[Federal Register Volume 65, Number 208 (Thursday, October 26, 2000)]
[Proposed Rules]
[Pages 64320-64334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27470]



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Part V





Department of Housing and Urban Development





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24 CFR Part 7



Equal Employment Opportunity; Updating of EEO Policies and Procedures; 
Proposed Rule

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / 
Proposed Rules

[[Page 64320]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 7

[Docket No. FR-4607-P-01]
RIN 2501-AC73


Equal Employment Opportunity; Updating of EEO Policies and 
Procedures

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule amends HUD's regulations governing the 
Department's equal employment opportunity policies, procedures and 
programs. The amendments update the Department's current EEO 
regulations and make them consistent with recently issued regulations 
of the Equal Employment Opportunity Commission (EEOC).

DATES: Comment due date: November 27, 2000.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to the Rules Docket Clerk, Office of the General 
Counsel, Regulations Division, Room 10276, Department of Housing and 
Urban Development, 451 Seventh Street, SW, Washington, DC 20410. 
Communications should refer to the above docket number and title. 
Facsimile (FAX) comments are not acceptable. A copy of each comment 
submitted will be available for public inspection and copying during 
regular business hours (7:30 a.m. to 5:30 p.m.) eastern time at the 
above address.

FOR FURTHER INFORMATION CONTACT: William C. King, Director, Office of 
Departmental Equal Employment Opportunity, Department of Housing and 
Urban Development, 451 Seventh Street, SW, Washington, DC 20410, (202) 
708-5921. (This telephone number is not toll-free.) Persons with 
hearing or speech impairments may access this number via TTY by 
contacting the Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    This proposed rule updates HUD's regulations in 24 CFR part 7 that 
pertain to the Department's equal employment opportunity policies, 
procedures and programs. The amendments to be made by this proposed 
rule will provide for regulations that supersede the last revision of 
part 7, issued on April 29, 1996. This rule proposes to conform to 
HUD's regulations to the recently amended EEOC regulations in 29 CFR 
part 1614. The revised part 1614 regulations became effective on 
November 9, 1999 (see final rule issued July 12, 1999, at 64 FR 37644). 
In addition, this proposed rule provides HUD's current and former 
employees and applicants with a more complete guide to the processing 
of equal employment opportunity (EEO) complaints. The most significant 
change proposed by this rule is the establishment of an Alternative 
Dispute Resolution (ADR) program designed to promote impartial, fair 
and early resolution of EEO complaints.

II. Changes to Part 7 Proposed by This Rule

    The revisions proposed by this rule (in regulatory section 
numerical sequence) are as follows:

Section 7.1  Policy

    This section adds reference to Executive Order 12871.

Section 7.2  Definitions

    This section defines and in some cases explains the following terms 
and acronyms which are used in this part: aggrieved individual, 
Alternative Dispute Resolution, claim, comparable, conflict-of-interest 
complaint, Director of Equal Employment Opportunity, disability, 
Diversity Program Manager, EEO, EEOC, Equal Employment Opportunity 
Discrimination Complaint Manager, EEO Officer Pro Tem, final decision, 
final action, final order, neutral, organizational unit, record and 
reprisal.

Section 7.3  Designations

    This section explains that cases presenting a conflict-of-interest 
for the Office of Departmental Equal Employment Opportunity (ODEEO) 
will be transferred for processing to an EEO Officer Pro Tem (an 
official at a neutral federal agency). The Director of EEO will make 
such determinations as to the appropriateness of and need for such 
transfers on a case-by-case basis. This section also requires that each 
organizational unit appoint an Equal Employment Opportunity 
Discrimination Complaint Manager (DCM) and a Diversity Program Manager.

Section 7.5  EEO Alternative Dispute Resolution Program

    This section describes the Department's alternative dispute 
resolution (ADR) program for EEO matters.

Section 7.10  Responsibilities of the Director of EEO

    This section identifies the Director's responsibility to provide an 
ADR program for EEO matters at the pre-complaint and formal complaint 
stages of the EEO process. This section also identifies the Director's 
responsibility to provide mandatory annual EEO and ADR training for 
supervisors and managers. Such training may be a component of 
Department-wide supervisory and management training developed in 
coordination with the Offices of Human Resources and General Counsel.

Section 7.11  Responsibilities of the EEO Officers

    This section identifies the EEO Officer's duty to assist in 
providing for and ensuring managers' and supervisors' mandatory 
participation in EEO ADR training and cooperation with the ADR process.

Section 7.12  Responsibilities of the EEO Counselors

    This section is expanded to clearly describe the enhanced 
responsibilities of the EEO Counselors.

Section 7.13  Responsibilities of the Assistant Secretary for 
Administration

    This section requires the coordination of mandatory EEO ADR 
training for EEO Counselors, supervisors and managers.

Section 7.14  Responsibilities of the Office of Human Resources

    This section requires the development of an ongoing Department-wide 
training program for supervisors and managers, to ensure understanding 
of the EEO ADR Program and coordination between and among the Director 
of EEO, the HUD Training Academy, the Office of General Counsel and the 
Office of Human Resources to provide the required EEO ADR training.

Section 7.15  Responsibilities of Managers and Supervisors

    This section adds the requirement of mandatory attendance by 
managers and supervisors at annual EEO ADR management and supervisory 
training, and the requirement of full cooperation during ADR and 
throughout the EEO complaint processing and investigation process.

Section 7.16  Responsibilities of Employees

    This section reiterates the requirement of employee cooperation 
during EEO counseling, EEO investigations, ADR and throughout the 
entire EEO complaint process.

[[Page 64321]]

Section 7.26  EEO Alternative Dispute Resolution Program

    This new section describes the EEO ADR Program made available in 
the EEO process.

Section 7.37  Final Action

    This new section explains the various types of EEO final actions 
which result in final decisions and orders by the Department and EEOC 
Administrative Judges.

Section 7.38  Appeals

    This new section explains the appeal procedures and the time 
limitations.

Section 7.39  Negotiated Grievance, MSPB Appeal and Administrative 
Grievance Procedures

    This new section explains the other complaint processes available 
to Department employees.

Section 7.40  Remedies and Enforcement

    This new section explains the remedies and the enforcement 
procedures to be followed in EEO cases where discrimination is found.

Section 7.41  Compliance with EEOC Final Decisions

    This new section explains the procedures to be followed by the 
Department when relief is ordered by EEOC.

Section 7.42  Enforcement of EEOC Final Decisions

    This new section explains the procedures regarding the enforcement 
of EEOC's final decisions.

Section 7.43  Settlement Agreements

    This new section explains the procedures for compliance with 
settlement agreements and final actions.

Section 7.44  Interim Relief

    This new section explains how interim relief is granted when the 
Department appeals an EEOC decision.

Section 7.45  EEO Group Statistics and Reports

    This new section describes the EEOC's requirements for the 
collection of statistics, accurate employment applicant flow 
information and other EEO data, and the submission of annual reports.

III. Justification for Shortened Public Comment Period

    It is the general practice of the Department to provide a 60-day 
public comment period on all proposed rules. The Department, however, 
is reducing its usual 60-day public comment period to 30 days for this 
proposed rule. This rule pertains primarily to HUD employees and 
through HUD's internal review process, this rule already has been 
disseminated to HUD employees, for review and comment.

IV. Findings and Certifications

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this proposed rule before publication and 
by approving it certifies that this rule would not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule involves internal HUD operations and pertains only to 
current/former employees and applicants for employment at HUD.

Environmental Impact

    In accordance with 24 CFR 50.19(c)(3) of HUD's regulations, this 
proposed rule would provide for the enforcement of nondiscrimination 
within HUD, and therefore is categorically excluded from the 
requirements of the National Environmental Policy Act of 1969 (42 
U.S.C. 4321-4347).

Executive Order 13132, Federalism

    This rule does not have Federalism implications and does not impose 
substantial direct compliance costs on State and local governments or 
preempt State law within the meaning of Executive Order 13132.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act 1995 (Pub. L. 104-4; 
approved March 22, 1995) (UMRA) establishes requirements for Federal 
agencies to assess the effects of their regulatory actions on State, 
local, and tribal governments, and on the private sector. This rule 
would not impose any Federal mandates on any State, local, or tribal 
government, or on the private sector, within the meaning of the UMRA.

List of Subjects in 24 CFR Part 7

    Administrative practice and procedure, Equal employment 
opportunity, Organization and functions (Government agencies).

    Accordingly, 24 CFR part 7 is proposed to be revised as follows:

PART 7--EQUAL EMPLOYMENT OPPORTUNITY; POLICY, PROCEDURES AND 
PROGRAMS

Subpart A--Equal Employment Opportunity Without Regard to Race, Color, 
Religion, Sex, National Origin, Age, Disability or Reprisal

General Provisions

Sec.
7.1   Policy.
7.2   Definitions.
7.3   Designations.
7.4   Affirmative employment programs.
7.5   EEO Alternative Dispute Resolution Program.

Responsibilities

7.10   Responsibilities of the Director of EEO.
7.11   Responsibilities of the EEO Officers.
7.12   Responsibilities of the EEO Counselors.
7.13   Responsibilities of the Assistant Secretary for 
Administration.
7.14   Responsibilities of the Office of Human Resources.
7.15   Responsibilities of managers and supervisors.
7.16   Responsibilities of employees.

Pre-Complaint Processing

7.25   Pre-complaint processing.
7.26   EEO Alternative Dispute Resolution Program.

Complaints

7.30   Presentation of complaint.
7.31   Who may file a complaint, with whom filed, and time limits.
7.32   Representation and official time.
7.33   Contents of the complaints.
7.34   Acceptability.
7.35   Processing.
7.36   Hearing.
7.37   Final action.
7.38   Appeals.

Other Complaint and Appeal Procedures

7.39   Negotiated grievance, MSPB appeal and administrative 
grievance procedures.

Remedies, Enforcement and Compliance

7.40   Remedies and enforcement.
7.41   Compliance with EEOC final decisions.
7.42   Enforcement of EEOC final decisions.
7.43   Settlement agreements.
7.44   Interim relief.

Statistics and Reporting Requirements

7.45   EEO group statistics and reports.
Subpart B--[Reserved]

    Authority: 29 U.S.C. 206(d), 633a, 791 and 794; 42 U.S.C. 2000e 
note, 2000e-16, 42 U.S.C. 3535(d); E.O. 11478 of Aug. 8, 1969; 34 FR 
19285, Aug. 12, 1969; E.O. 10577, 3 CFR 1954-1958; E.O. 11222, 3 CFR 
1964-965.

[[Page 64322]]

Subpart A--Equal Employment Opportunity Without Regard to Race, 
Color Religion, Sex, National Origin, Age, Disability or Reprisal

General Provisions


Sec. 7.1  Policy.

    The Department's equal employment opportunity policy conforms with 
the policies expressed in title VII of the Civil Rights Act of 1964 (42 
U.S.C. 2000d-2000d-4); the Civil Rights Act of 1991; Executive Order 
11478 of 1969 (34 FR 12985, 3 CFR 1966-1970 Comp., p. 803); the Age 
Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. et seq.); 
the Equal Pay Act of 1963 (29 U.S.C. 206d); sections 501 and 504 of the 
Rehabilitation Act of 1973, and reaffirming Executive Order 12871 (29 
U.S.C. 791, 794); the Civil Service Reform Act of 1978 (5 U.S.C. 1101 
et seq.); Executive Order 13087 of 1998 (63 FR 30097); and with the 
EEOC's implementing regulations, codified under 29 CFR part 1614. It is 
HUD's policy to provide equality of opportunity in employment in the 
Department for all persons; to prohibit discrimination on the basis of 
race, color, religion, sex, national origin, age, disability or 
reprisal in all aspects of its personnel policies, programs, practices, 
and operations and in all its working conditions and relationships with 
current or former employees and applicants for employment; and to 
promote the full realization of equal opportunity in employment through 
continuing programs of affirmative employment at every level within the 
Department. Procedures for filing EEO claims are found in the EEOC 
regulations at 29 CFR part 1614. HUD is committed to promoting 
affirmative employment through the removal of barriers and by positive 
actions at every level, including the early resolution of EEO disputes.


Sec. 7.2  Definitions.

    AE means affirmative employment.
    Aggrieved individual means a person who suffers a present harm or 
loss with respect to a term, condition, or privilege of employment for 
which there is a remedy. The terms ``aggrieved individual'' and 
``aggrieved person'', as used in this part, are interchangeable.
    Alternative Dispute Resolution (ADR) means a variety of approaches 
used to resolve conflict rather than traditional adjudicatory or 
adversarial methods such as litigation, hearings, and administrative 
processing and appeals. The approaches used may include, but are not 
limited to: negotiation, conciliation, facilitation, mediation, fact-
finding, peer review, mini-trial, arbitration, or ombudsman.
    Claim means action the agency has taken or is taking that causes 
the aggrieved person to believe that he or she is a victim of 
discrimination. This term replaces the formerly used term 
``allegation'' and is used interchangeably with the term ``issue''.
    Comparable means a person designated as head of an organizational 
unit that is analogous to that headed by an Assistant Secretary.
    Conflict-of-interest complaint means an EEO complaint arising in 
the Department which names the Director of EEO or the Deputy Director 
of EEO, or both, as the responsible management officials.
    Director of Equal Employment Opportunity (EEO) means the Director 
of HUD's Office of Departmental Equal Employment Opportunity who is 
also designated as the Director of EEO in this part.
    Disability means the same as the term ``handicap'' under EEOC's 
regulations at 29 part 1614.
    Discrimination Complaint Manager 
(DCM) means the designee, appointed by the Assistant Secretary (EEO 
Officer) or the Assistant Secretary's comparable, who assists the EEO 
Officer in discharging his or her EEO responsibilities and is 
responsible for carrying out the EEO discrimination complaint process 
for the organizational unit pursuant to the applicable civil rights 
laws, the regulations at 29 CFR part 1614 and this part.
    Diversity Program Manager means the designee appointed by the 
Assistant Secretary (EEO Officer) or the Assistant Secretary's 
comparable who assists the EEO Officer in promoting appreciation of the 
contributions of women, minorities, and persons with disabilities, and 
in promoting the value of all Department employees.
    EEO means equal employment opportunity.
    EEO Officer Pro Tem means the Chief of Staff or an official at a 
neutral federal agency designated to process an EEO claim that would be 
a conflict of interest for the Director of EEO or the Deputy Director 
of EEO, or both.
    EEOC and Commission mean the Equal Employment Opportunity 
Commission.
    Final action means the Department's issuance of a final decision or 
final order.
    Final decision means HUD's determination of the findings of fact 
and law on the merits or the procedural issues of an EEO complaint 
based upon the available record.
    Final order means the Department's final action which states 
whether the Department will fully implement the decision or order of an 
EEOC Administrative Judge, or both.
    Neutral means an individual who mediates or otherwise functions to 
specifically aid the parties in resolving the issues, and has no 
official, financial, or personal conflict of interest with respect to 
the issues being disputed, unless such interest is fully disclosed in 
writing to all parties and all parties agree that the neutral may 
serve.
    Organizational unit means the jurisdictional area of the 
Department's program offices such as the Office of the Secretary, the 
Office of General Counsel, etc.
    Record means all documents related to the EEO complaint as outlined 
in EEOC Management Directive 110.
    Reprisal means the action taken against a current or former 
employee or applicant in retaliation for previous EEO participation in 
protected EEO activity or for opposing employment practice or policy 
illegal under EEO statutes. The terms ``reprisal'' and ``retaliation'' 
are used interchangeably.


Sec. 7.3  Designations.

    (a) Director of Equal Employment Opportunity. The Director of the 
Office of Departmental Equal Employment Opportunity (ODEEO) is 
designated as the Director of EEO, except for complaints naming the 
Director or Deputy Director of Departmental EEO, or both, as the 
responsible management official(s) in complaints arising in the ODEEO 
which present a conflict-of-interest. In such cases, the Director of 
EEO may:
    (1) Transfer the case to the Chief of Staff for processing; or
    (2) On behalf of the Department, enter into an agreement with one 
or more federal agencies for processing of the Department's conflict-
of-interest cases by the designated federal official chosen to serve as 
the EEO Officer Pro Tem.
    (b) Deputy Director of Equal Employment Opportunity. The Deputy 
Director of the ODEEO is designated as the Deputy Director of EEO and 
acts in the absence of the Director of EEO.
    (c) Equal Employment Opportunity Officer. The Director of EEO shall 
designate the Assistant Secretary or the Assistant Secretary's 
comparable as EEO Officer for the Department's respective 
organizational units for complaints arising in the respective Assistant 
Secretary's or Assistant Secretary's comparable organizational unit.
    (d) Equal Employment Opportunity Discrimination Complaint Manager 
(DCM). Each Assistant Secretary (EEO

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Officer) shall designate a DCM to represent the organizational unit in 
EEO matters and assist the EEO Officer in carrying out EEO 
responsibilities. The DCM shall be the Administrative Officer (AO) for 
the organizational unit or another designee of the EEO Officer.


Sec. 7.4  Affirmative employment programs.

    The Office of the Secretary, each Assistant Secretary, the General 
Counsel, the Inspector General, the President of the Government 
National Mortgage Association, the Chief Financial Officer, the Chief 
Procurement Officer, the Chief Information Officer, the Director of 
Lead Hazard Control, the Director of the Office of Multifamily Housing 
Assistance Restructuring, the Director of the Departmental Enforcement 
Center, the Director of the Real Estate Assessment Center, and the 
Director of the Office of Federal Housing Enterprise Oversight and 
other positions that may be established and are comparable to an 
Assistant Secretary, shall establish, maintain and carry out a plan of 
affirmative employment (AE) to promote equal opportunity in every 
aspect of employment policy and practice. Each plan shall identify 
instances of under-representation of minorities, women and persons with 
disabilities, recognize situations or barriers that impede equality of 
opportunity, and include objectives and action items targeted to 
eliminate any employment, training, advancement, and retention issues 
which adversely affect minorities, women and persons with disabilities. 
Each plan must be consistent with 29 CFR part 1614, is subject to 
approval by the Director of EEO and shall be developed within the 
framework of Department-wide guidelines published by the Director of 
EEO.


Sec. 7.5  EEO Alternative Dispute Resolution Program.

    In accordance with the Secretary's Policy Statement regarding 
Alternative Dispute Resolution (ADR) located on the Department's 
website and 29 CFR 1614.102(b)(2), the Department shall establish and 
maintain an ADR program that addresses, at a minimum, EEO matters at 
the pre-complaint and formal complaint stages of the EEO process. ADR 
is a non-adversarial process that does not render a judgment with 
respect to the dispute. With the assistance of an impartial and neutral 
third party, ADR offers parties involved the opportunity to reach early 
and informal resolution of EEO matters in a mutually satisfactory 
fashion.
    (a) Program availability. In appropriate cases, the EEO ADR Program 
is made available to an aggrieved person or Complainant during the pre-
complaint and the formal complaint processing periods. Participation in 
the program by the aggrieved person or complainant, is voluntary. 
However, managers and supervisors shall cooperate in the ADR process 
once the aggrieved person or complainant has requested to participate 
and the ODEEO has determined that the matter is appropriate for ADR. 
Participation in the EEO ADR Program at the formal complaint stage of 
the EEO process will be determined on a case-by-case basis by the 
appropriate ODEEO official designated by the Director of EEO and does 
not affect the processing of the formal complaint, including the 
investigation.
    (b) EEO ADR program procedures. The ODEEO shall establish and 
maintain all EEO ADR Program procedures which include appropriate 
consultations.
    (c) ADR training. Training and education on the EEO ADR Program 
will be provided to all Department employees, managers and supervisors, 
and other persons protected under the applicable laws.
    (d) Pre-complaint ADR election process. The appropriateness of a 
particular EEO matter or EEO complaint for the Department's ADR Program 
shall be determined on a case-by-case basis by the ODEEO official 
designated by the Director of EEO. The EEO Counselor shall advise the 
aggrieved person that the aggrieved person may choose between 
participation in the EEO ADR Program or the EEO traditional counseling 
activities provided for at 29 CFR 1614.105(c). The aggrieved person's 
election to proceed through ADR instead of EEO counseling is final.
    (e) ADR counseling requirements. (1) The minimum information to be 
provided by the EEO Counselor about the Department's ADR Program 
includes the following:
    (i) Definition of the term ADR;
    (ii) An explanation of the stages in the EEO process at which ADR 
may be available;
    (iii) A description of the ADR technique(s) used by the Department;
    (iv) A description of how the program is consistent with the EEO 
ADR core principles that ensure fairness and require voluntariness, 
neutrality, confidentiality, and enforceability;
    (v) An explanation of procedural and substantive alternatives; and
    (vi) All time frames for the EEO administrative process including 
ADR.
    (2) The EEO Counselor shall have no further involvement in 
resolving the EEO matter after the referral to the EEO ADR program.
    (f) Extension of pre-complaint processing period for ADR. Where the 
aggrieved person chooses to participate in ADR, the pre-complaint 
processing period shall not exceed 90 days from the date of initial 
contact with the EEO Office.
    (1) The aggrieved person shall be informed in writing by the EEO 
Counselor, no later than the thirtieth day after contacting the EEO 
Counselor, of the right to file a discrimination complaint, if the 
matter presented by the aggrieved person has not been resolved.
    (2) Prior to the end of the 30-day period from the date of initial 
contact with the EEO Office, the aggrieved person may agree, in 
writing, with the Department to postpone the final interview and extend 
the pre-complaint period for an additional period of no more than 60 
days if the matter is not resolved. If the matter has not been resolved 
before the conclusion of the agreed extension, the notice of right to 
file a discrimination complaint shall be issued no later than the 90th 
day of initial contact with the EEO Office. The notice shall inform the 
aggrieved person of the right to file a discrimination complaint within 
15 days of receipt of the notice, of the appropriate official with whom 
to file a complaint and of the aggrieved person's duty to assure that 
the Department is informed immediately if the aggrieved person retains 
counsel or a representative and if the aggrieved person changes 
address.
    (g) EEO ADR Program's relationship to negotiated grievance, MSPB 
appeal and administrative grievance procedures. Participation in the 
EEO ADR program does not preclude the aggrieved person or Complainant 
from exercising rights under any of the Department's other complaint or 
appeal procedures, when no resolution is reached. When participation in 
ADR results in a settlement agreement and the aggrieved person or 
Complainant believes the Department has failed to comply with its 
terms, the aggrieved person or Complainant may exercise the right of 
appeal pursuant to 29 CFR 1614.504.

Responsibilities


Sec. 7.10  Responsibilities of the Director of EEO.

    The Director and Deputy Director of EEO are responsible for:
    (a) Advising the Secretary with respect to the preparation of 
plans, procedures, regulations, reports, and other matters pertaining 
to the

[[Page 64324]]

Government's equal employment opportunity policy and the Department's 
EEO/ADR/AE programs;
    (b) Developing and maintaining plans, procedures, and regulations 
necessary to carry out the Department's EEO programs, including a 
Department-wide program of affirmative employment developed in 
coordination with other officials; and approving programs of 
affirmative employment established by each EEO Officer or comparable 
organizational head;
    (c) Evaluating, at least annually, the sufficiency of each 
organizational unit's EEO/ADR/AE program and providing reports thereon 
to the Secretary with recommendations as to any improvement or 
correction needed, including remedial or disciplinary action with 
respect to managerial or supervisory employees who have failed in their 
responsibility;
    (d) Appraising the Department's personnel operations at regular 
intervals to ensure their conformity with the policies of the 
Government's and the Department's EEO program;
    (e) Making changes in programs and procedures designed to eliminate 
discriminatory practices and improve the Department's EEO/ADR/AE 
programs;
    (f) Selecting EEO Counselors;
    (g) Providing for counseling by an EEO Counselor to a current or 
former employee or applicant for employment who believes that he or she 
has been discriminated against because of race, color, religion, sex, 
national origin, age, disability, or in retaliation for participation 
in protected EEO activity; or for opposing a policy or practice illegal 
under EEO statutes;
    (h) Providing for the prompt, fair and impartial processing of 
individual complaints involving claims of discrimination within the 
Department subject to 29 CFR part 1614;
    (i) Making the final decision on discrimination complaints and 
ordering such corrective measures as may be necessary, including 
disciplinary action warranted in circumstances where an employee has 
been found to have engaged in a discriminatory practice.
    (j) Executing settlement agreements to resolve EEO complaints;
    (k) Making available an ADR Program for EEO matters at both the 
pre-complaint and formal EEO complaint stages of the EEO administrative 
process;
    (l) Developing and providing annual mandatory EEO and ADR training 
for EEO Counselors, and all supervisors and managers in conjunction 
with HUD Training Academy, Office of Human Resources, and the Office of 
General Counsel, other federal agencies and resources with ADR 
information and expertise; and
    (m) Publicizing to all employees and posting at all times the 
names, business telephone numbers and addresses of the EEO Counselors, 
EEO Director, EEO Officers, and Diversity Program Managers, notice of 
EEO complaint processing time limits and the requirements of contacting 
an EEO Counselor and completing the counseling phase before filing a 
complaint.


Sec. 7.11  Responsibilities of the EEO Officers.

    Each EEO Officer is responsible for:
    (a) Advising the Director of EEO on all matters affecting the 
implementation of the Department's EEO/ADR/AE policies and programs in 
the organizational unit;
    (b) Developing and maintaining a program of affirmative employment 
for the organizational unit and ensuring that the program is carried 
out in an exemplary manner;
    (c) Publicizing to all employees of the organizational unit the 
name and address of the Director of EEO, the EEO Officer(s), and the 
EEO Counselor(s), the EEO Discrimination Complaint Manager(s), the 
Affirmative Employment Program (AEP) Manager, the Diversity Program 
Manager, ADR Officials, and the EEO complaint procedures;
    (d) Informing all managers and supervisors in the organizational 
unit of the responsibilities and objectives of the EEO Counselors, 
DCMs, ADR officials, EEO investigators, and of the EEO complaint 
process and the importance of cooperating and coordinating with all 
appropriate Department personnel to informally find solutions to 
problems brought to the EEO Officer's attention by current or former 
employees and applicants;
    (e) Evaluating and documenting the performance by the managers and 
supervisors in the organizational unit in carrying out their 
responsibilities under this subpart;
    (f) Seeking a resolution of EEO matters brought to their attention;
    (g) Designating a senior level Affirmative Employment Program (AEP) 
Manager in Headquarters responsible for preparing the AEP plan; 
managing the plan; providing advice and guidance to managers and 
supervisors in removing barriers to EEO/AE/ADR and in implementing all 
of their EEO/AE responsibilities; and reviewing all recruitment and 
personnel actions taken by managers and supervisors to ensure the 
achievement of AEP objectives;
    (h) Designating the Administrative Officer (AO) or other 
Headquarters organizational unit official as the DCM to manage and 
direct the organization's EEO responsibilities. In making such 
designation, the EEO Officer shall ensure that the designation as the 
DCM does not otherwise conflict with the official duties of the 
employee so designated;
    (i) Designating a senior level Diversity Program Manager in HUD 
Headquarters to manage and direct the organization's Diversity Program 
and providing resources for diversity activities for its employees;
    (j) Ensuring the successful operation of the EEO/AE/ADR Program by 
requiring management's support;
    (k) Approving and making reasonable accommodation to the known 
physical or mental limitations of qualified employees with disabilities 
unless the accommodation would impose an undue hardship on the 
operations of Department; and
    (l) Adhering to and implementing the Department's policy on 
religious accommodation.


Sec. 7.12  Responsibilities of the EEO Counselors.

    The EEO Counselor is responsible for counseling and attempting 
resolution of matters brought to the EEO Counselor's attention pursuant 
to Secs. 7.25 and 7.30 and 29 CFR part 1614, by any current or former 
employee or applicant for employment who believes that he or she has 
been discriminated against because of race, color, religion, sex, 
national origin, age, disability or in reprisal for participating in 
EEO activity or opposing policies and practices that are illegal under 
the EEO statutes. These responsibilities include, but are not limited 
to:
    (a) Advising individuals, in writing, of their rights and 
responsibilities, including:
    (1) The right to request a hearing and decision from EEOC or an 
immediate final decision from the agency after an investigation;
    (2) Election rights;
    (3) The right to file a notice of intent to sue and a lawsuit under 
the ADEA instead of an administrative complaint of age discrimination; 
and
    (4) The duty to mitigate damages;
    (5) Relevant time frames.
    (b) EEO Counselors shall advise aggrieved persons that only the 
claims raised in pre-complaint counseling (or issues or claims like or 
related to claims raised in pre-complaint counseling) may be alleged in 
a subsequent complaint filed with the Department.
    (c) EEO Counselors shall advise aggrieved persons of their duty to 
keep

[[Page 64325]]

the Department and EEOC informed of their current address and the name 
of the representative, if applicable, and to serve copies of hearing 
and appeal notices on the Department.
    (d) EEO Counselors shall provide to the aggrieved person the notice 
of the right to file an individual or a class complaint. If the 
aggrieved person informs the EEO Counselor that the aggrieved person 
wishes to file a class complaint, the EEO Counselor shall explain the 
class complaint procedures and the responsibilities of a class agent 
and provide class complaint counseling prior to the issuance of the 
notice of right to file a complaint.
    (e) EEO Counselors shall advise aggrieved persons that, where the 
Department agrees to offer ADR in a particular case, they may choose 
between participation in the EEO ADR Program and the traditional EEO 
counseling process. The EEO Counselor shall conduct the final interview 
with the aggrieved person within 30 days of the date the aggrieved 
person initially contacted the Department's EEO office to request 
counseling, unless the aggrieved person agrees to a longer counseling 
period or if the aggrieved person elects the ADR program and agrees to 
extend the initial 30-day pre-complaint period for an additional period 
of no more than 60 days.
    (f) If the matter has not been resolved before the conclusion of 
the agreed extension, the EEO Counselor shall issue the notice of right 
to file a discrimination complaint no later than the 90th day of the 
aggrieved person's initial contact with the EEO Office. The notice 
shall inform the aggrieved person of the right to file a discrimination 
complaint within 15 days of receipt of the notice; of the appropriate 
official with whom to file a complaint; and of the aggrieved person's 
duty to assure that the Department is informed immediately if the 
aggrieved person retains counsel or a representative and if the 
aggrieved person changes address.
    (g) EEO Counselors shall prepare a report sufficient to document 
the fact that the required counseling actions were taken and an attempt 
to resolve any jurisdictional questions was made. The report shall 
include a precise description of the claim(s) and the basis(es) 
identified by the aggrieved person; pertinent documents gathered during 
the inquiry, specific information concerning timeliness of the initial 
counseling contact, and a statement as to whether a resolution attempt 
was undertaken, and if so, the disposition.
    (h) EEO Counselors shall not attempt in any way to dissuade the 
aggrieved person from filing an EEO complaint. The EEO Counselor shall 
not reveal to the responsible management officials the identity of an 
aggrieved person who consulted the EEO Counselor, except when 
authorized to do so by the aggrieved person, or until the Department 
has received a formal discrimination complaint from that person 
involving that same matter.


Sec. 7.13  Responsibilities of the Assistant Secretary for 
Administration.

    The Assistant Secretary for Administration shall:
    (a) Provide leadership in developing and maintaining personnel 
management policies, programs, automated systems and procedures which 
will promote continuing affirmative employment to ensure equal 
opportunity in the recruitment, selection, placement, training, awards, 
recognition and promotion of employees, including an applicant flow 
tracking system;
    (b) Provide positive assistance and guidance to organizational 
units and personnel offices to ensure the effective implementation of 
the personnel management policies, programs, automated systems, and EEO 
procedures;
    (c) Participate at the national level with other government 
departments and agencies, other employers, and other public and private 
groups, in cooperative action to improve employment opportunities and 
community conditions which affect employability;
    (d) Prepare and implement plans for recruitment and reports in 
accordance with the Federal Equal Opportunity Recruitment Program 
(FEORP) and the Disabled Veterans Affirmative Action Program (DVAAP);
    (e) Provide reasonable accommodations to the known physical or 
mental limitations of qualified employees with disabilities unless the 
accommodations would impose an undue hardship on the operation of the 
Department's programs;
    (f) Adhere to and implement the Department's policy on religious 
accommodation;
    (g) Designate a senior level Disability Program Manager to promote 
EEO/ADR/AE for persons with disabilities; to assure the accessibility 
of all HUD facilities and programs; and to manage the resources for 
providing reasonable accommodation;
    (h) In conjunction with the Director of EEO, provide and coordinate 
mandatory EEO Counselor training;
    (i) Provide and coordinate mandatory supervisors' and managers' 
EEO/AE/ADR training;
    (j) Provide applicant data to ODEEO for analysis; and
    (k) Designate a DCM to represent the organizational unit in EEO 
matters. The DCM shall be the AO for the organizational unit or another 
designee of the EEO Officer.


Sec. 7.14  Responsibilities of the Office of Human Resources.

    In accordance with guidelines issued by the Assistant Secretary for 
Administration, Human Resources Officers shall:
    (a) Appraise job structure and employment practices to ensure 
equality of opportunity for all employees to participate fully on the 
basis of merit in all occupations and levels of responsibility;
    (b) Communicate the Department's EEO policy and program and its 
employment needs to all sources of job candidates without regard to 
race, color, religion, sex, national origin, disability, or age and 
solicit their recruitment assistance on a continuing basis;
    (c) Upon request, provide personnel information to EEO Counselors 
and other authorized officials or agents of the agency who are involved 
in the processing of a discrimination complaint;
    (d) Evaluate hiring methods and practices to ensure impartial 
consideration for all job applicants;
    (e) Ensure that new employee orientation programs contain 
appropriate references to the Department's EEO/ADR/AE policies, 
procedures and programs and accomplishment of EEO objectives under the 
Department's Performance, Accountability, Communications System (PACS) 
or other Departmental performance appraisal system;
    (f) Participate in the preparation and distribution of such 
educational materials as may be necessary to adequately inform all 
employees of their rights and responsibilities as described in this 
part, including the Department's EEO program directives;
    (g) In coordination with the Director of the HUD Training Academy, 
develop an on-going training program for supervisors and managers to 
ensure understanding of the Departmental EEO/ADR/AE programs, policy 
and other requirements which foster effective teamwork and high morale;
    (h) In coordination with the Director of the HUD Training Academy, 
the Office of General Counsel, the Office of Administration and the 
Director of EEO, develop an on-going training program for managers and 
supervisors to ensure understanding of the Department's EEO

[[Page 64326]]

and ADR programs. At a minimum, the training should include:
    (1) The Civil Rights Act of 1964 (42 U.S.C. 2000d);
    (2) Sections 501 and 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 791, 794);
    (3) The Administrative Dispute Resolution Act of 1996 (5 U.S.C. 
556, 571) and its amendments emphasizing the federal government's 
interest in encouraging mutual resolution of disputes and the benefits 
associated with using ADR;
    (4) EEOC's regulations and policy guidance concerning EEO, AE and 
ADR;
    (5) The ADR methods employed by the Department;
    (6) An explanation of how to draft a settlement agreement that 
complies with the standards required by ODEEO and 29 CFR part 1614;
    (7) An explanation of the recourse available where noncompliance by 
the Department is alleged; and
    (8) Training on EEO policy, programs and procedures;
    (i) In coordination with the Director of the HUD Training Academy, 
the Office of General Counsel, the Office of Administration, and the 
Director of EEO, the Department may enter into agreements to have EEO/
AE/ADR mandatory annual supervisory and management training provided by 
other federal agencies or other resources;
    (j) Decide all personnel actions on merit principles and in a 
manner which will demonstrate affirmative EEO for the organization;
    (k) Ensure to the greatest possible utilization and development of 
the skills and potential abilities of all employees;
    (l) Track applicant flow and promptly take or recommend appropriate 
action to overcome any impediment to achieving the objectives of the 
EEO/ADR/AE programs and accomplishing the EEO objectives under the 
Performance, Accountability, Communications System (PACS) or other 
Departmental performance appraisal system;
    (m) Provide applicant data to ODEEO for analysis; and
    (n) Provide recognition to employees, supervisors, managers and 
units demonstrating superior accomplishments in EEO.


Sec. 7.15  Responsibilities of managers and supervisors.

    All managers and supervisors of the Department are responsible for:
    (a) Removing barriers to EEO and ensuring that affirmative 
employment objectives are accomplished in their areas of 
responsibility;
    (b) Evaluating and documenting subordinate managers and supervisors 
on their performance of EEO/ADR/AE responsibilities;
    (c) Encouraging and taking positive steps to ensure respect for and 
acceptance of minorities, women and persons with disabilities, veterans 
and others of diverse characteristics in the workforce;
    (d) Ensuring the non-discriminatory treatment of all employees and 
for providing full and fair opportunity for all employees in obtaining 
employment and career advancement, including support for ADR, the 
Upward Mobility Program, the Mentoring Program and the implementation 
of Individual Development Plans;
    (e) Encouraging and authorizing staff participation in the various 
Diversity Program observances and training opportunities;
    (f) Being proactive in addressing EEO/ADR/AE issues, and 
maintaining work environments that encourage and support complaint 
avoidance through sound management and personnel practices;
    (g) Resolving complaints of discrimination early in the EEO process 
either independently, or through the use of ADR techniques;
    (h) Making reasonable accommodations to the known physical and 
mental limitations of applicants and employees with disabilities when 
those accommodations can be made without undue hardship on the business 
of the Department;
    (i) Attending mandatory annual supervisory and management training; 
and
    (j) Adhering to and implementing the Department's policy on 
religious accommodations.


Sec. 7.16  Responsibilities of employees.

    All employees of the Department are responsible for:
    (a) Being informed as to the Department's EEO/ADR/AE programs;
    (b) Adopting an attitude of full acceptance and respect for 
minorities, females, persons with disabilities, veterans and others of 
diverse characteristics in the workforce, and support for and 
participation in ADR;
    (c) Providing equality of treatment and service to all persons with 
whom they come in contact in carrying out their job responsibilities;
    (d) Providing assistance to supervisors and managers in carrying 
out their responsibilities in the EEO/ADR/AE programs; and
    (e) Cooperating during EEO investigations and throughout the entire 
EEO ADR process.

Pre-Complaint Processing


Sec. 7.25  Pre-complaint processing.

    (a) An ``aggrieved person'' must request counseling in accordance 
with 29 CFR 1614.105(a). The aggrieved person must initiate contact 
with an EEO Counselor within 45 days of the date of the matter alleged 
to be discriminatory or, in the case of a personnel action, within 45 
days of the effective date of the action. EEOC's regulation at 29 CFR 
1614.105 shall govern the Department's pre-complaint processing.
    (b) The Department or the EEOC shall extend the 45-day time limit 
in paragraph (a) of this section when the individual shows that the 
individual was not notified of the time limits and was not otherwise 
aware of them, that the individual did not know and reasonably should 
not have known that the discriminatory matter or personnel action 
occurred, that despite due diligence the individual was prevented by 
circumstances beyond the individual's control from contacting the EEO 
Counselor within the time limits, or for other reasons considered 
sufficient by the ODEEO or the EEOC.
    (c) At the initial counseling session, EEO Counselors must advise 
individuals, in writing, of their rights and responsibilities, 
including:
    (1) The right to request a hearing and decision from an 
Administrative Judge of the EEOC or an immediate final decision from 
the Department following an investigation in accordance with 29 CFR 
1614.108(f);
    (2) Election rights pursuant to 29 CFR 1614.301 and 29 CFR 
1614.302;
    (3) The right to file a notice of intent to sue pursuant to 29 CFR 
1614.201(a) and a lawsuit under the ADEA instead of an administrative 
complaint of age discrimination under this subpart;
    (4) The duty to mitigate damages;
    (5) Relevant time frames; and
    (6) The requirement that only the claims raised in pre-complaint 
counseling (or claims like or related to claims raised in pre-complaint 
counseling) may be alleged in a subsequent complaint filed with the 
Department.


Sec. 7.26  EEO Alternative Dispute Resolution Program.

    (a) The aggrieved person may elect to participate in the EEO ADR 
Program or the traditional EEO counseling procedures. When ADR is 
chosen, the EEO Counselor shall advise the aggrieved person that if the 
dispute is resolved during the ADR process, the terms of the agreement 
must be in writing and signed by both the

[[Page 64327]]

aggrieved person and the appropriate Department representative. The 
Director of EEO will execute ADR settlement agreements that are 
initiated in the EEO process. The EEO Counselor shall advise the 
aggrieved person that if no resolution is reached under the EEO ADR 
Program, or if the matter has not been resolved 90 days from the 
initial contact with the EEO Office, the aggrieved person will receive 
a final interview and the notice of right to file a formal complaint 
shall be issued by the EEO Counselor. Nothing said or done during 
attempts to resolve the complaint through ADR may be included in any 
EEO complaint (should ADR be unsuccessful) nor can the ADR proceedings 
be disclosed.
    (b) In appropriate cases (as determined by the Director of EEO on a 
case-by-case basis), ADR is available during the formal complaint 
process. Participation in ADR at the formal complaint stage does not 
affect the normal processing of the formal complaint, including the 
investigation. Should ADR be initiated at the formal complaint stage, 
the time period for processing the complaint may be extended by 
agreement for not more than 90 days. If ADR does not resolve the EEO 
issue(s), the complaint must be processed within the extended time 
period agreed upon by the parties, but no later than the 90th day.

Complaints


Sec. 7.30  Presentation of complaint.

    At any stage in the presentation of a complaint, including the 
counseling stage, the Complainant shall be free from restraint, 
interference, coercion, discrimination, or reprisal and shall have the 
right to be accompanied, represented, and advised by a representative 
of the Complainant's own choosing, except as limited by 29 CFR part 
1614.


Sec. 7.31  Who may file a complaint, with whom filed, and time limits.

    (a) Who may file a complaint. Any aggrieved person (hereafter, 
referred to as the Complainant in the formal complaint stage) who has 
satisfied the requirements of Sec. 7.25 of this part, may file a 
complaint, unless there is an executed settlement agreement or amended 
complaint of like or similar issues. The complaint must be filed with 
the Director of EEO within 15 days of receipt of the notice of right to 
file a complaint issued by the EEO Counselor. The Department may accept 
a complaint only if the Complainant has met the appropriate 
requirements of 29 CFR part 1614.
    (b) Filing and computation of time. (1) All time periods in this 
subpart stated in terms of days are calendar days unless otherwise 
stated.
    (2) A document shall be deemed timely if the document is received 
or postmarked before the expiration of the applicable filing period, 
or, in the absence of a legible postmark, if the document is received 
by mail within five days of the expiration of the applicable filing 
period.
    (3) The time limits in this part are subject to waiver, estoppel 
and equitable tolling.
    (4) The first day counted shall be the day after the event from 
which the time period begins to run and the last day of the period 
shall be included, unless the last day falls on a Saturday, Sunday or 
Federal holiday, in which case the period shall be extended to include 
the next business day.


Sec. 7.32  Representation and official time.

    (a) At any stage in the processing of an EEO complaint, including 
the counseling stage under 29 CFR 1614.105 and during participation in 
the EEO ADR Program, the Complainant shall have the right to be 
accompanied, represented, and advised by a representative of 
Complainant's choice, except as limited by 29 CFR part 1614.
    (b) If the Complainant is an employee of the Department, the 
Complainant shall have a reasonable amount of official time, if 
otherwise on duty, to prepare the complaint and to respond to 
Department and EEOC requests for information if the Complainant is 
otherwise in active duty status. If the Complainant is an employee of 
the Department and the Complainant designates another employee of the 
Department as the Complainant's representative, the representative 
shall have a reasonable amount of official time, if otherwise on duty, 
to prepare the complaint and respond to Department and EEOC requests 
for information.
    (c) The Department is not obligated to change work schedules, incur 
overtime wages, or pay travel expenses to facilitate the choice of a 
specific representative or to allow the Complainant and representative 
to confer. The Complainant and the Complainant's representative, if 
employed by the Department and otherwise in a pay status, shall be on 
official time, regardless of their tour of duty, when their presence is 
authorized or required by the Department or the EEOC during the 
investigation, informal adjustment, or hearing on the complaint.
    (d) In cases where the representation of a Complainant or the 
Department would conflict with the official or collateral duties of the 
representative, the EEOC or the Department may, after giving the 
representative an opportunity to respond, disqualify the 
representative.
    (e) Unless the Complainant states otherwise in writing, after the 
Department has received written notice of the name, address and 
telephone number of a representative for the Complainant, all official 
correspondence shall be with the representative with copies to the 
Complainant. When the Complainant designates an attorney as 
representative, service of all official correspondence shall be made on 
the attorney and the Complainant, but time frames for receipt of 
materials shall be computed from the time of receipt by the attorney. 
The Complainant must serve all official correspondence on the 
designated representative of the Department and shall notify the 
Department of any changes of the representative and Complainant's 
address.
    (f) The Complainant shall at all times be responsible for 
proceeding with the complaint and cooperating in the entire EEO 
complaint process, whether or not the Complainant has designated a 
representative.
    (g) Witnesses who are Federal employees, regardless of their tour 
of duty and regardless of whether they are employed by the Department 
or some other Federal agency, shall be in a duty status when their 
presence is authorized or required by EEOC or Department officials in 
connection with an EEO complaint.


Sec. 7.33  Contents of the complaint.

    (a) Information to be included in complaint. (1) The complaint 
filed should include the following information:
    (i) The specific claim or personnel matter which is alleged to be 
discriminatory;
    (ii) The date the act or matter occurred;
    (iii) The protected basis or bases on which the alleged 
discrimination occurred;
    (iv) Facts and other pertinent information to support the claim(s) 
of discrimination; and
    (v) The relief desired.
    (2) To expedite the processing of complaints of discrimination, the 
Complainant may use the HUD EEO-1 Complaint Form to file the complaint.
    (b) Amendments. (1) A Complainant may amend a complaint at any time 
prior to the conclusion of the

[[Page 64328]]

investigation to include issues or claims like or related to those 
raised in the complaint. After requesting a hearing, a Complainant may 
file a motion with the EEOC Administrative Judge to amend a complaint 
to include issues or claims like or related to those raised in the 
complaint.
    (2) The Department shall acknowledge receipt of a complaint or an 
amendment to a complaint in writing and inform the Complainant of the 
date on which the complaint or amendment was filed. The Department 
shall advise the Complainant in the acknowledgment of the EEOC office 
and its address where a request for a hearing shall be sent. Such 
acknowledgment shall also advise the Complainant that:
    (i) The Complainant has the right to appeal the dismissal of or 
final action on a complaint; and
    (ii) The Department is required to conduct an impartial and 
appropriate investigation of the complaint within 180 days of the 
filing of the complaint unless the parties agree in writing to extend 
the time period. When a complaint has been amended, the Department 
shall complete its investigation within the earlier of 180 days after 
the last amendment to the complaint or 360 days after the filing of the 
original complaint, except that the Complainant may request a hearing 
from an EEOC Administrative Judge on the consolidated complaints any 
time after 180 days from the date of the first filed complaint.
    (c) Joint processing and consolidation. (1) Complaints of 
discrimination filed by two or more Complainants consisting of 
substantially similar allegations of discrimination or relating to the 
same matter may be consolidated by the Department or the EEOC for joint 
processing after appropriate notification to the parties.
    (2) Two or more complaints of discrimination filed by the same 
Complainant shall be consolidated by the Department for joint 
processing after appropriate notification to the Complainant. When a 
complaint has been consolidated with one or more earlier filed 
complaints, the Department shall complete its investigation within the 
earlier of 180 days after the filing of the last complaint or 360 days 
after the filing of the original complaint, except that the Complainant 
may request a hearing from an EEOC Administrative Judge on the 
consolidated complaints any time after 180 days from the date of the 
first filed complaint.
    (3) EEOC Administrative Judges or the EEOC may, in their 
discretion, consolidate two or more complaints of discrimination filed 
by the same Complainant.
    (d) Class complaints--(1) Definitions. (i) A class is a group of 
employees, former employees or applicants for employment who, it is 
alleged, have been or are being adversely affected by the Department's 
personnel management policy or practice that discriminates against the 
group on the basis of their common race, color, religion, sex, national 
origin, age, disability, or in reprisal for participating in protected 
EEO activity or for opposing a practice made illegal under the EEO 
statutes.
    (ii) A class complaint is a written complaint of discrimination 
filed on behalf of a class by the agent of the class that satisfies the 
requirements of 29 CFR 1614.204.
    (2) Pre-complaint processing. A current or former employee or 
applicant who wishes to file a class complaint must be counseled in 
accordance with 29 CFR 1614.105. A Complainant may move for class 
certification at any reasonable point in the process when it becomes 
apparent that there are class implications to the claim raised in an 
individual complaint. If a Complainant moves for class certification 
after completing the counseling process in 29 CFR 1614.105, no 
additional counseling is required. Class certification shall be denied 
by the EEOC Administrative Judge, when the Complainant has unduly 
delayed in moving for certification.
    (3) Certification. Class complaints are certified by an EEOC 
Administrative Judge in accordance with the provisions of 29 CFR 
1614.204.
    (e) Mixed case complaints.--(1) Definitions. A mixed case complaint 
is a complaint of employment discrimination filed with a Federal agency 
based on race, color, religion, sex, national origin, age, disability, 
or in reprisal for participating in protected EEO activity or for 
opposing a policy or practice made illegal by the EEO statutes, related 
to or stemming from an action that can be appealed to the Merit Systems 
Protection Board (MSPB). The complaint may contain only a claim of 
employment discrimination or the complaint may contain additional 
claims that the MSPB has jurisdiction to address.
    (2) Election. An aggrieved person may initially file a mixed case 
complaint with the Department pursuant to this section or an appeal on 
the same matter with the MSPB pursuant to 5 CFR 1201.151, but not both. 
The Department shall inform every employee who is the subject of an 
action that is appealable to the MSPB and who has either orally or in 
writing raised the issue of discrimination during the processing of the 
action of the right to file either a mixed case complaint with the 
Department or to file a mixed case appeal with the MSPB. If a person 
files a mixed case appeal with the MSPB instead of a mixed case 
complaint and the MSPB dismisses the appeal for jurisdictional reasons, 
the Department shall promptly notify the individual in writing of the 
right to contact an EEO counselor within 45 days of receipt of this 
notice and to file an EEO complaint, subject to 29 CFR 1614.107.
    (3) Procedures for agency processing of mixed case complaints. When 
a complainant elects to proceed initially under 29 CFR part 1614, 
subpart C, rather than with the MSPB, the procedures in 29 CFR part 
1614, subpart A, shall govern the processing of the mixed case 
complaint with the following exceptions:
    (i) At the time the Department advises a Complainant of the 
acceptance of a mixed case complaint, the Department shall also advise 
the Complainant that:
    (A) If a final decision is not issued within 120 days of the date 
of filing of the mixed case complaint, the Complainant may appeal the 
matter to the MSPB at any time thereafter as specified at 5 CFR 
1201.154(b)(2) or may file a civil action as specified at 29 CFR 
1614.310(g), but not both; and
    (B) If the Complainant is dissatisfied with the Department's final 
decision on the mixed case complaint, the Complainant may appeal the 
matter to MSPB (not EEOC) within 30 days of receipt of the Department's 
final decision;
    (ii) Upon completion of the investigation, the notice provided the 
Complainant in accordance with 29 CFR 1614.108(f) will advise the 
Complainant that a final decision will be issued within 45 days without 
a hearing; and
    (iii) At the time that the Department issues its final decision on 
a mixed case complaint, the Department shall advise the Complainant of 
the right to appeal the matter to the MSPB (not EEOC) within 30 days of 
receipt and of the right to file a civil action as provided at 29 CFR 
1614.310(a).
    (4) Dismissal. (i) The Department may dismiss a mixed case 
complaint for the reasons provided in, and under the conditions 
prescribed in 29 CFR 1614.107. If MSPB's Administrative Judge finds 
that MSPB does not have jurisdiction over the matter, the Department 
shall resume processing of the complaint as a non-mixed case EEO 
complaint.

[[Page 64329]]

Sec. 7.34  Acceptability.

    (a) The Director of EEO shall determine whether a complaint comes 
within the purview of 29 CFR part 1614 and shall advise the Complainant 
and Complainant's representative, if applicable, in writing of the 
acceptance or dismissal of the claims(s) of the complaint. The Notice 
of Receipt is provided to the Complainant, Complainant's 
representative, if applicable, and to the organizational unit through 
the appropriate EEO Officer and DCM.
    (b) Dismissals of complaints are governed by the notice 
requirements and procedures in 29 CFR 1614.106(e)(1) and 29 CFR 
1614.107.
    (c) Prior to a request for a hearing in a case, the Department 
shall dismiss an entire complaint for any of the reasons provided in 29 
CFR 1614.107(a)(1) through (9), including a complaint that alleges 
dissatisfaction with the processing of a previously filed complaint; or 
where the Department, strictly applying the criteria in EEOC decisions, 
finds that the complaint is part of a clear pattern of misuse of the 
EEO process for a purpose other than the prevention and elimination of 
employment discrimination. A clear pattern of misuse of the EEO process 
requires:
    (i) Evidence of multiple complaint filings; and
    (ii) Claims that are similar or identical, lack specificity or 
involve matters previously resolved; or
    (iii) Evidence of circumventing other administrative processes, 
retaliating against the Department's in-house administrative processes 
or overburdening the EEO complaint system.
    (d) Where the Director of EEO believes that some, but not all, of 
the claims in a complaint should be dismissed for the reasons provided 
in Sec. 7.34 and 29 CFR 1614.107(a)(1) through (9), the Department 
shall notify the Complainant in writing of its determination, the 
rationale for that determination and that those claims will not be 
investigated, and shall place a copy of the notice in the investigative 
file. A determination under 29 CFR 1614.107(b)(1) that some claims 
should be dismissed is reviewable by an EEOC Administrative Judge if a 
hearing is requested on the remainder of the complaint, but is not 
appealable until final action is taken on the remainder of the 
complaint.


Sec. 7.35  Processing.

    (a) The Director of EEO will process complaints filed under 29 CFR 
part 1614 for the Department with the assistance of the EEO Officer, 
DCM, the EEO Counselor and the full cooperation of all other Department 
managers, supervisors and other employees.
    (b) The Director of EEO shall, in accordance with 29 CFR part 1614, 
provide for the development of an impartial and appropriate factual 
record upon which to make findings on the claims raised by the written 
complaint. An appropriate factual record is one that allows a 
reasonable fact finder to draw conclusions as to whether discrimination 
occurred. The person assigned to develop the factual record may use an 
exchange of letters or memoranda, interrogatories, investigations, 
fact-finding conferences or any other fact-finding methods that 
efficiently and thoroughly address the matters at issue and is 
encouraged, in accordance with 29 CFR 1614.108(b), to incorporate ADR 
techniques into the investigative efforts in order to promote early 
resolution of complaints.
    (c) The Director of EEO will provide the Complainant and 
Complainant's representative, if applicable, and the EEO Officer a copy 
of the record developed. Within 180 days from the filing of the 
complaint, or where a complaint was amended, within the earlier of 180 
days after the last amendment to the complaint or 360 days after the 
filing of the original complaint, within the time period contained in 
an order from the Office of Federal Operations on an appeal from a 
dismissal, or within any period of extension provided for in 29 CFR 
1614.108(f), the Department shall provide the Complainant with a copy 
of the investigative file, and shall notify the Complainant that, 
within 30 days of receipt of the investigative file, the Complainant 
has the right to request a hearing and decision from an EEOC 
Administrative Judge or may request an immediate final decision 
pursuant to 29 CFR 1614.110 from the Department.


Sec. 7.36  Hearing.

    (a) Notification of right to request a hearing. The Director of EEO 
will notify the Complainant, the General Counsel, EEO Officer, DCM and 
Complainant's representative, where applicable, of the Complainant's 
right to request an administrative hearing and decision before the EEOC 
or the Department's final decision and the time frames for executing 
the right to request an administrative hearing. Note: Where a mixed 
case complaint is filed, the Complainant has no right to a hearing 
before an EEOC Administrative Judge unless the MSPB has dismissed the 
mixed case complaint or appeal for jurisdictional reasons. (See 29 CFR 
1614.302(b).)
    (b) Requesting a hearing. Where the Complainant has received the 
notice required in Sec. 7.35(c) above and 29 CFR 1614.108(f) or at any 
time after 180 days have elapsed from the filing of the complaint, the 
Complainant may request a hearing by submitting a written request for a 
hearing directly to the EEOC office indicated in the Department's 
acknowledgment letter. The Complainant shall send a copy of the request 
for a hearing to the Department's EEO office. Within 15 days of receipt 
of a copy of complainant's request for a hearing, or the docketing 
notice from the EEOC, whichever is earlier, the Director of EEO shall 
provide a copy of the complaint file to EEOC and, if not previously 
provided, to the Complainant, Complainant's representative, if 
applicable, and the appropriate Office of General Counsel.
    (c) EEOC appointment of EEOC Administrative Judge. When a 
Complainant requests a hearing, the EEOC shall appoint an EEOC 
Administrative Judge to conduct a hearing in accordance with this 
section. Upon appointment, the EEOC Administrative Judge shall assume 
full responsibility for the adjudication of the complaint, including 
overseeing the development of the record. Any hearing will be conducted 
by an EEOC Administrative Judge or hearing examiner with appropriate 
security clearances.
    (d) Dismissals. EEOC Administrative Judges may dismiss complaints 
pursuant to 29 CFR 1614.107, on their own initiative, after notice to 
the parties, or upon the Department's motion to dismiss a complaint.
    (e) Offer of resolution. Any time after the filing of the written 
complaint but not later than the date an EEOC Administrative Judge is 
appointed to conduct a hearing, the Department may make an offer of 
resolution to a Complainant who is represented by an attorney.
    (1) Any time after the parties have received notice that an EEOC 
Administrative Judge has been appointed to conduct a hearing, but not 
later than 30 days prior to the hearing, the Department may make an 
offer of resolution to the Complainant, whether represented by an 
attorney or not.
    (2) The offer of resolution shall be in writing and shall include a 
notice explaining the possible consequences of failing to accept the 
offer. The Department's offer, to be effective, must include attorney's 
fees and costs and must specify any non-monetary relief.

[[Page 64330]]

    (3) With regard to monetary relief, the Department may make a lump 
sum offer covering all forms of monetary liability, or the Department 
may itemize the amounts and types of monetary relief being offered.
    (4) The Complainant shall have 30 days from receipt of the offer of 
resolution to accept the offer of resolution. If the Complainant fails 
to accept an offer of resolution and the relief awarded in the EEOC 
Administrative Judge's decision, the Department's final decision, or 
the EEOC decision on appeal is not more favorable than the offer, then, 
except where the interest of justice would not be served, the 
Complainant shall not receive payment from the Department of attorney's 
fees or costs incurred after the expiration of the 30-day acceptance 
period.
    (5) An acceptance of an offer must be in writing and will be timely 
if postmarked or received within the 30-day period. Where a Complainant 
fails to accept an offer of resolution, the Department may make other 
offers of resolution and either party may seek to negotiate a 
settlement of the complaint at any time.
    (f) Orders to produce evidence and failure to comply. (1) The 
Complainant, the Department, and any employee of the Department shall 
produce such documentary and testimonial evidence as the EEOC 
Administrative Judge deems necessary. The EEOC Administrative Judge 
shall serve all orders to produce evidence on both parties.
    (2) When the Complainant, or the agency against which a complaint 
is filed, or its employees fail without good cause shown to respond 
fully and in timely fashion to an order of an EEOC Administrative 
Judge, or requests for the investigative file, for documents, records, 
comparative data, statistics, affidavits, or the attendance of 
witness(es), the EEOC Administrative Judge shall, in appropriate 
circumstances:
    (i) Draw an adverse inference that the requested information, or 
the testimony of the requested witness, would have reflected 
unfavorably on the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to 
produce the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as appropriate.
    (g) Discovery, conduct and record of hearing--(1) Discovery. The 
EEOC Administrative Judge shall notify the parties of the right to seek 
discovery prior to the hearing and may issue such discovery orders as 
are appropriate. Unless the parties agree in writing concerning the 
methods and scope of discovery, the party seeking discovery shall 
request authorization from the EEOC Administrative Judge prior to 
commencing discovery. Both parties are entitled to reasonable 
development of evidence on matters relevant to the issues raised in the 
complaint, but the EEOC Administrative Judge may limit the quantity and 
timing of discovery. Evidence may be developed through interrogatories, 
depositions, and requests for admissions, stipulations or production of 
documents. Grounds for objection to producing evidence shall be that 
the information sought by either party is irrelevant, overburdensome, 
repetitious, or privileged.
    (2) Conduct of hearing. The Department shall provide for the 
attendance at a hearing of all employees approved as witnesses by an 
EEOC Administrative Judge. Attendance at hearings will be limited to 
persons determined by the EEOC Administrative Judge to have direct 
knowledge relating to the complaint. Hearings are part of the 
investigative process and are thus closed to the public. The EEOC 
Administrative Judge shall have the power to regulate the conduct of a 
hearing, limit the number of witnesses where testimony would be 
repetitious, and exclude any person from the hearing for contumacious 
conduct or misbehavior that obstructs the hearing. The EEOC 
Administrative Judge shall receive into evidence information or 
documents relevant to the complaint. Rules of evidence shall not be 
applied strictly, but the EEOC Administrative Judge shall exclude 
irrelevant or repetitious evidence. The EEOC Administrative Judge or 
the Commission may refer to the Disciplinary Committee of the 
appropriate Bar Association any attorney or, upon reasonable notice and 
an opportunity to be heard, suspend or disqualify from representing 
Complainants or agencies in EEOC hearings any representative who 
refuses to follow the orders of an EEOC Administrative Judge, or who 
otherwise engages in improper conduct.
    (3) Record of hearing. The hearing shall be recorded and the 
Department shall arrange and pay for verbatim transcripts. All 
documents submitted to, and accepted by, the EEOC Administrative Judge 
at the hearing shall be made part of the record of the hearing. If the 
Department submits a document that is accepted, the Department shall 
furnish a copy of the document to the Complainant. If the Complainant 
submits a document that is accepted, the EEOC Administrative Judge 
shall make the document available to the Department representative for 
reproduction.


Sec. 7.37  Final action.

    (a) Department final decision without a hearing. The Director of 
EEO shall make the final decision for the Department based on the 
record developed through the processing of the complaint. The Director 
of EEO may consult with the General Counsel, the Assistant Secretary of 
Administration, the Office of Human Resources, the EEO Officer, the 
DCM, the EEO Counselor, other managers and supervisors, all designees 
and comparables, and all other persons the Director of EEO deems 
necessary. The decision, where appropriate, shall include the remedial 
and corrective action necessary to ensure that the Department is in 
compliance with the EEO statutes and to promote the Department's policy 
of equal employment opportunity. When the Department dismisses an 
entire complaint under 29 CFR 1614.107, receives a request for an 
immediate final decision or does not receive a reply to the notice 
issued under 29 CFR 1614.108(f), the Department shall take final action 
by issuing a final decision. The final decision shall consist of 
findings by the Department on the merits of each issue in the 
complaint, or, as appropriate, the rationale for dismissing any claims 
in the complaint and, when discrimination is found, appropriate 
remedies and relief in accordance with 29 CFR part 1614, subpart E. The 
Department shall issue the final decision within 60 days of receiving 
notification that a Complainant has requested an immediate decision 
from the Department, or within 60 days of the end of the 30-day period 
for the Complainant to request a hearing or an immediate final decision 
where the Complainant has not requested either a hearing or a decision. 
The final action shall contain notice of the right to appeal the final 
action to the EEOC, 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. A copy of the 
Notice of Appeal Petition (EEOC Form 573) shall be attached to the 
final action.

[[Page 64331]]

    (b) Department final order after decision by EEOC Administrative 
Judge. When an EEOC Administrative Judge has issued a decision under 29 
CFR 1614.109(b), (g) or (i), the Department shall take final action on 
the complaint by issuing a final order within 40 days of receipt of the 
hearing file and the EEOC Administrative Judge's decision. The final 
order shall notify the Complainant whether or not the Department will 
fully implement the decision of the EEOC Administrative Judge and shall 
contain notice of the Complainant's right to appeal to the EEOC, 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 EEOC Administrative Judge, then the Department shall 
simultaneously file an appeal in accordance with 29 CFR 1614.403 and 
append a copy of the appeal to the final order. A copy of EEOC Form 573 
shall be attached to the final order.
    (c) Decision and final order by EEOC Administrative Judge after 
hearing. Unless the EEOC Administrative Judge makes a written 
determination that good cause exists for extending the time for issuing 
a decision, an EEOC Administrative Judge shall issue a decision on the 
complaint, and shall order appropriate remedies and relief where 
discrimination is found, within 180 days of receipt by the EEOC 
Administrative Judge of the complaint file from the Department. The 
EEOC Administrative Judge shall send copies of the hearing record, 
including the transcript, and the decision to the parties. If the 
Department does not issue a final order within 40 days of receipt of 
the EEOC Administrative Judge's decision in accordance with 29 CFR 
1614.110, then the decision of the EEOC Administrative Judge shall 
become the final action of the Department.
    (d) Decision and final order by EEOC Administrative Judge without 
hearing. (1) If a party believes that some or all material facts are 
not in genuine dispute and there is no genuine issue as to credibility, 
the party may, at least 15 days prior to the date of the hearing or at 
such earlier time as required by the EEOC Administrative Judge, file a 
statement with the EEOC Administrative Judge prior to the hearing 
setting forth the fact or facts and referring to the parts of the 
record relied on to support the statement. The statement must 
demonstrate that there is no genuine issue as to any such material 
fact. The party shall serve the statement on the opposing party.
    (2) The opposing party may file an opposition within 15 days of 
receipt of the statement in 29 CFR 1614.109(g)(1). The opposition may 
refer to the record in the case to rebut the statement that a fact is 
not in dispute or may file an affidavit stating that the party cannot, 
for reasons stated, present facts to oppose the request. After 
considering the submissions, the EEOC Administrative Judge may order 
that discovery be permitted on the fact or facts involved, limit the 
hearing to the issues remaining in dispute, issue a decision without a 
hearing or make such other ruling as is appropriate.
    (3) If the EEOC Administrative Judge determines that some or all 
facts are not in genuine dispute, the EEOC Administrative Judge may, 
after giving notice to the parties and providing them an opportunity to 
respond in writing within 15 days, issue an order limiting the scope of 
the hearing or issue a decision without holding a hearing.


Sec. 7.38  Appeals.

    (a) Appeals to the EEOC. (1) A Complainant may appeal the 
Department's final action or dismissal of a complaint. The regulations 
at 29 CFR part 1614, subpart D, govern a Complainant's right of appeal.
    (2) The Department may appeal as provided in 29 CFR 1614.110(a).
    (3) A class agent or the Department may appeal an EEOC 
Administrative Judge's decision accepting or dismissing all or part of 
a class complaint; a class agent may appeal a final decision on a class 
complaint; a class member may appeal a final decision on a claim for 
individual relief under a class complaint; and a class member, a class 
agent or the Department may appeal a final decision on a petition 
pursuant to 29 CFR 1614.204(g)(4).
    (b) Time limits for appeals to the EEOC. Appeals described in 29 
CFR 1614.401(a) and (c) must be filed within 30 days of Complainant's 
receipt of the dismissal, final action or decision, or within 30 days 
of receipt by the attorney of record, if represented. Appeals described 
in 29 CFR 1614.401(b) must be filed within 40 days of receipt of the 
hearing file and decision. Where a Complainant has notified the 
Director of EEO of alleged noncompliance with a settlement agreement in 
accordance with 29 CFR 1614.504, the Complainant may file an appeal 35 
days after service of the allegations of noncompliance, but no later 
than 30 days after receipt of the Department's determination.
    (c) How to appeal. (1) The Complainant, the Department, a class 
agent, grievant or individual class claimant (hereinafter appellant) 
must file an appeal with the Director, Office of Federal Operations, 
Equal Employment Opportunity Commission, at PO Box 19848, Washington, 
DC 20036, or by personal delivery or facsimile. The appellant should 
use EEOC Form 573, Notice of Appeal/Petition, and should indicate what 
is being appealed.
    (2) The appellant shall furnish a copy of the appeal to the 
opposing party at the same time the appeal is filed with the EEOC. In 
or attached to the appeal to the EEOC, the appellant must certify the 
date and method by which service was made on the opposing party.
    (3) If an appellant does not file an appeal within the time limits 
of this section, the appeal shall be dismissed by the EEOC as untimely.
    (4) Any statement or brief on behalf of a Complainant in support of 
the appeal must be submitted to the Office of Federal Operations within 
30 days of filing the notice of appeal. Any statement or brief on 
behalf of the Department in support of its appeal must be submitted to 
the Office of Federal Operations within 20 days of filing the notice of 
appeal. The Office of Federal Operations will accept statements or 
briefs in support of an appeal by facsimile transmittal, provided they 
are no more than 10 pages long.
    (5) The Department must submit the complaint file to the Office of 
Federal Operations within 30 days of initial notification that the 
Complainant has filed an appeal or within 30 days of submission of an 
appeal by the Department.
    (6) The Department may be represented by the Office of General 
Counsel in appeals before the Office of Federal Operations.
    (7) Any statement or brief in opposition to an appeal must be 
submitted to the EEOC and served on the opposing party within 30 days 
of receipt 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. The Office of Federal Operations will accept 
statements or briefs in opposition to an appeal by facsimile provided 
they are no more than 10 pages long.
    (d) Request for reconsideration. A decision issued under paragraph 
(a) of Sec. 1614.405 is final within the meaning of 29 CFR 1614.407 
unless the EEOC reconsiders the case. A party may request 
reconsideration within 30 days of receipt of a decision of the EEOC, 
which the EEOC in its discretion may grant, if the party demonstrates 
that:

[[Page 64332]]

    (1) The appellate decision involved a clearly erroneous 
interpretation of material fact or law; or
    (2) The decision will have a substantial impact on the policies, 
practices or operations of the Department.

Other Complaint and Appeal Procedures


Sec. 7.39  Negotiated grievance, MSPB appeal and administrative 
grievance procedures.

    (a) Negotiated grievance procedure. An aggrieved person covered by 
a collective bargaining agreement that permits allegations of 
discrimination to be raised in a negotiated grievance procedure can 
file a complaint under these procedures or a negotiated grievance, but 
not both. An election to proceed under this section is indicated only 
by the filing of a written complaint. An election to proceed under a 
negotiated grievance procedure is indicated by the filing of a timely 
grievance. (See 29 CFR 1614.301.)
    (b) MSPB appeal procedure--(1) Who can file appeal and when. An 
aggrieved person alleging discrimination on basis of race, color, 
religion, sex, national origin, age or reprisal because of 
participation in related to or stemming from an action that can be 
appealed to the MSPB can file a complaint under these procedures, or an 
appeal with the MSPB, but not both. Whichever is filed first, the 
complaint or the appeal, is considered an election to proceed in that 
forum. (See 29 CFR 1614.302 through 29 CFR 1614.309.)
    (2) Right to file civil action about MSPB appeal or decision. The 
procedures of this section are governed by 29 CFR 1614.310.
    (3) MSPB appeal rights. The provisions of 29 CFR part 1614, subpart 
C, shall govern MSPB appeal rights.
    (c) Administrative grievance procedure--(1) Grievance. A request by 
an employee, or by a group of employees acting as individuals, for 
personal relief in a matter of concern or dissatisfaction related to 
employment with the Department and over which the Department has 
control, including an allegation of coercion, reprisal or retaliation. 
The range of matters is limited to those for which no other means of 
administrative review is provided.
    (2) Covered employee. Any non-bargaining unit employee, including a 
former employee or applicant for whom a remedy can be provided.
    (3) Responsibilities of participants in the grievance procedure. 
Each employee has the responsibility for making a maximum effort to 
achieve informal settlement of a personal grievance.
    (4) Grievance requirements. The procedures, responsibilities and 
processes to be followed by an employee wishing to file an 
administrative grievance are found in HUD Handbook 771.2 REV-2, 
Administrative Grievances.

Remedies, Enforcement and Compliance


Sec. 7.40  Remedies and enforcement.

    (a) Remedies and relief. When the Department, or the EEOC, in an 
individual case of discrimination, finds that a current or former 
employee or applicant has been discriminated against, the Department 
shall provide full relief in accordance with 29 CFR 1614.501.
    (1) Attorney's fees and costs. In a decision or final action, the 
Department, EEOC Administrative Judge or the EEOC may award the 
applicant or current or former employee reasonable attorney's fees 
(including expert witness fees) and other costs incurred in the 
processing of the complaint.
    (i) Full relief in Title VII and Rehabilitation Act cases may 
include compensatory damages, an award of attorney's fees (including 
expert witness fees) and costs when requested and verified, in 
accordance with the requirements of 29 CFR 1614.501(e).
    (ii) Time period and persons covered. Attorney's fees shall be paid 
for services performed by an attorney after the filing of a written 
complaint, provided that the attorney provides reasonable notice of 
representation to the Department, EEOC Administrative Judge or EEOC, 
except that fees are allowable for a reasonable period of time prior to 
the notification of representation for any services performed in 
reaching a determination to represent the Complainant. The Department 
is not required to pay attorney's fees for services performed during 
the pre-complaint process, except that fees are allowable when the EEOC 
affirms on appeal an EEOC Administrative Judge's decision finding 
discrimination after the Department takes final action by not 
implementing an EEOC Administrative Judge's decision or when the 
parties agree the Department will pay for attorney's fees for pre-
complaint representation.
    (2) Notice of representation. Written submissions to the Department 
that are signed by the representative shall be deemed to constitute 
notice of representation.
    (3) Nonattorney fees and costs. Reporter, witness, printing and 
other related fees and costs may be awarded, in accordance with 29 CFR 
1614.501(e)(1)(iii) and 1614.501(e)(2)(ii)(C).


Sec. 7.41  Compliance with EEOC final decisions.

    (a) Relief ordered in a final EEOC decision is mandatory and 
binding on the Department except as provided in this section. The 
Department's failure to implement ordered relief shall be subject to 
judicial enforcement, as specified in 29 CFR 1614.503(g).
    (b) Notwithstanding paragraph (a) of this section, when the 
Department requests reconsideration and the case involves removal, 
separation, or suspension continuing beyond the date of the request for 
reconsideration, and when the decision orders retroactive restoration, 
the Department shall comply with the decision to the extent of the 
temporary or conditional restoration of the employee to duty status in 
the position specified by the EEOC, pending the outcome of the 
Department's request for reconsideration.
    (1) Service under the temporary or conditional restoration 
provisions of paragraph (b) of this section shall be credited toward 
the completion of a probationary or trial period, eligibility for a 
within-grade increase, or the completion of the service requirement for 
career tenure, if the EEOC upholds its decision after reconsideration.
    (2) When the Department requests reconsideration, the Department 
may delay the payment of any amounts ordered to be paid to the 
Complainant until after the request for reconsideration is resolved. If 
the Department delays payment of any amount pending the outcome of the 
request to reconsider and the resolution of the request requires the 
Department to make the payment, then the Department shall pay interest 
from the date of the original appellate decision until payment is made.
    (3) The Department shall notify the EEOC and the employee in 
writing at the same time the Department requests reconsideration that 
the relief the Department provides is temporary or conditional and, if 
applicable, that the Department will delay the payment of any amounts 
owed but will pay interest as specified in paragraph (b)(2) of this 
section. Failure of the Department to provide notification will result 
in the dismissal of the Department's request.
    (4) When no request for reconsideration is filed or when a request 
for reconsideration is denied, the Department shall provide the relief 
ordered and there is no further right to delay implementation of the 
ordered relief. The relief shall be provided in

[[Page 64333]]

full not later than 60 days after receipt of the final decision, unless 
otherwise ordered in the decision.


Sec. 7.42  Enforcement of EEOC final decisions.

    (a) Petition for enforcement. A Complainant may petition the EEOC 
for enforcement of a decision issued under the EEOC's appellate 
jurisdiction. The petition shall be submitted to the Office of Federal 
Operations. The petition shall specifically provide the reasons that 
led the Complainant to believe that the Department is not complying 
with the decision.
    (b) Referral to the EEOC. Where the Director, Office of Federal 
Operations, is unable to obtain satisfactory compliance with the final 
decision, the Director shall submit appropriate findings and 
recommendations for enforcement to the EEOC, or, as directed by the 
EEOC, refer the matter to another appropriate Department.
    (c) EEOC notice to show cause. The EEOC may issue a notice to the 
Secretary that the Department has failed to comply with a decision and 
to show cause why there is noncompliance. Such notice may request the 
head of the Department or a representative to appear before the EEOC or 
to respond to the notice in writing with adequate evidence of 
compliance or with compelling reasons for non-compliance.
    (d) Notification to complainant of completion of administrative 
efforts. Where the EEOC has determined that the Department is not 
complying with a prior decision, or where the Department has failed or 
refused to submit any required report of compliance, the EEOC shall 
notify the Complainant of the right to file a civil action for 
enforcement of the decision pursuant to title VII, the ADEA, the Equal 
Pay Act or the Rehabilitation Act and to seek judicial review of the 
Department's refusal to implement the ordered relief in accordance with 
the Administrative Procedure Act (5 U.S.C. 701 et seq.), and the 
mandamus statute (28 U.S.C. 1361), or to commence new proceedings in 
accordance with the appropriate statutes.


Sec. 7.43  Settlement agreements.

    (a) The Department shall make reasonable efforts to voluntarily 
settle complaints of discrimination as early as possible in, and 
throughout, the administrative processing of complaints, including the 
pre-complaint counseling stage. These efforts shall include ADR. Any 
settlement reached shall:
    (1) Be in writing;
    (2) Identify the claims resolved;
    (3) Be signed by both parties and/or their designees; and
    (4) Otherwise comply with 29 CFR part 1614.
    (b) Any settlement agreement knowingly and voluntarily agreed to by 
the parties, reached at any stage of the complaint process, shall be 
binding on both parties. Final action that has not been the subject of 
an appeal or civil action shall be binding on the Department. If the 
Complainant believes that the Department has failed to comply with the 
terms of a settlement agreement or decision, the Complainant shall 
notify the Director of EEO, in writing, of the alleged noncompliance 
within 30 days of when the Complainant knew or should have known of the 
alleged noncompliance. The Complainant may request that the terms of 
the settlement agreement be specifically implemented or, alternatively, 
that the complaint be reinstated for further processing from the point 
processing ceased.
    (c) The Department shall resolve the matter and respond to the 
Complainant, in writing. If the Department has not responded to the 
Complainant, in writing, or if the Complainant is not satisfied with 
the Department's attempt to resolve the matter, the Complainant may 
appeal to the EEOC for a determination as to whether the Department has 
complied with the terms of the settlement agreement or final decision. 
The Complainant may file such an appeal 35 days after the Complainant 
has served the Department with the allegations of noncompliance, but 
must file an appeal within 30 days of the Complainant's receipt of the 
Department's determination. The Complainant must serve a copy of the 
appeal on the Department and the Department may submit a response to 
the EEOC within 30 days of receiving notice of the appeal.


Sec. 7.44  Interim relief.

    (a) When the Department appeals and the case involves removal, 
separation, or suspension continuing beyond the date of the appeal, and 
when the EEOC Administrative Judge's decision orders retroactive 
restoration, the Department shall comply with the decision to the 
extent of the temporary or conditional restoration of the employee to 
duty status in the position specified in the decision, pending the 
outcome of the Department appeal. The employee may decline the offer of 
interim relief.
    (b) Service under the temporary or conditional restoration 
provisions of paragraph (a) of this section shall be credited toward 
the completion of a probationary or trial period, eligibility for a 
within-grade increase, or the completion of the service requirement for 
career tenure, if the EEOC upholds the decision on appeal. Such service 
shall not be credited toward the completion of any applicable 
probationary or trial period or the completion of the service 
requirement for career tenure, if the EEOC reverses the decision on 
appeal.
    (c) When the Department appeals, the Department may delay the 
payment of any amount, other than prospective pay and benefits, ordered 
to be paid to the Complainant until after the appeal is resolved. If 
the Department delays payment of any amount pending the outcome of the 
appeal and the resolution of the appeal requires the Department to make 
the payment, then the Department shall pay interest from the date of 
the original decision until payment is made.
    (d) The Department shall notify the EEOC and the employee in 
writing at the same time the Department appeals that the relief the 
Department provides is temporary or conditional and, if applicable, 
that the Department will delay the payment of any amounts owed but will 
pay interest as specified in paragraph (c) of this section. Failure of 
the Department to provide notification will result in the dismissal of 
the Department's appeal.
    (e) The Department may, by notice to the Complainant, decline to 
return the Complainant to the Complainant's place of employment if the 
Department determines that the return or presence of the Complainant 
will be unduly disruptive to the work environment. However, prospective 
pay and benefits must be provided. The determination not to return the 
Complainant to the Complainant's place of employment is not reviewable. 
A grant of interim relief does not insulate a Complainant from 
subsequent disciplinary or adverse action.
    (f) If the Department files an appeal and has not provided required 
interim relief, the Complainant may request dismissal of the 
Department's appeal. Any such request must be filed with the Office of 
Federal Operations within 25 days of the date of service of the 
Department's appeal. A copy of the request must be served on the 
Department at the same time the request is filed with EEOC. The 
Department may respond with evidence and argument to the Complainant's 
request to dismiss within 15 days of the date of service of the 
request.

[[Page 64334]]

Statistics and Reporting Requirements


Sec. 7.45  EEO group statistics and reports.

    (a) The Department shall establish a system to collect and maintain 
accurate employment information on the race, national origin, sex and 
disability of its employees and applicant flow in accordance with 29 
CFR 1614.601 through 29 CFR 1614.602 and the Department shall report to 
the EEOC on employment by race, national origin, sex and disability, in 
the form and at such times as the EEOC may require.
    (b) The Department shall report to the EEOC information concerning 
pre-complaint counseling and the status, processing and disposition of 
complaints under this part, at such times and in such manner as the 
EEOC prescribes.
    (c) The Department shall advise the EEOC whenever the Department is 
served with a Federal court complaint based upon a complaint that is 
pending on appeal at the EEOC.
    (d) The Department shall submit annual written national equal 
employment opportunity plans of action for the review and approval of 
the EEOC. Plans shall be submitted in a format prescribed by the EEOC 
and in accordance with 29 CFR 1614.602.

Subpart B--[Reserved]

    Dated: October 2, 2000.
Andrew Cuomo,
 Secretary.
[FR Doc. 00-27470 Filed 10-25-00; 8:45 am]
BILLING CODE 4210-28-P