[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Proposed Rules]
[Pages 4015-4018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01976]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AA97


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is proposing a revision to its federal sector complaint 
processing regulations in order to bring them into compliance with a 
federal circuit court decision concerning whether and when a 
complainant may file a civil action after having previously filed an 
administrative appeal or request for reconsideration with the EEOC. The 
EEOC also proposes making certain editorial changes.

DATES: Comments on the Notice of Proposed Rulemaking (hereinafter

[[Page 4016]]

``NPRM'') must be received on or before April 15, 2019.

ADDRESSES: You may submit comments, identified by RIN Number 3046-AA97, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 663-4114. (There is no toll free FAX number). 
Only comments of six or fewer pages will be accepted via FAX 
transmittal, in order to assure access to the equipment. Receipt of FAX 
transmittals will not be acknowledged, except that the sender may 
request confirmation of receipt by calling the Executive Secretariat 
staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not 
toll free numbers).
     Mail: Bernadette B. Wilson, Executive Officer, Executive 
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street 
NE, Washington, DC 20507.
     Hand Delivery/Courier: Bernadette B. Wilson, Executive 
Officer, Executive Secretariat, U.S. Equal Employment Opportunity 
Commission, 131 M Street NE, Washington, DC 20507.
    Instructions: The Commission invites comments from all interested 
parties. All comment submissions must include the agency name and 
docket number or the Regulatory Information Number (RIN) for this 
rulemaking. Comments need be submitted in only one of the above-listed 
formats. All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide.
    Docket: For access to comments received, go to http://www.regulations.gov. Copies of the received comments also will be 
available for review at the Commission's library, 131 M Street NE, 
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 
5:00 p.m., from April 15, 2019 until the Commission publishes the rule 
in final form but you must make an appointment to do so with library 
staff.

FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal 
Counsel, (202) 663-4681, or Gary J. Hozempa, Senior Staff Attorney, 
(202) 663-4666, or 1-800-669-6820) (TTY), Office of Legal Counsel, U.S. 
Equal Employment Opportunity Commission. (The first two telephone 
numbers are not toll free numbers). Requests for this document in an 
alternative format should be made to the Office of Communications and 
Legislative Affairs at (202) 663-4900 (voice) or (202) 663-4494 (TTY).

SUPPLEMENTARY INFORMATION: As set forth under the current federal 
sector EEO complaint system (29 CFR part 1614), an individual 
complainant, or a class agent or claimant, who has filed an 
administrative complaint alleging a violation of section 717 of Title 
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16 
(hereinafter ``Title VII''); section 15 of the Age Discrimination in 
Employment Act of 1967, as amended, 29 U.S.C. 633a (hereinafter 
``ADEA''); section 501 of the Rehabilitation Act of 1973, as amended, 
29 U.S.C. 791 (hereinafter ``Rehabilitation Act''); or section 202 of 
Title II of the Genetic Information Nondiscrimination Act of 2008, 42 
U.S.C. 2000ff (hereinafter ``GINA''), may file a civil action within 90 
days of receipt of final agency action unless the complainant has filed 
an appeal with the EEOC. See 29 CFR 1614.407(a). When an appeal is 
filed with the EEOC, the current rules state that the complainant must 
wait to file a civil action until one of two events occurs: the EEOC 
issues a final decision on the appeal; or 180 days have passed since 
the filing of the appeal and the EEOC has not issued a decision within 
that time period. See 29 CFR 1614.407(c) & (d) (a complainant may file 
a civil action ``[w]ithin 90 days of receipt of the Commission's final 
decision on an appeal[ ] or . . . [a]fter 180 days from the date of 
filing an appeal . . . if there has been no final decision by the 
Commission.'').
    In 2012, the Ninth Circuit held that a literal application of 29 
CFR 1614.407(d) is not warranted in all circumstances. In Bullock v. 
Berrien, 688 F.3d 613 (9th Cir. 2012), a federal employee (hereinafter 
referred to as ``complainant'') filed an administrative EEO complaint 
against her employing agency and subsequently filed an administrative 
appeal with the EEOC regarding the agency's final action on her 
complaint. Shortly thereafter, the complainant withdrew the appeal and 
filed a civil action. The lawsuit was filed within the 90-day period 
following her receipt of the agency's final action.
    The district court dismissed the civil action, finding that the 
complainant had failed to exhaust her administrative remedies. Relying 
on 29 CFR 1614.407(d), the district court concluded that the 
complainant's appeal to EEOC ``triggered the mandatory 180-day waiting 
period before Plaintiff was permitted to file with this Court.'' 
Bullock v. Dominguez, 2010 WL 1734964, at *3 (S.D. Cal. April 27, 
2010). The district court stated that the plaintiff's ``abandoned 
appeal would still trigger the 180-day rule, and her suit in this court 
was therefore premature.'' Id. (citations omitted).
    On appeal, the Ninth Circuit reversed. The court reasoned that, 
because a federal sector complainant can file a civil action within 90 
days of receipt of the agency final action and is not required to file 
an appeal before going to court, an appeal to the EEOC is an optional 
rather than a required administrative step. The court concluded, 
therefore, that a federal employee can withdraw an optional appeal and 
file a civil action within the 90-day period following receipt of the 
agency final action. See Bullock, 688 F.3d at 618-19. The court noted 
that it had ``no occasion to decide whether an employee's lawsuit could 
proceed if the employee prematurely withdrew from an administrative 
appeal and filed suit more than 90 days after receiving notice of the 
final agency action on her complaint.'' Id. at 619 (citations omitted).
    In light of the Ninth Circuit's decision, the EEOC believes its 
regulations regarding a complainant's right to file a civil action 
should be revised to recognize that filing an administrative appeal or 
a request for reconsideration is an optional administrative step, and 
that an administrative appeal or a request for reconsideration may be 
withdrawn without affecting the complainant's right to file a civil 
action.
    In an initial draft of this NPRM that, pursuant to Executive Order 
12067, the EEOC sent to federal agencies for coordination, the EEOC 
proposed to eliminate from 1614.407(a) and (b) language stating that a 
complainant may not go to court if an administrative appeal has been 
filed. The EEOC also proposed adding a paragraph (e) to 1614.407, 
stating that a complainant who has filed an appeal can withdraw it and 
proceed to court so long as the EEOC has not issued a final decision on 
the appeal.
    Thirteen agencies submitted comments. Three agencies concurred, but 
ten others opposed the proposed changes, particularly with respect to 
proposed 1614.407(e). The opposing agencies generally argued that the 
draft NPRM appeared to allow a complainant to withdraw an appeal and go 
to court even after 90 days of receipt of an agency final action, 
thereby purportedly establishing a right to file a civil action that 
does not exist in Sec.  717(c) of Title VII. It is the intent of the 
Commission to make clear that, as held in Bullock, an appeal to the 
EEOC is an optional rather than a required administrative step, and 
that administrative exhaustion can occur when an agency either takes 
final action on a complaint or fails to take final action on a 
complaint within

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180 days of the date the complaint is filed.\1\ The Commission can 
achieve this result through its proposed revisions to paragraphs (a) 
and (b) of 1614.407 (i.e., deleting the words ``if no appeal has been 
filed'' from current paragraph (a), and ``if an appeal has not been 
filed'' from current paragraph (b)). Additionally, section 717(c) of 
Title VII, 42 U.S.C. 2000e-16(c), provides that a complainant who wants 
to file a civil action after receiving notice of an agency's final 
action must do so within 90 days. Thus, we agree that proposed 
1614.407(e) should be revised to clarify that a complainant who has 
filed an appeal can withdraw it and proceed to court so long as the 
complainant does so within 90 days of receipt of an agency final 
action.
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    \1\ While the EEOC agrees with the Ninth Circuit's holding that 
an appeal to the EEOC of a final agency action is not required for 
exhaustion of administrative remedies, the EEOC disagrees with any 
suggestion that ``adjudication by an ALJ'' is required for 
exhaustion. See Bullock, 688 F.3d at 618 (``[W]e hold that an 
aggrieved employee subject to the procedural rules of Title VII 
exhausts her administrative remedies by filing a formal complaint 
for adjudication by an ALJ.''). The Ninth Circuit misstated the 
complaint processing steps set forth in 29 CFR part 1614. After 
filing a complaint, a complainant may request a hearing or an 
immediate final agency decision. The hearing is therefore optional 
and is held before an EEOC-employed Administrative Judge (AJ) (not 
an Administrative Law Judge appointed under 5 U.S.C. 3105). See 29 
CFR 1614.108(f) (``the complainant has the right to request a 
hearing and decision from an administrative judge or may request an 
immediate final decision . . . from the agency with which the 
complaint was filed''); 1614.108(h) (``the complainant may request a 
hearing . . .''); 1614.109(a) (``When a complainant requests a 
hearing, the Commission shall appoint an administrative judge to 
conduct a hearing in accordance with this section.''); 1614.110 
(``[w]hen an agency . . . receives a request for an immediate final 
decision . . .''). Thus, exhaustion occurs 180 days after the filing 
of the complaint, regardless of whether the complainant requests or 
receives a hearing. See 29 CFR 1614.108(g) (``If the agency . . . 
has been unable to complete its investigation within the time limits 
required by Sec.  1614.108(f) [(usually 180 days after the complaint 
is filed),] . . . the complainant . . . may . . . file a civil 
action in an appropriate United States District Court . . . .'').
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    Relatedly, after receiving an appellate decision from the 
Commission, ``[a] party may request reconsideration within 30 days of 
receipt of a decision of the Commission. . . .'' See 29 CFR 
1614.405(c). If a request for reconsideration is filed, the appellate 
decision on which it is based is not deemed final for purposes of 
triggering the right to file a civil action contained in 29 CFR 
1614.407(c). See 29 CFR 1614.405(c) (``A decision issued [on appeal] is 
final within the meaning of Sec.  1614.407 unless a timely request for 
reconsideration is filed by a party to the case.''). Instead, the 
Commission decision issued in response to the request for 
reconsideration constitutes the EEOC's final decision for purposes of 
invoking the 90-day time period in which a complainant may file a civil 
action. See 29 CFR 1614.407(c) (a complainant may file a civil action 
``[w]ithin 90 days of receipt of the Commission's final decision . . . 
.''). For purposes of consistency, the Commission also proposes to add 
a paragraph (f) to current Sec.  1614.407 in order to address requests 
for reconsideration.
    In conjunction with the proposed revision to 29 CFR 1614.407, the 
EEOC is proposing to remove 29 CFR 1614.201(c). This paragraph 
currently sets forth the conditions under which a complainant who has 
filed a non-mixed case complaint alleging age discrimination is deemed 
to have exhausted administrative remedies and can file a civil action. 
Exhaustion requirements for complaints filed under the ADEA (as well as 
complaints filed under Title VII, the Rehabilitation Act, and GINA) 
also are set forth in Sec.  1614.407. Some, but not all, of the 
exhaustion requirements under paragraph 1614.201(c) are the same as 
those under Sec.  1614.407. To the extent the exhaustion requirements 
differ, those listed in Sec.  1614.407, as amended by this proposed 
rule, are the correct ones. Therefore, the EEOC proposes to eliminate 
paragraph 1614.201(c).
    The unique alternative exhaustion requirement that solely pertains 
to complaints filed under the ADEA--that a complainant may file a civil 
action thirty days after giving EEOC notice of the intent to file the 
civil action--is retained in current paragraph 1614.201(a). Similarly, 
the exhaustion requirements applicable to all mixed-case complaints, 
including those filed under the ADEA (as well as Title VII, the 
Rehabilitation Act, and GINA), as set forth in Sec.  1614.310, are 
retained. Thus, the proposed elimination of paragraph 1614.201(c) will 
not affect the rights of a complainant who files an ADEA complaint, 
whether as a mixed or non-mixed complaint.
    One agency suggested that the EEOC include a provision requiring a 
complainant to notify the relevant agency when the complainant 
withdraws an appeal filed with OFO. While this suggestion has merit, 
the EEOC's concern is with the enforceability of the suggested rule. 
Nevertheless, the EEOC proposes revising 29 CFR 1614.409 to indicate 
that the EEOC will not be able to enforce an appellate decision that is 
issued after a complainant has filed a civil action, and that a 
complainant should notify the EEOC when he or she files a civil action 
while an appeal is pending.
    Finally, the EEOC proposes making an editorial change to 29 CFR 
1614.505(a)(4) (``Interim relief''). Currently, that paragraph contains 
an erroneous reference to Sec.  1614.505(b)(2). There is no paragraph 
(b)(2) within Sec.  1614.505. Instead, the proper reference should be 
to paragraph (a)(3) of Sec.  1614.505. Thus, the Commission proposes 
making this change.

Regulatory Procedures

Executive Order 12866

    The Commission has complied with the principles in section 1(b) of 
Executive Order 12866, Regulatory Planning and Review. This proposed 
rule is not a ``significant regulatory action'' under section 3(f) of 
the Order, and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of the Order.

Executive Order 13771

    This proposed rule is not subject to Executive Order 13771, 
Reducing Regulation and Controlling Regulatory Cost. Pursuant to 
guidance issued by the Office of Management and Budget's Office of 
Information and Regulatory Affairs (April 5, 2017), an ``E.O. 13771 
regulatory action'' is defined as ``[a] significant regulatory action 
as defined in section 3(f) of E.O. 12866 . . . .'' As noted above, this 
proposed rule is not a significant regulatory action under section 3(f) 
of E.O. 12866. Thus, this proposed rule does not require the EEOC to 
issue two E.O. 13771 deregulatory actions.

Paperwork Reduction Act

    This proposed rule contains no new information collection 
requirements subject to review by the Office of Management and Budget 
under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this proposed 
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 and does not impose a burden on 
any business entities. 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

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deemed necessary under the provisions of the Unfunded Mandates Reform 
Act of 1995.

Congressional Review Act

    This proposed rule does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996). Therefore, 
the reporting requirement of 5 U.S.C. 801 does not apply.

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 20, 2018.
Victoria A. Lipnic,
Acting Chair.

    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--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

0
 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.


Sec.  1614.201  [Amended]

0
 2. In Sec.  1614.201, remove paragraph (c).
0
 3. In Sec.  1614.407:
0
a. Revise the section heading;
0
b. In the introductory text, remove the word ``and'' after ``ADEA'' and 
add in its place a comma; and add the words ``and Genetic Information 
Nondiscrimination Act'' after ``Rehabilitation Act''; and
0
c. Revise paragraphs (a) and (b), and add paragraphs (e) and (f).
    The revisions and additions read as follows:


Sec.  1614.407  Civil action: Title VII, Age Discrimination in 
Employment Act, Rehabilitation Act, and Genetic Information 
Nondiscrimination Act.

* * * * *
    (a) Within 90 days of receipt of the agency final action on an 
individual or class complaint;
    (b) After 180 days from the date of filing an individual or class 
complaint if agency final action has not been taken;
* * * * *
    (e) After filing an appeal with the EEOC from an agency final 
action, the complainant, class agent, or class claimant may withdraw 
the appeal and file a civil action within 90 days of receipt of the 
agency final action. If the complainant, class agent, or class claimant 
files an appeal with the EEOC from a final agency action and more than 
90 days have passed since receipt of the agency final action, the 
appellant may file a civil action only in accordance with paragraphs 
(c) or (d) of this section.
    (f) After filing a request for reconsideration of an EEOC decision 
on an appeal, the complainant, class agent, or class claimant may 
withdraw the request and file a civil action within 90 days of receipt 
of the EEOC's decision on the appeal. If the complainant, class agent, 
or class claimant files a request for reconsideration of an EEOC 
decision on an appeal and more than 90 days have passed since the 
appellant received the EEOC's decision on the appeal, the appellant may 
file a civil action only in accordance with paragraphs (c) or (d) of 
this section.
0
4. In Sec.  1614.409, revise the introductory text to read as follows:


Sec.  1614.409  Effect of filing a civil action.

    Filing a civil action under Sec.  1614.407 or Sec.  1614.408 shall 
terminate Commission processing of the appeal. A Commission decision on 
an appeal issued after a complainant files suit in district court will 
not be enforceable by the Commission. If private suit is filed 
subsequent to the filing of an appeal and prior to a final Commission 
decision, the complainant should notify the Commission in writing.


Sec.  1614.505  [Amended]

0
5. In Sec.  1614.505(a)(4), remove the reference ``(b)(2)'' and add in 
its place ``(a)(3).''
[FR Doc. 2019-01976 Filed 2-13-19; 8:45 am]
 BILLING CODE 6570-01-P