Last revised (Transmittal 04-026) January 17, 2024

ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS

AO MANUAL

Volume 4: Human Resources

Chapter 3: Workplace Conduct and Protections

§ 310 General

§ 310.10 Definitions

§ 320 Protections and Prohibitions

§ 330 Application of Laws

§ 340 Duties of the Fair Employment Practices Officer

§ 350 Fair Employment Practices Complaint Process

§ 350.10 General

§ 350.20 Initiating the FEP-CP – Informal Counseling

§ 350.30 Formal Complaint Process – Formal Complaint

§ 350.40 Formal Complaint Investigation

§ 350.50 Post-investigation Election

§ 350.60 Hearing and Recommendation

§ 350.70 Fair Employment Practices Decision (FEP-D)

§ 350.75 Alternative Dispute Resolution (ADR)

§ 350.80 Remedies

§ 355 Appeals and Non-Compliance Actions

§ 355.10 Pre-Act Complainant Appeal Rights

§ 355.20 Post-Act Complainant Appeal Rights

§ 355.30 Breach of a Settlement Agreement

§ 355.40 Non-Compliance with Final Agency Action

§ 360 Reasonable Accommodation

§ 360.10 General

§ 360.20 Key Roles and Responsibilities

§ 360.30 Submitting a Reasonable Accommodation Request

§ 360.40 Responding to a Reasonable Accommodation Request

§ 360.50 Initiating an FEP-CP Complaint After Denial

§ 360.60 Timeframes to Process Requests and Provide Accommodations

§ 360.70 Information Tracking and Reporting Requirements

§ 360.80 Confidentiality Requirements
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 2 

§ 310 General

(a) The AO Director established the Fair Employment Practices System 

(FEPS) to comply with the AO Personnel Act of 1990, Pub. L. No. 101-474 

(1990). Section 3(a)(9) of the Act requires the AO:

(1) to establish a personnel system prohibiting discrimination on the 

basis of “race, color, religion, age, sex, national origin, political 

affiliation, marital status, or handicapping condition”; and

(2) to “promulgate regulations providing procedures for resolving 

complaints of discrimination by employees and applicants for 

employment.” 

(b) This chapter codifies the AO’s fair employment and equal employment 

opportunity policies and provides for the prompt, fair, and impartial 

resolution of allegations of discrimination, harassment, or retaliation. 

§ 310.10 Definitions

Alternative dispute 

resolution (ADR)

A term used to describe a variety of approaches to resolving conflict that 

differ from traditional adjudicatory methods.

Applicant Any individual who applies for a position with the AO.

Benefits and 

privileges of 

employment

Include, but are not limited to, employer-sponsored:

(1) training,

(2) services (e.g., employee assistance programs, credit unions,

cafeterias, lounges, gymnasiums, auditoriums, transportation), and

(3) employer-sponsored or employer-sanctioned parties or other social 

functions (e.g., parties to celebrate retirements, office outings).

Complainant An AO employee or applicant who invokes the Fair Employment 

Practices Complaint Process (FEP-CP) described in § 350. (Note: 

Former employees are considered employees to the extent they assert 

claims relating to their position as an AO employee.)

Contractor An individual or entity that is authorized to provide support and services 

to or for the AO under a contract issued by the AO’s Finance and 

Procurement Office. (Note: Generally, the FEP-CP is not available to 

contractors. See: § 350.20.10.)

Deciding official Supervisor, manager, or executive who has the authority to determine 

whether an accommodation will be provided and, if so, what the 

appropriate accommodation will be.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 3 

§ 310.10 Definitions

Disability Those impairments that meet the ADA/Rehabilitation Act definition of 

“disability,” as amended by the ADA Amendments Act of 2008 (ADAAA). 

See: 42 U.S.C. § 12102. The expanded definition is to be interpreted 

broadly and does not require extensive analysis.

Employee Any full-time, part-time, or temporary employee of the AO. (Note: 

Former employees are considered employees to the extent they assert 

claims relating to their position as an AO employee.)

Equal Employment 

Opportunity (EEO)

Federal laws prohibiting job discrimination based on race, color, sex, 

national origin, religion, age, equal pay, disability, or genetic information.

Essential functions Job duties that are fundamental to the position, as opposed to marginal 

or occasional duties that the employee may perform.

Extenuating 

circumstances

Factors that could not reasonably have been anticipated or avoided 

before a request for a reasonable accommodation or limited situations in 

which unforeseen or unavoidable events prevent prompt processing and 

delivery of an accommodation.

Fair Employment 

Practices (FEP)

A term used to describe the AO’s fair employment and equal opportunity 

policies and practices.

Fair Employment 

Practices 

Complaint Process 

(FEP-CP)

The AO’s procedures for resolving complaints of discrimination by 

employees and applicants for employment.

Fair Employment 

Practices Decision 

(FEP-D)

A document issued by the FEP Officer that addresses the merits of each 

issue raised in the FEP-CP, or, as appropriate, the rationale for 

dismissing any claims in the complaint and, when discrimination, 

harassment, or retaliation is found, appropriate remedies and relief.

FEP Case 

manager

A person designated by the FEP Officer to oversee FEP-CP case 

processing.

FEP Counselor Any AO employee appointed by the FEP Officer (or designee) who, 

serving as a neutral, provides the complainant with his or her rights and 

obligations during each phase of the FEP-CP, gathers limited 

information and documents, and attempts resolution of a complaint 

between the parties.

FEP Officer Chief of the Office of Fair Employment Practices (OFEP), tasked with 

managing FEP complaints filed by employees and applicants under the 

AO’s FEP and equal employment opportunity (EEO) policies.

Final Agency 

Action

A decision within the FEP-CP that may be enforced if not appealed. 

Such decisions include FAO, FEP-D, appellate judicial officer (AJO) 

decision, or FAD.

Final Agency 

Decision (FAD)

A decision issued by the AO Director addressing an appeal of an FEP-D.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 4

§ 310.10 Definitions

Final Agency 

Order (FAO)

An order issued by the FEP Officer that partially or fully implements a 

decision by the Hearing Officer.

Healthcare 

provider

A person who has completed a course of study and is licensed to 

practice in a field of healthcare, which includes the diagnosis and 

assessment of the disability or disabilities in question.

Hearing officer A contractor appointed by OFEP to preside over FEP-CP evidentiary 

hearings and authorized to issue written findings of fact, conclusions of 

law, and recommendations to the FEP Officer for a Final Agency Action.

Individual with a 

disability

A person that:

(1) has a physical or mental impairment that substantially limits one or 

more of that person’s major life activities;

(2) has a record of such an impairment; or

(3) is regarded as having such an impairment.

See: “Disability” definition above.

Interactive process An information-gathering approach used by an employer with the 

employee to evaluate a request for a reasonable accommodation.

Interim 

accommodation

A temporary or short-term measure put in place until a long-term 

accommodation is granted and available.

Investigator Any AO employee or contractor appointed by the FEP Officer who, 

serving as a neutral, collects and discovers factual information 

concerning the claim(s) in the complaint under investigation.

Major life activities Activities that include, but are not limited to: caring for oneself, 

performing manual tasks, seeing, hearing, eating, sleeping, walking, 

standing, lifting, bending, speaking, breathing, learning, reading, 

concentrating, thinking, communicating, and working. Major life 

activities also include the operation of a major bodily function, including 

but not limited to: functions of the immune system, normal cell growth, 

digestive, bowel, bladder, neurological, brain, respiratory, circulatory, 

endocrine, and reproductive functions.

Mediation A type of ADR commonly used in FEP-CP where parties meet with a 

neutral person who assists the parties in reaching a resolution.

Mental impairment Any mental or psychological disorder such as intellectual disability, 

organic brain syndrome, emotional or mental illness (e.g., major 

depression, bipolar disorder, anxiety disorders), schizophrenia and 

specific learning disabilities.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 5 

§ 310.10 Definitions

Office of Fair 

Employment 

Practices (OFEP)

The AO office that:

(1) prevents, identifies, and remedies prohibited discrimination, unfair 

practices, and related wrongful conduct within the AO through its 

Fair Employment Practices Complaint Process and other functions; 

and

(2) promotes, encourages, and expands diversity, inclusiveness, equal 

employment opportunity, and fairness in the AO and the judiciary 

through the Diversity Recruiting and Outreach Program and other 

functions.

Physical 

impairment

Any physiological disorder or condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of the body systems, such as: 

neurological, musculoskeletal, special sense organs, cardiovascular, 

reproductive, digestive, immune systems, respiratory, genitourinary, 

hemic, circulatory, and lymphatic, skin, normal cell growth, and 

endocrine system.

Post-Act 

complainant

A complainant who began employment with the AO on or after Oct. 30, 

1990.

Pre-Act 

complainant

A complainant who was employed at the AO in a competitive service 

position before Oct. 30, 1990, without a break in service.

Prohibited conduct Conduct that violates the Fair Employment Practices principles provided

in this chapter. See: § 320

Qualified individual 

with a disability

An individual with a disability is qualified if the individual:

(1) satisfies the requisite skill, experience, education, and other jobrelated requirements of the position; and

(2) can perform the position's essential functions, with or without a 

reasonable accommodation.

Reasonable 

accommodation

Any modification or adjustment to the application or hiring process, the 

job, an employment practice, or the work environment that allows a 

qualified individual with a disability to perform the job's essential 

functions. Likewise, a reasonable accommodation based on religion is 

any adjustment to the work environment that will allow an employee to 

practice their religious beliefs. (Note: The Rehabilitation Act of 1973

and Title VII of the Civil Rights Act of 1964 apply to the AO to the extent 

that they provide key terms and definitions of prohibited conduct and the 

reasonable accommodation processes.)

Reasonable 

Accommodation 

Coordinator (RAC)

A representative from the Office of AO Human Resources who acts as 

an impartial advisor and serves as a subject matter expert for employees 

and supervisors to use in addressing requests for reasonable 

accommodation. See: § 360.20.10.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 6 

§ 310.10 Definitions

Record of 

impairment

A history of having, or being misclassified as having, a mental or 

physical impairment that substantially limits one or more major life 

activities.

Regarded as 

disabled

An actual or perceived physical or mental impairment, whether that 

impairment substantially limits, or is perceived to substantially limit, a 

major life activity.

Rehabilitation Act 

of 1973

The Rehabilitation Act of 1973, as amended, section 501, requires 

government agencies in the Executive Branch to provide reasonable 

accommodation for individuals with disabilities unless it would cause 

undue hardship.

Religious Belief Title VII of the Civil Rights Act of 1964 protects employees from 

discrimination based on their “religion.” The definition of religion under 

the Civil Rights Act includes:

• traditional religious groups, such as Christianity, Judaism, Islam, 

Hinduism, and Buddhism; 

• lesser-known religions, including those that may have no other 

followers besides the employee; and

• non-theistic and moral beliefs that concern ultimate ideas about 

life, purpose, and death.

(Note: Religious belief, as defined under the Civil Rights Act, does not 

include political, philosophical, social, economic, or medical beliefs and 

opinions.)

Request for 

reasonable 

accommodation

An oral or written statement that an applicant or employee needs an 

adjustment or change at work or in the application process for a reason 

related to his or her own medical condition.

Substantially limits The extent to which an impairment limits an individual’s ability to perform 

a major life activity as compared to most people in the general 

population, whether or not an individual chooses to forgo mitigating 

measures. An impairment need not prevent or significantly or severely 

restrict the individual from performing a major life activity to be 

considered substantially limiting.

Undue hardship With respect to reasonable accommodations, a hardship that may cause 

significant difficulty or expense. This determination, which the AO 

makes on a case-by-case basis, considers factors such as the nature 

and cost of the accommodation needed and the impact of the 

accommodation on the AO's operations.

§ 320 Protections and Prohibitions

The AO provides equal opportunity in employment for all persons and prohibits: 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 7 

(a) discrimination or harassment based on: 

(1) race; 

(2) color; 

(3) religion; 

(4) age (40 or older); 

(5) sex (including pregnancy, gender identity, and sexual orientation); 

(6) national origin; 

(7) political affiliation; 

(8) marital status; or

(9) disability; and

(b) retaliation due to: 

(1) participation in the Fair Employment Practices Complaint Process 

(FEP-CP) as a: 

(A) complainant,

(B) witness,

(C) representative, or

(D) counselor; 

(2) participation in an employer investigation of alleged sexual or 

discriminatory harassment; 

(3) raising concerns about or opposing conduct prohibited in this 

chapter; or

(4) requesting an accommodation of a disability or religious practice. 

§ 330 Application of Laws

This policy incorporates the protective measures established by these laws:

• Alternative Dispute Resolution Act of 1996 (ADRA) (5 U.S.C. chapter 5, 

subchapter IV);
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 8 

• Merit principles from 5 U.S.C. §§ 7201, 7202, and 7204;

• Pregnant Workers Fairness Act (codified at 42 U.S.C. chapter 21G) (requires 

reasonable accommodations to a worker’s known limitations related to 

pregnancy, childbirth, or related medical conditions, unless the 

accommodation will cause the employer an undue hardship. This law builds 

upon existing protections against pregnancy discrimination under Title VII of 

the Civil Rights Act and access to reasonable accommodations under the 

Americans with Disabilities Act));

• The Age Discrimination in Employment Act of 1967, Section 4 (codified at 

29 U.S.C. § 623 (Prohibition of age discrimination));

• The Equal Pay Act of 1963 (codified at 29 U.S.C. § 206(d) (Prohibition of sex 

discrimination));

• The Fair Labor Standards Act of 1938, Section 206(d) (codified at 29 U.S.C. 

§ 206 (Minimum wage)); 

• Title VII of the Civil Rights Act of 1964, Sections 703-704 (codified at 

42 U.S.C. §§ 2000e-2 (Unlawful employment practices) and 2000e-3 (Other 

unlawful employment practices); and

• The Rehabilitation Act of 1973, Section 501 (codified at 29 U.S.C. § 791 

(Employment of individuals with disabilities)). 

§ 340 Duties of the Fair Employment Practices Officer

The FEP Officer (or designee) must: 

(a) ensure the fair, impartial processing and resolution of FEP complaints;

(b) inform employees regarding their rights and responsibilities under FEP 

policy and procedures; 

(c) appoint FEP counselors, alternative dispute resolution (ADR) 

professionals, investigators, and hearing officers;

(d) provide annual counselor certification training to appointed FEP 

counselors; 

(e) facilitate and assist interested parties in the resolution of FEP complaints;

(f) determine the employee status of contractors;
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 9 

(g) issue a Fair Employment Practice Decision (FEP-D) on the merits of FEP 

complaints where an FEP-D is requested; 

(h) issue a Final Agency Order (FAO) in response to a hearing officer’s 

recommended decision; and

(i) require all relevant AO employees to cooperate in the informal counseling,

investigation, hearing, and resolution of FEP complaints. Note: Nonsupervisory employees are not required to participate in the informal 

counseling stage.

§ 350 Fair Employment Practices Complaint Process

§ 350.10 General

§ 350.10.10 Covered Employees and Applicants

(a) Except as provided below in paragraph (b), the FEP-CP is available to all: 

(1) current employees;

(2) former employees, to the extent they assert a claim related to their 

position as an AO employee; and

(3) applicants for employment. 

(b) Under the AO Personnel Act of 1990, the following employees are not 

eligible to raise claims under the FEP-CP: 

(1) the AO Director;

(2) the AO Deputy Director; and

(3) any AO Executive Service (AOES) employee, including the six 

senior executive positions paid under 28 U.S.C. § 603 (see: AO 

Manual, Vol. 4, § 1415 (Definitions)). 

§ 350.10.20 Excluded Claims

The FEP-CP process does not cover the following claims: 

(a) A claim already filed by the employee under the AO’s grievance 

procedures (AO Manual, Vol. 4, § 1340 (Employee Grievances)). A 

grievance addresses any work-related matters of concern that is subject to 

the control of AO management, such as: 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 10

• disciplinary actions and the application of the Uniformed Services 

Employment and Reemployment Rights Act;

• Employee Polygraph Protection Act of 1988; and

• Occupational Safety and Health Act of 1970.

(b) A claim already filed by the employee under the AO’s Adverse Action 

Appeals procedures (see: AO Manual, Vol. 4, § 1370 (Appeal Rights)). 

An adverse action appeal addresses any adverse action such as:

• a reduction in pay band based on performance or conduct;

• suspension greater than 14 days; and

• removals (excluding removal for national security reasons or a 

workforce reduction).

(c) A claim alleging reprisal or retaliation for anything other than retaliation as 

defined in § 320(b). 

§ 350.10.30 Right to Representation

(a) A complainant may hire a representative at his or her own cost to 

represent the complainant’s interest. An AO employee may represent the 

complainant only if the representation does not unduly interfere with the 

employee’s official duties and does not present an actual or apparent 

conflict of interest, as determined by the FEP Officer.

(b) The complainant must notify the FEP counselor or FEP case manager in 

writing if they retain or change a representative during the complaint 

process. The notice must indicate that they have obtained or changed a 

representative and provide the representative’s name, email, mailing 

address, and telephone number.

§ 350.10.35 Right to Anonymity

(a) During traditional counseling, the complainant has the right to anonymity. 

OFEP will refrain from divulging the complainant’s identity, except with the

complainant’s authorization.

(b) The right to anonymity ends upon the election of ADR, or upon the filing of 

a formal complaint.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 11

§ 350.10.40 Preparation Time

A complainant and the complainant’s representative, if an AO employee, may use a 

reasonable amount of official time during regular working hours, without charge to 

leave, to prepare the claim if it does not unduly interfere with the performance of the 

official duties. The complainant and representative, if applicable, are responsible for 

requesting official time with their supervisor or someone within their management chain 

who may consult with OFEP for guidance.

§ 350.10.50 Computation and Extensions of Time

(a) In this chapter, all time periods are in calendar days, including Saturdays, 

Sundays, and legal holidays.

(b) A time period begins on the day after the event that triggers the period and 

includes the last day of the period. If the last day falls on a Saturday, 

Sunday, or federal holiday, the period is extended to include the next 

business day.

(c) The FEP Officer may extend any time limits based on a showing of good 

cause.

§ 350.10.60 Records

(a) At the conclusion of informal and formal proceedings under the FEP-CP, 

copies of all papers, files, and reports produced by an FEP counselor, 

investigator, or hearing officer (including the hearing record), must be filed 

with the FEP case manager.

(b) No papers, files, or reports relating to a dispute may be filed in any 

employee’s official personnel folder unless necessary to implement the 

terms of a settlement agreement, FEP-D, or decision and order of a 

hearing officer or appellate judicial officer (AJO).

(c) After a voluntary resolution is reached as a result of mediation, all notes, 

papers, files, and reports from that mediation must be destroyed, except 

for the signed resolution document.

§ 350.10.70 Conflicts of Interest and Disqualification

(a) Generally, no person may serve as a counselor, investigator, mediator, or 

hearing officer to resolve an FEP-CP if such person:

(1) has a personal bias or prejudice concerning a party;

(2) has personal knowledge of the facts giving rise to the dispute;
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 12

(3) is in the chain of command of the complainant or any participant in 

the dispute; or

(4) serves within the same department as any party in the dispute.

(b) A party may seek the disqualification of a counselor, investigator, 

mediator, or hearing officer, by petitioning the FEP Officer in writing.

(c) Upon a showing of good cause for disqualification, the FEP Officer (or 

designee) must appoint a new counselor, investigator, mediator, or 

hearing officer to resolve the FEP-CP.

§ 350.20 Initiating the FEP-CP – Informal Counseling

(a) An individual wishing to pursue a claim under FEP-CP must first request 

informal counseling verbally or in writing.

(b) The counseling request must be made to an OFEP staff member:

(1) within 60 days after the date of the allegedly discriminatory matter; 

or

(2) for a personnel action, within 60 days after the action’s effective 

date.

(c) The FEP Officer will extend the 60-day time limit when the individual 

shows:

(1) that he or she did not know — and reasonably should not have 

known — that the discriminatory matter or personnel action 

occurred;

(2) that, despite due diligence, he or she was prevented from 

contacting an OFEP staff member within the time limits by 

circumstances beyond his or her control; or

(3) other reasons considered sufficient by the FEP Officer.

(d) Upon receipt of a timely request for counseling, the FEP Officer (or

designee) must:

(1) provide the complainant with a copy of the FEP-CP Informal 

Complaint Form;

(2) instruct the complainant to complete and submit the FEP-CP 

Informal Complaint Form to the appropriate OFEP staff member; 

and
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 13

(3) designate an FEP counselor within 15 days after the Informal 

Complaint Form is submitted.

(e) The FEP counselor must do the following:

(1) Upon assignment, schedule an initial interview with the 

complainant. During the initial interview, the FEP counselor must: 

(A) inform the complainant of his or her rights and 

responsibilities in the FEP-CP, including the option to elect 

traditional counseling or ADR; and

(B) gather information about the allegations raised in the 

informal complaint.

(2) Attempt informal resolution when ADR is not offered or accepted. 

(3) Prepare a Counselor’s Report, consistent with § 350.20.30(d). 

(f) Election of Traditional Counseling or ADR

Within seven days of the initial interview with the FEP counselor, the 

complainant must elect to either participate in traditional counseling or 

ADR.

§ 350.20.10 Contractors

(a) Contractors are not AO employees and, as such, are not covered by the 

FEP-CP, except in very limited circumstances as described in paragraph 

(b). Contractors may, however, meet with an FEP counselor to discuss 

rights and responsibilities in the FEP-CP.

(b) The FEP Officer (or designee) has the authority to determine if a 

contractor can be considered an “employee” of the AO for the purposes of 

the FEP-CP. This determination is based on a common law of agency 

test.

(c) When a contractor files an informal complaint, the FEP counselor must, 

within 30 days of the filing,

(1) conduct a limited inquiry to determine whether an employment 

relationship exists, and

(2) report the findings of the limited inquiry to the FEP Officer (or 

designee). 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 14

(d) If the FEP Officer (or designee) determines that an employment 

relationship does not exist between the AO and the contractor, the 

informal complaint will be dismissed for lack of jurisdiction.

(e) If the FEP Officer (or designee) determines that an employment 

relationship exists between the AO and the contractor, the contractor may

elect to participate in either traditional counseling or ADR. See: 

§ 350.20.20.

§ 350.20.20 Traditional Counseling or ADR

(a) Traditional Counseling

(1) If the complainant elects traditional counseling, the FEP counselor

will:

(A) conduct a limited inquiry to clarify the complainant’s claim(s) 

and assist the FEP Officer in evaluating legal claims

provided in § 350.30(c) at the conclusion of the counseling 

process; and

(B) assist the parties in exploring resolution at the lowest 

possible level.

(2) The traditional counseling period may last no more than 60 days 

from the date that the FEP Officer (or designee) receives a 

completed Informal Complaint Form unless the complainant agrees 

in writing to extend the counseling for an additional 30 days.

(b) Alternative Dispute Resolution (ADR)

(1) ADR (i.e., mediation) is a process in which a neutral third party 

assists two opposing parties to reach a voluntary, negotiated 

resolution of a claim of discrimination. See: § 350.75. 

(2) A complainant may elect ADR by submitting the ADR Election Form 

to the FEP counselor.

(3) If the complainant elects ADR and the AO does not agree to 

participate or fails to respond to the opportunity to participate in 

ADR within 10 business days, traditional counseling will begin for 

up to 60 days from the filing of the informal complaint, unless the 

complainant agrees in writing to extend the counseling for an 

additional 30 days.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 15

(4) If the parties agree to participate in ADR, the informal counseling 

period will be tolled for the duration of ADR, up to 90 days from the 

filing of the informal complaint.

§ 350.20.30 Conclusion of the Counseling Period

(a) If the parties reach an agreement during traditional counseling or ADR, the 

FEP case manager will incorporate the agreed upon terms into a 

settlement agreement. 

(1) The Office of AO Human Resources (AOHR) and the Office of the 

General Counsel (OGC) must review and approve the settlement 

agreement before the parties and the FEP Officer may sign it. 

(2) All terms of the settlement agreement must be consistent with 

§ 350.80 (Remedies). 

(3) If the AO fails to comply with the settlement agreement, the 

individual may file a claim for breach. See: § 355.30. 

(b) If the parties are unable to reach a resolution during traditional counseling 

or ADR, the FEP counselor will conduct a final interview with the 

complainant before the counseling period concludes to discuss the 

counseling efforts, attempts at resolution, and the right to file a formal 

complaint.

(c) Within five days after the conclusion of the counseling period, the FEP 

Officer (or designee) must issue a Notice of Completion of Counseling that 

informs the complainant of any right he or she may have under the FEPCP to pursue his or her FEP claims further.

(d) Within 15 days after the conclusion of the counseling period, the FEP

counselor must prepare and file a “Counselor’s Report.” The report must 

include:

(1) a precise description of the claim(s) and the basis(es) identified by 

the complainant;

(2) a summary of facts gathered during informal counseling;

(3) a listing of the complainant’s requested relief;

(4) any relevant documents gathered during the inquiry; and

(5) any attempts to informally resolve the complaint.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 16

(e) The Counselor’s Report will be included in the Report of Investigation 

(ROI). See: § 350.40(f).

§ 350.30 Formal Complaint Process – Complaint

(a) A complaint must be filed with the FEP case manager using OFEP’s 

Formal Complaint Form within 15 days after receipt of the Notice of 

Completion of Counseling.

(1) If a formal complaint is not submitted by the specified written 

deadline, the absence of a filing will be considered a withdrawal, 

and the FEP Officer (or designee) will close the case.

(2) There is no right to appeal the FEP Officer’s (or designee’s) closure 

of the case.

(b) Upon receipt of the complainant’s formal complaint and the Counselor's

Report, the FEP Officer (or designee) must evaluate the claims raised to 

determine whether to dismiss any of the claims due to one or more of the 

following:

(1) Failure to state a claim covered under the FEP-CP. 

(2) Failure to timely comply with the time limits for initiating counselor 

contact or filing a formal complaint. 

(3) Stating a claim that had already been decided.

(4) No relief can be granted because the effects of the alleged violation 

have been eradicated, and there is no reasonable expectation that 

the alleged violation will recur.

(5) Alleging dissatisfaction with the processing of a previously filed 

complaint.

(c) The FEP Officer (or designee) must issue a Notice of Acceptance, Partial

Acceptance, or Dismissal within 45 days after receipt of the complainant’s 

Formal Complaint. 

(1) When a Notice of Partial Acceptance is issued, there is no 

immediate right to appeal. The dismissal determination is 

reviewable by a hearing officer or the FEP Officer if a hearing or 

Fair Employment Practices Decision (FEP-D) is requested in the 

formal complaint process.

(2) When a case is dismissed, in full, the Notice of Dismissal is 

considered a Fair Employment Practices Decision (FEP-D). The 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 17

complainant has the right to appeal an FEP-D according to the 

procedures in § 355.10(a) and § 355.20(b). 

(d) Amendments

(1) If a new incident(s) of discrimination, harassment, or retaliation 

occurs after the counseling period concludes, the complainant may 

request to amend the original complaint to add claims that are like 

or related to the previously filed complaint. The amendment must 

be submitted in writing to the FEP case manager and identify the 

new incidents at issue. The FEP Officer (or designee) must review 

the request to amend and determine whether to:

(A) accept the new claims as part of the original complaint;

(B) dismiss the new claims in whole or in part under § 350.30(c); 

or

(C) direct the complainant to initiate a new complaint that may 

be consolidated with the original complaint if the new claims 

are similar or related to a previously filed complaint.

(2) Within 10 days of receipt of the amendment, the FEP Officer (or

designee) must acknowledge receipt of the complaint amendment 

in writing, and inform the complainant of the following:

(A) The date on which the complaint or amendment was filed.

(B) If the complaint is dismissed in whole or in part under 

§ 350.30(c), notification of the dismissal with an explanation 

of the one or more bases for dismissal.

(C) If the complaint is not dismissed in its entirety under

§ 350.30(c), notification that the AO will conduct an 

investigation within 180 days of Notice of Acceptance/Partial 

Acceptance of the original or amended complaint filing

unless the parties agree in writing to extend the time.

§ 350.40 Formal Complaint Process – Investigation

(a) Upon acceptance of the formal complaint, the FEP Officer or FEP case 

manager must appoint an investigator to conduct an independent 

investigation of the facts surrounding the complaint. The investigation 

must include: 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 18

(1) a thorough review of the Formal Complaint, Informal Complaint, the 

Counselor’s Report, and any additional circumstances under which 

the alleged prohibited conduct occurred;

(2) the treatment of members of the complainant’s protected class

compared to treatment of other similarly situated employees, if 

applicable; and

(3) any applicable policies or practices.

(b) The investigation is intended to develop an impartial and appropriate 

factual record upon which to make findings on the claims raised by the 

formal complaint. An appropriate factual record is one that allows a 

reasonable fact finder to draw conclusions as to whether prohibited 

conduct occurred.

(c) The investigation must be conducted by an impartial individual.

(d) In discharging his or her duties, the investigator may:

(1) request documentary evidence from the complainant or relevant 

AO managers and employees;

(2) administer oaths; and

(Note: Witness statements must be made under oath or affirmation 

or, alternatively, by written statement under penalty of perjury.)

(3) interview witnesses, including the complainant and relevant AO 

managers and employees.

(Note: AO employees are required to cooperate with the 

investigator when it comes to producing witnesses, documentation,

or other required information, giving testimony, or making

affidavits.)

(e) The investigator must complete the investigation within 180 days after the 

Notice of Acceptance/Partial Acceptance unless the parties agree to 

extend the time in writing.

(f) At the end of the investigation period, the investigator must submit the 

findings and all documentation, statements, affidavits, and declarations 

surrounding the investigation (collectively, the ROI) in writing to the FEP 

Officer (or designee), who must provide copies to the complainant and the 

OGC.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 19

(g) Within 15 days of receiving the ROI, the complainant may submit a written 

rebuttal to any testimony or evidence in the ROI to the FEP case 

manager, who must provide a copy to OGC.

§ 350.50 Formal Complaint Process – Post-investigation Election

(a) Within 30 days after receiving the ROI, the complainant must request one 

of the following options:

(1) Hearing before a hearing officer; or

(2) A Fair Employment Practice Decision (FEP-D).

(b) If the complainant fails to elect a hearing or FEP-D within 30 days of 

receiving the ROI, the complaint will be dismissed for failure to comply 

with the time limit for electing a hearing or an FEP-D. There is no right to 

appeal the FEP Officer’s (or designee’s) closure of the case.

(c) The FEP Officer may reinstate a complaint dismissed under this section

upon a written showing of good cause for missing the election deadline, as 

determined by the FEP Officer.

§ 350.60 Formal Complaint Process – Hearing and Recommendation

(a) The hearing is an adjudicatory proceeding that completes the process of

developing a full and appropriate record. A hearing provides the parties 

with a fair and reasonable opportunity to explain and supplement the 

record and, in appropriate instances, to examine and cross-examine 

witnesses.

(b) Hearing Officer’s Appointment

(1) Within 30 days after receipt of the complainant’s request for a 

hearing, the FEP Officer must select a hearing officer and prepare 

an Assignment of Hearing Officer Letter.

(2) The hearing officer must be:

(A) an attorney with specialized subject-matter expertise; and

(B) a neutral party.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 20

(c) Hearing Officer’s Responsibilities

Once selected, the hearing officer is responsible for the complaint’s 

adjudication until issuing a Report and Recommendation. The hearing 

officer’s responsibilities include the following:

(1) Issuing a recommended decision on the complaint, with or without 

a hearing;

(2) Regulating the conduct of hearings;

(3) Limiting the number of witnesses to exclude irrelevant or repetitive 

evidence;

(4) Ordering discovery or the production of documents;

(5) Determining who may be present during the hearing;

(6) Limiting the hearing to the issues in dispute; and

(7) Imposing sanctions on a party if he or she fails to comply without 

good cause with orders or requests. In appropriate circumstances,

sanctions may include:

(A) drawing an adverse inference that the requested information 

in discovery, or the testimony of the requested witness at 

hearing, would have reflected unfavorably on the party 

refusing to provide the requested information;

(B) consider the matters to which the requested information or 

testimony pertains to be established in favor of the opposing 

party;

(C) exclude other evidence offered by the party failing to 

produce the requested information or witness;

(D) issue a decision fully or partially in favor of the opposing 

party;

(E) dismiss the complaint for failure to cooperate or respond; or

(F) take such other actions as it deems appropriate.

(d) Dismissal or Summary Judgment

(1) Motion to Dismiss
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 21

(A) Motions to dismiss are appropriate when the complaint does 

not contain sufficient factual matter, accepted as true, to 

state a plausible claim of relief. (Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009)) 

(B) The AO may file a motion to dismiss on the basis that the

formal complaint: 

(i) is frivolous, or unduly repetitive of a previous 

complaint;

(ii) fails to state a claim upon which relief may be

granted; or

(iii) asserts claims that were not raised during informal 

counseling or amended to the formal complaint before 

the close of the investigation period.

(C) The complainant may file an opposition to the motion, and 

the AO may file a reply. 

(D) The hearing officer may, at his or her discretion, provide a 

notice requiring the parties to appear and present for oral 

argument or testimony on a motion to dismiss. 

(E) After considering the motion, opposition, and any reply, the 

hearing officer may: 

(i) deny the motion,

(ii) order that discovery be permitted, or

(iii) issue a decision without a hearing.

(2) Motion for Summary Judgment

(A) Summary judgment is proper when material facts are not in 

genuine dispute. Only a dispute over facts that are truly 

material to the outcome of the case should preclude 

summary judgment. (Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986)) “Only disputes over facts that might 

affect the outcome of the suit under the governing law, and 

not irrelevant or unnecessary factual disputes, will preclude 

the entry of summary judgment.”) 

(B) Summary Judgment can be initiated by either party or the 

hearing officer.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 22

(i) On the Motion of a Party

(a) A party files a motion for summary judgment.

(b) The opposing party may file an opposition to 

the motion, and the moving party may file a 

reply.

(c) The hearing officer may, at his or her 

discretion, provide a notice requiring the 

parties to appear and present for oral argument 

or testimony on a motion for summary 

judgment.

(d) After considering the motion, opposition, and 

any reply, the hearing officer may:

(1) deny the motion,

(2) order that discovery be permitted on the 

facts involved,

(3) limit the hearing to the issues remaining 

in dispute (if any), or

(4) issue a decision without a hearing.

(ii) On the Hearing Officer’s Initiation

If the hearing officer believes that some or all of the 

material facts are not in genuine dispute, the hearing 

officer may, after giving notice to the parties and 

providing them an opportunity to respond, issue an 

order limiting the scope of the hearing or issue a 

summary judgment decision without conducting a 

hearing.

(e) Hearing Procedures

If the hearing officer does not recommend dismissal before the hearing, he 

or she must hold a formal hearing on the complaint's merits. The hearing 

officer determines the manner of conducting the hearing. However, the 

following specific provisions apply to FEP-CP hearings:

(1) The hearing must be closed to anyone who does not have an 

interest in the proceeding. The hearing officer determines whether 

someone has such an interest on a case-by-case basis.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 23

(2) Both the complainant and the AO have the following rights at the 

hearing:

(A) to have representation;

(B) to present evidence; and

(C) to question or cross-examine any witness.

(3) The hearing must be limited to issues raised in the formal 

complaint.

(4) The hearing officer must conduct a fair and impartial hearing and 

take all necessary action to avoid undue delay in the disposition of 

all proceedings.

(5) A hearing transcript must be made and kept as the official record of 

the proceeding.

(f) Witnesses

(1) No later than 21 days before the hearing, the parties must submit a 

list of the witnesses they intend to call to testify at the hearing to the 

hearing officer and opposing party.

(2) No later than seven days after receipt of the opposing party’s

witness list, either party may submit a written objection to any of the 

witnesses to the hearing officer.

(3) No later than seven days before the hearing, after the parties have 

had an opportunity to object to any witnesses, the hearing officer 

must determine which witnesses may testify at the hearing.

(g) Hearing Officer’s Recommended Decision

(1) The hearing officer must issue a Recommended Decision that 

includes:

(A) all findings of fact and conclusions of law;

(B) a determination on the merits of each claim in the complaint; 

and

(C) where appropriate, a statement of the relief recommended, 

consistent with applicable AO policy.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 24

(2) The hearing officer must issue a written Recommended Decision 

not later than 90 days after receipt of the official transcript.

(3) If the hearing officer recommends summary dismissal or 

determination, the Recommended Decision must be issued within 

120 days after receipt of the Assignment of Hearing Officer Letter, 

unless an extension is agreed upon by the parties.

(4) The hearing officer must provide a copy of the Recommended 

Decision to:

(A) the complainant;

(B) the complainant’s representative (if any);

(C) OGC; and

(D) the FEP Officer.

§ 350.60.10 Final Agency Order (FAO)

(a) The FEP Officer may adopt, modify, or reject the Recommended Decision.

(b) The FEP Officer’s review of the Recommended Decision must include the 

following actions:

(1) Review of all legal determinations based on a “de novo” standard of 

review. (Note: The FEP Officer must determine whether the 

Recommended Decision properly applied legal principles.)

(2) Review of the findings of fact (including a finding of discriminatory 

intent), based on the administrative record as a whole, using a 

“clearly erroneous” standard. (Note: The FEP Officer must adopt 

findings of fact unless the FEP Officer is definitely and firmly 

convinced that a mistake has been made.)

(c) No later than 60 days after receipt of the hearing officer’s 

recommendation, the FEP Officer must issue a written Final Agency Order

(FAO) to the parties.

(d) If the FEP Officer issues an FAO that includes a finding of prohibited 

conduct in whole or in part, the FAO must specify the type of relief being 

awarded.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 25

§ 350.70 Formal Complaint Process –Fair Employment Practices Decision

(FEP-D)

(a) Once an investigation is complete and if the complainant has made a 

timely request for an FEP-D, the FEP Officer must issue an FEP-D within 

90 days after receipt of the complainant’s request.

(b) The FEP-D must:

(1) outline all findings of fact and conclusions of law;

(2) consist of findings by the AO on the merits of each claim in the 

complaint;

(3) where appropriate, a statement of the relief recommended, 

consistent with applicable AO policy; and

(4) contain notice of the right to appeal the decision.

(c) The FEP Officer must provide a copy of the FEP-D to: 

(1) the complainant;

(2) the complainant’s representative (if any); and

(3) OGC.

(d) If the complainant does not file an appeal consistent with § 355.10(a) or

§ 355.20(b) within 30 days after the date of the FEP-D, the FEP-D 

becomes the Final Agency Decision (FAD). 

§ 350.75 Alternative Dispute Resolution (ADR) 

(a) Mediation is the primary ADR technique available in the FEP-CP.

(b) A complainant may elect ADR at any stage of the FEP-CP by submitting 

the ADR Election Form to the FEP case manager or FEP counselor. If the 

FEP Officer agrees that ADR is proper and desirable, the FEP Officer may 

initiate the ADR process.

(c) Duration

(1) Informal Counseling Stage

(A) If a complainant requests ADR during the informal 

counseling period, and the AO does not agree to participate 

or fails to respond to the opportunity to participate in ADR 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 26

within 10 business days, traditional counseling will begin for 

a period not to exceed 60 days from the filing of the informal 

complaint unless the complainant agrees in writing to extend 

the counseling for an additional 30 days.

(B) If the parties agree to participate in ADR, the informal 

counseling period will be tolled for the duration of ADR, not 

to exceed 90 days from the filing of the informal complaint. 

(2) Formal Complaint Stage

If parties mutually agree to ADR after a formal complaint is filed, the 

time period for processing the complaint will be tolled for the 

duration of ADR, not to exceed 90 days. If the dispute is not 

resolved, the processing of the complaint will resume.

(d) Procedure

(1) The AO must ensure that a management official with settlement 

authority is available to participate in ADR.

(2) Within seven days after receipt of the AO’s agreement to participate 

in mediation, the FEP Officer (or designee) will:

(A) appoint a third-party neutral mediator, and

(B) issue a Mediation Confirmation Letter and Agreement to 

Mediate form. 

(i) The participating parties must sign the form.

(ii) The signed form must be provided to the FEP case 

manager no later seven days before the scheduled 

mediation.

(3) Either party may terminate the ADR process at any time. If 

termination occurs while the informal counseling period is tolled 

under § 350.20.20(b)(4), traditional counseling will resume after the 

final ADR session and last for no more than an additional 30 days. 

(4) If the parties reach a tentative agreement during ADR, the 

proposed terms of the resolution must be documented on the 

Mediation Memorandum of Understanding form. 

(A) This form will be used as the foundational document for 

formulating a written settlement agreement. Any terms 

agreed upon and listed on the form are not binding or 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 27

enforceable. The terms must be formally incorporated into a 

written settlement agreement, which must be reviewed by 

AOHR and OGC. The settlement agreement becomes 

binding and enforceable once executed by the parties and 

the FEP Officer.

(B) If the AO fails to comply with the settlement agreement, the 

individual may file a claim for breach. See: § 355.30. 

(5) After a resolution is reached as a result of ADR, all notes, papers, 

files, and reports from that mediation must be destroyed, except for 

the signed settlement agreement. 

§ 350.80 Remedies

(a) In general, where there is a finding that a substantive right protected by 

FEPS was violated, the hearing officer (or the FEP Officer when a timely 

request for an FEP-D is made instead of a hearing) may order a 

necessary and appropriate remedy.

(1) A remedy may correct a past violation or ensure future compliance 

with the rights protected by FEPS, or both.

(2) A remedy should be tailored as closely as possible to the specific 

violation involved.

(b) Specific remedies that may be provided to successful complainants under 

FEPS include, but are not limited to: 

(1) placement in the subject position;

(2) placement in a comparable alternative position;

(3) reinstatement to a position from which previously removed;

(4) prospective promotion to a position;

(5) priority consideration for future promotion or position;

(6) back pay and attorney’s fees, where the statutory criteria of the 

Back Pay Act (codified at 5 U.S.C. § 5596) are satisfied;

(7) records modification and/or expungement;

(8) injunctive relief;

(9) accommodation of disabilities;
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 28

(10) opportunity to participate in a denied benefit of employment (e.g., 

training, preferential work assignment, or compensatory time);

(11) granting of an award; or

(12) referral of supervisor(s) to the appropriate management officials for 

potential disciplinary action(s).

(c) Remedies that are not legally available include:

(1) payment of attorney’s fees (unless authorized by the Back-Pay

Act);

(2) compensatory damages (including pecuniary damages);

(3) punitive damages; or

(4) liquidated damages. 

§ 350.90 [Reserved]

§ 355 Appeals and Non-Compliance Actions

§ 355.10 Pre-Act Complainant Appeal Rights

(a) Appeal Rights to the Equal Employment Opportunity Commission

(1) A pre-Act complainant who was entitled to file an appeal with the 

Equal Employment Opportunity Commission’s Office of Federal 

Operations (EEOC-OFO) before the passage of the AO Personnel 

Act of 1990, may appeal to the EEOC-OFO: 

(A) the AO’s final agency order; 

(B) the AO’s fair employment practice decision; 

(C) the AO’s rejection or dismissal of the complaint or any

portion of it; or

(D) the AO’s alleged non-compliance with a settlement 

agreement, FAO, or FEP-D. 

(2) For guidance on filing an EEOC-OFO appeal, see: 29 CFR 1614. 

(3) A pre-Act complainant: 

(A) may only seek appellate review from the EEOC-OFO; and
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 29

(B) is not entitled to a hearing before an EEOC administrative 

judge.

(b) Civil Actions

(1) A pre-Act complainant who was entitled to file a civil action in an 

appropriate United States district court before the passage of the 

AO Personnel Act may file such an action:

(A) after exhausting the administrative remedies under the 

statutes cited in § 330; 

(B) if 180 days from the date of filing the formal complaint, the 

AO has not issued an FAO or FEP-D; 

(C) within 90 days after receipt of the EEOC-OFO’s final 

decision on appeal; or

(D) after 180 days from the date of filing an appeal with the 

EEOC-OFO if there has been no final EEOC-OFO decision.

(2) If a claim is based on alleged age discrimination, a pre-Act 

complainant may proceed to file a civil action in the appropriate 

United States district court within 180 days after the alleged 

discriminatory action, after providing EEOC-OFO with 30 days’ 

notice of an intent to file such action.

§ 355.20 Post-Act Complainant Appeal Rights

(a) Appeal of a Final Agency Order

(1) Appeal Rights

Where either party believes there was a mistake of fact or law, a 

complainant or the AO may appeal to an Appellate Judicial Officer

(AJO) any FAO consistent with the provisions below.

(2) Time

An appeal must be filed within 30 days from the date the FAO is 

issued. If an appellant does not timely file an appeal, the appeal 

must be dismissed as untimely.

(3) How to Appeal
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 30

The complainant or the AO must file an appeal with the FEP Officer

or FEP case manager, using OFEP’s Notice of Appeal Form, in

person, email, or mail.

(4) Supporting Statement or Brief

(A) Any statement or brief in support of the appeal must be 

submitted to the FEP Officer, with a copy to the opposing 

party, in person or by email or mail within 30 days after filing 

the notice of appeal.

(B) Any statement or brief in opposition to an appeal must be 

submitted to the FEP Officer, with a copy to the opposing 

party, in person or by email or mail within 30 days after

receipt of the statement or brief supporting the appeal.

(C) If no statement or brief supporting the appeal is filed, any 

statement or brief in opposition to an appeal must be 

submitted within 60 days after the filing date of the notice of 

appeal.

(5) The Record

The FEP Officer must submit the notice of appeal, any response to 

the notice of appeal, and the complaint file (complaint, Report of 

Investigation, hearing transcript, final agency order) to the Chair of 

the Judicial Resources Committee (JRC) within 30 days after

notification that a party has filed an appeal. The Chair of the JRC 

will identify an AJO who will decide the issues on appeal.

(6) Appellate Judicial Officer Review

(A) The AJO must be a judge appointed under Article III of the 

United States Constitution.

(B) The AJO must review the complaint file and all written 

statements and briefs from either party.

(C) No new evidence may be considered on appeal unless there 

is an affirmative showing that the evidence was not 

reasonably available before or during the investigation or 

hearing process.

(D) Standard of Review
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 31

(i) Only contentions of mistakes of fact or law may be 

considered on appeal.

(ii) The AJO must review findings of fact (including a 

finding of discriminatory intent) based on a “clearly 

erroneous” standard of review. The AJO must uphold 

findings of fact unless the AJO is definitely and firmly 

convinced that a mistake has been made.

(iii) The AJO must review legal determinations based on 

a “de novo” standard of review. The AJO must

determine whether the decision properly applied legal 

principles.

(E) Decision

(i) The AJO must issue a timely, written decision 

providing the reasons for the decision.

(a) If the decision contains a finding of 

discriminatory conduct, the AJO must include 

any appropriate remedy and, where 

appropriate, relief and attorney’s fees under 

the Back-Pay Act.

(b) The decision must be dated and transmitted 

immediately to all parties.

(ii) The decision issued by the AJO is final.

(b) Appeal of a Fair Employment Practices Decision (FEP-D)

(1) Appeal Rights

Where either party believes there was a mistake of fact or law, a 

complainant or the AO may appeal to the Director any FEP-D 

consistent with the provisions below.

(2) Time

(A) An appeal must be filed within 30 days from the date the 

FEP-D is issued. If an appellant does not timely file an 

appeal, the appeal must be dismissed as untimely.

(B) If the complainant does not file an appeal within 30 days 

after the date of the FEP-D, the FEP-D becomes a Final 

Agency Decision.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 32

(3) How to Appeal

The complainant or the AO must file an appeal with the Director, 

using OFEP’s Notice of Appeal Form, in person, email, or mail.

(4) Supporting Statement or Brief

(A) Any statement or brief in support of the appeal must be 

submitted to the Director, with a copy to the opposing party, 

in person or by email or mail within 30 days after filing the 

notice of appeal.

(B) Any statement or brief in opposition to an appeal must be 

submitted to the Director, with a copy to the opposing party, 

in person or by email or mail within 30 days after receipt of 

the statement or brief supporting the appeal.

(C) If no statement or brief supporting the appeal is filed, any 

statement or brief in opposition to an appeal must be 

submitted within 60 days after the filing date of the notice of 

appeal.

(5) Director’s Review and Decision

(A) The Director must review the complaint file and all written 

statements and briefs from either party.

(B) No new evidence may be considered on appeal unless there 

is an affirmative showing that the evidence was not 

reasonably available before or during the investigation or 

during the hearing process.

(C) Standard of Review

(i) Only contentions of mistakes of fact or law may be 

considered on appeal.

(ii) The Director must review findings of fact (including a 

finding of discriminatory intent) based on a “clearly 

erroneous” standard of review. The Director must

uphold findings of fact unless the Director is definitely 

and firmly convinced that a mistake has been made.

(iii) The Director must review legal determinations based 

on a “de novo” standard of review. The Director must

determine whether the decision properly applied legal 

principles.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 33

(D) Final Agency Decision

(i) The Director must issue a timely, written decision 

providing the reasons for the decision.

(a) If the decision contains a finding of 

discriminatory conduct, the Director must 

include any appropriate remedy and, where 

appropriate, relief and attorney’s fees under 

the Back-Pay Act.

(b) The decision must be dated and transmitted 

immediately to the complainant or his or her 

representative, OFEP, and OGC.

(ii) The decision issued by the Director is final.

§ 355.30 Breach of a Settlement Agreement

(a) A complainant may file a claim of breach alleging non-compliance with 

settlement terms reached during the FEP-CP.

(b) The complainant must notify OFEP in writing of the AO’s alleged noncompliance with the settlement agreement within 30 days after the date 

the complainant knew or should have become aware of the AO’s noncompliance. The notice must:

(1) include a copy of the fully executed settlement agreement;

(2) identify the specific terms alleged to have been breached; and

(3) include any documents providing evidence of the breach.

(c) The FEP Officer must determine whether the agreement was breached 

and notify the complainant in writing.

(d) If the FEP Officer determines that the agreement was breached, the 

complainant may request:

(1) enforcement of the settlement agreement; or

(2) reinstatement of the underlying complaint at the point at which the 

processing of the complaint was stopped.

(Note: Where a complaint is reinstated for further processing, both 

the AO and the complainant would be required to return any 

benefits received under the agreement.)
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 34

§ 355.40 Non-Compliance with Final Agency Action

(a) A complainant may file a Notice of Non-compliance with the FEP Officer 

and OGC for enforcement of an FAO, FEP-D, AJO Decision, or FAD.

(b) The complainant must notify OGC and the FEP Officer in writing of the 

AO’s alleged non-compliance within 30 days after when the complainant 

knew or should have become aware of the AO’s non-compliance. The 

notice must:

(1) identify the corrective action ordered by the hearing officer, OFEP, 

appellate judge, or Director that the AO has not complied with;

(2) include a copy of the FAO, FEP-D, AJO Decision, or FAD; and

(3) include any documents evincing the non-compliance.

(c) Within 30 days, OGC must file a written response to the Notice of Noncompliance serving both the complainant and OFEP.

(d) Upon receipt of the Notice of Non-Compliance and OGC’s response, if 

filed, the FEP Officer will notify the Director of the notice and request 

enforcement of the order.

§ 360 Reasonable Accommodation

§ 360.10 General

§ 360.10.10 Applicability

(a) Except as provided below in paragraph (b), the following individuals may 

engage in the reasonable accommodation program provided in this 

section:

(1) current employees; and

(2) applicants for employment with the AO.

(b) Contractors who report to the AO may not request an accommodation 

through the AO Reasonable Accommodation Process.

§ 360.10.20 Records

(a) All papers, files, and medical documents exchanged during the 

accommodation process will be maintained by the Reasonable 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 35

Accommodation Coordinator (RAC) in AOHR until the requester ceases to 

be employed by the AO.

(b) No papers, correspondence, files, or medical documents relating to 

request for accommodation will be filed in any employee’s official 

personnel folder (OPF).

(c) Notes, papers, files, and medical documents will be disclosed only to 

those individuals necessary to assess the reasonable accommodation or 

with the consent of the requester.

(d) When the requester ceases to serve as an employee of the AO, all notes, 

papers, files, and medical documents will be destroyed.

§ 360.10.30 Policy Exclusions

(a) The reasonable accommodation process does not excuse conduct that 

would result in disciplinary action.

(b) An individual who poses a direct threat to the health and safety of himself, 

herself, or others, with or without accommodation, such that the individual 

poses a significant risk of substantial harm, is not qualified for an 

accommodation. Determining whether an individual poses a direct threat 

requires an individualized assessment.

(c) A person who is “currently engaging” in the illegal use of drugs is not a 

“qualified individual with a disability.” However, “qualified individuals” 

under the ADA include those persons:

(1) who have been successfully rehabilitated and who are no longer 

engaged in the illegal use of drugs;

(2) who are currently participating in a rehabilitation program and are 

no longer engaging in the illegal use of drugs; and

(3) who are regarded, erroneously, as illegally using drugs.

§ 360.20 Key Roles and Responsibilities

§ 360.20.10 Reasonable Accommodation Coordinator (RAC)

The RAC administers the reasonable accommodation program AO-wide by doing the 

following activities.

(a) Facilitate the reasonable accommodation program by:
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 36

(1) reviewing requests from employees and applicants for 

completeness;

(2) assessing requests to determine whether the requester meets the 

definition of a qualified individual with a disability;

(3) examining requests to determine whether the requester identifies 

an AO requirement, policy, or practice that conflicts with the 

requester’s described religious belief, practice, or observance;

(4) providing advice and guidance to the requester, the requester’s 

supervisor and manager, the deciding official, and any other 

appropriate official on the criteria for evaluating requests for 

reasonable accommodation;

(5) initiating the interactive process with the requester, the requester’s 

supervisor and manager, the deciding official, and any other 

appropriate official;

(6) providing advice and guidance to the requester, the requester’s 

supervisor, and manager, the deciding official, and any other 

appropriate official, on issuing timely decisions granting or denying 

accommodation requests; and

(7) assisting the AO with implementing granted accommodations.

(b) Work with deciding officials, supervisors, and managers to ensure that any 

accommodation, if appropriate:

(1) meets the individual’s disability-related needs or religious needs

without eliminating essential functions of the position,

(2) is feasible, and

(3) does not pose an undue hardship to the AO.

(c) Work with applicants with disabilities and applicants who need a religious 

accommodation to either apply or be interviewed for a job.

(d) Develop an online and in-person reasonable accommodation training 

course for supervisors, managers, and all other bi-weekly employees.

(e) Maintain the confidential case file of all accommodation requests in 

compliance with AO policy; the Rehabilitation Act of 1973, as amended;

and Title VII of the Civil Rights Act of 1964.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 37

§ 360.20.20 Requester

The requester is the employee, applicant, or third party on the employee’s or applicant’s 

behalf who requests the reasonable accommodation. The requester takes the following 

actions:

(a) initiate the reasonable accommodation process;

(b) cooperate in the interactive dialogue throughout the reasonable 

accommodation process (understanding that failure to cooperate may 

result in denial of the reasonable accommodation request);

(c) provide promptly any requested medical information about the disability, 

functional limitation(s), and need for accommodation to the RAC; and

(d) provide promptly any requested information on the AO requirement, 

policy, or practice that conflicts with the requester’s sincerely held religious 

beliefs or on the nature of the requester’s sincerely held belief.

§ 360.20.30 Supervisor or Manager

The supervisor or manager consults with the RAC about specific requests to ensure that 

an accommodation enables the individual to perform the position’s essential functions or 

meets the requester’s religious needs and is a reasonable and effective 

accommodation. The supervisor or manager takes the following actions:

(a) forward all reasonable accommodation requests received to the RAC as 

soon as practical, but no later than three business days after receipt, and 

direct the individual to contact the RAC;

(b) clarify whether the individual seeking the assistance is requesting a 

reasonable accommodation when the initial communication is unclear; and

(c) participate in the interactive process to ensure that any accommodation, 

whether based on disability or religion, is a reasonable and effective 

accommodation that enables the individual to perform the position’s 

essential functions.

§ 360.20.40 Deciding Official

The deciding official has the authority to grant or deny the requested accommodation 

and takes the following actions:

(a) participate in the interactive process to ensure that any accommodation, 

whether based on disability or religion, is a reasonable and effective 

accommodation that enables the individual to perform the position’s 

essential functions; and
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 38

(b) render the final decision.

§ 360.20.50 Human Resources Specialist

The designated human resources specialist from AOHR consults with the RAC about 

specific requests to help determine the essential functions of the position. The human 

resources specialist may perform the following actions: 

(a) provide a current copy of the requester’s job description and the 

performance plan to the RAC;

(b) forward all reasonable accommodation requests received to the RAC as 

soon as practical, but no later than three business days after receipt, and 

direct the requester to contact the RAC; and

(c) clarify whether the individual seeking the assistance is requesting a 

reasonable accommodation when the initial communication is unclear.

§ 360.30 Submitting a Reasonable Accommodation Request

§ 360.30.10 Initiating the Request

(a) An AO employee wishing to request a reasonable accommodation may do 

so orally or in writing to his or her supervisor or manager, another 

supervisor or manager in the employee’s immediate chain of command, 

the appropriate deciding officer or associate director, or the RAC.

(b) An applicant wishing to request a reasonable accommodation may do so 

orally or in writing to a human resources specialist or any other AO 

employee directly involved in the application or hiring process.

(c) A third party (i.e., a family member, health professional, or other 

representative) may make a written or oral request for reasonable 

accommodation on behalf of an employee or applicant with the individual’s

consent. Unless an employee is incapacitated, the RAC will contact the 

employee or applicant and confirm the individual’s interest in an 

accommodation before processing the accommodation.

(d) In addition to the official channels provided above, a request for a 

reasonable accommodation may be sent directly to the RAC by email at

AO_Reasonable_Accommodations@ao.uscourts.gov. 

§ 360.30.20 Determining the Official to Respond to an Accommodation Request

(a) The official who receives a request for a reasonable accommodation must 

first determine the appropriate deciding official (i.e., person with authority 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 39

to grant or deny requested accommodation), using the following 

guidelines.

§ 360.30.20(a) Guidelines for Deciding Official

Request from: For: Decided by:

(1) Applicant Accommodations that do not

involve personnel actions, 

large expenditures, or other 

high-level determinations

Human resources specialist responsible 

for recruitment or selection, after 

consulting with: (A) the RAC and (B), in 

matters regarding accessible parking, the 

AO’s Facilities and Security Office

(2) Applicant or 

Employee

Accommodations that involve 

personnel actions, large 

expenditures, or other highlevel determinations

Appropriate associate director

(3) Employee (A) Accommodations that 

involve accessible parking or

workspace reconfiguration

Requester’s immediate supervisor, after 

consulting with the RAC and the AO’s 

Facilities and Security Office

(B) Accommodations other 

than those listed above

Requester’s immediate supervisor, after 

consulting with the RAC

(b) The receiving official must forward the request to the appropriate deciding 

official and the RAC as soon as practical, but no later than three business 

days after receipt.

(c) A deciding official must designate in writing an alternate(s) to receive and 

process requests for reasonable accommodation in their absence or 

unavailability and ensure that potential requesters are provided both the 

name and contact information for any alternate deciding official.

§ 360.40 Responding to a Reasonable Accommodation Request

(a) Within seven days after receipt of an oral or written request for a 

reasonable accommodation, the RAC must send the requester a 

Reasonable Accommodation Request form to complete and return to the 

RAC.

(1) If the requester is unable to complete the Reasonable 

Accommodation Request form due to physical or mental limitations, 

or religious beliefs, the RAC will complete the form and request that 

the employee, applicant, or third party review the form and confirm 

that it accurately captures the type(s) of accommodation requested 

and the reason the individual is requesting the accommodation.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 40

(2) An employee who requires a reasonable accommodation on a 

recurring basis (e.g., a sign language interpreter) is only required to 

submit the Reasonable Accommodation Request form for the initial 

request and to provide appropriate advance notice each time the 

accommodation is needed again. 

(b) When the need for an accommodation is obvious and the requested 

accommodation can be approved and implemented, the appropriate 

deciding official may do so without delay or further processing. (Note: A 

disability is obvious or already known when it is clearly visible or where the 

individual has a record of impairment at the AO.) When this occurs, the 

deciding official must document the following information in writing in the 

case file (see: § 360.70):

(1) date the request for accommodation was received; 

(2) specific accommodation requested; 

(3) specific accommodation approved; and

(4) date the accommodation was put in place.

(c) When the need for an accommodation is not obvious, the RAC will meet 

separately with the deciding official and the requester to explain the 

reasonable accommodation process, obtain additional information and, if 

necessary, offer alternative means of providing reasonable 

accommodation and discuss their effectiveness in removing the workplace 

barrier that is impeding the requester.

§ 360.40.10 Supporting Information

The RAC may ask for additional information from the requester to support the 

accommodation request.

(a) Disability-Related

(1) The requester is responsible for providing the RAC with the 

appropriate medical information where the disability or need for 

accommodation is not obvious or already known. Note: A 

disability is obvious or already known when it is clearly visible or 

where the individual has a record of impairment at the AO.

(2) If a disability or the need for an accommodation is not apparent or 

enough medical information has not been provided, the RAC may 

request medical information necessary to determine whether:
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 41

(A) the employee has a covered disability (i.e., a physical or 

mental impairment that substantially limits a major life 

activity); and

(B) if the employee has a disability, what reasonable 

accommodation(s) are necessary.

(3) The RAC may only seek medical documentation sufficient to 

explain the nature of the disability, the requester’s need for a 

reasonable accommodation, and how the requested 

accommodation will assist the requester with applying for a job, 

performing the essential functions of a job, or enjoying the benefits 

and privileges of the workplace.

(4) The RAC will provide the requester with a Medical Inquiry form, if

the RAC requests medical information.

(b) Religion-Related

(1) The requester is responsible for providing the RAC with a narrative 

statement that:

(A) identifies the AO requirement, policy, or practice that 

conflicts with the requester’s sincerely held religious 

observance, practice, or belief;

(B) describes the nature of the sincerely held religious beliefs or 

religious practice or observance that conflicts with the AO 

requirement, policy, or practice; and

(C) provides the accommodation or modification requested and 

any alternative accommodations that also would eliminate 

the conflict between the AO requirement, policy, or practice 

and the requester’s sincerely held religious belief.

(2) The RAC may only seek religion-related information sufficient to 

explain the nature of the sincerely held religious belief, the 

requester’s need for a reasonable accommodation, and how the 

requested accommodation will enable the requester to practice 

their religious belief(s).

§ 360.40.20 Granting a Reasonable Accommodation Request

(a) The deciding official must provide an effective reasonable accommodation 

to qualified individuals with a disability unless providing an 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 42

accommodation would impose an undue hardship on the daily operations 

of the requester’s office

(b) The deciding official must provide a religious accommodation that would 

eliminate the conflict between the AO requirement, policy, or practice and

the individuals sincerely held religious belief(s), unless providing an 

accommodation would impose an undue hardship on the daily operations 

of requester’s office.

(1) The deciding official may, as part of the interactive process and at 

the RAC’s advisement, offer alternative suggestions for reasonable 

accommodation.

(2) If more than one accommodation is effective and the 

accommodations are equally cost-effective, the requester’s 

preferred accommodation should be given primary consideration.

However, the deciding official has the discretion to choose among 

multiple effective accommodations.

(c) The deciding official will notify the RAC of the decision to grant the 

accommodation, and the RAC will prepare and provide written notification 

of the decision to the requester.

(d) The requester is not required to accept any accommodation, aid, service, 

opportunity, benefit offered, or alternative religious accommodation.

However, if the requester rejects a reasonable accommodation, aid, 

service, opportunity, or benefit that is necessary to enable the requester to 

perform the essential functions of the position held or desired, the 

individual will not be considered qualified.

§ 360.40.30 Denying a Reasonable Accommodation Request

(a) The deciding official will notify the RAC of the decision to deny the 

accommodation, and the RAC will prepare and provide written notification 

of the decision to the requester.

(1) The notice will provide the requester with detailed information on

the specific reasons for the denial.

(2) If the deciding official has denied a specific requested 

accommodation, but offered an alternative accommodation that the 

requester rejected, the denial notice must explain both the reasons 

for the denial of the requested accommodation and why the 

deciding official believes alternative accommodation would be 

effective.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 43

(b) The denial notice must also inform the individual that he or she has the 

right to initiate an FEP-CP complaint based on the denial of the

reasonable accommodation.

§ 360.50 Initiating an FEP-CP Complaint After Denial

If an individual is dissatisfied with the resolution reached by the deciding official, the 

individual may initiate an FEP-CP complaint based on the denial of the reasonable 

accommodation. See: § 350. 

§ 360.60 Timeframes to Process Requests and Provide Accommodations

(a) The reasonable accommodation process begins as soon as a change is 

requested or workplace barrier is identified, whether orally or in writing.

(b) The time necessary to process a request will depend on the nature of the

accommodation requested and whether there is a need to obtain 

supporting information.

(1) The standard processing time for a request for a reasonable 

accommodation that neither requires the submission of medical 

information nor has any extenuating circumstances is typically no 

more than 30 business days from the date the requester requests 

an accommodation. If a determination results in finding that a 

reasonable accommodation will be provided, the accommodation 

should be provided promptly and without undue delay, barring 

extenuating circumstances.

(2) If a request for reasonable accommodation requires expedited 

review and a decision in less than 30 business days, the requester 

must include in the request the circumstances requiring expedited 

processing and the date the requested accommodation must be 

decided or in place.

(3) If the RAC finds that medical documentation is necessary to 

determine whether the requester has a covered disability, the

typical 30-day processing time will be tolled (i.e., the calculation of

time in the processing period immediately stops) until appropriate 

medical documentation is provided.

(4) Extenuating circumstances due to events that could not have 

reasonably been anticipated or avoided may also require tolling 

(i.e., pausing, delaying) the time frames. (Note: Absence from the 

office is not an extenuating circumstance.) In those situations, the 

RAC must notify the requester of any extenuating circumstance or 
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 44

delay and provide an approximate date when a decision should be 

expected.

(5) If there is a delay in providing an approved accommodation, the 

deciding official, after consulting with the RAC, should determine if 

temporary measures may assist the requester.

§ 360.70 Information Tracking and Reporting Requirements

(a) The RAC must maintain a confidential case file of all accommodation 

requests in compliance with AO policy and either the Rehabilitation Act of 

1973, as amended, or Title VII. These case files are necessary to 

evaluate the efficacy and consistency of the reasonable accommodation 

process.

(b) Records must be maintained for three years after:

(1) the employee separates from the AO;

(2) the applicant applies for employment; or

(3) an FEP-CP complaint results in a final adjudication, whichever is 

later.

(c) The confidential case file must include at least the following items:

(1) Relevant emails or communication between applicants, employees,

and AO officials.

(2) Number of reasonable accommodations, by type, that have been 

requested for the application process and whether those requests 

have been granted or denied.

(3) Jobs (position, pay band level, and department) for which 

reasonable accommodations have been requested.

(4) Types of reasonable accommodations that have been requested for 

each of those jobs.

(5) Number of reasonable accommodations, by type, for each job that 

have been approved, and the number of accommodations, by type, 

that have been denied.

(6) Number of requests for reasonable accommodations, by type, that 

relate to the benefits or privileges of employment, and whether 

those requests have been granted or denied.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 45

(7) Reasons for denial of requests for reasonable accommodation.

(8) Amount of time taken to process each request for reasonable 

accommodation.

(9) Sources of technical assistance that have been consulted in trying 

to identify possible reasonable accommodations.

§ 360.80 Confidentiality Requirements

(a) Confidentiality applies to all aspects of the reasonable accommodation 

process.

(1) The existence of an accommodation request, details of the request, 

how the request was resolved, and any information about the 

requester’s functional limitations or religious beliefs must remain 

confidential.

(2) AO employees who obtain or receive such information are strictly 

bound by these confidentiality requirements.

(b) The RAC is responsible for maintaining all medical and religion-based 

information obtained by the AO in connection with a request for a 

reasonable accommodation. All medical and religion-based information 

obtained in connection with a request for reasonable accommodation must 

be kept confidential and in files separate from the individual’s personnel 

file.

(c) Information regarding these records, or any aspect of the process, may be 

disclosed only to the following entities:

(1) Supervisors and managers, who need to know, may be told about 

the determination of eligibility of an individual with a disability, the 

necessary restrictions on the work or duties of the employee, and 

about any recommended accommodations. Still, medical 

information should be disclosed only if strictly necessary.

(2) Office of the General Counsel, who may provide guidance to 

supervisors and managers on requests for reasonable 

accommodation, may be told about the determination of eligibility of

an individual with a disability, the necessary restrictions on the work 

or duties of the employee and about any recommended 

accommodations, but medical information should be disclosed only 

if strictly necessary.
AO Manual, Vol. 4 (Human Resources), Ch. 3 (Workplace Conduct and Protections) Page 46

(3) First aid and safety personnel may be given specific medical 

information when appropriate if the individual with a disability might 

require emergency treatment.

(4) Worker’s compensation offices or insurance carriers, in certain 

circumstances, may be told about the determination of eligibility of

an individual with a disability, the necessary restrictions on the work 

or duties of the employee, and any recommended 

accommodations. Still, medical information should be disclosed 

only if strictly necessary.

(5) A hearing officer or the FEP Officer if an employee initiates an FEPCP complaint alleging a denial of his or her request for a 

reasonable accommodation.

(d) When disclosing information, the individual disclosing it must inform the 

recipient of the confidentiality requirements.