[Federal Register Volume 74, Number 243 (Monday, December 21, 2009)]
[Proposed Rules]
[Pages 67839-67844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30162]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN Number 3046-AA73
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission (EEOC).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Equal Employment Opportunity Commission is proposing
revisions to its federal sector complaint processing regulations. These
proposals implement recommendations of the Commissioners' Federal
Sector Workgroup.
DATES: Comments on the notice of proposed rulemaking must be received
on or before February 19, 2010.
ADDRESSES: Written comments should be submitted to Stephen Llewellyn,
Executive Officer, Executive Secretariat, Equal Employment Opportunity
Commission, Room 6NE03F, 131 M Street, NE., Washington, DC 20507. As a
convenience to commentators, the Executive Secretariat will accept
comments totaling six or fewer pages by facsimile (``FAX'') machine.
This limitation is necessary to assure access to the equipment. The
telephone number of the FAX receiver is (202) 663-4114. (This is not a
toll-free number.) Receipt of FAX transmittals will not be
acknowledged, except that the sender may request confirmation of
receipt by calling the Executive Secretariat staff at (202) 663-4070
(voice) or (202) 663-4074 (TTD). (These are not toll-free telephone
numbers.) You may also submit comments and attachments electronically
at http://www.regulations.gov, which is the Federal eRulemaking Portal.
Follow the instructions online for submitting comments. Copies of
comments submitted by the public can be reviewed at http://www.regulations.gov or by appointment at the Commission's library, 131
M Street, NE., Washington, DC 20507 between the hours of 9:30 a.m. and
5 p.m. (call 202-663-4630 (voice) or 202-663-4641 (TTY) to schedule an
appointment).
FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal
Counsel, Kathleen Oram, or Gary Hozempa, Office of Legal Counsel, 202-
663-4640 (voice), 202-663-7026 (TDD). This notice is also available in
the following formats: large print, braille, audio tape and electronic
file on computer disk. Requests for this notice in an alternative
format should be made to EEOC's Publications Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION: In 2004, former EEOC Chair Cari M. Dominguez
asked Commissioner Stuart J. Ishimaru to lead a workgroup to develop
consensus recommendations from the Commissioners for improvements to
the discrimination complaint process for Federal employees. The Federal
Sector Workgroup considered testimony and submissions from the November
12, 2002 Commission meeting on Federal sector reform, draft staff
proposals for Federal sector reform, and numerous submissions of
internal and external stakeholders with suggestions for improvements to
the Federal sector process. The Workgroup determined that there was not
consensus within the Workgroup for large scale revision of the Federal
sector EEO process at this time, but that there was agreement on
several discrete changes to the existing regulations that would clarify
or build on the improvements made by the last major revisions to Part
1614 in 1999. These regulation changes will be accompanied by the
issuance of additional guidance in Management Directive 110 and other
program changes at EEOC.
The Commission sent the draft NPRM to 170 Federal agencies for
coordination, pursuant to Executive Order 12067. Thirty-three agencies
or agency components submitted comments on the proposed draft. Three
agencies noted that they had no comments, or that they believed the
proposed changes were improvements. Of the remaining thirty comments,
nearly one-third were from various components of the Department of
Justice. The inter-agency comments are summarized where appropriate in
the discussion of the proposed changes below.
Agency Process
The Workgroup considered many recommendations for improvement to
the parts of the Federal sector EEO process for which the agencies bear
responsibility--counseling, investigations, and final actions. The
Workgroup made a number of non-regulatory and regulatory
recommendations to improve the agency process. EEOC proposes the
following changes to the agency process in part 1614.
The Commission proposes to add two new paragraphs to Sec.
1614.102. One paragraph requires that agency EEO programs comply with
part 1614 and the Management Directives and Bulletins issued by EEOC,
and indicates that the Commission will review
[[Page 67840]]
programs for compliance and that the Chair may issue notices to
agencies when non-compliance is found. With this provision, the
Commission intends to provide a mechanism for reviewing and seeking
compliance from agencies that fail to comply with the requirements of
Part 1614, Management Directive 110, Management Directive 715, and
Management Bulletin 100-1. The proposed regulation would also require
that agencies comply with any Management Directives or Bulletins that
may be issued in the future. Federal agencies will receive appropriate
notice of any new or changed Management Directives or Management
Bulletins.
A number of agencies opposed this proposal, arguing that requiring
agency compliance with EEOC directives and bulletins that have not been
subject to the notice and comment rulemaking process violates the
Administrative Procedure Act. In this proposed new paragraph, the
Commission simply intends to remind agencies of their statutory
responsibilities, contained in section 717(b) of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e(16)(b), to ``comply with such
rules, regulations, orders, and instructions'' issued by EEOC. A few
agencies also commented on the proposed review of agency programs for
compliance and the issuance of non-compliance notices. Some objected to
the proposal, and others questioned whether EEOC would afford a non-
compliant agency an opportunity to comply or explain its non-compliance
before reporting the non-compliance or issuing a notice from the Chair.
Agencies are currently afforded the opportunity to respond to non-
compliance notices and to communicate with EEOC regarding their
compliance actions. Under the proposed compliance regulation, EEOC will
continue to offer agencies opportunities to respond and explain their
programs.
The second proposed new paragraph to Sec. 1614.102 would permit
EEOC to grant agencies variances from particular provisions of part
1614 to conduct pilot projects for processing complaints in ways other
than those prescribed in part 1614. Such pilots would be subject to
EEOC approval by vote of the Commissioners and would usually not be
granted for more than 12 months. Pilots could provide helpful data for
future recommendations for changes to the Federal sector process.
The agencies that commented on the pilot proposal were all in favor
of it. Most agencies noted that 12 months is too short a period within
which to conduct a pilot and gauge its effectiveness. Some suggested
that the time period should be two years, while others suggested that
the regulation allow for an automatic extension to allow all complaints
that entered a pilot to be fully processed in the pilot. Other agencies
requested guidance on the pilot program elements that will be viewed
favorably by EEOC. We note that pilots will not necessarily start on
the date EEOC approves them because it may take some time for agencies
to implement approved pilot projects. We seek additional comments on
the length of time for pilots and on whether EEOC should provide for
extensions of pilots. In addition, we note that the Commission will
issue guidance in its Management Directive 110 on the procedures for
requesting approval of pilots, including, among other things,
information on plans for publicizing the pilot among agency employees,
criteria for evaluating the success of the pilot, anticipated start and
end dates, quarterly reports, etc.
The Commission proposes to add a new paragraph to Sec. 1614.108
Investigation of complaints, that would require agencies that have not
completed an investigation within the 180 day time limit for
investigations (or up to 360 days if the complaint has been amended) to
send a notice to the complainant indicating that the investigation is
not complete, providing the date by which it will be completed, and
explaining that the complainant has the right to request a hearing or
file a lawsuit. The Commission believes that complainants may have
forgotten their right to request a hearing or file a lawsuit 180 days
after filing the complaint, or may not be aware of when the 180-day
period expires. In addition, the Commission believes that requiring
such a notice may shorten delays in agency investigations by providing
an incentive for agencies to timely complete their investigations. The
notice would be in writing and would describe the hearing process and
include a simple explanation of discovery and burdens of proof.
Several agencies commented favorably on the notice proposal, but a
larger number opposed it, arguing that it is superfluous, since the
regulations require agencies to send notices detailing time limits to
complainants at counseling and initial filing of the complaint. We are
not persuaded by the agencies' arguments. The proposed notice would
come later in the process, right at the time when the complainant has
the right to request a hearing or file a civil action. The notice is
intended to give the complainant the information needed to decide
whether to wait for the completion of the investigation or request a
hearing. We note, as well, that an agency's failure to provide the
notice cannot be the basis of a ``failure to properly process'' claim.
EEOC eliminated the investigation of ``spin-off'' complaints (those
that allege failure to properly process a complaint) in the 1999
amendments to part 1614. It will continue to be the case that any
``failure to properly process'' claims must be dismissed, including any
such claim involving an agency's failure to provide the proposed new
notice.
The Commission proposes two clarifying changes in the agency
process section of the regulations. Section 1614.103(b)(6) would be
amended to comport with the coverage provisions of the Rehabilitation
Act and state that part 1614 applies to discrimination complaints
against the Government Printing Office, except for complaints under the
Rehabilitation Act.
It is also proposed to revise the dismissals section to clarify
that complaints alleging discrimination in proposals to take personnel
actions or other preliminary steps to taking personnel actions should
be dismissed unless the complaint alleges that a proposal or
preliminary step is retaliatory. This change would conform the
dismissals section of part 1614 to long-standing private sector
Commission policy guidance on retaliation as set forth in EEOC's
Compliance Manual. See 2 EEOC Compliance Manual Sec. 8-II.D.3 (1998)
(``[A]ny adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity'' is prohibited retaliation.). This change also
will bring the regulations into conformity with published EEOC Federal
sector appellate decisions that have addressed whether, notwithstanding
1614.107(a)(5), complaints challenging proposed or preliminary actions
as retaliatory state a claim and should be investigated. See, e.g.,
Lorina D. Goodwin v. F. Whitten Peters, Secretary, Department of the
Air Force, EEOC Appeal Nos. 01991301 & 01A01796, 2000 WL 1616337
(October 18, 2000) (holding that the complainant's challenge of a
proposed dismissal as being retaliatory stated a claim because
``proposed actions can be considered adverse actions in the reprisal
context if they are reasonably likely to deter protected activity'').
We note that this proposed change to the 1614.107(a)(5) dismissal
provision does not change the standard for stating a claim of
retaliation under Title VII. While agencies would no longer be able to
dismiss a claim alleging that a proposal or preliminary step was
[[Page 67841]]
retaliatory under 29 CFR 1614.107(a)(5), they would still evaluate the
claim under the failure to state a claim dismissal provision in 29 CFR
1614.107(a)(1). It is expected that agencies would only dismiss
allegedly retaliatory proposals and other preliminary steps under 29
CFR 1614.107(a)(1) if the alleged retaliatory actions were not
materially adverse, that is, if the alleged retaliatory proposal or
preliminary step would not dissuade a reasonable worker in the
complainant's circumstances from engaging in protected EEO activity.
Not all preliminary steps or proposals would constitute actionable
retaliation. As noted by the Supreme Court in Burlington Northern &
Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), ``[a]n
employee's decision to report discriminatory behavior cannot immunize
that employee from those petty slights or minor annoyances that often
take place at work and that all employees experience.'' See also 2 EEOC
Compliance Manual Sec. 8-II.D.3 (1998) (``[P]etty slights and trivial
annoyances are not actionable, as they are not likely to deter
protected activity.''). Therefore, the challenged preliminary step or
proposed action must be likely to deter a reasonable employee from
protected activity. Given all the circumstances, a proposed letter of
warning may not deter a reasonable complainant from filing a complaint,
whereas a proposed suspension may have a deterring effect. ``Context
matters * * * for an `act that would be immaterial in some situations
is material in others.''' Burlington Northern, 548 U.S. at 69 (quoting
Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 661 (7th Cir.
2005)).
A number of agencies objected to the proposal, arguing that it is
inconsistent with the statutory text applicable to the Federal sector
or that it would encourage the filing of premature and non-actionable
complaints. One agency's alternative proposal would exempt from
dismissal complaints alleging that a proposal or preliminary step is
retaliatory only if they contain allegations of severe or repeated
threats of adverse action that may state a claim of a hostile work
environment. This alternative proposal would amend Sec. 1614.107(a)
along the following lines: ``Prior to a request for a hearing in a
case, the agency shall dismiss an entire complaint: * * * (5) That is
moot or alleges that a proposal to take a personnel action, or other
preliminary step to taking a personnel action, is discriminatory,
except that with regard to a claim of retaliation, allegations of
severe or repeated threats of adverse action may state a claim of a
hostile work environment that is not subject to dismissal on such
basis.''
In considering this alternative proposal, it should be noted that
the Supreme Court has recognized that a hostile work environment is
created where an employer's actions are ``sufficiently severe or
pervasive `to alter the conditions of [the victim's] employment and
create an abusive working environment.''' Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67 (1986) (citation omitted). Where the threatened
act or acts, if implemented, would be sufficiently severe in the
context of the complainant's employment to result in a materially
adverse consequence to the employee, the threats may meet this
standard.
Under this alternative proposal, the alleged retaliation should be
viewed in the context of the complainant's underlying claim of
discrimination. Together, the allegations of discrimination and of
retaliatory threats for challenging that discrimination could
constitute pervasive conduct that amounts to an actionable hostile work
environment.
In addition, courts have recognized that single actions, if
sufficiently severe, can without more constitute a hostile work
environment. See, e.g., Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir.
1999) (``[a]lthough less severe acts of harassment must be frequent or
part of a pervasive pattern of objectionable behavior in order to rise
to an actionable level, `extremely serious' acts of harassment do
not'') (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)). Therefore, a single threat of adverse action made because the
employee complains of, or opposes, unlawful discrimination, may satisfy
the standard set forth in the alternative proposal if it threatens
sufficiently serious consequences (even if the threat is made before
the employee files an EEO claim). For example, a retaliatory threat of
termination of employment against an employee complaining of, or
opposing, unlawful discrimination could in appropriate circumstances
constitute retaliation with consequences so severe that the complaint
challenging that threat should not be dismissed. A retaliatory threat
of actions that would cause significant monetary loss, such as a
lengthy suspension without pay or threats of future violence, could
also be sufficient in appropriate circumstances.
The regulation proposed by EEOC differs from the alternative
proposal discussed above. Under the Commission's proposal, it would be
sufficient for the employee to show that the challenged agency proposed
action or threat is likely to dissuade a reasonable employee from
complaining or assisting in complaints about discrimination. Under the
alternative proposal, the employee would have to show that the proposed
actions or threats were either pervasive enough or severe enough to
create a hostile working environment. EEOC invites comments on both its
proposed regulation and on the alternative proposed language.
EEOC Process
The Workgroup recommended a number of changes to improve the
hearings and appeals processes. The hearings changes are primarily non-
regulatory. With respect to appeals, the Commission proposes to require
that agencies submit appeals records and complaint files to the
Commission electronically. Complainants would be encouraged, but not
required, to submit appeals and other documentation electronically.
Several agencies submitted comments in favor of the electronic
submission proposal. Many others, however, expressed reservations,
noting that each agency has unique information technology security
requirements, and expressing concern about ensuring the security of
files and the costs of converting paper files. Some agencies asked that
the implementation of an electronic filing requirement be delayed to
allow agencies to budget for it and develop the means to comply. We
have retained the electronic filing provision, as we believe that it
will enable more efficient processing of appeals. As to delayed
implementation, we note that EEOC will have to secure approval from the
National Archives and Records Administration to maintain EEO appeal
records electronically before commencing such a program.
The Commission also proposes to revise Sec. 1614.402(f) to require
that briefs in opposition to appeals be submitted to the Commission and
served on the opposing party within 35 days of service of the statement
or brief supporting the appeal (as opposed to the existing requirement
that they be filed within 30 days of receipt of the statement or brief
supporting the appeal.) Agency comments on this proposal were mixed.
Those that were opposed expressed concerns about the delays in receipt
of mail caused by the irradiation of mail in Washington, DC. We are
requesting additional comments on how widespread the irradiation delays
are and whether irradiation delays affect only agencies.
The Commission proposes to revise Sec. 1614.405(b) (redesignated
as Sec. 1614.405(c)) to provide that decisions
[[Page 67842]]
under the section are final for purposes of filing a civil action in
federal court, unless a timely request for reconsideration is filed by
a party to the case. Several agencies concurred with this proposal. The
Commission also proposes to revise Sec. 1614.504(c) to differentiate
the remedies available for breach of settlement agreements and breach
of final decisions. For breach of a settlement, the section would
continue to state that the Commission may order compliance or
reinstatement of the complaint for further processing from the point
processing ceased, whereas for breach of a final decision, the proposal
would clarify that compliance is the only remedy. Three agencies
expressed their agreement with the proposed change. The Commission also
proposes editorial changes to Sec. Sec. 1614.402, 1614.405(a) and
1614.409 to correct errors and omissions.
Class Complaints
The Workgroup carefully considered the class complaint process and
made a number of recommendations to improve its effectiveness. As a
result of those recommendations, the Commission proposes to revise the
class complaint regulations to make an administrative judge's decision
on the merits of a class complaint a final decision, which the agency
can fully implement or appeal in its final action. Currently, the
administrative judge issues recommended findings and conclusions, which
the agency may accept, reject, or modify in its final decision. For
non-class complaints, the Commission changed the administrative judge's
recommended decision to a final decision that is fully implemented or
appealed by the agency in its final action in the 1999 regulation
changes. This proposed change adopts the same language used in the
individual complaint provision (``if the final order does not fully
implement the decision of the administrative judge, then the agency
shall simultaneously file and appeal * * * .'' 29 CFR 1614.110(a)) and
would conform the class complaint decisions to the non-class complaint
decisions.
Four agencies commented in favor of the proposed change, but ten
opposed it. The opposing agencies objected to removing the agencies'
option to modify the findings and recommendations of the administrative
judge, arguing that the change would impede their ability to settle
cases. Agencies raised similar objections when the Commission proposed
to make non-class complaint administrative judge decisions final in
1999, but there has been no indication since then that agencies have
been less able to settle complaints.
The Commission also proposes to provide for expedited processing of
appeals of decisions to accept or dismiss class complaints
(certification decisions) to shorten the class certification process.
Specifically, the Commission proposes to amend Sec. 1614.405, to
provide that decisions on appeals of decisions to accept or dismiss
class complaints will be issued within 90 days of receipt of the
appeal.
Finally, the Commission proposes an editorial change to Sec.
1614.204(f)(1) to correct the omission of the word ``shall.''
Other Clarifying Changes
The Commission proposes to amend Sec. 1614.109(g) to rename the
section ``Summary Judgment'' instead of ``Decision without a hearing.''
This change is intended to convey more clearly the Commission's policy
that the standards of Rule 56 of the Federal Rules of Civil Procedure
governing summary judgments apply in the EEOC hearings process. This
change is not intended, however, to alter existing Commission policy or
practice; Commission decisions on the summary judgment process will
continue to apply.
The Commission proposes to amend Sec. 1614.302(c)(2) to correct an
erroneous cross reference. The section should refer to Sec.
1614.107(a)(4).
Finally, the Commission proposes to revise Sec. 1614.502(c) to
change the time frame within which agencies must provide the relief
ordered from 60 days to 120 days. The regulation currently requires an
agency to pay an administrative complainant who prevails before the
EEOC within 60 days of EEOC's final decision. Since 1991, however,
complainants have had up to 90 days to file suit in United States
district court if they are dissatisfied with EEOC's decision. Once a
civil action is filed, the EEOC decision is no longer final and the
agency does not have to provide the relief awarded. Amending the
regulation to require agency payment within 120 days will ensure that
the EEOC award is final before the agency provides the relief. Agency
comments were uniformly in favor of this proposed change.
Regulatory Procedures
Executive Order 12866
In promulgating this notice of proposed rulemaking, the Commission
has adhered to the regulatory philosophy and applicable principles of
regulation set forth in section 1 of Executive Order 12866, Regulatory
Planning and Review. This proposed regulation has been designated as a
significant regulation and reviewed by OMB consistent with the
Executive Order.
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 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 of
the federal government. For this reason, a regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Paperwork Reduction Act
This regulation contains no information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Age discrimination, Equal
employment opportunity, Government employees, Individuals with
disabilities, Race discrimination, Religious discrimination, Sex
discrimination.
For the Commission
Dated: December 15, 2009.
Stuart J. Ishimaru,
Acting Chairman.
Accordingly, for the reasons set forth in the preamble, the Equal
Employment Opportunity Commission proposes to amend chapter XIV of
title 29 of the Code of Federal Regulations as follows:
PART 1614--[AMENDED]
1. The authority citation for 29 CFR part 1614 continues to read as
follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3
CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 1969 Comp., p. 133;
E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3
CFR, 1978 Comp., p. 321.
[[Page 67843]]
2. In Sec. 1614.102 add new paragraphs (e) and (f) to read as
follows:
Sec. 1614.102 Agency program.
* * * * *
(e) Agency programs shall comply with this part and the Management
Directives and Bulletins that the Commission issues. The Commission
will review agency programs from time to time to ascertain whether they
are in compliance. If an agency program is found not to be in
compliance, efforts shall be undertaken to obtain compliance. The Chair
may issue a notice to the head of any federal agency whose programs are
not in compliance and identify each non-compliant agency in the Office
of Federal Operations' annual report on the Federal workforce.
(f) Unless prohibited by law or executive order, the Commission, in
its discretion and for good cause shown, may grant agencies prospective
variances from the complaint processing procedures prescribed in this
Part. Variances will permit agencies to conduct pilot projects of
proposed changes to the complaint processing requirements of this part
that may later be made permanent through regulatory change. Agencies
requesting variances must identify the specific section(s) of this part
from which they wish to deviate and exactly what they propose to do
instead, explain the expected benefit and expected effect on the
process of the proposed pilot project, indicate the proposed duration
of the pilot project, and discuss the method by which they intend to
evaluate the success of the pilot project. Variances will not be
granted for individual cases and will usually not be granted for more
than 12 months. Requests for variances should be addressed to the
Director, Office of Federal Operations.
3. Revise 1614.103(b)(6) to read as follows:
Sec. 1614.103 Complaints of discrimination covered by this part.
* * * * *
(b) * * *
(6) The Government Printing Office except for complaints under the
Rehabilitation Act; and
* * * * *
4. Revise 1614.107(a)(5) to read as follows:
Sec. 1614.107 Dismissals of complaints.
(a) * * *
(5) That is moot or alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory, unless the complaint alleges that the proposal or
preliminary step is retaliatory;
* * * * *
5. Amend 1614.108 by redesignating paragraph (g) as paragraph (h),
and adding a new paragraph (g) to read as follows:
Sec. 1614.108 Investigation of complaints.
* * * * *
(g) If the agency does not send the notice required in paragraph
(f) of this section within the applicable time limits, it shall, within
those same time limits, issue a written notice to the complainant
informing the complainant that it has been unable to complete its
investigation within the time limits required by Sec. 1614.108(f) and
estimating a date by which the investigation will be completed.
Further, the notice must explain that if the complainant does not want
to wait until the agency completes the investigation, he or she may
request a hearing in accordance with paragraph (h) of this section, or
file a civil action in an appropriate United States District Court in
accordance with section 1614.407(b). Such notice shall contain
information about the hearing procedures.
* * * * *
Sec. 1614.109 [Amended]
6. Amend the heading of Sec. 1614.109(g) to remove the words
``Decisions without hearing'' and add in their place the words
``Summary Judgment.''
7. Amend 1614.204 to:
a. In paragraph (f)(1) remove the words ``administrative judge
notify'' from the first sentence and add in their place the words
``administrative judge shall notify.''
b. Revise paragraphs (i), (j) and (k) to read as set forth below.
c. In paragraph (l)(2) remove the words ``final decision'' and add
in their place the words ``final order.''
d. In paragraph (l)(3) remove the words ``final decision'' wherever
they appear in the first and next to last sentences and add in their
place the words ``final order''; and revise the third sentence to read
as set forth below.
Sec. 1614.204 Class complaints.
* * * * *
(i) Decisions: The administrative judge shall transmit to the
agency and class agent a decision on the complaint, including findings,
systemic relief for the class and any individual relief, where
appropriate, with regard to the personnel action or matter that gave
rise to the complaint. If the administrative judge finds no class
relief appropriate, he or she shall determine if a finding of
individual discrimination is warranted and, if so, shall order
appropriate relief.
(j) Agency final action. (1) Within 60 days of receipt of the
administrative judge's decision on the complaint, the agency shall take
final action by issuing a final order. The final order shall notify the
class agent whether or not the agency will fully implement the decision
of the administrative judge and shall contain notice of the class
agent'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
673 shall be attached to the final order.
(2) If an agency does not issue a final order within 60 days of
receipt of the administrative judge's decision, then the decision of
the administrative judge shall become the final action of the agency.
(3) A final order on a class complaint shall, subject to subpart D
of this part, be binding on all members of the class and the agency.
(k) Notification of final action: The agency shall notify class
members of the final action and relief awarded, if any, through the
same media employed to give notice of the existence of the class
complaint. The notice, where appropriate, shall include information
concerning the rights of class members to seek individual relief, and
of the procedures to be followed. Notice shall be given by the agency
within 10 days of the transmittal of the final action to the agent.
(l) * * *
(3) * * * 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 class-wide discrimination was found
in the final order. * * *
Sec. 1614.302 [Amended]
8. Remove the words ``Sec. 1614.107(d)'' wherever they appear in
Sec. 1614.302(c)(2) and add in their place the words ``Sec.
1614.107(a)(4).''
Sec. 1614.401 [Amended]
9. In Sec. 1614.401(c), remove the words ``a class agent may
appeal a final decision on a class complaint'' and add
[[Page 67844]]
in their place the words ``a class agent may appeal an agency's final
action or an agency may appeal an administrative judge's decision on a
class complaint.''
10. Add a new sentence to Sec. 1614.402(a) before the last
sentence to read as follows:
Sec. 1614.402 Time for appeals to the Commission.
(a) * * * Appeals described in Sec. 1614.401(d) must be filed
within 30 days of receipt of the final decision of the agency, the
arbitrator or the Federal Labor Relations Authority. * * *
* * * * *
11. In Sec. 1614.403, revise the first sentence of paragraph (a),
revise the first sentence of paragraph (f) and add a new paragraph (g)
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 77960, Washington, DC 20013, or electronically, or by
personal delivery or facsimile. * * *
* * * * *
(f) Any statement or brief in opposition to an appeal must be
submitted to the Commission and served on the opposing party within 35
days of service 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. * * *
(g) Agencies are required to submit all appeals, complaint files,
and other appellate filings to EEOC electronically, except in exigent
circumstances. Appellants are encouraged, but not required, to submit
appeals and supporting documentation electronically.
12. Amend Sec. 1614.405 to revise the second sentence of paragraph
(a), redesignate paragraph (b) as paragraph (c), add a new paragraph
(b) and revise the first sentence of redesignated paragraph (c) to read
as follows:
Sec. 1614.405 Decisions on appeals.
(a) * * * The Commission shall dismiss appeals in accordance with
Sec. Sec. 1614.107, 1614.403(c) and 1614.409. * * *
(b) The Office of Federal Operations, on behalf of the Commission,
shall issue decisions on appeals of decisions to accept or dismiss a
class complaint issued pursuant to Sec. 1614.204(d)(7) within 90 days
of receipt of the appeal.
(c) A decision issued under paragraph (a) of this section is final
within the meaning of Sec. 1614.407 unless a timely request for
reconsideration is filed by a party to the case. * * *
13. Revise the first sentence of Sec. 1614.409 to read as follows:
Sec. 1614.409 Effect of filing a civil action.
Filing a civil action under Sec. Sec. 1614.407 or 1614.408 shall
terminate Commission processing of the appeal. * * *
Sec. 1614.502 [Amended]
14. Revise the last sentence of Sec. 1614.502(c) to remove the
words ``60 days'' and in their place add the words ``120 days.''
15. Revise the second sentence of Sec. 1614.504(c) to read as
follows:
Sec. 1614.504 Compliance with settlement agreements and final action.
* * * * *
(c) * * * If the Commission determines that the agency is not in
compliance with a decision or settlement agreement, and the
noncompliance is not attributable to acts or conduct of the
complainant, it may order such compliance with the decision or
settlement agreement, or, alternatively, for a settlement agreement, it
may order that the complaint be reinstated for further processing from
the point processing ceased. * * *
[FR Doc. E9-30162 Filed 12-18-09; 8:45 am]
BILLING CODE 6570-01-P