[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37644-37661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17497]



[[Page 37643]]

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Part V





Equal Employment Opportunity Commission





_______________________________________________________________________



29 CFR Part 1614



Federal Sector Equal Employment Opportunity; Final Rule

  Federal Register / Vol. 64, No. 132 / Monday, July 12, 1999 / Rules 
and Regulations  

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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.

ACTION: Final rule.

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SUMMARY: This rule revises the Equal Employment Opportunity 
Commission's federal sector complaint processing regulations to 
implement the recommendations made by its Federal Sector Workgroup. The 
rule revises procedures throughout the complaint process, addressing 
the continuing perception of unfairness and inefficiency in the 
process. The Commission is requiring that agencies make available 
alternative dispute resolution programs, and is revising the counseling 
process, the bases for dismissal of complaints and the procedures for 
requesting a hearing. EEOC is providing administrative judges with 
authority to dismiss complaints and issue decisions on complaints. 
Agencies will have the opportunity to issue a final order stating 
whether they will implement the administrative judge's decision. The 
Commission is also revising the class complaint procedures, the appeals 
procedures, and the attorney's fees provisions.

DATES: Effective Date: This final rule will become effective on 
November 9, 1999.
    Applicability Dates: The requirement in Secs. 1614.102(b)(2) and 
1614.105(b)(2) will apply on January 1, 2000 for agencies that do not 
currently have ADR programs. All actions taken by agencies and by the 
Commission after November 9, 1999 shall be in accordance with this 
final rule.

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 final rule is also available in the following 
formats: large print, braille, audio tape and electronic file on 
computer disk. Requests for the final rule in an alternative format 
should be made to EEOC's Publication Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION:

Introduction

    The Equal Employment Opportunity Commission, as part of an ongoing 
effort to evaluate and improve the effectiveness of its operations, 
established the Federal Sector Workgroup, which 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: 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 reviewed and evaluated EEOC's administrative 
processes governing its enforcement responsibilities in the federal 
sector and, after consulting with affected agencies and groups of 
stakeholders, developed recommendations to improve 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 Commission drafted a Notice of Proposed Rulemaking (NPRM) that 
was circulated to all agencies for comment pursuant to Executive Order 
12067 and subsequently published in the Federal Register on February 
20, 1998. The Notice proposed changes to the Commission's federal 
sector complaint processing regulations at 29 CFR Part 1614 to 
implement the regulatory recommendations of the Federal Sector 
Workgroup. 63 FR 8594 (1998). It sought public comment on those 
proposals.
    The Commission received over sixty comments on the NPRM. Federal 
agencies and departments submitted 19 comments. Ten comments were 
submitted by civil rights groups and attorneys groups and law firms, 
four were submitted by federal employee unions and union 
representatives, one by an association of federal EEO executives, and 
one was submitted by a Member of Congress. EEOC also received 27 
comments from individuals, including federal employees, attorneys and 
other interested persons. The Commission has carefully considered all 
of the comments and, as stated in the February Notice, also considered 
the comments of agencies made during the interagency comment period. 
The Commission has made a number of changes to the proposals contained 
in the NPRM in response to the comments. In making these changes, the 
Commission intends to continue its efforts to reform the federal sector 
discrimination procedures. While the Commission believes that these 
changes will make the procedures fairer, the Commission will continue 
to seek improvements in the procedures. The comments on the NPRM and 
all of the changes to the proposals are discussed more fully below.

Alternative Dispute Resolution

    In the NPRM, the Commission proposed to require all agencies to 
establish or make available an alternative dispute resolution (ADR) 
program for the EEO pre-complaint process. In addition, EEOC proposed 
to require that counselors advise aggrieved persons at the initial 
counseling session 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.
    The commenters generally supported both proposals, agreeing that 
providing an ADR mechanism in the pre-complaint stage of the EEO 
process will resolve more claims earlier in the process. Many of the 
agency commenters emphasized their need for flexibility in developing 
their ADR programs. Small agencies, in particular, requested that they 
have the authority to determine on a case-by-case basis whether to 
offer ADR to an aggrieved person for his or her claim. Other agencies 
urged the Commission to ensure that the election provision take into 
account that ADR should be voluntary for both parties, the aggrieved 
person and the agency. Commenters also requested that EEOC clarify how 
the pre-complaint process will operate when ADR is involved and address 
the responsibilities of the Counselors throughout that process.
    The Commission has revised the ADR and counseling provisions in 
response to the comments. Agencies will be required to establish or 
make available an ADR program. The ADR program must be available during 
both the pre-complaint process and the formal complaint process. The 
Commission encourages agencies to use ADR as a valuable tool in 
resolving EEO disputes at all stages of the EEO process.
    Agencies are free to develop ADR programs that best suit their 
particular

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needs. While many agencies have adopted the mediation model, other 
resolution techniques are acceptable, provided that they conform to the 
core principles set forth in EEOC's policy statement on ADR, contained 
in Management Directive 110. The Commission believes that agencies 
should have flexibility in defining their ADR programs. EEOC expects 
that, overall, agencies will develop an array of ADR programs, designed 
to suit their particular circumstances. 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 make available 
an ADR program.
    In keeping with the Commission's emphasis on voluntariness as a 
component of ADR, agencies may decide on a case-by-case basis whether 
it is appropriate to offer ADR to individual aggrieved persons. EEOC 
does not anticipate that ADR will be used in connection with every 
claim brought to a Counselor. For example, some agencies may wish to 
limit pre-complaint ADR geographically (if extensive travel would be 
required), or by issue (excluding, for example, all claims alleging 
discriminatory termination). Some agencies may wish to exclude class 
allegations from their ADR programs. Agencies may not, however, exclude 
entire bases of discrimination from ADR programs. For example, it would 
be inappropriate for an agency to exclude from its ADR program all 
claims alleging race discrimination.
    In response to a comment, the Commission has revised the regulatory 
provision governing the initial counseling session. The Commission has 
removed from section 1614.105(b)(1) the requirement that Counselors 
advise individuals both orally and in writing of their rights and 
responsibilities, revising the section to require only that Counselors 
provide that information in writing. Counselors are encouraged to 
discuss the rights and responsibilities involved in the EEO process 
orally with individuals, but are only required to provide that 
information to the individuals in writing.
    When an agency offers ADR to an individual during the pre-complaint 
process, the individual may choose to participate in the ADR program at 
any point in the pre-complaint process. In all cases, the Counselor 
will conduct an initial counseling session, as currently provided, 
identifying claims and fully informing individuals about their rights. 
When ADR is selected, resolution attempts through traditional 
counseling will be eliminated and the limited inquiry of the 
traditional counseling will change. Counselors must also inform 
individuals 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. Management Directive 110 will contain 
additional guidance on these pre-complaint procedures.
    The Commission's intention in requiring an ADR program is that 
agencies establish informal processes to resolve claims. Thus any 
activity conducted in connection with an agency ADR program during the 
EEO process would not be a formal discussion within the meaning of the 
Civil Service Reform Act. Generally, the agency should have an official 
at any ADR session with full authority to resolve the dispute. To the 
extent consultations with other agency officials would be necessary 
during any session, the agency is accountable for making sure those 
consultations can be accommodated.
    If the ADR attempt succeeds in resolving the claim, the agency must 
notify the Counselor that the claim was resolved. If the ADR attempt is 
unsuccessful, the agency must return the claim to the Counselor to 
write the counseling report. That report will describe the initial 
counseling session, frame the issues, and report only that ADR was 
unsuccessful.

Dismissals

    In the NPRM, the Commission proposed three changes to the dismissal 
provision contained in section 1614.107. First, the Commission proposed 
to remove the provision contained in section 1614.107(h) permitting 
agencies to dismiss complaints for failure to accept a certified offer 
of full relief. As explained in the preamble to the NPRM, 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. 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). Unless the agency offers the full 
amount of damages permitted under the statutory caps in the law, it is 
virtually impossible for the complainant to assess whether the agency 
has offered full relief.
    The non-agency commenters uniformly supported the proposal to 
eliminate the full relief dismissal provision. Agency comments were 
mixed with nearly as many agencies supporting the change as opposing 
it. For the foregoing reasons, the Commission has decided to remove the 
failure to accept a certified offer of full relief dismissal basis from 
the regulations. At the same time, the Commission is retaining the 
provision from the NPRM that permits agencies to make an offer of 
resolution in a case. This 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, and is discussed in greater detail 
below.
    In the NPRM, EEOC proposed to add two dismissal provisions to 
section 1614.107. One of the new provisions will require dismissal of 
complaints that allege dissatisfaction with the processing of a 
previously filed complaint (spin-off complaints). As was explained in 
the NPRM, 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. Spin-off complaints continued to be filed, however, 
despite there being no provision in either the regulations or the 
management directive permitting the filing of a separate complaint on 
this issue.
    The comments on the proposal to add a dismissal provision for spin-
off complaints fell into three categories. Agencies favored the 
addition. Some individual federal employees and attorneys opposed the 
dismissal provision and others encouraged EEOC to provide detailed 
guidance in Management Directive 110 on how to handle spin-off 
allegations outside of the EEO process.

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    The Commission continues to believe that 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. The 
spin-off allegations are so closely related to the underlying complaint 
that a separate complaint would result in redundancy, duplication of 
time and waste of resources. Such allegations need to be addressed 
within the over-all context of the initial complaint while that 
complaint is still pending. The Commission has decided to add the 
provision requiring 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 the 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 detailed companion guidance in Management Directive 110 
addressing the procedures to be followed to resolve allegations of 
dissatisfaction with the complaints process quickly and effectively. 
Individuals 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, 
the agency EEO manager, 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 by the individuals 
responsible for that step of the process, who will be required to take 
appropriate action. If any official throughout the process becomes 
aware of a systemic problem of discriminatory complaint processing, 
that official may refer the matter to the Complaints Adjudication 
Division of the Office of Federal Operations at EEOC.
    Proper handling of spin-off allegations is important because such 
allegations involve the overall quality of the complaints process and 
implicate the resources devoted to those allegations. The procedures in 
the Management Directive will ensure that any evidence of 
discriminatory or improper handling will be considered as part of the 
claim before the agency or Commission without unnecessarily adding 
complaints to the system. When an individual presents a counselor, an 
agency official, or the Commission with a spin-off allegation, the 
complainant shall be advised where and how to have the allegation of 
dissatisfaction made part of the existing complaint record. The 
Commission believes that agency and Commission resources should not be 
used to process the allegation as a separate complaint because many of 
these allegations involve evidentiary matters or disagreements with 
agency decisions made in the processing of the underlying complaint. 
Counselors, investigators and agency officials are required to note 
these allegations of dissatisfaction in the complaint record so that 
reviewing entities can ensure that the allegation was properly 
addressed. As a result, individuals who file separate complaints will 
have such complaints dismissed by the agency or by the Commission. The 
Commission has decided to delegate appellate decision-making authority 
for appeals from dismissals of spin-off complaints to the Office of 
Federal Operations to ensure expeditious handling of any such appeals.
    The second new dismissal provision proposed by the Commission in 
the NPRM provides for dismissal of complaints through strict 
application of the criteria set forth in Commission decisions where 
there is a clear pattern of abuse of the EEO process. The proposed 
section would codify the Commission's decisions in Buren v. USPS, 
Request No. 05850299 (1985), and subsequent cases, in which the 
Commission has defined ``abuse of process'' as a clear pattern of 
misuse of the EEO process for ends other than those that it was 
designed to accomplish. The Commission has stated that it has the 
inherent power to control and prevent abuse of its processes, orders, 
or procedures.
    Comments from agencies generally supported the proposal to add 
abuse of process as a basis for dismissal, while non-agency commenters 
opposed it or, while supporting its purpose, expressed concern that 
agencies would invoke this authority too frequently based arbitrarily 
on the number of complaints filed by an individual. Several commenters, 
including agencies and individuals, suggested the criteria for 
dismissal be clearly set forth in the regulation. A few agencies 
thought the criteria should be expanded beyond those set forth in the 
Commission's decisions and that the Commission should provide for 
sanctions for complainants who abuse the process. Some non-agency 
commenters maintained that only administrative judges should have the 
authority to dismiss complaints for abuse of process because agencies 
will abuse their discretion under this provision.
    The Commission has decided to include this dismissal provision in 
its regulation with additional language defining abuse of process as 
``a clear pattern of misuse of the EEO process for a purpose other than 
the prevention and elimination of employment discrimination'' and 
setting forth the factors found in Commission decisions. The Commission 
reiterates 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). Evaluating complaints 
for dismissal for abuse of process requires careful deliberation and 
application of strict criteria. Agencies must analyze whether a 
complainant's behavior evidences an ulterior purpose to abuse the EEO 
process. Improper purposes would include circumventing other 
administrative processes such as the labor-management dispute process; 
retaliating against the agency's in-house administrative machinery; or 
overburdening the EEO complaint system, which is designed to protect 
individuals from discriminatory practices. Hooks v. USPS, Appeal No. 
01953852 (1995). Evidence of numerous complaint filings, in and of 
itself, is an insufficient basis for making a finding of abuse of 
process. Id. However, as stated in the regulation, evidence of multiple 
complaint filings combined with the subject matter of the complaints 
(such as frivolous, similar or identical allegations; lack of 
specificity in the allegations; and allegations involving matters 
previously resolved) may be considered in determining whether a 
complainant has engaged in a pattern of abuse of the EEO process. See 
Goatcher v. USPS, Request No. 05950557 (1996).
    The Commission will require strict adherence to these criteria. 
With respect to the argument that only administrative judges should 
have the authority to dismiss complaints for abuse of process, the 
Commission sees no reason to treat this basis for dismissal differently 
than the others listed in section 1614.107 by disallowing it to 
agencies. The Commission believes that review by the Commission on 
appeal will fully safeguard complainants against arbitrary or unjust 
dismissals.
    The Commission believes that the new dismissal provisions for spin-
off complaints and abuse of process will improve the efficiency and 
effectiveness of the EEO process. In addition, dealing summarily with 
abuse of process complaints will make the process fairer both for 
agencies that must process

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complaints and for complainants who raise bona fide allegations by 
focusing resources on bona fide allegations.

Partial Dismissals

    In the NPRM, the Commission proposed 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 or fragmentation of complaints that may have resulted from 
implementation of the current provision. The Commission proposed to 
amend section 1614.401 to remove the right to immediately appeal the 
dismissal of a portion of a complaint. In addition, the Commission 
proposed 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.
    Comments on eliminating interlocutory appeals for partial 
dismissals were mixed. Many commenters, agencies and others, supported 
the proposal believing that it will simplify the process. The 
commenters who opposed the change expressed concerns that there will be 
no investigatory record of the portion of a complaint dismissed by an 
agency but reinstated by the administrative judge or the Office of 
Federal Operations. Some agencies questioned how the administrative 
judge will be able to evaluate a partial dismissal if there is no 
record on that part of the complaint.
    The Commission believes that eliminating interlocutory appeals of 
partial dismissals will result in a more efficient complaint process 
and will help avoid fragmentation of complaints. The Commission has 
decided, therefore, to finalize the proposals without change. The 
concerns raised by some of the commenters are addressed by the 
procedure contained in new section 1614.107(b). If an agency determines 
that a portion of a complaint, but not all of the complaint, meets one 
or more of the standards for dismissal contained in section 
1614.107(a), the agency must document the file with its reasons for 
believing that the portion of the complaint meets the standards for 
dismissal. Accordingly, the agency must fully explain its reasons for 
dismissing that portion of the complaint, and, if appropriate, include 
any evidence or documents necessary to support that conclusion. The 
agency's rationale and any record supporting that rationale must be 
sufficiently developed for an administrative judge or the Office of 
Federal Operations to evaluate the appropriateness of the partial 
dismissal without further investigation or inquiry. The agency will 
then investigate the remainder of the complaint.
    If the complainant requests a hearing, the administrative judge 
will, as soon as practicable, evaluate the reasons given by the agency 
for believing a portion of the complaint meets the standards for 
dismissal. If the administrative judge believes that 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. Where a portion of a complaint is reinstated in the hearing 
process and the investigatory record from the agency is incomplete as 
to the portion the agency dismissed, the administrative judge will 
oversee supplementation of the record by discovery or any other 
appropriate method. Administrative judges will no longer remand 
complaints or portions of complaints for supplemental investigations by 
the agency, but will ensure that the record is sufficiently developed 
during the hearing process.
    The administrative judge's decision on the partial dismissal will 
become part of the decision on the complaint. 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 action, including any partial dismissals, to the 
EEOC. If the Office of Federal Operations finds that a dismissal was 
improper, it will give the complainant the choice between a hearing and 
an agency final decision on the claim.

Offer of Resolution

    The Commission proposed to add this provision, limiting attorney 
fees and costs when a complainant rejects an offer and subsequently 
obtains less relief, in place of the dismissal for failure to accept 
full relief. The purpose of the offer of resolution is to provide 
incentive to settle complaints and to conserve resources where 
settlement should reasonably occur. Some commenters preferred the full 
relief dismissal to the proposed offer of resolution. Two stated that 
the relief offered should be compared to the relief obtained, rather 
than to the decision obtained, in order to determine which is more 
favorable. A few commenters asked for clarification of what the offer 
must contain, for example, suggesting that it must contain attorney's 
fees. Several commenters raised concerns that a complainant might not 
have enough information to judge whether the offer is reasonable or may 
not fully appreciate the significance of the offer if the offer is made 
early in the process. Others questioned how non-monetary remedies would 
be evaluated for determining whether the relief awarded was more 
favorable than that offered. Some commenters objected that the 
``interest of justice'' exception was too vague; some asked that it be 
defined in the regulation while others suggested that it be deleted for 
that reason. Finally, several commenters believed the proposed 
provision was a good alternative to the dismissal for failure to accept 
full relief.
    After considering these comments, the Commission has decided that 
the offer of resolution is an appropriate alternative to and preferable 
to the dismissal for failure to accept full relief, but has made 
several changes to the provision to address the commenters' concerns. 
Simply to clarify, we have revised the provision so that the relief 
offered is compared with the final relief obtained rather than with the 
decision when determining which is more favorable. That formulation is 
more practicable and expresses the Commission's original intent. We 
have also added a sentence stating that the agency's offer, to be 
effective, must include attorney's fees and costs that have been 
incurred and must specify any non-monetary relief. With regard to 
monetary relief, an agency may make a lump sum offer or it may itemize 
the amounts and types of monetary relief being offered.
    We have revised the offer of resolution provision to include a two-
tiered approach. An offer of resolution can be made to a complainant 
who is represented by an attorney at any time from the filing of a 
formal complaint until 30 days before a hearing. If, however, the 
complainant is not represented by an attorney, an offer cannot be made 
before the parties have received notice that an administrative

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judge has been assigned. We will include model language in the 
Management Directive that agencies are required to include in each 
offer of resolution.
    We note that, when comparing the relief offered in an offer of 
resolution with that actually obtained, we intended that non-monetary 
as well as monetary relief would be considered. Although a comparison 
of non-monetary relief may be inexact and difficult in some cases, non-
monetary relief can be significant and cannot be overlooked.
    The Commission believes that equitable considerations may make it 
unjust to apply the offer of resolution provision in particular cases 
and, thus, the interest of justice exception is necessary to prevent 
the denial of fees in those circumstances. We do not envision many 
circumstances in which the interest of justice provision will apply. 
One example, however, of appropriate use of the exception would be 
where the complainant received an offer of resolution, but was informed 
by a responsible agency official that the agency would not comply in 
good faith with the offer (e.g., would unreasonably delay 
implementation of the relief offered). The complainant did not accept 
the offer for that reason, and then obtained less relief than was 
contained in the offer of resolution. We believe that it would be 
unjust to deny attorney's fees and costs in this case.

Fragmentation

    In the NPRM, the Commission requested public comment on the issue 
of fragmentation of complaints in the federal sector EEO process. 
Specifically, the Commission asked whether regulatory changes are 
necessary to correct the fragmentation problem. EEOC believes that 
agencies are not properly distinguishing between factual allegations in 
support of a legal claim and the legal claim itself, resulting in the 
fragmentation of some claims that involve a number of different 
allegations. Certain kinds of claims are especially susceptible to 
fragmentation, for example, harassment claims and continuing violation 
claims. Fragmentation of claims is undesirable both because it 
unnecessarily multiplies complaints and can improperly render non-
meritorious otherwise valid and cognizable claims.
    The Commission received some comments on the fragmentation issue. 
Commenters recommended the elimination of remands by administrative 
judges, the elimination of partial dismissals (see discussion above), 
and the revision of the consolidation procedures in the regulation. 
Commenters also suggested that EEO Counselors need more training to 
recognize the difference between claims and allegations.
    The Commission has revised the regulation in several places to 
address the fragmentation problem. Section 1614.108(b) has been amended 
to replace the phrase ``matter alleged to be discriminatory'' with the 
word ``claim.'' The Commission believes that agencies may be 
interpreting ``matter'' to mean something less than a claim. Where a 
complainant raises a claim of retaliation or a claim involving terms 
and conditions of employment, subsequent events or instances involving 
the same claim should not be filed as separate complaints, but should 
be treated as part of the first claim. For the same reasons, the 
Commission has revised section 1614.603 to remove the word 
``allegations'' and replace it with ``claims.''
    The Commission is removing from the hearings section the provision 
permitting administrative judges to remand issues to agencies for 
counseling or other processing. The Commission intends that 
administrative judges will have full responsibility for complaints 
after they enter the hearing stage and should no longer remand them to 
the agencies. This change and others involving hearings are discussed 
more fully below.
    Finally, the Commission is adding a provision permitting amendment 
of complaints, and is revising the consolidation section of the 
regulation. Section 1614.106 now permits complainants to amend 
complaints to add issues or claims that are like or related to the 
original complaint any time prior to the conclusion of the 
investigation. After requesting a hearing, complainants may seek leave 
from the administrative judge to amend a complaint to add issues or 
claims that are like or related to the original complaint by filing a 
motion to amend. The Commission has amended section 1614.606, which 
governs joint processing and consolidation of complaints, to require 
that agencies consolidate two or more complaints filed by the same 
complainant. The current consolidation provision is permissive only. 
Moreover, the current provision, the Commission believes, may serve to 
discourage consolidation of complaints because it provides that the 
date of the first filed complaint controls the applicable complaint 
processing time frames. Under this provision, if a complainant filed a 
second complaint 175 days after the first complaint, the current 
regulation would provide the agency with only 5 days to investigate the 
second complaint if it were consolidated with the first complaint. As 
part of the revision to the consolidation section, the Commission 
provides in the final rule that when a complaint has been consolidated 
with an earlier filed complaint the agency must complete its 
investigation within the earlier of 180 days after the filing of the 
last complaint or 360 days after the filing of the original complaint, 
except that a complainant may request a hearing from an administrative 
judge on the consolidated complaints any time after 180 days from the 
date of the first filed complaint. If a complainant requests a hearing 
on consolidated complaints prior to the agency's completion of the 
investigation, the administrative judge will decide how best to insure 
an appropriate record, whether by staying the hearing process for some 
period of time during which the agency can finish its investigation or 
by supplementation of the record through discovery or other methods 
ordered by the administrative judge. When an administrative judge 
becomes aware that one or more complaints in the agency process should 
be consolidated with a complaint in the hearing process, the 
administrative judge may consolidate all claims at the hearing stage or 
hold the complaint in the hearing process until the others are ready 
for hearing.
    Management Directive 110 will contain additional guidance on 
amendment of complaints, consolidation of complaints, and 
fragmentation, including what constitutes a cognizable claim under the 
employment discrimination statutes.

Hearings

    The Commission proposed several changes to the hearings provisions 
in the Notice of Proposed Rulemaking, the most significant being the 
proposal to make administrative judge's decisions final in complaints 
referred to them for hearing. The Commission received dozens of 
comments on this proposal, with the majority of agency commenters 
opposing it and the non-agency commenters overwhelmingly favoring it. A 
number of agencies challenged EEOC's statutory authority to make 
administrative judges' decisions final, arguing that section 717(c) of 
Title VII requires that agencies take final action on EEO complaints 
before a complainant may appeal to EEOC. In addition, an agency argued 
that agency final action is required to trigger federal court suit 
rights. Section 717(c) permits an individual to file a lawsuit in 
federal court in four instances, including within 90 days of receipt of 
notice of final

[[Page 37649]]

action. One agency suggested that EEOC could make administrative 
judges' decisions final by moving the hearing process to the appellate 
stage. Agencies also expressed concern about EEOC's resources, 
believing that there will be an increase in requests for hearings if 
administrative judges' decisions are made final. Agencies also 
questioned the quality and consistency of administrative judges' 
decisions in opposing the change. Several agencies complained that they 
would be unable to defend themselves if administrative judges' 
decisions were made final.
    Several agencies, however, supported the proposal. One noted that 
EEOC's statistics demonstrate a problem with the EEO process 
government-wide that undermines the confidence of complainants in the 
system and creates a perception of unfairness. The civil rights groups, 
unions and attorneys' groups that commented on the proposal strongly 
supported it and some noted that it is the most important change 
proposed by EEOC in the NPRM.
    The Commission has carefully considered all of the comments on this 
issue. The Commission strongly believes that allowing agencies to 
reject or modify an administrative judge's findings of fact and 
conclusions of law and to substitute their own decision leads to an 
unavoidable conflict of interest and creates a perception of unfairness 
in the federal EEO system. While the Commission believes that its 
interpretation of the statute regarding the Commission's authority is 
correct, the Commission has decided to revise the proposal in order to 
make needed improvements in the procedures while recognizing the 
concerns expressed by the agencies. At the same time the Commission 
will preserve the functional goal of the earlier proposal: agencies 
will no longer be able to simply substitute their view of a case for 
that of an independent decision-maker.
    In response to comments from agencies that the Office of Federal 
Operations was upholding agency decisions that reversed administrative 
judge's decisions finding discrimination, we made two independent 
inquiries of EEOC's information systems. The Commission had not 
previously studied that information or reported it, although it had 
collected it. The first inquiry showed that in 1994 and 1996, there 
were 80 administrative judges' decisions favorable to complainants that 
were reversed by the agency, appealed to the Office of Federal 
Operations, and for which the Office of Federal Operations issued a 
decision on the merits. Of those 80 decisions, EEOC upheld the 
administrative judge in 53 instances and upheld the agency in 27 
instances. In the second inquiry, we found that in fiscal year 1998, 
there were 157 decisions by the Office of Federal Operations reviewing 
administrative judges' decisions adverse to agencies. Of those 
decisions, 135 (86%) affirmed the administrative judge in whole, 8 (5%) 
reversed in whole or in part, and 14 (9%) modified the administrative 
judge's decision. These inquiries demonstrated that the arguments made 
by the agencies were not supported by the facts. EEOC upholds 
administrative judges' decisions in a significant majority of all 
cases.
    The final rule provides that administrative judges will issue 
decisions on all complaints referred to them for hearings. Agencies 
will have the opportunity to take final action on the complaint by 
issuing a final order within 40 days of receipt of the hearing file and 
the administrative judge's decision. The final order will notify the 
complainant whether or not the agency will fully implement the decision 
of the administrative judge and will contain notice of the 
complainant's suit and appeal rights. If the agency's final order does 
not fully implement the decision of the administrative judge, the 
agency must simultaneously file an appeal of the decision with EEOC. In 
this way, agencies will take final action on complaints referred to 
administrative judges by issuing a final order, but they will not 
introduce new evidence or write a new decision in the case. Agencies 
will have an additional 20 days to file a brief in support of their 
appeal.
    To parallel the provision on interim relief in section 1614.502(b), 
we are adding a provision requiring an agency to provide interim relief 
in limited circumstances when the agency appeals. When the agency 
issues a final order notifying the complainant that it will not fully 
implement the administrative judge's decision, the case involves 
removal, separation or suspension continuing beyond the date of the 
order, and the administrative judge's decision provided for retroactive 
restoration, the agency must comply with the decision to the extent of 
the temporary or conditional restoration of the employee to duty status 
in the position stated by the administrative judge pending the outcome 
of the appeal. In response to agency comments, we have revised the 
regulation to more closely track the MSPB's interim relief provision, 
including a provision permitting agencies to decline to return the 
complainant to his or her place of employment if it determines that the 
return or presence of the complainant will be unduly disruptive to the 
work environment. Prospective pay and benefits must be provided, 
however. In addition, we have noted in the regulation that an employee 
may decline an offer of interim relief, and a grant of interim relief 
does not insulate a complainant from subsequent disciplinary or adverse 
action for another reason. Interim relief does not apply in cases where 
the complainant alleges that she or he was not retained beyond the 
period of a temporary appointment which expired prior to the appeal or 
that the temporary position was not converted to a permanent position. 
For example, where the Census hires temporary employees and the 
temporary appointment would have expired prior to the appeal, or the 
employee was not converted to a career position, the interim relief 
provision would not apply.
    In another proposed change to the hearings process in the NPRM, we 
proposed that at the end of the investigation or after 180 days, 
complainants who want to request a hearing will send their requests 
directly to the EEOC office instead of to the agency EEO office in 
order to eliminate delays. Almost all of the commenters agreed with 
this proposal. A few commenters asked that complainants be required to 
notify the agency at the same time that they make the request to EEOC. 
That requirement was already contained in the proposal so no change is 
being made. We have made some minor changes to the provision. We added 
a requirement that all requests for hearings must be in writing. The 
proposal stated that EEOC would request the complaint file after it 
received a request for hearing. The final rule has been revised to 
state that the agency must forward the file within 15 days of the date 
of receipt of the request for hearing. Since the agency will be 
receiving notice directly from the complainant when a hearing is 
requested, eliminating the request from EEOC and the time incident to 
preparation of that letter will result in a more efficient process. If 
any agency receives a request for a hearing that has not also been 
submitted to EEOC, the agency should forward the request along with the 
file to EEOC and should advise the complainant of its actions and of 
the requirement that requests be submitted directly to EEOC.
    In response to comments, the Commission has decided to revise 
section 1614.109(a) to better explain the administrative judge's 
responsibilities in the hearing process and to remove the current 
provision permitting

[[Page 37650]]

administrative judges to remand for counseling issues that are like or 
related to those issues raised in the complaint. Section 1614.109(a) 
now provides that upon appointment, the administrative judge will 
assume full responsibility for adjudication of the complaint, including 
overseeing the development of the record. The Commission intends that 
the administrative judge will take complete control of the case once a 
hearing is requested. The new sentence clarifies that the agency's 
authority to dismiss a complaint ceases once a hearing is requested. 
Administrative judges will preside over any necessary supplementation 
of the record in the hearing process without resort to remands of 
complaints to agencies for additional investigations. Remands of 
complaints to agencies for supplemental investigations have 
proliferated, resulting in fragmentation or unwarranted delays. The 
changes to the regulation will eliminate these remands and improve the 
timeliness and efficiency of the complaint process.
    In the NPRM, the Commission proposed to add a new section 
1614.109(b) providing that administrative judges have the authority to 
dismiss complaints during the hearing process for all of the reasons 
contained in section 1614.107. Nearly all commenters, agencies and 
others, supported this proposal. In response to comments, the 
Commission has revised the regulation to provide that administrative 
judges may dismiss complaints on their own initiative, after notice to 
the parties, or upon an agency's motion to dismiss a complaint.
    The Commission has made several minor revisions to the hearings 
section of the regulations. In response to a comment, we have added a 
new section (f)(1) providing that the administrative judge must serve 
all orders to produce evidence on both parties. We have revised section 
1614.109(i) to provide that the time frame for issuing a decision will 
run from the administrative judge's receipt of the complaint file from 
the agency, rather than, as currently provided, from receipt by EEOC of 
a request for a hearing. In addition, the Commission has revised the 
section to provide that administrative judges send the hearing record, 
rather than the entire record, to the parties with the final decision. 
Finally, the Commission has removed the requirement that administrative 
judges send final decisions and the record to the parties by certified 
mail. This will save the Commission scarce resources.

Procedures for Handling Clearly Meritless Cases

    The growing inventory of cases pending at agencies, in the hearings 
units and on appeal to the Commission causes delays across the board. 
The problem is exacerbated by the allocation of scarce resources to 
meritless cases. Many commenters representing all points of view 
identified this situation as an urgent priority, and the Federal Sector 
Workgroup devoted considerable attention to the problem. The Workgroup 
noted the widespread concern among stakeholders that the system is 
overburdened by meritless complaints and misused as a forum for 
workplace disputes that do not involve EEO matters. Its Report 
concluded that ``Government resources should be targeted to addressing 
colorable claims of discrimination. Excessive resources devoted to non-
meritorious claims of discrimination undermines the credibility of the 
process and impairs the rights of those with meritorious claims.'' The 
Commission agrees.
    Among the measures proposed by the Commission in its NPRM to 
address this problem were two provisions to give administrative judges 
additional procedures for quickly resolving complaints that are 
inappropriately in the EEO process or that lack merit. First, the 
Commission proposed to give administrative judges the authority to 
dismiss complaints during the hearing process for all of the reasons 
contained in the dismissal section, 29 CFR 1614.107, including for 
failure to state a claim. As discussed above, the Commission has 
included this proposed section 1614.109(b), which most commenters 
supported, in its final rule.
    The second proposal was a provision for decisions without a hearing 
in cases that lack merit, which would have supplemented administrative 
judges' existing authority to issue summary judgment decisions 
currently contained in 29 CFR 1614.109(e). The Commission proposed to 
add a provision, section 1614.109(g)(4), permitting administrative 
judges to issue a 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.
    Almost all non-agency commenters as well as about half of the 
agency commenters opposed granting administrative judges this new 
authority, arguing that there must be a hearing if material facts are 
in dispute. Individual commenters and those representing civil rights 
groups and unions also doubted that the administrative judge would have 
sufficient information in the record to decide the case under this 
procedure because the agency compiles the record and the complainant is 
likely not to have had an opportunity to develop evidence. Some 
suggested that complainants have won cases that may have seemed non-
meritorious when filed, based on discovery and live testimony at the 
hearing. Several agency commenters believed the procedure would also 
adversely affect agencies by leading to erroneous decisions based on 
incomplete evidence. Agencies also thought it was unclear and difficult 
to distinguish from traditional summary judgment. A number of agency 
commenters supported the proposal as an appropriate way to streamline 
the process and deal with the increasing workload. When the 
investigatory record is complete, they argued, a hearing may waste 
resources and cause agency employees to be absent from work when their 
testimony is not really necessary.
    The Commission has decided that it is not necessary to add this 
provision at this time. We believe that the problem of meritless 
complaints can be addressed through appropriate application of the 
failure to state a claim dismissal basis and the traditional summary 
judgment provision. Dismissal for failure to state a claim is 
appropriate when a complaint alleges conduct that does not rise to the 
level of a violation of the anti-discrimination statutes. Summary 
judgment under section 1614.109(e) is appropriate for complaints that 
state a claim but that involve no genuine dispute over material facts. 
Continued processing of cases that should have been dismissed for 
failure to state a claim or decided on summary judgment contributes to 
the growing inventory and the perception that the system gives too much 
consideration to trivial matters. Such cases should be resolved more 
quickly at earlier stages in the process using existing legal 
standards. The Commission summarizes these standards below and intends 
to provide more detailed guidance in Management Directive 110.
    Dismissal for Failure to State a Claim: Existing section 
1614.107(a) requires that agencies dismiss a complaint that fails to 
state a claim under section 1614.103. Under the new section 
1614.109(b), administrative judges may dismiss complaints for the same 
reasons

[[Page 37651]]

as contained in section 1614.107. In determining whether a complaint 
states a claim, the proper inquiry is whether the conduct as alleged 
would constitute an unlawful employment practice under the EEO 
statutes. Cobb v. Department of the Treasury, Request No. 05970007 
(March 13, 1997). See Burlington Industries, Inc. v. Ellerth, 118 S. 
Ct. 2257, 2268-9 (1998)(referencing cases in which courts of appeals 
considered whether various employment actions were sufficient to state 
a claim under the civil rights laws).
    When a complainant does not challenge agency action or inaction 
with respect to an employment decision or a specific term, condition or 
privilege of employment, but alleges a hostile and discriminatory 
working environment, the severity of the alleged conduct must be 
evaluated to determine whether the complaint is actionable under the 
statutes. As the Supreme Court has stated, ``Conduct that is not severe 
or pervasive enough to create an objectively hostile or abusive work 
environment--an environment that a reasonable person would find hostile 
or abusive--is beyond Title VII's purview.'' Harris v. Forklift 
Systems, Inc., 510 U.S. 17, 21-22 (1993); see Meritor Savings Bank, FSB 
v. Vinson, 477 U.S. 57, 67 (1986).
    In Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the 
Court reemphasized that conduct must rise above a certain minimum level 
to be actionable: `` `[S]imple teasing,' * * * offhand comments, and 
isolated incidents (unless extremely serious) will not amount to 
discriminatory changes in the `terms and conditions of employment.' '' 
118 S. Ct. at 2283 (citations omitted). To determine whether an 
environment is sufficiently hostile or abusive, courts must look at all 
of the circumstances, including the frequency and severity of the 
conduct. Id. These standards should ``ensure that Title VII does not 
become a `general civility code.' * * * Properly applied, they will 
filter out complaints attacking `the ordinary tribulations of the 
workplace'' * * *.'' Id. at 2283-84 (citations omitted).
    The Commission also has repeatedly stated that isolated comments, 
petty slights, and trivial annoyances are not actionable. See EEOC 
Compliance Manual Section 8, ``Retaliation,'' No. 915.003 (May 20, 
1998) at 8-13; EEOC Policy Guidance on Current Issues of Sexual 
Harassment, No. N-915.050 (March 19, 1990) at 14; EEOC Enforcement 
Guidance on Harris v. Forklift Systems, Inc., No. 915.002 (March 8, 
1994) at 6 n.4; see also, e.g., Cobb v. Department of the Treasury, 
supra.; Moore v. United States Postal Service, Appeal No. 01950134 
(April 17, 1997); Backo v. United States Postal Service, Request No. 
05960227 (June 10, 1996); Phillips v. Department of Veterans Affairs, 
Request No. 05960030 (July 12, 1996); Miller v. United States Postal 
Service, Request No. 05941016 (June 2, 1995); Banks v. Department of 
Health and Human Services, Request No. 05940481 (February 16, 1995) . 
However, a persistent pattern of harassing conduct or a particularly 
severe individual incident, when viewed in light of the work 
environment as a whole, may constitute a hostile environment. See, 
e.g., Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 
25, 1996).
    The Commission cautions that before dismissing a complaint the 
administrative judge must ensure that the claim has not been fragmented 
inappropriately into more than one complaint. As discussed above under 
the heading ``Fragmentation,'' a series of subsequent events or 
instances involving the same claim should not be treated as separate 
complaints, but should be added to and treated as part of the first 
claim.
    Summary Judgment: The problem identified by the Workgroup can also 
be addressed through more effective use of the existing summary 
judgment authority. Summary judgment is proper when ``material facts 
are not in genuine dispute.'' 29 CFR 1614.109(e). Only a dispute over 
facts that are truly material to the outcome of the case should 
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 248 (1986) (only disputes over facts that might affect the outcome 
of the suit under the governing law, and not irrelevant or unnecessary 
factual disputes, will preclude the entry of summary judgment). For 
example, when a complainant is unable to set forth facts necessary to 
establish one essential element of a prima facie case, a dispute over 
facts necessary to prove another element of the case would not be 
material to the outcome. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 
(1986).
    Moreover, a mere recitation that there is a factual dispute is 
insufficient. The party opposing summary judgment must identify the 
disputed facts in the record with specificity and demonstrate that 
there is a dispute by producing affidavits or records that tend to 
disprove the facts asserted by the moving party. In addition, the non-
moving party must explain how the facts in dispute are material under 
the legal principles applicable to the case. 29 CFR 1614.109(e)(2); 
Anderson, 477 U.S. at 257; Celotex, 477 U.S. at 322-24; Patton v. 
Postmaster General, Request No. 05930055 (1993) (summary judgment 
proper where appellant made only a general pleading that his job 
performance was good but set forth no specific facts regarding his 
performance and identified no specific inadequacies in the 
investigation).

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. While an effective 
administrative process for class complaints offers several important 
advantages over litigation in federal court, including informality, 
lower cost, and speed of resolution, the Workgroup found that 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 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, the Commission is making several changes in its regulation 
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.
    In the NPRM, the Commission proposed four regulatory changes to the 
class complaint procedures found at 29

[[Page 37652]]

CFR 1614.204. The Commission proposed 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. 
Individual commenters and those representing civil rights groups 
uniformly endorsed the proposed change. Some agency commenters 
supported the change but asked that the regulation define ``reasonable 
point in the process''; some suggested that this point be during the 
investigation or within a short time after distribution of the agency 
investigative file, rather than during discovery. Other agencies 
opposed the change, arguing that it would entail additional 
investigative costs, cause delays 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. If a 
complainant can move for class certification on the eve of hearing, 
they argued, the agency would be required to put the individual 
complaint on hold and start its investigation all over again as a class 
case. Others objected only to eliminating counseling, as that is how 
the complainant is informed of his or her rights and responsibilities 
as class agent.
    The Commission believes that this revision 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 on class issues; this is different from the situation of a 
federal court Rule 23 plaintiff who does have access to pre-
certification discovery on class issues. Similarly, an individual 
complainant often will not have reason to know at the counseling stage, 
and sometimes even after the agency's investigation, that the 
challenged action actually reflects an agency policy or practice 
generally applicable to a class of similarly situated individuals.
    Because of the importance of discovery, the Commission has decided 
not to place the restrictions suggested by some of the commenters on 
the time at which a complainant may seek class certification. 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 suspects that the complaint has class implications, 
i.e., it potentially involves questions of law or fact common to a 
class and is typical of the claims of a class. Normally, this point 
will be no later than the end of discovery at the hearing stage. The 
complainant must seek class certification within a reasonable time 
after the class nature of the case becomes apparent. The administrative 
judge will deny class certification if the complainant has unduly 
delayed in moving for certification. In response to the comments, the 
Commission has added language to this effect in the regulation. The 
Commission disagrees with those commenters who advocated returning the 
complaint for additional counseling. It will 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 the time the 
complainant moves for certification. The Commission believes it is 
impracticable and unproductive to require the complainant to return to 
counseling at this stage.
    A request for class certification made after the filing of an 
individual complaint but before the issuance of the notice required by 
section 1614.108(f) will be forwarded to an EEOC administrative judge 
for a decision on whether to accept or dismiss a class complaint. The 
administrative judge's decision will be appealable to the Office of 
Federal Operations. The filing of an appeal will not stay further 
proceedings, although either party may request that the administrative 
judge stay the administrative process pending a decision on appeal.
    The Commission proposed in the Notice of Proposed Rulemaking 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. For the same 
reasons noted in the discussion of administrative judges' decisions 
above, the Commission has decided to provide that administrative judges 
will issue decisions to accept or dismiss class complaints, and 
agencies will take final action by issuing a final order, and, 
simultaneously appealing the decision to EEOC if the final order does 
not fully implement the decision of the administrative judge. Some 
agency commenters said they supported making certification decisions 
final only if the agency is given the right to an interlocutory appeal. 
That was the Commission's intent. The Commission has revised current 
section 1614.401(b) (redesignated section 1614.401(c)), which sets 
forth appeal rights in all the situations that might arise in class 
cases, to include agency interlocutory appeals from administrative 
judges' certification decisions.
    In the proposed rule, the Commission proposed 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. 
Some agency commenters supported this proposal while most others 
disagreed, arguing that it would add an unnecessary layer of review 
when the parties are satisfied with the settlement 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.
    Because it believes that the administrative judge's approval of 
settlements in all cases is the best way to protect the interests of 
the class, the Commission has decided to add this proposal to its 
regulation. 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 makes 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. Thus, the same 
standard applies whether or not any petitions to vacate the resolution 
have been filed. In response to the suggestion of one agency, the 
Commission has elaborated upon the standard by revising the regulation 
to follow the language used by the Court of Appeals for the District of 
Columbia Circuit in Thomas v. Albright, 139 F.3d 227, 233 (1998), which 
held that to approve a settlement under Rule 23, a district court must 
find that it is ``fair, adequate, and reasonable to the class as a 
whole.'' The court is to evaluate the terms of the settlement in 
relation to the strength of the plaintiffs' case, and should not reject 
a settlement merely because individual class members contend that they 
would have received more had they prevailed after a trial. 139 F.3d at 
231, 232. See also Manual for Complex Litigation (Third) (1995) 
Secs. 30.41-.42.
    The Commission also has made additional revisions to the procedures 
for notice and approval of settlements contained in section 
1614.204(g)(4) to

[[Page 37653]]

reflect the changes in the administrative judge's authority. Currently, 
any member of the class who is dissatisfied may petition the agency EEO 
Director to vacate the resolution because it benefits only the class 
agent or is otherwise not fair and reasonable. The administrative judge 
issues a recommended decision, and the agency makes the final decision 
whether to vacate the resolution. 29 CFR 1614.204(g)(4). In the new 
section 1614.204(g)(4), a class member may petition the administrative 
judge to vacate the resolution. The administrative judge reviews the 
notice of resolution and considers any petitions filed. The 
administrative judge must issue a decision vacating or approving the 
settlement on the basis of whether it is fair, adequate and reasonable 
to the class as a whole. A decision to vacate a settlement, as well as 
a decision to approve settlement over the objections of petitioning 
class members, is appealable to the Office of Federal Operations.
    Finally, the Commission proposed to amend section 1614.204(l)(3) in 
the proposed rule to clarify the burdens of proof applicable to 
individual class members who believe they are entitled to relief. The 
change makes explicit that the burdens enunciated in Teamsters v. 
United States, 431 U.S. 324 (1977), and subsequent lower court 
decisions 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. 431 U.S. at 361-62. Lower courts have held that this presumption 
may be rebutted only by clear and convincing evidence that the class 
member is not entitled to relief. See McKenzie v. Sawyer, 684 F.2d 62, 
77-78 (D.C. Cir. 1982); Trout v. Lehman, 702 F.2d 1094, 1107 (D.C. Cir. 
1983), vacated on other grounds, 465 U.S. 1056 (1984); United States v. 
City of Chicago, 853 F.2d 572, 575 (7th Cir. 1988); Cox v. American 
Cast Iron Pipe Co., 784 F.2d 1546, 1559 (11th Cir.), cert. denied, 479 
U.S. 883 (1986); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 
444-45 (5th Cir.), cert. denied, 419 U.S. 1033 (1974); Reynolds v. 
Alabama Department of Transportation, 996 F. Supp. 1156, 1195 (N.D. 
Ala. 1998). Other courts, however, have held that the standard is 
preponderance of the evidence. See Wooldridge v. Marlene Indus. Corp., 
875 F.2d 540, 549 (6th Cir. 1989); Craik v. Minnesota State Univ. Bd., 
731 F.2d 465, 470 n.8 (8th Cir. 1984); Sledge v. J.P. Stevens & Co., 
Inc., 585 F.2d 625, 637 (4th Cir. 1978); Richerson v. Jones, 551 F.2d 
918, 923-25 (3d Cir. 1977).
    Comments on this provision were divided, with non-agency commenters 
uniformly endorsing it and most agency commenters objecting that 
``clear and convincing'' was too high a standard, inappropriate for a 
class case, and a misreading of Teamsters. The objecting commenters 
wanted the standard to be preponderance of the evidence.
    The Commission has decided to retain the ``clear and convincing'' 
standard and emphasizes that this regulatory revision merely codifies 
the longstanding rule in the federal sector, see McKenzie v. Sawyer, 
supra. In 1992, when the Commission first issued its Part 1614 
regulation, we considered the burden of proof issue with respect to 
relief when discrimination has been found. The Commission determined at 
that time that no change was required to its requirement, included in 
the predecessor Part 1613 regulation and in the new section 1614.501, 
that relief should be provided to an individual when discrimination is 
found unless clear and convincing evidence indicates that the personnel 
action at issue would have been taken even absent discrimination. See 
57 Fed. Reg. 12634, 12641 (April 10, 1992); 29 CFR 1614.501. The 
Commission concluded that the Supreme Court's decision in Price 
Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that an employer 
could avoid liability in a mixed motive case under a preponderance of 
the evidence standard, did not require a change in the regulation. As 
we then noted, the Hopkins decision cited and distinguished the 
Commission's Part 1613 regulation on the basis that it relates to proof 
at the relief stage rather than the liability stage. 490 U.S. at 253-
54. The Commission further noted that the relief provision in the 
regulation ``will be applied most often to determining whether class 
members are entitled to individual relief after a class finding of 
discrimination, but it is also applicable to individual cases where 
there has been a finding of discrimination.'' 57 FR at 12641.
    The Commission is now making this presumption explicit in its 
revised class regulation. The Commission believes that requiring proof 
at the ``clear and convincing'' level when the agency has been found to 
have engaged in classwide discrimination furthers the remedial and 
deterrent purposes of the statutes. ``By making it more difficult for 
employers to defeat successful plaintiffs'' claims to retroactive 
relief, the higher standard of proof may well discourage unlawful 
conduct by employers. . . . In addition, the higher standard of proof 
is justified by the consideration that the employer is a wrongdoer 
whose unlawful conduct has made it difficult for the plaintiff to show 
what would have occurred in the absence of that conduct.'' Toney v. 
Block, 705 F.2d 1364,1373 (D.C. Cir. 1983) (Tamm, J., concurring); see 
also Teamsters, 341 U.S. at 359 n.45, 372.
    Thus, agencies are 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). To be presumptively 
entitled to relief, the class member first must have filed a written 
claim pursuant to section 1614.204(l)(3) making a specific, detailed 
showing that the claimant is a class member who was affected by the 
discriminatory policy or practice, and that the discriminatory action 
took place within the period of time for which class-wide 
discrimination was found. To reflect the administrative judge's new 
role and to provide a procedure for resolving issues related to 
individual relief, the Commission additionally has revised section 
1614.204(l)(3) to state that the administrative judge may hold a 
hearing or otherwise supplement the record on a claim filed by a class 
member.
    In response to a comment, we have clarified that the agency or the 
Commission may find classwide discrimination, and provide a remedy, for 
any policy or practice in existence within 45 days of the class agent's 
initial contact with the counselor. We also note, as we stated when 
Part 1614 was promulgated in 1992, that the 45-day time limit in 
section 204(l)(3) defining the period for which class-wide 
discrimination can be found is not intended to limit the two-year time 
period for which back pay can be recovered by a class member. See 57 FR 
12634, 12644 (April 10, 1992); 29 CFR 1614.204(l)(3). Under the 
continuing violation theory, moreover, incidents occurring earlier than 
45 days before contact with the counselor must also be remedied 
provided that the initial contact with the counselor was timely and the 
earlier incidents were part of the same continuing policy or practice 
found to have been discriminatory. That is, where contact with the 
counselor is timely as to one of the events comprising the continuing 
violation, then the counseling contact is timely as to the entire 
violation.

Appeals

    In the proposed rule, the Commission proposed two different appeal 
briefing schedules, depending on the matter

[[Page 37654]]

being appealed: 30 days to file both a notice of appeal and any 
statement or brief in support of the appeal from a dismissal (a 
``procedural'' appeal); and 30 days to file a notice of appeal and an 
additional 30 days thereafter to file a brief or statement in support 
of an appeal from a final decision (a ``merits'' appeal). Those who 
commented on this section were nearly unanimous that this distinction 
was confusing and that there should be a single briefing schedule. The 
Commission has revised the regulation to provide that a complainant 
must file an appeal within 30 days of receipt of the agency dismissal 
or final action, and any supporting statement or brief shall be filed 
within 30 days of the filing of the notice of appeal. In cases where 
there has been a decision by an administrative judge, agencies must 
take final action on the complaint by issuing a final order within 40 
days of receipt of the hearing file and the administrative judge's 
decision. If the final order does not fully implement the 
administrative judge's decision, agencies must simultaneously file an 
appeal with the EEOC. They have an additional 20 days to file a brief 
in support of that appeal. The final regulation also provides that 
briefs or statements in support of an appeal and papers filed in 
opposition to an appeal can be filed by facsimile, provided that they 
are no more than 10 pages in length. Briefs and statements longer than 
10 pages must be mailed or delivered in person.
    In response to the Commission's statement in the NPRM that the 
Commission will strictly apply appellate time frames, a number of 
commenters suggested that provision be made for extending the appellate 
time limits for good cause shown. Part 1614 already provides that 
regulatory time limits ``are subject to waiver, estoppel and equitable 
tolling.'' 29 CFR Sec. 1614.604(c).
    Most commenters agreed with the Commission's proposal that the 
Office of Federal Operations be empowered to impose sanctions or 
otherwise take appropriate action regarding any party who fails, 
without good cause shown, to comply with appellate procedures or to 
respond fully and timely to a Commission request for information. Some 
commenters were concerned that this provision could unfairly impact 
unrepresented complainants. To the extent an unrepresented complainant 
fails to comply due to mistake, lack of knowledge, or misunderstanding, 
the Commission will take such factors into consideration when 
determining whether good cause has been shown.
    Most commenters also agreed with the proposed appellate standards 
of review --factual findings rendered by administrative judges after a 
hearing will be subject to a substantial evidence standard of review; 
all other decisions will be subject to a de novo review. No new 
evidence will be considered on appeal unless the evidence was not 
reasonably available during the hearing process. As we noted in the 
preamble to the proposed rule, the substantial evidence standard does 
not preclude meaningful review of factual findings. Moreover, 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.
    Finally, the Commission proposed to revise the reconsideration 
process to approximate the process used by the MSPB, reallocate some 
resources to the improvement of the appellate process and discourage 
automatic requests for reconsideration whenever a party loses on 
appeal. Parties may still request reconsideration but it will only be 
granted, in the discretion of the Commission, if the requester has 
demonstrated that the appellate decision involved a clearly erroneous 
interpretation of material fact or law, or the appellate decision will 
have a substantial impact on the policies, practices or operations of 
the agency. The comments received were mixed. The unfavorable comments 
were mostly from agencies although many other agencies favored the 
change. The objectors raised the same objections discussed in the 
preamble to the proposed rule. After considering all comments, we have 
decided to adopt the proposed rule without change. The proposal makes 
the reconsideration procedure available for those cases where the 
requestor demonstrates that there are errors of fact or law that would 
affect the outcomes of the cases and for those cases that will have a 
substantial impact. By preserving the Commission's discretion, it also 
will allow the Commission to reallocate its resources to the 
improvement of the appellate process.

Attorney's Fees

    In its NPRM, the Commission proposed two changes to the attorney's 
fees regulatory scheme: administrative judges would be authorized to 
determine the amount of the fee award, not just entitlement to the 
award; and attorney's fees and costs would be available to prevailing 
complainants for services rendered prior to the filing of the formal 
complaint (e.g., during the counseling and ADR phases). Most commenters 
were in favor of the former change. Comments were split on the latter 
change; agencies were opposed and plaintiffs' attorneys and employees 
were in favor of the proposal.
    The commenters opposed to an administrative judge determining the 
amount of attorney's fees and costs to be awarded generally were 
concerned that an administrative judge would not be able to assess 
adequately the reasonableness of the time spent by an attorney working 
on the complaint prior to the hearing. The Commission believes that an 
administrative judge is in a comparable position to a federal district 
court judge in making a determination of attorney's fees. To address 
this concern, though, the Commission has clarified section 
1614.501(e)(2) to provide that, when a decision-making authority, that 
is, an agency, an administrative judge, or the Commission, determines 
that a complainant is entitled to an award of attorney's fees and 
costs, the complainant's attorney shall submit a statement of fees and 
costs to the decision-making authority. The agency may respond to and 
comment on the statement of fees and costs. The decision-making 
authority will then determine the amount of fees and costs to be 
awarded. The Commission believes this procedure will best facilitate 
the determination of the amount of attorney's fees and costs to be 
awarded, once an entitlement to a fee award has been determined. The 
Commission has also updated the discussion in the regulation on 
calculating fees. Management Directive 110 will contain additional 
guidance on attorney's fees.
    The Commission received many comments on the second change to the 
attorney's fees provisions, allowing fees for services rendered prior 
to the formal complaint filing. Agencies expressed significant concern 
about the proposal, arguing that the change would render the 
preliminary complaint processing phase more formal and adversarial. The 
decision was made to provide that agencies are not required to pay for 
attorney's fees for services rendered during the pre-complaint process 
unless an administrative judge issues a decision finding 
discrimination, the agency issues a final order disagreeing with the 
finding, and EEOC upholds the administrative judge's finding on appeal. 
In addition, the agency and the complainant can agree that the agency 
will pay attorney's fees for pre-complaint process representation. 
These changes were made to preserve the incentive to resolve matters 
during the

[[Page 37655]]

pre-complaint process and, at the same time, to create the incentive 
for agencies to accept administrative judges' decisions, unless they 
are clearly erroneous.

Matters of General Applicability

    The Commission proposed 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. As we noted in the preamble to the NPRM, 
we intended these changes to clarify coverage of these employees and be 
consistent with the determination of the Solicitor General, in 
connection with litigation, that Commissioned Corps members are covered 
by federal sector anti-discrimination statutes. Congress amended the 
Public Health Service Act, however, in Public Law 103-183, and, as a 
result, we have decided not to finalize the amendment to section 
1614.103(b) adding the Public Health Service Commissioned Corps. We are 
making final the inclusion of the National Oceanic and Atmospheric 
Administration Commissioned Corps. In the final rule, the Commission is 
also amending section 1614.103(b) to make the regulation consistent 
with the changes made to section 717(a) by the Congressional 
Accountability Act of 1995, Pub. L. 104-1, Sec. 201(c), 109 Stat. 8, 
and the Workforce Investment Act of 1998, Pub. L. 105-220, Sec. 341(a), 
112 Stat. 936, 1092. These Acts amended the scope of coverage of 
section 717, eliminating the legislative branch and adding several 
agencies. We are amending section 1614.103(b) to remove the legislative 
branch from coverage and to add the Government Printing Office and the 
Smithsonian Institution to Part 1614 coverage.
    Some commenters suggested that the Commission adopt its private 
sector charge prioritization procedures in whole or in part in the 
federal sector. We are making one change to the regulation related to 
those comments. The current regulation requires a full and fair 
investigation of every complaint that is not dismissed. Some have 
interpreted it to require the same amount of investigative effort in 
each case. That interpretation is not reasonable or desirable and is 
inconsistent with EEOC's private sector charge prioritization 
procedures. The Commission believes that the proper scope of an 
investigation should be dictated by the facts at issue and that a 
cookie-cutter, one-size-fits-all approach wastes resources and 
needlessly delays resolution of that complaint and all other 
complaints. The investigation and the amount of effort expended should 
be appropriate to determine the issues raised by the complaint. To 
remedy the misconception that more is required, we have revised 
sections 1614.106(e)(2) and 1614.108(b) to remove the word ``complete'' 
and replace with ``appropriate.'' An appropriate investigation is one 
that allows a reasonable fact finder to draw conclusions as to whether 
discrimination occurred.
    Based on comments the Commission received pertaining to the 
administrative EEO process in general, the Commission has decided to 
fine-tune certain sections. In section 1614.604, which pertains to 
methods of filing and the computation of time limits, the Commission is 
replacing the phrase ``delivered in person'' with the word 
``received.'' This change is intended to ensure that a document will be 
deemed timely if it is received on or before the applicable due date 
regardless of the manner in which it is transmitted or delivered.
    Section 1614.605(d), pertaining to service of papers and 
computation of time when a complainant has a representative, has been 
modified. Under the current language, if a complainant is represented 
by an attorney, correspondence is to be served only on the attorney. 
The section has been revised to require all papers to be served on both 
the attorney and the complainant. Dual notification currently is 
required under section 1614.605(d) if the representative is a non-
attorney. For reasons of consistency, the same service rules will apply 
regardless of the status of the representative. Timeframes for receipt 
of materials shall be computed, however, from the time of receipt by 
the attorney where the representative is an attorney.

Regulatory Procedures

Executive Order 12866

    In promulgating this final rule, the Commission has adhered to the 
regulatory philosophy and applicable principles of regulation set forth 
in section 1 of 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, Aged, Civil rights, Equal 
employment opportunity, Government employees, Individuals with 
disabilities, Religious discrimination, Sex discrimination.

    For the Commission.
Ida L. Castro,
Chairwoman.

    Accordingly, for the reasons set forth in the preamble, chapter XIV 
of title 29 of the Code of Federal Regulations is amended 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.

    2. Section 1614.102 is amended by redesignating paragraphs (b)(2) 
through (b)(6) as paragraphs (b)(3) through (b)(7), by adding paragraph 
(b)(2) and by revising paragraph (c)(5) to read as follows:


Sec. 1614.102  Agency program.

* * * * *
    (b) * * *
    (2) Establish or make available an alternative dispute resolution 
program. Such program must be available for both the pre-complaint 
process and the formal complaint process.
* * * * *
    (c) * * *
    (5) Assuring that individual complaints are fairly and thoroughly 
investigated and that final action is taken in a timely manner in 
accordance with this part.
* * * * *
    3. Section 1614.103 is amended by removing the word ``and'' at the 
end of paragraph (b)(3), revising paragraph (b)(4), and adding 
paragraphs (b)(5) through (b)(7) to read as follows:

[[Page 37656]]

Sec. 1614.103  Complaints of discrimination covered by this part.

* * * * *
    (b) * * *
    (4) All units of the judicial branch of the Federal government 
having positions in the competitive service, except for complaints 
under the Rehabilitation Act;
    (5) The National Oceanic and Atmospheric Administration 
Commissioned Corps;
    (6) The Government Printing Office; and
    (7) The Smithsonian Institution.
* * * * *
    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 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 claims raised 
in precomplaint counseling (or issues or claims like or related to 
issues or claims raised in pre-complaint counseling) may be alleged in 
a subsequent complaint filed with the agency. * * *
    (2) Counselors shall advise aggrieved persons that, where the 
agency agrees to offer ADR in the particular case, they may choose 
between participation in the alternative dispute resolution program 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 claim 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 redesignating paragraph (d) as 
paragraph (e), adding a new paragraph (d), and revising redesignated 
paragraph (e) to read as follows:


Sec. 1614.106  Individual complaints.

* * * * *
    (d) A complainant may amend a complaint at any time prior to the 
conclusion of the investigation to include issues or claims like or 
related to those raised in the complaint. After requesting a hearing, a 
complainant may file a motion with the administrative judge to amend a 
complaint to include issues or claims like or related to those raised 
in the complaint.
    (e) The agency shall acknowledge receipt of a complaint or an 
amendment to a complaint in writing and inform the complainant of the 
date on which the complaint or amendment was filed. 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. Such 
acknowledgment shall also advise the complainant that:
    (1) The complainant has the right to appeal the final action on or 
dismissal of a complaint; and
    (2) The agency is required to conduct an impartial and appropriate 
investigation of the complaint within 180 days of the filing of the 
complaint unless the parties agree in writing to extend the time 
period. When a complaint has been amended, the agency shall complete 
its investigation within the earlier of 180 days after the last 
amendment to the complaint or 360 days after the filing of the original 
complaint, except that the complainant may request a hearing from an 
administrative judge on the consolidated complaints any time after 180 
days from the date of the first filed complaint.
    6. Section 1614.107 is amended by redesignating paragraphs (a) 
through (h) as paragraphs (a)(1) through (a)(8), redesignating the 
introductory text as paragraph (a) introductory text and revising it, 
removing the word ``or'' at the end of redesignated paragraph (a)(7), 
revising redesignated paragraph (a)(8) and adding new paragraphs (a)(9) 
and (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 applying the criteria set forth in 
Commission decisions, finds that the complaint is part of a clear 
pattern of misuse of the EEO process for a purpose other than the 
prevention and elimination of employment discrimination. A clear 
pattern of misuse of the EEO process requires:
    (i) Evidence of multiple complaint filings; and
    (ii) Allegations that are similar or identical, lack specificity or 
involve matters previously resolved; or
    (iii) Evidence of circumventing other administrative processes, 
retaliating against the agency's in-house administrative processes or 
overburdening the EEO complaint system.
    (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 claims 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 final action is taken on the remainder of the 
complaint.
    7. Section 1614.108 is amended by removing the first sentence of 
paragraph (b) and adding two sentences in its place, revising paragraph 
(f) and adding a new paragraph (g) to read as follows:


Sec. 1614.108  Investigation of complaints.

* * * * *
    (b) In accordance with instructions contained in Commission 
Management Directives, the agency shall develop an impartial and 
appropriate factual record upon which to make findings on the claims 
raised by the written complaint. An appropriate factual record is one 
that allows a reasonable fact finder to draw conclusions as to whether 
discrimination occurred. * * *
* * * * *
    (f) Within 180 days from the filing of the complaint, or where a 
complaint was amended, within the earlier of 180 days after the last 
amendment to the

[[Page 37657]]

complaint or 360 days after the filing of the original 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 decision from an administrative judge or may request 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 written 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. Within 15 days of receipt of the request for a 
hearing, the agency shall provide a copy of the complaint file to EEOC 
and, if not previously provided, to 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), removing the introductory text of 
redesignated paragraph (f) and adding a heading, adding a sentence at 
the end of redesignated paragraph (f)(1), revising the introductory 
text of redesignated paragraph (f)(3), in the heading of redesignated 
paragraph (g) removing the words ``Findings and conclusions'' and 
adding, in their place the word ``Decisions'', in redesignated 
paragraphs (g)(2) and (g)(3) removing the phrases ``findings and 
conclusions'' and adding, in their place, the words ``a decision'', and 
revising redesignated 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 hearing in accordance with 
this section. Upon appointment, the administrative judge shall assume 
full responsibility for the adjudication of the complaint, including 
overseeing the development of the record. Any hearing will be conducted 
by an administrative judge or hearing examiner with appropriate 
security clearances.
    (b) Dismissals. Administrative judges may dismiss complaints 
pursuant to Sec. 1614.107, on their own initiative, after notice to the 
parties, or upon an agency's motion to dismiss a complaint.
    (c) Offer of resolution. (1) Any time after the filing of the 
written complaint but not later than the date an administrative judge 
is appointed to conduct a hearing, the agency may make an offer of 
resolution to a complainant who is represented by an attorney.
    (2) Any time after the parties have received notice that an 
administrative judge has been appointed to conduct a hearing, but not 
later than 30 days prior to the hearing, the agency may make an offer 
of resolution to the complainant, whether represented by an attorney or 
not.
    (3) The offer of resolution shall be in writing and shall include a 
notice explaining the possible consequences of failing to accept the 
offer. The agency's offer, to be effective, must include attorney's 
fees and costs and must specify any non-monetary relief. With regard to 
monetary relief, an agency may make a lump sum offer covering all forms 
of monetary liability, or it may itemize the amounts and types of 
monetary relief being offered. The complainant shall have 30 days from 
receipt of the offer of resolution to accept it. If the complainant 
fails to accept an offer of resolution and the relief awarded in the 
administrative judge's decision, the agency's final decision, or the 
Commission decision on appeal 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 expiration of the 30-day acceptance 
period. 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 and either party may seek to negotiate a settlement of 
the complaint at any time.
* * * * *
    (f) Procedures.
    (1) * * * The administrative judge shall serve all orders to 
produce evidence on both parties.
* * * * *
    (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:
* * * * *
    (i) Decisions by administrative judges. Unless the administrative 
judge makes a written determination that good cause exists for 
extending the time for issuing a decision, an administrative judge 
shall issue a decision on the complaint, and shall order appropriate 
remedies and relief where discrimination is found, within 180 days of 
receipt by the administrative judge of the complaint file from the 
agency. The administrative judge shall send copies of the hearing 
record, including the transcript, and the decision to the parties. If 
an agency does not issue a final order within 40 days of receipt of the 
administrative judge's decision in accordance with 1614.110, then the 
decision of the administrative judge shall become the final action of 
the agency.
    9. Section 1614.110 is revised to read as follows:


Sec. 1614.110  Final action by agencies.

    (a) Final action by an agency following a decision by an 
administrative judge. When an administrative judge has issued a 
decision under Sec. 1614.109(b), (g) or (i), the agency shall take 
final action on the complaint by issuing a final order within 40 days 
of receipt of the hearing file and the administrative judge's decision. 
The final order shall notify the complainant whether or not the agency 
will fully implement the decision of the administrative judge and shall 
contain notice of the complainant's right to appeal to the Equal 
Employment Opportunity Commission, the right 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. If the 
final order does not fully implement the decision of the administrative 
judge, then the agency shall simultaneously file an appeal in 
accordance with Sec. 1614.403 and append a copy of the appeal to the 
final order. A copy of EEOC Form 573 shall be attached to the final 
order.
    (b) Final action by an agency in all other circumstances. When an 
agency dismisses an entire complaint under Sec. 1614.107, receives a 
request for an immediate final decision or does not receive a reply to 
the notice issued under Sec. 1614.108(f), the agency shall take final 
action by issuing 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,

[[Page 37658]]

appropriate remedies and relief in accordance with subpart E of this 
part. The agency shall issue the final decision 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 final action shall contain notice of the right to appeal 
the final action to the Equal Employment Opportunity Commission, the 
right 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 
final action.


Sec. 1614.201  [Amended]

    10. Section 1614.201 is amended by removing the words ``Federal 
Sector Programs, 1801 L St., NW., Washington, DC 20507'' in the second 
sentence of paragraph (a) and adding the words ``at P.O. Box 19848, 
Washington, DC 20036, or by personal delivery or facsimile'' in their 
place, removing the words ``issued a final decision'' in paragraph 
(c)(1) and adding the words ``taken final action'' in their place and 
removing the words ``the issuance of a final decision'' in paragraph 
(c)(2) and adding the words ``final action'' in their place.
    11. 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 adding the word 
``decide'' in its place in paragraph (d)(6), revising paragraphs 
(d)(7), (e)(1), (g)(2), (g)(4), and (l)(3), and removing the word 
``agency'' and adding the word ``agent'' in its place in paragraph 
(j)(7), 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. The administrative judge shall deny 
class certification when the complainant has unduly delayed in moving 
for certification.
* * * * *
    (d) * * *
    (7) The administrative judge shall transmit his or her decision to 
accept or dismiss a complaint to the agency and the agent. The agency 
shall take final action by issuing a final order within 40 days of 
receipt of the hearing record and administrative judge's decision. The 
final order shall notify the agent whether or not the agency will 
implement the decision of the administrative judge. If the final order 
does not implement the decision of the administrative judge, the agency 
shall simultaneously appeal the administrative judge's decision in 
accordance with Sec. 1614.403 and append a copy of the appeal to the 
final order. A 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 
Equal Employment Opportunity Commission 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 pursuant to the notice and approval procedure 
contained in paragraph (g)(4) of this section.
* * * * *
    (4) Notice of the resolution shall be given to all class members in 
the same manner as notification of the acceptance of the class 
complaint and to the administrative judge. It shall state the relief, 
if any, to be granted by the agency and the name and address of the 
EEOC administrative judge assigned to the case. It shall state that 
within 30 days of the date of the notice of resolution, any member of 
the class may petition the administrative judge to vacate the 
resolution because it benefits only the class agent, or is otherwise 
not fair, adequate and reasonable to the class as a whole. The 
administrative judge shall review the notice of resolution and consider 
any petitions to vacate filed. If the administrative judge finds that 
the proposed resolution is not fair, adequate and reasonable to the 
class as a whole, the administrative judge shall issue a decision 
vacating the agreement and may replace the original class agent with a 
petitioner or some other class member who is eligible to be the class 
agent during further processing of the class complaint. The decision 
shall inform the former class agent or the petitioner of the right to 
appeal the decision to the Equal Employment Opportunity Commission and 
include EEOC Form 573, Notice of Appeal/Petition. If the administrative 
judge finds that the resolution is fair, adequate and reasonable to the 
class as a whole, the resolution shall bind all members of the class.
* * * * *
    (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. Administrative judges shall retain 
jurisdiction over the complaint in order to resolve any disputed claims 
by class members. The claim must include a specific, detailed showing 
that the claimant is a class member who was affected by the 
discriminatory policy or practice, and that this discriminatory 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 administrative judge may hold a hearing 
or otherwise supplement the record on a claim filed by a class member. 
The agency or the Commission may find class-wide discrimination and 
order remedial action for any policy or practice in existence within 45 
days of the agent's initial contact with the Counselor. Relief 
otherwise consistent with this Part may be ordered for the time the 
policy or practice was in effect. 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

[[Page 37659]]

subpart D of this part and the applicable time limits.


Sec. 1614.302  [Amended]

    12. Section 1614.302 is amended by removing the words ``5 CFR 
1201.154(a)'' in paragraph (d)(1)(i) and adding the words ``5 CFR 
1201.154(b)(2)'' in their place.
    13. Section 1614.401 is amended by redesignating paragraphs (b) 
through (d) as paragraphs (c) through (e), revising paragraph (a), 
adding a new paragraph (b), and revising redesignated paragraph (c) to 
read as follows:


Sec. 1614.401  Appeals to the Commission.

    (a) A complainant may appeal an agency's final action or dismissal 
of a complaint.
    (b) An agency may appeal as provided in Sec. 1614.110(a).
    (c) A class agent or an agency may appeal an administrative judge's 
decision accepting or dismissing all or part of a class complaint; a 
class agent may appeal a final decision on a class complaint; a class 
member may appeal a final decision on a claim for individual relief 
under a class complaint; and a class member, a class agent or an agency 
may appeal a final decision on a petition pursuant to 
Sec. 1614.204(g)(4).
* * * * *
    14. Section 1614.402 is amended by revising paragraph (a) to read 
as follows:


Sec. 1614.402  Time for appeals to the Commission.

    (a) Appeals described in Sec. 1614.401(a) and (c) must be filed 
within 30 days of receipt of the dismissal, final action or decision. 
Appeals described in Sec. 1614.401(b) must be filed within 40 days of 
receipt of the hearing file and decision. Where a complainant has 
notified the EEO Director of alleged noncompliance with a settlement 
agreement in accordance with Sec. 1614.504, the complainant may file an 
appeal 35 days after service of the allegations of noncompliance, but 
no later than 30 days after receipt of an agency's determination.
* * * * *
    15. 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 shall be dismissed by the Commission as 
untimely.
    (d) Any statement or brief on behalf of a complainant in support of 
the appeal must be submitted to the Office of Federal Operations within 
30 days of filing the notice of appeal. Any statement or brief on 
behalf of the agency in support of its appeal must be submitted to the 
Office of Federal Operations within 20 days of filing the notice of 
appeal. The Office of Federal Operations will accept statements or 
briefs in support of an appeal by facsimile transmittal, provided they 
are no more than 10 pages long.
    (e) The agency must submit the complaint file to the Office of 
Federal Operations within 30 days of initial 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, or, if 
no statement or brief supporting the appeal is filed, within 60 days of 
receipt of the appeal. The Office of Federal Operations will accept 
statements or briefs in opposition to an appeal by facsimile provided 
they are no more than 10 pages long.
    16. 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.
    17. Section 1614.405 is amended by revising the third sentence of 
paragraph (a), by removing the words ``certified mail, return receipt 
requested'' from the last sentence of paragraph (a) and adding the 
words ``first class mail'' in their place and revising paragraph (b) to 
read as follows:


Sec. 1614.405  Decisions on appeals.

    (a) * * * The decision on an appeal from an agency's final action 
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(i) 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. 1614.407 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.


Sec. 1614.407  [Removed]


Secs. 1614.408 through 1614.410  [Redesignated as Secs. 1614.407 
through 1614.409]

    18. Section 1614.407 is removed and Secs. 1614.408 through 1614.410 
are redesignated as Secs. 1614.407 through 1614.409.
    19. Redesignated Sec. 1614.407 is amended by removing the words 
``final decision'' from paragraph (a) and adding the words ``final 
action'' in their place and by removing the words ``a final decision 
has not been issued'' from paragraph (b) and adding the words ``final 
action has not been taken'' in their place.
    20. Section 1614.501 is amended by revising the last sentence of 
the introductory text of paragraph (e)(1), and revising paragraphs 
(e)(1)(iv) and (e)(2)(i), the first sentence of paragraph (e)(2)(ii)(A) 
and paragraph (e)(2)(ii)(B) to read as follows:


Sec. 1614.501  Remedies and relief.

* * * * *
    (e) Attorney's fees or costs--(1) * * * In a decision or final 
action, the agency, administrative judge, or Commission may award the 
applicant or employee

[[Page 37660]]

reasonable attorney's fees (including expert witness fees) and other 
costs incurred in the processing of the complaint.
* * * * *
    (iv) Attorney's fees shall be paid for services performed by an 
attorney after the filing of a written complaint, provided that the 
attorney provides reasonable notice of representation to the agency, 
administrative judge or Commission, except that fees are allowable for 
a reasonable period of time prior to the notification of representation 
for any services performed in reaching a determination to represent the 
complainant. Agencies are not required to pay attorney's fees for 
services performed during the pre-complaint process, except that fees 
are allowable when the Commission affirms on appeal an administrative 
judge's decision finding discrimination after an agency takes final 
action by not implementing an administrative judge's decision. Written 
submissions to the agency that are signed by the representative shall 
be deemed to constitute notice of representation.
    (2) * * * (i) When the agency, administrative judge or the 
Commission determines an entitlement to attorney's fees or costs, the 
complainant's attorney shall submit a verified statement of attorney's 
fees (including expert witness fees) and other costs, as appropriate, 
to the agency or administrative judge within 30 days of receipt of the 
decision and shall submit a copy of the statement to the agency. A 
statement of attorney's fees and costs shall be accompanied by an 
affidavit executed by the attorney of record itemizing the attorney's 
charges for legal services. The agency may respond to a statement of 
attorney's fees and costs within 30 days of its receipt. The verified 
statement, accompanying affidavit and any agency response shall be made 
a part of the complaint file.
    (ii)(A) The agency or administrative judge shall issue a decision 
determining the amount of attorney's fees or costs due within 60 days 
of receipt of the statement and affidavit. * * *
    (B) The amount of attorney's fees shall be calculated using the 
following standards: The starting point shall be the number of hours 
reasonably expended multiplied by a reasonable hourly rate. There is a 
strong presumption that this amount represents the reasonable fee. In 
limited circumstances, this amount may be reduced or increased in 
consideration of the degree of success, quality of representation, and 
long delay caused by the agency.
* * * * *
    21. Section 1614.502 is amended by revising the first sentence of 
paragraph (a), revising the introductory text of paragraph (b), 
revising 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 Commission decision is mandatory and 
binding on the agency except as provided in this section. * * *
    (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 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 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.
* * * * *


Sec. 1614.504  [Amended]

    22. Section 1614.504 is amended by removing the words ``final 
decisions'' from the section heading and adding the words ``final 
action'' in their place, removing the words ``A final decision'' from 
the second sentence of paragraph (a) and adding the words ``Final 
action'' in their place, and removing the word ``final'' from the third 
sentence of paragraph (a) and the second sentence of paragraph (b).
    23. Section 1614.505 is added to subpart E to read as follows:


Sec. 1614.505  Interim relief.

    (a)(1) When the agency appeals and the case involves removal, 
separation, or suspension continuing beyond the date of the appeal, and 
when the administrative judge's 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 in the decision, pending the outcome of the 
agency appeal. The employee may decline the offer of interim relief.
    (2) Service under the temporary or conditional restoration 
provisions of paragraph (a)(1) of this section shall be credited toward 
the completion of a probationary or trial period, eligibility for a 
within-grade increase, or the completion of the service requirement for 
career tenure, if the Commission upholds the decision on appeal. Such 
service shall not be credited toward the completion of any applicable 
probationary or trial period or the completion of the service 
requirement for career tenure if the Commission reverses the decision 
on appeal.
    (3) When the agency appeals, it may delay the payment of any 
amount, other than prospective pay and benefits, ordered to be paid to 
the complainant until after the appeal is resolved. If the agency 
delays payment of any amount pending the outcome of the appeal and the 
resolution of the appeal requires the agency to make the payment, then 
the agency shall pay interest from the date of the original decision 
until payment is made.
    (4) The agency shall notify the Commission and the employee in 
writing at the same time it appeals 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 appeal.
    (5) The agency may, by notice to the complainant, decline to return 
the complainant to his or her place of employment if it determines that 
the return or presence of the complainant will be unduly disruptive to 
the work environment. However, prospective pay and benefits must be 
provided. The determination not to return the complainant to his or her 
place of employment is not reviewable. A grant of interim relief does 
not insulate a complainant from subsequent disciplinary or adverse 
action.
    (b) If the agency files an appeal and has not provided required 
interim relief, the complainant may request dismissal

[[Page 37661]]

of the agency's appeal. Any such request must be filed with the Office 
of Federal Operations within 25 days of the date of service of the 
agency's appeal. A copy of the request must be served on the agency at 
the same time it is filed with EEOC. The agency may respond with 
evidence and argument to the complainant's request to dismiss within 15 
days of the date of service of the request.


Sec. 1614.603  [Amended]

    24. Section 1614.603 is amended by removing the word 
``allegations'' from the last sentence and adding the word ``claims'' 
in its place.


Sec. 1614.604  [Amended]

    25. Section 1614.604 is amended by removing the words ``delivered 
in person'' and adding the word ``received'' in their place in 
paragraph (b).
    26. Section 1614.605 is amended by revising the second sentence of 
paragraph (d) to read as follows:


Sec. 1614.605  Representation and official time.

* * * * *
    (d) * * * When the complainant designates an attorney as 
representative, service of all official correspondence shall be made on 
the attorney and the complainant, but time frames for receipt of 
materials shall be computed from the time of receipt by the attorney. * 
* *
* * * * *
    27. Section 1614.606 is revised to read as follows:


Sec. 1614.606  Joint processing and consolidation of complaints.

    Complaints of discrimination filed by two or more complainants 
consisting of substantially similar allegations of discrimination or 
relating to the same matter may be consolidated by the agency or the 
Commission for joint processing after appropriate notification to the 
parties. Two or more complaints of discrimination filed by the same 
complainant shall be consolidated by the agency for joint processing 
after appropriate notification to the complainant. When a complaint has 
been consolidated with one or more earlier filed complaints, the agency 
shall complete its investigation within the earlier of 180 days after 
the filing of the last complaint or 360 days after the filing of the 
original complaint, except that the complainant may request a hearing 
from an administrative judge on the consolidated complaints any time 
after 180 days from the date of the first filed complaint. 
Administrative judges or the Commission may, in their discretion, 
consolidate two or more complaints of discrimination filed by the same 
complainant.

[FR Doc. 99-17497 Filed 7-9-99; 8:45 am]
BILLING CODE 6570-01-P