[Federal Register: April 15, 2003 (Volume 68, Number 72)]
[Rules and Regulations]
[Page 18083-18103]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap03-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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[[Page 18083]]
FEDERAL RESERVE SYSTEM
12 CFR Part 268
[Docket No. R-1096]
Rules Regarding Equal Opportunity
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule.
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SUMMARY: The Board of Governors of the Federal Reserve System (the
Board) has adopted a final rule that amends its ``Rules Regarding Equal
Opportunity,'' which establishes programs and procedures to promote
equal opportunity for Board employees. This rule was published on
January 25, 2001, in the Federal Register as an immediately effective
interim rule with opportunity for public comment. The Board received
one public comment on this rule. The Board is now adopting the interim
rule as a final rule with substantive changes to sections in the rule
that address the Rehabilitation Act. These substantive changes are
being made because after the Board adopted its interim rule, the Equal
Employment Opportunity Commission (Commission), after public comment,
adopted changes to the provisions in its parallel regulation entitled
``Federal Sector Equal Employment Opportunity,'' 29 CFR part 1614, that
address the Rehabilitation Act. The substantive changes to the Board's
final rule, which incorporates changes to the Commission's regulation
on the Rehabilitation Act, also respond to the comment that the Board
received on its rule.
DATES: This final rule is effective immediately and applies to all
Board equal employment opportunity (EEO) complaints pending at any
stage of the administrative process as of April 15, 2003.
FOR FURTHER INFORMATION CONTACT: Stephen L. Siciliano, Assistant
General Counsel (202-452-3920), or Alicia S. Foster, Counsel (202-452-
5289), Legal Division, Board of Governors of the Federal Reserve
System, 20th Street and Constitution Avenue NW., Washington, DC 20551.
For users of Telecommunications Device for the Deaf (``TDD'') only,
contact 202/263-4869.
SUPPLEMENTARY INFORMATION: On January 2, 2001, the Board approved the
revision of the Board's ``Rules Regarding Equal Opportunity'' as an
immediately effective interim rule with opportunity for comment. The
rule was published in the Federal Register on January 25, 2001 (66 FR
7703). The interim rule revised the Board's existing regulation
entitled ``Rules on Equal Opportunity,'' 12 CFR part 268, to
incorporate the November 1999 changes made by the Equal Employment
Opportunity Commission (Commission) to its parallel regulation entitled
``Federal Sector Equal Employment Opportunity,'' 29 CFR part 1614,
governing equal employment opportunity in the federal government
generally. As explained in the preamble to the interim rule, this
amendment is consistent with the Board's past practice as the Board's
rule is modeled after and, in most respects, is identical to the
Commission's regulation. The interim rule also made additional changes
to the Board's regulation to bring it into closer conformance with the
Commission's regulation. In a few instances, the interim rule continued
distinctions between the Board's rule and the Commission's rule that
reflect the Board's statutorily mandated independence.
One comment was received. The commentator, the Commission,
suggested that rather than adopt a separate regulation governing the
processing of complaints of discrimination, the Board should adopt the
Commission's Government-wide complaint processing procedures. As the
Board has pointed out in prior amendments to part 268, however, the
Board believes that based on the specific provisions of the Federal
Reserve Act and established precedent, the adoption of part 268 is
necessary to authorize and ensure the Board's compliance with important
national laws and policies prohibiting discrimination in employment on
the basis of race, color, religion, sex, national origin, age,
disability, or retaliation.
The Commission also questioned five provisions in the Board's rule
that differ from the corresponding provisions in the Commission's rule
on employee EEO complaints. Three of the provisions retain authority
for the Board as to a decision issued by the Commission on employee
complaints of discrimination. The Commission expressed concerns that it
is not clear how these provisions relate to the Commission's rule or to
the sections in the interim rule that set forth the time periods for a
complainant to file a civil action. The other two provisions regard the
overall relationship between the Commission and the Board and address
how the Board will provide EEO program information to the Commission.
Except as discussed below, the Board adopts the interim rule as a final
rule.
As an initial matter, it should be noted that all of the provisions
that the Commission points to as differing from its regulation are
updated provisions rather than new provisions. Similar provisions were
contained in the Board's rule on equal opportunity prior to the
adoption of the interim rule on January 25, 2001. While the Board
recognizes that the provisions in question retain authority that is not
found in the Commission's regulation, the Board believes the retention
of authority is necessary to comply with its statutorily mandated
independence while also complying with the laws prohibiting
discrimination in employment. The provisions at issue are based on the
Board's traditional view of its authority under the Federal Reserve
Act, which provides that the ``employment, compensation, leave, and
expenses'' of Board employees is governed solely by that Act. Section
10(4).\1\ The provisions address areas that the Board believes affect
its independence and thus the distinctions are appropriate. As
explained in the preamble to the interim rule, however, the Board has
minimized, to the greatest extent possible, distinctions between its
rule and the Commission's rule. Accordingly, with the few exceptions
noted by the Commission, the Board's interim rule closely conforms to
the Commission's rule. The Board will continue to work with the
Commission
[[Page 18084]]
to ensure that the Board's rule is effectively implemented consistent
with the laws and policies enforced by the Commission. Accordingly, the
Board believes that no changes to these provisions in the interim rule
are appropriate.
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\1\ 12 U.S.C. 244.
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The Commission also commented on a provision in the Board's interim
regulation implementing the Rehabilitation Act (29 U.S.C. 791), which
prohibits discrimination against individuals with disabilities by the
federal government. The particular provision at issue addresses
alcoholism, 12 CFR 268.203(h)(3). The Commission questioned whether
section 268.203(h)(3) was consistent with current law. Before the Board
could address the Commission's concerns, however, the Commission
adopted changes to the parallel provision in the Commission's rule. On
May 21, 2002, the Commission published a final rule revising the
sections in its rule regarding the Rehabilitation Act. (67 FR 35732).
The Commission's rule provides that the federal government shall be a
model employer of individuals with disabilities. The rule also provides
that in determining whether the Rehabilitation Act, as amended, has
been violated in a complaint alleging nonaffirmative action employment
discrimination, the standards under Titles I and V of the Americans
with Disabilities Act of 1990, insofar as they cover employment in the
private sector, shall be applied. The rules also provide that these
standards are set forth in the Commission's ADA regulation at 29 CFR
part 1630. The Board has determined that it would be appropriate to
revise its Rehabilitation Act rules consistent with the Commission's
May 21, 2002, final rule. By making these changes, the Board is
addressing the Commission's concern with the provision on alcoholism in
the interim rule as that provision will be deleted.
In order to incorporate the Commission's May 21, 2002, final rule,
section 268.102, paragraph (9) of the interim rule, which relates to
the obligations of the Board's EEO program with respect to employees
with physical or mental limitations, has also been deleted in the final
rule. This provision corresponds to a provision in the Commission's
prior regulation, which the Commission deleted.\2\ In addition, the
present language in section 268.203 has been replaced with the
corresponding language from the Commission's final rule, which provides
that the government shall be a model employer of individuals with
disabilities and applies the ADA standards (Title I and V) to determine
whether a violation of section 501 of the Rehabilitation Act has
occurred. The Board's final rule also incorporates the reference to the
Commission's ADA regulation. Thus, as these changes to the Board's
rules are made in response to the comment received on the interim rule
and are consistent with those made by the Commission in its May 21,
2002, final rule, additional comment would not serve the public
interest as the Commission's rule was adopted only after public
comment. As described above, the changes to the Rehabilitation Act
provisions in the Board's corresponding rule incorporate existing
Commission procedures which were adopted after public notice and
comment. Further, as the Commission's changes to the Rehabilitation Act
provisions are effective as of June 20, 2002, to ensure that EEO
complaints by Board employees are handled consistently with the
procedures of the Commission, it is important that the Board adopt
corresponding changes without additional delay.
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\2\ The Board's final rule, similar to the Commission's changes
to its regulation, renumbers the remaining paragraphs. Further, the
citation to section 268.203(a)(6) in section 268.702(e)(3) of
Subpart H, which prohibits discrimination in Board programs and
activities on the basis of disability and which is a matter not
administered by the Commission, has been changed to section 268.203
as the prior citation is no longer valid.
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Finally, the Commission suggested that the Board apply the interim
rule retroactively to cover employee complaints of discrimination
pending on November 9, 1999, the effective date of the Commission's
revised rule, which prompted the Board's revision of its corresponding
rule. The Board does not believe that any further action in this regard
is necessary, however, because the interim rule was effective
immediately upon publication of the interim rule and applied to all
pending cases as of January 25, 2001. Thus, to the extent an EEO
complaint was in the administrative process on that date, it was
processed under procedures similar to those adopted by the Commission.
It appears that, for the most part, the administrative processing at
the Board of complaints pending as of January 2001 has been completed,
so that retroactive application at this time would have little effect.
Accordingly, with the exception of the substantive changes
discussed above, the Board is now adopting the interim rule on equal
employment opportunity as a final rule. No other substantive changes
have been made to the interim rule. The final rule makes editorial
changes to certain other parts of the Board's interim regulation,
namely, the provision on employment of noncitizens and the subpart
prohibiting discrimination in Board programs and activities on the
basis of disability, which are not administered by the Commission.
Pursuant to the Administrative Procedures Act (APA), 5 U.S.C.
553(d)(3), the Board has determined that it is unnecessary and would be
impracticable to defer the effective date of this final rule for 30
days. The final rule, like the interim rule, which was effective
immediately on publication, in substance is applying the Commission's
existing regulation, which was revised twice and in both instances
adopted only after notice and public comment. Thus, the Board's rule
will not cause unfair prejudice as the standards that are being applied
in the final rule in virtually all respects are not new and are already
in effect under the interim rule. The one major substantive change to
the interim rule by the final rule conforms the Rehabilitation Act
provisions covering Board employee to those governing Federal employers
generally.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3506; 5 CFR 1320 Appendix A.1), the Board reviewed the proposed rule
under the authority delegated to the Board by the Office of Management
and Budget. No collections of information pursuant to the Paperwork
Reduction Act are contained in the final rule.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act (Pub.
L. 96-354, 5 U.S.C. 601, et seq.), the Board certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule governs the Board's dealings with its
employees, applicants for employment, and others affected in a like
manner.
Plain Language
Section 722 of the Gramm-Leach-Bliley Act requires each federal
banking agency to use plain language in all proposed and final rules
published after January 1, 2000. Because the Board has determined that
this final rule, similar to the interim rule, should conform to the
greatest possible with the parallel regulation of the Equal Employment
Opportunity Commission, the Board's ability to specifically address the
plain language requirement was limited.
[[Page 18085]]
List of Subjects in 12 CFR part 268
Administrative practice and procedure, Aged, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Federal
Reserve System, Government employees, Individuals with disabilities,
Religious discrimination, Sex discrimination, Wages.
0
For the reasons set out in the preamble, the Board revises 12 CFR part
268 to read:
PART 268--RULES REGARDING EQUAL OPPORTUNITY
Subpart A--General Provisions and Administration
Sec.
268.1 Authority, purpose and scope.
268.2 Definitions.
Subpart B--Board Program To Promote Equal Opportunity
268.101 General policy for equal opportunity.
268.102 Board program for equal employment opportunity.
268.103 Complaints of discrimination covered by this part.
268.104 Pre-complaint processing.
268.105 Individual complaints.
268.106 Dismissals of complaints.
268.107 Investigation of complaints.
268.108 Hearings.
268.109 Final action by the Board.
Subpart C--Provisions Applicable to Particular Complaints
268.201 Age Discrimination in Employment Act.
268.202 Equal Pay Act.
268.203 Rehabilitation Act.
268.204 Class complaints.
268.205 Employment of noncitizens.
Subpart D--Related Processes
268.301 Negotiated grievance procedure.
268.302 Mixed case complaints.
Subpart E--Appeals to the Equal Employment Opportunity Commission
268.401 Appeals to the Equal Employment Opportunity Commission.
268.402 Time for appeals to the Equal Employment Opportunity
Commission.
268.403 How to appeal.
268.404 Appellate Procedure.
268.405 Decisions on appeals.
268.406 Civil action: Title VII, Age Discrimination in Employment
Act and Rehabilitation Act.
268.407 Civil action: Equal Pay Act.
268.408 Effect of filing a civil action.
Subpart F--Remedies and Enforcement
268.501 Remedies and relief.
268.502 Compliance with final Commission decisions.
268.503 Enforcement of final EEOC decisions.
268.504 Compliance with settlement agreements and final actions.
268.505 Interim relief.
Subpart G--Matters of General Applicability
268.601 EEO group statistics.
268.602 Reports to the Commission.
268.603 Voluntary settlement attempts.
268.604 Filing and computation of time.
268.605 Representation and official time.
268.606 Joint processing and consolidation of complaints.
268.607 Delegation of Authority.
Subpart H--Prohibition Against Discrimination in Board Programs and
Activities Because of a Physical or Mental Disability
268.701 Purpose and application.
268.702 Definitions
268.703 Notice.
268.704 General prohibition against discrimination.
268.705 Employment.
268.706 Program accessibility: Discrimination prohibited.
268.707 Program accessibility: Existing facilities.
268.708 Program accessibility: New construction and alterations.
268.709 Communications.
268.710 Compliance procedures.
Authority: 12 U.S.C. 244 and 248(i), (k) and (1).
Subpart A--General Provisions and Administration
Sec. 268.1 Authority, purpose and scope.
(a) Authority. The regulations in this part (12 CFR part 268) are
issued by the Board of Governors of the Federal Reserve System (Board)
under the authority of sections 10(4) and 11(i), (k), and (l) of the
Federal Reserve Act (partially codified in 12 U.S.C. 244 and 248(i),
(k) and (1)).
(b) Purpose and scope. This part sets forth the Board's policy,
program and procedures for providing equal opportunity to Board
employees and applicants for employment without regard to race, color,
religion, sex, national origin, age, or physical or mental disability.
It also sets forth the Board's policy, program and procedures for
prohibiting discrimination on the basis of physical or mental
disability in programs and activities conducted by the Board. It also
specifies the circumstances under which the Board will hire or decline
to hire persons who are not citizens of the United States, consistent
with the Board's operational needs and applicable law.
Sec. 268.2 Definitions.
The definitions contained in this section shall have the following
meanings throughout this part unless otherwise stated.
(a) Commission or EEOC means the Equal Employment Opportunity
Commission.
(b) Title VII means Title VII of the Civil Rights Act (42 U.S.C.
2000e et seq.).
Subpart B--Board Program To Promote Equal Opportunity
Sec. 268.101 General policy for equal opportunity.
(a) It is the policy of the Board to provide equal opportunity in
employment for all persons, to prohibit discrimination in employment
because of race, color, religion, sex, national origin, age or
disability, and to promote the full realization of equal opportunity in
employment through a continuing affirmative program.
(b) No person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (title VII)
(42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act
(ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)),
or the Rehabilitation Act (29 U.S.C. 791 et seq.) or for participating
in any stage of administrative or judicial proceedings under those
statutes.
Sec. 268.102 Board program for equal employment opportunity.
(a) The Board shall maintain a continuing affirmative program to
promote equal opportunity and to identify and eliminate discriminatory
practices and policies. In support of this program, the Board shall:
(1) Provide sufficient resources to its equal opportunity program
to ensure efficient and successful operation;
(2) Provide for the prompt, fair and impartial processing of
complaints in accordance with this part and the instructions contained
in the Commission's Management Directives;
(3) Conduct a continuing campaign to eradicate every form of
prejudice or discrimination from the Board's personnel policies,
practices and working conditions;
(4) Communicate the Board's equal employment opportunity policy and
program and its employment needs to all sources of job candidates
without regard to race, color, religion, sex, national origin, age or
disability, and solicit their recruitment assistance on a continuing
basis;
(5) Review, evaluate and control managerial and supervisory
performance in such a manner as to insure a continuing affirmative
application and vigorous enforcement of the policy of equal
opportunity, and provide orientation, training and advice to managers
and supervisors to assure their understanding and implementation of the
equal
[[Page 18086]]
employment opportunity policy and program;
(6) Take appropriate disciplinary action against employees who
engage in discriminatory practices;
(7) Make reasonable accommodation to the religious needs of
employees and applicants for employment when those accommodations can
be made without undue hardship on the business of the Board;
(8) Make reasonable accommodation to the known physical or mental
limitations of qualified applicants and employees with a disability
unless the accommodation would impose an undue hardship on the
operations of the Board's program;
(9) Provide recognition to employees, supervisors, managers and
units demonstrating superior accomplishment in equal employment
opportunity;
(10) Establish a system for periodically evaluating the
effectiveness of the Board's overall equal employment opportunity
effort;
(11) Provide the maximum feasible opportunity to employees to
enhance their skills through on-the-job training, work-study programs
and other training measures so that they may perform at their highest
potential and advance in accordance with their abilities;
(12) Inform its employees and recognized labor organizations of the
Board's affirmative equal opportunity policy and program and enlist
their cooperation; and
(13) Participate at the community level with other employers, with
schools and universities and with other public and private groups in
cooperative action to improve employment opportunities and community
conditions that affect employability.
(b) In order to implement its program, the Board shall:
(1) Develop the plans, procedures and regulations necessary to
carry out its program;
(2) Establish or make available an alternative dispute resolution
program. Such program must be available for both the precomplaint
process and the formal complaint process.
(3) Appraise its personnel operations at regular intervals to
assure their conformity with the Board's program, this part 268 and the
instructions contained in the Commission's management directives;
(4) Designate a Director for Equal Employment Opportunity (EEO
Programs Director), EEO Officer(s), and such Special Emphasis Program
Managers/Coordinators (e.g., People with Disabilities Program, Federal
Women's Program and Hispanic Employment Program), clerical and
administrative support as may be necessary to carry out the functions
described in this part in all organizational units of the Board and at
all Board installations. The EEO Programs Director shall be under the
immediate supervision of the Chairman.
(5) Make written materials available to all employees and
applicants informing them of the variety of equal employment
opportunity programs and administrative and judicial remedial
procedures available to them and prominently post such written
materials in all personnel and EEO offices and throughout the
workplace;
(6) Ensure that full cooperation is provided by all Board employees
to EEO Counselors and Board EEO personnel in the processing and
resolution of pre-complaint matters and complaints within the Board and
that full cooperation is provided to the Commission in the course of
appeals, including, granting the Commission routine access to personnel
records of the Board when required in connection with an investigation;
(7) Publicize to all employees and post at all times the names,
business telephone numbers and business addresses of the EEO Counselors
(unless the counseling function is centralized, in which case only the
telephone number and address need be publicized and posted), a notice
of the time limits and necessity of contacting a Counselor before
filing a complaint and the telephone numbers and addresses of the EEO
Programs Director, EEO Officer(s) and the Special Emphasis Program
Managers/Coordinators.
(c) The EEO Programs Director shall be responsible for:
(1) Advising the Board of Governors with respect to the preparation
of national and regional equal employment opportunity plans,
procedures, regulations, reports and other matters pertaining to the
policy in Sec. 268.101 and the Board's program;
(2) Evaluating from time to time the sufficiency of the total Board
program for equal employment opportunity and reporting to the Board of
Governors with recommendations as to any improvement or correction
needed, including remedial or disciplinary action with respect to
managerial, supervisory or other employees who have failed in their
responsibilities;
(3) When authorized by the Board of Governors, making changes in
programs and procedures designed to eliminate discriminatory practices
and to improve the Board's program for equal employment opportunity;
(4) Providing for counseling of aggrieved individuals and for the
receipt and processing of individual and class complaints of
discrimination; and
(5) Assuring that individual complaints are fairly and thoroughly
investigated and that final action is taken in a timely manner in
accordance with this part.
(d) Directives, instructions, forms and other Commission materials
referenced in this part may be obtained in accordance with the
provisions of 29 CFR 1610.7.
Sec. 268.103 Complaints of discrimination covered by this part.
(a) Individual and class complaints of employment discrimination
and retaliation prohibited by title VII (discrimination on the basis of
race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved person is at
least 40 years of age), the Rehabilitation Act (discrimination on the
basis of disability), or the Equal Pay Act (sex-based wage
discrimination) shall be processed in accordance with this part.
Complaints alleging retaliation prohibited by these statutes are
considered to be complaints of discrimination for purposes of this
part.
(b) This part applies to all Board employees and applicants for
employment at the Board, and to all employment policies or practices
affecting Board employees or applicants for employment.
(c) This part does not apply to Equal Pay Act complaints of
employees whose services are performed within a foreign country or
certain United States territories as provided in 29 U.S.C. 213(f).
Sec. 268.104 Pre-complaint processing.
(a) Aggrieved persons who believe they have been discriminated
against on the basis of race, color, religion, sex, national origin,
age or disability must consult a Counselor prior to filing a complaint
in order to try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a 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.
(2) The Board or the Commission shall extend the 45-day time limit
in paragraph (a)(1) of this section when the individual shows that he
or she was not notified of the time limits and was not otherwise aware
of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond
his
[[Page 18087]]
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the Board or the Commission.
(b)(1) At the initial counseling session, Counselors must advise
individuals in writing of their rights and responsibilities, including
the right to request a hearing or an immediate final decision after an
investigation by the Board in accordance with Sec. 268.107(f),
election rights pursuant to Sec. 268.302, the right to file a notice
of intent to sue pursuant to Sec. 268.201(a) and a lawsuit under the
ADEA instead of an administrative complaint of age discrimination under
this part, the duty to mitigate damages, administrative and court time
frames, and that only the claims raised in precomplaint counseling (or
issues or claims like or related to issues or claims raised in pre-
complaint counseling) may be alleged in a subsequent complaint filed
with the Board. Counselors must advise individuals of their duty to
keep the Board and the Commission informed of their current address and
to serve copies of appeal papers on the Board. The notice required by
paragraphs (d) or (e) of this section shall include a notice of the
right to file a class complaint. If the aggrieved person informs the
Counselor that he or she wishes to file a class complaint, the
Counselor shall explain the class complaint procedures and the
responsibilities of a class agent.
(2) Counselors shall advise aggrieved persons that, where the Board
agrees to offer ADR in the particular case, they may choose between
participation in the alternative dispute resolution program and the
counseling activities provided for in paragraph (c) of this section.
(c) Counselors shall conduct counseling activities in accordance
with instructions contained in Commission Management Directives. When
advised that a complaint has been filed by an aggrieved person, the
Counselor shall submit a written report within 15 days to the EEO
Programs Director and the aggrieved person concerning the issues
discussed and actions taken during counseling.
(d) Unless the aggrieved person agrees to a longer counseling
period under paragraph (e) of this section, or the aggrieved person
chooses an alternative dispute resolution procedure in accordance with
paragraph (b)(2) of this section, the Counselor shall conduct the final
interview with the aggrieved person within 30 days of the date the
aggrieved person contacted the Board's EEO Programs Office to request
counseling. If the matter has not been resolved, the aggrieved person
shall be informed in writing by the Counselor, not later than the
thirtieth day after contacting the Counselor, of the right to file a
discrimination complaint with the Board. This notice shall inform the
complainant 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 complainant's duty to assure that the EEO
Programs Director 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 Board 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 paragraph (d) of this
section shall be issued.
(f) Where the aggrieved person chooses to participate in an
alternative dispute resolution procedure in accordance with paragraph
(b)(2) of this section, the pre-complaint processing period shall be 90
days. If the claim has not been resolved before the 90th day, the
notice described in paragraph (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 consulted the Counselor,
except when authorized to do so by the aggrieved person, or until the
Board has received a discrimination complaint under this part from that
person involving the same matter.
Sec. 268.105 Individual complaints.
(a) A complaint must be filed with the agency that allegedly
discriminated against the complainant.
(b) A complaint must be filed within 15 days of receipt of the
notice required by Sec. 268.104 (d), (e) or (f).
(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
Board and to describe generally the action(s) or practice(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) 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 administrative judge to amend a
complaint to include issues or claims like or related to those raised
in the complaint.
(e) The Board 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 Board 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:
(1) The complainant has the right to appeal the final action on or
dismissal of a complaint; and
(2) The Board 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 Board 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
administrative judge on the consolidated complaints any time after 180
days from the date of the first filed complaint.
Sec. 268.106 Dismissals of complaints.
(a) Prior to a request for a hearing in a case, the Board shall
dismiss an entire complaint:
(1) That fails to state a claim under Sec. 268.103 or Sec.
268.105(a), or states the same claim that is pending before or has been
decided by the Board or the Commission;
(2) That fails to comply with the applicable time limits contained
in Sec. Sec. 268.104, 268.105 and 268.204(c), unless the Board extends
the time limits in accordance with Sec. 268.604(c), 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;
(3) 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;
(4) Where a complainant has raised the matter in an appeal to the
Merit Systems Protection Board and Sec. 268.302 indicates that the
complainant has elected to pursue the non-EEO process;
[[Page 18088]]
(5) That is moot or alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory;
(6) 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 to a notice of proposed
dismissal sent to his or her last known address;
(7) Where the Board has provided the complainant with a written
request to provide relevant information or otherwise proceed with the
complaint, and the complainant has failed to respond to the request
within 15 days of its receipt or the complainant's response does not
address the Board'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;
(8) That alleges dissatisfaction with the processing of a
previously filed complaint; or
(9) Where the Board, strictly applying the criteria set forth in
Commission decisions, finds that the complaint is part of a clear
pattern of misuse of the EEO process for a purpose other than the
prevention and elimination of employment discrimination. A clear
pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings; and
(ii) Allegations that are similar or identical, lack specificity or
involve matters previously resolved; or
(iii) Evidence of circumventing other administrative processes,
retaliating against the Board's in-house administrative processes or
overburdening the EEO complaint system.
(b) Where the Board believes that some but not all of the claims in
a complaint should be dismissed for the reasons contained in paragraphs
(a)(1) through (9) of this section, the Board 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 this paragraph is reviewable by an 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. 268.107 Investigation of complaints.
(a) The investigation of complaints filed against the Board shall
be conducted by the Board.
(b) In accordance with instructions contained in Commission
Management Directives, the Board shall develop 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 Board 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. The Board may incorporate alternative dispute
resolution techniques into its investigative efforts in order to
promote early resolution of complaints.
(c) The procedures in paragraphs (c)(1) through (3) of this section
apply to the investigation of complaints:
(1) The complainant, the Board, and any employee of the Board 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) When the complainant, or the Board 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 investigator may note
in the investigative record that the decisionmaker should, or the
Commission on appeal may, 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 it deems appropriate.
(d) Any investigation will be conducted by investigators with
appropriate security clearances.
(e)(1) The Board shall complete its investigation within 180 days
of the date of filing of an individual complaint or within the time
period contained in an order from the Office of Federal Operations on
an appeal from a dismissal pursuant to Sec. 268.106. By written
agreement within those time periods, the complainant and the Board may
voluntarily extend the time period for not more than an additional 90
days. The Board may unilaterally extend the time period or any period
of extension for not more than 30 days where it must sanitize a
complaint file that may contain information classified pursuant to
Executive Order No. 12356, or successor orders, as secret in the
interest of national defense or foreign policy, provided the Board
notifies the complainant of the extension.
(2) Confidential supervisory information, as defined in 12 CFR
261.2(c), and other confidential information of the Board may be
included in the investigative file by the investigator, the EEO
Programs Director, or another appropriate officer of the Board, where
such information is relevant to the complaint. Neither the complainant
nor the complainant's personal representative may make further
disclosure of such information, however, except in compliance with the
Board's Rules Regarding Availability of Information, 12 CFR part 261,
and where applicable, the Board's Rules Regarding Access to Personal
Information under the Privacy Act of 1974, 12 CFR part 261a.
(f) 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 paragraph (e) of this section, the
Board 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 administrative judge or may request an
immediate final decision pursuant to Sec. 268.109(b) from the Board.
(g) Where the complainant has received the notice required in
paragraph (f) of this section 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 Board's
[[Page 18089]]
acknowledgment letter. The complainant shall send a copy of the request
for a hearing to the Board's EEO Programs Office. Within 15 days of
receipt of the request for a hearing, the Board's EEO Programs Office
shall provide a copy of the complaint file to EEOC and, if not
previously provided, to the complainant.
Sec. 268.108 Hearings.
(a) When a complainant requests a hearing, the Commission shall
appoint an administrative judge to conduct a hearing in accordance with
this section. Upon appointment, the 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 administrative judge or hearing examiner with appropriate
security clearances.
(b) Dismissals. Administrative judges may dismiss complaints
pursuant to Sec. 268.106, on their own initiative, after notice to the
parties, or upon the Board's motion to dismiss a complaint.
(c) Offer of resolution. (1) Any time after the filing of the
written complaint but not later than the date an administrative judge
is appointed to conduct a hearing, the Board may make an offer of
resolution to a complainant who is represented by an attorney.
(2) Any time after the parties have received notice that an
administrative judge has been appointed to conduct a hearing, but not
later than 30 days prior to the hearing, the Board may make an offer of
resolution to the complainant, whether represented by an attorney or
not.
(3) The offer of resolution shall be in writing and shall include a
notice explaining the possible consequences of failing to accept the
offer. The Board's offer, to be effective, must include attorney's fees
and costs and must specify any non-monetary relief. With regard to
monetary relief, the Board may make a lump sum offer covering all forms
of monetary liability, or it may itemize the amounts and types of
monetary relief being offered. The complainant shall have 30 days from
receipt of the offer of resolution to accept it. If the complainant
fails to accept an offer of resolution and the relief awarded in the
administrative judge's decision, the Board's final decision, or the
Commission's 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 Board of attorney's fees
or costs incurred after the expiration of the 30-day acceptance period.
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 Board may make other offers
of resolution and either party may seek to negotiate a settlement of
the complaint at any time.
(d) 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, 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, overburdensome, repetitious, or privileged.
(e) Conduct of hearing. The Board shall provide for the attendance
at a hearing of all employees 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 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 administrative judge, or who
otherwise engages in improper conduct.
(f) Procedures. (1) The complainant, the Board and any employee of
the Board shall produce such documentary and testimonial evidence as
the administrative judge deems necessary. The administrative judge
shall serve all orders to produce evidence on both parties.
(2) Administrative judges 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) When the complainant, or the Board, or its employees fail
without good cause shown to respond fully and in timely fashion to an
order of an administrative judge, or requests for the investigative
file, for documents, records, comparative data, statistics, affidavits,
or the attendance of witness(es), the 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) Decisions 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
administrative judge, file a statement with the 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 paragraph (g)(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 a decision without a
[[Page 18090]]
hearing or make such other ruling as is appropriate.
(3) If the administrative judge determines upon his or her own
initiative that some or all facts are not in genuine dispute, he or she
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 a decision without
holding a hearing.
(h) Record of hearing. The hearing shall be recorded and the Board
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 Board 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
Board's representative for reproduction.
(i) Decisions by administrative judges. Unless the administrative
judge makes a written determination that good cause exists for
extending the time for issuing a decision, an 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 administrative judge of the complaint file from the
Board. The administrative judge shall send copies of the hearing
record, including the transcript, and the decision to the parties. If
the Board does not issue a final order within 40 days of receipt of the
administrative judge's decision in accordance with Sec. 268.109(a),
then the decision of the administrative judge shall become the final
action of the Board.
Sec. 268.109 Final action by the Board.
(a) Final action by the Board following a decision by an
administrative judge. When an EEOC administrative judge has issued a
decision under Sec. Sec. 268.108(b), (g), or (i), the Board shall take
final action on the complaint by issuing a final order within 40 days
of receipt of the hearing file and the administrative judge's decision.
The final order shall notify the complainant whether or not the Board
will fully implement the decision of the administrative judge and shall
contain notice of the complainant's right to appeal to the Equal
Employment Opportunity Commission, 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 administrative
judge, then the Board shall simultaneously file an appeal in accordance
with Sec. 268.403 and append a copy of its appeal to the final order.
A copy of EEOC Form 573 shall be attached to the final order.
(b) Final action by the Board in all other circumstances. When the
Board dismisses an entire complaint under Sec. 268.106, receives a
request for an immediate final decision or does not receive a reply to
the notice issued under Sec. 268.107(f), the Board shall take final
action by issuing a final decision. The final decision shall consist of
findings by the Board 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 subpart F of this part. The Board shall issue
the final decision within 60 days of receiving notification that a
complainant has requested an immediate decision from the Board, 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
Equal Employment Opportunity Commission, 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 shall be attached to the final
action. The Board may issue a final decision within 30 days after
receiving a decision of the Commission pursuant to Sec. 268.405(c) of
this part.
Subpart C--Provisions Applicable to Particular Complaints
Sec. 268.201 Age Discrimination in Employment Act.
(a) As an alternative to filing a complaint under this part, an
aggrieved individual may file a civil action in a United States
district court under the ADEA against the Chairman of the Board of
Governors after giving the Commission not less than 30 days' notice of
the intent to file such an action. Such notice must be filed in writing
with EEOC, at PO Box 19848, Washington, DC 20036, or by personal
delivery or facsimile within 180 days of the occurrence of the alleged
unlawful practice.
(b) The Commission may exempt a position from the provisions of the
ADEA if the Commission establishes a maximum age requirement for the
position on the basis of a determination that age is a bona fide
occupational qualification necessary to the performance of the duties
of the position.
(c) When an individual has filed an administrative complaint
alleging age discrimination that is not a mixed case, administrative
remedies will be considered to be exhausted for purposes of filing a
civil action:
(1) 180 days after the filing of an individual complaint if the
Board has not taken final action and the individual has not filed an
appeal or 180 days after the filing of a class complaint if the Board
has not issued a final decision;
(2) After final action on an individual or class complaint if the
individual has not filed an appeal; or
(3) After the issuance of a final decision by the Commission on an
appeal or 180 days after the filing of an appeal, if the Commission has
not issued a final decision.
Sec. 268.202 Equal Pay Act.
Complaints alleging violations of the Equal Pay Act shall be
processed under this part.
Sec. 268.203 Rehabilitation Act.
(a) Model employer. The Board shall be a model employer of
individuals with disabilities. The Board shall give full consideration
to the hiring, placement, and advancement of qualified individuals with
disabilities.
(b) ADA standards. The standards used to determine whether section
501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has
been violated in a complaint alleging nonaffirmative action employment
discrimination under this part shall be the standards applied under
Titles I and V (sections 501 through 504 and 510) of the Americans with
Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 12201),
as such sections relate to employment. These standards are set forth in
the Commission's ADA regulation at 29 CFR part 1630.
Sec. 268.204 Class complaints.
(a) Definitions--(1) Class is a group of Board employees, former
employees or applicants for employment who, it is alleged, have been or
are being adversely affected by a Board personnel management policy or
practice that discriminates against the group on the basis of their
race, color, religion, sex, national origin, age or disability.
(2) Class complaint is a written complaint of discrimination filed
on behalf of a class by the agent of the class alleging that:
(i) The class is so numerous that a consolidated complaint of the
members of the class is impractical;
[[Page 18091]]
(ii) There are questions of fact common to the class;
(iii) The claims of the agent of the class are typical of the
claims of the class;
(iv) The agent of the class, or, if represented, the
representative, will fairly and adequately protect the interests of the
class.
(3) An agent of the class is a class member who acts for the class
during the processing of the class complaint.
(b) Pre-complaint processing. An employee or applicant who wishes
to file a class complaint must seek counseling and be counseled in
accordance with Sec. 268.104. 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 contained in Sec. 268.104, no
additional counseling is required. The administrative judge shall deny
class certification when the complainant has unduly delayed in moving
for certification.
(c) Filing and presentation of a class complaint. (1) 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 affecting the class agent.
(2) The complaint must be filed with the Board not later than 15
days after the agent's receipt of the notice of right to file a class
complaint.
(3) The complaint shall be processed promptly; the parties shall
cooperate and shall proceed at all times without undue delay.
(d) Acceptance or dismissal. (1) Within 30 days of the Board's
receipt of a complaint, the Board shall: Designate an agency
representative who shall not be one of the individuals referenced in
Sec. 268.102(b)(4), and 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 Commission. The Commission 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 the Board to submit additional information relevant to
the complaint.
(2) The administrative judge may dismiss the complaint, or any
portion, for any of the reasons listed in Sec. 268.106 or because it
does not meet the prerequisites of a class complaint under Sec.
268.204(a)(2).
(3) 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 dismiss the allegation. If the explanation
is satisfactory, the administrative judge shall refer the allegation to
the Board for further counseling of the agent. After counseling, the
allegation shall be consolidated with the class complaint.
(4) 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 dismiss the
complaint if the agent 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.
(5) The administrative judge shall extend the time limits for
filing a complaint and for consulting with a Counselor in accordance
with the time limit extension provisions contained in Sec. Sec.
268.104(a)(2) and 268.604.
(6) When appropriate, the administrative judge may decide 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.
(7) The administrative judge shall transmit his or her decision to
accept or dismiss a complaint to the Board and the agent. The Board
shall take final action by issuing a final order within 40 days of
receipt of the hearing record and administrative judge's decision. The
final order shall notify the agent whether or not the Board will
implement the decision of the administrative judge. If the final order
does not implement the decision of the administrative judge, the Board
shall simultaneously appeal the administrative judge's decision in
accordance with Sec. 268.403 and append a copy of the appeal to the
final order. A dismissal of 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 subpart B or
that the complaint is also dismissed as an individual complaint in
accordance with Sec. 268.106. In addition, it shall inform the agent
of the right to appeal the dismissal of the class complaint to the
Equal Employment Opportunity Commission or to file a civil action and
shall include EEOC Form 573, Notice of Appeal/Petition.
(e) Notification. (1) Within 15 days of receiving notice that the
administrative judge has accepted a class complaint or a reasonable
time frame specified by the administrative judge, the Board 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.
(2) Such notice shall contain:
(i) An identification of the Board as the named agency, its
location, and the date of acceptance of the complaint;
(ii) A description of the issues accepted as part of the class
complaint;
(iii) An explanation of the binding nature of the final decision or
resolution of the class complaint on class members; and
(iv) The name, address and telephone number of the class
representative.
(f) Obtaining evidence concerning the complaint. (1) The
administrative judge shall notify the agent and the Board's
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, overburdensome, repetitious, or
privileged.
(2) 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 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:
(i) To draw an adverse inference that the requested information
would have reflected unfavorably on the party refusing to provide the
requested information;
(ii) To consider the matters to which the requested information
pertains to be
[[Page 18092]]
established in favor of the opposing party;
(iii) To exclude other evidence offered by the party failing to
produce the requested information;
(iv) To recommend that a decision be entered in favor of the
opposing party; or
(v) To take such other actions as the administrative judge deems
appropriate.
(3) During the period for development of evidence, the
administrative judge may, in his or her discretion, direct that an
investigation of facts relevant to the class complaint or any portion
be conducted by an agency certified by the Commission.
(4) 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.
(g) Opportunity for resolution of the complaint. (1) The
administrative judge shall furnish the agent and the Board's
representative a copy of all materials obtained concerning the
complaint and provide opportunity for the agent to discuss the
materials with the Board's representative and attempt resolution of the
complaint.
(2) The complaint may be resolved by agreement of the Board and the
agent at any time pursuant to the notice and approval procedure
contained in paragraph (g)(4) of this section.
(3) If the complaint is resolved, the terms of the resolution shall
be reduced to writing and signed by the agent and the Board.
(4) 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 to the administrative judge. It shall state the relief,
if any, to be granted by the Board and the name and address of the EEOC
administrative judge assigned to the case. It shall state that within
30 days of the date of the notice of resolution, any member of the
class may petition the administrative judge to vacate the resolution
because it benefits only the class agent, or is otherwise not fair,
adequate and reasonable to the class as a whole. The administrative
judge shall review the notice of resolution and consider any petitions
to vacate filed. If the administrative judge finds that the proposed
resolution is not fair, adequate and reasonable to the class as a
whole, the administrative judge shall issue a decision vacating the
agreement and may replace the original class agent with a petitioner or
some other class member who is eligible to be the class agent during
further processing of the class complaint. The decision shall inform
the former class agent or the petitioner of the right to appeal the
decision to the Equal Employment Opportunity Commission and include
EEOC Form 573, Notice of Appeal/Petition. If the administrative judge
finds that the resolution is fair, adequate and reasonable to the class
as a whole, the resolution shall bind all members of the class.
(h) 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 12 CFR 268.108(a) through
(f).
(i) Report of findings and recommendations. (1) The administrative
judge shall transmit to the Board 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.
(2) If the administrative judge finds no class relief appropriate,
he or she shall determine if a finding of individual discrimination is
warranted and, if so, shall recommend appropriate relief.
(3) The administrative judge shall notify the agent of the date on
which the report of findings and recommendations was forwarded to the
Board.
(j) Board decision. (1) Within 60 days of receipt of the report of
findings and recommendations issued under Sec. 268.204(i), the Board
shall issue a final decision, which shall accept, reject, or modify the
findings and recommendations of the administrative judge.
(2) The final decision of the Board 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.
(3) When the Board's final decision is to reject or modify the
findings and recommendations of the administrative judge, the decision
shall contain specific reasons for the Board's action.
(4) If the Board has 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 Board shall transmit the final decision to the
agent within five days of the expiration of the 60-day period.
(5) The final decision of the Board shall require any relief
authorized by law and determined to be necessary or desirable to
resolve the issue of discrimination.
(6) The final decision on a class complaint shall, subject to
subpart E of this part, be binding on all members of the class and the
Board.
(7) The final decision shall inform the agent of the right to
appeal or to file a civil action in accordance with subpart E of this
part and of the applicable time limits.
(k) Notification of decision. The Board shall notify class members
of the final decision and relief awarded, if any, through the same
media 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 Board within 10
days of the transmittal of its final decision to the agent.
(1) Relief for individual class members. (1) When discrimination is
found, the Board 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 Sec. 268.501.
(2) When class-wide discrimination is not found, but it is found
that the class agent is a victim of discrimination, Sec. 268.501 shall
apply. The Board 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
Sec. 268.105(d) and process in accordance with the provisions of
subpart B of this part, each individual complaint that was subsumed
into the class complaint.
(3) When discrimination is found in the final decision and a class
member believes that he or she is entitled to individual relief, the
class member may file a written claim with the Board or the Board's EEO
Programs Director within 30 days of receipt of notification by the
Board of its final decision. Administrative judges shall retain
jurisdiction over the complaint in order to resolve any disputed claims
by class members. The claim must include a specific, detailed showing
that the claimant is a class member who was affected by the
discriminatory policy or practice, and that this discriminatory action
took place within the period of time for which the Board found class-
wide discrimination in its final decision. Where a finding of
discrimination against a class has been made, there shall be a
presumption of discrimination as to each member of the class. The Board
must show by clear and convincing evidence that any class
[[Page 18093]]
member is not entitled to relief. The administrative judge may hold a
hearing or otherwise supplement the record on a claim filed by a class
member. The Board or the Commission may find class-wide discrimination
and order remedial action for any policy or practice in existence
within 45 days of the agent's initial contact with the Counselor.
Relief otherwise consistent with this Part may be ordered for the time
the policy or practice was in effect. The Board 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 subpart E of this part and the applicable time
limits.
Sec. 268.205 Employment of noncitizens.
(a) Definitions. The definitions contained in this paragraph (a)
shall apply only to this section.
(1) Intending citizen means a citizen or national of the United
States, or a noncitizen who:
(i) Is a protected individual as defined in 8 U.S.C. 1324b(a)(3);
and
(ii) Has evidenced an intention to become a United States citizen.
(2) Noncitizen means any person who is not a citizen of the United
States.
(3) Sensitive information means:
(i)(A) Information that is classified for national security
purposes under Executive Order No. 12356 (3 CFR, 1982 Comp., p. 166),
including any amendments or superseding orders that the President of
the United States may issue from time to time;
(B) Information that consists of confidential supervisory
information of the Board, as defined in 12 CFR 261.2(c); or
(C) Information the disclosure or premature disclosure of which to
unauthorized persons may be reasonably likely to impair the formulation
or implementation of monetary policy, or cause unnecessary or
unwarranted disturbances in securities or other financial markets, such
that access to such information must be limited to persons who are
loyal to the United States.
(ii) For purposes of paragraph (a)(3)(i)(C) of this section,
information may not be deemed sensitive information merely because it
would be exempt from disclosure under the Freedom of Information Act (5
U.S.C. 552) but sensitive information must be information the
unauthorized disclosure or premature disclosure of which may be
reasonably likely to impair important functions or operations of the
Board.
(4) Sensitive position means any position of employment in which
the employee will be required to have access to sensitive information.
(b) Prohibitions--(1) Unauthorized aliens. The Board shall not hire
any person unless that person is able to satisfy the requirements of
Section 101 of the Immigration Reform and Control Act of 1986.
(2) Employment in sensitive positions. The Board shall not hire any
person to a sensitive position unless such person is a citizen of the
United States or, if a noncitizen, is an intending citizen.
(3) Preference. Consistent with the Immigration Reform and Control
Act of 1986, and other applicable law, applicants for employment at the
Board who are citizens of the United States shall be preferred over
equally qualified applicants who are not United States citizens.
(c) Exception. The prohibition of paragraph (b)(2) of this section
does not apply to hiring for positions for which a security clearance
is required under Executive Order No. 10450, including any subsequent
amendments or superseding orders that the President of the United
States may issue from time to time, where the noncitizen either has or
can obtain the necessary security clearance. Any offer of employment
authorized by this paragraph (c) shall be contingent upon receipt of
the required security clearance in the manner prescribed by law.
(d) Applicability. This section applies to employment in all
positions at the Board and to employment by Federal Reserve Banks of
examiners who must be appointed, or selected and approved by the Board
pursuant to 12 U.S.C. 325, 326, 338, or 625.
Subpart D--Related Processes
Sec. 268.301 Negotiated grievance procedure.
When an employee of the Board, which is not an agency subject to 5
U.S.C. 7121(d), is covered by a negotiated grievance procedure,
allegations of discrimination shall be processed as complaints under
this part, except that the time limits for processing the complaint
contained in Sec. 268.105 and for appeal to the Commission contained
in Sec. 268.402 may be held in abeyance during processing of a
grievance covering the same matter as the complaint if the Board
notifies the complainant in writing that the complaint will be held in
abeyance pursuant to this section.
Sec. 268.302 Mixed case complaints.
A mixed case complaint is a complaint of employment discrimination
filed with the Board based on race, color, religion, sex, national
origin, age or disability related to or stemming from an action that
can be appealed to the Merit System Protection Board (MSPB). The
complaint may contain only an allegation of employment discrimination
or it may contain additional allegations that the MSPB has jurisdiction
to address. A mixed case appeal is an appeal filed with the MSPB that
alleges that an appealable Board action was effected, in whole or in
part, because of discrimination on the basis of race, color, religion,
sex, national origin, disability or age. Only a Board employee who is a
preference eligible employee as defined by the Veterans Preference Act
can file a mixed case complaint with the Board or a mixed case appeal
with the MSPB. A mixed case complaint or mixed case appeal may only be
filed for action(s) over which the MSPB has jurisdiction. The Board
will apply sections 1614.302 to 1614.310 of 29 CFR to the processing of
a mixed case complaint or mixed case appeal.
Subpart E--Appeals to the Equal Employment Opportunity Commission
Sec. 268.401 Appeals to the Equal Employment Opportunity Commission.
(a) A complainant may appeal the Board's final action or dismissal
of a complaint.
(b) The Board may appeal as provided in Sec. 268.109(a).
(c) A class agent or the Board may appeal an 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 Board
may appeal a final decision on a petition pursuant to Sec.
268.204(g)(4).
(d) A complainant, agent of the class or individual class claimant
may appeal to the Commission the Board's alleged noncompliance with a
settlement agreement or final decision in accordance with Sec.
268.504.
Sec. 268.402 Time for appeals to the Equal Employment Opportunity
Commission.
(a) Appeals described in Sec. 268.401(a) and (c) must be filed
within 30 days of receipt of the dismissal, final action or decision.
Appeals described in Sec. 268.401(b) must be filed within 40 days of
receipt of the hearing file and decision. Where a complainant has
notified the Board's EEO Programs Director of alleged noncompliance
with a settlement agreement in accordance
[[Page 18094]]
with Sec. 268.504, 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 Board's determination.
(b) If the complainant is represented by an attorney of record,
then the 30-day time period provided in paragraph (a) of this section
within which to appeal shall be calculated from the receipt of the
required document by the attorney. In all other instances, the time
within which to appeal shall be calculated from the receipt of the
required document by the complainant.
Sec. 268.403 How to appeal.
(a) The complainant, the Board, agent or individual class claimant
(hereinafter appellant) must file an appeal with the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, at PO
Box 19848, Washington, DC 20036, or by personal delivery or facsimile.
The appellant should use EEOC Form 573, Notice of Appeal/Petition, and
should indicate what is being appealed.
(b) The appellant shall furnish a copy of the appeal to the
opposing party at the same time it is filed with the Commission. In or
attached to the appeal to the Commission, the appellant must certify
the date and method by which service was made on the opposing party.
(c) If an appellant does not file an appeal within the time limits
of this subpart, the appeal shall be dismissed by the Commission as
untimely.
(d) Any statement or brief on behalf of a complainant in support of
the appeal must be submitted to the Office of Federal Operations within
30 days of filing the notice of appeal. Any statement or brief on
behalf of the Board in support of its appeal must be submitted to the
Office of Federal Operations within 20 days 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.
(e) The Board 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 Board.
(f) Any statement or brief in opposition to an appeal must be
submitted to the Commission 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.
Sec. 268.404 Appellate Procedure.
(a) On behalf of the Commission, the Office of Federal Operations
shall review the complaint file and all written statements and briefs
from either party. The Commission may supplement the record by an
exchange of letters or memoranda, investigation, remand to the Board or
other procedures.
(b) If the Office of Federal Operations requests information from
one or both of the parties to supplement the record, each party
providing information shall send a copy of the information to the other
party.
(c) When either party to an appeal fails without good cause shown
to comply with the requirements of this section or to respond fully and
in timely fashion to requests for information, the Office of Federal
Operations shall, in appropriate circumstances:
(1) Draw an adverse inference that the requested information 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) Issue a decision fully or partially in favor of the opposing
party; or
(4) Take such other actions as appropriate.
Sec. 268.405 Decisions on appeals.
(a) The Office of Federal Operations, on behalf of the Commission,
shall issue a written decision setting forth its reasons for the
decision. The Commission shall dismiss appeals in accordance with
Sec. Sec. 268.106, 268.403(c) and 268.408. The decision on an appeal
from the Board's final action shall be based on a de novo review,
except that the review of the factual findings in a decision by an
administrative judge issued pursuant to Sec. 268.108(i) shall be based
on a substantial evidence standard of review. If the decision contains
a finding of discrimination, appropriate remedy(ies) shall be included
and, where appropriate, the entitlement to interest, attorney's fees or
costs shall be indicated. The decision shall reflect the date of its
issuance, inform the complainant of his or her civil action rights, and
be transmitted to the complainant and the Board by first class mail.
(b) A decision issued under paragraph (a) of this section is final,
subject to paragraph (c) of this section, within the meaning of Sec.
268.406 unless the Commission reconsiders the case. A party may request
reconsideration within 30 days of receipt of a decision of the
Commission, which the Commission 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 Board.
(c) The Board, within 30 days of receiving the decision of the
Commission, shall issue a final decision based upon that decision.
Sec. 268.406 Civil action: Title VII, Age Discrimination in
Employment Act and Rehabilitation Act.
A complainant who has filed an individual complaint, an agent who
has filed a class complaint or a claimant who has filed a claim for
individual relief pursuant to a class complaint is authorized under
title VII, the ADEA and the Rehabilitation Act to file a civil action
in an appropriate United States District Court:
(a) Within 90 days of receipt of the final action on an individual
or class complaint if no appeal has been filed;
(b) After 180 days from the date of filing an individual or class
complaint if an appeal has not been filed and final action has not been
taken;
(c) Within 90 days of receipt of the Commission's final decision on
an appeal; or
(d) After 180 days from the date of filing an appeal with the
Commission if there has been no final decision by the Commission.
Sec. 268.407 Civil action: Equal Pay Act.
A complainant is authorized under section 16(b) of the Fair Labor
Standards Act (29 U.S.C. 216(b)) to file a civil action in a court of
competent jurisdiction within two years or, if the violation is
willful, three years of the date of the alleged violation of the Equal
Pay Act regardless of whether he or she pursued any administrative
complaint processing. Recovery of back wages is limited to two years
prior to the date of filing suit, or to three years if the violation is
deemed willful; liquidated damages in an equal amount may also be
awarded. The filing of a complaint or appeal under this part shall not
toll the time for filing a civil action.
Sec. 268.408 Effect of filing a civil action.
Filing a civil action under Sec. Sec. 268.406 or 268.407 shall
terminate Commission processing of the appeal. If private suit is filed
subsequent to the filing of an
[[Page 18095]]
appeal, the parties are requested to notify the Commission in writing.
Subpart F--Remedies and Enforcement
Sec. 268.501 Remedies and relief.
(a) When the Board, or the Commission, in an individual case of
discrimination, finds that an applicant or an employee has been
discriminated against, the Board shall provide full relief which shall
include the following elements in appropriate circumstances:
(1) Notification to all employees of the Board in the affected
facility of their right to be free of unlawful discrimination and
assurance that the particular types of discrimination found will not
recur;
(2) Commitment that corrective, curative or preventive action will
be taken, or measures adopted, to ensure that violations of the law
similar to those found unlawful will not recur;
(3) An unconditional offer to each identified victim of
discrimination of placement in the position the person would have
occupied but for the discrimination suffered by that person, or a
substantially equivalent position;
(4) Payment to each identified victim of discrimination on a make
whole basis for any loss of earnings the person may have suffered as a
result of the discrimination; and
(5) Commitment that the Board shall cease from engaging in the
specific unlawful employment practice found in the case.
(b) Relief for an applicant. (1)(i) When the Board, or the
Commission, finds that an applicant for employment has been
discriminated against, the Board shall offer the applicant the position
that the applicant would have occupied absent discrimination or, if
justified by the circumstances, a substantially equivalent position
unless clear and convincing evidence indicates that the applicant would
not have been selected even absent the discrimination. The offer shall
be made in writing. The individual shall have 15 days from receipt of
the offer within which to accept or decline the offer. Failure to
accept the offer within the 15-day period will be considered a
declination of the offer, unless the individual can show that
circumstances beyond his or her control prevented a response within the
time limit.
(ii) If the offer is accepted, appointment shall be retroactive to
the date the applicant would have been hired. Back pay, computed in the
manner prescribed in 5 CFR 550.805, shall be awarded from the date the
individual would have entered on duty until the date the individual
actually enters on duty unless clear and convincing evidence indicates
that the applicant would not have been selected even absent
discrimination. Interest on back pay shall be included in the back pay
computation where sovereign immunity has been waived. The individual
shall be deemed to have performed service for the Board during this
period for all purposes except for meeting service requirements for
completion of a required probationary or trial period.
(iii) If the offer of employment is declined, the Board shall award
the individual a sum equal to the back pay he or she would have
received, computed in the manner prescribed in 5 CFR 550.805, from the
date he or she would have been appointed until the date the offer was
declined, subject to the limitation of paragraph (b)(3) of this
section. Interest on back pay shall be included in the back pay
computation. The Board shall inform the applicant, in its offer of
employment, of the right to this award in the event the offer is
declined.
(2) When the Board, or the Commission, finds that discrimination
existed at the time the applicant was considered for employment but
also finds by clear and convincing evidence that the applicant would
not have been hired even absent discrimination, the Board shall
nevertheless take all steps necessary to eliminate the discriminatory
practice and ensure it does not recur.
(3) Back pay under this paragraph (b) for complaints under title
VII or the Rehabilitation Act may not extend from a date earlier than
two years prior to the date on which the complaint was initially filed
by the applicant.
(c) Relief for an employee. When the Board, or the Commission,
finds that an employee of the Board was discriminated against, the
Board shall provide relief, which shall include, but need not be
limited to, one or more of the following actions:
(1) Nondiscriminatory placement, with back pay computed in the
manner prescribed in 5 CFR 550.805, unless clear and convincing
evidence contained in the record demonstrates that the personnel action
would have been taken even absent the discrimination. Interest on back
pay shall be included in the back pay computation where sovereign
immunity has been waived. The back pay liability under title VII or the
Rehabilitation Act is limited to two years prior to the date the
discrimination complaint was filed.
(2) If clear and convincing evidence indicates that, although
discrimination existed at the time the personnel action was taken, the
personnel action would have been taken even absent discrimination, the
Board shall nevertheless eliminate any discriminatory practice and
ensure it does not recur.
(3) Cancellation of an unwarranted personnel action and restoration
of the employee.
(4) Expunction from the Board's records of any adverse materials
relating to the discriminatory employment practice.
(5) Full opportunity to participate in the employee benefit denied
(e.g., training, preferential work assignments, overtime scheduling).
(d) The Board has the burden of proving by a preponderance of the
evidence that the complainant has failed to mitigate his or her
damages.
(e) Attorney's fees or costs--(1) Awards of attorney's fees or
costs. The provisions of this paragraph relating to the award of
attorney's fees or costs shall apply to allegations of discrimination
prohibited by title VII and the Rehabilitation Act. In a decision or
final action, the Board, administrative judge, or Commission may award
the applicant or employee or reasonable attorney's fees (including
expert witness fees) and other costs incurred in the processing of the
complaint.
(i) A finding of discrimination raises a presumption of entitlement
to an award of attorney's fees.
(ii) Any award of attorney's fees or costs shall be paid by the
Board.
(iii) Attorney's fees are allowable only for the services of
members of the Bar and law clerks, paralegals or law students under the
supervision of members of the Bar, except that no award is allowable
for the services of any employee of the Federal Government.
(iv) 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 Board,
administrative judge or Commission, 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 Board is not required to pay attorney's fees for
services performed during the pre-complaint process, except that fees
are allowable when the Commission affirms on appeal an administrative
judge's decision finding discrimination after the Board takes final
action by not implementing an administrative judge's decision. Written
submissions to the
[[Page 18096]]
Board that are signed by the representative shall be deemed to
constitute notice of representation.
(2) Amount of awards. (i) When the Board, administrative judge or
the Commission determines an entitlement to attorney's fees or costs,
the complainant's attorney shall submit a verified statement of
attorney's fees (including expert witness fees) and other costs, as
appropriate, to the Board or administrative judge within 30 days of
receipt of the decision and shall submit a copy of the statement to the
Board. A statement of attorney's fees and costs shall be accompanied by
an affidavit executed by the attorney of record itemizing the
attorney's charges for legal services. The Board may respond to a
statement of attorney's fees and costs within 30 days of its receipt.
The verified statement, accompanying affidavit and any Board response
shall be made a part of the complaint file.
(ii)(A) The Board or administrative judge shall issue a decision
determining the amount of attorney's fees or costs due within 60 days
of receipt of the statement and affidavit. The decision shall include a
notice of right to appeal to the EEOC along with EEOC Form 573, Notice
of Appeal/Petition and shall include the specific reasons for
determining the amount of the award.
(B) The amount of attorney's fees shall be calculated using the
following standards: The starting point shall be the number of hours
reasonably expended multiplied by a reasonable hourly rate. There is a
strong presumption that this amount represents the reasonable fee. In
limited circumstances, this amount may be reduced or increased in
consideration of the degree of success, quality of representation, and
long delay caused by the Board.
(C) The costs that may be awarded are those authorized by 28 U.S.C.
1920 to include: Fees of the reporter for all or any of the
stenographic transcript necessarily obtained for use in the case; fees
and disbursements for printing and witnesses; and fees for
exemplification and copies necessarily obtained for use in the case.
(iii) Witness fees shall be awarded in accordance with the
provisions of 28 U.S.C. 1821, except that no award shall be made for a
Federal employee who is in a duty status when made available as a
witness.
Sec. 268.502 Compliance with final Commission decisions.
(a) Relief ordered in a final Commission decision, if accepted
pursuant to Sec. 268.405(c) as a final decision, or not acted upon the
Board within the time periods of Sec. 268.405(c), is mandatory and
binding on the Board except as provided in this section. Failure to
implement ordered relief shall be subject to judicial enforcement as
specified in Sec. 268.503(f).
(b) Notwithstanding paragraph (a) of this section, when the Board
requests reconsideration and the case involves removal, separation, or
a suspension continuing beyond the date of the request for
reconsideration, and when the decision orders retroactive restoration,
the Board shall comply with the decision to the extent of the temporary
or conditional restoration of the employee to duty status in the
position specified by the Commission, pending the outcome of the
Board's request for reconsideration.
(1) Service under the temporary or conditional restoration
provisions of this paragraph (b) shall be credited toward the
completion of a probationary or trial period or the completion of the
service requirement for career tenure, if the Commission upholds its
decision after reconsideration.
(2) When the Board requests reconsideration, it may delay the
payment of any amounts ordered to be paid to the complainant until
after the request for reconsideration is resolved. If the Board delays
payment of any amount pending the outcome of the request to reconsider
and the resolution of the request requires the Board to make the
payment, then the Board shall pay interest from the date of the
original appellate decision until payment is made.
(3) The Board shall notify the Commission and the employee in
writing at the same time it requests reconsideration that the relief it
provides is temporary or conditional and, if applicable, that it will
delay the payment of any amounts owed but will pay interest as
specified in paragraph (b)(2) of this section. Failure of the Board to
provide notification will result in the dismissal of the Board's
request.
(c) When no request for reconsideration is filed or when a request
for reconsideration is denied, the Board 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. 268.503 Enforcement of final EEOC decisions.
(a) Petition for enforcement. A complainant may petition the
Commission for enforcement of a decision issued under the Commission's
appellate jurisdiction. The petition shall be submitted to the Office
of Federal Operations. The petition shall specifically set forth the
reasons that lead the complainant to believe that the Board is not
complying with the decision.
(b) Compliance. On behalf of the Commission, the Office of Federal
Operations shall take all necessary action to ascertain whether the
Board is implementing the decision of the Commission. If the Board is
found not to be in compliance with the decision, efforts shall be
undertaken to obtain compliance.
(c) Clarification. On behalf of the Commission, the Office of
Federal Operations may, on its own motion or in response to a petition
for enforcement or in connection with a timely request for
reconsideration, issue a clarification of a prior decision. A
clarification cannot change the result of a prior decision or enlarge
or diminish the relief ordered but may further explain the meaning or
intent of the prior decision.
(d) Referral to the Commission. 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 Commission, or, as directed by
the Commission, refer the matter to another appropriate agency.
(e) Commission notice to show cause. The Commission may issue a
notice to the Chairman of the Board to show cause why there is
noncompliance. Such notice may request the Chairman of the Board or a
representative to appear before the Commission or to respond to the
notice in writing with adequate evidence of compliance or with
compelling reasons for noncompliance.
(f) Notification to complainant of completion of administrative
efforts. Where the Commission has determined that the Board is not
complying with a prior decision, or where the Board has failed or
refused to submit any required report of compliance, the Commission
shall notify the complainant 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
Board's refusal to implement the ordered relief pursuant to the
Administrative Procedures Act, 5 U.S.C. 701 et seq., and the mandamus
statute, 28 U.S.C. 1361, or to commence de novo proceedings pursuant to
the appropriate statutes.
[[Page 18097]]
Sec. 268.504 Compliance with settlement agreements and final actions.
(a) 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 a civil action shall be binding on the Board. If the
complainant believes that the Board has failed to comply with the terms
of a settlement agreement or decision, the complainant shall notify the
Board's EEO Programs Director, 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.
(b) The Board shall resolve the matter and respond to the
complainant, in writing. If the Board has not responded to the
complainant, in writing, or if the complainant is not satisfied with
the Board's attempt to resolve the matter, the complainant may appeal
to the Commission for a determination as to whether the Board has
complied with the terms of the settlement agreement or decision. The
complainant may file such an appeal 35 days after he or she has served
the Board with the allegations of noncompliance, but must file an
appeal within 30 days of his or her receipt of the Board's
determination. The complainant must serve a copy of the appeal on the
Board and the Board may submit a response to the Commission within 30
days of receiving notice of the appeal.
(c) Prior to rendering its determination, the Commission may
request that the parties submit whatever additional information or
documentation it deems necessary or may direct that an investigation or
hearing on the matter be conducted. If the Commission determines that
the Board is not in compliance and the noncompliance is not
attributable to acts or conduct of the complainant, it may order such
compliance or it may order that the complaint be reinstated for further
processing from the point processing ceased. Allegations that
subsequent acts of discrimination violate a settlement agreement shall
be processed as separate complaints under Sec. Sec. 268.105 or
268.204, as appropriate, rather than under this section.
Sec. 268.505 Interim relief.
(a)(1) When the Board appeals and the case involves removal,
separation, or suspension continuing beyond the date of the appeal, and
when the administrative judge orders retroactive restoration, the Board
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 Board appeal. The
employee may decline the offer of interim relief.
(2) Service under the temporary or conditional restoration
provisions of paragraph (a)(1) 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 Commission 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 Commission reverses the decision
on appeal.
(3) When the Board appeals, it 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 Board delays
payment of any amount pending the outcome of the appeal and the
resolution of the appeal requires the Board to make the payment, then
the Board shall pay interest from the date of the original decision
until payment is made.
(4) The Board shall notify the Commission and the employee in
writing at the same time it appeals that the relief it provides is
temporary or conditional and, if applicable, that it will delay the
payment of any amounts owed but will pay interest as specified in
paragraph (b)(2) of this section. Failure of the Board to provide
notification will result in the dismissal of the Board's appeal.
(5) The Board may, by notice to the complainant, decline to return
the complainant to his or her place of employment if it 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 his or her
place of employment is not reviewable. A grant of interim relief does
not insulate a complainant from subsequent disciplinary or adverse
action.
(b) If the Board files an appeal and has not provided required
interim relief, the complainant may request dismissal of the Board's
appeal. Any such request must be filed with the Office of Federal
Operations within 25 days of the date of service of the Board's appeal.
A copy of the request must be served on the Board at the same time it
is filed with EEOC. The Board may respond with evidence and argument to
the complainant's request to dismiss within 15 days of the date of
service of the request.
Subpart G--Matters of General Applicability
Sec. 268.601 EEO group statistics.
(a) The Board shall establish a system to collect and maintain
accurate employment information on the race, national origin, sex and
disability(ies) of its employees.
(b) Data on race, national origin and sex shall be collected by
voluntary self-identification. If an employee does not voluntarily
provide the requested information, the Board shall advise the employee
of the importance of the data and of the Board's obligation to report
it. If the employee still refuses to provide the information, the Board
must make a visual identification and inform the employee of the data
it will be reporting. If the Board believes that information provided
by an employee is inaccurate, the Board shall advise the employee about
the solely statistical purpose for which the data is being collected,
the need for accuracy, the Board's recognition of the sensitivity of
the information and the existence of procedures to prevent its
unauthorized disclosure. If, thereafter, the employee declines to
change the apparently inaccurate self identification, the Board must
accept it.
(c) Subject to applicable law, the information collected under
paragraph (b) of this section shall be disclosed only in the form of
gross statistics. The Board shall not collect or maintain any
information on the race, national origin or sex of individual employees
except in accordance with applicable law and when an automated data
processing system is used in accordance with standards and requirements
prescribed by the Commission to insure individual privacy and the
separation of that information from personnel records.
(d) The Board's system is subject to the following controls:
(1) Only those categories of race and national origin prescribed by
the Commission may be used;
(2) Only the specific procedures for the collection and maintenance
of data that are prescribed or approved by the Commission may be used.
(e) The Board may use the data only in studies and analyses which
contribute affirmatively to achieving the objectives of the Board's
equal employment opportunity program. The Board shall not establish a
quota for the
[[Page 18098]]
employment of persons on the basis of race, color, religion, sex, or
national origin.
(f) Data on disabilities shall also be collected by voluntary self-
identification. If an employee does not voluntarily provide the
requested information, the Board shall advise the employee of the
importance of the data and of the Board's obligation to report it. If
an employee who has been appointed pursuant to a special Board program
for hiring individuals with a disability still refuses to provide the
requested information, the Board must identify the employee's
disability based upon the records supporting the appointment. If any
other employee still refuses to provide the requested information or
provides information that the Board believes to be inaccurate, the
Board should report the employee's disability status as unknown.
(g) The Board shall report to the Commission on employment by race,
national origin, sex and disability in the form and at such times as
the Board and Commission shall agree.
Sec. 268.602 Reports to the Commission.
(a) The Board shall report to the Commission 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
Board and Commission shall agree.
(b) The Board shall advise the Commission whenever it is served
with a Federal court complaint based upon a complaint that is pending
on appeal at the Commission.
(c) The Board shall submit annually for the review and approval of
the Commission written equal employment opportunity plans of action.
Plans shall be submitted in the format prescribed by the Commission and
shall include, but not be limited to:
(1) Provision for the establishment of training and education
programs designed to provide maximum opportunity for employees to
advance so as to perform at their highest potential;
(2) Description of the qualifications, in terms of training and
experience relating to equal employment opportunity, of the principal
and operating officials concerned with administration of the Board's
equal employment opportunity program; and
(3) Description of the allocation of personnel and resources
proposed by the Board to carry out its equal employment opportunity
program.
Sec. 268.603 Voluntary settlement attempts.
The Board 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. Any settlement reached shall be in writing
and signed by both parties and shall identify the claims resolved.
Sec. 268.604 Filing and computation of time.
(a) All time periods in this part that are stated in terms of days
are calendar days unless otherwise stated.
(b) A document shall be deemed timely if it is received or
postmarked before the expiration of the applicable filing period, or,
in the absence of a legible postmark, if it is received by mail within
five days of the expiration of the applicable filing period.
(c) The time limits in this part are subject to waiver, estoppel
and equitable tolling.
(d) 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 it falls on a Saturday, Sunday or Federal
holiday, in which case the period shall be extended to include the next
business day.
Sec. 268.605 Representation and official time.
(a) At any stage in the processing of a complaint, including the
counseling stage under Sec. 268.104, the complainant shall have the
right to be accompanied, represented, and advised by a representative
of complainant's choice.
(b) If the complainant is an employee of the Board, he or she shall
have a reasonable amount of official time, if otherwise on duty, to
prepare the complaint and to respond to Board and EEOC requests for
information. If the complainant is an employee of the Board and he
designates another employee of the Board as his or her representative,
the representative shall have a reasonable amount of official time, if
otherwise on duty, to prepare the complaint and respond to Board and
EEOC requests for information. The Board 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
representative, if employed by the Board 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 Board or the Commission
during the investigation, informal adjustment, or hearing on the
complaint.
(c) In cases where the representation of a complainant or the Board
would conflict with the official or collateral duties of the
representative, the Commission or the Board may, after giving the
representative an opportunity to respond, disqualify the
representative.
(d) Unless the complainant states otherwise in writing, after the
Board has received written notice of the name, address and telephone
number of a representative for the complainant, all official
correspondence shall be with the representative with copies to the
complainant. When the complainant designates an attorney as
representative, service of all official correspondence shall be made on
the attorney and the complainant, but time frames for receipt of
material shall be computed from the time of receipt by the attorney.
The complainant must serve all official correspondence on the
designated representative of the Board.
(e) The complainant shall at all times be responsible for
proceeding with the complaint whether or not he or she has designated a
representative.
(f) Witnesses who are Board employees shall be in a duty status
when their presence is authorized or required by Commission or Board
officials in connection with a complaint.
Sec. 268.606 Joint processing and consolidation of complaints.
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 Board or the
Commission for joint processing after appropriate notification to the
parties. Two or more complaints of discrimination filed by the same
complainant shall be consolidated by the Board for joint processing
after appropriate notification to the complainant. When a complaint has
been consolidated with one or more earlier filed complaints, the Board
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 administrative judge on the consolidated complaints any time
after 180 days from the date of the first filed complaint.
Administrative judges or the Commission may, in their discretion,
consolidate two or more complaints of discrimination filed by the same
complainant.
[[Page 18099]]
Sec. 268.607 Delegation of authority.
The Board of Governors may delegate authority under this part, to
one or more designees.
Subpart H--Prohibition Against Discrimination in Board Programs and
Activities Because of Physical or Mental Disability
Sec. 268.701 Purpose and application.
(a) Purpose. The purpose of this subpart H is to prohibit
discrimination on the basis of a disability in programs or activities
conducted by the Board.
(b) Application. (1) This subpart H applies to all programs and
activities conducted by the Board. Such programs and activities
include:
(i) Holding open meetings of the Board or other meetings or public
hearings at the Board's office in Washington, DC;
(ii) Responding to inquiries, filing complaints, or applying for
employment at the Board's office;
(iii) Making available the Board's library facilities; and
(iv) Any other lawful interaction with the Board or its staff in
any official matter with people who are not employees of the Board.
(2) This subpart H does not apply to Federal Reserve Banks or to
financial institutions or other companies supervised or regulated by
the Board.
Sec. 268.702 Definitions.
For purposes of this subpart, the following definitions apply:
(a) Auxiliary aids means services or devices that enable persons
with impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the Board. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with
hearing aids, telecommunication devices for deaf persons (TDD's),
interpreters, notetakers, written materials, and other similar services
and devices.
(b) Complete complaint means a written statement that contains the
complainant's name and address and describes the Board's alleged
discriminatory action in sufficient detail to inform the Board of the
nature and date of the alleged violation. It shall be signed by the
complainant or by someone authorized to do so on his or her behalf.
Complaints filed on behalf of classes or third parties shall describe
or identify (by name, if possible) the alleged victims of
discrimination.
(c) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
(d) Person with a disability means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as
having such an impairment. As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one of more of the
following body systems: Neurological; musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and
endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, and drug
addiction and alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Board as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward such impairment; or
(iii) Has none of the impairments defined in paragraph (d)(1) of
this section but is treated by Board as having such an impairment.
(e) Qualified person with a disability means--
(1) With respect to any Board program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, a person with a disability who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
Board can demonstrate would result in a fundamental alteration in its
nature; or
(2) With respect to any other program or activity, a person with a
disability who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or
activity.
(3) Qualified individual with a disability is defined for purposes
of employment in Sec. 268.203 of this part, which is made applicable
to this subpart by Sec. 268.705.
Sec. 268.703 Notice.
The Board shall make available to employees, applicants for
employment, participants, beneficiaries, and other interested persons
information regarding the provisions of this subpart and its
applicability to the programs and activities conducted by the Board,
and make this information available to them in such manner as the Board
finds necessary to apprise such persons of the protections against
discrimination assured them by this subpart.
Sec. 268.704 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, on the basis
of a disability, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination in any program
or activity conducted by the Board.
(b)(1) The Board, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of a disability:
(i) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefit, or service that is
not equal to that provided to others;
(ii) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, or service that is
not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
[[Page 18100]]
(iv) Provide different or separate aid, benefits, or services to
individuals with a disability or to any class of individuals with a
disability than is provided to others unless such action is necessary
to provide qualified individuals with a disability with aid, benefits,
or services that are as effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with a disability in
the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving the aid, benefit, or service.
(2) The Board may not deny a qualified individual with a disability
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The Board may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration, the
purpose or effect of which would:
(i) Subject qualified individuals with a disability to
discrimination on the basis of a disability; or
(ii) Defeat or substantially impair accomplishment of the
objectives of a program or activity with respect to individuals with a
disability.
(4) The Board may not, in determining the site or location of a
facility, make selections the purpose or effect of which would:
(i) Exclude individuals with a disability from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by the Board; or
(ii) Defeat or substantially impair the accomplishment of the
objectives or a program or activity with respect to individuals with a
disability.
(5) The Board, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with a disability to
discrimination on the basis of a disability.
(6) The Board may not administer a licensing or certification
program in a manner that subjects qualified individuals with a
disability to discrimination on the basis of a disability, nor may the
Board establish requirements for the programs and activities of
licensees or certified entities that subject qualified individuals with
a disability to discrimination on the basis of a disability. However,
the programs and activities of entities that are licensed or certified
by the Board are not, themselves, covered by this subpart.
(c) The exclusion of individuals who do not have a disability from
the benefits of a program limited by Federal statute or Board order to
individuals with a disability or the exclusion of a specific class of
individuals with a disability from a program limited by Federal statute
or Board order to a different class of individuals with a disability is
not prohibited by this subpart.
(d) The Board shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with a disability.
Sec. 268.705 Employment.
No qualified individual with a disability shall, on the basis of a
disability, be subjected to discrimination in employment under any
program or activity conducted by the Board. The definitions,
requirements and procedures of Sec. 268.203 of this part shall apply
to discrimination in employment in federally conducted programs or
activities.
Sec. 268.706 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 268.707 of this subpart, no
qualified individual with a disability shall, because the Board's
facilities are inaccessible to or unusable by individuals with a
disability, be denied the benefits of, be excluded from participation
in, or otherwise be subjected to discrimination under any program or
activity conducted by the Board.
Sec. 268.707 Program accessibility: Existing facilities.
(a) General. The Board shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with a disability. This
paragraph (a) does not:
(1) Necessarily require the Board to make each of its existing
facilities accessible to and usable by individuals with a disability;
or
(2) Require the Board to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where the Board believes that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, the Board has the burden of
proving that compliance with this paragraph (a) would result in such
alterations or burdens. The decision that compliance would result in
such alterations or burdens shall be made by the Board of Governors or
their designee after considering all Board resources available for use
in the funding and operation of the conducted program or activity, and
must be accompanied by a written statement of the reasons for reaching
that conclusion. If an action would result in such an alteration or
such burdens, the Board shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that individuals with a disability receive the benefits and
services of the program or activity.
(b) Methods. The Board may comply with the requirements of this
subpart H through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to individuals
with a disability, home visits, delivery of service at alternate
accessible sites, alteration of existing facilities and construction of
new facilities, use of accessible rolling stock, or any other methods
that result in making its programs or activities readily accessible to
and usable by individuals with a disability. The Board is not required
to make structural changes in existing facilities where other methods
are effective in achieving compliance with this section. In choosing
among available methods for meeting the requirements of this section,
the Board shall give priority to those methods that offer programs and
activities to qualified individuals with a disability in the most
integrated setting appropriate.
(c) Time period for compliance. The Board shall comply with any
obligations established under this section as expeditiously as
possible.
Sec. 268.708 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the Board shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with a disability.
Sec. 268.709 Communications.
(a) The Board shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The Board shall furnish appropriate auxiliary aids where
necessary to afford an individual with a
[[Page 18101]]
disability an equal opportunity to participate in, and enjoy the
benefits of, a program or activity conducted by the Board.
(i) In determining what type of auxiliary aid is necessary, the
Board shall give primary consideration to the requests of the
individual with a disability.
(ii) The Board need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the Board communicates with employees and others by
telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used.
(b) The Board shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The Board shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the Board to take any action that
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where the Board believes that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, the Board has the burden of
proving that compliance with section 268.709 would result in such
alterations or burdens. The determination that compliance would result
in such alteration or burdens must be made by the Board of Governors or
their designee after considering all Board resources available for use
in the funding and operation of the conducted program or activity, and
must be accompanied by a written statement of the reasons for reaching
that conclusion. If an action required to comply with this section
would result in such an alteration or such burdens, the Board shall
take any other action that would not result in such an alteration or
such burdens but would nevertheless ensure that, to the maximum extent
possible, individuals with a disability receive the benefits and
services of the program or activity.
Sec. 268.710 Compliance procedures.
(a) Applicability. Except as provided in paragraph (b) of this
section, this section, rather than subpart B and Sec. 268.203 of this
part, applies to all allegations of discrimination on the basis of a
disability in programs or activities conducted by the Board.
(b) Employment complaints. The Board shall process complaints
alleging discrimination in employment on the basis of a disability in
accordance with subparts A through G of this part.
(c) Responsible official. The EEO Programs Director shall be
responsible for coordinating implementation of this section.
(d) Filing the complaint--(1) Who may file. Any person who believes
that he or she has been subjected to discrimination prohibited by this
subpart may, personally or by his or her authorized representative,
file a complaint of discrimination with the EEO Programs Director.
(2) Confidentiality. The EEO Programs Director shall not reveal the
identity of any person submitting a complaint, except when authorized
to do so in writing by the complainant, and except to the extent
necessary to carry out the purposes of this subpart , including the
conduct of any investigation, hearing, or proceeding under this
subpart.
(3) When to file. Complaints shall be filed within 180 days of the
alleged act of discrimination. The EEO Programs Director may extend
this time limit for good cause shown. For the purpose of determining
when a complaint is timely filed under this paragraph (d), a complaint
mailed to the Board shall be deemed filed on the date it is postmarked.
Any other complaint shall be deemed filed on the date it is received by
the Board.
(4) How to file. Complaints may be delivered or mailed to the
Administrative Governor, the Staff Director for Management, the EEO
Programs Director, the Federal Women's Program Manager, the Hispanic
Employment Program Coordinator, or the People with Disabilities Program
Coordinator. Complaints should be sent to the EEO Programs Director,
Board of Governors of the Federal Reserve System, 20th and C Street
NW., Washington, DC 20551. If any Board official other than the EEO
Programs Director receives a complaint, he or she shall forward the
complaint to the EEO Programs Director.
(e) Acceptance of complaint. (1) The EEO Programs Director shall
accept a complete complaint that is filed in accordance with paragraph
(d) of this section and over which the Board has jurisdiction. The EEO
Programs Director shall notify the complainant of receipt and
acceptance of the complaint.
(2) If the EEO Programs Director receives a complaint that is not
complete, he or she shall notify the complainant, within 30 days of
receipt of the incomplete complaint, that additional information is
needed. If the complainant fails to complete the complaint within 30
days of receipt of this notice, the EEO Programs Director shall dismiss
the complaint without prejudice.
(3) If the EEO Programs Director receives a complaint over which
the Board does not have jurisdiction, the EEO Programs Director shall
notify the complainant and shall make reasonable efforts to refer the
complaint to the appropriate government entity.
(f) Investigation/conciliation. (1) Within 180 days of the receipt
of a complete complaint, the EEO Programs Director shall complete the
investigation of the complaint, attempt informal resolution of the
complaint, and if no informal resolution is achieved, the EEO Programs
Director shall forward the investigative report to the Staff Director
for Management.
(2) The EEO Programs Director may request Board employees to
cooperate in the investigation and attempted resolution of complaints.
Employees who are requested by the EEO Programs Director to participate
in any investigation under this section shall do so as part of their
official duties and during the course of regular duty hours.
(3) The EEO Programs Director shall furnish the complainant with a
copy of the investigative report promptly after completion of the
investigation and provide the complainant with an opportunity for
informal resolution of the complaint.
(4) If a complaint is resolved informally, the terms of the
agreement shall be reduced to writing and made a part of the complaint
file, with a copy of the agreement provided to the complainant. The
written agreement may include a finding on the issue of discrimination
and shall describe any corrective action to which the complainant has
agreed.
(g) Letter of findings. (1) If an informal resolution of the
complaint is not reached, the EEO Programs Director shall transmit the
complaint file to the Staff Director for Management. The Staff Director
for Management shall, within 180 days of the receipt of the complete
complaint by the EEO Programs Director, notify the complainant of the
results of the investigation in a letter sent by certified mail, return
receipt requested, containing:
[[Page 18102]]
(i) Findings of fact and conclusions of law;
(ii) A description of a remedy for each violation found;
(iii) A notice of right of the complainant to appeal the letter of
findings under paragraph (k) of this section; and
(iv) A notice of right of the complainant to request a hearing.
(2) If the complainant does not file a notice of appeal or does not
request a hearing within the times prescribed in paragraph (h)(1) and
(j)(1) of this section, the EEO Programs Director shall certify that
the letter of findings under this paragraph (g) is the final decision
of the Board at the expiration of those times.
(h) Filing an appeal. (1) Notice of appeal, with or without a
request for hearing, shall be filed by the complainant with the EEO
Programs Director within 30 days of receipt from the Staff Director for
Management of the letter of findings required by paragraph (g) of this
section.
(2) If the complainant does not request a hearing, the EEO Programs
Director shall notify the Board of Governors of the appeal by the
complainant and that a decision must be made under paragraph (k) of
this section.
(i) Acceptance of appeal. The EEO Programs Director shall accept
and process any timely appeal. A complainant may appeal to the
Administrative Governor from a decision by the EEO Programs Director
that an appeal is untimely. This appeal shall be filed within 15
calendar days of receipt of the decision from the EEO Programs
Director.
(j) Hearing. (1) Notice of a request for a hearing, with or without
a request for an appeal, shall be filed by the complainant with the EEO
Programs Director within 30 days of receipt from the Staff Director for
Management of the letter of findings required by paragraph (g) of this
section. Upon a timely request for a hearing, the EEO Programs Director
shall request that the Board of Governors, or its designee, appoint an
administrative law judge to conduct the hearing. The administrative law
judge shall issue a notice to the complainant and the Board specifying
the date, time, and place of the scheduled hearing. The hearing shall
be commenced no earlier than 15 calendar days after the notice is
issued and no later than 60 days after the request for a hearing is
filed, unless all parties agree to a different date.
(2) The hearing, decision, and any administrative review thereof
shall be conducted in conformity with 5 U.S.C. 554-557. The
administrative law judge shall have the duty to conduct a fair hearing,
to take all necessary actions to avoid delay, and to maintain order. He
or she shall have all powers necessary to these ends, including (but
not limited to) the power to:
(i) Arrange and change the dates, times, and places of hearings and
prehearing conferences and to issue notice thereof;
(ii) Hold conferences to settle, simplify, or determine the issues
in a hearing, or to consider other matters that may aid in the
expeditious disposition of the hearing;
(iii) Require parties to state their positions in writing with
respect to the various issues in the hearing and to exchange such
statements with all other parties;
(iv) Examine witnesses and direct witnesses to testify;
(v) Receive, rule on, exclude, or limit evidence;
(vi) Rule on procedural items pending before him or her; and
(vii) Take any action permitted to the administrative law judge as
authorized by this subpart G or by the provisions of the Administrative
Procedures Act (5 U.S.C. 554-557).
(3) Technical rules of evidence shall not apply to hearings
conducted pursuant to this paragraph (j), but rules or principles
designed to assure production of credible evidence and to subject
testimony to cross-examination shall be applied by the administrative
law judge wherever reasonably necessary. The administrative law judge
may exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties, and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record.
(4) The costs and expenses for the conduct of a hearing shall be
allocated as follows:
(i) Employees of the Board shall, upon the request of the
administrative law judge, be made available to participate in the
hearing and shall be on official duty status for this purpose. They
shall not receive witness fees.
(ii) Employees of other Federal agencies called to testify at a
hearing, at the request of the administrative law judge and with the
approval of the employing agency, shall be on official duty status
during any absence from normal duties caused by their testimony, and
shall not receive witness fees.
(iii) The fees and expenses of other persons called to testify at a
hearing shall be paid by the party requesting their appearance.
(iv) The administrative law judge may require the Board to pay
travel expenses necessary for the complainant to attend the hearing.
(v) The Board shall pay the required expenses and charges for the
administrative law judge and court reporter.
(vi) All other expenses shall be paid by the parties incurring
them.
(5) The administrative law judge shall submit in writing
recommended findings of fact, conclusions of law, and remedies to the
complainant and the EEO Programs Director within 30 days, after the
receipt of the hearing transcripts, or within 30 days after the
conclusion of the hearing if no transcripts are made. This time limit
may be extended with the permission of the EEO Programs Director.
(6) Within15 calendar days after receipt of the recommended
decision of the administrative law judge, the complainant may file
exceptions to the recommended decision with the EEO Programs Director.
On behalf of the Board, the EEO Programs Director may, within 15
calendar days after receipt of the recommended decision of the
administrative law judge, take exception to the recommended decision of
the administrative law judge and shall notify the complainant in
writing of the Board's exception. Thereafter, the complainant shall
have 10 calendar days to file reply exceptions with the EEO Programs
Director. The EEO Programs Director shall retain copies of the
exceptions and replies to the Board's exception for consideration by
the Board. After the expiration of the time to reply, the recommended
decision shall be ripe for a decision under paragraph (k) of this
section.
(k) Decision. (1) The EEO Programs Director shall notify the Board
of Governors when a complaint is ripe for decision under this paragraph
(k). At the request of any member of the Board of Governors made within
3 business days of such notice, the Board of Governors shall make the
decision on the complaint. If no such request is made, the
Administrative Governor, or the Staff Director for Management if he or
she is delegated the authority to do so, shall make the decision on the
complaint. The decision shall be made based on information in the
investigative record and, if a hearing is held, on the hearing record.
The decision shall be made within 60 days
[[Page 18103]]
of the receipt by the EEO Programs Director of the notice of appeal and
investigative record pursuant to paragraph (h)(1) of this section or 60
days following the end of the period for filing reply exceptions set
forth in paragraph (j)(6) of this section, whichever is applicable. If
the decision-maker under this paragraph (k) determines that additional
information is needed from any party, the decision-maker shall request
the information and provide the other party or parties an opportunity
to respond to that information. The decision-maker shall have 60 days
from receipt of the additional information to render the decision on
the appeal. The decision-maker shall transmit the decision by letter to
all parties. The decision shall set forth the findings, any remedial
actions required, and the reasons for the decision. If the decision is
based on a hearing record, the decision-maker shall consider the
recommended decision of the administrative law judge and render a final
decision based on the entire record. The decision-maker may also remand
the hearing record to the administrative law judge for a fuller
development of the record.
(2) The Board shall take any action required under the terms of the
decision promptly. The decision-maker may require periodic compliance
reports specifying:
(i) The manner in which compliance with the provisions of the
decision has been achieved;
(ii) The reasons any action required by the final Board decision
has not been taken; and
(iii) The steps being taken to ensure full compliance.
(3) The decision-maker may retain responsibility for resolving
disputes that arise between parties over interpretation of the final
Board decision, or for specific adjudicatory decisions arising out of
implementation.
By order of the Board of Governors of the Federal Reserve
System, April 9, 2003.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 03-9111 Filed 4-14-03; 8:45 am]
BILLING CODE 6210-01-P