[Federal Register Volume 85, Number 113 (Thursday, June 11, 2020)]
[Rules and Regulations]
[Pages 35558-35562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10965]


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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: Final rule.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is issuing a final rule that revises its Federal sector 
complaint processing regulations to address when a complainant may file 
a civil action after having previously filed an administrative appeal 
or request for reconsideration with the EEOC. The final rule also 
contains certain editorial changes.

DATES: Effective June 11, 2020.

FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal 
Counsel, (202) 663-4681, or Gary J. Hozempa, Senior Staff Attorney, 
(202) 663-4666, Office of Legal Counsel, U.S. Equal Employment 
Opportunity Commission. Requests for this document in an alternative 
format should be made to the EEOC's Office of Communications and 
Legislative Affairs at (202) 663-4191 (voice) or (202) 663-4494 (TTY).

SUPPLEMENTARY INFORMATION: 

Introduction

    On February 14, 2019, the EEOC published in the Federal Register a 
Notice of Proposed Rulemaking (hereinafter ``NPRM'') revising primarily 
29 CFR 1614.407 (which pertains to a Federal sector complainant's right 
to file a civil action). 84 FR 4015 (2019). Currently, 29 CFR 1614.407 
provides that 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''); or section 501 of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 791 (hereinafter ``Rehabilitation Act''), 
may file a civil action within 90 days of receipt of the agency final 
action unless the complainant has filed an appeal with the EEOC, or 180 
days after the complaint was filed if an appeal has not been filed and 
agency final action has not been taken. See 29 CFR 1614.407(a) & (b). 
When an appeal is filed with the EEOC, the current rule states that the 
complainant may file a civil action: (1) Within 90 days of receipt of 
the EEOC's final decision on the appeal; or (2) 180 days after the 
filing of the appeal if the EEOC has not issued a decision within that 
period. See 29 CFR 1614.407(c) & (d).
    In Bullock v. Berrien, 688 F.3d 613, 618-19 (9th Cir. 2012), the 
court ruled that a Federal employee who had filed an administrative 
appeal with the EEOC could withdraw the appeal and file a civil action 
in district court within the 90-day period following receipt of the 
agency final action. The court reasoned that, because Title VII 
authorizes a Federal sector complainant to file a civil action 
``[w]ithin 90 days of receipt of notice of [agency] final action,'' 42 
U.S.C. 2000e-16(c), a complainant is not required to file an appeal 
with the EEOC before going to court. See Bullock, 688 F.3d at 618.
    In accordance with Bullock, the NPRM proposed changing Sec.  
1614.407 to state that a complainant may withdraw an administrative 
appeal and instead file a civil action if the civil action is filed 
within 90 days of receipt of the notice of agency final action. The 
NPRM also proposed revising Sec.  1614.407 to state that a complainant 
may withdraw a request for reconsideration and proceed to court if the 
civil action is filed within 90 days of receipt of the EEOC's initial 
appellate decision. The NPRM provided a 60-day comment period for the 
public.

Comments Generally

    The EEOC received twenty comments in response to the NPRM. Comments 
were received from one agency, three organizations, three attorneys or 
law firms, and thirteen individuals, some of whom identified themselves 
as Federal or former Federal employees.
    Of the thirteen comments submitted by individuals, four were non-
responsive, six supported the proposed

[[Page 35559]]

changes, and three individuals expressed opposition. Two organizations 
and two attorneys opposed the changes proposed in the NPRM. A law firm 
also disagreed with the proposed revisions and recommended an 
alternative approach. The agency and one organization supported the 
changes. The comments are discussed in more detail below.

Comments Supporting the NPRM

    One individual argued that filing a civil action without first 
having to file an appeal would be advantageous to complainants, as it 
would eliminate the 180-day maximum waiting period if an appeal were 
filed. Three other individuals concluded that the changes to 29 CFR 
1614.407 would provide clarity to district court judges, resulting in 
uniform rulings that a complainant properly is in court if a civil 
action is filed within 90 days of receipt of the agency final action.
    Another individual and an agency supported the proposed changes, 
stating that the revisions would eliminate what they regard as a 
barrier to obtaining prompt relief. The agency noted that the revisions 
will affect only ``the timing of a complainant's ability to exercise 
their rights; it does not affect the actual exercise of those rights.''
    One organization supported the proposed changes because it 
disagrees with those courts that have dismissed civil actions on the 
grounds that the complainants failed to exhaust their administrative 
remedies. It argued that such dismissals place an added burden on 
complainants, who then must attempt to re-enter the administrative 
process. It also asserted that the dismissals prevent meritorious cases 
from being prosecuted, thereby depriving complainants of the relief to 
which they are entitled. The organization recommended that the EEOC 
further revise Sec.  1614.407 to state explicitly that a complainant 
who files a civil action in a manner consistent with the proposed 
changes has exhausted his or her administrative remedies.
    Further, this organization proposed that the EEOC add new sections 
to the regulation requiring agencies to ``give explicit notice to 
complainants on how to take cases to federal district court . . .'' at 
the end of the investigation, when the complainant is given a choice of 
requesting a hearing before an EEOC Administrative Judge, or a final 
decision by the agency. Lacking such notice, it argued, complainants 
are misled into believing that one must request a hearing before being 
able to proceed to court.

Comments Opposing the NPRM

    One individual is opposed to the proposed revisions because she 
believes the changes will encourage complainants to opt out of the 
administrative process. She and an organization noted that pursuing a 
civil action, in contrast to pursuing an administrative appeal, is more 
formal, expensive, time consuming, and intimidating for pro se 
plaintiffs. Another individual and that organization characterized the 
proposed changes as an attempt by the EEOC to reduce its appellate 
caseload by steering complainants into the court system.
    These two commenters further asserted that the EEOC should not 
change Sec.  1614.407 based solely on a ruling from a single Circuit 
Court. Another individual argued that, aside from constituting the only 
Circuit Court to rule that an administrative appeal is optional, the 
Bullock court ruled the way it did because of the unique set of facts 
before it--the plaintiff was a former EEOC employee and, in her 
participation in the EEOC appellate process, she was asking the EEOC to 
rule against itself. Thus, this individual does not believe Bullock 
provides a convincing rationale for a rule change. Other commenters 
agreed that the facts in Bullock were exceptional given that the EEOC 
was the defendant. For this reason, four commenters do not believe 
Bullock rests on a solid legal foundation sufficient for other Circuits 
to find its reasoning persuasive. Their concern is that most of the 
civil actions filed in reliance on the proposed changes to Sec.  
1614.407 will result in dismissals for failure to exhaust 
administrative remedies.
    Two commenters additionally asserted that the proposed changes are 
at odds with congressional intent, arguing that, in passing section 717 
of Title VII, Congress intended complainants to receive relief 
primarily through the administrative process, thus ensuring that 
district courts would not be overburdened with adjudicating EEO cases. 
In a similar vein, two commenters expressed concern that the EEOC has 
not explained how its proposed changes would further the remedial 
purposes of Title VII.
    One organization expressed concern that, if the proposed changes 
are made final, the Civil Division of the U.S. Department of Justice 
(hereinafter ``DOJ'') will continue to argue that a civil action filed 
by a complainant who also has filed an appeal is premature if it is 
filed less than 181 days after the appeal. Further, with respect to the 
proposed revisions to 29 CFR 1614.409 (``effect of filing a civil 
action''), three commenters asked whether the effect of the change will 
be that the EEOC will not enforce an appellate decision favorable to 
the complainant in the event the complainant subsequently files a civil 
action. One commenter recommended revising Sec.  1614.409 to state that 
an agency is bound by a final action favorable to the complainant, even 
if the complainant later files an appeal or a civil action.
    A commenter, noting that it has represented Federal sector 
complainants who have traversed what a district court called a 
``Byzantine'' administrative process, opposed the proposed revisions, 
but mostly on grounds different from those discussed above. It argued 
that the EEOC's proposed changes to Sec.  1614.407 will render the 
Federal sector administrative process even more Byzantine. This 
commenter further maintained that the EEOC's proposed revisions 
misinterpret section 717(c) of Title VII (which addresses a 
complainant's right to file a civil action), arguing that, when a 
complainant has filed an appeal with the EEOC, section 717(c) permits a 
complainant to file a civil action at any time during the pendency of 
the appeal, even if that means the complainant files a civil action 
more than 90 days after issuance of the agency's final action. The 
commenter further suggested that the Commission should revise Sec.  
1614.407 to state that a complainant's withdrawal of an appeal or a 
request for reconsideration constitutes a final administrative decision 
that triggers the statutory 90-day period for filing a civil action.

The EEOC's Response to the Comments

    As some of the comments point out, the EEOC was the defendant-
agency in Bullock. When the plaintiff initially filed her civil action, 
the EEOC argued, in part, that because plaintiff had previously filed a 
timely appeal with the EEOC, she had failed to exhaust her 
administrative remedies. See Bullock v. Dominguez, 2010 WL 1734964, at 
*2 (S.D. Cal. April 27, 2010). Relying on section 717(c) of Title VII 
and 29 CFR 1614.407(c) & (d), the EEOC argued that plaintiff was 
precluded from filing a civil action until after the Commission issued 
a decision or 180 days had expired following the filing of her 
administrative appeal. See id. The district court agreed and dismissed 
plaintiff's civil action as premature. See id. at *3. Plaintiff 
appealed to the Ninth Circuit.
    In its initial appellate brief, the EEOC reiterated its position 
that the plaintiff had failed to exhaust her administrative

[[Page 35560]]

remedies. See Bullock, 688 F.3d at 615. The Ninth Circuit asked for a 
supplemental briefing, directing the parties to discuss the Ninth 
Circuit's decision in Bankston v. White, 345 F.3d 768 (9th Cir. 2003). 
See Bullock, 688 F.3d at 615.\1\ In its supplemental brief, the EEOC 
asserted that Bankston need not be confined to the ADEA context because 
the EEOC's regulations addressing administrative appeals applied to 
Title VII, Rehabilitation Act, and ADEA claims equally. See Bullock, 
688 F.3d at 618. The EEOC thus argued that the plaintiff in Bullock had 
exhausted her administrative remedies and the Ninth Circuit agreed. See 
id., 688 F.3d at 615.
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    \1\ In Bankston, the Ninth Circuit held that the plaintiff, who 
had filed an appeal with the Merit Systems Protection Board 
concerning his ADEA claim against the Occupational Safety and Health 
Administration, was not required to see his appeal through to 
completion or until the lapse of the requisite waiting period, but 
instead could withdraw his appeal and proceed directly to court. See 
Bankston, 345 F.3d at 776-77.
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    Thereafter, the EEOC reassessed 29 CFR 1614.407 in light of 
Bullock, and concluded that an appeal to the EEOC is an optional 
administrative step that a complainant need not take in order to 
exhaust administrative remedies. The EEOC published the NPRM in 
accordance with its revised view of the exhaustion issue. Having 
considered the comments, the EEOC has decided to issue this final rule 
making only slight changes to the NPRM, as explained below.
    The EEOC disagrees that the revised Sec.  1614.407 will encourage 
complainants to opt out of the administrative process. Nor is it the 
EEOC's intent to route complainants to state or Federal court. 
Assuming, as some have suggested, that pursuing a civil action is more 
formal and expensive than pursuing an administrative appeal, and more 
difficult for a pro se plaintiff to navigate, these factors will 
discourage most complainants from opting out of the administrative 
process. Nevertheless, we believe there is a small percentage of 
complainants who prefer to pursue their claims in court. The EEOC 
revised Sec.  1614.407 with these complainants in mind.
    When a complainant requests a final decision following the 
completion of an investigation or fails to reply to the notice that the 
complainant must request a hearing or a final agency decision, the 
agency must take final action by issuing a final decision. See 29 CFR 
1614.110(b). If the complainant requests a hearing, the agency must 
take final action by issuing an order notifying the complainant whether 
the agency will fully implement the decision of the Administrative 
Judge. See id., Sec.  1614.110(a). In both situations, the agency's 
final action must contain a notice informing the complainant of, among 
other things, his or her right to file an appeal with the EEOC or a 
civil action in Federal district court. See id., Sec.  1614.110(a) & 
(b). An appeal to the EEOC must be filed within 30 days of receipt of 
the agency's final action. See id., Sec.  1614.402(a). Under the 
current rule, a civil action must be filed within 90 days of receipt of 
the agency's final action ``if no appeal has been filed.'' Id., Sec.  
1614.407(a).
    Because a complainant must decide whether to file an appeal within 
30 days, the effect of the current regulation is to cause a complainant 
to decide whether to file a civil action within that same 30-day 
period, since the current rule allows a complainant to file a civil 
action only ``if no appeal has been filed.'' Therefore, in practice, 
the current rule reduces the statutory 90-day time period in which a 
complainant may file a civil action to 30 days. The revised rule, on 
the other hand, will afford the complainant the full 90-day statutory 
period in which to decide whether to go to court, since the complainant 
will not forfeit that right if he or she, being undecided, timely files 
an administrative appeal. The Commission believes that giving a 
complainant the full 90-day period in which to decide whether to go to 
court advances, rather than impedes, the remedial purposes of the EEO 
statutes, and preserves all avenues of recourse a complainant is 
entitled to pursue.
    The EEOC also disagrees with the commenters arguing that the EEOC's 
reliance on Bullock to support its revisions as set forth in the NPRM 
will lead to inconsistencies among the courts regarding the exhaustion 
issue. As some comments accurately state, there have been courts 
outside the Ninth Circuit that have held that a complainant who 
withdraws an appeal and files a civil action less than 180 days after 
filing an appeal has failed to exhaust administrative remedies. The 
EEOC has examined these decisions and each court rests its ruling upon 
section 717(c) of Title VII and the EEOC's current Sec.  1614.407.
    The EEOC anticipates that these same courts, as well as others, 
will show deference to the revised Sec.  1614.407 when presented with a 
plaintiff who has withdrawn an appeal and filed a civil action within 
90 days of receipt of the agency's final action. In this regard, while 
section 717(c) explicitly sets forth when a complainant's right to file 
a civil action accrues, it is less clear about when exhaustion of 
administrative remedies occurs. While section 717(c) allows a 
complainant to appeal an agency's final action to the EEOC, nothing 
contained in that section requires that the complainant file an appeal. 
Given that section 717(c) specifies that a complainant can file a civil 
action ``[w]ithin 90 days of receipt of notice of final action taken by 
a[n] . . . agency . . . ,'' section 717(c) cannot be read as creating 
an exhaustion requirement that a complainant must file an appeal before 
proceeding in court. Thus, it is the EEOC's position that filing an 
appeal is an optional, rather than mandatory, administrative step, and 
that a complainant who initially files an appeal in accordance with the 
30-day regulatory deadline may withdraw the appeal and go to court so 
long as the complainant does so within 90 days of receipt of the 
agency's final action.
    The Commission thus finds merit in one organization's suggestion 
that a paragraph be added to Sec.  1614.407 stating that a complainant 
who withdraws an appeal or a request for reconsideration within 90 days 
of receipt of the agency final action has exhausted his or her 
administrative remedies. The final rule thus adds a paragraph (g) to 
Sec.  1614.407 stating that a complainant, class agent, or class 
claimant who withdraws an appeal or a request for reconsideration and 
files a civil action within 90 days of receipt of the applicable final 
action shall be deemed to have exhausted his or her administrative 
remedies. The Commission finds, however, that the notice requirement 
suggested by the same commenter is beyond the scope of the NPRM.
    Some commenters expressed apprehension that DOJ's Civil Division 
will not agree with the Commission's revision to Sec.  1614.407, 
arguing that the Civil Division will seek dismissal of a civil action 
as premature when filed by a complainant who withdraws an appeal within 
90 days of receipt of the agency's final action. Relatedly, one 
commenter argued that the EEOC's proposed rule should not limit a 
complainant's right to go to court to the 90-day period following 
receipt of the agency final action.
    Before the EEOC issued the NPRM for public comment, it was 
circulated to all Federal agencies pursuant to Executive Order 12067. 
See 84 FR at 4016. Section 1614.407 as it appeared in the draft NPRM 
circulated to the agencies did not mention a 90-day window in which an 
appeal could be withdrawn and a civil action filed. Most agencies 
objected to this omission, stating that the rule as

[[Page 35561]]

drafted could be read as allowing a complainant to withdraw an appeal 
any time after it was filed and instead go to court. The agencies 
suggested that the revised rule should limit the withdrawal period to 
the 90-day period following receipt of the agency final action, 
consistent with the ruling in Bullock. See 84 FR at 4016. Most 
agencies, including DOJ, stated they could support the NPRM if the EEOC 
revised Sec.  1614.407 as suggested. Thus, before issuing the NPRM for 
public comment, the EEOC included the 90-day window for filing a civil 
action, consistent with the agencies' comments. See 84 FR at 4017. In 
light of the agency comments, the EEOC is confident that DOJ will not 
seek to dismiss a civil action that is filed within 90 days of the 
plaintiff's receipt of an agency final action, even if the plaintiff 
previously filed and withdrew an appeal or a request for 
reconsideration. With the agency comments in mind, the EEOC declines to 
follow the suggestion of the one commenter that the right to file a 
civil action not be limited to the 90-day period following receipt of 
the agency final action.
    Finally, with respect to the revisions made to Sec.  1614.409, it 
has been the long-standing practice of the Commission to cease 
processing an appeal when the Commission learns that the complainant 
has filed a civil action. This practice is based on the EEOC's position 
that a judicial adjudication of a plaintiff's EEO complaint supersedes 
an administrative decision addressing the same matter, regardless of 
the outcome of the decisions. The revisions to Sec.  1614.409 reaffirm 
this long-standing position. Moreover, the EEOC often is not made aware 
of the fact that a complainant has filed a civil action, resulting in 
the Commission issuing a decision on an appeal it should have 
terminated under current Sec.  1614.409. The Commission believes it is 
necessary to revise Sec.  1614.409 to state that the Commission will 
not enforce a decision it issues after the complainant has gone to 
court since the Commission would not have issued the decision had it 
known the complainant had filed a civil action. This is why revised 
Sec.  1614.409 encourages complainants to notify the EEOC when the 
complainant goes to court, so as to enable the EEOC to conserve 
resources and avoid issuing decisions that are null and void.

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 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 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 rule is not a 
significant regulatory action under section 3(f) of E.O. 12866. Thus, 
this rule does not require the EEOC to issue two E.O. 13771 
deregulatory actions.

Paperwork Reduction Act

    This 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 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 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.

Congressional Review Act

    This 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,
Janet L. Dhillon,
Chair.

    Accordingly, for the reasons set forth in the preamble, the Equal 
Employment Opportunity Commission amends chapter XIV of title 29 of the 
Code of Federal Regulations as follows:

PART 1614--[AMENDED]

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 and 2000ff-6(e); 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.''
0
c. Revise paragraphs (a) and (b).
0
d. Add paragraphs (e), (f), and (g).
    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 Commission 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 Commission from a final agency action

[[Page 35562]]

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 
paragraph (c) or (d) of this section.
    (f) After filing a request for reconsideration of a Commission 
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 Commission's decision on the appeal. If the complainant, 
class agent, or class claimant files a request for reconsideration of a 
Commission decision on an appeal and more than 90 days have passed 
since the appellant received the Commission's decision on the appeal, 
the appellant may file a civil action only in accordance with paragraph 
(c) or (d) of this section.
    (g) A complainant, class agent, or class claimant who follows the 
procedures described in paragraph (e) or (f) of this section shall be 
deemed to have exhausted his or her administrative remedies.

0
4. Revise Sec.  1614.409 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. 2020-10965 Filed 6-10-20; 8:45 am]
BILLING CODE 6570-01-P