614.407 through 1614.409.
16. Section 1614.501 is amended by revising the last sentence of
the introductory text of paragraph (e)(1), and revising paragraph
(e)(1)(iv) to read as follows:
Sec. 1614.501 Remedies and relief.
* * * * *
(e) Attorney's fees or costs--(1) * * * In a final decision, the
agency, administrative judge, or Commission may award the applicant or
employee reasonable attorney's fees or costs (including expert witness
fees) incurred in the processing of the complaint.
* * * * *
(iv) Attorney's fees shall be paid for all services performed by an
attorney, provided that the attorney provides reasonable notice of
representation to the agency, administrative judge or Commission.
Written submissions to the agency that are signed by the representative
shall be deemed to constitute notice of representation.
* * * * *
17. Section 1614.502 is amended by revising the first sentence of
paragraph (a), revising paragraph (b) introductory text and 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 decision on appeal to the Commission
is mandatory and binding on the agency except as provided below. * * *
(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
[[Page 8606]]
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 at the rate set by the IRS for the
underpayment of taxes compounded quarterly 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.
* * * * *
[FR Doc. 98-4165 Filed 2-19-98; 8:45 am]
BILLING CODE 6570-01-P