[Federal Register Volume 66, Number 78 (Monday, April 23, 2001)]
[Rules and Regulations]
[Pages 20564-20577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9889]
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Part III
Department of Housing and Urban Development
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24 CFR Part 7
Equal Employment Opportunity; Updating of EEO Policies and Procedures;
Final Rule
Federal Register / Vol. 66, No. 78 / Monday, April 23, 2001 / Rules
and Regulations
[[Page 20564]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 7
[Docket No. FR-4607-F-02]
RIN 2501-AC73
Equal Employment Opportunity; Updating of EEO Policies and
Procedures
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final 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). The final rule
follows publication of an October 26, 2000 proposed rule, and takes
into consideration the public comment received on the proposed rule.
DATES: Effective Date: May 23, 2001.
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--The October 26, 2000 Proposed Rule
On October 26, 2000 (65 FR 64320), HUD published a proposed rule
for public comment proposing to update its regulations in 24 CFR part 7
pertaining to the Department's equal employment opportunity policies,
procedures and programs. The amendments contained in the October 26,
2000 proposed rule would conform 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, the October 26, 2000
proposed rule would provide 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
contained in the October 26, 2000 proposed rule was the establishment
of an Alternative Dispute Resolution (ADR) program designed to promote
impartial, fair and early resolution of EEO complaints.
II. This Final Rule
This final rule makes effective the policies and procedures of the
October 26, 2000 proposed rule, and takes into consideration the public
comment received on the proposed rule. The amendments made by this
final rule provide for regulations that supersede the last revision of
24 CFR part 7, issued on April 29, 1996. The final rule adopts the
substance of the October 26, 2000 proposed rule without change, but
makes a few non-substantive changes to the ADR provisions at Sec. 7.5
for purposes of clarity.
III. Discussion of the Public Comment Received on the October 26,
2000 Proposed Rule
The public comment period for the proposed rule closed on November
27, 2000. By close of business on that date, HUD had received a single
public comment from a private individual. The commenter recommended
that the final rule expand the provision of equal employment
opportunity and protection from discrimination to include sexual
orientation. The commenter wrote that this change is necessary for HUD
to achieve an environment where any employee may hope to advance based
on merit and without fear of discrimination or harassment. After
careful consideration, HUD has decided not to adopt the suggestion made
by the public commenter.
This HUD rule is designed to implement EEOC's revised regulations
at 29 CFR 1614 governing federal sector employment. The EEOC derives
its authority and jurisdiction over federal sector employment
discrimination from EEO statutes that prohibit discrimination based on
race, color, national origin, religion, disability, age and sex. Sexual
orientation is not currently covered by any federal statutory
provision.
However, HUD is committed to providing a workplace that is free
from all forms of discrimination, including discrimination based on
sexual orientation. In keeping with this commitment, the Department, on
January 18, 2000, promulgated and disseminated its most recent EEO
Policy Statement which states, in part, that discrimination based on
sexual orientation is not acceptable and will not be tolerated by
anyone at HUD. This statement is consistent with Executive Order 13087.
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 final 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 final
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
final rule provides 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 revised to read 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.
[[Page 20565]]
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
1964-1965.
Subpart A--Equal Employment Opportunity Without Regard to Race,
Color Religion, Sex, National Origin, Age, Disability or Reprisal
General Provisions
Sec. 7.1 Policy.
The Department's equal employment opportunity policy conforms with
the policies expressed in title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000d-2000d-4); the Civil Rights Act of 1991; Executive Order
11478 of 1969 (34 FR 12985, 3 CFR 1966-1970 Comp., p. 803); the Age
Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. et seq.);
the Equal Pay Act of 1963 (29 U.S.C. 206d); sections 501 and 504 of the
Rehabilitation Act of 1973, and reaffirming Executive Order 12871 (29
U.S.C. 791, 794); the Civil Service Reform Act of 1978 (5 U.S.C. 1101
et seq.); Executive Order 13087 of 1998 (63 FR 30097); and with the
EEOC's implementing regulations, codified under 29 CFR part 1614. It is
HUD's policy to provide equality of opportunity in employment in the
Department for all persons; to prohibit discrimination on the basis of
race, color, religion, sex, national origin, age, disability or
reprisal in all aspects of its personnel policies, programs, practices,
and operations and in all its working conditions and relationships with
current or former employees and applicants for employment; and to
promote the full realization of equal opportunity in employment through
continuing programs of affirmative employment at every level within the
Department. Procedures for filing EEO claims are found in the EEOC
regulations at 29 CFR part 1614. HUD is committed to promoting
affirmative employment through the removal of barriers and by positive
actions at every level, including the early resolution of EEO disputes.
Sec. 7.2 Definitions.
AE means affirmative employment.
Aggrieved individual means a person who suffers a present harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. The terms ``aggrieved individual'' and
``aggrieved person'', as used in this part, are interchangeable.
Alternative Dispute Resolution (ADR) means a variety of approaches
used to resolve conflict rather than traditional adjudicatory or
adversarial methods such as litigation, hearings, and administrative
processing and appeals. The approaches used may include, but are not
limited to: negotiation, conciliation, facilitation, mediation, fact-
finding, peer review, mini-trial, arbitration, or ombudsman.
Claim means action the agency has taken or is taking that causes
the aggrieved person to believe that he or she is a victim of
discrimination. This term replaces the formerly used term
``allegation'' and is used interchangeably with the term ``issue''.
Comparable means a person designated as head of an organizational
unit that is analogous to that headed by an Assistant Secretary.
Conflict-of-interest complaint means an EEO complaint arising in
the Department which names the Director of EEO or the Deputy Director
of EEO, or both, as the responsible management officials.
Director of Equal Employment Opportunity (EEO) means the Director
of HUD's Office of Departmental Equal Employment Opportunity who is
also designated as the Director of EEO in this part.
Disability means the same as the term ``handicap'' under EEOC's
regulations at 29 part 1614.
Discrimination Complaint Manager (DCM) means the designee,
appointed by the Assistant Secretary (EEO Officer) or the Assistant
Secretary's comparable, who assists the EEO Officer in discharging his
or her EEO responsibilities and is responsible for carrying out the EEO
discrimination complaint process for the organizational unit pursuant
to the applicable civil rights laws, the regulations at 29 CFR part
1614 and this part.
Diversity Program Manager means the designee appointed by the
Assistant Secretary (EEO Officer) or the Assistant Secretary's
comparable who assists the EEO Officer in promoting appreciation of the
contributions of women, minorities, and persons with disabilities, and
in promoting the value of all Department employees.
EEO means equal employment opportunity.
EEO Officer Pro Tem means the Chief of Staff or an official at a
neutral federal agency designated to process an EEO claim that would be
a conflict of interest for the Director of EEO or the Deputy Director
of EEO, or both.
EEOC and Commission mean the Equal Employment Opportunity
Commission.
Final action means the Department's issuance of a final decision or
final order.
Final decision means HUD's determination of the findings of fact
and law on the merits or the procedural issues of an EEO complaint
based upon the available record.
Final order means the Department's final action which states
whether the Department will fully implement the decision or order of an
EEOC Administrative Judge, or both.
Neutral means an individual who mediates or otherwise functions to
specifically aid the parties in resolving the issues, and has no
official, financial, or personal conflict of interest with respect to
the issues being disputed, unless such interest is fully disclosed in
writing to all parties and all parties agree that the neutral may
serve.
Organizational unit means the jurisdictional area of the
Department's program offices such as the Office of the
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Secretary, the Office of General Counsel, etc.
Record means all documents related to the EEO complaint as outlined
in EEOC Management Directive 110.
Reprisal means the action taken against a current or former
employee or applicant in retaliation for previous EEO participation in
protected EEO activity or for opposing employment practice or policy
illegal under EEO statutes. The terms ``reprisal'' and ``retaliation''
are used interchangeably.
Sec. 7.3 Designations.
(a) Director of Equal Employment Opportunity. The Director of the
Office of Departmental Equal Employment Opportunity (ODEEO) is
designated as the Director of EEO, except for complaints naming the
Director or Deputy Director of Departmental EEO, or both, as the
responsible management official(s) in complaints arising in the ODEEO
which present a conflict-of-interest. In such cases, the Director of
EEO may:
(1) Transfer the case to the Chief of Staff for processing; or
(2) On behalf of the Department, enter into an agreement with one
or more federal agencies for processing of the Department's conflict-
of-interest cases by the designated federal official chosen to serve as
the EEO Officer Pro Tem.
(b) Deputy Director of Equal Employment Opportunity. The Deputy
Director of the ODEEO is designated as the Deputy Director of EEO and
acts in the absence of the Director of EEO.
(c) Equal Employment Opportunity Officer. The Director of EEO shall
designate the Assistant Secretary or the Assistant Secretary's
comparable as EEO Officer for the Department's respective
organizational units for complaints arising in the respective Assistant
Secretary's or Assistant Secretary's comparable organizational unit.
(d) Equal Employment Opportunity Discrimination Complaint Manager
(DCM). Each Assistant Secretary (EEO Officer) shall designate a DCM to
represent the organizational unit in EEO matters and assist the EEO
Officer in carrying out EEO responsibilities. The DCM shall be the
Administrative Officer (AO) for the organizational unit or another
designee of the EEO Officer.
Sec. 7.4 Affirmative employment programs.
The Office of the Secretary, each Assistant Secretary, the General
Counsel, the Inspector General, the President of the Government
National Mortgage Association, the Chief Financial Officer, the Chief
Procurement Officer, the Chief Information Officer, the Director of
Lead Hazard Control, the Director of the Office of Multifamily Housing
Assistance Restructuring, the Director of the Departmental Enforcement
Center, the Director of the Real Estate Assessment Center, and the
Director of the Office of Federal Housing Enterprise Oversight and
other positions that may be established and are comparable to an
Assistant Secretary, shall establish, maintain and carry out a plan of
affirmative employment (AE) to promote equal opportunity in every
aspect of employment policy and practice. Each plan shall identify
instances of under-representation of minorities, women and persons with
disabilities, recognize situations or barriers that impede equality of
opportunity, and include objectives and action items targeted to
eliminate any employment, training, advancement, and retention issues
which adversely affect minorities, women and persons with disabilities.
Each plan must be consistent with 29 CFR part 1614, is subject to
approval by the Director of EEO and shall be developed within the
framework of Department-wide guidelines published by the Director of
EEO.
Sec. 7.5 EEO Alternative Dispute Resolution Program.
In accordance with the Secretary's Policy Statement regarding
Alternative Dispute Resolution (ADR) located on the Department's
website and 29 CFR 1614.102(b)(2), the Department shall establish and
maintain an ADR program that addresses, at a minimum, EEO matters at
the pre-complaint and formal complaint stages of the EEO process. ADR
is a non-adversarial process that does not render a judgment with
respect to the dispute. With the assistance of an impartial and neutral
third party, ADR offers parties involved the opportunity to reach early
and informal resolution of EEO matters in a mutually satisfactory
fashion.
(a) Program availability. In appropriate cases, the EEO ADR Program
is made available to an aggrieved person or Complainant during the pre-
complaint and the formal complaint processing periods. Participation in
the program by the parties is knowing and voluntary. Agency managers
have a duty to cooperate in an ADR proceeding once the agency has
determined that a matter is appropriate for ADR and the aggrieved
person/complainant has elected to participate in ADR. At the formal
stage, the complainant may request participation in the ADR Program.
However, a determination of the appropriateness of ADR at the time of
the request will be made 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
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the aggrieved person has not been resolved.
(2) Prior to the end of the 30-day period from the date of initial
contact with the EEO Office, the aggrieved person may agree, in
writing, with the Department to postpone the final interview and extend
the pre-complaint period for an additional period of no more than 60
days if the matter is not resolved. If the matter has not been resolved
before the conclusion of the agreed extension, the notice of right to
file a discrimination complaint shall be issued no later than the 90th
day of initial contact with the EEO Office. The notice shall inform the
aggrieved person of the right to file a discrimination complaint within
15 days of receipt of the notice, of the appropriate official with whom
to file a complaint and of the aggrieved person's duty to assure that
the Department is informed immediately if the aggrieved person retains
counsel or a representative and if the aggrieved person changes
address.
(g) EEO ADR Program's relationship to negotiated grievance, MSPB
appeal and administrative grievance procedures. Participation in the
EEO ADR program does not preclude the aggrieved person or Complainant
from exercising rights under any of the Department's other complaint or
appeal procedures, when no resolution is reached. When participation in
ADR results in a settlement agreement and the aggrieved person or
Complainant believes the Department has failed to comply with its
terms, the aggrieved person or Complainant may exercise the right of
appeal pursuant to 29 CFR 1614.504.
Responsibilities
Sec. 7.10 Responsibilities of the Director of EEO.
The Director and Deputy Director of EEO are responsible for:
(a) Advising the Secretary with respect to the preparation of
plans, procedures, regulations, reports, and other matters pertaining
to the Government's equal employment opportunity policy and the
Department's EEO/ADR/AE programs;
(b) Developing and maintaining plans, procedures, and regulations
necessary to carry out the Department's EEO programs, including a
Department-wide program of affirmative employment developed in
coordination with other officials; and approving programs of
affirmative employment established by each EEO Officer or comparable
organizational head;
(c) Evaluating, at least annually, the sufficiency of each
organizational unit's EEO/ADR/AE program and providing reports thereon
to the Secretary with recommendations as to any improvement or
correction needed, including remedial or disciplinary action with
respect to managerial or supervisory employees who have failed in their
responsibility;
(d) Appraising the Department's personnel operations at regular
intervals to ensure their conformity with the policies of the
Government's and the Department's EEO program;
(e) Making changes in programs and procedures designed to eliminate
discriminatory practices and improve the Department's EEO/ADR/AE
programs;
(f) Selecting EEO Counselors;
(g) Providing for counseling by an EEO Counselor to a current or
former employee or applicant for employment who believes that he or she
has been discriminated against because of race, color, religion, sex,
national origin, age, disability, or in retaliation for participation
in protected EEO activity; or for opposing a policy or practice illegal
under EEO statutes;
(h) Providing for the prompt, fair and impartial processing of
individual complaints involving claims of discrimination within the
Department subject to 29 CFR part 1614;
(i) Making the final decision on discrimination complaints and
ordering such corrective measures as may be necessary, including
disciplinary action warranted in circumstances where an employee has
been found to have engaged in a discriminatory practice.
(j) Executing settlement agreements to resolve EEO complaints;
(k) Making available an ADR Program for EEO matters at both the
pre-complaint and formal EEO complaint stages of the EEO administrative
process;
(l) Developing and providing annual mandatory EEO and ADR training
for EEO Counselors, and all supervisors and managers in conjunction
with HUD Training Academy, Office of Human Resources, and the Office of
General Counsel, other federal agencies and resources with ADR
information and expertise; and
(m) Publicizing to all employees and posting at all times the
names, business telephone numbers and addresses of the EEO Counselors,
EEO Director, EEO Officers, and Diversity Program Managers, notice of
EEO complaint processing time limits and the requirements of contacting
an EEO Counselor and completing the counseling phase before filing a
complaint.
Sec. 7.11 Responsibilities of the EEO Officers.
Each EEO Officer is responsible for:
(a) Advising the Director of EEO on all matters affecting the
implementation of the Department's EEO/ADR/AE policies and programs in
the organizational unit;
(b) Developing and maintaining a program of affirmative employment
for the organizational unit and ensuring that the program is carried
out in an exemplary manner;
(c) Publicizing to all employees of the organizational unit the
name and address of the Director of EEO, the EEO Officer(s), and the
EEO Counselor(s), the EEO Discrimination Complaint Manager(s), the
Affirmative Employment Program (AEP) Manager, the Diversity Program
Manager, ADR Officials, and the EEO complaint procedures;
(d) Informing all managers and supervisors in the organizational
unit of the responsibilities and objectives of the EEO Counselors,
DCMs, ADR officials, EEO investigators, and of the EEO complaint
process and the importance of cooperating and coordinating with all
appropriate Department personnel to informally find solutions to
problems brought to the EEO Officer's attention by current or former
employees and applicants;
(e) Evaluating and documenting the performance by the managers and
supervisors in the organizational unit in carrying out their
responsibilities under this subpart;
(f) Seeking a resolution of EEO matters brought to their attention;
(g) Designating a senior level Affirmative Employment Program (AEP)
Manager in Headquarters responsible for preparing the AEP plan;
managing the plan; providing advice and guidance to managers and
supervisors in removing barriers to EEO/AE/ADR and in implementing all
of their EEO/AE responsibilities; and reviewing all recruitment and
personnel actions taken by managers and supervisors to ensure the
achievement of AEP objectives;
(h) Designating the Administrative Officer (AO) or other
Headquarters organizational unit official as the DCM to manage and
direct the organization's EEO responsibilities. In making such
designation, the EEO Officer shall ensure that the designation as the
DCM does not otherwise conflict with the official duties of the
employee so designated;
(i) Designating a senior level Diversity Program Manager in HUD
Headquarters to manage and direct the organization's Diversity Program
and providing resources for diversity activities for its employees;
[[Page 20568]]
(j) Ensuring the successful operation of the EEO/AE/ADR Program by
requiring management's support;
(k) Approving and making reasonable accommodation to the known
physical or mental limitations of qualified employees with disabilities
unless the accommodation would impose an undue hardship on the
operations of Department; and
(l) Adhering to and implementing the Department's policy on
religious accommodation.
Sec. 7.12 Responsibilities of the EEO Counselors.
The EEO Counselor is responsible for counseling and attempting
resolution of matters brought to the EEO Counselor's attention pursuant
to Secs. 7.25 and 7.30 and 29 CFR part 1614, by any current or former
employee or applicant for employment who believes that he or she has
been discriminated against because of race, color, religion, sex,
national origin, age, disability or in reprisal for participating in
EEO activity or opposing policies and practices that are illegal under
the EEO statutes. These responsibilities include, but are not limited
to:
(a) Advising individuals, in writing, of their rights and
responsibilities, including:
(1) The right to request a hearing and decision from EEOC or an
immediate final decision from the agency after an investigation;
(2) Election rights;
(3) The right to file a notice of intent to sue and a lawsuit under
the ADEA instead of an administrative complaint of age discrimination;
and
(4) The duty to mitigate damages;
(5) Relevant time frames.
(b) EEO Counselors shall advise aggrieved persons that only the
claims raised in pre-complaint counseling (or issues or claims like or
related to claims raised in pre-complaint counseling) may be alleged in
a subsequent complaint filed with the Department.
(c) EEO Counselors shall advise aggrieved persons of their duty to
keep the Department and EEOC informed of their current address and the
name of the representative, if applicable, and to serve copies of
hearing and appeal notices on the Department.
(d) EEO Counselors shall provide to the aggrieved person the notice
of the right to file an individual or a class complaint. If the
aggrieved person informs the EEO Counselor that the aggrieved person
wishes to file a class complaint, the EEO Counselor shall explain the
class complaint procedures and the responsibilities of a class agent
and provide class complaint counseling prior to the issuance of the
notice of right to file a complaint.
(e) EEO Counselors shall advise aggrieved persons that, where the
Department agrees to offer ADR in a particular case, they may choose
between participation in the EEO ADR Program and the traditional EEO
counseling process. The EEO Counselor shall conduct the final interview
with the aggrieved person within 30 days of the date the aggrieved
person initially contacted the Department's EEO office to request
counseling, unless the aggrieved person agrees to a longer counseling
period or if the aggrieved person elects the ADR program and agrees to
extend the initial 30-day pre-complaint period for an additional period
of no more than 60 days.
(f) If the matter has not been resolved before the conclusion of
the agreed extension, the EEO Counselor shall issue the notice of right
to file a discrimination complaint no later than the 90th day of the
aggrieved person's initial contact with the EEO Office. The notice
shall inform the aggrieved person of the right to file a discrimination
complaint within 15 days of receipt of the notice; of the appropriate
official with whom to file a complaint; and of the aggrieved person's
duty to assure that the Department is informed immediately if the
aggrieved person retains counsel or a representative and if the
aggrieved person changes address.
(g) EEO Counselors shall prepare a report sufficient to document
the fact that the required counseling actions were taken and an attempt
to resolve any jurisdictional questions was made. The report shall
include a precise description of the claim(s) and the basis(es)
identified by the aggrieved person; pertinent documents gathered during
the inquiry, specific information concerning timeliness of the initial
counseling contact, and a statement as to whether a resolution attempt
was undertaken, and if so, the disposition.
(h) EEO Counselors shall not attempt in any way to dissuade the
aggrieved person from filing an EEO complaint. The EEO Counselor shall
not reveal to the responsible management officials the identity of an
aggrieved person who consulted the EEO Counselor, except when
authorized to do so by the aggrieved person, or until the Department
has received a formal discrimination complaint from that person
involving that same matter.
Sec. 7.13 Responsibilities of the Assistant Secretary for
Administration.
The Assistant Secretary for Administration shall:
(a) Provide leadership in developing and maintaining personnel
management policies, programs, automated systems and procedures which
will promote continuing affirmative employment to ensure equal
opportunity in the recruitment, selection, placement, training, awards,
recognition and promotion of employees, including an applicant flow
tracking system;
(b) Provide positive assistance and guidance to organizational
units and personnel offices to ensure the effective implementation of
the personnel management policies, programs, automated systems, and EEO
procedures;
(c) Participate at the national level with other government
departments and agencies, other employers, and other public and private
groups, in cooperative action to improve employment opportunities and
community conditions which affect employability;
(d) Prepare and implement plans for recruitment and reports in
accordance with the Federal Equal Opportunity Recruitment Program
(FEORP) and the Disabled Veterans Affirmative Action Program (DVAAP);
(e) Provide reasonable accommodations to the known physical or
mental limitations of qualified employees with disabilities unless the
accommodations would impose an undue hardship on the operation of the
Department's programs;
(f) Adhere to and implement the Department's policy on religious
accommodation;
(g) Designate a senior level Disability Program Manager to promote
EEO/ADR/AE for persons with disabilities; to assure the accessibility
of all HUD facilities and programs; and to manage the resources for
providing reasonable accommodation;
(h) In conjunction with the Director of EEO, provide and coordinate
mandatory EEO Counselor training;
(i) Provide and coordinate mandatory supervisors' and managers'
EEO/AE/ADR training;
(j) Provide applicant data to ODEEO for analysis; and
(k) Designate a DCM to represent the organizational unit in EEO
matters. The DCM shall be the AO for the organizational unit or another
designee of the EEO Officer.
Sec. 7.14 Responsibilities of the Office of Human Resources.
In accordance with guidelines issued by the Assistant Secretary for
Administration, Human Resources Officers shall:
(a) Appraise job structure and employment practices to ensure
equality
[[Page 20569]]
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 and ADR
programs. At a minimum, the training should include:
(1) The Civil Rights Act of 1964 (42 U.S.C. 2000d);
(2) Sections 501 and 504 of the Rehabilitation Act of 1973 (29
U.S.C. 791, 794);
(3) The Administrative Dispute Resolution Act of 1996 (5 U.S.C.
556, 571) and its amendments emphasizing the federal government's
interest in encouraging mutual resolution of disputes and the benefits
associated with using ADR;
(4) EEOC's regulations and policy guidance concerning EEO, AE and
ADR;
(5) The ADR methods employed by the Department;
(6) An explanation of how to draft a settlement agreement that
complies with the standards required by ODEEO and 29 CFR part 1614;
(7) An explanation of the recourse available where noncompliance by
the Department is alleged; and
(8) Training on EEO policy, programs and procedures;
(i) In coordination with the Director of the HUD Training Academy,
the Office of General Counsel, the Office of Administration, and the
Director of EEO, the Department may enter into agreements to have EEO/
AE/ADR mandatory annual supervisory and management training provided by
other federal agencies or other resources;
(j) Decide all personnel actions on merit principles and in a
manner which will demonstrate affirmative EEO for the organization;
(k) Ensure to the greatest possible utilization and development of
the skills and potential abilities of all employees;
(l) Track applicant flow and promptly take or recommend appropriate
action to overcome any impediment to achieving the objectives of the
EEO/ADR/AE programs and accomplishing the EEO objectives under the
Performance, Accountability, Communications System (PACS) or other
Departmental performance appraisal system;
(m) Provide applicant data to ODEEO for analysis; and
(n) Provide recognition to employees, supervisors, managers and
units demonstrating superior accomplishments in EEO.
Sec. 7.15 Responsibilities of managers and supervisors.
All managers and supervisors of the Department are responsible for:
(a) Removing barriers to EEO and ensuring that affirmative
employment objectives are accomplished in their areas of
responsibility;
(b) Evaluating and documenting subordinate managers and supervisors
on their performance of EEO/ADR/AE responsibilities;
(c) Encouraging and taking positive steps to ensure respect for and
acceptance of minorities, women and persons with disabilities, veterans
and others of diverse characteristics in the workforce;
(d) Ensuring the non-discriminatory treatment of all employees and
for providing full and fair opportunity for all employees in obtaining
employment and career advancement, including support for ADR, the
Upward Mobility Program, the Mentoring Program and the implementation
of Individual Development Plans;
(e) Encouraging and authorizing staff participation in the various
Diversity Program observances and training opportunities;
(f) Being proactive in addressing EEO/ADR/AE issues, and
maintaining work environments that encourage and support complaint
avoidance through sound management and personnel practices;
(g) Resolving complaints of discrimination early in the EEO process
either independently, or through the use of ADR techniques;
(h) Making reasonable accommodations to the known physical and
mental limitations of applicants and employees with disabilities when
those accommodations can be made without undue hardship on the business
of the Department;
(i) Attending mandatory annual supervisory and management training;
and
(j) Adhering to and implementing the Department's policy on
religious accommodations.
Sec. 7.16 Responsibilities of employees.
All employees of the Department are responsible for:
(a) Being informed as to the Department's EEO/ADR/AE programs;
(b) Adopting an attitude of full acceptance and respect for
minorities, females, persons with disabilities, veterans and others of
diverse characteristics in the workforce, and support for and
participation in ADR;
(c) Providing equality of treatment and service to all persons with
whom they come in contact in carrying out their job responsibilities;
(d) Providing assistance to supervisors and managers in carrying
out their responsibilities in the EEO/ADR/AE programs; and
(e) Cooperating during EEO investigations and throughout the entire
EEO ADR process.
Pre-Complaint Processing
Sec. 7.25 Pre-complaint processing.
(a) An ``aggrieved person'' must request counseling in accordance
with 29 CFR 1614.105(a). The aggrieved person must initiate contact
with an EEO Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45
days of the effective date of the action. EEOC's regulation at 29 CFR
1614.105 shall govern the Department's pre-complaint processing.
(b) The Department or the EEOC shall extend the 45-day time limit
in
[[Page 20570]]
paragraph (a) of this section when the individual shows that the
individual was not notified of the time limits and was not otherwise
aware of them, that the individual did not know and reasonably should
not have known that the discriminatory matter or personnel action
occurred, that despite due diligence the individual was prevented by
circumstances beyond the individual's control from contacting the EEO
Counselor within the time limits, or for other reasons considered
sufficient by the ODEEO or the EEOC.
(c) At the initial counseling session, EEO Counselors must advise
individuals, in writing, of their rights and responsibilities,
including:
(1) The right to request a hearing and decision from an
Administrative Judge of the EEOC or an immediate final decision from
the Department following an investigation in accordance with 29 CFR
1614.108(f);
(2) Election rights pursuant to 29 CFR 1614.301 and 29 CFR
1614.302;
(3) The right to file a notice of intent to sue pursuant to 29 CFR
1614.201(a) and a lawsuit under the ADEA instead of an administrative
complaint of age discrimination under this subpart;
(4) The duty to mitigate damages;
(5) Relevant time frames; and
(6) The requirement that only the claims raised in pre-complaint
counseling (or claims like or related to claims raised in pre-complaint
counseling) may be alleged in a subsequent complaint filed with the
Department.
Sec. 7.26 EEO Alternative Dispute Resolution Program.
(a) The aggrieved person may elect to participate in the EEO ADR
Program or the traditional EEO counseling procedures. When ADR is
chosen, the EEO Counselor shall advise the aggrieved person that if the
dispute is resolved during the ADR process, the terms of the agreement
must be in writing and signed by both the aggrieved person and the
appropriate Department representative. The Director of EEO may 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
issue(s), the complaint must be processed within the extended time
period agreed upon by the parties, but no later than the 90th day.
Complaints
Sec. 7.30 Presentation of complaint.
At any stage in the presentation of a complaint, including the
counseling stage, the Complainant shall be free from restraint,
interference, coercion, discrimination, or reprisal and shall have the
right to be accompanied, represented, and advised by a representative
of the Complainant's own choosing, except as limited by 29 CFR part
1614.
Sec. 7.31 Who may file a complaint, with whom filed, and time limits.
(a) Who may file a complaint. Any aggrieved person (referred to
elsewhere in this part as the Complainant in the formal complaint
stage) who has satisfied the requirements of Sec. 7.25, may file a
complaint, unless there is an executed settlement agreement or amended
complaint of like or similar issues. The complaint must be filed with
the Director of EEO within 15 days of receipt of the notice of right to
file a complaint issued by the EEO Counselor. The Department may accept
a complaint only if the Complainant has met the appropriate
requirements of 29 CFR part 1614.
(b) Filing and computation of time. (1) All time periods in this
subpart stated in terms of days are calendar days unless otherwise
stated.
(2) A document shall be deemed timely if the document is received
or postmarked before the expiration of the applicable filing period,
or, in the absence of a legible postmark, if the document is received
by mail within five days of the expiration of the applicable filing
period.
(3) The time limits in this part are subject to waiver, estoppel
and equitable tolling.
(4) The first day counted shall be the day after the event from
which the time period begins to run and the last day of the period
shall be included, unless the last day falls on a Saturday, Sunday or
Federal holiday, in which case the period shall be extended to include
the next business day.
Sec. 7.32 Representation and official time.
(a) At any stage in the processing of an EEO complaint, including
the counseling stage under 29 CFR 1614.105 and during participation in
the EEO ADR Program, the Complainant shall have the right to be
accompanied, represented, and advised by a representative of
Complainant's choice, except as limited by 29 CFR part 1614.
(b) If the Complainant is an employee of the Department, the
Complainant shall have a reasonable amount of official time, if
otherwise on duty, to prepare the complaint and to respond to
Department and EEOC requests for information if the Complainant is
otherwise in active duty status. If the Complainant is an employee of
the Department and the Complainant designates another employee of the
Department as the Complainant's representative, the representative
shall have a reasonable amount of official time, if otherwise on duty,
to prepare the complaint and respond to Department and EEOC requests
for information.
(c) The Department is not obligated to change work schedules, incur
overtime wages, or pay travel expenses to facilitate the choice of a
specific representative or to allow the Complainant and representative
to confer. The Complainant and the Complainant's representative, if
employed by the Department and otherwise in a pay status, shall be on
official time, regardless of their tour of duty, when their presence is
authorized or required by the Department or the EEOC during the
investigation, informal adjustment, or hearing on the complaint.
(d) In cases where the representation of a Complainant or the
Department would conflict with the official or collateral duties of the
representative, the EEOC or the Department may, after giving the
representative an opportunity to respond, disqualify the
representative.
(e) Unless the Complainant states otherwise in writing, after the
Department has received written notice of the name, address and
telephone number of a representative for the Complainant, all official
correspondence shall be with the representative with copies to the
Complainant. When the Complainant designates an attorney as
representative, service of all official correspondence
[[Page 20571]]
shall be made on the attorney and the Complainant, but time frames for
receipt of materials shall be computed from the time of receipt by the
attorney. The Complainant must serve all official correspondence on the
designated representative of the Department and shall notify the
Department of any changes of the representative and Complainant's
address.
(f) The Complainant shall at all times be responsible for
proceeding with the complaint and cooperating in the entire EEO
complaint process, whether or not the Complainant has designated a
representative.
(g) Witnesses who are Federal employees, regardless of their tour
of duty and regardless of whether they are employed by the Department
or some other Federal agency, shall be in a duty status when their
presence is authorized or required by EEOC or Department officials in
connection with an EEO complaint.
Sec. 7.33 Contents of the complaint.
(a) Information to be included in complaint. (1) The complaint
filed should include the following information:
(i) The specific claim or personnel matter which is alleged to be
discriminatory;
(ii) The date the act or matter occurred;
(iii) The protected basis or bases on which the alleged
discrimination occurred;
(iv) Facts and other pertinent information to support the claim(s)
of discrimination; and
(v) The relief desired.
(2) To expedite the processing of complaints of discrimination, the
Complainant may use the HUD EEO-1 Complaint Form to file the complaint.
(b) Amendments. (1) A Complainant may amend a complaint at any time
prior to the conclusion of the 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,
[[Page 20572]]
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. 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.
Sec. 7.34 Acceptability.
(a) The Director of EEO shall determine whether a complaint comes
within the purview of 29 CFR part 1614 and shall advise the Complainant
and Complainant's representative, if applicable, in writing of the
acceptance or dismissal of the claims(s) of the complaint. The Notice
of Receipt is provided to the Complainant, Complainant's
representative, if applicable, and to the organizational unit through
the appropriate EEO Officer and DCM.
(b) Dismissals of complaints are governed by the notice
requirements and procedures in 29 CFR 1614.106(e)(1) and 29 CFR
1614.107.
(c) Prior to a request for a hearing in a case, the Department
shall dismiss an entire complaint for any of the reasons provided in 29
CFR 1614.107(a)(1) through (9), including a complaint that alleges
dissatisfaction with the processing of a previously filed complaint; or
where the Department, strictly applying the criteria in EEOC decisions,
finds that the complaint is part of a clear pattern of misuse of the
EEO process for a purpose other than the prevention and elimination of
employment discrimination. A clear pattern of misuse of the EEO process
requires:
(1) Evidence of multiple complaint filings; and
(2) Claims that are similar or identical, lack specificity or
involve matters previously resolved; or
(3) 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 this section and 29 CFR 1614.107(a)(1) through (9), the Department
shall notify the Complainant in writing of its determination, the
rationale for that determination and that those claims will not be
investigated, and shall place a copy of the notice in the investigative
file. A determination under 29 CFR 1614.107(b)(1) that some claims
should be dismissed is reviewable by an EEOC Administrative Judge if a
hearing is requested on the remainder of the complaint, but is not
appealable until final action is taken on the remainder of the
complaint.
Sec. 7.35 Processing.
(a) The Director of EEO will process complaints filed under 29 CFR
part 1614 for the Department with the assistance of the EEO Officer,
DCM, the EEO Counselor and the full cooperation of all other Department
managers, supervisors and other employees.
(b) The Director of EEO shall, in accordance with 29 CFR part 1614,
provide for the development of an impartial and appropriate factual
record upon which to make findings on the claims raised by the written
complaint. An appropriate factual record is one that allows a
reasonable fact finder to draw conclusions as to whether discrimination
occurred. The person assigned to develop the factual record may use an
exchange of letters or memoranda, interrogatories, investigations,
fact-finding conferences or any other fact-finding methods that
efficiently and thoroughly address the matters at issue and is
encouraged, in accordance with 29 CFR 1614.108(b), to incorporate ADR
techniques into the investigative efforts in order to promote early
resolution of complaints.
(c) The Director of EEO will provide the Complainant and
Complainant's representative, if applicable, and the EEO Officer a copy
of the record developed. Within 180 days from the filing of the
complaint, or where a complaint was amended, within the earlier of 180
days after the last amendment to the complaint or 360 days after the
filing of the original complaint, within the time period contained in
an order from the Office of Federal Operations on an appeal from a
dismissal, or within any period of extension provided for in 29 CFR
1614.108(f), the Department shall provide the Complainant with a copy
of the investigative file, and shall notify the Complainant that,
within 30 days of receipt of the investigative file, the Complainant
has the right to request a hearing and decision from an EEOC
Administrative Judge or may request an immediate final decision
pursuant to 29 CFR 1614.110 from the Department.
Sec. 7.36 Hearing.
(a) Notification of right to request a hearing. The Director of EEO
will notify the Complainant, the General Counsel, EEO Officer, DCM and
Complainant's representative, where applicable, of the Complainant's
right to request an administrative hearing and decision before the EEOC
or the Department's final decision and the time frames for executing
the right to request an administrative hearing. Note: Where a mixed
case complaint is filed, the Complainant has no right to a hearing
before an EEOC Administrative Judge unless the MSPB has dismissed the
mixed case complaint or appeal for jurisdictional reasons. (See 29 CFR
1614.302(2)(b).)
(b) Requesting a hearing. Where the Complainant has received the
notice required in Sec. 7.35(c) 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,
[[Page 20573]]
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.
(3) With regard to monetary relief, the Department may make a lump
sum offer covering all forms of monetary liability, or the Department
may itemize the amounts and types of monetary relief being offered.
(4) The Complainant shall have 30 days from receipt of the offer of
resolution to accept the offer of resolution. If the Complainant fails
to accept an offer of resolution and the relief awarded in the EEOC
Administrative Judge's decision, the Department's final decision, or
the EEOC decision on appeal is not more favorable than the offer, then,
except where the interest of justice would not be served, the
Complainant shall not receive payment from the Department of attorney's
fees or costs incurred after the expiration of the 30-day acceptance
period.
(5) An acceptance of an offer must be in writing and will be timely
if postmarked or received within the 30-day period. Where a Complainant
fails to accept an offer of resolution, the Department may make other
offers of resolution and either party may seek to negotiate a
settlement of the complaint at any time.
(f) Orders to produce evidence and failure to comply. (1) The
Complainant, the Department, and any employee of the Department shall
produce such documentary and testimonial evidence as the EEOC
Administrative Judge deems necessary. The EEOC Administrative Judge
shall serve all orders to produce evidence on both parties.
(2) When the Complainant, or the agency against which a complaint
is filed, or its employees fail without good cause shown to respond
fully and in timely fashion to an order of an EEOC Administrative
Judge, or requests for the investigative file, for documents, records,
comparative data, statistics, affidavits, or the attendance of
witness(es), the EEOC Administrative Judge shall, in appropriate
circumstances:
(i) Draw an adverse inference that the requested information, or
the testimony of the requested witness, would have reflected
unfavorably on the party refusing to provide the requested information;
(ii) Consider the matters to which the requested information or
testimony pertains to be established in favor of the opposing party;
(iii) Exclude other evidence offered by the party failing to
produce the requested information or witness;
(iv) Issue a decision fully or partially in favor of the opposing
party; or
(v) Take such other actions as appropriate.
(g) Discovery, conduct and record of hearing. (1) Discovery. The
EEOC Administrative Judge shall notify the parties of the right to seek
discovery prior to the hearing and may issue such discovery orders as
are appropriate. Unless the parties agree in writing concerning the
methods and scope of discovery, the party seeking discovery shall
request authorization from the EEOC Administrative Judge prior to
commencing discovery. Both parties are entitled to reasonable
development of evidence on matters relevant to the issues raised in the
complaint, but the EEOC Administrative Judge may limit the quantity and
timing of discovery. Evidence may be developed through interrogatories,
depositions, and requests for admissions, stipulations or production of
documents. Grounds for objection to producing evidence shall be that
the information sought by either party is irrelevant, overburdensome,
repetitious, or privileged.
(2) Conduct of hearing. The Department shall provide for the
attendance at a hearing of all employees approved as witnesses by an
EEOC Administrative Judge. Attendance at hearings will be limited to
persons determined by the EEOC Administrative Judge to have direct
knowledge relating to the complaint. Hearings are part of the
investigative process and are thus closed to the public. The EEOC
Administrative Judge shall have the power to regulate the conduct of a
hearing, limit the number of witnesses where testimony would be
repetitious, and exclude any person from the hearing for contumacious
conduct or misbehavior that obstructs the hearing. The EEOC
Administrative Judge shall receive into evidence information or
documents relevant to the complaint. Rules of evidence shall not be
applied strictly, but the EEOC Administrative Judge shall exclude
irrelevant or repetitious evidence. The EEOC Administrative Judge or
the Commission may refer to the Disciplinary Committee of the
appropriate Bar Association any attorney or, upon reasonable notice and
an opportunity to be heard, suspend or disqualify from representing
Complainants or agencies in EEOC hearings any representative who
refuses to follow the orders of an EEOC Administrative Judge, or who
otherwise engages in improper conduct.
(3) Record of hearing. The hearing shall be recorded and the
Department shall arrange and pay for verbatim transcripts. All
documents submitted to, and accepted by, the EEOC Administrative Judge
at the hearing shall be made part of the record of the hearing. If the
Department submits a document that is accepted, the Department shall
furnish a copy of the document to the Complainant. If the Complainant
submits a document that is accepted, the EEOC Administrative Judge
shall make the document available to the Department representative for
reproduction.
Sec. 7.37 Final action.
(a) Department final decision without a hearing. The Director of
EEO shall make the final decision for the Department based on the
record developed through the processing of the complaint. The Director
of EEO may consult with the General Counsel, the Assistant Secretary of
Administration, the Office of Human Resources, the EEO Officer, the
DCM, the EEO Counselor,
[[Page 20574]]
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.
(b) Department final order after decision by EEOC Administrative
Judge. When an EEOC Administrative Judge has issued a decision under 29
CFR 1614.109 (b), (g) or (i), the Department shall take final action on
the complaint by issuing a final order within 40 days of receipt of the
hearing file and the EEOC Administrative Judge's decision. The final
order shall notify the Complainant whether or not the Department will
fully implement the decision of the EEOC Administrative Judge and shall
contain notice of the Complainant's right to appeal to the EEOC, the
right to file a civil action in federal district court, the name of the
proper defendant in any such lawsuit and the applicable time limits for
appeals and lawsuits. If the final order does not fully implement the
decision of the EEOC Administrative Judge, then the Department shall
simultaneously file an appeal in accordance with 29 CFR 1614.403 and
append a copy of the appeal to the final order. A copy of EEOC Form 573
shall be attached to the final order.
(c) Decision and final order by EEOC Administrative Judge after
hearing. Unless the EEOC Administrative Judge makes a written
determination that good cause exists for extending the time for issuing
a decision, an EEOC Administrative Judge shall issue a decision on the
complaint, and shall order appropriate remedies and relief where
discrimination is found, within 180 days of receipt by the EEOC
Administrative Judge of the complaint file from the Department. The
EEOC Administrative Judge shall send copies of the hearing record,
including the transcript, and the decision to the parties. If the
Department does not issue a final order within 40 days of receipt of
the EEOC Administrative Judge's decision in accordance with 29 CFR
1614.110, then the decision of the EEOC Administrative Judge shall
become the final action of the Department.
(d) Decision and final order by EEOC Administrative Judge without
hearing. (1) If a party believes that some or all material facts are
not in genuine dispute and there is no genuine issue as to credibility,
the party may, at least 15 days prior to the date of the hearing or at
such earlier time as required by the EEOC Administrative Judge, file a
statement with the EEOC Administrative Judge prior to the hearing
setting forth the fact or facts and referring to the parts of the
record relied on to support the statement. The statement must
demonstrate that there is no genuine issue as to any such material
fact. The party shall serve the statement on the opposing party.
(2) The opposing party may file an opposition within 15 days of
receipt of the statement in 29 CFR 1614.109(g)(1). The opposition may
refer to the record in the case to rebut the statement that a fact is
not in dispute or may file an affidavit stating that the party cannot,
for reasons stated, present facts to oppose the request. After
considering the submissions, the EEOC Administrative Judge may order
that discovery be permitted on the fact or facts involved, limit the
hearing to the issues remaining in dispute, issue a decision without a
hearing or make such other ruling as is appropriate.
(3) If the EEOC Administrative Judge determines that some or all
facts are not in genuine dispute, the EEOC Administrative Judge may,
after giving notice to the parties and providing them an opportunity to
respond in writing within 15 days, issue an order limiting the scope of
the hearing or issue a decision without holding a hearing.
Sec. 7.38 Appeals.
(a) Appeals to the EEOC. (1) A Complainant may appeal the
Department's final action or dismissal of a complaint. The regulations
at 29 CFR part 1614, subpart D, govern a Complainant's right of appeal.
(2) The Department may appeal as provided in 29 CFR 1614.110(a).
(3) A class agent or the Department may appeal an EEOC
Administrative Judge's decision accepting or dismissing all or part of
a class complaint; a class agent may appeal a final decision on a class
complaint; a class member may appeal a final decision on a claim for
individual relief under a class complaint; and a class member, a class
agent or the Department may appeal a final decision on a petition
pursuant to 29 CFR 1614.204(g)(4).
(b) Time limits for appeals to the EEOC. Appeals described in 29
CFR 1614.401 (a) and (c) must be filed within 30 days of Complainant's
receipt of the dismissal, final action or decision, or within 30 days
of receipt by the attorney of record, if represented. Appeals described
in 29 CFR 1614.401(b) must be filed within 40 days of receipt of the
hearing file and decision. Where a Complainant has notified the
Director of EEO of alleged noncompliance with a settlement agreement in
accordance with 29 CFR 1614.504, the Complainant may file an appeal 35
days after service of the allegations of noncompliance, but no later
than 30 days after receipt of the Department's determination.
(c) How to appeal. (1) The Complainant, the Department, a class
agent, grievant or individual class claimant (referred to elsewhere in
this part as the appellant) must file an appeal with the Director,
Office of Federal Operations, Equal Employment Opportunity Commission,
at P.O. 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
[[Page 20575]]
Federal Operations within 30 days of filing the notice of appeal. Any
statement or brief on behalf of the Department in support of its appeal
must be submitted to the Office of Federal Operations within 20 days of
filing the notice of appeal. The Office of Federal Operations will
accept statements or briefs in support of an appeal by facsimile
transmittal, provided they are no more than 10 pages long.
(5) The Department must submit the complaint file to the Office of
Federal Operations within 30 days of initial notification that the
Complainant has filed an appeal or within 30 days of submission of an
appeal by the Department.
(6) The Department may be represented by the Office of General
Counsel in appeals before the Office of Federal Operations.
(7) Any statement or brief in opposition to an appeal must be
submitted to the EEOC and served on the opposing party within 30 days
of receipt of the statement or brief supporting the appeal, or, if no
statement or brief supporting the appeal is filed, within 60 days of
receipt of the appeal. The Office of Federal Operations will accept
statements or briefs in opposition to an appeal by facsimile provided
they are no more than 10 pages long.
(d) Request for reconsideration. A decision issued under paragraph
(a) of Sec. 1614.405 is final within the meaning of 29 CFR 1614.407
unless the EEOC reconsiders the case. A party may request
reconsideration within 30 days of receipt of a decision of the EEOC,
which the EEOC in its discretion may grant, if the party demonstrates
that:
(1) The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
(2) The decision will have a substantial impact on the policies,
practices or operations of the Department.
Other Complaint and Appeal Procedures
Sec. 7.39 Negotiated grievance, MSPB appeal and administrative
grievance procedures.
(a) Negotiated grievance procedure. An aggrieved person covered by
a collective bargaining agreement that permits allegations of
discrimination to be raised in a negotiated grievance procedure can
file a complaint under these procedures or a negotiated grievance, but
not both. An election to proceed under this section is indicated only
by the filing of a written complaint. An election to proceed under a
negotiated grievance procedure is indicated by the filing of a timely
grievance. (See 29 CFR 1614.301.)
(b) MSPB appeal procedure. (1) Who can file appeal and when. An
aggrieved person alleging discrimination on basis of race, color,
religion, sex, national origin, age or reprisal because of
participation in related to or stemming from an action that can be
appealed to the MSPB can file a complaint under these procedures, or an
appeal with the MSPB, but not both. Whichever is filed first, the
complaint or the appeal, is considered an election to proceed in that
forum. (See 29 CFR 1614.302 through 29 CFR 1614.309.)
(2) Right to file civil action about MSPB appeal or decision. The
procedures of this section are governed by 29 CFR Sec. 1614.310.
(3) MSPB appeal rights. The provisions of 29 CFR part 1614, subpart
C, shall govern MSPB appeal rights.
(c) Administrative grievance procedure. (1) Grievance. A request by
an employee, or by a group of employees acting as individuals, for
personal relief in a matter of concern or dissatisfaction related to
employment with the Department and over which the Department has
control, including an allegation of coercion, reprisal or retaliation.
The range of matters is limited to those for which no other means of
administrative review is provided.
(2) Covered employee. Any non-bargaining unit employee, including a
former employee or applicant for whom a remedy can be provided.
(3) Responsibilities of participants in the grievance procedure.
Each employee has the responsibility for making a maximum effort to
achieve informal settlement of a personal grievance.
(4) Grievance requirements. The procedures, responsibilities and
processes to be followed by an employee wishing to file an
administrative grievance are found in HUD Handbook 771.2 REV-2,
Administrative Grievances.
Remedies, Enforcement and Compliance
Sec. 7.40 Remedies and enforcement.
(a) Remedies and relief. When the Department, or the EEOC, in an
individual case of discrimination, finds that a current or former
employee or applicant has been discriminated against, the Department
shall provide full relief in accordance with 29 CFR 1614.501.
(b) 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.
(1) 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).
(2) Time period and persons covered. Attorney's fees shall be paid
for services performed by an attorney after the filing of a written
complaint, provided that the attorney provides reasonable notice of
representation to the Department, EEOC Administrative Judge or EEOC,
except that fees are allowable for a reasonable period of time prior to
the notification of representation for any services performed in
reaching a determination to represent the Complainant. The Department
is not required to pay attorney's fees for services performed during
the pre-complaint process, except that fees are allowable when the EEOC
affirms on appeal an EEOC Administrative Judge's decision finding
discrimination after the Department takes final action by not
implementing an EEOC Administrative Judge's decision or when the
parties agree the Department will pay for attorney's fees for pre-
complaint representation.
(c) Notice of representation. Written submissions to the Department
that are signed by the representative shall be deemed to constitute
notice of representation.
(d) Nonattorney fees and costs. Reporter, witness, printing and
other related fees and costs may be awarded, in accordance with 29 CFR
1614.501(e)(1)(iii) and 1614.501(e)(2)(ii)(C).
Sec. 7.41 Compliance with EEOC final decisions.
(a) Relief ordered in a final EEOC decision is mandatory and
binding on the Department except as provided in this section. The
Department's failure to implement ordered relief shall be subject to
judicial enforcement, as specified in 29 CFR 1614.503(g).
(b) Notwithstanding paragraph (a) of this section, when the
Department requests reconsideration and the case involves removal,
separation, or suspension continuing beyond the date of the request for
reconsideration, and when the decision orders retroactive restoration,
the Department shall comply with the decision to the extent of the
temporary or conditional restoration of the employee to duty
[[Page 20576]]
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 full not later than 60
days after receipt of the final decision, unless otherwise ordered in
the decision.
Sec. 7.42 Enforcement of EEOC final decisions.
(a) Petition for enforcement. A Complainant may petition the EEOC
for enforcement of a decision issued under the EEOC's appellate
jurisdiction. The petition shall be submitted to the Office of Federal
Operations. The petition shall specifically provide the reasons that
led the Complainant to believe that the Department is not complying
with the decision.
(b) Referral to the EEOC. Where the Director, Office of Federal
Operations, is unable to obtain satisfactory compliance with the final
decision, the Director shall submit appropriate findings and
recommendations for enforcement to the EEOC, or, as directed by the
EEOC, refer the matter to another appropriate Department.
(c) EEOC notice to show cause. The EEOC may issue a notice to the
Secretary that the Department has failed to comply with a decision and
to show cause why there is noncompliance. Such notice may request the
head of the Department or a representative to appear before the EEOC or
to respond to the notice in writing with adequate evidence of
compliance or with compelling reasons for non-compliance.
(d) Notification to complainant of completion of administrative
efforts. Where the EEOC has determined that the Department is not
complying with a prior decision, or where the Department has failed or
refused to submit any required report of compliance, the EEOC shall
notify the Complainant of the right to file a civil action for
enforcement of the decision pursuant to title VII, the ADEA, the Equal
Pay Act or the Rehabilitation Act and to seek judicial review of the
Department's refusal to implement the ordered relief in accordance with
the Administrative Procedure Act (5 U.S.C. 701 et seq.), and the
mandamus statute (28 U.S.C. 1361), or to commence new proceedings in
accordance with the appropriate statutes.
Sec. 7.43 Settlement agreements.
(a) The Department shall make reasonable efforts to voluntarily
settle complaints of discrimination as early as possible in, and
throughout, the administrative processing of complaints, including the
pre-complaint counseling stage. These efforts shall include ADR. Any
settlement reached shall:
(1) Be in writing;
(2) Identify the claims resolved;
(3) Be signed by both parties and/or their designees; and
(4) Otherwise comply with 29 CFR part 1614.
(b) Any settlement agreement knowingly and voluntarily agreed to by
the parties, reached at any stage of the complaint process, shall be
binding on both parties. Final action that has not been the subject of
an appeal or civil action shall be binding on the Department. If the
Complainant believes that the Department has failed to comply with the
terms of a settlement agreement or decision, the Complainant shall
notify the Director of EEO, in writing, of the alleged noncompliance
within 30 days of when the Complainant knew or should have known of the
alleged noncompliance. The Complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
(c) The Department shall resolve the matter and respond to the
Complainant, in writing. If the Department has not responded to the
Complainant, in writing, or if the Complainant is not satisfied with
the Department's attempt to resolve the matter, the Complainant may
appeal to the EEOC for a determination as to whether the Department has
complied with the terms of the settlement agreement or final decision.
The Complainant may file such an appeal 35 days after the Complainant
has served the Department with the allegations of noncompliance, but
must file an appeal within 30 days of the Complainant's receipt of the
Department's determination. The Complainant must serve a copy of the
appeal on the Department and the Department may submit a response to
the EEOC within 30 days of receiving notice of the appeal.
Sec. 7.44 Interim relief.
(a) When the Department appeals and the case involves removal,
separation, or suspension continuing beyond the date of the appeal, and
when the EEOC Administrative Judge's decision orders retroactive
restoration, the Department shall comply with the decision to the
extent of the temporary or conditional restoration of the employee to
duty status in the position specified in the decision, pending the
outcome of the Department appeal. The employee may decline the offer of
interim relief.
(b) Service under the temporary or conditional restoration
provisions of paragraph (a) of this section shall be credited toward
the completion of a probationary or trial period, eligibility for a
within-grade increase, or the completion of the service requirement for
career tenure, if the EEOC upholds the decision on appeal. Such service
shall not be credited toward the completion of any applicable
probationary or trial period or the completion of the service
requirement for career tenure, if the EEOC reverses the decision on
appeal.
(c) When the Department appeals, the Department may delay the
payment of any amount, other than prospective pay and benefits, ordered
to be paid to the Complainant until after the appeal is resolved. If
the Department delays payment of any amount pending the outcome of the
appeal and the resolution of the appeal requires the Department to make
the payment, then the Department shall pay interest from the date of
the original decision until payment is made.
[[Page 20577]]
(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.
Statistics and Reporting Requirements
Sec. 7.45 EEO group statistics and reports.
(a) The Department shall establish a system to collect and maintain
accurate employment information on the race, national origin, sex and
disability of its employees and applicant flow in accordance with 29
CFR 1614.601 through 29 CFR 1614.602 and the Department shall report to
the EEOC on employment by race, national origin, sex and disability, in
the form and at such times as the EEOC may require.
(b) The Department shall report to the EEOC information concerning
pre-complaint counseling and the status, processing and disposition of
complaints under this part, at such times and in such manner as the
EEOC prescribes.
(c) The Department shall advise the EEOC whenever the Department is
served with a Federal court complaint based upon a complaint that is
pending on appeal at the EEOC.
(d) The Department shall submit annual written national equal
employment opportunity plans of action for the review and approval of
the EEOC. Plans shall be submitted in a format prescribed by the EEOC
and in accordance with 29 CFR 1614.602.
Subpart B--[Reserved]
Dated: April 16, 2001.
Mel Martinez,
Secretary.
[FR Doc. 01-9889 Filed 4-20-01; 8:45 am]
BILLING CODE 4210-32-P