[Federal Register Volume 88, Number 225 (Friday, November 24, 2023)]
[Proposed Rules]
[Pages 82277-82279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25647]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / 
Proposed Rules  

[[Page 82277]]



GOVERNMENT ACCOUNTABILITY OFFICE

4 CFR Part 28


Personnel Appeals Board; Procedural Rules

AGENCY: Government Accountability Office Personnel Appeals Board.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Government Accountability Office Personnel Appeals Board 
(PAB or Board) proposes to give the PAB General Counsel authority to 
process certain retaliation claims that have not first undergone GAO's 
Equal Employment Opportunity (EEO) process, and to hold certain 
nondiscrimination claims in abeyance if they are related to a claim 
pending in GAO's EEO process. These proposed changes are in response to 
an internal query that brought up the need to clarify perceived 
ambiguities in the existing regulations. The PAB also proposes to 
update the definition of prohibited discrimination to be consistent 
with changes in nondiscrimination laws. In addition, the PAB proposes 
to replace gendered pronouns with gender-neutral ones to reflect 
current usage practices. The General Accounting Office Personnel Act of 
1980 provides authority to make these changes.

DATES: Comments must be received on or before January 23, 2024.

ADDRESSES: Comments may be submitted by any of the following methods:
    Mail: Patricia Reardon-King, Clerk of the Board, Personnel Appeals 
Board, U.S. Government Accountability Office, Room 1566, 441 G Street 
NW, Washington, DC 20548.
    Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Stuart Melnick, Executive Director, 
202-512-3836 or Kevin Wilson, Solicitor, 202-512-7517, [email protected].

SUPPLEMENTARY INFORMATION: GAO is not subject to the Administrative 
Procedure Act and accordingly the Personnel Appeals Board is not 
required by law to seek comments before issuing a final rule. However, 
the Board has decided to invite interested persons to participate in 
this rulemaking by submitting written comments regarding the proposed 
revisions. Application of the Administrative Procedure Act to the GAO 
Personnel Appeals Board is not to be inferred from this invitation for 
comments.
    The Board is authorized by Congress, pursuant to 31 U.S.C. 751-755, 
to hear and decide cases brought by GAO employees concerning various 
personnel matters including adverse or performance-based actions, 
claims of discrimination, alleged prohibited personnel practices, and 
labor-management relations. The Board also exercises authority over 
GAO's EEO process at the agency. The Board's procedural regulations 
applicable to GAO appear at 4 CFR parts 27 and 28. The Board is 
proposing to revise two sections of these regulations to ensure 
consistency with current law and to address a process ambiguity in the 
current language. The Board is also proposing to replace gendered 
pronouns with gender-neutral pronouns.
    The Board proposes to amend section 28.95 by specifically 
referencing the Equal Pay Act of 1963 (29 U.S.C. 206(d)), the Genetic 
Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-1), and the 
Pregnancy Workers Fairness Act (42 U.S.C. 2000gg-1) in its definition 
of prohibited EEO discrimination. The addition of the reference to the 
Equal Pay Act of 1963 is to clarify that the prohibition on 
discrimination in wages on the basis of sex derives from Equal Pay Act 
of 1963's amendment of the Fair Labor Standards Act of 1938 (29 U.S.C. 
206(d)).
    The additions of the references to the Genetic Information 
Nondiscrimination Act of 2008 and the Pregnancy Workers Fairness Act in 
paragraph (e) and new paragraph (f) of 4 CFR 28.95 reflect types of 
discrimination that became prohibited on the effective dates of the 
respective statutes but had not yet been codified into the Board's 
regulations.
    Similarly, the revision of the definition of prohibited 
discrimination in new paragraph (h) of 4 CFR 28.95 includes a list of 
activities that may not form the basis for employment actions. 
Discrimination in retaliation for protected EEO activity became 
prohibited on the effective dates of the respective EEO statutes. This 
proposed revision codifies existing prohibitions and does not create a 
new cause of action.
    These proposed regulations also resolve ambiguity over when 
retaliation claims related to discrimination on one of the EEO-
protected bases, including claims of retaliation under prohibited 
personnel practices laws like 5 U.S.C. 2302(b)(9), must go through 
GAO's EEO process pursuant to GAO Order 2713.2 before a charge 
containing these claims can be filed with the Board's Office of General 
Counsel and a petition containing them can be filed with the Board. 
Retaliation claims related to discrimination on one of the EEO-
protected bases involving a removal, a suspension of more than 14 days, 
or a furlough of not more than 30 days would continue to have the 
option, pursuant to 4 CFR 28.98(c), of filing a discrimination 
complaint with GAO pursuant to GAO Order 2713.2 or bypassing the EEO 
process and filing a charge directly with the Board's Office of General 
Counsel. These proposed revisions would clarify that other retaliation 
claims related to discrimination on one of the EEO-protected bases may 
also bypass GAO's EEO process if they are not related to the filing or 
assisting with a discrimination complaint filed pursuant to GAO Order 
2713.2. The Board's General Counsel would be empowered to make a 
determination of whether retaliation claims related to discrimination 
on one of the EEO-protected bases are related to filing or assisting 
with a discrimination complaint filed pursuant to GAO Order 2713.2. If 
the claims are related to the filing or assisting with a discrimination 
complaint filed pursuant to GAO Order 2713.2, the General Counsel would 
inform the individual that they need to file their complaint with GAO 
pursuant to GAO Order 2713.2 before the Board's Office of General 
Counsel is permitted to process their charge on these allegations. If 
the General Counsel determines the claims are not related to filing or 
assisting with a discrimination complaint pursuant to GAO Order 2713.2, 
the Board's Office of General Counsel would inform the individual that 
the charge containing these claims can be processed by the Board's 
Office of General Counsel without delay. The

[[Page 82278]]

purpose of giving this unreviewable discretion to the Board's General 
Counsel is to give certainty to individuals that their claims may be 
processed immediately by the Board's Office of General Counsel without 
fear of having the claims subsequently dismissed for failure to exhaust 
the administrative remedies contained in GAO Order 2713.2.
    Finally, the proposed regulations would allow the Board's Office of 
General Counsel to hold in abeyance nondiscrimination allegations while 
related discrimination allegations are being pursued through GAO's EEO 
process. Once the discrimination complaint resolution process 
concludes, or the individual opts out of it, both types of claims could 
then be investigated together. The Board's General Counsel is to 
utilize this provision when the claims are so related that the Board's 
General Counsel determines it would be most appropriate to conduct a 
single investigation into them. The Board's General Counsel would have 
discretion to revisit this decision at any time and no longer hold a 
claim in abeyance. For purposes of 4 CFR 28.12(g), the length of time a 
claim is held in abeyance would count toward the 180-day period after 
which a charging party may opt out of the Board's Office of General 
Counsel's investigation and file a petition with the Board. The Board 
will consider all comments received on or before the closing date for 
comments. The Board may change the proposed revisions based on the 
comments received.

List of Subjects in 4 CFR Part 28

    Administrative practice and procedure, Claims, Equal employment 
opportunity, Government employees.

    For the reasons stated in the preamble, the Government 
Accountability Office proposes to amend title 4, chapter I, subchapter 
B, part 28 of the Code of Federal Regulations as follows:

PART 28--GOVERNMENT ACCOUNTABILITY OFFICE PERSONNEL APPEALS BOARD; 
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT 
THE GOVERNMENT ACCOUNTABILITY OFFICE

0
1. The authority citation for part 28 continues to read as follows:

    Authority:  31 U.S.C. 753.

PART 28 [Amended]

0
2. Amend part 28 by removing the word or phrase indicated in the left 
column of the table from wherever it appears in the part and adding the 
word or phrase indicated in the right column in its place:

------------------------------------------------------------------------
                  Remove                                 Add
------------------------------------------------------------------------
``him or her''............................  ``them''.
``him- or herself''.......................  ``themselves''.
``himself or herself......................  ``themselves''.
``his or her''............................  ``their''.
``his/her''...............................  ``their''.
``he or she has''.........................  ``they have''.
``he or she is''..........................  ``they are''.
------------------------------------------------------------------------

Sec.  28.80  [Amended]

0
3. Amend Sec.  28.80 by removing the words ``he or she determines'' in 
the second sentence and adding in their place the words ``they 
determine''.
0
4. Amend Sec.  28.95 by:
0
a. Revising paragraph (c);
0
b. In paragraph (d) removing the word ``or'' at the end of the 
paragraph; and
0
c. Redesignate paragraph (e) as paragraph (g); and adding a new 
paragraph (e) and paragraphs (f) and (h).
    The revision and additions read as follows:


Sec.  28.95  Purpose and scope.

* * * * *
    (c) Section 6(d) of the Fair Labor Standard Act of 1938 as amended 
by the Equal Pay Act of 1963 (29 U.S.C. 206(d)), prohibiting 
discrimination in wages on the basis of sex;
* * * * *
    (e) Section 202 of the Genetic Information Nondiscrimination Act of 
2008 (42 U.S.C. 2000ff-1), prohibiting discrimination on the basis of 
genetic information;
    (f) Section 103 of the Pregnant Workers Fairness Act (42 U.S.C. 
2000gg-1), prohibiting discrimination on the basis of pregnancy, 
childbirth or related medical conditions; or
* * * * *
    (h) Prohibited discrimination also includes any employment action 
taken against an employee or applicant for employment for opposing any 
unlawful employment practice, or for participating in any manner in an 
investigation, hearing, or in any stage of an administrative or 
judicial proceeding, under any of the statutes or laws identified in 
paragraphs (a) through (g) of this section.
0
5. Amend Sec.  28.98 by:
0
a. Revising paragraphs (a), (b) introductory text, (b)(1) and (2);
0
b. Revising the paragraph (c) heading;
0
c. Adding the words ``Office of'' between the words ``Board's'' and 
``General'' in paragraph (c)(1);
0
d. Revising the second, third, and fourth sentences of paragraph (c)(2) 
and revising paragraph (d);
0
e. Redesignating paragraph (e) as paragraph (f) and adding a new 
paragraph (e); and
0
f. Adding a heading to newly redesignated paragraph (f) and adding 
paragraph (f)(3).
    The revisions and additions read as follows:


Sec.  28.98  Individual charges in EEO cases.

    (a) General rule for filing EEO claims. Except as provided in 
paragraphs (c) and (e) of this section, an employee or applicant 
alleging prohibited discrimination (as defined in Sec.  28.95) must 
first file a complaint with GAO in accordance with GAO Order 2713.2 and 
may not file directly with the Board's Office of General Counsel.
    (b) Time limits to file EEO claims with PAB/OGC. After GAO 
processes a complaint in accordance with GAO Order 2713.2, an employee 
or applicant for employment may file an individual EEO charge with the 
Board's General Counsel as follows:
    (1) Within 30 days from the receipt by the charging party of a GAO 
decision rejecting the complaint in whole or part; or
    (2) Whenever a period of more than 120 days has elapsed since the 
complaint was filed, and a final GAO decision has not been issued; or
* * * * *
    (c) Special rules for adverse and performance-based actions. * * *
    (2) * * * If the employee elects to file a complaint of 
discrimination with GAO, they may still seek Board review of the matter 
by filing a charge with the Board's Office of General Counsel at the 
times authorized in paragraph (b) of this section. Where a 
discrimination complaint filed with GAO relates to one or more non-EEO 
issues that are within the Board's jurisdiction in addition to an EEO-
related allegation, the subsequent charge filed with the Board's Office 
of General Counsel under paragraph (b) of this section shall be 
considered a timely appeal of the non-EEO issue(s). An employee will be 
deemed to have elected the EEO complaint process if they file a timely 
written complaint of discrimination with GAO before filing a charge 
with the Board's Office of General Counsel. * * *
    (d) Special rules for RIF-based actions. An individual alleging 
discrimination issues in connection with a RIF-based separation may 
follow

[[Page 82279]]

the procedures outlined above in paragraph (c) of this section for 
adverse and performance-based actions, or may choose instead a third 
option. In accordance with the provisions of Sec.  28.13, such an 
individual may challenge that action by filing directly with the PAB, 
thus bypassing both the Office of Opportunity and Inclusiveness and the 
Board's Office of General Counsel.
    (e) Special rules in certain retaliation actions. (1) Except as 
outlined in paragraph (c) of this section, whenever a charging party 
raises a claim of retaliation that could be raised under Sec.  
28.95(h), including the prohibited personnel practices listed in 5 
U.S.C. 2302(b)(9), and that claim has not already been filed pursuant 
to GAO Order 2713.2, the Board's General Counsel has authority to, and 
shall determine whether the claim relates to retaliation for filing or 
assisting with a discrimination complaint filed pursuant to GAO Order 
2713.2. The General Counsel's determination shall not be reviewable.
    (i) If the General Counsel determines the claim as described in 
this paragraph (e)(1) relates to retaliation for filing or assisting 
with a discrimination complaint filed pursuant to GAO Order 2713.2, the 
Board's Office of General Counsel shall instruct the charging party to 
file the claim as a complaint of discrimination pursuant to GAO Order 
2713.2.
    (ii) If the General Counsel determines the claim as described in 
this paragraph (e)(1) does not relate to retaliation for filing or 
assisting with a discrimination complaint pursuant to GAO Order 2713.2, 
the Board's Office of General Counsel shall investigate the claim in 
accordance with Sec.  28.12.
    (2) A charging party who files a claim that could be raised under 
Sec.  28.95(g) may bring the retaliation claim both as a complaint of 
discrimination under Sec.  28.95 and as a prohibited personnel practice 
under 5 U.S.C. 2302(b)(9).
    (f) Claims related to EEO matters pending with EEO. * * *
    (3) Where the Board's General Counsel concludes that one or more 
claims is sufficiently related to a discrimination complaint filed by 
the same claimant pursuant to GAO Order 2713.2 and that it would be 
appropriate to investigate all claims together, the Board's Office of 
General Counsel may hold the related claim(s) in abeyance until the 
Board's General Counsel receives a charge pursuant to paragraph (b) of 
this section with respect to the formal discrimination complaint or 
makes a determination that the investigation should resume.

Julia Akins Clark,
Chair, Personnel Appeals Board, U.S. Government Accountability Office.
[FR Doc. 2023-25647 Filed 11-22-23; 8:45 am]
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