Federal Sector Equal Employment Opportunity, 4015-4018 [2019-01976]

Download as PDF Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules (i) Initial Compliance Time: One-time Threshold For CMR task 220000–5, a one-time threshold, as specified in ATR ATR72 Time Limits Document, Revision 16, dated January 30, 2018, is allowed as specified in table 2 to paragraph (i) of this AD. (j) No Alternative Actions and Intervals After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (e.g., inspections) and intervals may be used unless the actions and intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (l)(1) of this AD. be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or ATR—GIE Avions de Transport Re´gional’s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature. (k) Terminating Action for AD 2018–14–11 Accomplishing the actions required by this AD terminates all requirements of AD 2018– 14–11. (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018–0184, dated August 28, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA–2018–1069. (2) For more information about this AD, contact Shahram Daneshmandi, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206–231–3220. (3) For service information identified in this AD, contact ATR—GIE Avions de Transport Re´gional, 1 Alle´e Pierre Nadot, 31712 Blagnac Cedex, France; telephone +33 (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; email continued.airworthiness@atraircraft.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. VerDate Sep<11>2014 17:17 Feb 13, 2019 Jkt 247001 Issued in Des Moines, Washington, on January 10, 2019. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service. [FR Doc. 2019–02158 Filed 2–13–19; 8:45 am] BILLING CODE 4910–13–P (m) Related Information PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 29 CFR Part 1614 RIN 3046–AA97 Federal Sector Equal Employment Opportunity Equal Employment Opportunity Commission. ACTION: Notice of proposed rulemaking. AGENCY: The Equal Employment Opportunity Commission (‘‘EEOC’’ or ‘‘Commission’’) is proposing a revision to its federal sector complaint processing regulations in order to bring them into compliance with a federal circuit court decision concerning whether and when a complainant may file a civil action after having previously filed an administrative appeal or request for reconsideration with the EEOC. The EEOC also proposes making certain editorial changes. DATES: Comments on the Notice of Proposed Rulemaking (hereinafter E:\FR\FM\14FEP1.SGM 14FEP1 EP14FE19.001</GPH> SUMMARY: EP14FE19.000</GPH> (l) Other FAA AD Provisions The following provisions also apply to this AD: (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (m)(2) of this AD. Information may be emailed to: 9-ANM-116-AMOCREQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must 4015 4016 Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules ‘‘NPRM’’) must be received on or before April 15, 2019. ADDRESSES: You may submit comments, identified by RIN Number 3046–AA97, by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Fax: (202) 663–4114. (There is no toll free FAX number). Only comments of six or fewer pages will be accepted via FAX transmittal, in order to assure access to the equipment. 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 (TTY). (These are not toll free numbers). • Mail: Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507. • Hand Delivery/Courier: Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507. Instructions: The Commission invites comments from all interested parties. All comment submissions must include the agency name and docket number or the Regulatory Information Number (RIN) for this rulemaking. Comments need be submitted in only one of the above-listed formats. All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide. Docket: For access to comments received, go to http:// www.regulations.gov. Copies of the received comments also will be available for review at the Commission’s library, 131 M Street NE, Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 5:00 p.m., from April 15, 2019 until the Commission publishes the rule in final form but you must make an appointment to do so with library staff. FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal Counsel, (202) 663–4681, or Gary J. Hozempa, Senior Staff Attorney, (202) 663–4666, or 1–800–669–6820) (TTY), Office of Legal Counsel, U.S. Equal Employment Opportunity Commission. (The first two telephone numbers are not toll free numbers). Requests for this document in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 663–4900 (voice) or (202) 663– 4494 (TTY). SUPPLEMENTARY INFORMATION: As set forth under the current federal sector VerDate Sep<11>2014 17:17 Feb 13, 2019 Jkt 247001 EEO complaint system (29 CFR part 1614), an individual complainant, or a class agent or claimant, who has filed an administrative complaint alleging a violation of section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e–16 (hereinafter ‘‘Title VII’’); section 15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 633a (hereinafter ‘‘ADEA’’); section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 (hereinafter ‘‘Rehabilitation Act’’); or section 202 of Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. 2000ff (hereinafter ‘‘GINA’’), may file a civil action within 90 days of receipt of final agency action unless the complainant has filed an appeal with the EEOC. See 29 CFR 1614.407(a). When an appeal is filed with the EEOC, the current rules state that the complainant must wait to file a civil action until one of two events occurs: the EEOC issues a final decision on the appeal; or 180 days have passed since the filing of the appeal and the EEOC has not issued a decision within that time period. See 29 CFR 1614.407(c) & (d) (a complainant may file a civil action ‘‘[w]ithin 90 days of receipt of the Commission’s final decision on an appeal[ ] or . . . [a]fter 180 days from the date of filing an appeal . . . if there has been no final decision by the Commission.’’). In 2012, the Ninth Circuit held that a literal application of 29 CFR 1614.407(d) is not warranted in all circumstances. In Bullock v. Berrien, 688 F.3d 613 (9th Cir. 2012), a federal employee (hereinafter referred to as ‘‘complainant’’) filed an administrative EEO complaint against her employing agency and subsequently filed an administrative appeal with the EEOC regarding the agency’s final action on her complaint. Shortly thereafter, the complainant withdrew the appeal and filed a civil action. The lawsuit was filed within the 90-day period following her receipt of the agency’s final action. The district court dismissed the civil action, finding that the complainant had failed to exhaust her administrative remedies. Relying on 29 CFR 1614.407(d), the district court concluded that the complainant’s appeal to EEOC ‘‘triggered the mandatory 180-day waiting period before Plaintiff was permitted to file with this Court.’’ Bullock v. Dominguez, 2010 WL 1734964, at *3 (S.D. Cal. April 27, 2010). The district court stated that the plaintiff’s ‘‘abandoned appeal would still trigger the 180-day rule, and her suit in this court was therefore premature.’’ Id. (citations omitted). PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 On appeal, the Ninth Circuit reversed. The court reasoned that, because a federal sector complainant can file a civil action within 90 days of receipt of the agency final action and is not required to file an appeal before going to court, an appeal to the EEOC is an optional rather than a required administrative step. The court concluded, therefore, that a federal employee can withdraw an optional appeal and file a civil action within the 90-day period following receipt of the agency final action. See Bullock, 688 F.3d at 618–19. The court noted that it had ‘‘no occasion to decide whether an employee’s lawsuit could proceed if the employee prematurely withdrew from an administrative appeal and filed suit more than 90 days after receiving notice of the final agency action on her complaint.’’ Id. at 619 (citations omitted). In light of the Ninth Circuit’s decision, the EEOC believes its regulations regarding a complainant’s right to file a civil action should be revised to recognize that filing an administrative appeal or a request for reconsideration is an optional administrative step, and that an administrative appeal or a request for reconsideration may be withdrawn without affecting the complainant’s right to file a civil action. In an initial draft of this NPRM that, pursuant to Executive Order 12067, the EEOC sent to federal agencies for coordination, the EEOC proposed to eliminate from 1614.407(a) and (b) language stating that a complainant may not go to court if an administrative appeal has been filed. The EEOC also proposed adding a paragraph (e) to 1614.407, stating that a complainant who has filed an appeal can withdraw it and proceed to court so long as the EEOC has not issued a final decision on the appeal. Thirteen agencies submitted comments. Three agencies concurred, but ten others opposed the proposed changes, particularly with respect to proposed 1614.407(e). The opposing agencies generally argued that the draft NPRM appeared to allow a complainant to withdraw an appeal and go to court even after 90 days of receipt of an agency final action, thereby purportedly establishing a right to file a civil action that does not exist in § 717(c) of Title VII. It is the intent of the Commission to make clear that, as held in Bullock, an appeal to the EEOC is an optional rather than a required administrative step, and that administrative exhaustion can occur when an agency either takes final action on a complaint or fails to take final action on a complaint within E:\FR\FM\14FEP1.SGM 14FEP1 Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules 180 days of the date the complaint is filed.1 The Commission can achieve this result through its proposed revisions to paragraphs (a) and (b) of 1614.407 (i.e., deleting the words ‘‘if no appeal has been filed’’ from current paragraph (a), and ‘‘if an appeal has not been filed’’ from current paragraph (b)). Additionally, section 717(c) of Title VII, 42 U.S.C. 2000e–16(c), provides that a complainant who wants to file a civil action after receiving notice of an agency’s final action must do so within 90 days. Thus, we agree that proposed 1614.407(e) should be revised to clarify that a complainant who has filed an appeal can withdraw it and proceed to court so long as the complainant does so within 90 days of receipt of an agency final action. Relatedly, after receiving an appellate decision from the Commission, ‘‘[a] party may request reconsideration within 30 days of receipt of a decision of the Commission. . . .’’ See 29 CFR 1614.405(c). If a request for reconsideration is filed, the appellate decision on which it is based is not deemed final for purposes of triggering the right to file a civil action contained in 29 CFR 1614.407(c). See 29 CFR 1614.405(c) (‘‘A decision issued [on appeal] is final within the meaning of § 1614.407 unless a timely request for reconsideration is filed by a party to the case.’’). Instead, the Commission decision issued in response to the request for reconsideration constitutes 1 While the EEOC agrees with the Ninth Circuit’s holding that an appeal to the EEOC of a final agency action is not required for exhaustion of administrative remedies, the EEOC disagrees with any suggestion that ‘‘adjudication by an ALJ’’ is required for exhaustion. See Bullock, 688 F.3d at 618 (‘‘[W]e hold that an aggrieved employee subject to the procedural rules of Title VII exhausts her administrative remedies by filing a formal complaint for adjudication by an ALJ.’’). The Ninth Circuit misstated the complaint processing steps set forth in 29 CFR part 1614. After filing a complaint, a complainant may request a hearing or an immediate final agency decision. The hearing is therefore optional and is held before an EEOCemployed Administrative Judge (AJ) (not an Administrative Law Judge appointed under 5 U.S.C. 3105). See 29 CFR 1614.108(f) (‘‘the complainant has the right to request a hearing and decision from an administrative judge or may request an immediate final decision . . . from the agency with which the complaint was filed’’); 1614.108(h) (‘‘the complainant may request a hearing . . .’’); 1614.109(a) (‘‘When a complainant requests a hearing, the Commission shall appoint an administrative judge to conduct a hearing in accordance with this section.’’); 1614.110 (‘‘[w]hen an agency . . . receives a request for an immediate final decision . . .’’). Thus, exhaustion occurs 180 days after the filing of the complaint, regardless of whether the complainant requests or receives a hearing. See 29 CFR 1614.108(g) (‘‘If the agency . . . has been unable to complete its investigation within the time limits required by § 1614.108(f) [(usually 180 days after the complaint is filed),] . . . the complainant . . . may . . . file a civil action in an appropriate United States District Court . . . .’’). VerDate Sep<11>2014 17:17 Feb 13, 2019 Jkt 247001 the EEOC’s final decision for purposes of invoking the 90-day time period in which a complainant may file a civil action. See 29 CFR 1614.407(c) (a complainant may file a civil action ‘‘[w]ithin 90 days of receipt of the Commission’s final decision . . . .’’). For purposes of consistency, the Commission also proposes to add a paragraph (f) to current § 1614.407 in order to address requests for reconsideration. In conjunction with the proposed revision to 29 CFR 1614.407, the EEOC is proposing to remove 29 CFR 1614.201(c). This paragraph currently sets forth the conditions under which a complainant who has filed a non-mixed case complaint alleging age discrimination is deemed to have exhausted administrative remedies and can file a civil action. Exhaustion requirements for complaints filed under the ADEA (as well as complaints filed under Title VII, the Rehabilitation Act, and GINA) also are set forth in § 1614.407. Some, but not all, of the exhaustion requirements under paragraph 1614.201(c) are the same as those under § 1614.407. To the extent the exhaustion requirements differ, those listed in § 1614.407, as amended by this proposed rule, are the correct ones. Therefore, the EEOC proposes to eliminate paragraph 1614.201(c). The unique alternative exhaustion requirement that solely pertains to complaints filed under the ADEA—that a complainant may file a civil action thirty days after giving EEOC notice of the intent to file the civil action—is retained in current paragraph 1614.201(a). Similarly, the exhaustion requirements applicable to all mixedcase complaints, including those filed under the ADEA (as well as Title VII, the Rehabilitation Act, and GINA), as set forth in § 1614.310, are retained. Thus, the proposed elimination of paragraph 1614.201(c) will not affect the rights of a complainant who files an ADEA complaint, whether as a mixed or nonmixed complaint. One agency suggested that the EEOC include a provision requiring a complainant to notify the relevant agency when the complainant withdraws an appeal filed with OFO. While this suggestion has merit, the EEOC’s concern is with the enforceability of the suggested rule. Nevertheless, the EEOC proposes revising 29 CFR 1614.409 to indicate that the EEOC will not be able to enforce an appellate decision that is issued after a complainant has filed a civil action, and that a complainant should notify the EEOC when he or she files a civil action while an appeal is pending. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 4017 Finally, the EEOC proposes making an editorial change to 29 CFR 1614.505(a)(4) (‘‘Interim relief’’). Currently, that paragraph contains an erroneous reference to § 1614.505(b)(2). There is no paragraph (b)(2) within § 1614.505. Instead, the proper reference should be to paragraph (a)(3) of § 1614.505. Thus, the Commission proposes making this change. Regulatory Procedures Executive Order 12866 The Commission has complied with the principles in section 1(b) of Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a ‘‘significant regulatory action’’ under section 3(f) of the Order, and does not require an assessment of potential costs and benefits under section 6(a)(3) of the Order. Executive Order 13771 This proposed rule is not subject to Executive Order 13771, Reducing Regulation and Controlling Regulatory Cost. Pursuant to guidance issued by the Office of Management and Budget’s Office of Information and Regulatory Affairs (April 5, 2017), an ‘‘E.O. 13771 regulatory action’’ is defined as ‘‘[a] significant regulatory action as defined in section 3(f) of E.O. 12866 . . . .’’ As noted above, this proposed rule is not a significant regulatory action under section 3(f) of E.O. 12866. Thus, this proposed rule does not require the EEOC to issue two E.O. 13771 deregulatory actions. Paperwork Reduction Act This proposed rule contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). Regulatory Flexibility Act The Commission certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities because it applies exclusively to employees and agencies of the federal government and does not impose a burden on any business entities. For this reason, a regulatory flexibility analysis is not required. Unfunded Mandates Reform Act of 1995 This 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 E:\FR\FM\14FEP1.SGM 14FEP1 4018 Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Congressional Review Act This proposed rule does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a ‘‘rule’’ as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply. List of Subjects in 29 CFR Part 1614 Administrative practice and procedure, Age discrimination, Equal employment opportunity, Government employees, Individuals with disabilities, Race discrimination, Religious discrimination, Sex discrimination. For the Commission. Dated: December 20, 2018. Victoria A. Lipnic, Acting Chair. 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—FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY 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. § 1614.201 [Amended] 2. In § 1614.201, remove paragraph (c). ■ 3. In § 1614.407: ■ a. Revise the section heading; ■ b. In the introductory text, remove the word ‘‘and’’ after ‘‘ADEA’’ and add in its place a comma; and add the words ‘‘and Genetic Information Nondiscrimination Act’’ after ‘‘Rehabilitation Act’’; and ■ c. Revise paragraphs (a) and (b), and add paragraphs (e) and (f). The revisions and additions read as follows: ■ (a) Within 90 days of receipt of the agency final action on an individual or class complaint; (b) After 180 days from the date of filing an individual or class complaint if agency final action has not been taken; * * * * * (e) After filing an appeal with the EEOC from an agency final action, the complainant, class agent, or class claimant may withdraw the appeal and file a civil action within 90 days of receipt of the agency final action. If the complainant, class agent, or class claimant files an appeal with the EEOC from a final agency action and more than 90 days have passed since receipt of the agency final action, the appellant may file a civil action only in accordance with paragraphs (c) or (d) of this section. (f) After filing a request for reconsideration of an EEOC decision on an appeal, the complainant, class agent, or class claimant may withdraw the request and file a civil action within 90 days of receipt of the EEOC’s decision on the appeal. If the complainant, class agent, or class claimant files a request for reconsideration of an EEOC decision on an appeal and more than 90 days have passed since the appellant received the EEOC’s decision on the appeal, the appellant may file a civil action only in accordance with paragraphs (c) or (d) of this section. ■ 4. In § 1614.409, revise the introductory text to read as follows: § 1614.409 Effect of filing a civil action. Filing a civil action under § 1614.407 or § 1614.408 shall terminate Commission processing of the appeal. A Commission decision on an appeal issued after a complainant files suit in district court will not be enforceable by the Commission. If private suit is filed subsequent to the filing of an appeal and prior to a final Commission decision, the complainant should notify the Commission in writing. § 1614.505 [Amended] 5. In § 1614.505(a)(4), remove the reference ‘‘(b)(2)’’ and add in its place ‘‘(a)(3).’’ ■ [FR Doc. 2019–01976 Filed 2–13–19; 8:45 am] BILLING CODE 6570–01–P § 1614.407 Civil action: Title VII, Age Discrimination in Employment Act, Rehabilitation Act, and Genetic Information Nondiscrimination Act. * * * VerDate Sep<11>2014 * * 17:17 Feb 13, 2019 Jkt 247001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 DEPARTMENT OF EDUCATION 34 CFR Part 106 RIN 1870–AA14 [Docket ID ED–2018–OCR–0064] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance Office for Civil Rights, Department of Education. ACTION: Notice of proposed rulemaking; reopening of comment period. AGENCY: On November 29, 2018, the Department published in the Federal Register a notice of proposed rulemaking (NPRM) to amend the Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance regulations. That NPRM established a 60-day comment period from November 29, 2018, through January 28, 2019. On January 28, the Department published in the Federal Register a document extending the public comment period for two days, until January 30, 2019. In an abundance of caution, to the extent that some users may have experienced technical issues preventing the submission of comments using the Federal eRulemaking Portal, the Department is reopening the comment period for one day on February 15, 2019. DATES: The comment period for the proposed rule published November 29, 2018 at 83 FR 61462, and extended on January 28, 2019 at 84 FR 409, is reopened. Comments must be submitted to the Department on February 15, 2019. ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. The Department will not accept comments submitted by fax or by email or those submitted outside of the comment period. Thus, we will not accept comments submitted from January 31, 2019, through February 14, 2019, or comments submitted after February 15, 2019. To ensure that the Department does not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments. • Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for finding a rule on the site and submitting comments, is available on the site under ‘‘How to use Regulations.gov’’ in the Help section. If SUMMARY: E:\FR\FM\14FEP1.SGM 14FEP1

Agencies

[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Proposed Rules]
[Pages 4015-4018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01976]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AA97


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is proposing a revision to its federal sector complaint 
processing regulations in order to bring them into compliance with a 
federal circuit court decision concerning whether and when a 
complainant may file a civil action after having previously filed an 
administrative appeal or request for reconsideration with the EEOC. The 
EEOC also proposes making certain editorial changes.

DATES: Comments on the Notice of Proposed Rulemaking (hereinafter

[[Page 4016]]

``NPRM'') must be received on or before April 15, 2019.

ADDRESSES: You may submit comments, identified by RIN Number 3046-AA97, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 663-4114. (There is no toll free FAX number). 
Only comments of six or fewer pages will be accepted via FAX 
transmittal, in order to assure access to the equipment. 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 (TTY). (These are not 
toll free numbers).
     Mail: Bernadette B. Wilson, Executive Officer, Executive 
Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street 
NE, Washington, DC 20507.
     Hand Delivery/Courier: Bernadette B. Wilson, Executive 
Officer, Executive Secretariat, U.S. Equal Employment Opportunity 
Commission, 131 M Street NE, Washington, DC 20507.
    Instructions: The Commission invites comments from all interested 
parties. All comment submissions must include the agency name and 
docket number or the Regulatory Information Number (RIN) for this 
rulemaking. Comments need be submitted in only one of the above-listed 
formats. All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide.
    Docket: For access to comments received, go to http://www.regulations.gov. Copies of the received comments also will be 
available for review at the Commission's library, 131 M Street NE, 
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 
5:00 p.m., from April 15, 2019 until the Commission publishes the rule 
in final form but you must make an appointment to do so with library 
staff.

FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal 
Counsel, (202) 663-4681, or Gary J. Hozempa, Senior Staff Attorney, 
(202) 663-4666, or 1-800-669-6820) (TTY), Office of Legal Counsel, U.S. 
Equal Employment Opportunity Commission. (The first two telephone 
numbers are not toll free numbers). Requests for this document in an 
alternative format should be made to the Office of Communications and 
Legislative Affairs at (202) 663-4900 (voice) or (202) 663-4494 (TTY).

SUPPLEMENTARY INFORMATION: As set forth under the current federal 
sector EEO complaint system (29 CFR part 1614), an individual 
complainant, or a class agent or claimant, who has filed an 
administrative complaint alleging a violation of section 717 of Title 
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16 
(hereinafter ``Title VII''); section 15 of the Age Discrimination in 
Employment Act of 1967, as amended, 29 U.S.C. 633a (hereinafter 
``ADEA''); section 501 of the Rehabilitation Act of 1973, as amended, 
29 U.S.C. 791 (hereinafter ``Rehabilitation Act''); or section 202 of 
Title II of the Genetic Information Nondiscrimination Act of 2008, 42 
U.S.C. 2000ff (hereinafter ``GINA''), may file a civil action within 90 
days of receipt of final agency action unless the complainant has filed 
an appeal with the EEOC. See 29 CFR 1614.407(a). When an appeal is 
filed with the EEOC, the current rules state that the complainant must 
wait to file a civil action until one of two events occurs: the EEOC 
issues a final decision on the appeal; or 180 days have passed since 
the filing of the appeal and the EEOC has not issued a decision within 
that time period. See 29 CFR 1614.407(c) & (d) (a complainant may file 
a civil action ``[w]ithin 90 days of receipt of the Commission's final 
decision on an appeal[ ] or . . . [a]fter 180 days from the date of 
filing an appeal . . . if there has been no final decision by the 
Commission.'').
    In 2012, the Ninth Circuit held that a literal application of 29 
CFR 1614.407(d) is not warranted in all circumstances. In Bullock v. 
Berrien, 688 F.3d 613 (9th Cir. 2012), a federal employee (hereinafter 
referred to as ``complainant'') filed an administrative EEO complaint 
against her employing agency and subsequently filed an administrative 
appeal with the EEOC regarding the agency's final action on her 
complaint. Shortly thereafter, the complainant withdrew the appeal and 
filed a civil action. The lawsuit was filed within the 90-day period 
following her receipt of the agency's final action.
    The district court dismissed the civil action, finding that the 
complainant had failed to exhaust her administrative remedies. Relying 
on 29 CFR 1614.407(d), the district court concluded that the 
complainant's appeal to EEOC ``triggered the mandatory 180-day waiting 
period before Plaintiff was permitted to file with this Court.'' 
Bullock v. Dominguez, 2010 WL 1734964, at *3 (S.D. Cal. April 27, 
2010). The district court stated that the plaintiff's ``abandoned 
appeal would still trigger the 180-day rule, and her suit in this court 
was therefore premature.'' Id. (citations omitted).
    On appeal, the Ninth Circuit reversed. The court reasoned that, 
because a federal sector complainant can file a civil action within 90 
days of receipt of the agency final action and is not required to file 
an appeal before going to court, an appeal to the EEOC is an optional 
rather than a required administrative step. The court concluded, 
therefore, that a federal employee can withdraw an optional appeal and 
file a civil action within the 90-day period following receipt of the 
agency final action. See Bullock, 688 F.3d at 618-19. The court noted 
that it had ``no occasion to decide whether an employee's lawsuit could 
proceed if the employee prematurely withdrew from an administrative 
appeal and filed suit more than 90 days after receiving notice of the 
final agency action on her complaint.'' Id. at 619 (citations omitted).
    In light of the Ninth Circuit's decision, the EEOC believes its 
regulations regarding a complainant's right to file a civil action 
should be revised to recognize that filing an administrative appeal or 
a request for reconsideration is an optional administrative step, and 
that an administrative appeal or a request for reconsideration may be 
withdrawn without affecting the complainant's right to file a civil 
action.
    In an initial draft of this NPRM that, pursuant to Executive Order 
12067, the EEOC sent to federal agencies for coordination, the EEOC 
proposed to eliminate from 1614.407(a) and (b) language stating that a 
complainant may not go to court if an administrative appeal has been 
filed. The EEOC also proposed adding a paragraph (e) to 1614.407, 
stating that a complainant who has filed an appeal can withdraw it and 
proceed to court so long as the EEOC has not issued a final decision on 
the appeal.
    Thirteen agencies submitted comments. Three agencies concurred, but 
ten others opposed the proposed changes, particularly with respect to 
proposed 1614.407(e). The opposing agencies generally argued that the 
draft NPRM appeared to allow a complainant to withdraw an appeal and go 
to court even after 90 days of receipt of an agency final action, 
thereby purportedly establishing a right to file a civil action that 
does not exist in Sec.  717(c) of Title VII. It is the intent of the 
Commission to make clear that, as held in Bullock, an appeal to the 
EEOC is an optional rather than a required administrative step, and 
that administrative exhaustion can occur when an agency either takes 
final action on a complaint or fails to take final action on a 
complaint within

[[Page 4017]]

180 days of the date the complaint is filed.\1\ The Commission can 
achieve this result through its proposed revisions to paragraphs (a) 
and (b) of 1614.407 (i.e., deleting the words ``if no appeal has been 
filed'' from current paragraph (a), and ``if an appeal has not been 
filed'' from current paragraph (b)). Additionally, section 717(c) of 
Title VII, 42 U.S.C. 2000e-16(c), provides that a complainant who wants 
to file a civil action after receiving notice of an agency's final 
action must do so within 90 days. Thus, we agree that proposed 
1614.407(e) should be revised to clarify that a complainant who has 
filed an appeal can withdraw it and proceed to court so long as the 
complainant does so within 90 days of receipt of an agency final 
action.
---------------------------------------------------------------------------

    \1\ While the EEOC agrees with the Ninth Circuit's holding that 
an appeal to the EEOC of a final agency action is not required for 
exhaustion of administrative remedies, the EEOC disagrees with any 
suggestion that ``adjudication by an ALJ'' is required for 
exhaustion. See Bullock, 688 F.3d at 618 (``[W]e hold that an 
aggrieved employee subject to the procedural rules of Title VII 
exhausts her administrative remedies by filing a formal complaint 
for adjudication by an ALJ.''). The Ninth Circuit misstated the 
complaint processing steps set forth in 29 CFR part 1614. After 
filing a complaint, a complainant may request a hearing or an 
immediate final agency decision. The hearing is therefore optional 
and is held before an EEOC-employed Administrative Judge (AJ) (not 
an Administrative Law Judge appointed under 5 U.S.C. 3105). See 29 
CFR 1614.108(f) (``the complainant has the right to request a 
hearing and decision from an administrative judge or may request an 
immediate final decision . . . from the agency with which the 
complaint was filed''); 1614.108(h) (``the complainant may request a 
hearing . . .''); 1614.109(a) (``When a complainant requests a 
hearing, the Commission shall appoint an administrative judge to 
conduct a hearing in accordance with this section.''); 1614.110 
(``[w]hen an agency . . . receives a request for an immediate final 
decision . . .''). Thus, exhaustion occurs 180 days after the filing 
of the complaint, regardless of whether the complainant requests or 
receives a hearing. See 29 CFR 1614.108(g) (``If the agency . . . 
has been unable to complete its investigation within the time limits 
required by Sec.  1614.108(f) [(usually 180 days after the complaint 
is filed),] . . . the complainant . . . may . . . file a civil 
action in an appropriate United States District Court . . . .'').
---------------------------------------------------------------------------

    Relatedly, after receiving an appellate decision from the 
Commission, ``[a] party may request reconsideration within 30 days of 
receipt of a decision of the Commission. . . .'' See 29 CFR 
1614.405(c). If a request for reconsideration is filed, the appellate 
decision on which it is based is not deemed final for purposes of 
triggering the right to file a civil action contained in 29 CFR 
1614.407(c). See 29 CFR 1614.405(c) (``A decision issued [on appeal] is 
final within the meaning of Sec.  1614.407 unless a timely request for 
reconsideration is filed by a party to the case.''). Instead, the 
Commission decision issued in response to the request for 
reconsideration constitutes the EEOC's final decision for purposes of 
invoking the 90-day time period in which a complainant may file a civil 
action. See 29 CFR 1614.407(c) (a complainant may file a civil action 
``[w]ithin 90 days of receipt of the Commission's final decision . . . 
.''). For purposes of consistency, the Commission also proposes to add 
a paragraph (f) to current Sec.  1614.407 in order to address requests 
for reconsideration.
    In conjunction with the proposed revision to 29 CFR 1614.407, the 
EEOC is proposing to remove 29 CFR 1614.201(c). This paragraph 
currently sets forth the conditions under which a complainant who has 
filed a non-mixed case complaint alleging age discrimination is deemed 
to have exhausted administrative remedies and can file a civil action. 
Exhaustion requirements for complaints filed under the ADEA (as well as 
complaints filed under Title VII, the Rehabilitation Act, and GINA) 
also are set forth in Sec.  1614.407. Some, but not all, of the 
exhaustion requirements under paragraph 1614.201(c) are the same as 
those under Sec.  1614.407. To the extent the exhaustion requirements 
differ, those listed in Sec.  1614.407, as amended by this proposed 
rule, are the correct ones. Therefore, the EEOC proposes to eliminate 
paragraph 1614.201(c).
    The unique alternative exhaustion requirement that solely pertains 
to complaints filed under the ADEA--that a complainant may file a civil 
action thirty days after giving EEOC notice of the intent to file the 
civil action--is retained in current paragraph 1614.201(a). Similarly, 
the exhaustion requirements applicable to all mixed-case complaints, 
including those filed under the ADEA (as well as Title VII, the 
Rehabilitation Act, and GINA), as set forth in Sec.  1614.310, are 
retained. Thus, the proposed elimination of paragraph 1614.201(c) will 
not affect the rights of a complainant who files an ADEA complaint, 
whether as a mixed or non-mixed complaint.
    One agency suggested that the EEOC include a provision requiring a 
complainant to notify the relevant agency when the complainant 
withdraws an appeal filed with OFO. While this suggestion has merit, 
the EEOC's concern is with the enforceability of the suggested rule. 
Nevertheless, the EEOC proposes revising 29 CFR 1614.409 to indicate 
that the EEOC will not be able to enforce an appellate decision that is 
issued after a complainant has filed a civil action, and that a 
complainant should notify the EEOC when he or she files a civil action 
while an appeal is pending.
    Finally, the EEOC proposes making an editorial change to 29 CFR 
1614.505(a)(4) (``Interim relief''). Currently, that paragraph contains 
an erroneous reference to Sec.  1614.505(b)(2). There is no paragraph 
(b)(2) within Sec.  1614.505. Instead, the proper reference should be 
to paragraph (a)(3) of Sec.  1614.505. Thus, the Commission proposes 
making this change.

Regulatory Procedures

Executive Order 12866

    The Commission has complied with the principles in section 1(b) of 
Executive Order 12866, Regulatory Planning and Review. This proposed 
rule is not a ``significant regulatory action'' under section 3(f) of 
the Order, and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of the Order.

Executive Order 13771

    This proposed rule is not subject to Executive Order 13771, 
Reducing Regulation and Controlling Regulatory Cost. Pursuant to 
guidance issued by the Office of Management and Budget's Office of 
Information and Regulatory Affairs (April 5, 2017), an ``E.O. 13771 
regulatory action'' is defined as ``[a] significant regulatory action 
as defined in section 3(f) of E.O. 12866 . . . .'' As noted above, this 
proposed rule is not a significant regulatory action under section 3(f) 
of E.O. 12866. Thus, this proposed rule does not require the EEOC to 
issue two E.O. 13771 deregulatory actions.

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because it applies exclusively to employees 
and agencies of the federal government and does not impose a burden on 
any business entities. For this reason, a regulatory flexibility 
analysis is not required.

Unfunded Mandates Reform Act of 1995

    This 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

[[Page 4018]]

deemed necessary under the provisions of the Unfunded Mandates Reform 
Act of 1995.

Congressional Review Act

    This proposed rule does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996). Therefore, 
the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 29 CFR Part 1614

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

    For the Commission.

     Dated: December 20, 2018.
Victoria A. Lipnic,
Acting Chair.

    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--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

0
 1. The authority citation for 29 CFR part 1614 continues to read as 
follows:

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


Sec.  1614.201  [Amended]

0
 2. In Sec.  1614.201, remove paragraph (c).
0
 3. In Sec.  1614.407:
0
a. Revise the section heading;
0
b. In the introductory text, remove the word ``and'' after ``ADEA'' and 
add in its place a comma; and add the words ``and Genetic Information 
Nondiscrimination Act'' after ``Rehabilitation Act''; and
0
c. Revise paragraphs (a) and (b), and add paragraphs (e) and (f).
    The revisions and additions read as follows:


Sec.  1614.407  Civil action: Title VII, Age Discrimination in 
Employment Act, Rehabilitation Act, and Genetic Information 
Nondiscrimination Act.

* * * * *
    (a) Within 90 days of receipt of the agency final action on an 
individual or class complaint;
    (b) After 180 days from the date of filing an individual or class 
complaint if agency final action has not been taken;
* * * * *
    (e) After filing an appeal with the EEOC from an agency final 
action, the complainant, class agent, or class claimant may withdraw 
the appeal and file a civil action within 90 days of receipt of the 
agency final action. If the complainant, class agent, or class claimant 
files an appeal with the EEOC from a final agency action and more than 
90 days have passed since receipt of the agency final action, the 
appellant may file a civil action only in accordance with paragraphs 
(c) or (d) of this section.
    (f) After filing a request for reconsideration of an EEOC decision 
on an appeal, the complainant, class agent, or class claimant may 
withdraw the request and file a civil action within 90 days of receipt 
of the EEOC's decision on the appeal. If the complainant, class agent, 
or class claimant files a request for reconsideration of an EEOC 
decision on an appeal and more than 90 days have passed since the 
appellant received the EEOC's decision on the appeal, the appellant may 
file a civil action only in accordance with paragraphs (c) or (d) of 
this section.
0
4. In Sec.  1614.409, revise the introductory text to read as follows:


Sec.  1614.409  Effect of filing a civil action.

    Filing a civil action under Sec.  1614.407 or Sec.  1614.408 shall 
terminate Commission processing of the appeal. A Commission decision on 
an appeal issued after a complainant files suit in district court will 
not be enforceable by the Commission. If private suit is filed 
subsequent to the filing of an appeal and prior to a final Commission 
decision, the complainant should notify the Commission in writing.


Sec.  1614.505  [Amended]

0
5. In Sec.  1614.505(a)(4), remove the reference ``(b)(2)'' and add in 
its place ``(a)(3).''
[FR Doc. 2019-01976 Filed 2-13-19; 8:45 am]
 BILLING CODE 6570-01-P