Federal Sector Equal Employment Opportunity, 67839-67844 [E9-30162]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 74, Number 243 (Monday, December 21, 2009)]
[Proposed Rules]
[Pages 67839-67844]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30162]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN Number 3046-AA73


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission (EEOC).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Equal Employment Opportunity Commission is proposing 
revisions to its federal sector complaint processing regulations. These 
proposals implement recommendations of the Commissioners' Federal 
Sector Workgroup.

DATES: Comments on the notice of proposed rulemaking must be received 
on or before February 19, 2010.

ADDRESSES: Written comments should be submitted to Stephen Llewellyn, 
Executive Officer, Executive Secretariat, Equal Employment Opportunity 
Commission, Room 6NE03F, 131 M Street, NE., Washington, DC 20507. As a 
convenience to commentators, the Executive Secretariat will accept 
comments totaling six or fewer pages by facsimile (``FAX'') machine. 
This limitation is necessary to assure access to the equipment. The 
telephone number of the FAX receiver is (202) 663-4114. (This is not a 
toll-free number.) Receipt of FAX transmittals will not be 
acknowledged, except that the sender may request confirmation of 
receipt by calling the Executive Secretariat staff at (202) 663-4070 
(voice) or (202) 663-4074 (TTD). (These are not toll-free telephone 
numbers.) You may also submit comments and attachments electronically 
at https://www.regulations.gov, which is the Federal eRulemaking Portal. 
Follow the instructions online for submitting comments. Copies of 
comments submitted by the public can be reviewed at https://www.regulations.gov or by appointment at the Commission's library, 131 
M Street, NE., Washington, DC 20507 between the hours of 9:30 a.m. and 
5 p.m. (call 202-663-4630 (voice) or 202-663-4641 (TTY) to schedule an 
appointment).

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel, Kathleen Oram, or Gary Hozempa, Office of Legal Counsel, 202-
663-4640 (voice), 202-663-7026 (TDD). This notice is also available in 
the following formats: large print, braille, audio tape and electronic 
file on computer disk. Requests for this notice in an alternative 
format should be made to EEOC's Publications Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION: In 2004, former EEOC Chair Cari M. Dominguez 
asked Commissioner Stuart J. Ishimaru to lead a workgroup to develop 
consensus recommendations from the Commissioners for improvements to 
the discrimination complaint process for Federal employees. The Federal 
Sector Workgroup considered testimony and submissions from the November 
12, 2002 Commission meeting on Federal sector reform, draft staff 
proposals for Federal sector reform, and numerous submissions of 
internal and external stakeholders with suggestions for improvements to 
the Federal sector process. The Workgroup determined that there was not 
consensus within the Workgroup for large scale revision of the Federal 
sector EEO process at this time, but that there was agreement on 
several discrete changes to the existing regulations that would clarify 
or build on the improvements made by the last major revisions to Part 
1614 in 1999. These regulation changes will be accompanied by the 
issuance of additional guidance in Management Directive 110 and other 
program changes at EEOC.
    The Commission sent the draft NPRM to 170 Federal agencies for 
coordination, pursuant to Executive Order 12067. Thirty-three agencies 
or agency components submitted comments on the proposed draft. Three 
agencies noted that they had no comments, or that they believed the 
proposed changes were improvements. Of the remaining thirty comments, 
nearly one-third were from various components of the Department of 
Justice. The inter-agency comments are summarized where appropriate in 
the discussion of the proposed changes below.

Agency Process

    The Workgroup considered many recommendations for improvement to 
the parts of the Federal sector EEO process for which the agencies bear 
responsibility--counseling, investigations, and final actions. The 
Workgroup made a number of non-regulatory and regulatory 
recommendations to improve the agency process. EEOC proposes the 
following changes to the agency process in part 1614.
    The Commission proposes to add two new paragraphs to Sec.  
1614.102. One paragraph requires that agency EEO programs comply with 
part 1614 and the Management Directives and Bulletins issued by EEOC, 
and indicates that the Commission will review

[[Page 67840]]

programs for compliance and that the Chair may issue notices to 
agencies when non-compliance is found. With this provision, the 
Commission intends to provide a mechanism for reviewing and seeking 
compliance from agencies that fail to comply with the requirements of 
Part 1614, Management Directive 110, Management Directive 715, and 
Management Bulletin 100-1. The proposed regulation would also require 
that agencies comply with any Management Directives or Bulletins that 
may be issued in the future. Federal agencies will receive appropriate 
notice of any new or changed Management Directives or Management 
Bulletins.
    A number of agencies opposed this proposal, arguing that requiring 
agency compliance with EEOC directives and bulletins that have not been 
subject to the notice and comment rulemaking process violates the 
Administrative Procedure Act. In this proposed new paragraph, the 
Commission simply intends to remind agencies of their statutory 
responsibilities, contained in section 717(b) of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e(16)(b), to ``comply with such 
rules, regulations, orders, and instructions'' issued by EEOC. A few 
agencies also commented on the proposed review of agency programs for 
compliance and the issuance of non-compliance notices. Some objected to 
the proposal, and others questioned whether EEOC would afford a non-
compliant agency an opportunity to comply or explain its non-compliance 
before reporting the non-compliance or issuing a notice from the Chair. 
Agencies are currently afforded the opportunity to respond to non-
compliance notices and to communicate with EEOC regarding their 
compliance actions. Under the proposed compliance regulation, EEOC will 
continue to offer agencies opportunities to respond and explain their 
programs.
    The second proposed new paragraph to Sec.  1614.102 would permit 
EEOC to grant agencies variances from particular provisions of part 
1614 to conduct pilot projects for processing complaints in ways other 
than those prescribed in part 1614. Such pilots would be subject to 
EEOC approval by vote of the Commissioners and would usually not be 
granted for more than 12 months. Pilots could provide helpful data for 
future recommendations for changes to the Federal sector process.
    The agencies that commented on the pilot proposal were all in favor 
of it. Most agencies noted that 12 months is too short a period within 
which to conduct a pilot and gauge its effectiveness. Some suggested 
that the time period should be two years, while others suggested that 
the regulation allow for an automatic extension to allow all complaints 
that entered a pilot to be fully processed in the pilot. Other agencies 
requested guidance on the pilot program elements that will be viewed 
favorably by EEOC. We note that pilots will not necessarily start on 
the date EEOC approves them because it may take some time for agencies 
to implement approved pilot projects. We seek additional comments on 
the length of time for pilots and on whether EEOC should provide for 
extensions of pilots. In addition, we note that the Commission will 
issue guidance in its Management Directive 110 on the procedures for 
requesting approval of pilots, including, among other things, 
information on plans for publicizing the pilot among agency employees, 
criteria for evaluating the success of the pilot, anticipated start and 
end dates, quarterly reports, etc.
    The Commission proposes to add a new paragraph to Sec.  1614.108 
Investigation of complaints, that would require agencies that have not 
completed an investigation within the 180 day time limit for 
investigations (or up to 360 days if the complaint has been amended) to 
send a notice to the complainant indicating that the investigation is 
not complete, providing the date by which it will be completed, and 
explaining that the complainant has the right to request a hearing or 
file a lawsuit. The Commission believes that complainants may have 
forgotten their right to request a hearing or file a lawsuit 180 days 
after filing the complaint, or may not be aware of when the 180-day 
period expires. In addition, the Commission believes that requiring 
such a notice may shorten delays in agency investigations by providing 
an incentive for agencies to timely complete their investigations. The 
notice would be in writing and would describe the hearing process and 
include a simple explanation of discovery and burdens of proof.
    Several agencies commented favorably on the notice proposal, but a 
larger number opposed it, arguing that it is superfluous, since the 
regulations require agencies to send notices detailing time limits to 
complainants at counseling and initial filing of the complaint. We are 
not persuaded by the agencies' arguments. The proposed notice would 
come later in the process, right at the time when the complainant has 
the right to request a hearing or file a civil action. The notice is 
intended to give the complainant the information needed to decide 
whether to wait for the completion of the investigation or request a 
hearing. We note, as well, that an agency's failure to provide the 
notice cannot be the basis of a ``failure to properly process'' claim. 
EEOC eliminated the investigation of ``spin-off'' complaints (those 
that allege failure to properly process a complaint) in the 1999 
amendments to part 1614. It will continue to be the case that any 
``failure to properly process'' claims must be dismissed, including any 
such claim involving an agency's failure to provide the proposed new 
notice.
    The Commission proposes two clarifying changes in the agency 
process section of the regulations. Section 1614.103(b)(6) would be 
amended to comport with the coverage provisions of the Rehabilitation 
Act and state that part 1614 applies to discrimination complaints 
against the Government Printing Office, except for complaints under the 
Rehabilitation Act.
    It is also proposed to revise the dismissals section to clarify 
that complaints alleging discrimination in proposals to take personnel 
actions or other preliminary steps to taking personnel actions should 
be dismissed unless the complaint alleges that a proposal or 
preliminary step is retaliatory. This change would conform the 
dismissals section of part 1614 to long-standing private sector 
Commission policy guidance on retaliation as set forth in EEOC's 
Compliance Manual. See 2 EEOC Compliance Manual Sec.  8-II.D.3 (1998) 
(``[A]ny adverse treatment that is based on a retaliatory motive and is 
reasonably likely to deter the charging party or others from engaging 
in protected activity'' is prohibited retaliation.). This change also 
will bring the regulations into conformity with published EEOC Federal 
sector appellate decisions that have addressed whether, notwithstanding 
1614.107(a)(5), complaints challenging proposed or preliminary actions 
as retaliatory state a claim and should be investigated. See, e.g., 
Lorina D. Goodwin v. F. Whitten Peters, Secretary, Department of the 
Air Force, EEOC Appeal Nos. 01991301 & 01A01796, 2000 WL 1616337 
(October 18, 2000) (holding that the complainant's challenge of a 
proposed dismissal as being retaliatory stated a claim because 
``proposed actions can be considered adverse actions in the reprisal 
context if they are reasonably likely to deter protected activity'').
    We note that this proposed change to the 1614.107(a)(5) dismissal 
provision does not change the standard for stating a claim of 
retaliation under Title VII. While agencies would no longer be able to 
dismiss a claim alleging that a proposal or preliminary step was

[[Page 67841]]

retaliatory under 29 CFR 1614.107(a)(5), they would still evaluate the 
claim under the failure to state a claim dismissal provision in 29 CFR 
1614.107(a)(1). It is expected that agencies would only dismiss 
allegedly retaliatory proposals and other preliminary steps under 29 
CFR 1614.107(a)(1) if the alleged retaliatory actions were not 
materially adverse, that is, if the alleged retaliatory proposal or 
preliminary step would not dissuade a reasonable worker in the 
complainant's circumstances from engaging in protected EEO activity.
    Not all preliminary steps or proposals would constitute actionable 
retaliation. As noted by the Supreme Court in Burlington Northern & 
Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), ``[a]n 
employee's decision to report discriminatory behavior cannot immunize 
that employee from those petty slights or minor annoyances that often 
take place at work and that all employees experience.'' See also 2 EEOC 
Compliance Manual Sec.  8-II.D.3 (1998) (``[P]etty slights and trivial 
annoyances are not actionable, as they are not likely to deter 
protected activity.''). Therefore, the challenged preliminary step or 
proposed action must be likely to deter a reasonable employee from 
protected activity. Given all the circumstances, a proposed letter of 
warning may not deter a reasonable complainant from filing a complaint, 
whereas a proposed suspension may have a deterring effect. ``Context 
matters * * * for an `act that would be immaterial in some situations 
is material in others.''' Burlington Northern, 548 U.S. at 69 (quoting 
Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 661 (7th Cir. 
2005)).
    A number of agencies objected to the proposal, arguing that it is 
inconsistent with the statutory text applicable to the Federal sector 
or that it would encourage the filing of premature and non-actionable 
complaints. One agency's alternative proposal would exempt from 
dismissal complaints alleging that a proposal or preliminary step is 
retaliatory only if they contain allegations of severe or repeated 
threats of adverse action that may state a claim of a hostile work 
environment. This alternative proposal would amend Sec.  1614.107(a) 
along the following lines: ``Prior to a request for a hearing in a 
case, the agency shall dismiss an entire complaint: * * * (5) That is 
moot or alleges that a proposal to take a personnel action, or other 
preliminary step to taking a personnel action, is discriminatory, 
except that with regard to a claim of retaliation, allegations of 
severe or repeated threats of adverse action may state a claim of a 
hostile work environment that is not subject to dismissal on such 
basis.''
    In considering this alternative proposal, it should be noted that 
the Supreme Court has recognized that a hostile work environment is 
created where an employer's actions are ``sufficiently severe or 
pervasive `to alter the conditions of [the victim's] employment and 
create an abusive working environment.''' Meritor Savings Bank v. 
Vinson, 477 U.S. 57, 67 (1986) (citation omitted). Where the threatened 
act or acts, if implemented, would be sufficiently severe in the 
context of the complainant's employment to result in a materially 
adverse consequence to the employee, the threats may meet this 
standard.
    Under this alternative proposal, the alleged retaliation should be 
viewed in the context of the complainant's underlying claim of 
discrimination. Together, the allegations of discrimination and of 
retaliatory threats for challenging that discrimination could 
constitute pervasive conduct that amounts to an actionable hostile work 
environment.
    In addition, courts have recognized that single actions, if 
sufficiently severe, can without more constitute a hostile work 
environment. See, e.g., Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 
1999) (``[a]lthough less severe acts of harassment must be frequent or 
part of a pervasive pattern of objectionable behavior in order to rise 
to an actionable level, `extremely serious' acts of harassment do 
not'') (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 
(1998)). Therefore, a single threat of adverse action made because the 
employee complains of, or opposes, unlawful discrimination, may satisfy 
the standard set forth in the alternative proposal if it threatens 
sufficiently serious consequences (even if the threat is made before 
the employee files an EEO claim). For example, a retaliatory threat of 
termination of employment against an employee complaining of, or 
opposing, unlawful discrimination could in appropriate circumstances 
constitute retaliation with consequences so severe that the complaint 
challenging that threat should not be dismissed. A retaliatory threat 
of actions that would cause significant monetary loss, such as a 
lengthy suspension without pay or threats of future violence, could 
also be sufficient in appropriate circumstances.
    The regulation proposed by EEOC differs from the alternative 
proposal discussed above. Under the Commission's proposal, it would be 
sufficient for the employee to show that the challenged agency proposed 
action or threat is likely to dissuade a reasonable employee from 
complaining or assisting in complaints about discrimination. Under the 
alternative proposal, the employee would have to show that the proposed 
actions or threats were either pervasive enough or severe enough to 
create a hostile working environment. EEOC invites comments on both its 
proposed regulation and on the alternative proposed language.

EEOC Process

    The Workgroup recommended a number of changes to improve the 
hearings and appeals processes. The hearings changes are primarily non-
regulatory. With respect to appeals, the Commission proposes to require 
that agencies submit appeals records and complaint files to the 
Commission electronically. Complainants would be encouraged, but not 
required, to submit appeals and other documentation electronically. 
Several agencies submitted comments in favor of the electronic 
submission proposal. Many others, however, expressed reservations, 
noting that each agency has unique information technology security 
requirements, and expressing concern about ensuring the security of 
files and the costs of converting paper files. Some agencies asked that 
the implementation of an electronic filing requirement be delayed to 
allow agencies to budget for it and develop the means to comply. We 
have retained the electronic filing provision, as we believe that it 
will enable more efficient processing of appeals. As to delayed 
implementation, we note that EEOC will have to secure approval from the 
National Archives and Records Administration to maintain EEO appeal 
records electronically before commencing such a program.
    The Commission also proposes to revise Sec.  1614.402(f) to require 
that briefs in opposition to appeals be submitted to the Commission and 
served on the opposing party within 35 days of service of the statement 
or brief supporting the appeal (as opposed to the existing requirement 
that they be filed within 30 days of receipt of the statement or brief 
supporting the appeal.) Agency comments on this proposal were mixed. 
Those that were opposed expressed concerns about the delays in receipt 
of mail caused by the irradiation of mail in Washington, DC. We are 
requesting additional comments on how widespread the irradiation delays 
are and whether irradiation delays affect only agencies.
    The Commission proposes to revise Sec.  1614.405(b) (redesignated 
as Sec.  1614.405(c)) to provide that decisions

[[Page 67842]]

under the section are final for purposes of filing a civil action in 
federal court, unless a timely request for reconsideration is filed by 
a party to the case. Several agencies concurred with this proposal. The 
Commission also proposes to revise Sec.  1614.504(c) to differentiate 
the remedies available for breach of settlement agreements and breach 
of final decisions. For breach of a settlement, the section would 
continue to state that the Commission may order compliance or 
reinstatement of the complaint for further processing from the point 
processing ceased, whereas for breach of a final decision, the proposal 
would clarify that compliance is the only remedy. Three agencies 
expressed their agreement with the proposed change. The Commission also 
proposes editorial changes to Sec. Sec.  1614.402, 1614.405(a) and 
1614.409 to correct errors and omissions.

Class Complaints

    The Workgroup carefully considered the class complaint process and 
made a number of recommendations to improve its effectiveness. As a 
result of those recommendations, the Commission proposes to revise the 
class complaint regulations to make an administrative judge's decision 
on the merits of a class complaint a final decision, which the agency 
can fully implement or appeal in its final action. Currently, the 
administrative judge issues recommended findings and conclusions, which 
the agency may accept, reject, or modify in its final decision. For 
non-class complaints, the Commission changed the administrative judge's 
recommended decision to a final decision that is fully implemented or 
appealed by the agency in its final action in the 1999 regulation 
changes. This proposed change adopts the same language used in the 
individual complaint provision (``if the final order does not fully 
implement the decision of the administrative judge, then the agency 
shall simultaneously file and appeal * * * .'' 29 CFR 1614.110(a)) and 
would conform the class complaint decisions to the non-class complaint 
decisions.
    Four agencies commented in favor of the proposed change, but ten 
opposed it. The opposing agencies objected to removing the agencies' 
option to modify the findings and recommendations of the administrative 
judge, arguing that the change would impede their ability to settle 
cases. Agencies raised similar objections when the Commission proposed 
to make non-class complaint administrative judge decisions final in 
1999, but there has been no indication since then that agencies have 
been less able to settle complaints.
    The Commission also proposes to provide for expedited processing of 
appeals of decisions to accept or dismiss class complaints 
(certification decisions) to shorten the class certification process. 
Specifically, the Commission proposes to amend Sec.  1614.405, to 
provide that decisions on appeals of decisions to accept or dismiss 
class complaints will be issued within 90 days of receipt of the 
appeal.
    Finally, the Commission proposes an editorial change to Sec.  
1614.204(f)(1) to correct the omission of the word ``shall.''

Other Clarifying Changes

    The Commission proposes to amend Sec.  1614.109(g) to rename the 
section ``Summary Judgment'' instead of ``Decision without a hearing.'' 
This change is intended to convey more clearly the Commission's policy 
that the standards of Rule 56 of the Federal Rules of Civil Procedure 
governing summary judgments apply in the EEOC hearings process. This 
change is not intended, however, to alter existing Commission policy or 
practice; Commission decisions on the summary judgment process will 
continue to apply.
    The Commission proposes to amend Sec.  1614.302(c)(2) to correct an 
erroneous cross reference. The section should refer to Sec.  
1614.107(a)(4).
    Finally, the Commission proposes to revise Sec.  1614.502(c) to 
change the time frame within which agencies must provide the relief 
ordered from 60 days to 120 days. The regulation currently requires an 
agency to pay an administrative complainant who prevails before the 
EEOC within 60 days of EEOC's final decision. Since 1991, however, 
complainants have had up to 90 days to file suit in United States 
district court if they are dissatisfied with EEOC's decision. Once a 
civil action is filed, the EEOC decision is no longer final and the 
agency does not have to provide the relief awarded. Amending the 
regulation to require agency payment within 120 days will ensure that 
the EEOC award is final before the agency provides the relief. Agency 
comments were uniformly in favor of this proposed change.

Regulatory Procedures

Executive Order 12866

    In promulgating this notice of proposed rulemaking, the Commission 
has adhered to the regulatory philosophy and applicable principles of 
regulation set forth in section 1 of Executive Order 12866, Regulatory 
Planning and Review. This proposed regulation has been designated as a 
significant regulation and reviewed by OMB consistent with the 
Executive Order.

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b), enacted by the 
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not 
have a significant economic impact on a substantial number of small 
entities, because it applies exclusively to employees and agencies of 
the federal government. For this reason, a regulatory flexibility 
analysis is not required.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Paperwork Reduction Act

    This regulation contains no information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 29 CFR Part 1614

    Administrative practice and procedure, Age discrimination, Equal 
employment opportunity, Government employees, Individuals with 
disabilities, Race discrimination, Religious discrimination, Sex 
discrimination.

    For the Commission

    Dated: December 15, 2009.
Stuart J. Ishimaru,
Acting Chairman.
    Accordingly, for the reasons set forth in the preamble, the Equal 
Employment Opportunity Commission proposes to amend chapter XIV of 
title 29 of the Code of Federal Regulations as follows:

PART 1614--[AMENDED]

    1. The authority citation for 29 CFR part 1614 continues to read as 
follows:

    Authority:  29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 
2000e-16; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 
CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 1969 Comp., p. 133; 
E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3 
CFR, 1978 Comp., p. 321.


[[Page 67843]]


    2. In Sec.  1614.102 add new paragraphs (e) and (f) to read as 
follows:


Sec.  1614.102  Agency program.

* * * * *
    (e) Agency programs shall comply with this part and the Management 
Directives and Bulletins that the Commission issues. The Commission 
will review agency programs from time to time to ascertain whether they 
are in compliance. If an agency program is found not to be in 
compliance, efforts shall be undertaken to obtain compliance. The Chair 
may issue a notice to the head of any federal agency whose programs are 
not in compliance and identify each non-compliant agency in the Office 
of Federal Operations' annual report on the Federal workforce.
    (f) Unless prohibited by law or executive order, the Commission, in 
its discretion and for good cause shown, may grant agencies prospective 
variances from the complaint processing procedures prescribed in this 
Part. Variances will permit agencies to conduct pilot projects of 
proposed changes to the complaint processing requirements of this part 
that may later be made permanent through regulatory change. Agencies 
requesting variances must identify the specific section(s) of this part 
from which they wish to deviate and exactly what they propose to do 
instead, explain the expected benefit and expected effect on the 
process of the proposed pilot project, indicate the proposed duration 
of the pilot project, and discuss the method by which they intend to 
evaluate the success of the pilot project. Variances will not be 
granted for individual cases and will usually not be granted for more 
than 12 months. Requests for variances should be addressed to the 
Director, Office of Federal Operations.
    3. Revise 1614.103(b)(6) to read as follows:


Sec.  1614.103  Complaints of discrimination covered by this part.

* * * * *
    (b) * * *
    (6) The Government Printing Office except for complaints under the 
Rehabilitation Act; and
* * * * *
    4. Revise 1614.107(a)(5) to read as follows:


Sec.  1614.107  Dismissals of complaints.

    (a) * * *
    (5) That is moot or alleges that a proposal to take a personnel 
action, or other preliminary step to taking a personnel action, is 
discriminatory, unless the complaint alleges that the proposal or 
preliminary step is retaliatory;
* * * * *
    5. Amend 1614.108 by redesignating paragraph (g) as paragraph (h), 
and adding a new paragraph (g) to read as follows:


Sec.  1614.108  Investigation of complaints.

* * * * *
    (g) If the agency does not send the notice required in paragraph 
(f) of this section within the applicable time limits, it shall, within 
those same time limits, issue a written notice to the complainant 
informing the complainant that it has been unable to complete its 
investigation within the time limits required by Sec.  1614.108(f) and 
estimating a date by which the investigation will be completed. 
Further, the notice must explain that if the complainant does not want 
to wait until the agency completes the investigation, he or she may 
request a hearing in accordance with paragraph (h) of this section, or 
file a civil action in an appropriate United States District Court in 
accordance with section 1614.407(b). Such notice shall contain 
information about the hearing procedures.
* * * * *


Sec.  1614.109  [Amended]

    6. Amend the heading of Sec.  1614.109(g) to remove the words 
``Decisions without hearing'' and add in their place the words 
``Summary Judgment.''
    7. Amend 1614.204 to:
    a. In paragraph (f)(1) remove the words ``administrative judge 
notify'' from the first sentence and add in their place the words 
``administrative judge shall notify.''
    b. Revise paragraphs (i), (j) and (k) to read as set forth below.
    c. In paragraph (l)(2) remove the words ``final decision'' and add 
in their place the words ``final order.''
    d. In paragraph (l)(3) remove the words ``final decision'' wherever 
they appear in the first and next to last sentences and add in their 
place the words ``final order''; and revise the third sentence to read 
as set forth below.


Sec.  1614.204  Class complaints.

* * * * *
    (i) Decisions: The administrative judge shall transmit to the 
agency and class agent a decision on the complaint, including findings, 
systemic relief for the class and any individual relief, where 
appropriate, with regard to the personnel action or matter that gave 
rise to the complaint. If the administrative judge finds no class 
relief appropriate, he or she shall determine if a finding of 
individual discrimination is warranted and, if so, shall order 
appropriate relief.
    (j) Agency final action. (1) Within 60 days of receipt of the 
administrative judge's decision on the complaint, the agency shall take 
final action by issuing a final order. The final order shall notify the 
class agent whether or not the agency will fully implement the decision 
of the administrative judge and shall contain notice of the class 
agent's right to appeal to the Equal Employment Opportunity Commission, 
the right to file a civil action in federal district court, the name of 
the proper defendant in any such lawsuit, and the applicable time 
limits for appeals and lawsuits. If the final order does not fully 
implement the decision of the administrative judge, then the agency 
shall simultaneously file an appeal in accordance with Sec.  1614.403 
and append a copy of the appeal to the final order. A copy of EEOC Form 
673 shall be attached to the final order.
    (2) If an agency does not issue a final order within 60 days of 
receipt of the administrative judge's decision, then the decision of 
the administrative judge shall become the final action of the agency.
    (3) A final order on a class complaint shall, subject to subpart D 
of this part, be binding on all members of the class and the agency.
    (k) Notification of final action: The agency shall notify class 
members of the final action and relief awarded, if any, through the 
same media employed to give notice of the existence of the class 
complaint. The notice, where appropriate, shall include information 
concerning the rights of class members to seek individual relief, and 
of the procedures to be followed. Notice shall be given by the agency 
within 10 days of the transmittal of the final action to the agent.
    (l) * * *
    (3) * * * The claim must include a specific detailed showing that 
the claimant is a class member who was affected by the discriminatory 
policy or practice, and that this discriminatory action took place 
within the period of time for which class-wide discrimination was found 
in the final order. * * *


Sec.  1614.302  [Amended]

    8. Remove the words ``Sec.  1614.107(d)'' wherever they appear in 
Sec.  1614.302(c)(2) and add in their place the words ``Sec.  
1614.107(a)(4).''


Sec.  1614.401  [Amended]

    9. In Sec.  1614.401(c), remove the words ``a class agent may 
appeal a final decision on a class complaint'' and add

[[Page 67844]]

in their place the words ``a class agent may appeal an agency's final 
action or an agency may appeal an administrative judge's decision on a 
class complaint.''
    10. Add a new sentence to Sec.  1614.402(a) before the last 
sentence to read as follows:


Sec.  1614.402  Time for appeals to the Commission.

    (a) * * * Appeals described in Sec.  1614.401(d) must be filed 
within 30 days of receipt of the final decision of the agency, the 
arbitrator or the Federal Labor Relations Authority. * * *
* * * * *
    11. In Sec.  1614.403, revise the first sentence of paragraph (a), 
revise the first sentence of paragraph (f) and add a new paragraph (g) 
to read as follows:


Sec.  1614.403  How to appeal.

    (a) The complainant, agency, agent, grievant or individual class 
claimant (hereinafter appellant) must file an appeal with the Director, 
Office of Federal Operations, Equal Employment Opportunity Commission, 
at P.O. Box 77960, Washington, DC 20013, or electronically, or by 
personal delivery or facsimile. * * *
* * * * *
    (f) Any statement or brief in opposition to an appeal must be 
submitted to the Commission and served on the opposing party within 35 
days of service of the statement or brief supporting the appeal, or, if 
no statement or brief supporting the appeal is filed, within 60 days of 
receipt of the appeal. * * *
    (g) Agencies are required to submit all appeals, complaint files, 
and other appellate filings to EEOC electronically, except in exigent 
circumstances. Appellants are encouraged, but not required, to submit 
appeals and supporting documentation electronically.
    12. Amend Sec.  1614.405 to revise the second sentence of paragraph 
(a), redesignate paragraph (b) as paragraph (c), add a new paragraph 
(b) and revise the first sentence of redesignated paragraph (c) to read 
as follows:


Sec.  1614.405  Decisions on appeals.

    (a) * * * The Commission shall dismiss appeals in accordance with 
Sec. Sec.  1614.107, 1614.403(c) and 1614.409. * * *
    (b) The Office of Federal Operations, on behalf of the Commission, 
shall issue decisions on appeals of decisions to accept or dismiss a 
class complaint issued pursuant to Sec.  1614.204(d)(7) within 90 days 
of receipt of the appeal.
    (c) A decision issued under paragraph (a) of this section is final 
within the meaning of Sec.  1614.407 unless a timely request for 
reconsideration is filed by a party to the case. * * *
    13. Revise the first sentence of Sec.  1614.409 to read as follows:


Sec.  1614.409  Effect of filing a civil action.

    Filing a civil action under Sec. Sec.  1614.407 or 1614.408 shall 
terminate Commission processing of the appeal. * * *


Sec.  1614.502  [Amended]

    14. Revise the last sentence of Sec.  1614.502(c) to remove the 
words ``60 days'' and in their place add the words ``120 days.''
    15. Revise the second sentence of Sec.  1614.504(c) to read as 
follows:


Sec.  1614.504  Compliance with settlement agreements and final action.

* * * * *
    (c) * * * If the Commission determines that the agency is not in 
compliance with a decision or settlement agreement, and the 
noncompliance is not attributable to acts or conduct of the 
complainant, it may order such compliance with the decision or 
settlement agreement, or, alternatively, for a settlement agreement, it 
may order that the complaint be reinstated for further processing from 
the point processing ceased. * * *

[FR Doc. E9-30162 Filed 12-18-09; 8:45 am]
BILLING CODE 6570-01-P