Personnel Appeals Board; Procedural Rules, 82277-82279 [2023-25647]
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82277
Proposed Rules
Federal Register
Vol. 88, No. 225
Friday, November 24, 2023
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
GOVERNMENT ACCOUNTABILITY
OFFICE
4 CFR Part 28
Personnel Appeals Board; Procedural
Rules
Government Accountability
Office Personnel Appeals Board.
ACTION: Proposed rule.
AGENCY:
The Government
Accountability Office Personnel
Appeals Board (PAB or Board) proposes
to give the PAB General Counsel
authority to process certain retaliation
claims that have not first undergone
GAO’s Equal Employment Opportunity
(EEO) process, and to hold certain
nondiscrimination claims in abeyance if
they are related to a claim pending in
GAO’s EEO process. These proposed
changes are in response to an internal
query that brought up the need to clarify
perceived ambiguities in the existing
regulations. The PAB also proposes to
update the definition of prohibited
discrimination to be consistent with
changes in nondiscrimination laws. In
addition, the PAB proposes to replace
gendered pronouns with gender-neutral
ones to reflect current usage practices.
The General Accounting Office
Personnel Act of 1980 provides
authority to make these changes.
DATES: Comments must be received on
or before January 23, 2024.
ADDRESSES: Comments may be
submitted by any of the following
methods:
Mail: Patricia Reardon-King, Clerk of
the Board, Personnel Appeals Board,
U.S. Government Accountability Office,
Room 1566, 441 G Street NW,
Washington, DC 20548.
Email: pab@gao.gov.
FOR FURTHER INFORMATION CONTACT:
Stuart Melnick, Executive Director, 202–
512–3836 or Kevin Wilson, Solicitor,
202–512–7517, pab@gao.gov.
SUPPLEMENTARY INFORMATION: GAO is
not subject to the Administrative
Procedure Act and accordingly the
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SUMMARY:
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Personnel Appeals Board is not required
by law to seek comments before issuing
a final rule. However, the Board has
decided to invite interested persons to
participate in this rulemaking by
submitting written comments regarding
the proposed revisions. Application of
the Administrative Procedure Act to the
GAO Personnel Appeals Board is not to
be inferred from this invitation for
comments.
The Board is authorized by Congress,
pursuant to 31 U.S.C. 751–755, to hear
and decide cases brought by GAO
employees concerning various
personnel matters including adverse or
performance-based actions, claims of
discrimination, alleged prohibited
personnel practices, and labormanagement relations. The Board also
exercises authority over GAO’s EEO
process at the agency. The Board’s
procedural regulations applicable to
GAO appear at 4 CFR parts 27 and 28.
The Board is proposing to revise two
sections of these regulations to ensure
consistency with current law and to
address a process ambiguity in the
current language. The Board is also
proposing to replace gendered pronouns
with gender-neutral pronouns.
The Board proposes to amend section
28.95 by specifically referencing the
Equal Pay Act of 1963 (29 U.S.C.
206(d)), the Genetic Information
Nondiscrimination Act of 2008 (42
U.S.C. 2000ff–1), and the Pregnancy
Workers Fairness Act (42 U.S.C.
2000gg–1) in its definition of prohibited
EEO discrimination. The addition of the
reference to the Equal Pay Act of 1963
is to clarify that the prohibition on
discrimination in wages on the basis of
sex derives from Equal Pay Act of 1963’s
amendment of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d)).
The additions of the references to the
Genetic Information Nondiscrimination
Act of 2008 and the Pregnancy Workers
Fairness Act in paragraph (e) and new
paragraph (f) of 4 CFR 28.95 reflect
types of discrimination that became
prohibited on the effective dates of the
respective statutes but had not yet been
codified into the Board’s regulations.
Similarly, the revision of the
definition of prohibited discrimination
in new paragraph (h) of 4 CFR 28.95
includes a list of activities that may not
form the basis for employment actions.
Discrimination in retaliation for
protected EEO activity became
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Fmt 4702
Sfmt 4702
prohibited on the effective dates of the
respective EEO statutes. This proposed
revision codifies existing prohibitions
and does not create a new cause of
action.
These proposed regulations also
resolve ambiguity over when retaliation
claims related to discrimination on one
of the EEO-protected bases, including
claims of retaliation under prohibited
personnel practices laws like 5 U.S.C.
2302(b)(9), must go through GAO’s EEO
process pursuant to GAO Order 2713.2
before a charge containing these claims
can be filed with the Board’s Office of
General Counsel and a petition
containing them can be filed with the
Board. Retaliation claims related to
discrimination on one of the EEOprotected bases involving a removal, a
suspension of more than 14 days, or a
furlough of not more than 30 days
would continue to have the option,
pursuant to 4 CFR 28.98(c), of filing a
discrimination complaint with GAO
pursuant to GAO Order 2713.2 or
bypassing the EEO process and filing a
charge directly with the Board’s Office
of General Counsel. These proposed
revisions would clarify that other
retaliation claims related to
discrimination on one of the EEOprotected bases may also bypass GAO’s
EEO process if they are not related to
the filing or assisting with a
discrimination complaint filed pursuant
to GAO Order 2713.2. The Board’s
General Counsel would be empowered
to make a determination of whether
retaliation claims related to
discrimination on one of the EEOprotected bases are related to filing or
assisting with a discrimination
complaint filed pursuant to GAO Order
2713.2. If the claims are related to the
filing or assisting with a discrimination
complaint filed pursuant to GAO Order
2713.2, the General Counsel would
inform the individual that they need to
file their complaint with GAO pursuant
to GAO Order 2713.2 before the Board’s
Office of General Counsel is permitted
to process their charge on these
allegations. If the General Counsel
determines the claims are not related to
filing or assisting with a discrimination
complaint pursuant to GAO Order
2713.2, the Board’s Office of General
Counsel would inform the individual
that the charge containing these claims
can be processed by the Board’s Office
of General Counsel without delay. The
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Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Proposed Rules
purpose of giving this unreviewable
discretion to the Board’s General
Counsel is to give certainty to
individuals that their claims may be
processed immediately by the Board’s
Office of General Counsel without fear
of having the claims subsequently
dismissed for failure to exhaust the
administrative remedies contained in
GAO Order 2713.2.
Finally, the proposed regulations
would allow the Board’s Office of
General Counsel to hold in abeyance
nondiscrimination allegations while
related discrimination allegations are
being pursued through GAO’s EEO
process. Once the discrimination
complaint resolution process concludes,
or the individual opts out of it, both
types of claims could then be
investigated together. The Board’s
General Counsel is to utilize this
provision when the claims are so related
that the Board’s General Counsel
determines it would be most
appropriate to conduct a single
investigation into them. The Board’s
General Counsel would have discretion
to revisit this decision at any time and
no longer hold a claim in abeyance. For
purposes of 4 CFR 28.12(g), the length
of time a claim is held in abeyance
would count toward the 180-day period
after which a charging party may opt out
of the Board’s Office of General
Counsel’s investigation and file a
petition with the Board. The Board will
consider all comments received on or
before the closing date for comments.
The Board may change the proposed
revisions based on the comments
received.
List of Subjects in 4 CFR Part 28
Administrative practice and
procedure, Claims, Equal employment
opportunity, Government employees.
ddrumheller on DSK120RN23PROD with PROPOSALS1
For the reasons stated in the
preamble, the Government
Accountability Office proposes to
amend title 4, chapter I, subchapter B,
part 28 of the Code of Federal
Regulations as follows:
PART 28—GOVERNMENT
ACCOUNTABILITY OFFICE
PERSONNEL APPEALS BOARD;
PROCEDURES APPLICABLE TO
CLAIMS CONCERNING EMPLOYMENT
PRACTICES AT THE GOVERNMENT
ACCOUNTABILITY OFFICE
1. The authority citation for part 28
continues to read as follows:
■
Authority: 31 U.S.C. 753.
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PART 28
2. Amend part 28 by removing the
word or phrase indicated in the left
column of the table from wherever it
appears in the part and adding the word
or phrase indicated in the right column
in its place:
■
Remove
Add
‘‘him or her’’ ..............
‘‘him- or herself’’ ........
‘‘himself or herself .....
‘‘his or her’’ ................
‘‘his/her’’ ....................
‘‘he or she has’’ .........
‘‘he or she is’’ ............
§ 28.80
‘‘them’’.
‘‘themselves’’.
‘‘themselves’’.
‘‘their’’.
‘‘their’’.
‘‘they have’’.
‘‘they are’’.
[Amended]
3. Amend § 28.80 by removing the
words ‘‘he or she determines’’ in the
second sentence and adding in their
place the words ‘‘they determine’’.
■ 4. Amend § 28.95 by:
■ a. Revising paragraph (c);
■ b. In paragraph (d) removing the word
‘‘or’’ at the end of the paragraph; and
■ c. Redesignate paragraph (e) as
paragraph (g); and adding a new
paragraph (e) and paragraphs (f) and (h).
The revision and additions read as
follows:
■
§ 28.95
Purpose and scope.
*
*
*
*
*
(c) Section 6(d) of the Fair Labor
Standard Act of 1938 as amended by the
Equal Pay Act of 1963 (29 U.S.C.
206(d)), prohibiting discrimination in
wages on the basis of sex;
*
*
*
*
*
(e) Section 202 of the Genetic
Information Nondiscrimination Act of
2008 (42 U.S.C. 2000ff–1), prohibiting
discrimination on the basis of genetic
information;
(f) Section 103 of the Pregnant
Workers Fairness Act (42 U.S.C.
2000gg–1), prohibiting discrimination
on the basis of pregnancy, childbirth or
related medical conditions; or
*
*
*
*
*
(h) Prohibited discrimination also
includes any employment action taken
against an employee or applicant for
employment for opposing any unlawful
employment practice, or for
participating in any manner in an
investigation, hearing, or in any stage of
an administrative or judicial
proceeding, under any of the statutes or
laws identified in paragraphs (a)
through (g) of this section.
■ 5. Amend § 28.98 by:
■ a. Revising paragraphs (a), (b)
introductory text, (b)(1) and (2);
■ b. Revising the paragraph (c) heading;
PO 00000
Frm 00002
Fmt 4702
Sfmt 4702
c. Adding the words ‘‘Office of’’
between the words ‘‘Board’s’’ and
‘‘General’’ in paragraph (c)(1);
■ d. Revising the second, third, and
fourth sentences of paragraph (c)(2) and
revising paragraph (d);
■ e. Redesignating paragraph (e) as
paragraph (f) and adding a new
paragraph (e); and
■ f. Adding a heading to newly
redesignated paragraph (f) and adding
paragraph (f)(3).
The revisions and additions read as
follows:
■
[Amended]
§ 28.98
Individual charges in EEO cases.
(a) General rule for filing EEO claims.
Except as provided in paragraphs (c)
and (e) of this section, an employee or
applicant alleging prohibited
discrimination (as defined in § 28.95)
must first file a complaint with GAO in
accordance with GAO Order 2713.2 and
may not file directly with the Board’s
Office of General Counsel.
(b) Time limits to file EEO claims with
PAB/OGC. After GAO processes a
complaint in accordance with GAO
Order 2713.2, an employee or applicant
for employment may file an individual
EEO charge with the Board’s General
Counsel as follows:
(1) Within 30 days from the receipt by
the charging party of a GAO decision
rejecting the complaint in whole or part;
or
(2) Whenever a period of more than
120 days has elapsed since the
complaint was filed, and a final GAO
decision has not been issued; or
*
*
*
*
*
(c) Special rules for adverse and
performance-based actions. * * *
(2) * * * If the employee elects to file
a complaint of discrimination with
GAO, they may still seek Board review
of the matter by filing a charge with the
Board’s Office of General Counsel at the
times authorized in paragraph (b) of this
section. Where a discrimination
complaint filed with GAO relates to one
or more non-EEO issues that are within
the Board’s jurisdiction in addition to
an EEO-related allegation, the
subsequent charge filed with the Board’s
Office of General Counsel under
paragraph (b) of this section shall be
considered a timely appeal of the nonEEO issue(s). An employee will be
deemed to have elected the EEO
complaint process if they file a timely
written complaint of discrimination
with GAO before filing a charge with the
Board’s Office of General Counsel.
* * *
(d) Special rules for RIF-based
actions. An individual alleging
discrimination issues in connection
with a RIF-based separation may follow
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Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Proposed Rules
the procedures outlined above in
paragraph (c) of this section for adverse
and performance-based actions, or may
choose instead a third option. In
accordance with the provisions of
§ 28.13, such an individual may
challenge that action by filing directly
with the PAB, thus bypassing both the
Office of Opportunity and Inclusiveness
and the Board’s Office of General
Counsel.
(e) Special rules in certain retaliation
actions. (1) Except as outlined in
paragraph (c) of this section, whenever
a charging party raises a claim of
retaliation that could be raised under
§ 28.95(h), including the prohibited
personnel practices listed in 5 U.S.C.
2302(b)(9), and that claim has not
already been filed pursuant to GAO
Order 2713.2, the Board’s General
Counsel has authority to, and shall
determine whether the claim relates to
retaliation for filing or assisting with a
discrimination complaint filed pursuant
to GAO Order 2713.2. The General
Counsel’s determination shall not be
reviewable.
(i) If the General Counsel determines
the claim as described in this paragraph
(e)(1) relates to retaliation for filing or
assisting with a discrimination
complaint filed pursuant to GAO Order
2713.2, the Board’s Office of General
Counsel shall instruct the charging party
to file the claim as a complaint of
discrimination pursuant to GAO Order
2713.2.
(ii) If the General Counsel determines
the claim as described in this paragraph
(e)(1) does not relate to retaliation for
filing or assisting with a discrimination
complaint pursuant to GAO Order
2713.2, the Board’s Office of General
Counsel shall investigate the claim in
accordance with § 28.12.
(2) A charging party who files a claim
that could be raised under § 28.95(g)
may bring the retaliation claim both as
a complaint of discrimination under
§ 28.95 and as a prohibited personnel
practice under 5 U.S.C. 2302(b)(9).
(f) Claims related to EEO matters
pending with EEO. * * *
(3) Where the Board’s General
Counsel concludes that one or more
claims is sufficiently related to a
discrimination complaint filed by the
same claimant pursuant to GAO Order
2713.2 and that it would be appropriate
to investigate all claims together, the
Board’s Office of General Counsel may
hold the related claim(s) in abeyance
until the Board’s General Counsel
receives a charge pursuant to paragraph
(b) of this section with respect to the
formal discrimination complaint or
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makes a determination that the
investigation should resume.
Julia Akins Clark,
Chair, Personnel Appeals Board, U.S.
Government Accountability Office.
[FR Doc. 2023–25647 Filed 11–22–23; 8:45 am]
BILLING CODE 1610–02–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2023–2227; Project
Identifier AD–2022–00113–T]
RIN 2120–AA64
Airworthiness Directives; The Boeing
Company Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
The FAA proposes to adopt a
new airworthiness directive (AD) for
certain The Boeing Company Model
787–8, 787–9, and 787–10 airplanes.
This proposed AD was prompted by
incidents related to throttle
malfunctions during a balked landing
with the auto-throttle (A/T) engaged,
potential erroneous readings from the
low range radio altimeter (LRRA), and
possible deficiencies in low airspeed
protections and crew alerting systems.
This proposed AD would require
updating the thrust management (TM)
and displays and crew alerting (DCA)
operational program software (OPS).
The FAA is proposing this AD to
address the unsafe conditions on these
products.
DATES: The FAA must receive comments
on this proposed AD by January 8, 2024.
ADDRESSES: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
• Federal eRulemaking Portal: Go to
regulations.gov. Follow the instructions
for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
AD Docket: You may examine the AD
docket at regulations.gov under Docket
No. FAA–2023–2227; or in person at
SUMMARY:
PO 00000
Frm 00003
Fmt 4702
Sfmt 4702
82279
Docket Operations between 9 a.m. and
5 p.m., Monday through Friday, except
Federal holidays. The AD docket
contains this NPRM, any comments
received, and other information. The
street address for Docket Operations is
listed above.
Material Incorporated by Reference:
• For service information identified
in this NPRM, contact Boeing
Commercial Airplanes, Attention:
Contractual & Data Services (C&DS),
2600 Westminster Blvd., MC 110–SK57,
Seal Beach, CA 90740–5600; telephone
562–797–1717; website
myboeingfleet.com.
• You may view this service
information at the FAA, Airworthiness
Products Section, Operational Safety
Branch, 2200 South 216th St., Des
Moines, WA. For information on the
availability of this material at the FAA,
call 206–231–3195. It is also available at
regulations.gov by searching for and
locating Docket No. FAA–2023–2227.
FOR FURTHER INFORMATION CONTACT:
Doug Tsuji, Aviation Safety Engineer,
FAA, 2200 South 216th St., Des Moines,
WA 98198; telephone: 206–231–3548;
email: Douglas.Tsuji@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites you to send any
written relevant data, views, or
arguments about this proposal. Send
your comments to an address listed
under ADDRESSES. Include ‘‘Docket No.
FAA–2023–2227; Project Identifier AD–
2022–00113–T’’ at the beginning of your
comments. The most helpful comments
reference a specific portion of the
proposal, explain the reason for any
recommended change, and include
supporting data. The FAA will consider
all comments received by the closing
date and may amend this proposal
because of those comments.
Except for Confidential Business
Information (CBI) as described in the
following paragraph, and other
information as described in 14 CFR
11.35, the FAA will post all comments
received, without change, to
regulations.gov, including any personal
information you provide. The agency
will also post a report summarizing each
substantive verbal contact received
about this NPRM.
Confidential Business Information
CBI is commercial or financial
information that is both customarily and
actually treated as private by its owner.
Under the Freedom of Information Act
(FOIA) (5 U.S.C. 552), CBI is exempt
from public disclosure. If your
comments responsive to this NPRM
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]]>Agencies
[Federal Register Volume 88, Number 225 (Friday, November 24, 2023)]
[Proposed Rules]
[Pages 82277-82279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25647]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 /
Proposed Rules
[[Page 82277]]
GOVERNMENT ACCOUNTABILITY OFFICE
4 CFR Part 28
Personnel Appeals Board; Procedural Rules
AGENCY: Government Accountability Office Personnel Appeals Board.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Government Accountability Office Personnel Appeals Board
(PAB or Board) proposes to give the PAB General Counsel authority to
process certain retaliation claims that have not first undergone GAO's
Equal Employment Opportunity (EEO) process, and to hold certain
nondiscrimination claims in abeyance if they are related to a claim
pending in GAO's EEO process. These proposed changes are in response to
an internal query that brought up the need to clarify perceived
ambiguities in the existing regulations. The PAB also proposes to
update the definition of prohibited discrimination to be consistent
with changes in nondiscrimination laws. In addition, the PAB proposes
to replace gendered pronouns with gender-neutral ones to reflect
current usage practices. The General Accounting Office Personnel Act of
1980 provides authority to make these changes.
DATES: Comments must be received on or before January 23, 2024.
ADDRESSES: Comments may be submitted by any of the following methods:
Mail: Patricia Reardon-King, Clerk of the Board, Personnel Appeals
Board, U.S. Government Accountability Office, Room 1566, 441 G Street
NW, Washington, DC 20548.
Email: [email protected].
FOR FURTHER INFORMATION CONTACT: Stuart Melnick, Executive Director,
202-512-3836 or Kevin Wilson, Solicitor, 202-512-7517, [email protected].
SUPPLEMENTARY INFORMATION: GAO is not subject to the Administrative
Procedure Act and accordingly the Personnel Appeals Board is not
required by law to seek comments before issuing a final rule. However,
the Board has decided to invite interested persons to participate in
this rulemaking by submitting written comments regarding the proposed
revisions. Application of the Administrative Procedure Act to the GAO
Personnel Appeals Board is not to be inferred from this invitation for
comments.
The Board is authorized by Congress, pursuant to 31 U.S.C. 751-755,
to hear and decide cases brought by GAO employees concerning various
personnel matters including adverse or performance-based actions,
claims of discrimination, alleged prohibited personnel practices, and
labor-management relations. The Board also exercises authority over
GAO's EEO process at the agency. The Board's procedural regulations
applicable to GAO appear at 4 CFR parts 27 and 28. The Board is
proposing to revise two sections of these regulations to ensure
consistency with current law and to address a process ambiguity in the
current language. The Board is also proposing to replace gendered
pronouns with gender-neutral pronouns.
The Board proposes to amend section 28.95 by specifically
referencing the Equal Pay Act of 1963 (29 U.S.C. 206(d)), the Genetic
Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-1), and the
Pregnancy Workers Fairness Act (42 U.S.C. 2000gg-1) in its definition
of prohibited EEO discrimination. The addition of the reference to the
Equal Pay Act of 1963 is to clarify that the prohibition on
discrimination in wages on the basis of sex derives from Equal Pay Act
of 1963's amendment of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(d)).
The additions of the references to the Genetic Information
Nondiscrimination Act of 2008 and the Pregnancy Workers Fairness Act in
paragraph (e) and new paragraph (f) of 4 CFR 28.95 reflect types of
discrimination that became prohibited on the effective dates of the
respective statutes but had not yet been codified into the Board's
regulations.
Similarly, the revision of the definition of prohibited
discrimination in new paragraph (h) of 4 CFR 28.95 includes a list of
activities that may not form the basis for employment actions.
Discrimination in retaliation for protected EEO activity became
prohibited on the effective dates of the respective EEO statutes. This
proposed revision codifies existing prohibitions and does not create a
new cause of action.
These proposed regulations also resolve ambiguity over when
retaliation claims related to discrimination on one of the EEO-
protected bases, including claims of retaliation under prohibited
personnel practices laws like 5 U.S.C. 2302(b)(9), must go through
GAO's EEO process pursuant to GAO Order 2713.2 before a charge
containing these claims can be filed with the Board's Office of General
Counsel and a petition containing them can be filed with the Board.
Retaliation claims related to discrimination on one of the EEO-
protected bases involving a removal, a suspension of more than 14 days,
or a furlough of not more than 30 days would continue to have the
option, pursuant to 4 CFR 28.98(c), of filing a discrimination
complaint with GAO pursuant to GAO Order 2713.2 or bypassing the EEO
process and filing a charge directly with the Board's Office of General
Counsel. These proposed revisions would clarify that other retaliation
claims related to discrimination on one of the EEO-protected bases may
also bypass GAO's EEO process if they are not related to the filing or
assisting with a discrimination complaint filed pursuant to GAO Order
2713.2. The Board's General Counsel would be empowered to make a
determination of whether retaliation claims related to discrimination
on one of the EEO-protected bases are related to filing or assisting
with a discrimination complaint filed pursuant to GAO Order 2713.2. If
the claims are related to the filing or assisting with a discrimination
complaint filed pursuant to GAO Order 2713.2, the General Counsel would
inform the individual that they need to file their complaint with GAO
pursuant to GAO Order 2713.2 before the Board's Office of General
Counsel is permitted to process their charge on these allegations. If
the General Counsel determines the claims are not related to filing or
assisting with a discrimination complaint pursuant to GAO Order 2713.2,
the Board's Office of General Counsel would inform the individual that
the charge containing these claims can be processed by the Board's
Office of General Counsel without delay. The
[[Page 82278]]
purpose of giving this unreviewable discretion to the Board's General
Counsel is to give certainty to individuals that their claims may be
processed immediately by the Board's Office of General Counsel without
fear of having the claims subsequently dismissed for failure to exhaust
the administrative remedies contained in GAO Order 2713.2.
Finally, the proposed regulations would allow the Board's Office of
General Counsel to hold in abeyance nondiscrimination allegations while
related discrimination allegations are being pursued through GAO's EEO
process. Once the discrimination complaint resolution process
concludes, or the individual opts out of it, both types of claims could
then be investigated together. The Board's General Counsel is to
utilize this provision when the claims are so related that the Board's
General Counsel determines it would be most appropriate to conduct a
single investigation into them. The Board's General Counsel would have
discretion to revisit this decision at any time and no longer hold a
claim in abeyance. For purposes of 4 CFR 28.12(g), the length of time a
claim is held in abeyance would count toward the 180-day period after
which a charging party may opt out of the Board's Office of General
Counsel's investigation and file a petition with the Board. The Board
will consider all comments received on or before the closing date for
comments. The Board may change the proposed revisions based on the
comments received.
List of Subjects in 4 CFR Part 28
Administrative practice and procedure, Claims, Equal employment
opportunity, Government employees.
For the reasons stated in the preamble, the Government
Accountability Office proposes to amend title 4, chapter I, subchapter
B, part 28 of the Code of Federal Regulations as follows:
PART 28--GOVERNMENT ACCOUNTABILITY OFFICE PERSONNEL APPEALS BOARD;
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT
THE GOVERNMENT ACCOUNTABILITY OFFICE
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1. The authority citation for part 28 continues to read as follows:
Authority: 31 U.S.C. 753.
PART 28 [Amended]
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2. Amend part 28 by removing the word or phrase indicated in the left
column of the table from wherever it appears in the part and adding the
word or phrase indicated in the right column in its place:
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Remove Add
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``him or her''............................ ``them''.
``him- or herself''....................... ``themselves''.
``himself or herself...................... ``themselves''.
``his or her''............................ ``their''.
``his/her''............................... ``their''.
``he or she has''......................... ``they have''.
``he or she is''.......................... ``they are''.
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Sec. 28.80 [Amended]
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3. Amend Sec. 28.80 by removing the words ``he or she determines'' in
the second sentence and adding in their place the words ``they
determine''.
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4. Amend Sec. 28.95 by:
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a. Revising paragraph (c);
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b. In paragraph (d) removing the word ``or'' at the end of the
paragraph; and
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c. Redesignate paragraph (e) as paragraph (g); and adding a new
paragraph (e) and paragraphs (f) and (h).
The revision and additions read as follows:
Sec. 28.95 Purpose and scope.
* * * * *
(c) Section 6(d) of the Fair Labor Standard Act of 1938 as amended
by the Equal Pay Act of 1963 (29 U.S.C. 206(d)), prohibiting
discrimination in wages on the basis of sex;
* * * * *
(e) Section 202 of the Genetic Information Nondiscrimination Act of
2008 (42 U.S.C. 2000ff-1), prohibiting discrimination on the basis of
genetic information;
(f) Section 103 of the Pregnant Workers Fairness Act (42 U.S.C.
2000gg-1), prohibiting discrimination on the basis of pregnancy,
childbirth or related medical conditions; or
* * * * *
(h) Prohibited discrimination also includes any employment action
taken against an employee or applicant for employment for opposing any
unlawful employment practice, or for participating in any manner in an
investigation, hearing, or in any stage of an administrative or
judicial proceeding, under any of the statutes or laws identified in
paragraphs (a) through (g) of this section.
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5. Amend Sec. 28.98 by:
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a. Revising paragraphs (a), (b) introductory text, (b)(1) and (2);
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b. Revising the paragraph (c) heading;
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c. Adding the words ``Office of'' between the words ``Board's'' and
``General'' in paragraph (c)(1);
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d. Revising the second, third, and fourth sentences of paragraph (c)(2)
and revising paragraph (d);
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e. Redesignating paragraph (e) as paragraph (f) and adding a new
paragraph (e); and
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f. Adding a heading to newly redesignated paragraph (f) and adding
paragraph (f)(3).
The revisions and additions read as follows:
Sec. 28.98 Individual charges in EEO cases.
(a) General rule for filing EEO claims. Except as provided in
paragraphs (c) and (e) of this section, an employee or applicant
alleging prohibited discrimination (as defined in Sec. 28.95) must
first file a complaint with GAO in accordance with GAO Order 2713.2 and
may not file directly with the Board's Office of General Counsel.
(b) Time limits to file EEO claims with PAB/OGC. After GAO
processes a complaint in accordance with GAO Order 2713.2, an employee
or applicant for employment may file an individual EEO charge with the
Board's General Counsel as follows:
(1) Within 30 days from the receipt by the charging party of a GAO
decision rejecting the complaint in whole or part; or
(2) Whenever a period of more than 120 days has elapsed since the
complaint was filed, and a final GAO decision has not been issued; or
* * * * *
(c) Special rules for adverse and performance-based actions. * * *
(2) * * * If the employee elects to file a complaint of
discrimination with GAO, they may still seek Board review of the matter
by filing a charge with the Board's Office of General Counsel at the
times authorized in paragraph (b) of this section. Where a
discrimination complaint filed with GAO relates to one or more non-EEO
issues that are within the Board's jurisdiction in addition to an EEO-
related allegation, the subsequent charge filed with the Board's Office
of General Counsel under paragraph (b) of this section shall be
considered a timely appeal of the non-EEO issue(s). An employee will be
deemed to have elected the EEO complaint process if they file a timely
written complaint of discrimination with GAO before filing a charge
with the Board's Office of General Counsel. * * *
(d) Special rules for RIF-based actions. An individual alleging
discrimination issues in connection with a RIF-based separation may
follow
[[Page 82279]]
the procedures outlined above in paragraph (c) of this section for
adverse and performance-based actions, or may choose instead a third
option. In accordance with the provisions of Sec. 28.13, such an
individual may challenge that action by filing directly with the PAB,
thus bypassing both the Office of Opportunity and Inclusiveness and the
Board's Office of General Counsel.
(e) Special rules in certain retaliation actions. (1) Except as
outlined in paragraph (c) of this section, whenever a charging party
raises a claim of retaliation that could be raised under Sec.
28.95(h), including the prohibited personnel practices listed in 5
U.S.C. 2302(b)(9), and that claim has not already been filed pursuant
to GAO Order 2713.2, the Board's General Counsel has authority to, and
shall determine whether the claim relates to retaliation for filing or
assisting with a discrimination complaint filed pursuant to GAO Order
2713.2. The General Counsel's determination shall not be reviewable.
(i) If the General Counsel determines the claim as described in
this paragraph (e)(1) relates to retaliation for filing or assisting
with a discrimination complaint filed pursuant to GAO Order 2713.2, the
Board's Office of General Counsel shall instruct the charging party to
file the claim as a complaint of discrimination pursuant to GAO Order
2713.2.
(ii) If the General Counsel determines the claim as described in
this paragraph (e)(1) does not relate to retaliation for filing or
assisting with a discrimination complaint pursuant to GAO Order 2713.2,
the Board's Office of General Counsel shall investigate the claim in
accordance with Sec. 28.12.
(2) A charging party who files a claim that could be raised under
Sec. 28.95(g) may bring the retaliation claim both as a complaint of
discrimination under Sec. 28.95 and as a prohibited personnel practice
under 5 U.S.C. 2302(b)(9).
(f) Claims related to EEO matters pending with EEO. * * *
(3) Where the Board's General Counsel concludes that one or more
claims is sufficiently related to a discrimination complaint filed by
the same claimant pursuant to GAO Order 2713.2 and that it would be
appropriate to investigate all claims together, the Board's Office of
General Counsel may hold the related claim(s) in abeyance until the
Board's General Counsel receives a charge pursuant to paragraph (b) of
this section with respect to the formal discrimination complaint or
makes a determination that the investigation should resume.
Julia Akins Clark,
Chair, Personnel Appeals Board, U.S. Government Accountability Office.
[FR Doc. 2023-25647 Filed 11-22-23; 8:45 am]
BILLING CODE 1610-02-P
