Equal Employment Opportunity Comm. Pt. 16142001).pdf255 Equal Employment Opportunity Comm. Pt. 1614...

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Equal Employment Opportunity Comm. Pt. 1614

the expense of the party requestingcopies of the recording or minutes,upon payment of the actual cost of du-plication.

(b) All required fees shall be paid infull prior to issuance of requested cop-ies of records. Fees are payable to the‘‘Treasurer of the United States.’’

§ 1612.13 Meetings closed by regula-tion.

(a) This paragraph constitutes theCommission’s regulation promulgatedpursuant to paragraph (d)(4) of theGovernment in the Sunshine Act andmay be invoked by the agency to closemeetings or portions thereof where thesubject matter of such meeting or por-tion of a meeting is likely to involve:

(1) Matters pertaining to the issuanceof subpoenas;

(2) Subpoena modification and rev-ocation requests, and

(3) The Agency’s participation incivil actions or proceedings pertainingthereto.

(b) When closing a meeting or portionthereof under the Commission’s regula-tion set forth in paragraph (a) of thissection, a majority of the Commissionmembership shall vote at or before thebeginning of such meeting or portionthereof to do so. The vote to close ameeting by regulation shall be re-corded and made publicly available.

(c) The Commission’s determinationto promulgate the regulation in para-graph (a) of this section is based upona review of the agenda of Commissionmeetings for the two years prior to thepromulgation of these regulations.

(1) Since the Commission’s practiceof conducting weekly meetings beganin 1975, proposed litigation againsttitle VII respondents has been a reg-ular agenda item. The tenth exemptionof the Government in the SunshineAct, 5 U.S.C. 552b(c)(10), exempts thediscussion of these matters from theopen meeting requirements of the Act.

(2) Thus, the Commission has deter-mined that a majority of its meetingsor portions thereof may properly beclosed to the public under the tenth ex-emption of the Sunshine Act, and thatparagraph (d)(4) of the Sunshine Act isproperly relied upon in promulgatingthe Commission’s regulation in para-graph (a) of this section.

§ 1612.14 Judicial review.Any person may bring an action in a

United States District Court to chal-lenge or enforce the provisions of thispart. Such action may be brought priorto or within sixty (60) calendar daysafter the meeting in question, exceptthat if proper public announcement ofthe meeting is not made, the actionmay be instituted at any time withinsixty (60) days after such announce-ment is made. An action may bebrought where the agency meeting washeld or in the District of Columbia.

PART 1614—FEDERAL SECTOREQUAL EMPLOYMENT OPPORTUNITY

Subpart A—Agency Program To PromoteEqual Employment Opportunity

1614.101 General policy.1614.102 Agency program.1614.103 Complaints of discrimination cov-

ered by this part.1614.104 Agency processing.1614.105 Pre-complaint processing.1614.106 Individual complaints.1614.107 Dismissals of complaints.1614.108 Investigation of complaints.1614.109 Hearings.1614.110 Final action by agencies.

Subpart B—Provisions Applicable toParticular Complaints

1614.201 Age Discrimination in EmploymentAct.

1614.202 Equal Pay Act.1614.203 Rehabilitation Act.1614.204 Class complaints.

Subpart C—Related Processes

1614.301 Relationship to negotiated griev-ance procedure.

1614.302 Mixed case complaints.1614.303 Petitions to the EEOC from MSPB

decisions on mixed case appeals and com-plaints.

1614.304 Contents of petition.1614.305 Consideration procedures.1614.306 Referral of case to Special Panel.1614.307 Organization of Special Panel.1614.308 Practices and procedures of the

Special Panel.1614.309 Enforcement of Special Panel deci-

sion.1614.310 Right to file a civil action.

Subpart D—Appeals and Civil Actions

1614.401 Appeals to the Commission.

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29 CFR Ch. XIV (7–1–01 Edition)§ 1614.101

1614.402 Time for appeals to the Commis-sion.

1614.403 How to appeal.1614.404 Appellate procedure.1614.405 Decisions on appeals.1614.406 Time limits. [Reserved]1614.407 Civil action: Title VII, Age Dis-

crimination in Employment Act and Re-habilitation Act.

1614.408 Civil action: Equal Pay Act.1614.409 Effect of filing a civil action.

Subpart E—Remedies and Enforcement

1614.501 Remedies and relief.1614.502 Compliance with final Commission

decisions.1614.503 Enforcement of final Commission

decisions.1614.504 Compliance with settlement agree-

ments and final action.1614.505 Interim relief.

Subpart F—Matters of GeneralApplicability

1614.601 EEO group statistics.1614.602 Reports to the Commission.1614.603 Voluntary settlement attempts.1614.604 Filing and computation of time.1614.605 Representation and official time.1614.606 Joint processing and consolidation

of complaints.1614.607 Delegation of authority.

AUTHORITY: 29 U.S.C. 206(d), 633a, 791 and794a; 42 U.S.C. 2000e–16; E.O. 10577, 3 CFR,1954–1958 Comp., p.218; E.O. 11222, 3 CFR, 1964–1965 Comp., p.306; E.O. 11478, 3 CFR, 1969Comp., p.133; E.O. 12106, 3 CFR, 1978 Comp.,p.263; Reorg. Plan No. 1 of 1978, 3 CFR, 1978Comp., p.321.

SOURCE: 57 FR 12646, Apr. 10, 1992, unlessotherwise noted.

Subpart A—Agency Program ToPromote Equal EmploymentOpportunity

§ 1614.101 General policy.(a) It is the policy of the Government

of the United States to provide equalopportunity in employment for all per-sons, to prohibit discrimination in em-ployment because of race, color, reli-gion, sex, national origin, age or handi-cap and to promote the full realizationof equal employment opportunitythrough a continuing affirmative pro-gram in each agency.

(b) No person shall be subject to re-taliation for opposing any practicemade unlawful by title VII of the CivilRights Act (title VII) (42 U.S.C. 2000e et

seq.), the Age Discrimination in Em-ployment Act (ADEA) (29 U.S.C. 621 etseq.), the Equal Pay Act (29 U.S.C.206(d)) or the Rehabilitation Act (29U.S.C. 791 et seq.) or for participating inany stage of administrative or judicialproceedings under those statutes.

§ 1614.102 Agency program.

(a) Each agency shall maintain a con-tinuing affirmative program to pro-mote equal opportunity and to identifyand eliminate discriminatory practicesand policies. In support of this pro-gram, the agency shall:

(1) Provide sufficient resources to itsequal employment opportunity pro-gram to ensure efficient and successfuloperation;

(2) Provide for the prompt, fair andimpartial processing of complaints inaccordance with this part and the in-structions contained in the Commis-sion’s Management Directives;

(3) Conduct a continuing campaign toeradicate every form of prejudice ordiscrimination from the agency’s per-sonnel policies, practices and workingconditions;

(4) Communicate the agency’s equalemployment opportunity policy andprogram and its employment needs toall sources of job candidates withoutregard to race, color, religion, sex, na-tional, origin, age or handicap, and so-licit their recruitment assistance on acontinuing basis;

(5) Review, evaluate and controlmanagerial and supervisory perform-ance in such a manner as to insure acontinuing affirmative application andvigorous enforcement of the policy ofequal opportunity, and provide orienta-tion, training and advice to managersand supervisors to assure their under-standing and implementation of theequal employment opportunity policyand program;

(6) Take appropriate disciplinary ac-tion against employees who engage indiscriminatory practices;

(7) Make reasonable accommodationto the religious needs of applicants andemployees when those accommodationscan be made without undue hardshipon the business of the agency;


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Equal Employment Opportunity Comm. § 1614.102

(8) Make reasonable accommodationto the known physical or mental limi-tations of qualified applicants and em-ployees with handicaps unless the ac-commodation would impose an unduehardship on the operation of the agen-cy’s program;

(9) Reassign, in accordance with§ 1614.203(g), nonprobationary employ-ees who develop physical or mentallimitations that prevent them fromperforming the essential functions oftheir positions even with reasonableaccommodation;

(10) Provide recognition to employ-ees, supervisors, managers and unitsdemonstrating superior accomplish-ment in equal employment oppor-tunity;

(11) Establish a system for periodi-cally evaluating the effectiveness ofthe agency’s overall equal employmentopportunity effort;

(12) Provide the maximum feasibleopportunity to employees to enhancetheir skills through on-the-job train-ing, work-study programs and othertraining measures so that they mayperform at their highest potential andadvance in accordance with their abili-ties;

(13) Inform its employees and recog-nized labor organizations of the affirm-ative equal employment opportunitypolicy and program and enlist their co-operation; and

(14) Participate at the communitylevel with other employers, withschools and universities and with otherpublic and private groups in coopera-tive action to improve employment op-portunities and community conditionsthat affect employability.

(b) In order to implement its pro-gram, each agency shall:

(1) Develop the plans, procedures andregulations necessary to carry out itsprogram;

(2) Establish or make available an al-ternative dispute resolution program.Such program must be available forboth the pre-complaint process and theformal complaint process.

(3) Appraise its personnel operationsat regular intervals to assure theirconformity with its program, this part1614 and the instructions contained inthe Commission’s management direc-tives;

(4) Designate a Director of Equal Em-ployment Opportunity (EEO Director),EEO Officer(s), and such Special Em-phasis Program Managers (e.g., PeopleWith Disabilities Program, FederalWomen’s Program and Hispanic Em-ployment Program), clerical and ad-ministrative support as may be nec-essary to carry out the functions de-scribed in this part in all organiza-tional units of the agency and at allagency installations. The EEO Directorshall be under the immediate super-vision of the agency head;

(5) Make written materials availableto all employees and applicants in-forming them of the variety of equalemployment opportunity programs andadministrative and judicial remedialprocedures available to them andprominently post such written mate-rials in all personnel and EEO officesand throughout the workplace;

(6) Ensure that full cooperation isprovided by all agency employees toEEO Counselors and agency EEO per-sonnel in the processing and resolutionof pre-complaint matters and com-plaints within an agency and that fullcooperation is provided to the Commis-sion in the course of appeals, includinggranting the Commission routine ac-cess to personnel records of the agencywhen required in connection with aninvestigation; and

(7) Publicize to all employees andpost at all times the names, businesstelephone numbers and business ad-dresses of the EEO Counselors (unlessthe counseling function is centralized,in which case only the telephone num-ber and address need be publicized andposted), a notice of the time limits andnecessity of contacting a Counselor be-fore filing a complaint and the tele-phone numbers and addresses of theEEO Director, EEO Officer(s) and Spe-cial Emphasis Program Managers.

(c) Under each agency program, theEEO Director shall be responsible for:

(1) Advising the head of the agencywith respect to the preparation of na-tional and regional equal employmentopportunity plans, procedures, regula-tions, reports and other matters per-taining to the policy in § 1614.101 andthe agency program;

(2) Evaluating from time to time thesufficiency of the total agency program


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for equal employment opportunity andreporting to the head of the agencywith recommendations as to any im-provement or correction needed, in-cluding remedial or disciplinary actionwith respect to managerial, super-visory or other employees who havefailed in their responsibilities;

(3) When authorized by the head ofthe agency, making changes in pro-grams and procedures designed toeliminate discriminatory practices andto improve the agency’s program forequal employment opportunity;

(4) Providing for counseling of ag-grieved individuals and for the receiptand processing of individual and classcomplaints of discrimination; and

(5) Assuring that individual com-plaints are fairly and thoroughly inves-tigated and that final action is takenin a timely manner in accordance withthis part.

(d) Directives, instructions, formsand other Commission materials ref-erenced in this part may be obtained inaccordance with the provisions of 29CFR 1610.7 of this chapter.

[57 FR 12646, Apr. 10, 1992, as amended at 64FR 37655, July 12, 1999]

§ 1614.103 Complaints of discrimina-tion covered by this part.

(a) Individual and class complaints ofemployment discrimination and retal-iation prohibited by title VII (discrimi-nation on the basis of race, color, reli-gion, sex and national origin), theADEA (discrimination on the basis ofage when the aggrieved individual is atleast 40 years of age), the Rehabilita-tion Act (discrimination on the basis ofhandicap) or the Equal Pay Act (sex-based wage discrimination) shall beprocessed in accordance with this part.Complaints alleging retaliation prohib-ited by these statutes are considered tobe complaints of discrimination forpurposes of this part.

(b) This part applies to:(1) Military departments as defined

in 5 U.S.C. 102;(2) Executive agencies as defined in 5

U.S.C. 105;(3) The United States Postal Service,

Postal Rate Commission and TennesseeValley Authority;

(4) All units of the judicial branch ofthe Federal government having posi-

tions in the competitive service, exceptfor complaints under the Rehabilita-tion Act;

(5) The National Oceanic and Atmos-pheric Administration CommissionedCorps;

(6) The Government Printing Office;and

(7) The Smithsonian Institution.(c) Within the covered departments,

agencies and units, this part applies toall employees and applicants for em-ployment, and to all employment poli-cies or practices affecting employees orapplicants for employment includingemployees and applicants who are paidfrom nonappropriated funds, unlessotherwise excluded.

(d) This part does not apply to:(1) Uniformed members of the mili-

tary departments referred to in para-graph (b)(1) of this section:

(2) Employees of the General Ac-counting Office;

(3) Employees of the Library of Con-gress;

(4) Aliens employed in positions, orwho apply for positions, located out-side the limits of the United States; or

(5) Equal Pay Act complaints of em-ployees whose services are performedwithin a foreign country or certainUnited States territories as provided in29 U.S.C. 213(f).


§ 1614.104 Agency processing.

(a) Each agency subject to this partshall adopt procedures for processingindividual and class complaints of dis-crimination that include the provisionscontained in §§ 1614.105 through 1614.110and in § 1614.204, and that are con-sistent with all other applicable provi-sions of this part and the instructionsfor complaint processing contained inthe Commission’s Management Direc-tives.

(b) The Commission shall periodi-cally review agency resources and pro-cedures to ensure that an agencymakes reasonable efforts to resolvecomplaints informally, to process com-plaints in a timely manner, to develop


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adequate factual records, to issue deci-sions that are consistent with accept-able legal standards, to explain the rea-sons for its decisions, and to give com-plainants adequate and timely noticeof their rights.

§ 1614.105 Pre-complaint processing.(a) Aggrieved persons who believe

they have been discriminated againston the basis of race, color, religion,sex, national origin, age or handicapmust consult a Counselor prior to fil-ing a complaint in order to try to in-formally resolve the matter.

(1) An aggrieved person must initiatecontact with a Counselor within 45days of the date of the matter allegedto be discriminatory or, in the case ofpersonnel action, within 45 days of theeffective date of the action.

(2) The agency or the Commissionshall extend the 45-day time limit inparagraph (a)(1) of this section whenthe individual shows that he or she wasnot notified of the time limits and wasnot otherwise aware of them, that heor she did not know and reasonablyshould not have been known that thediscriminatory matter or personnel ac-tion occurred, that despite due dili-gence he or she was prevented by cir-cumstances beyond his or her controlfrom contacting the counselor withinthe time limits, or for other reasonsconsidered sufficient by the agency orthe Commission.

(b)(1) At the initial counseling ses-sion, Counselors must advise individ-uals in writing of their rights and re-sponsibilities, including the right to re-quest a hearing or an immediate finaldecision after an investigation by theagency in accordance with § 1614.108(f),election rights pursuant to §§ 1614.301and 1614.302, the right to file a notice ofintent to sue pursuant to § 1614.201(a)and a lawsuit under the ADEA insteadof an administrative complaint of agediscrimination under this part, theduty to mitigate damages, administra-tive and court time frames, and thatonly the claims raised in precomplaintcounseling (or issues or claims like orrelated to issues or claims raised inpre-complaint counseling) may be al-leged in a subsequent complaint filedwith the agency. Counselors must ad-vise individuals of their duty to keep

the agency and Commission informedof their current address and to servecopies of appeal papers on the agency.The notice required by paragraphs (d)or (e) of this section shall include a no-tice of the right to file a class com-plaint. If the aggrieved person informsthe Counselor that he or she wishes tofile a class complaint, the Counselorshall explain the class complaint pro-cedures and the responsibilities of aclass agent.

(2) Counselors shall advise aggrievedpersons that, where the agency agreesto offer ADR in the particular case,they may choose between participationin the alternative dispute resolutionprogram and the counseling activitiesprovided for in paragraph (c) of thissection.

(c) Counselors shall conduct coun-seling activities in accordance with in-structions contained in CommissionManagement Directives. When advisedthat a complaint has been filed by anaggrieved person, the Counselor shallsubmit a written report within 15 daysto the agency office that has been des-ignated to accept complaints and theaggrieved person concerning the issuesdiscussed and actions taken duringcounseling.

(d) Unless the aggrieved personagrees to a longer counseling periodunder paragraph (e) of this section, orthe aggrieved person chooses an alter-native dispute resolution procedure inaccordance with paragraph (b)(2) ofthis section, the Counselor shall con-duct the final interview with the ag-grieved person within 30 days of thedate the aggrieved person contactedthe agency’s EEO office to requestcounseling. If the matter has not beenresolved, the aggrieved person shall beinformed in writing by the Counselor,not later than the thirtieth day aftercontacting the Counselor, of the rightto file a discrimination complaint. Thenotice shall inform the complainant ofthe right to file a discrimination com-plaint within 15 days of receipt of thenotice, of the appropriate official withwhom to file a complaint and of thecomplainant’s duty to assure that theagency is informed immediately if thecomplainant retains counsel or a rep-resentative.


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(e) Prior to the end of the 30-day pe-riod, the aggrieved person may agree inwriting with the agency to postponethe final interview and extend thecounseling period for an additional pe-riod of no more than 60 days. If thematter has not been resolved before theconclusion of the agreed extension, thenotice described in paragraph (d) ofthis section shall be issued.

(f) Where the aggrieved person choos-es to participate in an alternative dis-pute resolution procedure in accord-ance with paragraph (b)(2) of this sec-tion, the pre-complaint processing pe-riod shall be 90 days. If the claim hasnot been resolved before the 90th day,the notice described in paragraph (d) ofthis section shall be issued.

(g) The Counselor shall not attemptin any way to restrain the aggrievedperson from filing a complaint. TheCounselor shall not reveal the identityof an aggrieved person who consultedthe Counselor, except when authorizedto do so by the aggrieved person, oruntil the agency has received a dis-crimination complaint under this partfrom that person involving that samematter.


§ 1614.106 Individual complaints.(a) A complaint must be filed with

the agency that allegedly discrimi-nated against the complainant.

(b) A complaint must be filed within15 days of receipt of the notice requiredby § 1614.105 (d), (e) or (f).

(c) A complaint must contain asigned statement from the personclaiming to be aggrieved or that per-son’s attorney. This statement must besufficiently precise to identify the ag-grieved individual and the agency andto describe generally the action(s) orpractice(s) that form the basis of thecomplaint. The complaint must alsocontain a telephone number and ad-dress where the complainant or therepresentative can be contacted.

(d) A complainant may amend a com-plaint at any time prior to the conclu-sion of the investigation to includeissues or claims like or related to thoseraised in the complaint. After request-ing a hearing, a complainant may file amotion with the administrative judge

to amend a complaint to include issuesor claims like or related to those raisedin the complaint.

(e) The agency shall acknowledge re-ceipt of a complaint or an amendmentto a complaint in writing and informthe complainant of the date on whichthe complaint or amendment was filed.The agency shall advise the complain-ant in the acknowledgment of theEEOC office and its address where a re-quest for a hearing shall be sent. Suchacknowledgment shall also advise thecomplainant that:

(1) The complainant has the right toappeal the final action on or dismissalof a complaint; and

(2) The agency is required to conductan impartial and appropriate investiga-tion of the complaint within 180 days ofthe filing of the complaint unless theparties agree in writing to extend thetime period. When a complaint hasbeen amended, the agency shall com-plete its investigation within the ear-lier of 180 days after the last amend-ment to the complaint or 360 days afterthe filing of the original complaint, ex-cept that the complainant may requesta hearing from an administrative judgeon the consolidated complaints anytime after 180 days from the date of thefirst filed complaint.


§ 1614.107 Dismissals of complaints.(a) Prior to a request for a hearing in

a case, the agency shall dismiss an en-tire complaint:

(1) That fails to state a claim under§ 1614.103 or § 1614.106(a) or states thesame claim that is pending before orhas been decided by the agency or Com-mission;

(2) That fails to comply with the ap-plicable time limits contained in§§ 1614.105, 1614.106 and 1614.204(c), un-less the agency extends the time limitsin accordance with § 1614.604(c), or thatraises a matter that has not beenbrought to the attention of a Counselorand is not like or related to a matterthat has been brought to the attentionof a Counselor;

(3) That is the basis of a pending civilaction in a United States DistrictCourt in which the complainant is aparty provided that at least 180 days


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have passed since the filing of the ad-ministrative complaint, or that wasthe basis of a civil action decided by aUnited States District Court in whichthe complainant was a party;

(4) Where the complainant has raisedthe matter in a negotiated grievanceprocedure that permits allegations ofdiscrimination or in an appeal to theMerit Systems Protection Board and§ 1614.301 or § 1614.302 indicates that thecomplainant has elected to pursue thenon-EEO process;

(5) That is moot or alleges that a pro-posal to take a personnel action, orother preliminary step to taking a per-sonnel action, is discriminatory;

(6) Where the complainant cannot belocated, provided that reasonable ef-forts have been made to locate thecomplainant and the complainant hasnot responded within 15 days to a no-tice of proposed dismissal sent to his orher last known address;

(7) Where the agency has providedthe complainant with a written requestto provide relevant information or oth-erwise proceed with the complaint, andthe complainant has failed to respondto the request within 15 days of its re-ceipt or the complainant’s responsedoes not address the agency’s request,provided that the request included anotice of the proposed dismissal. In-stead of dismissing for failure to co-operate, the complaint may be adju-dicated if sufficient information forthat purpose is available;

(8) That alleges dissatisfaction withthe processing of a previously filedcomplaint; or

(9) Where the agency, strictly apply-ing the criteria set forth in Commis-sion decisions, finds that the complaintis part of a clear pattern of misuse ofthe EEO process for a purpose otherthan the prevention and elimination ofemployment discrimination. A clearpattern of misuse of the EEO processrequires:

(i) Evidence of multiple complaintfilings; and

(ii) Allegations that are similar oridentical, lack specificity or involvematters previously resolved; or

(iii) Evidence of circumventing otheradministrative processes, retaliatingagainst the agency’s in-house adminis-

trative processes or overburdening theEEO complaint system.

(b) Where the agency believes thatsome but not all of the claims in acomplaint should be dismissed for thereasons contained in paragraphs (a)(1)through (9) of this section, the agencyshall notify the complainant in writingof its determination, the rationale forthat determination and that thoseclaims will not be investigated, andshall place a copy of the notice in theinvestigative file. A determinationunder this paragraph is reviewable byan administrative judge if a hearing isrequested on the remainder of the com-plaint, but is not appealable until finalaction is taken on the remainder of thecomplaint.


§ 1614.108 Investigation of complaints.

(a) The investigation of complaintsshall be conducted by the agencyagainst which the complaint has beenfiled.

(b) In accordance with instructionscontained in Commission ManagementDirectives, the agency shall develop animpartial and appropriate factualrecord upon which to make findings onthe claims raised by the written com-plaint. An appropriate factual record isone that allows a reasonable fact finderto draw conclusions as to whether dis-crimination occurred. Agencies mayuse an exchange of letters or memo-randa, interrogatories, investigations,fact-finding conferences or any otherfact-finding methods that efficientlyand thoroughly address the matters atissue. Agencies are encouraged to in-corporate alternative dispute resolu-tion techniques into their investigativeefforts in order to promote early reso-lution of complaints.

(c) The procedures in paragraphs (c)(1) through (3) of this section apply tothe investigation of complaints:

(1) The complainant, the agency, andany employee of a Federal agency shallproduce such documentary and testi-monial evidence as the investigatordeems necessary.


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(2) Investigators are authorized toadminister oaths. Statements of wit-nesses shall be made under oath or af-firmation or, alternatively, by writtenstatement under penalty of perjury.

(3) When the complainant, or theagency against which a complaint isfiled, or its employees fail withoutgood cause shown to respond fully andin timely fashion to requests for docu-ments, records, comparative data, sta-tistics, affidavits, or the attendance ofwitness(es), the investigator may notein the investigative record that the de-cisionmaker should, or the Commissionon appeal may, in appropriate cir-cumstances:

(i) Draw an adverse inference thatthe requested information, or the testi-mony of the requested witness, wouldhave reflected unfavorably on theparty refusing to provide the requestedinformation;

(ii) Consider the matters to whichthe requested information or testi-mony pertains to be established infavor of the opposing party;

(iii) Exclude other evidence offeredby the party failing to produce the re-quested information or witness;

(iv) Issue a decision fully or partiallyin favor of the opposing party; or

(v) Take such other actions as itdeems appropriate.

(d) Any investigation will be con-ducted by investigators with appro-priate security clearances. The Com-mission will, upon request, supply theagency with the name of an investi-gator with appropriate security clear-ances.

(e) The agency shall complete its in-vestigation within 180 days of the dateof filing of an individual complaint orwithin the time period contained in anorder from the Office of Federal Oper-ations on an appeal from a dismissalpursuant to § 1614.107. By written agree-ment within those time periods, thecomplainant and the respondent agen-cy may voluntarily extend the time pe-riod for not more than an additional 90days. The agency may unilaterally ex-tend the time period or any period ofextension for not more than 30 dayswhere it must sanitize a complaint filethat may contain information classi-fied pursuant to Exec. Order No. 12356,or successor orders, as secret in the in-

terest of national defense or foreignpolicy, provided the investigatingagency notifies the parties of the ex-tension.

(f) Within 180 days from the filing ofthe complaint, or where a complaintwas amended, within the earlier of 180days after the last amendment to thecomplaint or 360 days after the filing ofthe original complaint, within the timeperiod contained in an order from theOffice of Federal Operations on an ap-peal from a dismissal, or within any pe-riod of extension provided for in para-graph (e) of this section, the agencyshall provide the complainant with acopy of the investigative file, and shallnotify the complainant that, within 30days of receipt of the investigative file,the complainant has the right to re-quest a hearing and decision from anadministrative judge or may request animmediate final decision pursuant to§ 1614.110 from the agency with whichthe complaint was filed.

(g) Where the complainant has re-ceived the notice required in paragraph(f) of this section or at any time after180 days have elapsed from the filing ofthe complaint, the complainant mayrequest a hearing by submitting a writ-ten request for a hearing directly tothe EEOC office indicated in the agen-cy’s acknowledgment letter. The com-plainant shall send a copy of the re-quest for a hearing to the agency EEOoffice. Within 15 days of receipt of therequest for a hearing, the agency shallprovide a copy of the complaint file toEEOC and, if not previously provided,to the complainant.


§ 1614.109 Hearings.(a) When a complainant requests a

hearing, the Commission shall appointan administrative judge to conduct ahearing in accordance with this sec-tion. Upon appointment, the adminis-trative judge shall assume full respon-sibility for the adjudication of thecomplaint, including overseeing the de-velopment of the record. Any hearingwill be conducted by an administrativejudge or hearing examiner with appro-priate security clearances.

(b) Dismissals. Administrative judgesmay dismiss complaints pursuant to


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§ 1614.107, on their own initiative, afternotice to the parties, or upon an agen-cy’s motion to dismiss a complaint.

(c) Offer of resolution. (1) Any timeafter the filing of the written com-plaint but not later than the date anadministrative judge is appointed toconduct a hearing, the agency maymake an offer of resolution to a com-plainant who is represented by an at-torney.

(2) Any time after the parties havereceived notice that an administrativejudge has been appointed to conduct ahearing, but not later than 30 daysprior to the hearing, the agency maymake an offer of resolution to the com-plainant, whether represented by an at-torney or not.

(3) The offer of resolution shall be inwriting and shall include a notice ex-plaining the possible consequences offailing to accept the offer. The agen-cy’s offer, to be effective, must includeattorney’s fees and costs and mustspecify any non-monetary relief. Withregard to monetary relief, an agencymay make a lump sum offer coveringall forms of monetary liability, or itmay itemize the amounts and types ofmonetary relief being offered. Thecomplainant shall have 30 days fromreceipt of the offer of resolution to ac-cept it. If the complainant fails to ac-cept an offer of resolution and the re-lief awarded in the administrativejudge’s decision, the agency’s final de-cision, or the Commission decision onappeal is not more favorable than theoffer, then, except where the interest ofjustice would not be served, the com-plainant shall not receive paymentfrom the agency of attorney’s fees orcosts incurred after the expiration ofthe 30-day acceptance period. An ac-ceptance of an offer must be in writingand will be timely if postmarked or re-ceived within the 30-day period. Wherea complainant fails to accept an offerof resolution, an agency may makeother offers of resolution and eitherparty may seek to negotiate a settle-ment of the complaint at any time.

(d) Discovery. The administrativejudge shall notify the parties of theright to seek discovery prior to thehearing and may issue such discoveryorders as are appropriate. Unless theparties agree in writing concerning the

methods and scope of discovery, theparty seeking discovery shall requestauthorization from the administrativejudge prior to commencing discovery.Both parties are entitled to reasonabledevelopment of evidence on mattersrelevant to the issues raised in thecomplaint, but the administrativejudge may limit the quantity and tim-ing of discovery. Evidence may be de-veloped through interrogatories, depo-sitions, and requests for admissions,stipulations or production of docu-ments. It shall be grounds for objectionto producing evidence that the infor-mation sought by either party is irrele-vant, overburdensome, repetitious, orprivileged.

(e) Conduct of hearing. Agencies shallprovide for the attendance at a hearingof all employees approved as witnessesby an administrative judge. Attend-ance at hearings will be limited to per-sons determined by the administrativejudge to have direct knowledge relat-ing to the complaint. Hearings are partof the investigative process and arethus closed to the public. The adminis-trative judge shall have the power toregulate the conduct of a hearing, limitthe number of witnesses where testi-mony would be repetitious, and excludeany person from the hearing for con-tumacious conduct or misbehavior thatobstructs the hearing. The administra-tive judge shall receive into evidenceinformation or documents relevant tothe complaint. Rules of evidence shallnot be applied strictly, but the admin-istrative judge shall exclude irrelevantor repetitious evidence. The adminis-trative judge or the Commission mayrefer to the Disciplinary Committee ofthe appropriate Bar Association anyattorney or, upon reasonable noticeand an opportunity to be heard, sus-pend or disqualify from representingcomplainants or agencies in EEOChearings any representative who re-fuses to follow the orders of an admin-istrative judge, or who otherwise en-gages in improper conduct.

(f) Procedures. (1) The complainant,an agency, and any employee of a Fed-eral agency shall produce such docu-mentary and testimonial evidence asthe administrative judge deems nec-essary. The administrative judge shall


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serve all orders to produce evidence onboth parties.

(2) Administrative judges are author-ized to administer oaths. Statements ofwitnesses shall be made under oath oraffirmation or, alternatively, by writ-ten statement under penalty of per-jury.

(3) When the complainant, or theagency against which a complaint isfiled, or its employees fail withoutgood cause shown to respond fully andin timely fashion to an order of an ad-ministrative judge, or requests for theinvestigative file, for documents,records, comparative data, statistics,affidavits, or the attendance of wit-ness(es), the administrative judgeshall, in appropriate circumstances:

(i) Draw an adverse inference thatthe requested information, or the testi-mony of the requested witness, wouldhave reflected unfavorably on theparty refusing to provide the requestedinformation;

(ii) Consider the matters to whichthe requested information or testi-mony pertains to be established infavor of the opposing party;

(iii) Exclude other evidence offeredby the party failing to produce the re-quested information or witness;

(iv) Issue a decision fully or partiallyin favor of the opposing party; or

(v) Take such other actions as appro-priate.

(g) Decisions without hearing. (1) If aparty believes that some or all mate-rial facts are not in genuine disputeand there is no genuine issue as tocredibility, the party may, at least 15days prior to the date of the hearing orat such earlier time as required by theadministrative judge, file a statementwith the administrative judge prior tothe hearing setting forth the fact orfacts and referring to the parts of therecord relied on to support the state-ment. The statement must dem-onstrate that there is no genuine issueas to any such material fact. The partyshall serve the statement on the oppos-ing party.

(2) The opposing party may file anopposition within 15 days of receipt ofthe statement in paragraph (d)(1) ofthis section. The opposition may referto the record in the case to rebut thestatement that a fact is not in dispute

or may file an affidavit stating thatthe party cannot, for reasons stated,present facts to oppose the request.After considering the submissions, theadministrative judge may order thatdiscovery be permitted on the fact orfacts involved, limit the hearing to theissues remaining in dispute, issue a de-cision without a hearing or make suchother ruling as is appropriate.

(3) If the administrative judge deter-mines upon his or her own initiativethat some or all facts are not in gen-uine dispute, he or she may, after giv-ing notice to the parties and providingthem an opportunity to respond inwriting within 15 calendar days, issuean order limiting the scope of the hear-ing or issue a decision without holdinga hearing.

(h) Record of hearing. The hearingshall be recorded and the agency shallarrange and pay for verbatim tran-scripts. All documents submitted to,and accepted by, the administrativejudge at the hearing shall be made partof the record of the hearing. If theagency submits a document that is ac-cepted, it shall furnish a copy of thedocument to the complainant. If thecomplainant submits a document thatis accepted, the administrative judgeshall make the document available tothe agency representative for reproduc-tion.

(i) Decisions by administrative judges.Unless the administrative judge makesa written determination that goodcause exists for extending the time forissuing a decision, an administrativejudge shall issue a decision on the com-plaint, and shall order appropriateremedies and relief where discrimina-tion is found, within 180 days of receiptby the administrative judge of thecomplaint file from the agency. Theadministrative judge shall send copiesof the hearing record, including thetranscript, and the decision to the par-ties. If an agency does not issue a finalorder within 40 days of receipt of theadministrative judge’s decision in ac-cordance with 1614.110, then the deci-sion of the administrative judge shallbecome the final action of the agency.



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§ 1614.110 Final action by agencies.(a) Final action by an agency following

a decision by an administrative judge.When an administrative judge hasissued a decision under § 1614.109(b), (g)or (i), the agency shall take final ac-tion on the complaint by issuing a finalorder within 40 days of receipt of thehearing file and the administrativejudge’s decision. The final order shallnotify the complainant whether or notthe agency will fully implement the de-cision of the administrative judge andshall contain notice of the complain-ant’s right to appeal to the Equal Em-ployment Opportunity Commission,the right to file a civil action in federaldistrict court, the name of the properdefendant in any such lawsuit and theapplicable time limits for appeals andlawsuits. If the final order does notfully implement the decision of the ad-ministrative judge, then the agencyshall simultaneously file an appeal inaccordance with § 1614.403 and append acopy of the appeal to the final order. Acopy of EEOC Form 573 shall be at-tached to the final order.

(b) Final action by an agency in allother circumstances. When an agencydismisses an entire complaint under§ 1614.107, receives a request for an im-mediate final decision or does not re-ceive a reply to the notice issued under§ 1614.108(f), the agency shall take finalaction by issuing a final decision. Thefinal decision shall consist of findingsby the agency on the merits of eachissue in the complaint, or, as appro-priate, the rationale for dismissing anyclaims in the complaint and, when dis-crimination is found, appropriate rem-edies and relief in accordance with sub-part E of this part. The agency shallissue the final decision within 60 daysof receiving notification that a com-plainant has requested an immediatedecision from the agency, or within 60days of the end of the 30-day period forthe complainant to request a hearingor an immediate final decision wherethe complainant has not requested ei-ther a hearing or a decision. The finalaction shall contain notice of the rightto appeal the final action to the EqualEmployment Opportunity Commission,the right to file a civil action in federaldistrict court, the name of the proper

defendant in any such lawsuit and theapplicable time limits for appeals andlawsuits. A copy of EEOC Form 573shall be attached to the final action.

[64 FR 37657, July 12, 1999]

Subpart B—Provisions Applicableto Particular Complaints

§ 1614.201 Age Discrimination in Em-ployment Act.

(a) As an alternative to filing a com-plaint under this part, an aggrieved in-dividual may file a civil action in aUnited States district court under theADEA against the head of an allegeddiscriminating agency after giving theCommission not less than 30 days’ no-tice of the intent to file such an action.Such notice must be filed in writingwith EEOC, at P.O. Box 19848, Wash-ington, DC 20036, or by personal deliv-ery or facsimile within 180 days of theoccurrence of the alleged unlawfulpractice.

(b) The Commission may exempt aposition from the provisions of theADEA if the Commission establishes amaximum age requirement for the po-sition on the basis of a determinationthat age is a bona fide occupationalqualification necessary to the perform-ance of the duties of the position.

(c) When an individual has filed anadministrative complaint alleging agediscrimination that is not a mixedcase, administrative remedies will beconsidered to be exhausted for purposesof filing a civil action:

(1) 180 days after the filing of an indi-vidual complaint if the agency has nottaken final action and the individualhas not filed an appeal or 180 days afterthe filing of a class complaint if theagency has not issued a final decision;

(2) After final action on an individualor class complaint if the individual hasnot filed an appeal; or

(3) After the issuance of a final deci-sion by the Commission on an appealor 180 days after the filing of an appealif the Commission has not issued afinal decision.



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§ 1614.202 Equal Pay Act.(a) In its enforcement of the Equal

Pay Act, the Commission has the au-thority to investigate an agency’s em-ployment practices on its own initia-tive at any time in order to determinecompliance with the provisions of theAct. The Commission will provide no-tice to the agency that it will be initi-ating an investigation.

(b) Complaints alleging violations ofthe Equal Pay Act shall be processedunder this part.

§ 1614.203 Rehabilitation Act.(a) Definitions—(1) Individual with

handicap(s) is defined for this sectionas one who:

(i) Has a physical or mental impair-ment which substantially limits one ormore of such person’s major life activi-ties;

(ii) Has a record of such an impair-ment; or

(iii) Is regarded as having such an im-pairment.

(2) Physical or mental impairmentmeans:

(i) Any physiological disorder or con-dition, cosmetic disfigurement, or ana-tomical loss affecting one or more ofthe following body systems: Neuro-logical, musculoskeletal, special senseorgans, cardiovascular, reproductive,digestive, respiratory, genitourinary,hemic and lymphatic, skin, and endo-crine; or

(ii) Any mental or psychological dis-order, such as mental retardation, or-ganic brain syndrome, emotional ormental illness, and specific learningdisabilities.

(3) Major life activities means func-tions, such as caring for one’s self, per-forming manual tasks, walking, seeing,hearing, speaking, breathing, learning,and working.

(4) Has a record of such an impairmentmeans has a history of, or has beenclassified (or misclassified) as having, amental or physical impairment thatsubstantially limits one or more majorlife activities.

(5) Is regarded as having such an im-pairment means has a physical or men-tal impairment that does not substan-tially limit major life activities but istreated by an employer as constitutingsuch a limitation; has a physical or

mental impairment that substantiallylimits major life activities only as a re-sult of the attitude of an employer to-ward such impairment; or has none ofthe impairments defined in paragraph(a)(2) of this section but is treated byan employer as having such an impair-ment.

(6) Qualified individual with handicapsmeans with respect to employment, anindividual with handicaps who, with orwithout reasonable accommodation,can perform the essential functions ofthe position in question without endan-gering the health and safety of the in-dividual or others and who, dependingupon the type of appointing authoritybeing used:

(i) Meets the experience or educationrequirements (which may include pass-ing a written test) of the position inquestion; or

(ii) Meets the criteria for appoint-ment under one of the special appoint-ing authorities for individuals withhandicaps.

(b) The Federal Government shall be-come a model employer of individualswith handicaps. Agencies shall give fullconsideration to the hiring, placement,and advancement of qualified individ-uals with mental and physical handi-caps. An agency shall not discriminateagainst a qualified individual withphysical or mental handicaps.

(c) Reasonable accommodation. (1) Anagency shall make reasonable accom-modation to the known physical ormental limitations of an applicant oremployee who is a qualified individualwith handicaps unless the agency candemonstrate that the accommodationwould impose an undue hardship on theoperations of its program.

(2) Reasonable accommmodation mayinclude, but shall not be limited to:

(i) Making facilities readily acces-sible to and usable by individuals withhandicaps; and

(ii) Job restructuring, part-time ormodified work schedules, acquisitionor modification of equipment or de-vices, appropriate adjustment or modi-fication of examinations, the provisionof readers and interpreters, and othersimilar actions.

(3) In determining whether, pursuantto paragraph (c)(1) of this section, anaccommodation would impose an undue


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hardship on the operation of the agen-cy in question, factors to be consideredinclude:

(i) The overall size of the agency’sprogram with respect to the number ofemployees, number and type of facili-ties and size of budget;

(ii) The type of agency operation, in-cluding the composition and structureof the agency’s work force; and

(iii) The nature and the cost of theaccommodation.

(d) Employment criteria. (1) An agencymay not make use of any employmenttest or other selection criterion thatscreens out or tends to screen outqualified individuals with handicaps orany class of individuals with handicapsunless:

(i) The agency demonstrates that thetest score or other selection criterionis job-related for the position in ques-tion and consistent with business ne-cessity; and

(ii) OPM or other examining author-ity shows that job-related alternativetests, or the agency shows that job-re-lated alternative criteria, that do notscreen out or tend to screen out asmany individuals with handicaps areunavailable.

(2) An agency shall select and admin-ister tests concerning employment soas to insure that, when administered toan applicant or employee who has ahandicap that impairs sensory, man-ual, or speaking skills, the test resultsaccurately reflect the applicant’s oremployee’s ability to perform the posi-tion or type of positions in questionrather than reflecting the applicant’sor employee’s impaired sensory, man-ual, or speaking skill (except wherethose skills are the factors that thetest purports to measure).

(e) Preemployment inquiries. (1) Exceptas provided in paragraphs (e)(2) and(e)(3) of this section, an agency maynot conduct a preemployment medicalexamination and may not make pre-employment inquiry of an applicant asto whether the applicant is an indi-vidual with handicaps or as to the na-ture or severity of a handicap. Anagency may, however, make pre-employment inquiry into an appli-cant’s ability to meet the essentialfunctions of the job, or the medicalqualification requirements if applica-

ble, with or without reasonable accom-modation, of the position in question,i.e., the minimum abilities necessaryfor safe and efficient performance ofthe duties of the position in question.The Office of Personnel Managementmay also make an inquiry as to the na-ture and extent of a handicap for thepurpose of special testing.

(2) Nothing in this section shall pro-hibit an agency from conditioning anoffer of employment on the results of amedical examination conducted priorto the employee’s entrance on duty,provided that: all entering employeesare subjected to such an examinationregardless of handicap or when the pre-employment medical questionnaireused for positions that do not routinelyrequire medical examination indicatesa condition for which further examina-tion is required because of the job-re-lated nature of the condition, and theresults of such an examination are usedonly in accordance with the require-ments of this part. Nothing in this sec-tion shall be construed to prohibit thegathering of preemployment medicalinformation for the purposes of specialappointing authorities for individualswith handicaps.

(3) To enable and evaluate affirma-tive action to hire, place or advance in-dividuals with handicaps, the agencymay invite applicants for employmentto indicate whether and to what extentthey are handicapped, if:

(i) The agency states clearly on anywritten questionnaire used for this pur-pose or makes clear orally if no writtenquestionnaire is used, that the infor-mation requested is intended for usesolely in conjunction with affirmativeaction; and

(ii) The agency states clearly thatthe information is being requested on avoluntary basis, that refusal to provideit will not subject the applicant or em-ployee to any adverse treatment, andthat it will be used only in accordancewith this part.

(4) Information obtained in accord-ance with this section as to the med-ical condition or history of the appli-cant shall be kept confidential exceptthat:

(i) Managers, selecting officials, andothers involved in the selection processor responsible for affirmative action


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may be informed that an applicant iseligible under special appointing au-thority for the disabled;

(ii) Supervisors and managers may beinformed regarding necessary accom-modations;

(iii) First aid and safety personnelmay be informed, where appropriate, ifthe condition might require emergencytreatment;

(iv) Government officials inves-tigating compliance with laws, regula-tions, and instructions relevant toequal employment opportunity and af-firmative action for individuals withhandicaps shall be provided informa-tion upon request; and

(v) Statistics generated from infor-mation obtained may be used to man-age, evaluate, and report on equal em-ployment opportunity and affirmativeaction programs.

(f) Physical access to buildings. (1) Anagency shall not discriminate againstapplicants or employees who are quali-fied individuals with handicaps due tothe inaccessibility of its facility.

(2) For the purpose of this subpart, afacility shall be deemed accessible if itis in compliance with the ArchitecturalBarriers Act of 1968 (42 U.S.C. 4151 etseq.) and the Americans with Disabil-ities Act of 1990 (42 U.S.C. 12183 and12204).

(g) Reassignment. When a nonproba-tionary employee becomes unable toperform the essential functions of hisor her position even with reasonableaccommodation due to a handicap, anagency shall offer to reassign the indi-vidual to a funded vacant position lo-cated in the same commuting area andserviced by the same appointing au-thority, and at the same grade or level,the essential functions of which the in-dividual would be able to perform withreasonable accommodation if necessaryunless the agency can demonstratethat the reassignment would impose anundue hardship on the operation of itsprogram. In the absence of a positionat the same grade or level, an offer ofreassignment to a vacant position atthe highest available grade or levelbelow the employee’s current grade orlevel shall be required, but availabilityof such a vacancy shall not affect theemployee’s entitlement, if any, to dis-ability retirement pursuant to 5 U.S.C.

8337 or 5 U.S.C. 8451. If the agency hasalready posted a notice or announce-ment seeking applications for a spe-cific vacant position at the time theagency has determined that the non-probationary employee is unable toperform the essential functions of hisor her position even with reasonableaccommodation, then the agency doesnot have an obligation under this sec-tion to offer to reassign the individualto that position, but the agency mustconsider the individual on an equalbasis with those who applied for the po-sition. For the purpose of this para-graph, an employee of the UnitedStates Postal Service shall not be con-sidered qualified for any offer of reas-signment that would be inconsistentwith the terms of any applicable col-lective bargaining agreement.

(h) Exclusion from definition of ‘‘indi-vidual(s) with handicap(s)’’. (1) The term‘‘individual with handicap(s)’’ shall notinclude an individual who is currentlyengaging in the illegal use of drugs,when an agency acts on the basis ofsuch use. The term ‘‘drug’’ means acontrolled substance, as defined inschedules I through V of section 202 ofthe Controlled Substances Act (21U.S.C. 812). The term ‘‘illegal use ofdrugs’’ means the use of drugs, the pos-session or distribution of which is un-lawful under the Controlled SubstancesAct, but does not include the use of adrug taken under supervision by a li-censed health care professional, orother uses authorized by the ControlledSubstances Act or other provisions ofFederal law. This exclusion, however,does not exclude an individual withhandicaps who:

(i) Has successfully completed a su-pervised drug rehabilitation programand is no longer engaging in the illegaluse of drugs, or has otherwise been re-habilitated successfully and is nolonger engaging in such use;

(ii) Is participating in a supervisedrehabilitation program and is no longerengaging in such use; or

(iii) Is erroneously regarded as engag-ing in such use, but is not engaging insuch use.

(2) Except that it shall not violatethis section for an agency to adopt oradminister reasonable policies or pro-cedures, including but not limited to


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drug testing, designed to ensure thatan individual described in paragraph(h)(1) (i) and (ii) of this section is nolonger engaging in the illegal use ofdrugs.

§ 1614.204 Class complaints.(a) Definitions. (1) A class is a group of

employees, former employees or appli-cants for employment who, it is al-leged, have been or are being adverselyaffected by an agency personnel man-agement policy or practice that dis-criminates against the group on thebasis of their race, color, religion, sex,national origin, age or handicap.

(2) A class complaint is a written com-plaint of discrimination filed on behalfof a class by the agent of the class al-leging that:

(i) The class is so numerous that aconsolidated complaint of the membersof the class is impractical;

(ii) There are questions of fact com-mon to the class;

(iii) The claims of the agent of theclass are typical of the claims of theclass;

(iv) The agent of the class, or, if rep-resented, the representative, will fairlyand adequately protect the interests ofthe class.

(3) An agent of the class is a classmember who acts for the class duringthe processing of the class complaint.

(b) Pre-complaint processing. An em-ployee or applicant who wishes to file aclass complaint must seek counselingand be counseled in accordance with§ 1614.105. A complainant may move forclass certification at any reasonablepoint in the process when it becomesapparent that there are class implica-tions to the claim raised in an indi-vidual complaint. If a complainantmoves for class certification after com-pleting the counseling process con-tained in § 1614.105, no additional coun-seling is required. The administrativejudge shall deny class certificationwhen the complainant has unduly de-layed in moving for certification.

(c) Filing and presentation of a classcomplaint. (1) A class complaint mustbe signed by the agent or representa-tive and must identify the policy orpractice adversely affecting the classas well as the specific action or matteraffecting the class agent.

(2) The complaint must be filed withthe agency that allegedly discrimi-nated not later than 15 days after theagent’s receipt of the notice of right tofile a class complaint.

(3) The complaint shall be processedpromptly; the parties shall cooperateand shall proceed at all times withoutundue delay.

(d) Acceptance or dismissal. (1) Within30 days of an agency’s receipt of a com-plaint, the agency shall: Designate anagency representative who shall not beany of the individuals referenced in§ 1614.102(b)(3), and forward the com-plaint, along with a copy of the Coun-selor’s report and any other informa-tion pertaining to timeliness or otherrelevant circumstances related to thecomplaint, to the Commission. TheCommission shall assign the complaintto an administrative judge or com-plaints examiner with a proper secu-rity clearance when necessary. The ad-ministrative judge may require thecomplainant or agency to submit addi-tional information relevant to thecomplaint.

(2) The administrative judge may dis-miss the complaint, or any portion, forany of the reasons listed in § 1614.107 orbecause it does not meet the pre-requisites of a class complaint under§ 1614.204(a)(2).

(3) If the allegation is not included inthe Counselor’s report, the administra-tive judge shall afford the agent 15days to state whether the matter wasdiscussed with the Counselor and, ifnot, explain why it was not discussed.If the explanation is not satisfactory,the administrative judge shall dismissthe allegation. If the explanation issatisfactory, the administrative judgeshall refer the allegation to the agencyfor further counseling of the agent.After counseling, the allegation shallbe consolidated with the class com-plaint.

(4) If an allegation lacks specificityand detail, the administrative judgeshall afford the agent 15 days to pro-vide specific and detailed information.The administrative judge shall dismissthe complaint if the agent fails to pro-vide such information within the speci-fied time period. If the information


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provided contains new allegations out-side the scope of the complaint, the ad-ministrative judge shall advise theagent how to proceed on an individualor class basis concerning these allega-tions.

(5) The administrative judge shall ex-tend the time limits for filing a com-plaint and for consulting with a Coun-selor in accordance with the time limitextension provisions contained in§§ 1614.105(a)(2) and 1614.604.

(6) When appropriate, the administra-tive judge may decide that a class bedivided into subclasses and that eachsubclass be treated as a class, and theprovisions of this section then shall beconstrued and applied accordingly.

(7) The administrative judge shalltransmit his or her decision to acceptor dismiss a complaint to the agencyand the agent. The agency shall takefinal action by issuing a final orderwithin 40 days of receipt of the hearingrecord and administrative judge’s deci-sion. The final order shall notify theagent whether or not the agency willimplement the decision of the adminis-trative judge. If the final order doesnot implement the decision of the ad-ministrative judge, the agency shall si-multaneously appeal the administra-tive judge’s decision in accordancewith § 1614.403 and append a copy of theappeal to the final order. A dismissal ofa class complaint shall inform theagent either that the complaint isbeing filed on that date as an indi-vidual complaint of discrimination andwill be processed under subpart A orthat the complaint is also dismissed asan individual complaint in accordancewith § 1614.107. In addition, it shall in-form the agent of the right to appealthe dismissal of the class complaint tothe Equal Employment OpportunityCommission or to file a civil action andshall include EEOC Form 573, Notice ofAppeal/Petition.

(e) Notification. (1) Within 15 days ofreceiving notice that the administra-tive judge has accepted a class com-plaint or a reasonable time frame spec-ified by the administrative judge, theagency shall use reasonable means,such as delivery, mailing to last knownaddress or distribution, to notify allclass members of the acceptance of theclass complaint.

(2) Such notice shall contain:(i) The name of the agency or organi-

zational segment, its location, and thedate of acceptance of the complaint;

(ii) A description of the issues ac-cepted as part of the class complaint;

(iii) An explanation of the bindingnature of the final decision or resolu-tion of the complaint on class mem-bers; and

(iv) The name, address and telephonenumber of the class representative.

(f) Obtaining evidence concerning thecomplaint. (1) The administrative judgenotify the agent and the agency rep-resentative of the time period that willbe allowed both parties to prepare theircases. This time period will include atleast 60 days and may be extended bythe administrative judge upon the re-quest of either party. Both parties areentitled to reasonable development ofevidence on matters relevant to theissues raised in the complaint. Evi-dence may be developed through inter-rogatories, depositions, and requestsfor admissions, stipulations or produc-tion of documents. It shall be groundsfor objection to producing evidencethat the information sought by eitherparty is irrelevant, overburdensome,repetitious, or privileged.

(2) If mutual cooperation fails, eitherparty may request the administrativejudge to rule on a request to developevidence. If a party fails without goodcause shown to respond fully and intimely fashion to a request made or ap-proved by the administrative judge fordocuments, records, comparative data,statistics or affidavits, and the infor-mation is solely in the control of oneparty, such failure may, in appropriatecircumstances, caused the administra-tive judge:

(i) To draw an adverse inference thatthe requested information would havereflected unfavorably on the party re-fusing to provide the requested infor-mation;

(ii) To consider the matters to whichthe requested information pertains tobe established in favor of the opposingparty;

(iii) To exclude other evidence of-fered by the party failing to producethe requested information;


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(iv) To recommend that a decision beentered in favor of the opposing party;or

(v) To take such other actions as theadministrative judge deems appro-priate.

(3) During the period for developmentof evidence, the administrative judgemay, in his or her discretion, directthat an investigation of facts relevantto the complaint or any portion be con-ducted by an agency certified by theCommission.

(4) Both parties shall furnish to theadministrative judge copies of all ma-terials that they wish to be examinedand such other material as may be re-quested.

(g) Opportunity for resolution of thecomplaint. (1) The administrative judgeshall furnish the agent and the rep-resentative of the agency a copy of allmaterials obtained concerning thecomplaint and provide opportunity forthe agent to discuss materials with theagency representative and attempt res-olution of the complaint.

(2) The complaint may be resolved byagreement of the agency and the agentat any time pursuant to the notice andapproval procedure contained in para-graph (g)(4) of this section.

(3) If the complaint is resolved, theterms of the resolution shall be re-duced to writing and signed by theagent and the agency.

(4) Notice of the resolution shall begiven to all class members in the samemanner as notification of the accept-ance of the class complaint and to theadministrative judge. It shall state therelief, if any, to be granted by theagency and the name and address ofthe EEOC administrative judge as-signed to the case. It shall state thatwithin 30 days of the date of the noticeof resolution, any member of the classmay petition the administrative judgeto vacate the resolution because it ben-efits only the class agent, or is other-wise not fair, adequate and reasonableto the class as a whole. The adminis-trative judge shall review the notice ofresolution and consider any petitionsto vacate filed. If the administrativejudge finds that the proposed resolu-tion is not fair, adequate and reason-able to the class as a whole, the admin-istrative judge shall issue a decision

vacating the agreement and may re-place the original class agent with apetitioner or some other class memberwho is eligible to be the class agentduring further processing of the classcomplaint. The decision shall informthe former class agent or the petitionerof the right to appeal the decision tothe Equal Employment OpportunityCommission and include EEOC Form573, Notice of Appeal/Petition. If theadministrative judge finds that the res-olution is fair, adequate and reasonableto the class as a whole, the resolutionshall bind all members of the class.

(h) Hearing. On expiration of the pe-riod allowed for preparation of thecase, the administrative judge shall seta date for hearing. The hearing shall beconducted in accordance with 29 CFR1614.109 (a) through (f).

(i) Report of findings and recommenda-tions. (1) The administrative judgeshall transmit to the agency a reportof findings and recommendations onthe complaint, including a rec-ommended decision, systemic relief forthe class and any individual relief,where appropriate, with regard to thepersonnel action or matter that gaverise to the complaint.

(2) If the administrative judge findsno class relief appropriate, he or sheshall determine if a finding of indi-vidual discrimination is warranted and,if so, shall recommend appropriate re-lief.

(3) The administrative judge shall no-tify the agency of the date on whichthe report of findings and recommenda-tions was forwarded to the agency.

(j) Agency decision. (1) Within 60 daysof receipt of the report of findings andrecommendations issued under§ 1614.204(i), the agency shall issue afinal decision, which shall accept, re-ject, or modify the findings and rec-ommendations of the administrativejudge.

(2) The final decision of the agencyshall be in writing and shall be trans-mitted to the agent by certified mail,return receipt requested, along with acopy of the report of findings and rec-ommendations of the administrativejudge.

(3) When the agency’s final decisionis to reject or modify the findings and


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recommendations of the administra-tive judge, the decision shall containspecific reasons for the agency’s ac-tion.

(4) If the agency has not issued afinal decision with 60 days of its receiptof the administrative judge’s report offindings and recommendations, thosefindings and recommendations shallbecome the final decision. The agencyshall transmit the final decision to theagent within five days of the expirationof the 60-day period.

(5) The final decision of the agencyshall require any relief authorized bylaw and determined to be necessary ordesirable to resolve the issue of dis-crimination.

(6) A final decision on a class com-plaint shall, subject to subpart D ofthis part, be binding on all members ofthe class and the agency.

(7) The final decision shall inform theagent of the right to appeal or to file acivil action in accordance with subpartD of this part and of the applicabletime limits.

(k) Notification of decision. The agencyshall notify class members of the finaldecision and relief awarded, if any,through the same media employed togive notice of the existence of the classcomplaint. The notice, where appro-priate, shall include information con-cerning the rights of class members toseek individual relief, and of the proce-dures to be followed. Notice shall begiven by the agency within 10 days ofthe transmittal of its final decision tothe agent.

(l) Relief for individual class members.(1) When discrimination is found, anagency must eliminate or modify theemployment policy or practice out ofwhich the complaint arose and provideindividual relief, including an award ofattorney’s fees and costs, to the agentin accordance with § 1614.501.

(2) When class-wide discrimination isnot found, but it is found that the classagent is a victim of discrimination,§ 1614.501 shall apply. The agency shallalso, within 60 days of the issuance ofthe final decision finding no class-widediscrimination, issue the acknowledge-ment of receipt of an individual com-plaint as required by § 1614.106(d) andprocess in accordance with the provi-sions of subpart A of this part, each in-

dividual complaint that was subsumedinto the class complaint.

(3) When discrimination is found inthe final decision and a class memberbelieves that he or she is entitled to in-dividual relief, the class member mayfile a written claim with the head ofthe agency or its EEO Director within30 days of receipt of notification by theagency of its final decision. Adminis-trative judges shall retain jurisdictionover the complaint in order to resolveany disputed claims by class members.The claim must include a specific, de-tailed showing that the claimant is aclass member who was affected by thediscriminatory policy or practice, andthat this discriminatory action tookplace within the period of time forwhich the agency found class-wide dis-crimination in its final decision. Wherea finding of discrimination against aclass has been made, there shall be apresumption of discrimination as toeach member of the class. The agencymust show by clear and convincing evi-dence that any class member is not en-titled to relief. The administrativejudge may hold a hearing or otherwisesupplement the record on a claim filedby a class member. The agency or theCommission may find class-wide dis-crimination and order remedial actionfor any policy or practice in existencewithin 45 days of the agent’s initialcontact with the Counselor. Relief oth-erwise consistent with this Part maybe ordered for the time the policy orpractice was in effect. The agency shallissue a final decision on each suchclaim within 90 days of filing. Such de-cision must include a notice of theright to file an appeal or a civil actionin accordance with subpart D of thispart and the applicable time limits.


Subpart C—Related Processes

§ 1614.301 Relationship to negotiatedgrievance procedure.

(a) When a person is employed by anagency subject to 5 U.S.C. 7121(d) and iscovered by a collective bargainingagreement that permits allegations ofdiscrimination to be raised in a nego-tiated grievance procedure, a person


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wishing to file a complaint or a griev-ance on a matter of alleged employ-ment discrimination must elect toraise the matter under either part 1614or the negotiated grievance procedure,but not both. An election to proceedunder this part is indicated only by thefiling of a written complaint; use of thepre-complaint process as described in§ 1614.105 does not constitute an elec-tion for purposes of this section. An ag-grieved employee who files a complaintunder this part may not thereafter filea grievance on the same matter. Anelection to proceed under a negotiatedgrievance procedure is indicated by thefiling of a timely written grievance. Anaggrieved employee who files a griev-ance with an agency whose negotiatedagreement permits the acceptance ofgrievances which allege discriminationmay not thereafter file a complaint onthe same matter under this part 1614irrespective of whether the agency hasinformed the individual of the need toelect or of whether the grievance hasraised an issue of discrimination. Anysuch complaint filed after a grievancehas been filed on the same matter shallbe dismissed without prejudice to thecomplainant’s right to proceed throughthe negotiated grievance procedure in-cluding the right to appeal to the Com-mission from a final decision as pro-vided in subpart D of this part. The dis-missal of such a complaint shall advisethe complainant of the obligation toraise discrimination in the grievanceprocess and of the right to appeal thefinal grievance decision to the Com-mission.

(b) When a person is not covered by acollective bargaining agreement thatpermits allegations of discriminationto be raised in a negotiated grievanceprocedure, allegations of discrimina-tion shall be processed as complaintsunder this part.

(c) When a person is employed by anagency not subject to 5 U.S.C 7121(d)and is covered by a negotiated griev-ance procedure, allegations of discrimi-nation shall be processed as complaintsunder this part, except that the timelimits for processing the complaintcontained in § 1614.106 and for appeal tothe Commission contained in § 1614.402may be held in abeyance during proc-essing of a grievance covering the same

matter as the complaint if the agencynotifies the complainant in writingthat the complaint will be held inabeyance pursuant to this section.

§ 1614.302 Mixed case complaints.(a) Definitions—(1) Mixed case com-

plaint. A mixed case complaint is acomplaint of employment discrimina-tion filed with a Federal agency basedon race, color, religion, sex, nationalorigin, age or handicap related to orstemming from an action that can beappealed to the Merit Systems Protec-tion Board (MSPB). The complaintmay contain only an allegation of em-ployment discrimination or it maycontain additional allegations that theMSPB has jurisdiction to address.

(2) Mixed case appeals. A mixed caseappeal is an appeal filed with theMSPB that alleges that an appealableagency action was effected, in whole orin part, because of discrimination onthe basis of race, color, religion, sex,national origin, handicap or age.

(b) Election. An aggrieved person mayinitially file a mixed case complaintwith an agency pursuant to this part oran appeal on the same matter with theMSPB pursuant to 5 CFR 1201.151, butnot both. An agency shall inform everyemployee who is the subject of an ac-tion that is appealable to the MSPBand who has either orally or in writingraised the issue of discrimination dur-ing the processing of the action of theright to file either a mixed case com-plaint with the agency or to file amixed case appeal with the MSPB. Theperson shall be advised that he or shemay not initially file both a mixedcase complaint and an appeal on thesame matter and that whichever isfiled first shall be considered an elec-tion to proceed in that forum. If a per-son files a mixed case appeal with theMSPB instead of a mixed case com-plaint and the MSPB dismisses the ap-peal for jurisdictional reasons, theagency shall promptly notify the indi-vidual in writing of the right to con-tact an EEO counselor within 45 daysof receipt of this notice and to file anEEO complaint, subject to § 1614.107.The date on which the person filed hisor her appeal with MSPB shall bedeemed to be the date of initial contactwith the counselor. If a person files a


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timely appeal with MSPB from theagency’s processing of a mixed casecomplaint and the MSPB dismisses itfor jurisdictional reasons, the agencyshall reissue a notice under § 1614.108(f)giving the individual the right to electbetween a hearing before an adminis-trative judge and an immediate finaldecision.

(c) Dismissal. (1) An agency may dis-miss a mixed case complaint for thereasons contained in, and under theconditions prescribed in, § 1614.107.

(2) An agency decision to dismiss amixed case complaint on the basis ofthe complainant’s prior election of theMSPB procedures shall be made as fol-lows:

(i) Where neither the agency nor theMSPB administrative judge questionsthe MSPB’s jurisdiction over the ap-peal on the same matter, it shall dis-miss the mixed case complaint pursu-ant to § 1614.107(d) and shall advise thecomplainant that he or she must bringthe allegations of discrimination con-tained in the rejected complaint to theattention of the MSPB, pursuant to 5CFR 1201.155. The dismissal of such acomplaint shall advise the complainantof the right to petition the EEOC to re-view the MSPB’s final decision on thediscrimination issue. A dismissal of amixed case complaint is not appealableto the Commission except where it isalleged that § 1614.107(d) has been ap-plied to a non-mixed case matter.

(ii) Where the agency or the MSPBadministrative judge questions theMSPB’s jurisdiction over the appeal onthe same matter, the agency shall holdthe mixed case complaint in abeyanceuntil the MSPB’s administrative judgerules on the jurisdictional issue, notifythe complainant that it is doing so,and instruct him or her to bring the al-legation of discrimination to the atten-tion of the MSPB. During this period oftime, all time limitations for proc-essing or filing under this part will betolled. An agency decision to hold amixed case complaint in abeyance isnot appealable to EEOC. If the MSPB’sadministrative judge finds that MSPBhas jurisdiction over the matter, theagency shall dismiss the mixed casecomplaint pursuant to § 1614.107(d), andadvise the complainant of the right topetition the EEOC to review the

MSPB’s final decision on the discrimi-nation issue. If the MSPB’s administra-tive judge finds that MSPB does nothave jurisdiction over the matter, theagency shall recommence processing ofthe mixed case complaint as a non-mixed case EEO complaint.

(d) Procedures for agency processing ofmixed case complaints. When a complain-ant elects to proceed initially underthis part rather than with the MSPB,the procedures set forth in subpart Ashall govern the processing of themixed case complaint with the fol-lowing exceptions:

(1) At the time the agency advises acomplainant of the acceptance of amixed case complaint, it shall also ad-vise the complainant that:

(i) If a final decision is not issuedwithin 120 days of the date of filing ofthe mixed case complaint, the com-plainant may appeal the matter to theMSPB at any time thereafter as speci-fied at 5 CFR 1201.154(b)(2) or may filea civil action as specified at§ 1614.310(g), but not both; and

(ii) If the complainant is dissatisfiedwith the agency’s final decision on themixed case complaint, the complainantmay appeal the matter to the MSPB(not EEOC) within 30 days of receipt ofthe agency’s final decision;

(2) Upon completion of the investiga-tion, the notice provided the complain-ant in accordance with § 1614.108(f) willadvise the complainant that a final de-cision will be issued within 45 dayswithout a hearing; and

(3) At the time that the agency issuesits final decision on a mixed case com-plaint, the agency shall advise thecomplainant of the right to appeal thematter to the MSPB (not EEOC) within30 days of receipt and of the right tofile a civil action as provided at§ 1614.310(a).

[57 FR 12646, Apr. 10, 1992, as amended at 61FR 17576, Apr. 22, 1996; 64 FR 37659, July 12,1999]

§ 1614.303 Petitions to the EEOC fromMSPB decisions on mixed case ap-peals and complaints.

(a) Who may file. Individuals whohave received a final decision from theMSPB on a mixed case appeal or on theappeal of a final decision on a mixedcase complaint under 5 CFR part 1201,


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subpart E and 5 U.S.C. 7702 may peti-tion EEOC to consider that decision.The EEOC will not accept appeals fromMSPB dismissals without prejudice.

(b) Method of filing. Filing shall bemade by certified mail, return receiptrequested, to the Office of Federal Op-erations, Equal Employment Oppor-tunity Commission, P.O. Box 19848,Washington, DC 20036.

(c) Time to file. A petition must befiled with the Commission either with-in 30 days of receipt of the final deci-sion of the MSPB or within 30 days ofwhen the decision of a MSPB field of-fice becomes final.

(d) Service. The petition for reviewmust be served upon all individuals andparties on the MSPB’s service list bycertified mail on or before the filingwith the Commission, and the Clerk ofthe MSPB, 1120 Vermont Ave., NW.,Washington, DC 20419, and the peti-tioner must certify as to the date andmethod of service.

§ 1614.304 Contents of petition.(a) Form. Petitions must be written

or typed, but may use any format in-cluding a simple letter format. Peti-tioners are encouraged to use EEOCForm 573, Notice Of Appeal/Petition.

(b) Contents. Petitions must containthe following:

(1) The name and address of the peti-tioner;

(2) The name and address of the peti-tioner’s representative, if any;

(3) A statement of the reasons whythe decision of the MSPB is alleged tobe incorrect, in whole or in part, onlywith regard to issues of discriminationbased on race, color, religion, sex, na-tional origin, age or handicap;

(4) A copy of the decision issued bythe MSPB; and

(5) The signature of the petitioner orrepresentative, if any.

§ 1614.305 Consideration procedures.(a) Once a petition is filed, the Com-

mission will examine it and determinewhether the Commission will considerthe decision of the MSPB. An agencymay oppose the petition, either on thebasis that the Commission should notconsider the MSPB’s decision or thatthe Commission should concur in theMSPB’s decision, by filing any such ar-

gument with the Office of Federal Op-erations and serving a copy on the peti-tioner within 15 days of receipt by theCommission.

(b) The Commission shall determinewhether to consider the decision of theMSPB within 30 days of receipt of thepetition by the Commission’s Office ofFederal Operations. A determination ofthe Commission not to consider the de-cision shall not be used as evidencewith respect to any issue of discrimina-tion in any judicial proceeding con-cerning that issue.

(c) If the Commission makes a deter-mination to consider the decision, theCommission shall within 60 days of thedate of its determination, consider theentire record of the proceedings of theMSPB and on the basis of the evi-dentiary record before the Board assupplemented in accordance with para-graph (d) of this section, either:

(1) Concur in the decision of theMSPB; or

(2) Issue in writing a decision thatdiffers from the decision of the MSPBto the extent that the Commissionfinds that, as a matter of law:

(i) The decision of the MSPB con-stitutes an incorrect interpretation ofany provision of any law, rule, regula-tion, or policy directive referred to in 5U.S.C. 7702(a)(1)(B); or

(ii) The decision involving such pro-vision is not supported by the evidencein the record as a whole.

(d) In considering any decision of theMSPB, the Commission, pursuant to 5U.S.C. 7702(b)(4), may refer the case tothe MSPB for the taking of additionalevidence within such period as permitsthe Commission to make a decisionwithin the 60-day period prescribed orprovide on its own for the taking of ad-ditional evidence to the extent theCommission considers it necessary tosupplement the record.

(e) Where the EEOC has differed withthe decision of the MSPB under§ 1614.305(c)(2), the Commission shallrefer the matter to the MSPB.

§ 1614.306 Referral of case to SpecialPanel.

If the MSPB reaffirms its decisionunder 5 CFR 1201.162(a)(2) with or with-out modification, the matter shall beimmediately certified to the Special


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Panel established pursuant to 5 U.S.C.7702(d). Upon certification, the Boardshall, within five days (excluding Sat-urdays, Sundays, and Federal holi-days), transmit to the Chairman of theSpecial Panel and to the Chairman ofthe EEOC the administrative record inthe proceeding including—

(a) The factual record compiled underthis section, which shall include atranscript of any hearing(s);

(b) The decisions issued by the Boardand the Commission under 5 U.S.C.7702; and

(c) A transcript of oral argumentsmade, or legal brief(s) filed, before theBoard and the Commission.

§ 1614.307 Organization of SpecialPanel.

(a) The Special Panel is composed of:(1) A Chairman appointed by the

President with the advice and consentof the Senate, and whose term is 6years;

(2) One member of the MSPB des-ignated by the Chairman of the Boardeach time a panel is convened; and

(3) One member of the EEOC des-ignated by the Chairman of the Com-mission each time a panel is convened.

(b) Designation of Special Panel mem-ber—(1) Time of designation. Within fivedays of certification of the case to theSpecial Panel, the Chairman of theMSPB and the Chairman of the EEOCshall each designate one member fromtheir respective agencies to serve onthe Special Panel.

(2) Manner of designation. Letters ofdesignation shall be served on theChairman of the Special Panel and theparties to the appeal.

§ 1614.308 Practices and procedures ofthe Special Panel.

(a) Scope. The rules in this subpartapply to proceedings before the SpecialPanel.

(b) Suspension of rules in this subpart.In the interest of expediting a decision,or for good cause shown, the Chairmanof the Special Panel may, except wherethe rule in this subpart is required bystatute, suspend the rules in this sub-part on application of a party, or on hisor her own motion, and may order pro-ceedings in accordance with his or herdirection.

(c) Time limit for proceedings. Pursu-ant to 5 U.S.C. 7702(d)(2)(A), the SpecialPanel shall issue a decision within 45days of the matter being certified to it.

(d) Administrative assistance to SpecialPanel. (1) The MSPB and the EEOCshall provide the Panel with such rea-sonable and necessary administrativeresources as determined by the Chair-man of the Special Panel.

(2) Assistance shall include, but isnot limited to, processing vouchers forpay and travel expenses.

(3) The Board and the EEOC shall beresponsible for all administrative costsincurred by the Special Panel and, tothe extent practicable, shall equally di-vide the costs of providing such admin-istrative assistance. The Chairman ofthe Special Panel shall resolve themanner in which costs are divided inthe event of a disagreement betweenthe Board and the EEOC.

(e) Maintenance of the official record.The Board shall maintain the officialrecord. The Board shall transmit twocopies of each submission filed to eachmember of the Special Panel in an ex-peditious manner.

(f) Filing and service of pleadings. (1)The parties shall file the original andsix copies of all submissions with theClerk, Merit Systems ProtectionBoard, 1120 Vermont Avenue, NW.,Washington, DC 20419. One copy of eachsubmission shall be served on the otherparties.

(2) A certificate of service specifyinghow and when service was made mustaccompany all submissions of the par-ties.

(3) Service may be by mail or by per-sonal delivery during normal businesshours (8:15 a.m.–4:45 p.m.). Due to theshort statutory time limit, parties arerequired to file their submissions byovernight delivery service should theyfile by mail.

(4) The date of filing shall be deter-mined by the date of mailing as indi-cated by the order date for the over-night delivery service. If the filing isby personal delivery, it shall be consid-ered filed on that date it is received inthe office of the Clerk, MSPB.

(g) Briefs and responsive pleadings. Ifthe parties wish to submit written ar-gument, briefs shall be filed with theSpecial Panel within 15 days of the


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date of the Board’s certification order.Due to the short statutory time limitresponsive pleadings will not ordinarilybe permitted.

(h) Oral argument. The parties havethe right to oral argument if desired.Parties wishing to exercise this rightshall so indicate at the time of filingtheir brief, or if no brief is filed, within15 days of the date of the Board’s cer-tification order. Upon receipt of a re-quest for argument, the Chairman ofthe Special Panel shall determine thetime and place for argument and thetime to be allowed each side, and shallso notify the parties.

(i) Post-argument submissions. Due tothe short statutory time limit, no post-argument submissions will be per-mitted except by order of the Chairmanof the Special Panel.

(j) Procedural matters. Any proceduralmatters not addressed in this subpartshall be resolved by written order ofthe Chairman of the Special Panel.

§ 1614.309 Enforcement of SpecialPanel decision.

The Board shall, upon receipt of thedecision of the Special Panel, order theagency concerned to take any actionappropriate to carry out the decision ofthe Panel. The Board’s regulations re-garding enforcement of a final order ofthe Board shall apply. These regula-tions are set out at 5 CFR part 1201,subpart E.

§ 1614.310 Right to file a civil action.

An individual who has a complaintprocessed pursuant to 5 CFR part 1201,subpart E or this subpart is authorizedby 5 U.S.C. 7702 to file a civil action inan appropriate United States DistrictCourt:

(a) Within 30 days of receipt of a finaldecision issued by an agency on a com-plaint unless an appeal is filed with theMSPB; or

(b) Within 30 days of receipt of noticeof the final decision or action taken bythe MSPB if the individual does notfile a petition for consideration withthe EEOC; or

(c) Within 30 days of receipt of noticethat the Commission has determinednot to consider the decision of theMSPB; or

(d) Within 30 days of receipt of noticethat the Commission concurs with thedecision of the MSPB; or

(e) If the Commission issues a deci-sion different from the decision of theMSPB, within 30 days of receipt of no-tice that the MSPB concurs in andadopts in whole the decision of theCommission; or

(f) If the MSPB does not concur withthe decision of the Commission and re-affirms its initial decision or reaffirmsits initial decision with a revision,within 30 days of the receipt of noticeof the decision of the Special Panel; or

(g) After 120 days from the date of fil-ing a formal complaint if there is nofinal action or appeal to the MSPB; or

(h) After 120 days from the date of fil-ing an appeal with the MSPB if theMSPB has not yet made a decision; or

(i) After 180 days from the date of fil-ing a petition for consideration withCommission if there is no decision bythe Commission, reconsideration deci-sion by the MSPB or decision by theSpecial Panel.

Subpart D—Appeals and CivilActions

§ 1614.401 Appeals to the Commission.

(a) A complainant may appeal anagency’s final action or dismissal of acomplaint.

(b) An agency may appeal as providedin § 1614.110(a).

(c) A class agent or an agency mayappeal an administrative judge’s deci-sion accepting or dismissing all or partof a class complaint; a class agent mayappeal a final decision on a class com-plaint; a class member may appeal afinal decision on a claim for individualrelief under a class complaint; and aclass member, a class agent or an agen-cy may appeal a final decision on a pe-tition pursuant to § 1614.204(g)(4).

(d) A grievant may appeal the finaldecision of the agency, the arbitratoror the Federal Labor Relations Author-ity (FLRA) on the grievance when anissue of employment discriminationwas raised in a negotiated grievanceprocedure that permits such issues tobe raised. A grievant may not appealunder this part, however, when the


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matter initially raised in the nego-tiated grievance procedure is still on-going in that process, is in arbitration,is before the FLRA, is appealable tothe MSPB or if 5 U.S.C. 7121(d) is inap-plicable to the involved agency.

(e) A complainant, agent or indi-vidual class claimant may appeal tothe Commission an agency’s allegednoncompliance with a settlementagreement or final decision in accord-ance with § 1614.504.


§ 1614.402 Time for appeals to theCommission.

(a) Appeals described in § 1614.401(a)and (c) must be filed within 30 days ofreceipt of the dismissal, final action ordecision. Appeals described in§ 1614.401(b) must be filed within 40 daysof receipt of the hearing file and deci-sion. Where a complainant has notifiedthe EEO Director of alleged noncompli-ance with a settlement agreement inaccordance with § 1614.504, the com-plainant may file an appeal 35 daysafter service of the allegations of non-compliance, but no later than 30 daysafter receipt of an agency’s determina-tion.

(b) If the complainant is representedby an attorney of record, then the 30-day time period provided in paragraph(a) of this section within which to ap-peal shall be calculated from the re-ceipt of the required document by theattorney. In all other instances, thetime within which to appeal shall becalculated from the receipt of the re-quired document by the complainant.


§ 1614.403 How to appeal.

(a) The complainant, agency, agent,grievant or individual class claimant(hereinafter appellant) must file an ap-peal with the Director, Office of Fed-eral Operations, Equal EmploymentOpportunity Commission, at P.O. Box19848, Washington, DC 20036, or by per-sonal delivery or facsimile. The appel-lant should use EEOC Form 573, Noticeof Appeal/Petition, and should indicatewhat is being appealed.

(b) The appellant shall furnish a copyof the appeal to the opposing party atthe same time it is filed with the Com-mission. In or attached to the appeal tothe Commission, the appellant mustcertify the date and method by whichservice was made on the opposingparty.

(c) If an appellant does not file an ap-peal within the time limits of this sub-part, the appeal shall be dismissed bythe Commission as untimely.

(d) Any statement or brief on behalfof a complainant in support of the ap-peal must be submitted to the Office ofFederal Operations within 30 days offiling the notice of appeal. Any state-ment or brief on behalf of the agency insupport of its appeal must be sub-mitted to the Office of Federal Oper-ations within 20 days of filing the no-tice of appeal. The Office of FederalOperations will accept statements orbriefs in support of an appeal by fac-simile transmittal, provided they areno more than 10 pages long.

(e) The agency must submit the com-plaint file to the Office of Federal Op-erations within 30 days of initial notifi-cation that the complainant has filedan appeal or within 30 days of submis-sion of an appeal by the agency.

(f) Any statement or brief in opposi-tion to an appeal must be submitted tothe Commission and served on the op-posing party within 30 days of receiptof the statement or brief supportingthe appeal, or, if no statement or briefsupporting the appeal is filed, within 60days of receipt of the appeal. The Of-fice of Federal Operations will acceptstatements or briefs in opposition to anappeal by facsimile provided they areno more than 10 pages long.

[64 FR 37659, July 12, 1999]

§ 1614.404 Appellate procedure.(a) On behalf of the Commission, the

Office of Federal Operations shall re-view the complaint file and all writtenstatements and briefs from eitherparty. The Commission may supple-ment the record by an exchange of let-ters or memoranda, investigation, re-mand to the agency or other proce-dures.

(b) If the Office of Federal Operationsrequests information from one or bothof the parties to supplement the


279


record, each party providing informa-tion shall send a copy of the informa-tion to the other party.

(c) When either party to an appealfails without good cause shown to com-ply with the requirements of this sec-tion or to respond fully and in timelyfashion to requests for information, theOffice of Federal Operations shall, inappropriate circumstances:

(1) Draw an adverse inference thatthe requested information would havereflected unfavorably on the party re-fusing to provide the requested infor-mation;

(2) Consider the matters to which therequested information or testimonypertains to be established in favor ofthe opposing party;

(3) Issue a decision fully or partiallyin favor of the opposing party; or

(4) Take such other actions as appro-priate.


§ 1614.405 Decisions on appeals.(a) The Office of Federal Operations,

on behalf of the Commission, shallissue a written decision setting forthits reasons for the decision. The Com-mission shall dismiss appeals in ac-cordance with §§ 1614.107, 1614.403(c) and1614.410. The decision shall be based onthe preponderance of the evidence. Thedecision on an appeal from an agency’sfinal action shall be based on a de novoreview, except that the review of thefactual findings in a decision by an ad-ministrative judge issued pursuant to§ 1614.109(i) shall be based on a substan-tial evidence standard of review. If thedecision contains a finding of discrimi-nation, appropriate remedy(ies) shallbe included and, where appropriate, theentitlement to interest, attorney’s feesor costs shall be indicated. The deci-sion shall reflect the date of itsissuance, inform the complainant of hisor her or her civil action rights, and betransmitted to the complainant andthe agency by first class mail.

(b) A decision issued under paragraph(a) of this section is final within themeaning of § 1614.407 unless the Com-mission reconsiders the case. A partymay request reconsideration within 30days of receipt of a decision of theCommission, which the Commission in

its discretion may grant, if the partydemonstrates that:

(1) The appellate decision involved aclearly erroneous interpretation of ma-terial fact or law; or

(2) The decision will have a substan-tial impact on the policies, practices oroperations of the agency.


§ 1614.406 Time limits. [Reserved]

§ 1614.407 Civil action: Title VII, AgeDiscrimination in Employment Actand Rehabilitation Act.

A complainant who has filed an indi-vidual complaint, an agent who hasfiled a class complaint or a claimantwho has filed a claim for individual re-lief pursuant to a class complaint isauthorized under title VII, the ADEAand the Rehabilitation Act to file acivil action in an appropriate UnitedStates District Court:

(a) Within 90 days of receipt of thefinal action on an individual or classcomplaint if no appeal has been filed;

(b) After 180 days from the date of fil-ing an individual or class complaint ifan appeal has not been filed and finalaction has not been taken;

(c) Within 90 days of receipt of theCommission’s final decision on an ap-peal; or

(d) After 180 days from the date of fil-ing an appeal with the Commission ifthere has been no final decision by theCommission.

[57 FR 12646, Apr. 10, 1992. Redesignated andamended at 64 FR 37659, July 12, 1999]

§ 1614.408 Civil action: Equal Pay Act.A complainant is authorized under

section 16(b) of the Fair Labor Stand-ards Act (29 U.S.C. 216(b)) to file a civilaction in a court of competent jurisdic-tion within two years or, if the viola-tion is willful, three years of the dateof the alleged violation of the EqualPay Act regardless of whether he orshe pursued any administrative com-plaint processing. Recovery of backwages is limited to two years prior tothe date of filing suit, or to three yearsif the violation is deemed willful; liq-uidated damages in an equal amountmay also be awarded. The filing of acomplaint or appeal under this part


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shall not toll the time for filing a civilaction.

[57 FR 12646, Apr. 10, 1992. Redesignated at 64FR 37659, July 12, 1999]

§ 1614.409 Effect of filing a civil action.Filing a civil action under § 1614.408

or § 1614.409 shall terminate Commis-sion processing of the appeal. If privatesuit is filed subsequent to the filing ofan appeal, the parties are requested tonotify the Commission in writing.

[57 FR 12646, Apr. 10, 1992. Redesignated at 64FR 37659, July 12, 1999]

Subpart E—Remedies andEnforcement

§ 1614.501 Remedies and relief.(a) When an agency, or the Commis-

sion, in an individual case of discrimi-nation, finds that an applicant or anemployee has been discriminatedagainst, the agency shall provide fullrelief which shall include the followingelements in appropriate circumstances:

(1) Notification to all employees ofthe agency in the affected facility oftheir right to be free of unlawful dis-crimination and assurance that theparticular types of discriminationfound will not recur;

(2) Commitment that corrective, cu-rative or preventive action will betaken, or measures adopted, to ensurethat violations of the law similar tothose found will not recur;

(3) An unconditional offer to eachidentified victim of discrimination ofplacement in the position the personwould have occupied but for the dis-crimination suffered by that person, ora substantially equivalent position;

(4) Payment to each identified victimof discrimination on a make wholebasis for any loss of earnings the per-son may have suffered as a result of thediscrimination; and

(5) Commitment that the agencyshall cease from engaging in the spe-cific unlawful employment practicefound in the case.

(b) Relief for an applicant. (1)(i) Whenan agency, or the Commission, findsthat an applicant for employment hasbeen discriminated against, the agencyshall offer the applicant the positionthat the applicant would have occupied

absent discrimination or, if justified bythe circumstances, a substantiallyequivalent position unless clear andconvincing evidence indicates that theapplicant would not have been selectedeven absent the discrimination. Theoffer shall be made in writing. The in-dividual shall have 15 days from receiptof the offer within which to accept ordecline the offer. Failure to accept theoffer within the 15-day period will beconsidered a declination of the offer,unless the individual can show that cir-cumstances beyond his or her controlprevented a response within the timelimit.

(ii) If the offer is accepted, appoint-ment shall be retroactive to the datethe applicant would have been hired.Back pay, computed in the manner pre-scribed by 5 CFR 550.805, shall beawarded from the date the individualwould have entered on duty until thedate the individual actually enters onduty unless clear and convincing evi-dence indicates that the applicantwould not have been selected even ab-sent discrimination. Interest on backpay shall be included in the back paycomputation where sovereign immu-nity has been waived. The individualshall be deemed to have performedservice for the agency during this pe-riod for all purposes except for meetingservice requirements for completion ofa required probationary or trial period.

(iii) If the offer of employment is de-clined, the agency shall award the indi-vidual a sum equal to the back pay heor she would have received, computedin the manner prescribed by 5 CFR550.805, from the date he or she wouldhave been appointed until the date theoffer was declined, subject to the limi-tation of paragraph (b)(3) of this sec-tion. Interest on back pay shall be in-cluded in the back pay computation.The agency shall inform the applicant,in its offer of employment, of the rightto this award in the event the offer isdeclined.

(2) When an agency, or the Commis-sion, finds that discrimination existedat the time the applicant was consid-ered for employment but also finds byclear and convincing evidence that theapplicant would not have been hiredeven absent discrimination, the agency


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shall nevertheless take all steps nec-essary to eliminate the discriminatorypractice and ensure it does not recur.

(3) Back pay under this paragraph (b)for complaints under title VII or theRehabilitation Act may not extendfrom a date earlier than two yearsprior to the date on which the com-plaint was initially filed by the appli-cant.

(c) Relief for an employee. When anagency, or the Commission, finds thatan employee of the agency was dis-criminated against, the agency shallprovide relief, which shall include, butneed not be limited to, one or more ofthe following actions:

(1) Nondiscriminatory placement,with back pay computed in the mannerprescribed by 5 CFR 550.805, unlessclear and convincing evidence con-tained in the record demonstrates thatthe personnel action would have beentaken even absent the discrimination.Interest on back pay shall be includedin the back pay computation wheresovereign immunity has been waived.The back pay liability under title VIIor the Rehabilitation Act is limited totwo years prior to the date the dis-crimination complaint was filed.

(2) If clear and convincing evidenceindicates that, although discriminationexisted at the time the personnel ac-tion was taken, the personnel actionwould have been taken even absent dis-crimination, the agency shall never-theless eliminate any discriminatorypractice and ensure it does not recur.

(3) Cancellation of an unwarrantedpersonnel action and restoration of theemployee.

(4) Expunction from the agency’srecords of any adverse materials relat-ing to the discriminatory employmentpractice.

(5) Full opportunity to participate inthe employee benefit denied (e.g.,training, preferential work assign-ments, overtime scheduling).

(d) The agency has the burden ofproving by a preponderance of the evi-dence that the complainant has failedto mitigate his or her damages.

(e) Attorney’s fees or costs—(1) Awardsof attorney’s fees or costs. The provisionsof this paragraph relating to the awardof attorney’s fees or costs shall applyto allegations of discrimination prohib-

ited by title VII and the RehabilitationAct. In a decision or final action, theagency, administrative judge, or Com-mission may award the applicant oremployee reasonable attorney’s fees(including expert witness fees) andother costs incurred in the processingof the complaint.

(i) A finding of discrimination raisesa presumption of entitlement to anaward of attorney’s fees.

(ii) Any award of attorney’s fees orcosts shall be paid by the agency.

(iii) Attorney’s fees are allowableonly for the services of members of theBar and law clerks, paralegals or lawstudents under the supervision of mem-bers of the Bar, except that no award isallowable for the services of any em-ployee of the Federal Government.

(iv) Attorney’s fees shall be paid forservices performed by an attorney afterthe filing of a written complaint, pro-vided that the attorney provides rea-sonable notice of representation to theagency, administrative judge or Com-mission, except that fees are allowablefor a reasonable period of time prior tothe notification of representation forany services performed in reaching adetermination to represent the com-plainant. Agencies are not required topay attorney’s fees for services per-formed during the pre-complaint proc-ess, except that fees are allowablewhen the Commission affirms on ap-peal an administrative judge’s decisionfinding discrimination after an agencytakes final action by not implementingan administrative judge’s decision.Written submissions to the agency thatare signed by the representative shallbe deemed to constitute notice of rep-resentation.

(2) Amount of awards. (i) When theagency, administrative judge or theCommission determines an entitlementto attorney’s fees or costs, the com-plainant’s attorney shall submit averified statement of attorney’s fees(including expert witness fees) andother costs, as appropriate, to theagency or administrative judge within30 days of receipt of the decision andshall submit a copy of the statement tothe agency. A statement of attorney’sfees and costs shall be accompanied byan affidavit executed by the attorneyof record itemizing the attorney’s


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charges for legal services. The agencymay respond to a statement of attor-ney’s fees and costs within 30 days ofits receipt. The verified statement, ac-companying affidavit and any agencyresponse shall be made a part of thecomplaint file.

(ii)(A) The agency or administrativejudge shall issue a decision deter-mining the amount of attorney’s feesor costs due within 60 days of receipt ofthe statement and affidavit. The deci-sion shall include a notice of right toappeal to the EEOC along with EEOCForm 573, Notice of Appeal/Petititonand shall include the specific reasonsfor determining the amount of theaward.

(B) The amount of attorney’s feesshall be calculated using the followingstandards: The starting point shall bethe number of hours reasonably ex-pended multiplied by a reasonablehourly rate. There is a strong presump-tion that this amount represents thereasonable fee. In limited cir-cumstances, this amount may be re-duced or increased in consideration ofthe degree of success, quality of rep-resentation, and long delay caused bythe agency.

(C) The costs that may be awardedare those authorized by 28 U.S.C. 1920to include: Fees of the reporter for allor any of the stenographic transcriptnecessarily obtained for use in thecase; fees and disbursements for print-ing and witnesses; and fees for exem-plification and copies necessarily ob-tained for use in the case.

(iii) Witness fees shall be awarded inaccordance with the provisions of 28U.S.C. 1821, except that no award shallbe made for a Federal employee who isin a duty status when made availableas a witness.

[57 FR 12646, Apr. 10, 1992, as amended at 60FR 43372, Aug. 21, 1995; 64 FR 37659, July 12,1999]

§ 1614.502 Compliance with final Com-mission decisions.

(a) Relief ordered in a final Commis-sion decision is mandatory and bindingon the agency except as provided inthis section. Failure to implement or-dered relief shall be subject to judicialenforcement as specified in § 1614.503(g).

(b) Notwithstanding paragraph (a) ofthis section, when the agency requestsreconsideration and the case involvesremoval, separation, or suspension con-tinuing beyond the date of the requestfor reconsideration, and when the deci-sion orders retroactive restoration, theagency shall comply with the decisionto the extent of the temporary or con-ditional restoration of the employee toduty status in the position specified bythe Commission, pending the outcomeof the agency request for reconsider-ation.

(1) Service under the temporary orconditional restoration provisions ofthis paragraph (b) shall be credited to-ward the completion of a probationaryor trial period, eligibility for a within-grade increase, or the completion ofthe service requirement for career ten-ure, if the Commission upholds its de-cision after reconsideration.

(2) When the agency requests recon-sideration, it may delay the paymentof any amounts ordered to be paid tothe complainant until after the requestfor reconsideration is resolved. If theagency delays payment of any amountpending the outcome of the request toreconsider and the resolution of the re-quest requires the agency to make thepayment, then the agency shall pay in-terest from the date of the original ap-pellate decision until payment is made.

(3) The agency shall notify the Com-mission and the employee in writing atthe same time it requests reconsider-ation that the relief it provides is tem-porary or conditional and, if applica-ble, that it will delay the payment ofany amounts owed but will pay inter-est as specified in paragraph (b)(2) ofthis section. Failure of the agency toprovide notification will result in thedismissal of the agency’s request.

(c) When no request for reconsider-ation is filed or when a request for re-consideration is denied, the agencyshall provide the relief ordered andthere is no further right to delay im-plementation of the ordered relief. Therelief shall be provided in full not laterthan 60 days after receipt of the finaldecision unless otherwise ordered inthe decision.



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§ 1614.503 Enforcement of final Com-mission decisions.

(a) Petition for enforcement. A com-plainant may petition the Commissionfor enforcement of a decision issuedunder the Commission’s appellate ju-risdiction. The petition shall be sub-mitted to the Office of Federal Oper-ations. The petition shall specificallyset forth the reasons that lead thecomplainant to believe that the agencyis not complying with the decision.

(b) Compliance. On behalf of the Com-mission, the Office of Federal Oper-ations shall take all necessary actionto ascertain whether the agency is im-plementing the decision of the Com-mission. If the agency is found not tobe in compliance with the decision, ef-forts shall be undertaken to obtaincompliance.

(c) Clarification. On behalf of theCommission, the Office of Federal Op-erations may, on its own motion or inresponse to a petition for enforcementor in connection with a timely requestfor reconsideration, issue a clarifica-tion of a prior decision. A clarificationcannot change the result of a prior de-cision or enlarge or diminish the reliefordered but may further explain themeaning or intent of the prior decision.

(d) Referral to the Commission. Wherethe Director, Office of Federal Oper-ations, is unable to obtain satisfactorycompliance with the final decision, theDirector shall submit appropriate find-ings and recommendations for enforce-ment to the Commission, or, as di-rected by the Commission, refer thematter to another appropriate agency.

(e) Commission notice to show cause.The Commission may issue a notice tothe head of any Federal agency thathas failed to comply with a decision toshow cause why there is noncompli-ance. Such notice may request thehead of the agency or a representativeto appear before the Commission or torespond to the notice in writing withadequate evidence of compliance orwith compelling reasons for non-com-pliance.

(f) Certification to the Office of SpecialCounsel. Where appropriate and pursu-ant to the terms of a memorandum ofunderstanding, the Commission mayrefer the matter to the Office of Spe-cial Counsel for enforcement action.

(g) Notification to complainant of com-pletion of administrative efforts. Wherethe Commission has determined thatan agency is not complying with aprior decision, or where an agency hasfailed or refused to submit any re-quired report of compliance, the Com-mission shall notify the complainant ofthe right to file a civil action for en-forcement of the decision pursuant toTitle VII, the ADEA, the Equal PayAct or the Rehabilitation Act and toseek judicial review of the agency’s re-fusal to implement the ordered reliefpursuant to the Administrative Proce-dure Act, 5 U.S.C. 701 et seq., and themandamus statute, 28 U.S.C. 1361, or tocommence de novo proceedings pursu-ant to the appropriate statutes.

§ 1614.504 Compliance with settlementagreements and final action.

(a) Any settlement agreement know-ingly and voluntarily agreed to by theparties, reached at any stage of thecomplaint process, shall be binding onboth parties. Final action that has notbeen the subject of an appeal or civilaction shall be binding on the agency.If the complainant believes that theagency has failed to comply with theterms of a settlement agreement or de-cision, the complainant shall notifythe EEO Director, in writing, of the al-leged noncompliance within 30 days ofwhen the complainant knew or shouldhave known of the alleged noncompli-ance. The complainant may requestthat the terms of settlement agree-ment be specifically implemented or,alternatively, that the complaint be re-instated for further processing fromthe point processing ceased.

(b) The agency shall resolve the mat-ter and respond to the complainant, inwriting. If the agency has not re-sponded to the complainant, in writing,or if the complainant is not satisfiedwith the agency’s attempt to resolvethe matter, the complainant may ap-peal to the Commission for a deter-mination as to whether the agency hascomplied with the terms of the settle-ment agreement or decision. The com-plainant may file such an appeal 35days after he or she has served theagency with the allegations of non-compliance, but must file an appealwithin 30 days of his or her receipt of


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an agency’s determination. The com-plainant must serve a copy of the ap-peal on the agency and the agency maysubmit a response to the Commissionwithin 30 days of receiving notice ofthe appeal.

(c) Prior to rendering its determina-tion, the Commission may request thatparties submit whatever additional in-formation or documentation it deemsnecessary or may direct that an inves-tigation or hearing on the matter beconducted. If the Commission deter-mines that the agency is not in compli-ance and the noncompliance is not at-tributable to acts or conduct of thecomplainant, it may order such com-pliance or it may order that the com-plaint be reinstated for further proc-essing from the point processingceased. Allegations that subsequentacts of discrimination violate a settle-ment agreement shall be processed asseparate complaints under § 1614.106 or§ 1614.204, as appropriate, rather thanunder this section.


§ 1614.505 Interim relief.

(a)(1) When the agency appeals andthe case involves removal, separation,or suspension continuing beyond thedate of the appeal, and when the ad-ministrative judge’s decision ordersretroactive restoration, the agencyshall comply with the decision to theextent of the temporary or conditionalrestoration of the employee to dutystatus in the position specified in thedecision, pending the outcome of theagency appeal. The employee may de-cline the offer of interim relief.

(2) Service under the temporary orconditional restoration provisions ofparagraph (a)(1) of this section shall becredited toward the completion of aprobationary or trial period, eligibilityfor a within-grade increase, or the com-pletion of the service requirement forcareer tenure, if the Commission up-holds the decision on appeal. Suchservice shall not be credited toward thecompletion of any applicable proba-tionary or trial period or the comple-tion of the service requirement for ca-

reer tenure if the Commission reversesthe decision on appeal.

(3) When the agency appeals, it maydelay the payment of any amount,other than prospective pay and bene-fits, ordered to be paid to the com-plainant until after the appeal is re-solved. If the agency delays payment ofany amount pending the outcome ofthe appeal and the resolution of the ap-peal requires the agency to make thepayment, then the agency shall pay in-terest from the date of the original de-cision until payment is made.

(4) The agency shall notify the Com-mission and the employee in writing atthe same time it appeals that the reliefit provides is temporary or conditionaland, if applicable, that it will delay thepayment of any amounts owed but willpay interest as specified in paragraph(b)(2) of this section. Failure of theagency to provide notification will re-sult in the dismissal of the agency’s ap-peal.

(5) The agency may, by notice to thecomplainant, decline to return thecomplainant to his or her place of em-ployment if it determines that the re-turn or presence of the complainantwill be unduly disruptive to the workenvironment. However, prospective payand benefits must be provided. The de-termination not to return the com-plainant to his or her place of employ-ment is not reviewable. A grant of in-terim relief does not insulate a com-plainant from subsequent disciplinaryor adverse action.

(b) If the agency files an appeal andhas not provided required interim re-lief, the complainant may request dis-missal of the agency’s appeal. Any suchrequest must be filed with the Office ofFederal Operations within 25 days ofthe date of service of the agency’s ap-peal. A copy of the request must beserved on the agency at the same timeit is filed with EEOC. The agency mayrespond with evidence and argument tothe complainant’s request to dismisswithin 15 days of the date of service ofthe request.

[64 FR 37660, July 12, 1999]


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Subpart F—Matters of GeneralApplicability

§ 1614.601 EEO group statistics.(a) Each agency shall establish a sys-

tem to collect and maintain accurateemployment information on the race,national origin, sex and handicap(s) ofits employees.

(b) Data on race, national origin andsex shall be collected by voluntary self-identification. If an employee does notvoluntarily provide the requested in-formation, the agency shall advise theemployee of the importance of the dataand of the agency’s obligation to reportit. If the employee still refuses to pro-vide the information, the agency mustmake visual identification and informthe employee of the data it will be re-porting. If an agency believes that in-formation provided by an employee isinaccurate, the agency shall advise theemployee about the solely statisticalpurpose for which the data is being col-lected, the need for accuracy, the agen-cy’s recognition of the sensitivity ofthe information and the existence ofprocedures to prevent its unauthorizeddisclosure. If, thereafter, the employeedeclines to change the apparently inac-curate self-identification, the agencymust accept it.

(c) The information collected underparagraph (b) of this section shall bedisclosed only in the form of gross sta-tistics. An agency shall not collect ormaintain any information on the race,national origin or sex of individual em-ployees except when an automateddata processing system is used in ac-cordance with standards and require-ments prescribed by the Commission toinsure individual privacy and the sepa-ration of that information from per-sonnel record.

(d) Each system is subject to the fol-lowing controls:

(1) Only those categories of race andnational origin prescribed by the Com-mission may be used;

(2) Only the specific procedures forthe collection and maintenance of datathat are prescribed or approved by theCommission may be used;

(3) The Commission shall review theoperation of the agency system to in-sure adherence to Commission proce-dures and requirements. An agency

may make an exception to the pre-scribed procedures and requirementsonly with the advance written approvalof the Commission.

(e) The agency may use the data onlyin studies and analyses which con-tribute affirmatively to achieving theobjectives of the equal employment op-portunity program. An agency shallnot establish a quota for the employ-ment of persons on the basis of race,color, religion, sex, or national origin.

(f) Data on handicaps shall also becollected by voluntary self-identifica-tion. If an employee does not volun-tarily provide the requested informa-tion, the agency shall advise the em-ployee of the importance of the dataand of the agency’s obligation to reportit. If an employee who has been ap-pointed pursuant to special appoint-ment authority for hiring individualswith handicaps still refuses to providethe requested information, the agencymust identify the employee’s handicapbased upon the records supporting theappointment. If any other employeestill refuses to provide the requestedinformation or provides informationwhich the agency believes to be inac-curate, the agency should report theemployee’s handicap status as un-known.

(g) An agency shall report to theCommission on employment by race,national origin, sex and handicap inthe form and at such times as the Com-mission may require.

§ 1614.602 Reports to the Commission.

(a) Each agency shall report to theCommission information concerningpre-complaint counseling and the sta-tus, processing and disposition of com-plaints under this part at such timesand in such manner as the Commissionprescribes.

(b) Each agency shall advise theCommission whenever it is served witha Federal court complaint based upon acomplaint that is pending on appeal atthe Commission.

(c) Each agency shall submit annu-ally for the review and approval of theCommission written national and re-gional equal employment opportunityplans of action. Plans shall be sub-mitted in a format prescribed by the


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Commission and shall include, but notbe limited to:

(1) Provision for the establishment oftraining and education programs de-signed to provide maximum oppor-tunity for employees to advance so asto perform at their highest potential;

(2) Description of the qualifications,in terms of training and experience re-lating to equal employment oppor-tunity, of the principal and operatingofficials concerned with administrationof the agency’s equal employment op-portunity program; and

(3) Description of the allocation ofpersonnel and resources proposed bythe agency to carry out its equal em-ployment opportunity program.

§ 1614.603 Voluntary settlement at-tempts.

Each agency shall make reasonableefforts to voluntarily settle complaintsof discrimination as early as possiblein, and throughout, the administrativeprocessing of complaints, including thepre-complaint counseling stage. Anysettlement reached shall be in writingand signed by both parties and shallidentify the claims resolved.


§ 1614.604 Filing and computation oftime.

(a) All time periods in this part thatare stated in terms of days are cal-endar days unless otherwise stated.

(b) A document shall be deemed time-ly if it is received or postmarked beforethe expiration of the applicable filingperiod, or, in the absence of a legiblepostmark, if it is received by mailwithin five days of the expiration ofthe applicable filing period.

(c) The time limits in this part aresubject to waiver, estoppel and equi-table tolling.

(d) The first day counted shall be theday after the event from which thetime period begins to run and the lastday of the period shall be included, un-less it falls on a Saturday, Sunday orFederal holiday, in which case the pe-riod shall be extended to include thenext business day.


§ 1614.605 Representation and officialtime.

(a) At any stage in the processing ofa complaint, including the counselingstage § 1614.105, the complainant shallhave the right to be accompanied, rep-resented, and advised by a representa-tive of complainant’s choice.

(b) If the complainant is an employeeof the agency, he or she shall have areasonable amount of official time, ifotherwise on duty, to prepare the com-plaint and to respond to agency andEEOC requests for information. If thecomplainant is an employee of theagency and he designates another em-ployee of the agency as his or her rep-resentative, the representative shallhave a reasonable amount of officialtime, if otherwise on duty, to preparethe complaint and respond to agencyand EEOC requests for information.The agency is not obligated to changework schedules, incur overtime wages,or pay travel expenses to facilitate thechoice of a specific representative or toallow the complainant and representa-tive to confer. The complainant andrepresentative, if employed by theagency and otherwise in a pay status,shall be on official time, regardless oftheir tour of duty, when their presenceis authorized or required by the agencyor the Commission during the inves-tigation, informal adjustment, or hear-ing on the complaint.

(c) In cases where the representationof a complainant or agency would con-flict with the official or collateral du-ties of the representative, the Commis-sion or the agency may, after givingthe representative an opportunity torespond, disqualify the representative.

(d) Unless the complainant statesotherwise in writing, after the agencyhas received written notice of thename, address and telephone number ofa representative for the complainant,all official correspondence shall bewith the representative with copies tothe complainant. When the complain-ant designates an attorney as rep-resentative, service of all official cor-respondence shall be made on the at-torney and the complainant, but timeframes for receipt of materials shall becomputed from the time of receipt bythe attorney. The complainant mustserve all official correspondence on the


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designated representative of the agen-cy.

(e) The Complainant shall at alltimes be responsible for proceedingwith the complaint whether or not heor she has designated a representative.

(f) Witnesses who are Federal em-ployees, regardless of their tour of dutyand regardless of whether they are em-ployed by the respondent agency orsome other Federal agency, shall be ina duty status when their presence isauthorized or required by Commissionor agency officials in connection with acomplaint.


§ 1614.606 Joint processing and con-solidation of complaints.

Complaints of discrimination filed bytwo or more complainants consisting ofsubstantially similar allegations of dis-crimination or relating to the samematter may be consolidated by theagency or the Commission for jointprocessing after appropriate notifica-tion to the parties. Two or more com-plaints of discrimination filed by thesame complainant shall be consoli-dated by the agency for joint proc-essing after appropriate notification tothe complainant. When a complainthas been consolidated with one or moreearlier filed complaints, the agencyshall complete its investigation withinthe earlier of 180 days after the filing ofthe last complaint or 360 days after thefiling of the original complaint, exceptthat the complainant may request ahearing from an administrative judgeon the consolidated complaints anytime after 180 days from the date of thefirst filed complaint. Administrativejudges or the Commission may, in theirdiscretion, consolidate two or morecomplaints of discrimination filed bythe same complainant.

[64 FR 37661, July 12, 1999]

§ 1614.607 Delegation of authority.

An agency head may delegate author-ity under this part, to one or more des-ignees.

PART 1615—ENFORCEMENT OFNONDISCRIMINATION ON THEBASIS OF HANDICAP IN PRO-GRAMS OR ACTIVITIES CON-DUCTED BY THE EQUAL EMPLOY-MENT OPPORTUNITY COMMIS-SION

Sec.1615.101 Purpose.1615.102 Application.1615.103 Definitions.1615.104–1615.109 [Reserved]1615.110 Self-evaluation.1615.111 Notice.1615.112–1615.129 [Reserved]1615.130 General prohibitions against dis-

crimination.1615.131–1615.139 [Reserved]1615.140 Employment.1615.141–1615.148 [Reserved]1615.149 Program accessibility: Discrimina-

tion prohibited.1615.150 Program accessibility: Existing fa-

cilities.1615.151 Program accessibility: New con-

struction and alterations.1615.152–1615.159 [Reserved]1615.160 Communications.1615.161–1615.169 [Reserved]1615.170 Compliance procedures.1615.171–1615.999 [Reserved]

AUTHORITY: 29 U.S.C. 794.

SOURCE: 54 FR 22749, May 26, 1989, unlessotherwise noted.

§ 1615.101 Purpose.The purpose of this part is to effec-

tuate section 119 of the Rehabilitation,Comprehensive Services, and Develop-mental Disabilities Amendments of1978, which amended section 504 of theRehabilitation Act of 1973 to prohibitdiscrimination on the basis of handicapin programs or activities conducted byExecutive agencies or the UnitedStates Postal Service.

§ 1615.102 Application.This part applies to all programs or

activities conducted by the Commis-sion.

§ 1615.103 Definitions.For purposes of this part, the term—Assistant Attorney General means the

Assistant Attorney General, CivilRights Division, United States Depart-ment of Justice.


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