Editorial Note on Part 28
Editorial Note: Nomenclature changes to part 28 appear at 76 FR 76873, Dec. 9, 2011.

§ 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 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 Office of 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
( 3 ) Within 30 days from the receipt by the charging party of a final GAO decision concerning the complaint of discrimination.
( c ) *Special rules for certain adverse and performance-based actions.* Where an employee is affected by a removal, suspension for more than 14 days, reduction in grade or pay, or furlough of not more than 30 days (whether due to disciplinary, performance-based or other reasons), and the employee wishes to allege that such action was due in whole or part to prohibited discrimination (as defined in § 28.95), the employee may elect to do either (but not both) of the following: ( 1 ) File a charge directly with the Board's Office of General Counsel within 30 days of the effective date of the personnel action and raise the issue of discrimination in the course of the proceedings before the Board; or
( 2 ) File a complaint of discrimination with the GAO pursuant to GAO Order 2713.2. 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. Consultation with an EEO counselor, without filing a written complaint of discrimination, does not constitute an election of the EEO complaint process.
( d ) *Special rules for RIF-based actions.* An individual alleging discrimination issues in connection with a RIF-based separation may follow 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 reasonably 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 Board's General Counsel determines the claim as described in this paragraph (e)(1) reasonably 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 advise the charging party to file the claim as a complaint of discrimination pursuant to GAO Order 2713.2.
( ii ) If the Board's General Counsel determines the claim as described in this paragraph (e)(1) does not reasonably 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(h) 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 GAO's EEO Office.* ( 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 reasonably 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 Board's General Counsel determines the claim as described in this paragraph (e)(1) reasonably 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 advise the charging party to file the claim as a complaint of discrimination pursuant to GAO Order 2713.2.
( ii ) If the Board's General Counsel determines the claim as described in this paragraph (e)(1) does not reasonably 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(h) 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).
( 3 ) Where the Board's General Counsel concludes that one or more claims are 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 decides that the investigation should resume.
[58 FR 61992, Nov. 23, 1993, as amended at 59 FR 59106, Nov. 16, 1994; 61 FR 36811, July 15, 1996; 68 FR 69303, Dec. 12, 2003; 89 FR 51399, June 18, 2024]