SECTION
1. PURPOSE.
.01
This Order provides for the issuance of Department
of Commerce procedures for the use of aggrieved
employees or applicants for employment in the filing
and processing of discrimination complaints.
.02
The procedures for filing and processing
discrimination complaints included in Appendix A to
this Order meet the Regulations of the Equal
Employment Opportunity Commission (EEOC) which
require Federal agencies to issue EEO complaints
regulations for employees and applicants for
employment.
SECTION
2. STATUS AND APPLICABILITY.
.01
This Order is consistent with the EEOC regulations
for Agency Discrimination Complaints Processing (29
CFR Parts 1614.105 through 1614.204) and
incorporates those provisions of the EEOC
regulations and any amendments thereto by reference.
Whenever there is a conflict between the provisions
and the requirements of this Order and the EEOC
regulations, the EEOC regulations will prevail.
.02
This Order applies to employees and applicants for
employment in the Department, except aliens employed
or applying for employment outside the limits of the
United States; and is limited to complaints of
employment discrimination filed under;
a.
Title VII of the Civil Rights Act of 1964, as
amended (42 U.S.C. 2000e);
b. The
Rehabilitation Act of 1973, as amended (29 U.S.C.
701-794);
c. The Age Discrimination in
Employment Act of 1967, as amended (29 U.S.C.
621-634); and
d. Equal Pay Act (29 U.S.C.
201 et seq.).
SECTION
3. DISTRIBUTION.
.01
The Office of Civil rights will issue and distribute
Appendix A to EEO Officers for dissemination to EEO
Counselors, management officials, interested
employees, applicants for employment and their
representatives. The Director of Civil Rights is
authorized to develop and issue subsequent changes
to the Appendix in accordance with DAO 200-3, and
subject to prior review and comments by the Office
of Inspector General and the Office of the General
Counsel.
.02 EEO Officers shall submit a
request for a supply of Appendix A to the Director
of Civil Rights in accordance with instructions that
the Director will issue.
___________________________
Director
of Civil
Rights
Approved:
__________________________________
Chief
Financial Officer and Assistant
Secretary
for Administration
Office of Primary
Interest
Office of Civil Rights,
Compliance Division
Index
Changes
Add
Complaints, Filing
Discrimination 215-9
Discrimination
Complaints, Filing 215-9
Filing
Discrimination Complaints 215-9
USCOMM-DC
- 93-8918
APPENDIX
A DAO 215-9
PROCEDURES FOR PROCESSING
DISCRIMINATION COMPLAINTS IN THE
DEPARTMENT
OF COMMERCE
The regulations of the Equal
Employment Opportunity Commission (EEOC) require
Federal agencies to promulgate procedures for
complaint processing. This Appendix is in accordance
with the EEOC's regulations and wherever possible
uses language identical to those regulations. The
purpose is to ensure that provisions in the appendix
pertaining to governmentwide requirements for
complaint processing will be interpreted as intended
by the EEOC. The effective date of this Appendix is
October 1, 1992.
SECTION 1. INDIVIDUAL
COMPLAINTS OF DISCRIMINATION
.01
PROCEDURE.
All individual complaints of
discrimination on the basis of race, color,
religion, sex, national origin, age, handicap or
retaliation shall be processed in compliance with
the principles and requirements of this
section.
.02 PRE-COMPLAINT
PROCESSING.
a. An aggrieved person who
believes that they have been discrimination against
because of race, color, religion, sex, national
origin, age or handicap, or retaliated against
because of engaging in protected activity, must
consult a Counselor prior to filing a complaint to
try to resolve the matter informally. Contact should
be made with a Counselor designated to serve the
operating unit or Departmental office at the
location where the discriminatory incident is
alleged to have occurred.
1. An aggrieved
person must initiate contact with a Counselor within
45 days of the matter alleged to be discriminatory
or, if a personnel action, within 45 days of the
effective date of the action.
2. The
Department or the EEOC shall extend the 45-day time
limit in subparagraph a.1. of this section when the
individual shows that they were not notified of the
time limit and was not otherwise aware of them, that
they did not know and reasonably should not have
known that the discriminatory matter or personnel
action occurred, that despite due diligence they
were prevented by circumstances beyond their control
from contacting the Counselor within the time
limits, or for other reasons considered sufficient
by the Department or the EEOC.
b. At the
initial counseling session, Counselors shall advise
individuals, in writing, of their rights and
responsibilities, including the right to request a
hearing after an investigation by the Department,
election rights pursuant to 29 CFR 1614.301 and 302,
the right to file a notice of intent to sue pursuant
to 20 CFR 1614.201(a) and a lawsuit under the Age
Discrimination Employment Act instead of an
administrative complaint of age discrimination under
this section, the duty to mitigate damages, raised
in pre-complaint counseling (or issues like or
related to issues raised in pre-complaint
counseling) may be alleged in a subsequent complaint
filed with the Department. Counselors must advise
individuals of their duty to keep the Department and
the EEOC informed of their current address and to
serve copies of appeal papers on the Department. The
notice required by subparagraphs d. or e. of this
section shall include a notice of the right to a
class complaint. All notices issued by a Counselor
must be transmitted to the aggrieved person and
their representative either by certified mail,
return receipt requested, or by any other method
that enables the Department and the EEOC to
determine the date of receipt.
If the
aggrieved person informs the Counselor that they
wish to file a class complaint, the Counselor shall
explain the class complaint procedures and the
responsibilities of the class agent.
c.
The Director of Civil Rights shall distribute,
through the operating unit EEO Officer, the
Counselors procedures consistent with instructions
contained in EEOC Management directives. The
Counselor shall conduct all counseling activities
according to procedures distributed by the Director
of Civil Rights. When advised that a complaint has
been filed, the Counselor shall submit a written
report within 15 days to the Chief, Compliance
Division, Office of Civil Rights, concerning the
issues discussed and action taken during counseling.
The Chief, Compliance Division, shall submit a copy
of the report to the aggrieved person. The Director
of Civil Rights may authorize an operating unit's or
Departmental office's EEO Officer to notify the
Counselor of the complaint, received the report and
forward the original report to the Chief, Compliance
Division.
d. Unless the aggrieved person
and the operating unit's or Departmental office's
EEO Officer mutually agree to a longer counseling
period under subparagraph e. of this section, or the
operating unit or Departmental office has an
established alternate dispute resolution procedure
under subparagraph f. of this section, the Counselor
shall conduct the final interview with the aggrieved
person within 30 days of the date the aggrieved
person brought the matter to the Counselor's
attention. If the matter is not resolved, the
aggrieved person shall be informed, in writing, by
the Counselor of the right to file a discrimination
complaint. The notice shall inform the aggrieved
person of the right to file a discrimination
complaint with the Director of Civil Rights or the
operating unit's or Departmental office's EEO
Officer within 15 days of receipt of the notice, and
of the complainant's duty to assure that the
Department is informed immediately if the
complainant retains counsel or a representative.
e.
Prior to the end of the 30-day period, the aggrieved
person may agree, in writing, with the EEO Officer
to postpone the final interview and extend the
counseling period for an additional period of no
more than 60 days. If the matter has not been
resolved before the conclusion of the agreed
extension, the notice described in subparagraph d.
of this section shall be issued.
f. Where
the operating unit or Departmental office has an
established alternate dispute resolution procedure,
approved by the Director of Civil Rights and the
Office of the General Counsel, and the aggrieved
individual agrees with the concurrence of the
operating unit's or Departmental office's EEO
Officer to participate in the procedure, the
pre-complaint processing period shall be 90 days. If
the matter has not been resolved before the 90th
day, the notice described in subparagraph d. of this
section shall be issued.
g. The Counselor
shall not attempt in any way to restrain the
aggrieved person from filing a complaint. The
Counselor shall not reveal the identity of an
aggrieved person who has consulted with the
Counselor, unless authorized to do so by the
aggrieved person, or until a formal complaint of
discrimination involving the matter(s) discussed has
been filed by the person.
h. When, at the
informal counseling stage, an aggrieved person has
named or otherwise identified an individual as
responsible for an alleged act of discrimination,
the Counselor must solicit the views of that
"responding official" unless the Counselor
otherwise obtains and provides information that
exonerates the official to the clear satisfaction of
the aggrieved person. Prior to the Counselor's
interview with the official, the latter must be
advised that they have been named or identified by a
potential complainant, must be informed of the
nature of any accusation made, and must be advised
of the right to have a representative present during
the interview to provide advice on how to respond to
any questions the Counselor may ask the Counselor
must be careful, however, not to reveal the identity
of the aggrieved individual when the individual has
not authorized the Counselor to do so.
i.
Every counseling contact must result I a settlement
agreement signed by the aggrieved person or issuance
of a notice as described in subparagraph d. of this
section.
.03 FILING AND PRESENTATION OF
FORMAL COMPLAINTS.
a. Complaint of
discrimination filed with the Department must allege
that the Department, an operating unit or a
Departmental office of the Department discriminated
against the complainant.
b. A complaint
must be filed with the Director of Civil Rights, of
the Department or the operating unit or Departmental
office within 15 days of receipt of the notice
required by subparagraphs .02d., e. or f. of this
section.
c. A complaint must contain a
signed statement from the person claiming to be
aggrieved or that person's attorney. This statement
must be sufficiently precise to identify the
aggrieved individual and the operating unit or
Departmental office and to describe generally the
action(s) or practices(s) that form the basis of the
complaint. The complaint must also contain a
telephone number and address where the complainant
or the representative can be contacted.
d.
The Office f Civil Rights shall acknowledge receipt
of a complaint, in writing, and inform the
complainant of the date on which the complaint was
received. Such acknowledgment shall also advise the
complainant that:
1. the complainant has
the right to appeal the final decision or dismissal
of all or a portion of a complaint; and
2.
the Department shall conduct a complete and fair
investigation of the complaint within 180 days of
the filing of the complaint unless the parties agree
in writing to extend that period.
.04
DISMISSALS OF COMPLAINTS.
The Director of
Civil Rights shall dismiss a complaint or a portion
of a complaint:
a. that fails to state a
claim under paragraph .01 or subparagraph .03a. of
this section;
b. that fails to comply
with the applicable time limits contained in
paragraph 1.02, 1.03 and subparagraph 2.04b. of this
Appendix, unless the Department extends the time
limits; or that raises a matter that has not been
brought to the attention of a Counselor and is not
like or related to a matter that has been brought to
the attention of a Counselor;
c. that is
the basis of a pending civil action in a United
States District Court in which the complainant is a
party provided that at least 180 days have passed
since the filing of the administrative complaint, or
that was the basis of a civil action decided by a
United States District Court in which the
complainant was a party;
d. where the
complainant has raised the matter in a negotiated
grievance procedure that permits allegations of
discrimination or in appeal t the Merit Systems
Protection Board;
e. that is moot or
alleges that a proposal to take a personnel action,
or other preliminary step to taking a personnel
action is discriminatory;
f. where the
complainant cannot be located, provided that
reasonable efforts have been made to locate the
complainant and the complainant has not responded
within 15 days of its receipt or the complaint's
response does not address the Department's request,
provided that the request included a notice of the
proposed dismissal. Instead of dismissing for
failure to cooperate, the complaint may be
adjudicated if sufficient information for that
purpose is available; or
h. if, prior to
the issuance of the notice required by subparagraph
.05f. of this section, the complainant refuses
within 30 days of receipt of an offer of settlement
to accept a Department offer of full relief
containing a certification from the Director of
Civil Rights that the offer constitutes full relief,
provided that the offer gave notice that failure to
accept would result, provided that the offer gave
notice that failure to accept would result in
dismissal of the complaint.
.05
INVESTIGATION OF COMPLAINTS.
a. Upon the
acceptance of a formal complaint, the Office of
Civil Rights shall conduct or arrange for an
investigation of the matter.
b. The
Office of Civil Rights shall develop a complete and
impartial factual record upon which to make
findings. Complaint investigations will be conducted
in accordance with existing guidance provided by the
EEOC.
c. The following procedures
apply:
1. The complainant, the operating
unit, Departmental office, or any Federal employee
shall produce such documentary and testimonial
evidence as the investigator deems necessary.
2.
Investigators are authorized to administer oaths.
Statements of witnesses shall be made under oath or
affirmation or, alternatively by written statement
under penalty of perjury.
3. A responding
official, whether identified at the time a formal
complaint is filed or during the investigation, must
be given an opportunity to respond to all
allegations made against them. In this respect, the
investor should interview and receive information
from the responding official as often as may be
necessary to ensure that the responding official has
an opportunity to respond to all the allegations.
Pertinent documents (i.e., documents in which the
responding official is identified and charged with
discrimination or other wrongdoing) intended for
inclusion in the investigative file, including the
Counselor's report, in which the responding official
is named, must be made available to the official for
this purpose. Names of and identifying information
on persons other then the complainant and the
responding official should be deleted by the
investigator from copies of the documents shown to
the responding official, to protect such persons
from unwarranted invasion of privacy.
4.
When the complainant, operating unit, Departmental
office, or Federal employee fails without good cause
to respond fully and in a timely fashion to requests
for documents, records, comparative data,
statistics, affidavits, or the attendance of
witness(es), the investigator may note in the
investigative record that the decision maker should,
or the EEOC on appeal may, in appropriate
circumstances:
(a) 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;
(b)
consider the matters to which the requested
information or testimony pertains to be established
in favor of the opposing party;
copyright
exclude other evidence offered by the party failing
to produce the requested information or
witness;
(d) issue a decision fully or
partially in favor of the opposing party; or
(e)
take such other actions as deemed appropriate.
5.
When it becomes apparent to the investigator that a
complainant may fail to respond as required, the
investigator will immediately advise the
complainant, in writing, that failure to respond
within a specified time may result in an adverse
inference.
6. When it becomes apparent to
the investigator that an employee of an operating
unit or Departmental office may fail to respond as
required, the investigator will immediately notify
the appropriate EEO Officer, in writing, of the
failure to respond and request assistance in
eliciting the response.
7. All
investigations will be conducted by investigators
with appropriate security clearances.
d.
The Office of Civil Rights, as required by the
regulations of the EEOC, shall complete an
investigation within 180 days of the date of filing
an individual complaint or within the time period
contained in an order from the Office of Federal
Operations, EEOC on an appeal from a dismissal
pursuant to the EEOC's regulations at 29 CFR
1614.107. However, by written agreement within those
time periods, the complainant and the Department may
voluntarily extend the time period for not more than
an additional 90 days. The Department may
unilaterally extend the time period or any period of
extension agreed upon for not more than an
additional 30 days where it must sanitize a
complaint file that may contain information
classified pursuant to Executive Order No. 12356, or
successor orders, in the interest of national
defense or foreign policy, provided the Department
notifies the complainant of the extension.
e.
Where time permits, the Department, at its election,
shall provide a draft copy of the investigation to
both the complainant and the EEO officer for the
operating unit or Departmental office for their
review. Either party may request that additional
information be gathered and added to the
investigative file. The Office of Civil Rights,
Compliance Division will review any comments
received and make a final determination as the
weather any supplementation of the investigative
file is required.
f. Within 180 days from
the filing of the complaint, within the time period
contained in an order from the Office of Federal
Operations, EEOC on an appeal from a dismissal, or
within any period of extension provided for in
subparagraph d. above, the Department shall notify
the complainant that the investigation has been
completed, shall provide the complainant with a copy
of the final investigative file, and shall notify
the complainant that, within 30 days of receipt of
the final investigative file, the complainant has
the right to request a hearing through the Office of
Civil Rights before an administrative judge or to
request an immediate final decision pursuant to 29
CFR 1614.110 from the Director of Civil Rights. In
the absence of the required notice, the complainant
may request a hearing, directly from the Equal
Employment Opportunity Commission, at any time after
180 days has elapsed from the filing of the
complaint.
.06 HEARING.
a. If
the complainant makes a request within the time
frames set forth in subparagraph .05f. of this
section, for a hearing, the Office of Civil Rights
shall request that the EEOC appoint an
administrative judge to conduct a hearing in
accordance with this section. Any hearing will be
conducted by an administrative judge or hearing
examiner with appropriate security clearances. Where
the administrative judge determines that the
complainant is raising or intends to pursue issues
like or related to those raised in the complaint,
but which the Department has not had an opportunity
to address, the administrative judge shall remand
any such issue for counseling in accordance with
paragraph .02 of this section and for such other
processing as ordered by the administrative
judge.
b. Discovery - The 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 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 administrative judge may limit
the quantity and timing of discovery. Evidence may
be developed through interrogatories, deposition,
and requests for admissions, stipulations or
production of documents. It shall be grounds for
objection to producing evidence that the information
sought by either party is irrelevant, over
burdensome, repetitious, or privileged.
c.
Conduct of hearing - The Department shall provide
for the attendance at a hearing of all its employees
who are approved as witnesses by an administrative
judge. Attendance at hearings will be limited to
persons determined by the 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 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
administrative judge shall receive into evidence
information or documents relevant to the complaint.
Rules of evidence shall not be applied strictly, but
the administrative judge shall exclude irrelevant or
repetitious evidence. The administrative judge or
the EEOC 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 administrative judge, or who otherwise engages in
improper conduct.
1. The following
procedures apply to hearings of complaints:
(a)
The complainant, the operating unit, Departmental
office, or any Federal employee shall produce
documentary and testimonial evidence as the
administrative judge deems necessary.
(b)
Statements from witnesses under oath (administrative
judges are authorized to administer oaths),
affirmation, or alternatively written under penalty
of perjury.
copyright When the
complainant, or the Department, or its employees
fail without good cause shown to respond fully and
in timely fashion to requests for documents,
records, comparative data, statistics, affidavits,
or the attendance of witness(es), the administrative
judge may, in appropriate circumstances:
(1)
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;
(2) consider the matters to
which the requested information or testimony
pertains to be established in favor of the opposing
party;
(3) exclude other evidence offered
by the party failing to produce the requested
information or witness;
(4) issue a
decision fully or partially in favor of the opposing
party; or
(5) take such other actions as
appropriate.
d. Findings and conclusions
without hearing.
(1) If a party believes
that some or all material facts are not in genuine
dispute and there is no 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
administrative judge, file a statement with the
administrative judge 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) If
the opposing party files an opposition within 15
days of receipt of the statement in subparagraph
d.(1) of this section, 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 administrative
judge may order that discovery be permitted on the
fact or facts involved, limit the hearing to the
issues remaining in dispute, issue findings and
conclusions without a hearing or issue findings and
conclusions without holding hearing.
(3)
If the administrative judge determines upon their
own initiative that some or all facts are not in
genuine dispute, they may, after giving notice to
the parties and providing them an opportunity to
respond in writing within 15 calendar days, issue an
order limiting the scope of the hearing or issue
findings and conclusions without holding a
hearing.
e. Record of hearing - The
hearing shall be recorded and the EEO Officer shall
arrange and pay for verbatim transcripts. All
documents submitted to, and accepted by, the
administrative judge at the hearing shall be made
part of the record of the hearing. If the Department
submits a document that is accepted, it shall
furnish a copy of the document to the complainant.
If the complainant submits a document that is
accepted, the administrative judge shall make the
document available to the Department representative
for reproduction.
f. Findings and
conclusions - Unless the administrative judge makes
a written determination that good cause exists for
extending the time limit for issuing findings of
fact and conclusions of law, the administrative
judge shall within 180 days of a request for a
hearing being received by EEOC, issue findings of
fact and conclusions of law on the merits of the
complaint, and shall order appropriate relief where
discrimination is found with regard to the matter
that gave rise to the complaint. The administrative
judge shall send copies of the entire record,
including the transcript, and the findings and
conclusions to the Director of Civil Rights by
certified mail, return receipt requested. Within 60
days of receipt of the findings and conclusions, the
Director of Civil Rights may accept, reject or
modify the findings and conclusions or the relief
ordered by the administrative judge and issue a
final decision in accordance with 29 CFR 1614.110.
If the Department does not, within 60 days of
receipt, reject or modify the findings and
conclusions of the administrative judge, then the
relief ordered shall become the final decision of
the Department and the complainant shall be notified
of the final decision in accordance with section 29
CFR 1614.110.
.07 FINAL
DECISIONS.
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, under subparagraph 1.05f. of this
section, where the complainant has not requested
either a hearing or a decision, or within 60 days of
receiving the findings and conclusions of an
administrative judge, under subparagraph 1.06f. of
this section, the director of Civil Rights shall
issue a final decision. The final decision shall
consist of findings by the Department on the merits
of each issue in the complaint and, when
discrimination is found, appropriate remedies and
relief in accordance with 29 CFR 1614.501. The final
decision shall contain notice of the right to appeal
to the EEOC, the name and address of the department
official upon whom an appeal should be served,
notice of 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 EEOC
Form 573, Notice of Appeal/Petition, shall be
attached to the decision.
SECTION 2.
CLASS COMPLAINTS OF DISCRIMINATION
.01
COVERAGE.
All class complaints of
discrimination on the basis of race, color,
religion, sex, national origin, age or handicap
shall be processed in compliance with the principles
and requirements of this section.
.02
DEFINITIONS.
a. A "class" is a
group of Department employees, former Department
employees, or applicants for employment who, it is
alleged, have been, or are being adversely affected,
by a Department personnel management policy or
practice which discriminates against the group on
the basis of their race, color, religion, sex,
national origin, or handicap.
b. A "class
complaint" is a complaint of discrimination
filed on behalf of a class alleging that:
1.
the class is so numerous that a consolidated
complaint of the members of the class is
impractical;
2. there are questions of
fact common to the class;
3. the claims
of the Agent of the class are typical of the claims
of the class; and
4. the Agent of the
class, or , if represented, the representative, will
fairly and adequately protect the interests of the
class.
c. An "Agent of the class"
(Agent) is a class member who acts for the class
during the processing of the class complaint.
.03
PRE-COMPLAINT PROCESSING.
An employee or
applicant who wishes to file a class complaint must
seek counseling and be counseled in accordance with
paragraph .01 of this Appendix. EEO Officers may
serve as Counselors on class matters.
.04
FILING AND PRESENTATION OF A CLASS COMPLAINT.
a.
A class complaint must be signed by the Agent or
representative and must identify the policy or
practice adversely affecting the class as well as
the specific action or matter adversely affecting
the Agent.
b. The complaint must be filed
with the Director of Civil Rights not later than
fifteen days after the Agent's receipt of the notice
of right to file a class complaint. (See
subparagraph .02d. of this Appendix).
c.
The complaint shall be processed promptly; the
parties shall cooperate and shall proceed at all
times without undue delay.
.05 ACCEPTANCE
OR DISMISSAL.
a. Within 30 days of the
Department's receipt of a complaint, the Department
shall:
1. designate a Department
representative who shall not be any of the
individuals referenced in 29 CFR 1614.102(b)(3);
and
2. forward the complaint, along with
a copy of the Counselor's report and any other
information pertaining to timeliness or other
relevant circumstances related to the complaint, to
the EEOC. The EEOC shall assign the complaint to an
administrative judge or complaints examiner with a
proper security clearance when necessary. The
administrative judge may require the complainant or
Department to submit additional information relevant
to the complaint.
b. The administrative
judge may recommend that the Department dismiss the
complaint, or any portion, for any of the reasons
listed in 29 CFR 1614.107(a)(2) or because it does
not meet the prerequisites of a class complaint
under 1614.204(a)(2).
c. If an allegation
is not included in the Counselor's report, the
administrative judge shall afford the Agent 15 days
to state whether the matter was discussed with the
Counselor and, if not, explain why it was not
discussed. If the explanation is not satisfactory,
the administrative judge shall refer the allegation
to the Department for further counseling of the
Agent. After counseling, if timely, the allegation
shall be consolidated with the class complaint.
d.
If an allegation lacks specificity and detail, the
administrative judge shall afford the Agent 15 days
to provide specific and detailed information. The
administrative judge shall recommend that the
Department dismiss the complaint if the Agency fails
to provide such information within the specified
time period. If the information provided contains
new allegations outside the scope of the complaint,
the administrative judge shall advise the Agent how
to proceed on an individual or class basis
concerning these allegations.
e. The
administrative judge may recommend that the
Department extend the time limits for filing a
complaint and for consulting with a Counselor in
accordance with the time limit provisions contained
in 29 CFR 1614.105(a)(2) and 1614.604. When
appropriate, the administrative judge may recommend
that a class be divided into subclasses and that
each subclass be treated as a class, and the
provisions of this section then shall be construed
and applied accordingly.
f. The
administrative judge's written recommendation to the
Department on whether to accept or dismiss a
complaint shall be transmitted to the Department and
notification of that transmittal shall be sent to
the Agent. The administrative judge's recommendation
to accept or dismiss shall become the Department's
decision unless the Department rejects or modifies
the recommended decision within 30 days of the
receipt of the recommended decision and complaint
file. The Department shall notify the Agent by
certified mail, return receipt requested, and the
administrative judge of its decision to accept or
dismiss a complaint. At the same time, the
Department shall forward to the Agent copies of the
administrative judge's recommendation and the
complaint file. The Department's decision dismissing
a class complaint, shall inform the Agent either
that the complaint is being filed on that date as an
individual complaint of discrimination and will be
processed under Section 1 of this Appendix or that
the complaint is also dismissed as an individual
complaint in accordance with 29 CFR 1614.107. In
addition, the decision shall inform the Agent of the
right to appeal the dismissal of the class complaint
to the Office of Federal Operations, EEOC or to file
a civil action and include EEOC Form 573, Notice of
Appeal/Petition.
.06 NOTIFICATION.
a.
Within 15 days of accepting a class complaint, the
Department shall use reasonable means, such as
delivery, mailing to last known address or
distribution, to notify all class members of the
acceptance of the class complaint.
b.
Such notice shall contain:
(1) the name
of the Department or organizational segment, its
location, and the date of acceptance of the
complaint;
(2) a description of the
issues accepted as part of the class complaint;
(3)
an explanation of the binding nature of the final
decision or resolution of the complaint on class
members; and
(4) the name, address and
telephone number of the class representative.
.07
OBTAINING EVIDENCE CONCERNING THE COMPLAINT.
a.
The administrative judge shall notify the Agent and
the Department representative of the time period
that will be allowed both parties to prepare their
cases. This time period will include at least 60
days and may be extended by the administrative judge
upon the request of either party. Both parties are
entitled to reasonable development of evidence on
matters relevant to the issues raised in the
complaint. Evidence may be developed through
interrogatories, depositions, and requests for
admissions, stipulations or production of documents.
It shall be grounds for objection to producing
evidence that the information sought by either party
is irrelevant, over burdensome, repetitious, or
privileged.
b. If mutual cooperation
fails, either party may request the administrative
judge to rule on a request to develop evidence. If a
party fails, without good cause shown, to respond
fully and in a timely fashion to a request made or
approved by the administrative judge for documents,
records, comparative data, statistics or affidavits,
and the information is solely in the control of one
party, such failure may, in appropriate
circumstances, cause the administrative judge:
1.
to draw an adverse inference that the requested
information would have reflected unfavorably on the
party refusing to provide the requested
information;
2. to consider the matters
to which the requested information pertains to be
established in favor of the opposing party;
3.
to exclude other evidence offered by the party
failing to produce the requested information;
4.
to recommend that a decision be entered in favor of
the opposing party; or
5. to take such
other actions as the administrative judge deems
appropriate.
c. During the period for
development of evidence, the administrative judge
may, at their discretion, direct that an
investigation of facts relevant to the complaint or
any portion be conducted by the Department.
d.
Both parties shall furnish to the administrative
judge copies of all materials that they wish to be
examined and such other material as may be
requested.
.08 OPPORTUNITY FOR RESOLUTION
OF THE COMPLAINT.
a. The administrative
judge shall furnish the Agent and the Department
representative a copy of all materials obtained
concerning the complaint and provide opportunity for
the Agent to discuss materials with the Department
representative and attempt resolution of the
complaint.
b. The complaint may be
resolved by agreement of the Department and the
Agent at any time as long as the agreement is fair
and reasonable.
c. If the complaint is
resolved, the terms of the resolution shall be
reduced to writing and signed by the Agent and the
Department.
d. Notice of the resolution
shall be given to all class members in the same
manner as notification of the acceptance of the
class complaint and shall state the relief, if any,
to be granted by the Department. A resolution shall
bind all members of the class. Within 30 days of the
date of the notice of resolution, any member of the
class may petition the Director of Civil Rights to
vacate the resolution because it benefits only the
Agent or is otherwise not fair and reasonable. Such
a petition will be processed in accordance with
1614.204(d) and if the administrative judge finds
that the resolution is not fair and reasonable, they
shall recommend that the resolution be vacated and
that the original Agent be replaced by the
petitioner or some other class member who is
eligible to be the Agent during further processing
of the class complaint. The Department's decision
that the resolution is not fair and reasonable
vacates any agreement between the former Agent and
the Department. The Department's decision on such a
petition shall inform the former Agent or the
petitioner of the right to appeal the decision to
the Office of Federal Operations, EEOC and include
EEOC Form 573, Notice of Appeal/Petition.
.09
HEARING.
On expiration of the period
allowed for preparation of the case, the
administrative judge shall set a date for hearing.
The hearing shall be conducted in accordance with
subparagraph 1.06c. of the Appendix.
.10
REPORT OF FINDINGS AND RECOMMENDATIONS.
a.
The administrative judge shall transmit to the
Department a report of findings and recommendations
on the complaint, including a recommended decision,
systemic relief for the class and any individual
relief, where appropriate, with regard to the
personnel action or matter that gave rise to the
complaint.
b. If the administrative judge
finds no class relief appropriate, they shall
determine if a finding of individual discrimination
is warranted and, if so, shall recommend appropriate
relief.
c. The administrative judge shall
notify the Agent of the date on which the report of
findings and recommendations was forwarded to the
Department.
.11 DEPARTMENT DECISION.
a.
Within 60 days of receipt of the report of findings
and recommendations issued under paragraph .03 of
this section, the Office of Civil Rights shall issue
a final decision, which shall accept, reject, or
modify the findings and recommendations of the
administrative judge.
b. The final
decision of the Department shall be in writing and
shall be transmitted to the Agent by certified mail,
return receipt requested, along with a copy of the
report of findings and recommendations of the
administrative judge.
c. When the
Department's final decision is to reject or modify
the findings and recommendations of the
administrative judge the decision shall contain
specific reasons for the Department's action.
d.
If the Department had not issued a final decision
within 60 days of its receipt of the administrative
judge's report of findings and recommendations,
those findings and recommendations shall become the
final decision. The Department shall transmit the
final decision to the Agent within five days of the
expiration of the 60-day period.
e. The
final decision of the Department shall require any
relief authorized by law and determined to be
necessary or desirable to resolve the issue of
discrimination.
f. A final decision on a
class complaint shall, subject to 29 CFR 1614.401,
be binding on all members of the class and the
Department.
g. The final decision shall
inform the Agent of the right to appeal or to file a
civil action in accordance with 29 CFR 1614.401 and
the applicable time limits.
.12
NOTIFICATION OF DECISION.
The Department
shall notify class members of the final decision and
relief awarded, if any, through the same method
employed to give notice of the existence of the
class complaint. The notice, where appropriate,
shall include information concerning the rights of
class members to seek individual relief, and of the
procedures to be followed. Notice shall be given by
the Department within 10 days of the transmittal of
its final decision to the Agent.
.13
RELIEF FOR INDIVIDUAL CLASS MEMBERS.
a.
When discrimination is found, the Department must
eliminate or modify the employment policy or
practice out of which the complaint arose and
provide individual relief, including an award of
attorney's fees and costs, to the Agent in
accordance with 29 CFR 1614.501.
b. When
class-wide discrimination is not found, but it is
found that the Agent is a victim of discrimination,
29 CFR 1614.501 shall apply. The Department shall
also, within 60 days of the issuance of the final
decision finding no class-wide discrimination, issue
the acknowledgment of receipt of an individual
complaint as required by section 1, subparagraph
.03d. of this Appendix and process in accordance
with the provisions of section 1 of this Appendix,
each individual complaint that was subsumed into the
class complaint.
c. When discrimination
is found in the final decision and a class member
believes that they are entitled to individual
relief, the class member may file a written claim
with the Secretary of Commerce or the Director of
Civil Rights within 30 days of receipt of
notification by the Department of its final
decision. The claim must include a specific,
detailed showing that the claimant is a class member
who was affected by a personnel action or matter
resulting from the discriminatory policy or
practice, and that this discriminatory action took
place within the period of time for which the
Department found class-wide discrimination in its
final decision. The Department shall issue a final
decision on each such claim within 90 days of
filing. Such decision must include a notice of the
right to file an appeal or a civil action in
accordance with 20 CFR 1614.401, and the applicable
time limits.
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