Escolar Documentos
Profissional Documentos
Cultura Documentos
1614
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§ 1614.101 29 CFR Ch. XIV (7–1–00 Edition)
1614.402 Time for appeals to the Commis- seq.), the Age Discrimination in Em-
sion. ployment Act (ADEA) (29 U.S.C. 621 et
1614.403 How to appeal.
1614.404 Appellate procedure.
seq.), the Equal Pay Act (29 U.S.C.
1614.405 Decisions on appeals. 206(d)) or the Rehabilitation Act (29
1614.406 Time limits. [Reserved] U.S.C. 791 et seq.) or for participating in
1614.407 Civil action: Title VII, Age Dis- any stage of administrative or judicial
crimination in Employment Act and Re- proceedings under those statutes.
habilitation Act.
1614.408 Civil action: Equal Pay Act. § 1614.102 Agency program.
1614.409 Effect of filing a civil action.
(a) Each agency shall maintain a con-
Subpart E—Remedies and Enforcement tinuing affirmative program to pro-
1614.501 Remedies and relief. mote equal opportunity and to identify
1614.502 Compliance with final Commission and eliminate discriminatory practices
decisions. and policies. In support of this pro-
1614.503 Enforcement of final Commission gram, the agency shall:
decisions. (1) Provide sufficient resources to its
1614.504 Compliance with settlement agree-
ments and final action. equal employment opportunity pro-
1614.505 Interim relief. gram to ensure efficient and successful
operation;
Subpart F—Matters of General (2) Provide for the prompt, fair and
Applicability impartial processing of complaints in
1614.601 EEO group statistics. accordance with this part and the in-
1614.602 Reports to the Commission. structions contained in the Commis-
1614.603 Voluntary settlement attempts. sion’s Management Directives;
1614.604 Filing and computation of time. (3) Conduct a continuing campaign to
1614.605 Representation and official time.
eradicate every form of prejudice or
1614.606 Joint processing and consolidation
of complaints. discrimination from the agency’s per-
1614.607 Delegation of authority. sonnel policies, practices and working
AUTHORITY: 29 U.S.C. 206(d), 633a, 791 and
conditions;
794a; 42 U.S.C. 2000e–16; E.O. 10577, 3 CFR, (4) Communicate the agency’s equal
1954–1958 Comp., p.218; E.O. 11222, 3 CFR, 1964– employment opportunity policy and
1965 Comp., p.306; E.O. 11478, 3 CFR, 1969 program and its employment needs to
Comp., p.133; E.O. 12106, 3 CFR, 1978 Comp., all sources of job candidates without
p.263; Reorg. Plan No. 1 of 1978, 3 CFR, 1978
regard to race, color, religion, sex, na-
Comp., p.321.
tional, origin, age or handicap, and so-
SOURCE: 57 FR 12646, Apr. 10, 1992, unless licit their recruitment assistance on a
otherwise noted.
continuing basis;
(5) Review, evaluate and control
Subpart A—Agency Program To managerial and supervisory perform-
Promote Equal Employment ance in such a manner as to insure a
Opportunity continuing affirmative application and
vigorous enforcement of the policy of
§ 1614.101 General policy.
equal opportunity, and provide orienta-
(a) It is the policy of the Government tion, training and advice to managers
of the United States to provide equal and supervisors to assure their under-
opportunity in employment for all per- standing and implementation of the
sons, to prohibit discrimination in em- equal employment opportunity policy
ployment because of race, color, reli-
and program;
gion, sex, national origin, age or handi-
(6) Take appropriate disciplinary ac-
cap and to promote the full realization
of equal employment opportunity tion against employees who engage in
through a continuing affirmative pro- discriminatory practices;
gram in each agency. (7) Make reasonable accommodation
(b) No person shall be subject to re- to the religious needs of applicants and
taliation for opposing any practice employees when those accommodations
made unlawful by title VII of the Civil can be made without undue hardship
Rights Act (title VII) (42 U.S.C. 2000e et on the business of the agency;
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Equal Employment Opportunity Comm. § 1614.102
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§ 1614.103 29 CFR Ch. XIV (7–1–00 Edition)
for equal employment opportunity and tions in the competitive service, except
reporting to the head of the agency for complaints under the Rehabilita-
with recommendations as to any im- tion Act;
provement or correction needed, in- (5) The National Oceanic and Atmos-
cluding remedial or disciplinary action pheric Administration Commissioned
with respect to managerial, super- Corps;
visory or other employees who have (6) The Government Printing Office;
failed in their responsibilities;
and
(3) When authorized by the head of
the agency, making changes in pro- (7) The Smithsonian Institution.
grams and procedures designed to (c) Within the covered departments,
eliminate discriminatory practices and agencies and units, this part applies to
to improve the agency’s program for all employees and applicants for em-
equal employment opportunity; ployment, and to all employment poli-
(4) Providing for counseling of ag- cies or practices affecting employees or
grieved individuals and for the receipt applicants for employment including
and processing of individual and class employees and applicants who are paid
complaints of discrimination; and from nonappropriated funds, unless
(5) Assuring that individual com- otherwise excluded.
plaints are fairly and thoroughly inves- (d) This part does not apply to:
tigated and that final action is taken (1) Uniformed members of the mili-
in a timely manner in accordance with tary departments referred to in para-
this part. graph (b)(1) of this section:
(d) Directives, instructions, forms
(2) Employees of the General Ac-
and other Commission materials ref-
counting Office;
erenced in this part may be obtained in
accordance with the provisions of 29 (3) Employees of the Library of Con-
CFR 1610.7 of this chapter. gress;
(4) Aliens employed in positions, or
[57 FR 12646, Apr. 10, 1992, as amended at 64 who apply for positions, located out-
FR 37655, July 12, 1999]
side the limits of the United States; or
§ 1614.103 Complaints of discrimina- (5) Equal Pay Act complaints of em-
tion covered by this part. ployees whose services are performed
(a) Individual and class complaints of within a foreign country or certain
employment discrimination and retal- United States territories as provided in
iation prohibited by title VII (discrimi- 29 U.S.C. 213(f).
nation on the basis of race, color, reli- [57 FR 12646, Apr. 10, 1992, as amended at 64
gion, sex and national origin), the FR 37655, July 12, 1999]
ADEA (discrimination on the basis of
age when the aggrieved individual is at § 1614.104 Agency processing.
least 40 years of age), the Rehabilita-
(a) Each agency subject to this part
tion Act (discrimination on the basis of
handicap) or the Equal Pay Act (sex- shall adopt procedures for processing
based wage discrimination) shall be individual and class complaints of dis-
processed in accordance with this part. crimination that include the provisions
Complaints alleging retaliation prohib- contained in §§ 1614.105 through 1614.110
ited by these statutes are considered to and in § 1614.204, and that are con-
be complaints of discrimination for sistent with all other applicable provi-
purposes of this part. sions of this part and the instructions
(b) This part applies to: for complaint processing contained in
(1) Military departments as defined the Commission’s Management Direc-
in 5 U.S.C. 102; tives.
(2) Executive agencies as defined in 5 (b) The Commission shall periodi-
U.S.C. 105; cally review agency resources and pro-
(3) The United States Postal Service, cedures to ensure that an agency
Postal Rate Commission and Tennessee makes reasonable efforts to resolve
Valley Authority; complaints informally, to process com-
(4) All units of the judicial branch of plaints in a timely manner, to develop
the Federal government having posi-
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Equal Employment Opportunity Comm. § 1614.105
adequate factual records, to issue deci- the agency and Commission informed
sions that are consistent with accept- of their current address and to serve
able legal standards, to explain the rea- copies of appeal papers on the agency.
sons for its decisions, and to give com- The notice required by paragraphs (d)
plainants adequate and timely notice or (e) of this section shall include a no-
of their rights. tice of the right to file a class com-
plaint. If the aggrieved person informs
§ 1614.105 Pre-complaint processing. the Counselor that he or she wishes to
(a) Aggrieved persons who believe file a class complaint, the Counselor
they have been discriminated against shall explain the class complaint pro-
on the basis of race, color, religion, cedures and the responsibilities of a
sex, national origin, age or handicap class agent.
must consult a Counselor prior to fil- (2) Counselors shall advise aggrieved
ing a complaint in order to try to in- persons that, where the agency agrees
formally resolve the matter. to offer ADR in the particular case,
(1) An aggrieved person must initiate they may choose between participation
contact with a Counselor within 45 in the alternative dispute resolution
days of the date of the matter alleged program and the counseling activities
to be discriminatory or, in the case of provided for in paragraph (c) of this
personnel action, within 45 days of the section.
effective date of the action.
(c) Counselors shall conduct coun-
(2) The agency or the Commission
seling activities in accordance with in-
shall extend the 45-day time limit in
structions contained in Commission
paragraph (a)(1) of this section when
Management Directives. When advised
the individual shows that he or she was
that a complaint has been filed by an
not notified of the time limits and was
aggrieved person, the Counselor shall
not otherwise aware of them, that he
submit a written report within 15 days
or she did not know and reasonably
should not have been known that the to the agency office that has been des-
discriminatory matter or personnel ac- ignated to accept complaints and the
tion occurred, that despite due dili- aggrieved person concerning the issues
gence he or she was prevented by cir- discussed and actions taken during
cumstances beyond his or her control counseling.
from contacting the counselor within (d) Unless the aggrieved person
the time limits, or for other reasons agrees to a longer counseling period
considered sufficient by the agency or under paragraph (e) of this section, or
the Commission. the aggrieved person chooses an alter-
(b)(1) At the initial counseling ses- native dispute resolution procedure in
sion, Counselors must advise individ- accordance with paragraph (b)(2) of
uals in writing of their rights and re- this section, the Counselor shall con-
sponsibilities, including the right to re- duct the final interview with the ag-
quest a hearing or an immediate final grieved person within 30 days of the
decision after an investigation by the date the aggrieved person contacted
agency in accordance with § 1614.108(f), the agency’s EEO office to request
election rights pursuant to §§ 1614.301 counseling. If the matter has not been
and 1614.302, the right to file a notice of resolved, the aggrieved person shall be
intent to sue pursuant to § 1614.201(a) informed in writing by the Counselor,
and a lawsuit under the ADEA instead not later than the thirtieth day after
of an administrative complaint of age contacting the Counselor, of the right
discrimination under this part, the to file a discrimination complaint. The
duty to mitigate damages, administra- notice shall inform the complainant of
tive and court time frames, and that the right to file a discrimination com-
only the claims raised in precomplaint plaint within 15 days of receipt of the
counseling (or issues or claims like or notice, of the appropriate official with
related to issues or claims raised in whom to file a complaint and of the
pre-complaint counseling) may be al- complainant’s duty to assure that the
leged in a subsequent complaint filed agency is informed immediately if the
with the agency. Counselors must ad- complainant retains counsel or a rep-
vise individuals of their duty to keep resentative.
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§ 1614.106 29 CFR Ch. XIV (7–1–00 Edition)
(e) Prior to the end of the 30-day pe- to amend a complaint to include issues
riod, the aggrieved person may agree in or claims like or related to those raised
writing with the agency to postpone in the complaint.
the final interview and extend the (e) The agency shall acknowledge re-
counseling period for an additional pe- ceipt of a complaint or an amendment
riod of no more than 60 days. If the to a complaint in writing and inform
matter has not been resolved before the the complainant of the date on which
conclusion of the agreed extension, the the complaint or amendment was filed.
notice described in paragraph (d) of The agency shall advise the complain-
this section shall be issued. ant in the acknowledgment of the
(f) Where the aggrieved person choos- EEOC office and its address where a re-
es to participate in an alternative dis- quest for a hearing shall be sent. Such
pute resolution procedure in accord- acknowledgment shall also advise the
ance with paragraph (b)(2) of this sec- complainant that:
tion, the pre-complaint processing pe- (1) The complainant has the right to
riod shall be 90 days. If the claim has appeal the final action on or dismissal
not been resolved before the 90th day, of a complaint; and
the notice described in paragraph (d) of (2) The agency is required to conduct
this section shall be issued. an impartial and appropriate investiga-
(g) The Counselor shall not attempt tion of the complaint within 180 days of
in any way to restrain the aggrieved the filing of the complaint unless the
person from filing a complaint. The parties agree in writing to extend the
Counselor shall not reveal the identity time period. When a complaint has
of an aggrieved person who consulted been amended, the agency shall com-
the Counselor, except when authorized plete its investigation within the ear-
to do so by the aggrieved person, or lier of 180 days after the last amend-
until the agency has received a dis- ment to the complaint or 360 days after
crimination complaint under this part the filing of the original complaint, ex-
from that person involving that same cept that the complainant may request
matter. a hearing from an administrative judge
[57 FR 12646, Apr. 10, 1992, as amended at 64
on the consolidated complaints any
FR 37656, July 12, 1999] time after 180 days from the date of the
first filed complaint.
§ 1614.106 Individual complaints. [57 FR 12646, Apr. 10, 1992, as amended at 64
(a) A complaint must be filed with FR 37656, July 12, 1999]
the agency that allegedly discrimi-
nated against the complainant. § 1614.107 Dismissals of complaints.
(b) A complaint must be filed within (a) Prior to a request for a hearing in
15 days of receipt of the notice required a case, the agency shall dismiss an en-
by § 1614.105 (d), (e) or (f). tire complaint:
(c) A complaint must contain a (1) That fails to state a claim under
signed statement from the person § 1614.103 or § 1614.106(a) or states the
claiming to be aggrieved or that per- same claim that is pending before or
son’s attorney. This statement must be has been decided by the agency or Com-
sufficiently precise to identify the ag- mission;
grieved individual and the agency and (2) That fails to comply with the ap-
to describe generally the action(s) or plicable time limits contained in
practice(s) that form the basis of the §§ 1614.105, 1614.106 and 1614.204(c), un-
complaint. The complaint must also less the agency extends the time limits
contain a telephone number and ad- in accordance with § 1614.604(c), or that
dress where the complainant or the raises a matter that has not been
representative can be contacted. brought to the attention of a Counselor
(d) A complainant may amend a com- and is not like or related to a matter
plaint at any time prior to the conclu- that has been brought to the attention
sion of the investigation to include of a Counselor;
issues or claims like or related to those (3) That is the basis of a pending civil
raised in the complaint. After request- action in a United States District
ing a hearing, a complainant may file a Court in which the complainant is a
motion with the administrative judge party provided that at least 180 days
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Equal Employment Opportunity Comm. § 1614.108
have passed since the filing of the ad- trative processes or overburdening the
ministrative complaint, or that was EEO complaint system.
the basis of a civil action decided by a (b) Where the agency believes that
United States District Court in which some but not all of the claims in a
the complainant was a party; complaint should be dismissed for the
(4) Where the complainant has raised reasons contained in paragraphs (a)(1)
the matter in a negotiated grievance through (9) of this section, the agency
procedure that permits allegations of shall notify the complainant in writing
discrimination or in an appeal to the of its determination, the rationale for
Merit Systems Protection Board and that determination and that those
§ 1614.301 or § 1614.302 indicates that the claims will not be investigated, and
complainant has elected to pursue the shall place a copy of the notice in the
non-EEO process; investigative file. A determination
(5) That is moot or alleges that a pro- under this paragraph is reviewable by
posal to take a personnel action, or an administrative judge if a hearing is
other preliminary step to taking a per- requested on the remainder of the com-
sonnel action, is discriminatory; plaint, but is not appealable until final
(6) Where the complainant cannot be action is taken on the remainder of the
located, provided that reasonable ef- complaint.
forts have been made to locate the
complainant and the complainant has [57 FR 12646, Apr. 10, 1992, as amended at 64
not responded within 15 days to a no- FR 37656, July 12, 1999]
tice of proposed dismissal sent to his or
her last known address; § 1614.108 Investigation of complaints.
(7) Where the agency has provided (a) The investigation of complaints
the complainant with a written request shall be conducted by the agency
to provide relevant information or oth- against which the complaint has been
erwise proceed with the complaint, and filed.
the complainant has failed to respond (b) In accordance with instructions
to the request within 15 days of its re- contained in Commission Management
ceipt or the complainant’s response Directives, the agency shall develop an
does not address the agency’s request, impartial and appropriate factual
provided that the request included a
record upon which to make findings on
notice of the proposed dismissal. In-
the claims raised by the written com-
stead of dismissing for failure to co-
plaint. An appropriate factual record is
operate, the complaint may be adju-
dicated if sufficient information for one that allows a reasonable fact finder
that purpose is available; to draw conclusions as to whether dis-
(8) That alleges dissatisfaction with crimination occurred. Agencies may
the processing of a previously filed use an exchange of letters or memo-
complaint; or randa, interrogatories, investigations,
(9) Where the agency, strictly apply- fact-finding conferences or any other
ing the criteria set forth in Commis- fact-finding methods that efficiently
sion decisions, finds that the complaint and thoroughly address the matters at
is part of a clear pattern of misuse of issue. Agencies are encouraged to in-
the EEO process for a purpose other corporate alternative dispute resolu-
than the prevention and elimination of tion techniques into their investigative
employment discrimination. A clear efforts in order to promote early reso-
pattern of misuse of the EEO process lution of complaints.
requires: (c) The procedures in paragraphs (c)
(i) Evidence of multiple complaint (1) through (3) of this section apply to
filings; and the investigation of complaints:
(ii) Allegations that are similar or (1) The complainant, the agency, and
identical, lack specificity or involve any employee of a Federal agency shall
matters previously resolved; or produce such documentary and testi-
(iii) Evidence of circumventing other monial evidence as the investigator
administrative processes, retaliating deems necessary.
against the agency’s in-house adminis-
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§ 1614.109 29 CFR Ch. XIV (7–1–00 Edition)
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Equal Employment Opportunity Comm. § 1614.109
§ 1614.107, on their own initiative, after methods and scope of discovery, the
notice to the parties, or upon an agen- party seeking discovery shall request
cy’s motion to dismiss a complaint. authorization from the administrative
(c) Offer of resolution. (1) Any time judge prior to commencing discovery.
after the filing of the written com- Both parties are entitled to reasonable
plaint but not later than the date an development of evidence on matters
administrative judge is appointed to relevant to the issues raised in the
conduct a hearing, the agency may complaint, but the administrative
make an offer of resolution to a com- judge may limit the quantity and tim-
plainant who is represented by an at- ing of discovery. Evidence may be de-
torney. veloped through interrogatories, depo-
(2) Any time after the parties have sitions, and requests for admissions,
received notice that an administrative stipulations or production of docu-
judge has been appointed to conduct a ments. It shall be grounds for objection
hearing, but not later than 30 days to producing evidence that the infor-
prior to the hearing, the agency may mation sought by either party is irrele-
make an offer of resolution to the com- vant, overburdensome, repetitious, or
plainant, whether represented by an at- privileged.
torney or not.
(e) Conduct of hearing. Agencies shall
(3) The offer of resolution shall be in
provide for the attendance at a hearing
writing and shall include a notice ex-
of all employees approved as witnesses
plaining the possible consequences of
by an administrative judge. Attend-
failing to accept the offer. The agen-
ance at hearings will be limited to per-
cy’s offer, to be effective, must include
sons determined by the administrative
attorney’s fees and costs and must
judge to have direct knowledge relat-
specify any non-monetary relief. With
regard to monetary relief, an agency ing to the complaint. Hearings are part
may make a lump sum offer covering of the investigative process and are
all forms of monetary liability, or it thus closed to the public. The adminis-
may itemize the amounts and types of trative judge shall have the power to
monetary relief being offered. The regulate the conduct of a hearing, limit
complainant shall have 30 days from the number of witnesses where testi-
receipt of the offer of resolution to ac- mony would be repetitious, and exclude
cept it. If the complainant fails to ac- any person from the hearing for con-
cept an offer of resolution and the re- tumacious conduct or misbehavior that
lief awarded in the administrative obstructs the hearing. The administra-
judge’s decision, the agency’s final de- tive judge shall receive into evidence
cision, or the Commission decision on information or documents relevant to
appeal is not more favorable than the the complaint. Rules of evidence shall
offer, then, except where the interest of not be applied strictly, but the admin-
justice would not be served, the com- istrative judge shall exclude irrelevant
plainant shall not receive payment or repetitious evidence. The adminis-
from the agency of attorney’s fees or trative judge or the Commission may
costs incurred after the expiration of refer to the Disciplinary Committee of
the 30-day acceptance period. An ac- the appropriate Bar Association any
ceptance of an offer must be in writing attorney or, upon reasonable notice
and will be timely if postmarked or re- and an opportunity to be heard, sus-
ceived within the 30-day period. Where pend or disqualify from representing
a complainant fails to accept an offer complainants or agencies in EEOC
of resolution, an agency may make hearings any representative who re-
other offers of resolution and either fuses to follow the orders of an admin-
party may seek to negotiate a settle- istrative judge, or who otherwise en-
ment of the complaint at any time. gages in improper conduct.
(d) Discovery. The administrative (f) Procedures. (1) The complainant,
judge shall notify the parties of the an agency, and any employee of a Fed-
right to seek discovery prior to the eral agency shall produce such docu-
hearing and may issue such discovery mentary and testimonial evidence as
orders as are appropriate. Unless the the administrative judge deems nec-
parties agree in writing concerning the essary. The administrative judge shall
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§ 1614.109 29 CFR Ch. XIV (7–1–00 Edition)
serve all orders to produce evidence on or may file an affidavit stating that
both parties. the party cannot, for reasons stated,
(2) Administrative judges are author- present facts to oppose the request.
ized to administer oaths. Statements of After considering the submissions, the
witnesses shall be made under oath or administrative judge may order that
affirmation or, alternatively, by writ- discovery be permitted on the fact or
ten statement under penalty of per- facts involved, limit the hearing to the
jury. issues remaining in dispute, issue a de-
(3) When the complainant, or the cision without a hearing or make such
agency against which a complaint is other ruling as is appropriate.
filed, or its employees fail without (3) If the administrative judge deter-
good cause shown to respond fully and mines upon his or her own initiative
in timely fashion to an order of an ad-
that some or all facts are not in gen-
ministrative judge, or requests for the
uine dispute, he or she may, after giv-
investigative file, for documents,
ing notice to the parties and providing
records, comparative data, statistics,
them an opportunity to respond in
affidavits, or the attendance of wit-
ness(es), the administrative judge writing within 15 calendar days, issue
shall, in appropriate circumstances: an order limiting the scope of the hear-
(i) Draw an adverse inference that ing or issue a decision without holding
the requested information, or the testi- a hearing.
mony of the requested witness, would (h) Record of hearing. The hearing
have reflected unfavorably on the shall be recorded and the agency shall
party refusing to provide the requested arrange and pay for verbatim tran-
information; scripts. All documents submitted to,
(ii) Consider the matters to which and accepted by, the administrative
the requested information or testi- judge at the hearing shall be made part
mony pertains to be established in of the record of the hearing. If the
favor of the opposing party; agency submits a document that is ac-
(iii) Exclude other evidence offered cepted, it shall furnish a copy of the
by the party failing to produce the re- document to the complainant. If the
quested information or witness; complainant submits a document that
(iv) Issue a decision fully or partially is accepted, the administrative judge
in favor of the opposing party; or shall make the document available to
(v) Take such other actions as appro- the agency representative for reproduc-
priate. tion.
(g) Decisions without hearing. (1) If a (i) Decisions by administrative judges.
party believes that some or all mate- Unless the administrative judge makes
rial facts are not in genuine dispute a written determination that good
and there is no genuine issue as to cause exists for extending the time for
credibility, the party may, at least 15 issuing a decision, an administrative
days prior to the date of the hearing or judge shall issue a decision on the com-
at such earlier time as required by the plaint, and shall order appropriate
administrative judge, file a statement remedies and relief where discrimina-
with the administrative judge prior to tion is found, within 180 days of receipt
the hearing setting forth the fact or by the administrative judge of the
facts and referring to the parts of the complaint file from the agency. The
record relied on to support the state- administrative judge shall send copies
ment. The statement must dem- of the hearing record, including the
onstrate that there is no genuine issue transcript, and the decision to the par-
as to any such material fact. The party ties. If an agency does not issue a final
shall serve the statement on the oppos-
order within 40 days of receipt of the
ing party.
administrative judge’s decision in ac-
(2) The opposing party may file an
cordance with 1614.110, then the deci-
opposition within 15 days of receipt of
sion of the administrative judge shall
the statement in paragraph (d)(1) of
become the final action of the agency.
this section. The opposition may refer
to the record in the case to rebut the [57 FR 12646, Apr. 10, 1992, as amended at 64
statement that a fact is not in dispute FR 37657, July 12, 1999]
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Equal Employment Opportunity Comm. § 1614.201
§ 1614.110 Final action by agencies. applicable time limits for appeals and
(a) Final action by an agency following lawsuits. A copy of EEOC Form 573
a decision by an administrative judge. shall be attached to the final action.
When an administrative judge has [64 FR 37657, July 12, 1999]
issued a decision under § 1614.109(b), (g)
or (i), the agency shall take final ac-
tion on the complaint by issuing a final Subpart B—Provisions Applicable
order within 40 days of receipt of the to Particular Complaints
hearing file and the administrative
judge’s decision. The final order shall § 1614.201 Age Discrimination in Em-
notify the complainant whether or not ployment Act.
the agency will fully implement the de- (a) As an alternative to filing a com-
cision of the administrative judge and plaint under this part, an aggrieved in-
shall contain notice of the complain- dividual may file a civil action in a
ant’s right to appeal to the Equal Em- United States district court under the
ployment Opportunity Commission, ADEA against the head of an alleged
the right to file a civil action in federal discriminating agency after giving the
district court, the name of the proper Commission not less than 30 days’ no-
defendant in any such lawsuit and the tice of the intent to file such an action.
applicable time limits for appeals and Such notice must be filed in writing
lawsuits. If the final order does not
with EEOC, at P.O. Box 19848, Wash-
fully implement the decision of the ad-
ministrative judge, then the agency ington, DC 20036, or by personal deliv-
shall simultaneously file an appeal in ery or facsimile within 180 days of the
accordance with § 1614.403 and append a occurrence of the alleged unlawful
copy of the appeal to the final order. A practice.
copy of EEOC Form 573 shall be at- (b) The Commission may exempt a
tached to the final order. position from the provisions of the
(b) Final action by an agency in all ADEA if the Commission establishes a
other circumstances. When an agency maximum age requirement for the po-
dismisses an entire complaint under sition on the basis of a determination
§ 1614.107, receives a request for an im- that age is a bona fide occupational
mediate final decision or does not re- qualification necessary to the perform-
ceive a reply to the notice issued under ance of the duties of the position.
§ 1614.108(f), the agency shall take final (c) When an individual has filed an
action by issuing a final decision. The administrative complaint alleging age
final decision shall consist of findings
discrimination that is not a mixed
by the agency on the merits of each
case, administrative remedies will be
issue in the complaint, or, as appro-
priate, the rationale for dismissing any considered to be exhausted for purposes
claims in the complaint and, when dis- of filing a civil action:
crimination is found, appropriate rem- (1) 180 days after the filing of an indi-
edies and relief in accordance with sub- vidual complaint if the agency has not
part E of this part. The agency shall taken final action and the individual
issue the final decision within 60 days has not filed an appeal or 180 days after
of receiving notification that a com- the filing of a class complaint if the
plainant has requested an immediate agency has not issued a final decision;
decision from the agency, or within 60 (2) After final action on an individual
days of the end of the 30-day period for or class complaint if the individual has
the complainant to request a hearing not filed an appeal; or
or an immediate final decision where (3) After the issuance of a final deci-
the complainant has not requested ei- sion by the Commission on an appeal
ther a hearing or a decision. The final or 180 days after the filing of an appeal
action shall contain notice of the right if the Commission has not issued a
to appeal the final action to the Equal final decision.
Employment Opportunity Commission,
the right to file a civil action in federal [57 FR 12646, Apr. 10, 1992, as amended at 64
district court, the name of the proper FR 37658, July 12, 1999]
defendant in any such lawsuit and the
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§ 1614.202 29 CFR Ch. XIV (7–1–00 Edition)
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Equal Employment Opportunity Comm. § 1614.203
hardship on the operation of the agen- ble, with or without reasonable accom-
cy in question, factors to be considered modation, of the position in question,
include: i.e., the minimum abilities necessary
(i) The overall size of the agency’s for safe and efficient performance of
program with respect to the number of the duties of the position in question.
employees, number and type of facili- The Office of Personnel Management
ties and size of budget; may also make an inquiry as to the na-
(ii) The type of agency operation, in- ture and extent of a handicap for the
cluding the composition and structure purpose of special testing.
of the agency’s work force; and (2) Nothing in this section shall pro-
(iii) The nature and the cost of the hibit an agency from conditioning an
accommodation. offer of employment on the results of a
(d) Employment criteria. (1) An agency medical examination conducted prior
may not make use of any employment to the employee’s entrance on duty,
test or other selection criterion that provided that: all entering employees
screens out or tends to screen out are subjected to such an examination
qualified individuals with handicaps or regardless of handicap or when the pre-
any class of individuals with handicaps employment medical questionnaire
unless: used for positions that do not routinely
(i) The agency demonstrates that the require medical examination indicates
test score or other selection criterion a condition for which further examina-
is job-related for the position in ques- tion is required because of the job-re-
tion and consistent with business ne- lated nature of the condition, and the
cessity; and results of such an examination are used
(ii) OPM or other examining author- only in accordance with the require-
ity shows that job-related alternative ments of this part. Nothing in this sec-
tests, or the agency shows that job-re- tion shall be construed to prohibit the
lated alternative criteria, that do not gathering of preemployment medical
screen out or tend to screen out as information for the purposes of special
many individuals with handicaps are appointing authorities for individuals
unavailable. with handicaps.
(2) An agency shall select and admin- (3) To enable and evaluate affirma-
ister tests concerning employment so tive action to hire, place or advance in-
as to insure that, when administered to dividuals with handicaps, the agency
an applicant or employee who has a may invite applicants for employment
handicap that impairs sensory, man- to indicate whether and to what extent
ual, or speaking skills, the test results they are handicapped, if:
accurately reflect the applicant’s or (i) The agency states clearly on any
employee’s ability to perform the posi- written questionnaire used for this pur-
tion or type of positions in question pose or makes clear orally if no written
rather than reflecting the applicant’s questionnaire is used, that the infor-
or employee’s impaired sensory, man- mation requested is intended for use
ual, or speaking skill (except where solely in conjunction with affirmative
those skills are the factors that the action; and
test purports to measure). (ii) The agency states clearly that
(e) Preemployment inquiries. (1) Except the information is being requested on a
as provided in paragraphs (e)(2) and voluntary basis, that refusal to provide
(e)(3) of this section, an agency may it will not subject the applicant or em-
not conduct a preemployment medical ployee to any adverse treatment, and
examination and may not make pre- that it will be used only in accordance
employment inquiry of an applicant as with this part.
to whether the applicant is an indi- (4) Information obtained in accord-
vidual with handicaps or as to the na- ance with this section as to the med-
ture or severity of a handicap. An ical condition or history of the appli-
agency may, however, make pre- cant shall be kept confidential except
employment inquiry into an appli- that:
cant’s ability to meet the essential (i) Managers, selecting officials, and
functions of the job, or the medical others involved in the selection process
qualification requirements if applica- or responsible for affirmative action
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§ 1614.203 29 CFR Ch. XIV (7–1–00 Edition)
may be informed that an applicant is 8337 or 5 U.S.C. 8451. If the agency has
eligible under special appointing au- already posted a notice or announce-
thority for the disabled; ment seeking applications for a spe-
(ii) Supervisors and managers may be cific vacant position at the time the
informed regarding necessary accom- agency has determined that the non-
modations; probationary employee is unable to
(iii) First aid and safety personnel perform the essential functions of his
may be informed, where appropriate, if or her position even with reasonable
the condition might require emergency accommodation, then the agency does
treatment; not have an obligation under this sec-
(iv) Government officials inves- tion to offer to reassign the individual
tigating compliance with laws, regula- to that position, but the agency must
tions, and instructions relevant to consider the individual on an equal
equal employment opportunity and af- basis with those who applied for the po-
firmative action for individuals with sition. For the purpose of this para-
handicaps shall be provided informa- graph, an employee of the United
tion upon request; and States Postal Service shall not be con-
(v) Statistics generated from infor- sidered qualified for any offer of reas-
mation obtained may be used to man- signment that would be inconsistent
age, evaluate, and report on equal em- with the terms of any applicable col-
ployment opportunity and affirmative lective bargaining agreement.
action programs. (h) Exclusion from definition of ‘‘indi-
(f) Physical access to buildings. (1) An vidual(s) with handicap(s)’’. (1) The term
agency shall not discriminate against ‘‘individual with handicap(s)’’ shall not
applicants or employees who are quali- include an individual who is currently
fied individuals with handicaps due to engaging in the illegal use of drugs,
the inaccessibility of its facility. when an agency acts on the basis of
(2) For the purpose of this subpart, a such use. The term ‘‘drug’’ means a
facility shall be deemed accessible if it controlled substance, as defined in
is in compliance with the Architectural schedules I through V of section 202 of
Barriers Act of 1968 (42 U.S.C. 4151 et the Controlled Substances Act (21
seq.) and the Americans with Disabil- U.S.C. 812). The term ‘‘illegal use of
ities Act of 1990 (42 U.S.C. 12183 and drugs’’ means the use of drugs, the pos-
12204). session or distribution of which is un-
(g) Reassignment. When a nonproba- lawful under the Controlled Substances
tionary employee becomes unable to Act, but does not include the use of a
perform the essential functions of his drug taken under supervision by a li-
or her position even with reasonable censed health care professional, or
accommodation due to a handicap, an other uses authorized by the Controlled
agency shall offer to reassign the indi- Substances Act or other provisions of
vidual to a funded vacant position lo- Federal law. This exclusion, however,
cated in the same commuting area and does not exclude an individual with
serviced by the same appointing au- handicaps who:
thority, and at the same grade or level, (i) Has successfully completed a su-
the essential functions of which the in- pervised drug rehabilitation program
dividual would be able to perform with and is no longer engaging in the illegal
reasonable accommodation if necessary use of drugs, or has otherwise been re-
unless the agency can demonstrate habilitated successfully and is no
that the reassignment would impose an longer engaging in such use;
undue hardship on the operation of its (ii) Is participating in a supervised
program. In the absence of a position rehabilitation program and is no longer
at the same grade or level, an offer of engaging in such use; or
reassignment to a vacant position at (iii) Is erroneously regarded as engag-
the highest available grade or level ing in such use, but is not engaging in
below the employee’s current grade or such use.
level shall be required, but availability (2) Except that it shall not violate
of such a vacancy shall not affect the this section for an agency to adopt or
employee’s entitlement, if any, to dis- administer reasonable policies or pro-
ability retirement pursuant to 5 U.S.C. cedures, including but not limited to
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Equal Employment Opportunity Comm. § 1614.204
drug testing, designed to ensure that (2) The complaint must be filed with
an individual described in paragraph the agency that allegedly discrimi-
(h)(1) (i) and (ii) of this section is no nated not later than 15 days after the
longer engaging in the illegal use of agent’s receipt of the notice of right to
drugs. file a class complaint.
(3) The complaint shall be processed
§ 1614.204 Class complaints.
promptly; the parties shall cooperate
(a) Definitions. (1) A class is a group of and shall proceed at all times without
employees, former employees or appli- undue delay.
cants for employment who, it is al- (d) Acceptance or dismissal. (1) Within
leged, have been or are being adversely 30 days of an agency’s receipt of a com-
affected by an agency personnel man- plaint, the agency shall: Designate an
agement policy or practice that dis- agency representative who shall not be
criminates against the group on the
any of the individuals referenced in
basis of their race, color, religion, sex,
§ 1614.102(b)(3), and forward the com-
national origin, age or handicap.
plaint, along with a copy of the Coun-
(2) A class complaint is a written com-
plaint of discrimination filed on behalf selor’s report and any other informa-
of a class by the agent of the class al- tion pertaining to timeliness or other
leging that: relevant circumstances related to the
(i) The class is so numerous that a complaint, to the Commission. The
consolidated complaint of the members Commission shall assign the complaint
of the class is impractical; to an administrative judge or com-
(ii) There are questions of fact com- plaints examiner with a proper secu-
mon to the class; rity clearance when necessary. The ad-
(iii) The claims of the agent of the ministrative judge may require the
class are typical of the claims of the complainant or agency to submit addi-
class; tional information relevant to the
(iv) The agent of the class, or, if rep- complaint.
resented, the representative, will fairly (2) The administrative judge may dis-
and adequately protect the interests of miss the complaint, or any portion, for
the class. any of the reasons listed in § 1614.107 or
(3) An agent of the class is a class because it does not meet the pre-
member who acts for the class during requisites of a class complaint under
the processing of the class complaint. § 1614.204(a)(2).
(b) Pre-complaint processing. An em- (3) If the allegation is not included in
ployee or applicant who wishes to file a the Counselor’s report, the administra-
class complaint must seek counseling tive judge shall afford the agent 15
and be counseled in accordance with
days to state whether the matter was
§ 1614.105. A complainant may move for
discussed with the Counselor and, if
class certification at any reasonable
not, explain why it was not discussed.
point in the process when it becomes
If the explanation is not satisfactory,
apparent that there are class implica-
tions to the claim raised in an indi- the administrative judge shall dismiss
vidual complaint. If a complainant the allegation. If the explanation is
moves for class certification after com- satisfactory, the administrative judge
pleting the counseling process con- shall refer the allegation to the agency
tained in § 1614.105, no additional coun- for further counseling of the agent.
seling is required. The administrative After counseling, the allegation shall
judge shall deny class certification be consolidated with the class com-
when the complainant has unduly de- plaint.
layed in moving for certification. (4) If an allegation lacks specificity
(c) Filing and presentation of a class and detail, the administrative judge
complaint. (1) A class complaint must shall afford the agent 15 days to pro-
be signed by the agent or representa- vide specific and detailed information.
tive and must identify the policy or The administrative judge shall dismiss
practice adversely affecting the class the complaint if the agent fails to pro-
as well as the specific action or matter vide such information within the speci-
affecting the class agent. fied time period. If the information
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§ 1614.204 29 CFR Ch. XIV (7–1–00 Edition)
provided contains new allegations out- (2) Such notice shall contain:
side the scope of the complaint, the ad- (i) The name of the agency or organi-
ministrative judge shall advise the zational segment, its location, and the
agent how to proceed on an individual date of acceptance of the complaint;
or class basis concerning these allega- (ii) A description of the issues ac-
tions. cepted as part of the class complaint;
(5) The administrative judge shall ex- (iii) An explanation of the binding
tend the time limits for filing a com- nature of the final decision or resolu-
plaint and for consulting with a Coun- tion of the complaint on class mem-
selor in accordance with the time limit
bers; and
extension provisions contained in
(iv) The name, address and telephone
§§ 1614.105(a)(2) and 1614.604.
(6) When appropriate, the administra- number of the class representative.
tive judge may decide that a class be (f) Obtaining evidence concerning the
divided into subclasses and that each complaint. (1) The administrative judge
subclass be treated as a class, and the notify the agent and the agency rep-
provisions of this section then shall be resentative of the time period that will
construed and applied accordingly. be allowed both parties to prepare their
(7) The administrative judge shall cases. This time period will include at
transmit his or her decision to accept least 60 days and may be extended by
or dismiss a complaint to the agency the administrative judge upon the re-
and the agent. The agency shall take quest of either party. Both parties are
final action by issuing a final order entitled to reasonable development of
within 40 days of receipt of the hearing evidence on matters relevant to the
record and administrative judge’s deci- issues raised in the complaint. Evi-
sion. The final order shall notify the dence may be developed through inter-
agent whether or not the agency will rogatories, depositions, and requests
implement the decision of the adminis- for admissions, stipulations or produc-
trative judge. If the final order does tion of documents. It shall be grounds
not implement the decision of the ad- for objection to producing evidence
ministrative judge, the agency shall si- that the information sought by either
multaneously appeal the administra- party is irrelevant, overburdensome,
tive judge’s decision in accordance repetitious, or privileged.
with § 1614.403 and append a copy of the (2) If mutual cooperation fails, either
appeal to the final order. A dismissal of party may request the administrative
a class complaint shall inform the judge to rule on a request to develop
agent either that the complaint is evidence. If a party fails without good
being filed on that date as an indi- cause shown to respond fully and in
vidual complaint of discrimination and timely fashion to a request made or ap-
will be processed under subpart A or proved by the administrative judge for
that the complaint is also dismissed as documents, records, comparative data,
an individual complaint in accordance statistics or affidavits, and the infor-
with § 1614.107. In addition, it shall in-
mation is solely in the control of one
form the agent of the right to appeal
party, such failure may, in appropriate
the dismissal of the class complaint to
circumstances, caused the administra-
the Equal Employment Opportunity
tive judge:
Commission or to file a civil action and
shall include EEOC Form 573, Notice of (i) To draw an adverse inference that
Appeal/Petition. the requested information would have
(e) Notification. (1) Within 15 days of reflected unfavorably on the party re-
receiving notice that the administra- fusing to provide the requested infor-
tive judge has accepted a class com- mation;
plaint or a reasonable time frame spec- (ii) To consider the matters to which
ified by the administrative judge, the the requested information pertains to
agency shall use reasonable means, be established in favor of the opposing
such as delivery, mailing to last known party;
address or distribution, to notify all (iii) To exclude other evidence of-
class members of the acceptance of the fered by the party failing to produce
class complaint. the requested information;
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Equal Employment Opportunity Comm. § 1614.204
(iv) To recommend that a decision be vacating the agreement and may re-
entered in favor of the opposing party; place the original class agent with a
or petitioner or some other class member
(v) To take such other actions as the who is eligible to be the class agent
administrative judge deems appro- during further processing of the class
priate. complaint. The decision shall inform
(3) During the period for development the former class agent or the petitioner
of evidence, the administrative judge of the right to appeal the decision to
may, in his or her discretion, direct the Equal Employment Opportunity
that an investigation of facts relevant Commission and include EEOC Form
to the complaint or any portion be con- 573, Notice of Appeal/Petition. If the
ducted by an agency certified by the administrative judge finds that the res-
Commission. olution is fair, adequate and reasonable
(4) Both parties shall furnish to the to the class as a whole, the resolution
administrative judge copies of all ma- shall bind all members of the class.
terials that they wish to be examined (h) Hearing. On expiration of the pe-
and such other material as may be re- riod allowed for preparation of the
quested. case, the administrative judge shall set
(g) Opportunity for resolution of the a date for hearing. The hearing shall be
complaint. (1) The administrative judge conducted in accordance with 29 CFR
shall furnish the agent and the rep- 1614.109 (a) through (f).
resentative of the agency a copy of all (i) Report of findings and recommenda-
materials obtained concerning the tions. (1) The administrative judge
complaint and provide opportunity for shall transmit to the agency a report
the agent to discuss materials with the of findings and recommendations on
agency representative and attempt res- the complaint, including a rec-
olution of the complaint. ommended decision, systemic relief for
(2) The complaint may be resolved by
the class and any individual relief,
agreement of the agency and the agent
where appropriate, with regard to the
at any time pursuant to the notice and
personnel action or matter that gave
approval procedure contained in para-
rise to the complaint.
graph (g)(4) of this section.
(3) If the complaint is resolved, the (2) If the administrative judge finds
terms of the resolution shall be re- no class relief appropriate, he or she
duced to writing and signed by the shall determine if a finding of indi-
agent and the agency. vidual discrimination is warranted and,
(4) Notice of the resolution shall be if so, shall recommend appropriate re-
given to all class members in the same lief.
manner as notification of the accept- (3) The administrative judge shall no-
ance of the class complaint and to the tify the agency of the date on which
administrative judge. It shall state the the report of findings and recommenda-
relief, if any, to be granted by the tions was forwarded to the agency.
agency and the name and address of (j) Agency decision. (1) Within 60 days
the EEOC administrative judge as- of receipt of the report of findings and
signed to the case. It shall state that recommendations issued under
within 30 days of the date of the notice § 1614.204(i), the agency shall issue a
of resolution, any member of the class final decision, which shall accept, re-
may petition the administrative judge ject, or modify the findings and rec-
to vacate the resolution because it ben- ommendations of the administrative
efits only the class agent, or is other- judge.
wise not fair, adequate and reasonable (2) The final decision of the agency
to the class as a whole. The adminis- shall be in writing and shall be trans-
trative judge shall review the notice of mitted to the agent by certified mail,
resolution and consider any petitions return receipt requested, along with a
to vacate filed. If the administrative copy of the report of findings and rec-
judge finds that the proposed resolu- ommendations of the administrative
tion is not fair, adequate and reason- judge.
able to the class as a whole, the admin- (3) When the agency’s final decision
istrative judge shall issue a decision is to reject or modify the findings and
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§ 1614.301 29 CFR Ch. XIV (7–1–00 Edition)
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Equal Employment Opportunity Comm. § 1614.302
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§ 1614.303 29 CFR Ch. XIV (7–1–00 Edition)
timely appeal with MSPB from the MSPB’s final decision on the discrimi-
agency’s processing of a mixed case nation issue. If the MSPB’s administra-
complaint and the MSPB dismisses it tive judge finds that MSPB does not
for jurisdictional reasons, the agency have jurisdiction over the matter, the
shall reissue a notice under § 1614.108(f) agency shall recommence processing of
giving the individual the right to elect the mixed case complaint as a non-
between a hearing before an adminis- mixed case EEO complaint.
trative judge and an immediate final (d) Procedures for agency processing of
decision. mixed case complaints. When a complain-
(c) Dismissal. (1) An agency may dis- ant elects to proceed initially under
miss a mixed case complaint for the this part rather than with the MSPB,
reasons contained in, and under the the procedures set forth in subpart A
conditions prescribed in, § 1614.107. shall govern the processing of the
(2) An agency decision to dismiss a mixed case complaint with the fol-
mixed case complaint on the basis of lowing exceptions:
the complainant’s prior election of the (1) At the time the agency advises a
MSPB procedures shall be made as fol- complainant of the acceptance of a
lows: mixed case complaint, it shall also ad-
(i) Where neither the agency nor the vise the complainant that:
MSPB administrative judge questions (i) If a final decision is not issued
the MSPB’s jurisdiction over the ap- within 120 days of the date of filing of
peal on the same matter, it shall dis- the mixed case complaint, the com-
miss the mixed case complaint pursu- plainant may appeal the matter to the
ant to § 1614.107(d) and shall advise the MSPB at any time thereafter as speci-
complainant that he or she must bring fied at 5 CFR 1201.154(b)(2) or may file
the allegations of discrimination con- a civil action as specified at
tained in the rejected complaint to the § 1614.310(g), but not both; and
attention of the MSPB, pursuant to 5 (ii) If the complainant is dissatisfied
CFR 1201.155. The dismissal of such a with the agency’s final decision on the
complaint shall advise the complainant mixed case complaint, the complainant
of the right to petition the EEOC to re- may appeal the matter to the MSPB
view the MSPB’s final decision on the (not EEOC) within 30 days of receipt of
discrimination issue. A dismissal of a the agency’s final decision;
mixed case complaint is not appealable (2) Upon completion of the investiga-
to the Commission except where it is tion, the notice provided the complain-
alleged that § 1614.107(d) has been ap- ant in accordance with § 1614.108(f) will
plied to a non-mixed case matter. advise the complainant that a final de-
(ii) Where the agency or the MSPB cision will be issued within 45 days
administrative judge questions the without a hearing; and
MSPB’s jurisdiction over the appeal on (3) At the time that the agency issues
the same matter, the agency shall hold its final decision on a mixed case com-
the mixed case complaint in abeyance plaint, the agency shall advise the
until the MSPB’s administrative judge complainant of the right to appeal the
rules on the jurisdictional issue, notify matter to the MSPB (not EEOC) within
the complainant that it is doing so, 30 days of receipt and of the right to
and instruct him or her to bring the al- file a civil action as provided at
legation of discrimination to the atten- § 1614.310(a).
tion of the MSPB. During this period of [57 FR 12646, Apr. 10, 1992, as amended at 61
time, all time limitations for proc- FR 17576, Apr. 22, 1996; 64 FR 37659, July 12,
essing or filing under this part will be 1999]
tolled. An agency decision to hold a
mixed case complaint in abeyance is § 1614.303 Petitions to the EEOC from
not appealable to EEOC. If the MSPB’s MSPB decisions on mixed case ap-
administrative judge finds that MSPB peals and complaints.
has jurisdiction over the matter, the (a) Who may file. Individuals who
agency shall dismiss the mixed case have received a final decision from the
complaint pursuant to § 1614.107(d), and MSPB on a mixed case appeal or on the
advise the complainant of the right to appeal of a final decision on a mixed
petition the EEOC to review the case complaint under 5 CFR part 1201,
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Equal Employment Opportunity Comm. § 1614.306
subpart E and 5 U.S.C. 7702 may peti- gument with the Office of Federal Op-
tion EEOC to consider that decision. erations and serving a copy on the peti-
The EEOC will not accept appeals from tioner within 15 days of receipt by the
MSPB dismissals without prejudice. Commission.
(b) Method of filing. Filing shall be (b) The Commission shall determine
made by certified mail, return receipt whether to consider the decision of the
requested, to the Office of Federal Op- MSPB within 30 days of receipt of the
erations, Equal Employment Oppor- petition by the Commission’s Office of
tunity Commission, P.O. Box 19848, Federal Operations. A determination of
Washington, DC 20036. the Commission not to consider the de-
(c) Time to file. A petition must be cision shall not be used as evidence
filed with the Commission either with- with respect to any issue of discrimina-
in 30 days of receipt of the final deci- tion in any judicial proceeding con-
sion of the MSPB or within 30 days of cerning that issue.
when the decision of a MSPB field of- (c) If the Commission makes a deter-
fice becomes final. mination to consider the decision, the
(d) Service. The petition for review Commission shall within 60 days of the
must be served upon all individuals and date of its determination, consider the
parties on the MSPB’s service list by entire record of the proceedings of the
certified mail on or before the filing MSPB and on the basis of the evi-
with the Commission, and the Clerk of dentiary record before the Board as
the MSPB, 1120 Vermont Ave., NW., supplemented in accordance with para-
Washington, DC 20419, and the peti- graph (d) of this section, either:
tioner must certify as to the date and (1) Concur in the decision of the
method of service. MSPB; or
(2) Issue in writing a decision that
§ 1614.304 Contents of petition. differs from the decision of the MSPB
(a) Form. Petitions must be written to the extent that the Commission
or typed, but may use any format in- finds that, as a matter of law:
cluding a simple letter format. Peti- (i) The decision of the MSPB con-
tioners are encouraged to use EEOC stitutes an incorrect interpretation of
Form 573, Notice Of Appeal/Petition. any provision of any law, rule, regula-
(b) Contents. Petitions must contain tion, or policy directive referred to in 5
the following: U.S.C. 7702(a)(1)(B); or
(1) The name and address of the peti- (ii) The decision involving such pro-
tioner; vision is not supported by the evidence
(2) The name and address of the peti- in the record as a whole.
tioner’s representative, if any; (d) In considering any decision of the
(3) A statement of the reasons why MSPB, the Commission, pursuant to 5
the decision of the MSPB is alleged to U.S.C. 7702(b)(4), may refer the case to
be incorrect, in whole or in part, only the MSPB for the taking of additional
with regard to issues of discrimination evidence within such period as permits
based on race, color, religion, sex, na- the Commission to make a decision
tional origin, age or handicap; within the 60-day period prescribed or
(4) A copy of the decision issued by provide on its own for the taking of ad-
the MSPB; and ditional evidence to the extent the
(5) The signature of the petitioner or Commission considers it necessary to
representative, if any. supplement the record.
(e) Where the EEOC has differed with
§ 1614.305 Consideration procedures. the decision of the MSPB under
(a) Once a petition is filed, the Com- § 1614.305(c)(2), the Commission shall
mission will examine it and determine refer the matter to the MSPB.
whether the Commission will consider
the decision of the MSPB. An agency § 1614.306 Referral of case to Special
may oppose the petition, either on the Panel.
basis that the Commission should not If the MSPB reaffirms its decision
consider the MSPB’s decision or that under 5 CFR 1201.162(a)(2) with or with-
the Commission should concur in the out modification, the matter shall be
MSPB’s decision, by filing any such ar- immediately certified to the Special
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§ 1614.307 29 CFR Ch. XIV (7–1–00 Edition)
Panel established pursuant to 5 U.S.C. (c) Time limit for proceedings. Pursu-
7702(d). Upon certification, the Board ant to 5 U.S.C. 7702(d)(2)(A), the Special
shall, within five days (excluding Sat- Panel shall issue a decision within 45
urdays, Sundays, and Federal holi- days of the matter being certified to it.
days), transmit to the Chairman of the (d) Administrative assistance to Special
Special Panel and to the Chairman of Panel. (1) The MSPB and the EEOC
the EEOC the administrative record in shall provide the Panel with such rea-
the proceeding including— sonable and necessary administrative
(a) The factual record compiled under resources as determined by the Chair-
this section, which shall include a man of the Special Panel.
transcript of any hearing(s); (2) Assistance shall include, but is
(b) The decisions issued by the Board not limited to, processing vouchers for
and the Commission under 5 U.S.C. pay and travel expenses.
7702; and (3) The Board and the EEOC shall be
(c) A transcript of oral arguments responsible for all administrative costs
made, or legal brief(s) filed, before the incurred by the Special Panel and, to
Board and the Commission. the extent practicable, shall equally di-
vide the costs of providing such admin-
§ 1614.307 Organization of Special istrative assistance. The Chairman of
Panel. the Special Panel shall resolve the
(a) The Special Panel is composed of: manner in which costs are divided in
(1) A Chairman appointed by the the event of a disagreement between
President with the advice and consent the Board and the EEOC.
of the Senate, and whose term is 6 (e) Maintenance of the official record.
years; The Board shall maintain the official
(2) One member of the MSPB des- record. The Board shall transmit two
ignated by the Chairman of the Board copies of each submission filed to each
each time a panel is convened; and member of the Special Panel in an ex-
(3) One member of the EEOC des- peditious manner.
ignated by the Chairman of the Com- (f) Filing and service of pleadings. (1)
mission each time a panel is convened. The parties shall file the original and
(b) Designation of Special Panel mem- six copies of all submissions with the
ber—(1) Time of designation. Within five Clerk, Merit Systems Protection
days of certification of the case to the Board, 1120 Vermont Avenue, NW.,
Special Panel, the Chairman of the Washington, DC 20419. One copy of each
MSPB and the Chairman of the EEOC submission shall be served on the other
shall each designate one member from parties.
their respective agencies to serve on (2) A certificate of service specifying
the Special Panel. how and when service was made must
(2) Manner of designation. Letters of accompany all submissions of the par-
designation shall be served on the ties.
Chairman of the Special Panel and the (3) Service may be by mail or by per-
parties to the appeal. sonal delivery during normal business
hours (8:15 a.m.–4:45 p.m.). Due to the
§ 1614.308 Practices and procedures of short statutory time limit, parties are
the Special Panel. required to file their submissions by
(a) Scope. The rules in this subpart overnight delivery service should they
apply to proceedings before the Special file by mail.
Panel. (4) The date of filing shall be deter-
(b) Suspension of rules in this subpart. mined by the date of mailing as indi-
In the interest of expediting a decision, cated by the order date for the over-
or for good cause shown, the Chairman night delivery service. If the filing is
of the Special Panel may, except where by personal delivery, it shall be consid-
the rule in this subpart is required by ered filed on that date it is received in
statute, suspend the rules in this sub- the office of the Clerk, MSPB.
part on application of a party, or on his (g) Briefs and responsive pleadings. If
or her own motion, and may order pro- the parties wish to submit written ar-
ceedings in accordance with his or her gument, briefs shall be filed with the
direction. Special Panel within 15 days of the
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Equal Employment Opportunity Comm. § 1614.401
date of the Board’s certification order. (d) Within 30 days of receipt of notice
Due to the short statutory time limit that the Commission concurs with the
responsive pleadings will not ordinarily decision of the MSPB; or
be permitted. (e) If the Commission issues a deci-
(h) Oral argument. The parties have sion different from the decision of the
the right to oral argument if desired. MSPB, within 30 days of receipt of no-
Parties wishing to exercise this right tice that the MSPB concurs in and
shall so indicate at the time of filing adopts in whole the decision of the
their brief, or if no brief is filed, within Commission; or
15 days of the date of the Board’s cer- (f) If the MSPB does not concur with
tification order. Upon receipt of a re- the decision of the Commission and re-
quest for argument, the Chairman of affirms its initial decision or reaffirms
the Special Panel shall determine the its initial decision with a revision,
time and place for argument and the within 30 days of the receipt of notice
time to be allowed each side, and shall of the decision of the Special Panel; or
so notify the parties. (g) After 120 days from the date of fil-
(i) Post-argument submissions. Due to ing a formal complaint if there is no
the short statutory time limit, no post- final action or appeal to the MSPB; or
argument submissions will be per- (h) After 120 days from the date of fil-
mitted except by order of the Chairman
ing an appeal with the MSPB if the
of the Special Panel.
MSPB has not yet made a decision; or
(j) Procedural matters. Any procedural
(i) After 180 days from the date of fil-
matters not addressed in this subpart
ing a petition for consideration with
shall be resolved by written order of
Commission if there is no decision by
the Chairman of the Special Panel.
the Commission, reconsideration deci-
§ 1614.309 Enforcement of Special sion by the MSPB or decision by the
Panel decision. Special Panel.
The Board shall, upon receipt of the
decision of the Special Panel, order the Subpart D—Appeals and Civil
agency concerned to take any action Actions
appropriate to carry out the decision of
the Panel. The Board’s regulations re- § 1614.401 Appeals to the Commission.
garding enforcement of a final order of (a) A complainant may appeal an
the Board shall apply. These regula- agency’s final action or dismissal of a
tions are set out at 5 CFR part 1201, complaint.
subpart E. (b) An agency may appeal as provided
in § 1614.110(a).
§ 1614.310 Right to file a civil action. (c) A class agent or an agency may
An individual who has a complaint appeal an administrative judge’s deci-
processed pursuant to 5 CFR part 1201, sion accepting or dismissing all or part
subpart E or this subpart is authorized of a class complaint; a class agent may
by 5 U.S.C. 7702 to file a civil action in appeal a final decision on a class com-
an appropriate United States District plaint; a class member may appeal a
Court: final decision on a claim for individual
(a) Within 30 days of receipt of a final relief under a class complaint; and a
decision issued by an agency on a com- class member, a class agent or an agen-
plaint unless an appeal is filed with the cy may appeal a final decision on a pe-
MSPB; or tition pursuant to § 1614.204(g)(4).
(b) Within 30 days of receipt of notice (d) A grievant may appeal the final
of the final decision or action taken by decision of the agency, the arbitrator
the MSPB if the individual does not or the Federal Labor Relations Author-
file a petition for consideration with ity (FLRA) on the grievance when an
the EEOC; or issue of employment discrimination
(c) Within 30 days of receipt of notice was raised in a negotiated grievance
that the Commission has determined procedure that permits such issues to
not to consider the decision of the be raised. A grievant may not appeal
MSPB; or under this part, however, when the
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§ 1614.402 29 CFR Ch. XIV (7–1–00 Edition)
matter initially raised in the nego- (b) The appellant shall furnish a copy
tiated grievance procedure is still on- of the appeal to the opposing party at
going in that process, is in arbitration, the same time it is filed with the Com-
is before the FLRA, is appealable to mission. In or attached to the appeal to
the MSPB or if 5 U.S.C. 7121(d) is inap- the Commission, the appellant must
plicable to the involved agency. certify the date and method by which
(e) A complainant, agent or indi- service was made on the opposing
vidual class claimant may appeal to party.
the Commission an agency’s alleged (c) If an appellant does not file an ap-
noncompliance with a settlement peal within the time limits of this sub-
agreement or final decision in accord- part, the appeal shall be dismissed by
ance with § 1614.504. the Commission as untimely.
(d) Any statement or brief on behalf
[57 FR 12646, Apr. 10, 1992, as amended at 64 of a complainant in support of the ap-
FR 37659, July 12, 1999] peal must be submitted to the Office of
Federal Operations within 30 days of
§ 1614.402 Time for appeals to the filing the notice of appeal. Any state-
Commission. ment or brief on behalf of the agency in
(a) Appeals described in § 1614.401(a) support of its appeal must be sub-
and (c) must be filed within 30 days of mitted to the Office of Federal Oper-
receipt of the dismissal, final action or ations within 20 days of filing the no-
decision. Appeals described in tice of appeal. The Office of Federal
§ 1614.401(b) must be filed within 40 days Operations will accept statements or
of receipt of the hearing file and deci- briefs in support of an appeal by fac-
sion. Where a complainant has notified simile transmittal, provided they are
the EEO Director of alleged noncompli- no more than 10 pages long.
ance with a settlement agreement in (e) The agency must submit the com-
accordance with § 1614.504, the com- plaint file to the Office of Federal Op-
plainant may file an appeal 35 days erations within 30 days of initial notifi-
after service of the allegations of non- cation that the complainant has filed
compliance, but no later than 30 days an appeal or within 30 days of submis-
after receipt of an agency’s determina- sion of an appeal by the agency.
tion. (f) Any statement or brief in opposi-
tion to an appeal must be submitted to
(b) If the complainant is represented
the Commission and served on the op-
by an attorney of record, then the 30-
posing party within 30 days of receipt
day time period provided in paragraph
of the statement or brief supporting
(a) of this section within which to ap- the appeal, or, if no statement or brief
peal shall be calculated from the re- supporting the appeal is filed, within 60
ceipt of the required document by the days of receipt of the appeal. The Of-
attorney. In all other instances, the fice of Federal Operations will accept
time within which to appeal shall be statements or briefs in opposition to an
calculated from the receipt of the re- appeal by facsimile provided they are
quired document by the complainant. no more than 10 pages long.
[57 FR 12646, Apr. 10, 1992, as amended at 64 [64 FR 37659, July 12, 1999]
FR 37659, July 12, 1999]
§ 1614.404 Appellate procedure.
§ 1614.403 How to appeal.
(a) On behalf of the Commission, the
(a) The complainant, agency, agent, Office of Federal Operations shall re-
grievant or individual class claimant view the complaint file and all written
(hereinafter appellant) must file an ap- statements and briefs from either
peal with the Director, Office of Fed- party. The Commission may supple-
eral Operations, Equal Employment ment the record by an exchange of let-
Opportunity Commission, at P.O. Box ters or memoranda, investigation, re-
19848, Washington, DC 20036, or by per- mand to the agency or other proce-
sonal delivery or facsimile. The appel- dures.
lant should use EEOC Form 573, Notice (b) If the Office of Federal Operations
of Appeal/Petition, and should indicate requests information from one or both
what is being appealed. of the parties to supplement the
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Equal Employment Opportunity Comm. § 1614.408
record, each party providing informa- (1) The appellate decision involved a
tion shall send a copy of the informa- clearly erroneous interpretation of ma-
tion to the other party. terial fact or law; or
(c) When either party to an appeal (2) The decision will have a substan-
fails without good cause shown to com- tial impact on the policies, practices or
ply with the requirements of this sec- operations of the agency.
tion or to respond fully and in timely [57 FR 12646, Apr. 10, 1992, as amended at 64
fashion to requests for information, the FR 37659, July 12, 1999]
Office of Federal Operations shall, in
appropriate circumstances: § 1614.406 Time limits. [Reserved]
(1) Draw an adverse inference that
the requested information would have § 1614.407 Civil action: Title VII, Age
reflected unfavorably on the party re- Discrimination in Employment Act
fusing to provide the requested infor- and Rehabilitation Act.
mation; A complainant who has filed an indi-
(2) Consider the matters to which the vidual complaint, an agent who has
requested information or testimony filed a class complaint or a claimant
pertains to be established in favor of who has filed a claim for individual re-
the opposing party; lief pursuant to a class complaint is
(3) Issue a decision fully or partially authorized under title VII, the ADEA
in favor of the opposing party; or and the Rehabilitation Act to file a
(4) Take such other actions as appro- civil action in an appropriate United
priate. States District Court:
(a) Within 90 days of receipt of the
[57 FR 12646, Apr. 10, 1992, as amended at 64 final action on an individual or class
FR 37659, July 12, 1999]
complaint if no appeal has been filed;
§ 1614.405 Decisions on appeals. (b) After 180 days from the date of fil-
ing an individual or class complaint if
(a) The Office of Federal Operations, an appeal has not been filed and final
on behalf of the Commission, shall action has not been taken;
issue a written decision setting forth (c) Within 90 days of receipt of the
its reasons for the decision. The Com- Commission’s final decision on an ap-
mission shall dismiss appeals in ac- peal; or
cordance with §§ 1614.107, 1614.403(c) and (d) After 180 days from the date of fil-
1614.410. The decision shall be based on ing an appeal with the Commission if
the preponderance of the evidence. The there has been no final decision by the
decision on an appeal from an agency’s Commission.
final action shall be based on a de novo
review, except that the review of the [57 FR 12646, Apr. 10, 1992. Redesignated and
amended at 64 FR 37659, July 12, 1999]
factual findings in a decision by an ad-
ministrative judge issued pursuant to § 1614.408 Civil action: Equal Pay Act.
§ 1614.109(i) shall be based on a substan-
tial evidence standard of review. If the A complainant is authorized under
decision contains a finding of discrimi- section 16(b) of the Fair Labor Stand-
nation, appropriate remedy(ies) shall ards Act (29 U.S.C. 216(b)) to file a civil
be included and, where appropriate, the action in a court of competent jurisdic-
entitlement to interest, attorney’s fees tion within two years or, if the viola-
or costs shall be indicated. The deci- tion is willful, three years of the date
sion shall reflect the date of its of the alleged violation of the Equal
issuance, inform the complainant of his Pay Act regardless of whether he or
or her or her civil action rights, and be she pursued any administrative com-
transmitted to the complainant and plaint processing. Recovery of back
the agency by first class mail. wages is limited to two years prior to
(b) A decision issued under paragraph the date of filing suit, or to three years
(a) of this section is final within the if the violation is deemed willful; liq-
meaning of § 1614.407 unless the Com- uidated damages in an equal amount
mission reconsiders the case. A party may also be awarded. The filing of a
may request reconsideration within 30 complaint or appeal under this part
days of receipt of a decision of the shall not toll the time for filing a civil
Commission, which the Commission in action.
its discretion may grant, if the party [57 FR 12646, Apr. 10, 1992. Redesignated at 64
demonstrates that: FR 37659, July 12, 1999]
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§ 1614.409 29 CFR Ch. XIV (7–1–00 Edition)
§ 1614.409 Effect of filing a civil action. even absent the discrimination. The
Filing a civil action under § 1614.408 offer shall be made in writing. The in-
or § 1614.409 shall terminate Commis- dividual shall have 15 days from receipt
sion processing of the appeal. If private of the offer within which to accept or
suit is filed subsequent to the filing of decline the offer. Failure to accept the
an appeal, the parties are requested to offer within the 15-day period will be
notify the Commission in writing. considered a declination of the offer,
unless the individual can show that cir-
[57 FR 12646, Apr. 10, 1992. Redesignated at 64 cumstances beyond his or her control
FR 37659, July 12, 1999] prevented a response within the time
limit.
Subpart E—Remedies and (ii) If the offer is accepted, appoint-
Enforcement ment shall be retroactive to the date
the applicant would have been hired.
§ 1614.501 Remedies and relief. Back pay, computed in the manner pre-
(a) When an agency, or the Commis- scribed by 5 CFR 550.805, shall be
sion, in an individual case of discrimi- awarded from the date the individual
nation, finds that an applicant or an would have entered on duty until the
employee has been discriminated date the individual actually enters on
against, the agency shall provide full duty unless clear and convincing evi-
relief which shall include the following dence indicates that the applicant
elements in appropriate circumstances: would not have been selected even ab-
(1) Notification to all employees of sent discrimination. Interest on back
the agency in the affected facility of pay shall be included in the back pay
their right to be free of unlawful dis- computation where sovereign immu-
crimination and assurance that the nity has been waived. The individual
particular types of discrimination shall be deemed to have performed
found will not recur; service for the agency during this pe-
(2) Commitment that corrective, cu- riod for all purposes except for meeting
rative or preventive action will be service requirements for completion of
taken, or measures adopted, to ensure a required probationary or trial period.
that violations of the law similar to (iii) If the offer of employment is de-
those found will not recur; clined, the agency shall award the indi-
(3) An unconditional offer to each vidual a sum equal to the back pay he
identified victim of discrimination of or she would have received, computed
placement in the position the person in the manner prescribed by 5 CFR
would have occupied but for the dis- 550.805, from the date he or she would
crimination suffered by that person, or have been appointed until the date the
a substantially equivalent position; offer was declined, subject to the limi-
(4) Payment to each identified victim tation of paragraph (b)(3) of this sec-
of discrimination on a make whole tion. Interest on back pay shall be in-
basis for any loss of earnings the per- cluded in the back pay computation.
son may have suffered as a result of the The agency shall inform the applicant,
discrimination; and in its offer of employment, of the right
(5) Commitment that the agency to this award in the event the offer is
shall cease from engaging in the spe- declined.
cific unlawful employment practice (2) When an agency, or the Commis-
found in the case. sion, finds that discrimination existed
(b) Relief for an applicant. (1)(i) When at the time the applicant was consid-
an agency, or the Commission, finds ered for employment but also finds by
that an applicant for employment has clear and convincing evidence that the
been discriminated against, the agency applicant would not have been hired
shall offer the applicant the position even absent discrimination, the agency
that the applicant would have occupied shall nevertheless take all steps nec-
absent discrimination or, if justified by essary to eliminate the discriminatory
the circumstances, a substantially practice and ensure it does not recur.
equivalent position unless clear and (3) Back pay under this paragraph (b)
convincing evidence indicates that the for complaints under title VII or the
applicant would not have been selected Rehabilitation Act may not extend
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Equal Employment Opportunity Comm. § 1614.501
from a date earlier than two years other costs incurred in the processing
prior to the date on which the com- of the complaint.
plaint was initially filed by the appli- (i) A finding of discrimination raises
cant. a presumption of entitlement to an
(c) Relief for an employee. When an award of attorney’s fees.
agency, or the Commission, finds that (ii) Any award of attorney’s fees or
an employee of the agency was dis- costs shall be paid by the agency.
criminated against, the agency shall (iii) Attorney’s fees are allowable
provide relief, which shall include, but only for the services of members of the
need not be limited to, one or more of Bar and law clerks, paralegals or law
the following actions: students under the supervision of mem-
(1) Nondiscriminatory placement, bers of the Bar, except that no award is
with back pay computed in the manner allowable for the services of any em-
prescribed by 5 CFR 550.805, unless ployee of the Federal Government.
clear and convincing evidence con-
(iv) Attorney’s fees shall be paid for
tained in the record demonstrates that
services performed by an attorney after
the personnel action would have been
the filing of a written complaint, pro-
taken even absent the discrimination.
vided that the attorney provides rea-
Interest on back pay shall be included
sonable notice of representation to the
in the back pay computation where
agency, administrative judge or Com-
sovereign immunity has been waived.
mission, except that fees are allowable
The back pay liability under title VII
for a reasonable period of time prior to
or the Rehabilitation Act is limited to
the notification of representation for
two years prior to the date the dis-
crimination complaint was filed. any services performed in reaching a
(2) If clear and convincing evidence determination to represent the com-
indicates that, although discrimination plainant. Agencies are not required to
existed at the time the personnel ac- pay attorney’s fees for services per-
tion was taken, the personnel action formed during the pre-complaint proc-
would have been taken even absent dis- ess, except that fees are allowable
crimination, the agency shall never- when the Commission affirms on ap-
theless eliminate any discriminatory peal an administrative judge’s decision
practice and ensure it does not recur. finding discrimination after an agency
(3) Cancellation of an unwarranted takes final action by not implementing
personnel action and restoration of the an administrative judge’s decision.
employee. Written submissions to the agency that
(4) Expunction from the agency’s are signed by the representative shall
records of any adverse materials relat- be deemed to constitute notice of rep-
ing to the discriminatory employment resentation.
practice. (2) Amount of awards. (i) When the
(5) Full opportunity to participate in agency, administrative judge or the
the employee benefit denied (e.g., Commission determines an entitlement
training, preferential work assign- to attorney’s fees or costs, the com-
ments, overtime scheduling). plainant’s attorney shall submit a
(d) The agency has the burden of verified statement of attorney’s fees
proving by a preponderance of the evi- (including expert witness fees) and
dence that the complainant has failed other costs, as appropriate, to the
to mitigate his or her damages. agency or administrative judge within
(e) Attorney’s fees or costs—(1) Awards 30 days of receipt of the decision and
of attorney’s fees or costs. The provisions shall submit a copy of the statement to
of this paragraph relating to the award the agency. A statement of attorney’s
of attorney’s fees or costs shall apply fees and costs shall be accompanied by
to allegations of discrimination prohib- an affidavit executed by the attorney
ited by title VII and the Rehabilitation of record itemizing the attorney’s
Act. In a decision or final action, the charges for legal services. The agency
agency, administrative judge, or Com- may respond to a statement of attor-
mission may award the applicant or ney’s fees and costs within 30 days of
employee reasonable attorney’s fees its receipt. The verified statement, ac-
(including expert witness fees) and companying affidavit and any agency
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§ 1614.502 29 CFR Ch. XIV (7–1–00 Edition)
response shall be made a part of the sion orders retroactive restoration, the
complaint file. agency shall comply with the decision
(ii)(A) The agency or administrative to the extent of the temporary or con-
judge shall issue a decision deter- ditional restoration of the employee to
mining the amount of attorney’s fees duty status in the position specified by
or costs due within 60 days of receipt of the Commission, pending the outcome
the statement and affidavit. The deci- of the agency request for reconsider-
sion shall include a notice of right to ation.
appeal to the EEOC along with EEOC (1) Service under the temporary or
Form 573, Notice of Appeal/Petititon conditional restoration provisions of
and shall include the specific reasons this paragraph (b) shall be credited to-
for determining the amount of the ward the completion of a probationary
award. or trial period, eligibility for a within-
(B) The amount of attorney’s fees grade increase, or the completion of
shall be calculated using the following the service requirement for career ten-
standards: The starting point shall be ure, if the Commission upholds its de-
the number of hours reasonably ex- cision after reconsideration.
pended multiplied by a reasonable (2) When the agency requests recon-
hourly rate. There is a strong presump- sideration, it may delay the payment
tion that this amount represents the of any amounts ordered to be paid to
reasonable fee. In limited cir- the complainant until after the request
cumstances, this amount may be re- for reconsideration is resolved. If the
duced or increased in consideration of agency delays payment of any amount
the degree of success, quality of rep- pending the outcome of the request to
resentation, and long delay caused by reconsider and the resolution of the re-
the agency. quest requires the agency to make the
(C) The costs that may be awarded payment, then the agency shall pay in-
are those authorized by 28 U.S.C. 1920 terest from the date of the original ap-
to include: Fees of the reporter for all pellate decision until payment is made.
or any of the stenographic transcript (3) The agency shall notify the Com-
necessarily obtained for use in the mission and the employee in writing at
case; fees and disbursements for print- the same time it requests reconsider-
ing and witnesses; and fees for exem- ation that the relief it provides is tem-
plification and copies necessarily ob- porary or conditional and, if applica-
tained for use in the case. ble, that it will delay the payment of
(iii) Witness fees shall be awarded in
any amounts owed but will pay inter-
accordance with the provisions of 28
est as specified in paragraph (b)(2) of
U.S.C. 1821, except that no award shall
this section. Failure of the agency to
be made for a Federal employee who is
provide notification will result in the
in a duty status when made available
dismissal of the agency’s request.
as a witness.
(c) When no request for reconsider-
[57 FR 12646, Apr. 10, 1992, as amended at 60 ation is filed or when a request for re-
FR 43372, Aug. 21, 1995; 64 FR 37659, July 12, consideration is denied, the agency
1999] shall provide the relief ordered and
§ 1614.502 Compliance with final Com- there is no further right to delay im-
mission decisions. plementation of the ordered relief. The
relief shall be provided in full not later
(a) Relief ordered in a final Commis- than 60 days after receipt of the final
sion decision is mandatory and binding decision unless otherwise ordered in
on the agency except as provided in the decision.
this section. Failure to implement or-
dered relief shall be subject to judicial [57 FR 12646, Apr. 10, 1992, as amended at 64
enforcement as specified in § 1614.503(g). FR 37660, July 12, 1999]
(b) Notwithstanding paragraph (a) of
this section, when the agency requests § 1614.503 Enforcement of final Com-
reconsideration and the case involves mission decisions.
removal, separation, or suspension con- (a) Petition for enforcement. A com-
tinuing beyond the date of the request plainant may petition the Commission
for reconsideration, and when the deci- for enforcement of a decision issued
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Equal Employment Opportunity Comm. § 1614.504
under the Commission’s appellate ju- failed or refused to submit any re-
risdiction. The petition shall be sub- quired report of compliance, the Com-
mitted to the Office of Federal Oper- mission shall notify the complainant of
ations. The petition shall specifically the right to file a civil action for en-
set forth the reasons that lead the forcement of the decision pursuant to
complainant to believe that the agency Title VII, the ADEA, the Equal Pay
is not complying with the decision. Act or the Rehabilitation Act and to
(b) Compliance. On behalf of the Com- seek judicial review of the agency’s re-
mission, the Office of Federal Oper- fusal to implement the ordered relief
ations shall take all necessary action pursuant to the Administrative Proce-
to ascertain whether the agency is im- dure Act, 5 U.S.C. 701 et seq., and the
plementing the decision of the Com- mandamus statute, 28 U.S.C. 1361, or to
mission. If the agency is found not to commence de novo proceedings pursu-
be in compliance with the decision, ef- ant to the appropriate statutes.
forts shall be undertaken to obtain
compliance. § 1614.504 Compliance with settlement
(c) Clarification. On behalf of the agreements and final action.
Commission, the Office of Federal Op-
(a) Any settlement agreement know-
erations may, on its own motion or in
ingly and voluntarily agreed to by the
response to a petition for enforcement
parties, reached at any stage of the
or in connection with a timely request
complaint process, shall be binding on
for reconsideration, issue a clarifica-
both parties. Final action that has not
tion of a prior decision. A clarification
been the subject of an appeal or civil
cannot change the result of a prior de-
action shall be binding on the agency.
cision or enlarge or diminish the relief
If the complainant believes that the
ordered but may further explain the
meaning or intent of the prior decision. agency has failed to comply with the
(d) Referral to the Commission. Where terms of a settlement agreement or de-
the Director, Office of Federal Oper- cision, the complainant shall notify
ations, is unable to obtain satisfactory the EEO Director, in writing, of the al-
compliance with the final decision, the leged noncompliance within 30 days of
Director shall submit appropriate find- when the complainant knew or should
ings and recommendations for enforce- have known of the alleged noncompli-
ment to the Commission, or, as di- ance. The complainant may request
rected by the Commission, refer the that the terms of settlement agree-
matter to another appropriate agency. ment be specifically implemented or,
(e) Commission notice to show cause. alternatively, that the complaint be re-
The Commission may issue a notice to instated for further processing from
the head of any Federal agency that the point processing ceased.
has failed to comply with a decision to (b) The agency shall resolve the mat-
show cause why there is noncompli- ter and respond to the complainant, in
ance. Such notice may request the writing. If the agency has not re-
head of the agency or a representative sponded to the complainant, in writing,
to appear before the Commission or to or if the complainant is not satisfied
respond to the notice in writing with with the agency’s attempt to resolve
adequate evidence of compliance or the matter, the complainant may ap-
with compelling reasons for non-com- peal to the Commission for a deter-
pliance. mination as to whether the agency has
(f) Certification to the Office of Special complied with the terms of the settle-
Counsel. Where appropriate and pursu- ment agreement or decision. The com-
ant to the terms of a memorandum of plainant may file such an appeal 35
understanding, the Commission may days after he or she has served the
refer the matter to the Office of Spe- agency with the allegations of non-
cial Counsel for enforcement action. compliance, but must file an appeal
(g) Notification to complainant of com- within 30 days of his or her receipt of
pletion of administrative efforts. Where an agency’s determination. The com-
the Commission has determined that plainant must serve a copy of the ap-
an agency is not complying with a peal on the agency and the agency may
prior decision, or where an agency has submit a response to the Commission
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§ 1614.505 29 CFR Ch. XIV (7–1–00 Edition)
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Equal Employment Opportunity Comm. § 1614.602
(b) Data on race, national origin and not establish a quota for the employ-
sex shall be collected by voluntary self- ment of persons on the basis of race,
identification. If an employee does not color, religion, sex, or national origin.
voluntarily provide the requested in- (f) Data on handicaps shall also be
formation, the agency shall advise the collected by voluntary self-identifica-
employee of the importance of the data tion. If an employee does not volun-
and of the agency’s obligation to report tarily provide the requested informa-
it. If the employee still refuses to pro- tion, the agency shall advise the em-
vide the information, the agency must ployee of the importance of the data
make visual identification and inform and of the agency’s obligation to report
the employee of the data it will be re-
it. If an employee who has been ap-
porting. If an agency believes that in-
pointed pursuant to special appoint-
formation provided by an employee is
inaccurate, the agency shall advise the ment authority for hiring individuals
employee about the solely statistical with handicaps still refuses to provide
purpose for which the data is being col- the requested information, the agency
lected, the need for accuracy, the agen- must identify the employee’s handicap
cy’s recognition of the sensitivity of based upon the records supporting the
the information and the existence of appointment. If any other employee
procedures to prevent its unauthorized still refuses to provide the requested
disclosure. If, thereafter, the employee information or provides information
declines to change the apparently inac- which the agency believes to be inac-
curate self-identification, the agency curate, the agency should report the
must accept it. employee’s handicap status as un-
(c) The information collected under known.
paragraph (b) of this section shall be (g) An agency shall report to the
disclosed only in the form of gross sta- Commission on employment by race,
tistics. An agency shall not collect or national origin, sex and handicap in
maintain any information on the race, the form and at such times as the Com-
national origin or sex of individual em- mission may require.
ployees except when an automated
data processing system is used in ac- § 1614.602 Reports to the Commission.
cordance with standards and require-
ments prescribed by the Commission to (a) Each agency shall report to the
insure individual privacy and the sepa- Commission information concerning
ration of that information from per- pre-complaint counseling and the sta-
sonnel record. tus, processing and disposition of com-
(d) Each system is subject to the fol- plaints under this part at such times
lowing controls: and in such manner as the Commission
(1) Only those categories of race and prescribes.
national origin prescribed by the Com- (b) Each agency shall advise the
mission may be used; Commission whenever it is served with
(2) Only the specific procedures for a Federal court complaint based upon a
the collection and maintenance of data complaint that is pending on appeal at
that are prescribed or approved by the the Commission.
Commission may be used; (c) Each agency shall submit annu-
(3) The Commission shall review the ally for the review and approval of the
operation of the agency system to in- Commission written national and re-
sure adherence to Commission proce- gional equal employment opportunity
dures and requirements. An agency plans of action. Plans shall be sub-
may make an exception to the pre-
mitted in a format prescribed by the
scribed procedures and requirements
Commission and shall include, but not
only with the advance written approval
be limited to:
of the Commission.
(e) The agency may use the data only (1) Provision for the establishment of
in studies and analyses which con- training and education programs de-
tribute affirmatively to achieving the signed to provide maximum oppor-
objectives of the equal employment op- tunity for employees to advance so as
portunity program. An agency shall to perform at their highest potential;
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§ 1614.603 29 CFR Ch. XIV (7–1–00 Edition)
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Equal Employment Opportunity Comm. § 1615.103
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