[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
[[Page 4017]]
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
[[Page 4018]]
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