64320 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

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.

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 precomplaint 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.

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

64322 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

Subpart A—Equal Employment

Opportunity Without Regard to Race,

Color Religion, Sex, National Origin,

Age, Disability or Reprisal

General Provisions

§ 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.

§ 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.

§ 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-ofinterest. 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

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules 64323

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.

§ 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.

§ 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

§ 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

64324 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

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 precomplaint 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.

§ 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.

§ 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 §§ 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

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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 precomplaint 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.

§ 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.

§ 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

64326 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

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.

§ 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.

§ 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

§ 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.

§ 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

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

§ 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.

§ 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 § 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.

§ 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.

§ 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

64328 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

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.

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules 64329

§ 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

§ 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.

§ 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.

§ 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 § 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.

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(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.

§ 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.

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(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.

§ 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

§ 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:

64332 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

(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

§ 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 nonbargaining 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

§ 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 precomplaint 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).

§ 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

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules 64333

full not later than 60 days after receipt

of the final decision, unless otherwise

ordered in the decision.

§ 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.

§ 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.

§ 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.

64334 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

Statistics and Reporting Requirements

§ 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 precomplaint 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]

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