Federal Sector Equal Employment Opportunity

Summary

This rule revises the Equal Employment Opportunity Commission's federal sector complaint processing regulations to implement the recommendations made by its Federal Sector Workgroup. The

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SUMMARY: This rule revises the Equal Employment Opportunity 
Commission's federal sector complaint processing regulations to 
implement the recommendations made by its Federal Sector Workgroup. The 
rule revises procedures throughout the complaint process, addressing 
the continuing perception of unfairness and inefficiency in the 
process. The Commission is requiring that agencies make available 
alternative dispute resolution programs, and is revising the counseling 
process, the bases for dismissal of complaints and the procedures for 
requesting a hearing. EEOC is providing administrative judges with 
authority to dismiss complaints and issue decisions on complaints. 
Agencies will have the opportunity to issue a final order stating 
whether they will implement the administrative judge's decision. The 
Commission is also revising the class complaint procedures, the appeals 
procedures, and the attorney's fees provisions.

DATES: Effective Date: This final rule will become effective on 
November 9, 1999.
    Applicability Dates: The requirement in Secs. 1614.102(b)(2) and 
1614.105(b)(2) will apply on January 1, 2000 for agencies that do not 
currently have ADR programs. All actions taken by agencies and by the 
Commission after November 9, 1999 shall be in accordance with this 
final rule.

FOR FURTHER INFORMATION CONTACT: Nicholas M. Inzeo, Deputy Legal 
Counsel, Thomas J. Schlageter, Assistant Legal Counsel or Kathleen 
Oram, Senior Attorney, Office of Legal Counsel, 202-663-4669 (voice), 
202-663-7026 (TDD). This final rule is also available in the following 
formats: large print, braille, audio tape and electronic file on 
computer disk. Requests for the final rule in an alternative format 
should be made to EEOC's Publication Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION:

Introduction

    The Equal Employment Opportunity Commission, as part of an ongoing 
effort to evaluate and improve the effectiveness of its operations, 
established the Federal Sector Workgroup, which was composed of 
representatives from offices throughout the Commission. The Workgroup 
focused on the effectiveness of the EEOC in enforcing the statutes that 
prohibit workplace discrimination in the federal government: section 
717 of Title VII of the Civil Rights Act of 1964, which prohibits 
discrimination against applicants and employees based on race, color, 
religion, sex and national origin; section 501 of the Rehabilitation 
Act of 1973, which prohibits employment discrimination on the basis of 
disability; section 15 of the Age Discrimination in Employment Act, 
which prohibits employment discrimination based on age; and the Equal 
Pay Act, which prohibits sex-based wage discrimination.
    The Workgroup reviewed and evaluated EEOC's administrative 
processes governing its enforcement responsibilities in the federal 
sector and, after consulting with affected agencies and groups of 
stakeholders, developed recommendations to improve its effectiveness. 
In addition, the review sought to implement the goals of Vice President 
Gore's National Performance Review (NPR), including eliminating 
unnecessary layers of review, delegating decision-making authority to 
front-line employees, developing partnership between management and 
labor, seeking stakeholder input when making decisions, and measuring 
performance by results.
    The Commission drafted a Notice of Proposed Rulemaking (NPRM) that 
was circulated to all agencies for comment pursuant to Executive Order 
12067 and subsequently published in the Federal Register on February 
20, 1998. The Notice proposed changes to the Commission's federal 
sector complaint processing regulations at 29 CFR Part 1614 to 
implement the regulatory recommendations of the Federal Sector 
Workgroup. 63 FR 8594 (1998). It sought public comment on those 
proposals.
    The Commission received over sixty comments on the NPRM. Federal 
agencies and departments submitted 19 comments. Ten comments were 
submitted by civil rights groups and attorneys groups and law firms, 
four were submitted by federal employee unions and union 
representatives, one by an association of federal EEO executives, and 
one was submitted by a Member of Congress. EEOC also received 27 
comments from individuals, including federal employees, attorneys and 
other interested persons. The Commission has carefully considered all 
of the comments and, as stated in the February Notice, also considered 
the comments of agencies made during the interagency comment period. 
The Commission has made a number of changes to the proposals contained 
in the NPRM in response to the comments. In making these changes, the 
Commission intends to continue its efforts to reform the federal sector 
discrimination procedures. While the Commission believes that these 
changes will make the procedures fairer, the Commission will continue 
to seek improvements in the procedures. The comments on the NPRM and 
all of the changes to the proposals are discussed more fully below.

Alternative Dispute Resolution

    In the NPRM, the Commission proposed to require all agencies to 
establish or make available an alternative dispute resolution (ADR) 
program for the EEO pre-complaint process. In addition, EEOC proposed 
to require that counselors advise aggrieved persons at the initial 
counseling session that they may choose between participation in the 
ADR program offered by the agency and the traditional counseling 
activities provided for in the current regulation.
    The commenters generally supported both proposals, agreeing that 
providing an ADR mechanism in the pre-complaint stage of the EEO 
process will resolve more claims earlier in the process. Many of the 
agency commenters emphasized their need for flexibility in developing 
their ADR programs. Small agencies, in particular, requested that they 
have the authority to determine on a case-by-case basis whether to 
offer ADR to an aggrieved person for his or her claim. Other agencies 
urged the Commission to ensure that the election provision take into 
account that ADR should be voluntary for both parties, the aggrieved 
person and the agency. Commenters also requested that EEOC clarify how 
the pre-complaint process will operate when ADR is involved and address 
the responsibilities of the Counselors throughout that process.
    The Commission has revised the ADR and counseling provisions in 
response to the comments. Agencies will be required to establish or 
make available an ADR program. The ADR program must be available during 
both the pre-complaint process and the formal complaint process. The 
Commission encourages agencies to use ADR as a valuable tool in 
resolving EEO disputes at all stages of the EEO process.
    Agencies are free to develop ADR programs that best suit their 
particular needs. While many agencies have adopted the mediation model, other 
resolution techniques are acceptable, provided that they conform to the 
core principles set forth in EEOC's policy statement on ADR, contained 
in Management Directive 110. The Commission believes that agencies 
should have flexibility in defining their ADR programs. EEOC expects 
that, overall, agencies will develop an array of ADR programs, designed 
to suit their particular circumstances. Agencies with limited funds and 
resources could use the services, in whole or in part, of another 
agency, a volunteer organization or other resources to make available 
an ADR program.
    In keeping with the Commission's emphasis on voluntariness as a 
component of ADR, agencies may decide on a case-by-case basis whether 
it is appropriate to offer ADR to individual aggrieved persons. EEOC 
does not anticipate that ADR will be used in connection with every 
claim brought to a Counselor. For example, some agencies may wish to 
limit pre-complaint ADR geographically (if extensive travel would be 
required), or by issue (excluding, for example, all claims alleging 
discriminatory termination). Some agencies may wish to exclude class 
allegations from their ADR programs. Agencies may not, however, exclude 
entire bases of discrimination from ADR programs. For example, it would 
be inappropriate for an agency to exclude from its ADR program all 
claims alleging race discrimination.
    In response to a comment, the Commission has revised the regulatory 
provision governing the initial counseling session. The Commission has 
removed from section 1614.105(b)(1) the requirement that Counselors 
advise individuals both orally and in writing of their rights and 
responsibilities, revising the section to require only that Counselors 
provide that information in writing. Counselors are encouraged to 
discuss the rights and responsibilities involved in the EEO process 
orally with individuals, but are only required to provide that 
information to the individuals in writing.
    When an agency offers ADR to an individual during the pre-complaint 
process, the individual may choose to participate in the ADR program at 
any point in the pre-complaint process. In all cases, the Counselor 
will conduct an initial counseling session, as currently provided, 
identifying claims and fully informing individuals about their rights. 
When ADR is selected, resolution attempts through traditional 
counseling will be eliminated and the limited inquiry of the 
traditional counseling will change. Counselors must also inform 
individuals that if the ADR process does not result in a resolution of 
the dispute, they will receive a final interview and have the right to 
file a formal complaint. Management Directive 110 will contain 
additional guidance on these pre-complaint procedures.
    The Commission's intention in requiring an ADR program is that 
agencies establish informal processes to resolve claims. Thus any 
activity conducted in connection with an agency ADR program during the 
EEO process would not be a formal discussion within the meaning of the 
Civil Service Reform Act. Generally, the agency should have an official 
at any ADR session with full authority to resolve the dispute. To the 
extent consultations with other agency officials would be necessary 
during any session, the agency is accountable for making sure those 
consultations can be accommodated.
    If the ADR attempt succeeds in resolving the claim, the agency must 
notify the Counselor that the claim was resolved. If the ADR attempt is 
unsuccessful, the agency must return the claim to the Counselor to 
write the counseling report. That report will describe the initial 
counseling session, frame the issues, and report only that ADR was 
unsuccessful.

Dismissals

    In the NPRM, the Commission proposed three changes to the dismissal 
provision contained in section 1614.107. First, the Commission proposed 
to remove the provision contained in section 1614.107(h) permitting 
agencies to dismiss complaints for failure to accept a certified offer 
of full relief. As explained in the preamble to the NPRM, the full 
relief dismissal policy was premised on the view that adjudication of a 
claim is unnecessary if the agency is willing to make the complainant 
whole. The regulatory process, however, has been criticized because 
complainants are placed in the position of risking dismissal of their 
complaints if they do not believe the offer of their opposing party is 
an offer of full relief. If a complainant makes the wrong assessment of 
the offer and EEOC decides on appeal that the agency did offer full 
relief, the complainant is precluded from proceeding with the complaint 
or from accepting the offer. In addition, difficulties assessing what 
constitutes full relief increased when, as a result of the Civil Rights 
Act of 1991, damages became available to federal employees. The 
Commission found that offers of full relief must address compensatory 
damages, where appropriate. Jackson v. USPS, Appeal No. 01923399 
(1992); Request No. 05930306 (1993). Unless the agency offers the full 
amount of damages permitted under the statutory caps in the law, it is 
virtually impossible for the complainant to assess whether the agency 
has offered full relief.
    The non-agency commenters uniformly supported the proposal to 
eliminate the full relief dismissal provision. Agency comments were 
mixed with nearly as many agencies supporting the change as opposing 
it. For the foregoing reasons, the Commission has decided to remove the 
failure to accept a certified offer of full relief dismissal basis from 
the regulations. At the same time, the Commission is retaining the 
provision from the NPRM that permits agencies to make an offer of 
resolution in a case. This offer of resolution is similar, but not 
identical, to the procedure under Rule 68 of the Federal Rules of Civil 
Procedure for an offer of judgment, and is discussed in greater detail 
below.
    In the NPRM, EEOC proposed to add two dismissal provisions to 
section 1614.107. One of the new provisions will require dismissal of 
complaints that allege dissatisfaction with the processing of a 
previously filed complaint (spin-off complaints). As was explained in 
the NPRM, EEOC's regulations at 29 CFR Part 1613, which were superseded 
by 29 CFR Part 1614 in 1992, expressly permitted complainants to file 
separate complaints alleging dissatisfaction with agencies' processing 
of their original complaints. 29 CFR 1613.262 (1991). The procedure 
resulted in the filing of multiple spin-off complaints. The Commission 
recognized the need to limit these complaints, and did not include the 
Part 1613 provision in Part 1614. Guidance was provided in Management 
Directive 110. Spin-off complaints continued to be filed, however, 
despite there being no provision in either the regulations or the 
management directive permitting the filing of a separate complaint on 
this issue.
    The comments on the proposal to add a dismissal provision for spin-
off complaints fell into three categories. Agencies favored the 
addition. Some individual federal employees and attorneys opposed the 
dismissal provision and others encouraged EEOC to provide detailed 
guidance in Management Directive 110 on how to handle spin-off 
allegations outside of the EEO process. The Commission continues to believe that any alleged unfairness or 
discrimination in the processing of a complaint can--and must--be 
raised during the processing of the underlying complaint and there is 
ample authority to deal with such allegations in that process. The 
spin-off allegations are so closely related to the underlying complaint 
that a separate complaint would result in redundancy, duplication of 
time and waste of resources. Such allegations need to be addressed 
within the over-all context of the initial complaint while that 
complaint is still pending. The Commission has decided to add the 
provision requiring dismissal of spin-off complaints to ensure that a 
balance is maintained between fair and nondiscriminatory agency 
processing of complaints and the need to eliminate the multiple filing 
of burdensome complaints about the manner in which an original 
complaint was processed.
    In conjunction with this regulatory change, the Commission will 
issue detailed companion guidance in Management Directive 110 
addressing the procedures to be followed to resolve allegations of 
dissatisfaction with the complaints process quickly and effectively. 
Individuals who are dissatisfied with the processing of a complaint 
will be advised to bring this dissatisfaction to the attention of the 
official responsible for the complaint, whether it be an investigator, 
the agency EEO manager, an EEOC administrative judge, or the 
Commission's Office of Federal Operations on appeal. The allegation of 
dissatisfaction, and any appropriate evidence, will then be considered 
during the processing of the existing complaint by the individuals 
responsible for that step of the process, who will be required to take 
appropriate action. If any official throughout the process becomes 
aware of a systemic problem of discriminatory complaint processing, 
that official may refer the matter to the Complaints Adjudication 
Division of the Office of Federal Operations at EEOC.
    Proper handling of spin-off allegations is important because such 
allegations involve the overall quality of the complaints process and 
implicate the resources devoted to those allegations. The procedures in 
the Management Directive will ensure that any evidence of 
discriminatory or improper handling will be considered as part of the 
claim before the agency or Commission without unnecessarily adding 
complaints to the system. When an individual presents a counselor, an 
agency official, or the Commission with a spin-off allegation, the 
complainant shall be advised where and how to have the allegation of 
dissatisfaction made part of the existing complaint record. The 
Commission believes that agency and Commission resources should not be 
used to process the allegation as a separate complaint because many of 
these allegations involve evidentiary matters or disagreements with 
agency decisions made in the processing of the underlying complaint. 
Counselors, investigators and agency officials are required to note 
these allegations of dissatisfaction in the complaint record so that 
reviewing entities can ensure that the allegation was properly 
addressed. As a result, individuals who file separate complaints will 
have such complaints dismissed by the agency or by the Commission. The 
Commission has decided to delegate appellate decision-making authority 
for appeals from dismissals of spin-off complaints to the Office of 
Federal Operations to ensure expeditious handling of any such appeals.
    The second new dismissal provision proposed by the Commission in 
the NPRM provides for dismissal of complaints through strict 
application of the criteria set forth in Commission decisions where 
there is a clear pattern of abuse of the EEO process. The proposed 
section would codify the Commission's decisions in Buren v. USPS, 
Request No. 05850299 (1985), and subsequent cases, in which the 
Commission has defined ``abuse of process'' as a clear pattern of 
misuse of the EEO process for ends other than those that it was 
designed to accomplish. The Commission has stated that it has the 
inherent power to control and prevent abuse of its processes, orders, 
or procedures.
    Comments from agencies generally supported the proposal to add 
abuse of process as a basis for dismissal, while non-agency commenters 
opposed it or, while supporting its purpose, expressed concern that 
agencies would invoke this authority too frequently based arbitrarily 
on the number of complaints filed by an individual. Several commenters, 
including agencies and individuals, suggested the criteria for 
dismissal be clearly set forth in the regulation. A few agencies 
thought the criteria should be expanded beyond those set forth in the 
Commission's decisions and that the Commission should provide for 
sanctions for complainants who abuse the process. Some non-agency 
commenters maintained that only administrative judges should have the 
authority to dismiss complaints for abuse of process because agencies 
will abuse their discretion under this provision.
    The Commission has decided to include this dismissal provision in 
its regulation with additional language defining abuse of process as 
``a clear pattern of misuse of the EEO process for a purpose other than 
the prevention and elimination of employment discrimination'' and 
setting forth the factors found in Commission decisions. The Commission 
reiterates that dismissing complaints for abuse of process should be 
done only on rare occasions because of the strong policy in favor of 
preserving complainants' EEO rights whenever possible. Kleinman v. 
Postmaster General, Request No. 05940579 (1994). Evaluating complaints 
for dismissal for abuse of process requires careful deliberation and 
application of strict criteria. Agencies must analyze whether a 
complainant's behavior evidences an ulterior purpose to abuse the EEO 
process. Improper purposes would include circumventing other 
administrative processes such as the labor-management dispute process; 
retaliating against the agency's in-house administrative machinery; or 
overburdening the EEO complaint system, which is designed to protect 
individuals from discriminatory practices. Hooks v. USPS, Appeal No. 
01953852 (1995). Evidence of numerous complaint filings, in and of 
itself, is an insufficient basis for making a finding of abuse of 
process. Id. However, as stated in the regulation, evidence of multiple 
complaint filings combined with the subject matter of the complaints 
(such as frivolous, similar or identical allegations; lack of 
specificity in the allegations; and allegations involving matters 
previously resolved) may be considered in determining whether a 
complainant has engaged in a pattern of abuse of the EEO process. See 
Goatcher v. USPS, Request No. 05950557 (1996).
    The Commission will require strict adherence to these criteria. 
With respect to the argument that only administrative judges should 
have the authority to dismiss complaints for abuse of process, the 
Commission sees no reason to treat this basis for dismissal differently 
than the others listed in section 1614.107 by disallowing it to 
agencies. The Commission believes that review by the Commission on 
appeal will fully safeguard complainants against arbitrary or unjust 
dismissals.
    The Commission believes that the new dismissal provisions for spin-
off complaints and abuse of process will improve the efficiency and 
effectiveness of the EEO process. In addition, dealing summarily with 
abuse of process complaints will make the process fairer both for 
agencies that must process complaints and for complainants who raise bona fide allegations by 
focusing resources on bona fide allegations.

Partial Dismissals

    In the NPRM, the Commission proposed changes to the regulations to 
eliminate interlocutory appeals of partial dismissals of complaints. 
Currently, where an agency dismisses part of a complaint, but not the 
entire complaint, the complainant has the right to immediately appeal 
the partial dismissal to EEOC. The Commission provided for 
interlocutory appeals of partial dismissals in Part 1614, hoping to 
streamline the process and avoid holding two or more hearings on the 
same complaint. Multiple hearings could have occurred absent an 
interlocutory appeal when EEOC reversed an agency's partial dismissal 
after a hearing was held on the rest of the complaint. The Commission 
believes that this result can be accomplished without the unintended 
delays or fragmentation of complaints that may have resulted from 
implementation of the current provision. The Commission proposed to 
amend section 1614.401 to remove the right to immediately appeal the 
dismissal of a portion of a complaint. In addition, the Commission 
proposed to add a paragraph to the dismissals section, section 
1614.107, explaining how to process complaints where a portion of the 
complaint, but not the entire complaint, meets one or more of the 
standards for dismissal contained in that section.
    Comments on eliminating interlocutory appeals for partial 
dismissals were mixed. Many commenters, agencies and others, supported 
the proposal believing that it will simplify the process. The 
commenters who opposed the change expressed concerns that there will be 
no investigatory record of the portion of a complaint dismissed by an 
agency but reinstated by the administrative judge or the Office of 
Federal Operations. Some agencies questioned how the administrative 
judge will be able to evaluate a partial dismissal if there is no 
record on that part of the complaint.
    The Commission believes that eliminating interlocutory appeals of 
partial dismissals will result in a more efficient complaint process 
and will help avoid fragmentation of complaints. The Commission has 
decided, therefore, to finalize the proposals without change. The 
concerns raised by some of the commenters are addressed by the 
procedure contained in new section 1614.107(b). If an agency determines 
that a portion of a complaint, but not all of the complaint, meets one 
or more of the standards for dismissal contained in section 
1614.107(a), the agency must document the file with its reasons for 
believing that the portion of the complaint meets the standards for 
dismissal. Accordingly, the agency must fully explain its reasons for 
dismissing that portion of the complaint, and, if appropriate, include 
any evidence or documents necessary to support that conclusion. The 
agency's rationale and any record supporting that rationale must be 
sufficiently developed for an administrative judge or the Office of 
Federal Operations to evaluate the appropriateness of the partial 
dismissal without further investigation or inquiry. The agency will 
then investigate the remainder of the complaint.
    If the complainant requests a hearing, the administrative judge 
will, as soon as practicable, evaluate the reasons given by the agency 
for believing a portion of the complaint meets the standards for 
dismissal. If the administrative judge believes that the agency's 
reasons are not well taken, the entire complaint or all of the portions 
not meeting the standards for dismissal will continue in the hearing 
process. Where a portion of a complaint is reinstated in the hearing 
process and the investigatory record from the agency is incomplete as 
to the portion the agency dismissed, the administrative judge will 
oversee supplementation of the record by discovery or any other 
appropriate method. Administrative judges will no longer remand 
complaints or portions of complaints for supplemental investigations by 
the agency, but will ensure that the record is sufficiently developed 
during the hearing process.
    The administrative judge's decision on the partial dismissal will 
become part of the decision on the complaint. Where a complainant 
requests a final decision from the agency without a hearing, the agency 
will issue a decision addressing all claims in the complaint, including 
its rationale for dismissing claims, if any, and its findings on the 
merits of the remainder of the complaint. The complainant may appeal 
the agency's final action, including any partial dismissals, to the 
EEOC. If the Office of Federal Operations finds that a dismissal was 
improper, it will give the complainant the choice between a hearing and 
an agency final decision on the claim.

Offer of Resolution

    The Commission proposed to add this provision, limiting attorney 
fees and costs when a complainant rejects an offer and subsequently 
obtains less relief, in place of the dismissal for failure to accept 
full relief. The purpose of the offer of resolution is to provide 
incentive to settle complaints and to conserve resources where 
settlement should reasonably occur. Some commenters preferred the full 
relief dismissal to the proposed offer of resolution. Two stated that 
the relief offered should be compared to the relief obtained, rather 
than to the decision obtained, in order to determine which is more 
favorable. A few commenters asked for clarification of what the offer 
must contain, for example, suggesting that it must contain attorney's 
fees. Several commenters raised concerns that a complainant might not 
have enough information to judge whether the offer is reasonable or may 
not fully appreciate the significance of the offer if the offer is made 
early in the process. Others questioned how non-monetary remedies would 
be evaluated for determining whether the relief awarded was more 
favorable than that offered. Some commenters objected that the 
``interest of justice'' exception was too vague; some asked that it be 
defined in the regulation while others suggested that it be deleted for 
that reason. Finally, several commenters believed the proposed 
provision was a good alternative to the dismissal for failure to accept 
full relief.
    After considering these comments, the Commission has decided that 
the offer of resolution is an appropriate alternative to and preferable 
to the dismissal for failure to accept full relief, but has made 
several changes to the provision to address the commenters' concerns. 
Simply to clarify, we have revised the provision so that the relief 
offered is compared with the final relief obtained rather than with the 
decision when determining which is more favorable. That formulation is 
more practicable and expresses the Commission's original intent. We 
have also added a sentence stating that the agency's offer, to be 
effective, must include attorney's fees and costs that have been 
incurred and must specify any non-monetary relief. With regard to 
monetary relief, an agency may make a lump sum offer or it may itemize 
the amounts and types of monetary relief being offered.
    We have revised the offer of resolution provision to include a two-
tiered approach. An offer of resolution can be made to a complainant 
who is represented by an attorney at any time from the filing of a 
formal complaint until 30 days before a hearing. If, however, the 
complainant is not represented by an attorney, an offer cannot be made 
before the parties have received notice that an administrative judge has been assigned. We will include model language in the 
Management Directive that agencies are required to include in each 
offer of resolution.
    We note that, when comparing the relief offered in an offer of 
resolution with that actually obtained, we intended that non-monetary 
as well as monetary relief would be considered. Although a comparison 
of non-monetary relief may be inexact and difficult in some cases, non-
monetary relief can be significant and cannot be overlooked.
    The Commission believes that equitable considerations may make it 
unjust to apply the offer of resolution provision in particular cases 
and, thus, the interest of justice exception is necessary to prevent 
the denial of fees in those circumstances. We do not envision many 
circumstances in which the interest of justice provision will apply. 
One example, however, of appropriate use of the exception would be 
where the complainant received an offer of resolution, but was informed 
by a responsible agency official that the agency would not comply in 
good faith with the offer (e.g., would unreasonably delay 
implementation of the relief offered). The complainant did not accept 
the offer for that reason, and then obtained less relief than was 
contained in the offer of resolution. We believe that it would be 
unjust to deny attorney's fees and costs in this case.

Fragmentation

    In the NPRM, the Commission requested public comment on the issue 
of fragmentation of complaints in the federal sector EEO process. 
Specifically, the Commission asked whether regulatory changes are 
necessary to correct the fragmentation problem. EEOC believes that 
agencies are not properly distinguishing between factual allegations in 
support of a legal claim and the legal claim itself, resulting in the 
fragmentation of some claims that involve a number of different 
allegations. Certain kinds of claims are especially susceptible to 
fragmentation, for example, harassment claims and continuing violation 
claims. Fragmentation of claims is undesirable both because it 
unnecessarily multiplies complaints and can improperly render non-
meritorious otherwise valid and cognizable claims.
    The Commission received some comments on the fragmentation issue. 
Commenters recommended the elimination of remands by administrative 
judges, the elimination of partial dismissals (see discussion above), 
and the revision of the consolidation procedures in the regulation. 
Commenters also suggested that EEO Counselors need more training to 
recognize the difference between claims and allegations.
    The Commission has revised the regulation in several places to 
address the fragmentation problem. Section 1614.108(b) has been amended 
to replace the phrase ``matter alleged to be discriminatory'' with the 
word ``claim.'' The Commission believes that agencies may be 
interpreting ``matter'' to mean something less than a claim. Where a 
complainant raises a claim of retaliation or a claim involving terms 
and conditions of employment, subsequent events or instances involving 
the same claim should not be filed as separate complaints, but should 
be treated as part of the first claim. For the same reasons, the 
Commission has revised section 1614.603 to remove the word 
``allegations'' and replace it with ``claims.''
    The Commission is removing from the hearings section the provision 
permitting administrative judges to remand issues to agencies for 
counseling or other processing. The Commission intends that 
administrative judges will have full responsibility for complaints 
after they enter the hearing stage and should no longer remand them to 
the agencies. This change and others involving hearings are discussed 
more fully below.
    Finally, the Commission is adding a provision permitting amendment 
of complaints, and is revising the consolidation section of the 
regulation. Section 1614.106 now permits complainants to amend 
complaints to add issues or claims that are like or related to the 
original complaint any time prior to the conclusion of the 
investigation. After requesting a hearing, complainants may seek leave 
from the administrative judge to amend a complaint to add issues or 
claims that are like or related to the original complaint by filing a 
motion to amend. The Commission has amended section 1614.606, which 
governs joint processing and consolidation of complaints, to require 
that agencies consolidate two or more complaints filed by the same 
complainant. The current consolidation provision is permissive only. 
Moreover, the current provision, the Commission believes, may serve to 
discourage consolidation of complaints because it provides that the 
date of the first filed complaint controls the applicable complaint 
processing time frames. Under this provision, if a complainant filed a 
second complaint 175 days after the first complaint, the current 
regulation would provide the agency with only 5 days to investigate the 
second complaint if it were consolidated with the first complaint. As 
part of the revision to the consolidation section, the Commission 
provides in the final rule that when a complaint has been consolidated 
with an earlier filed complaint the agency must 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 a 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. If a complainant requests a hearing 
on consolidated complaints prior to the agency's completion of the 
investigation, the administrative judge will decide how best to insure 
an appropriate record, whether by staying the hearing process for some 
period of time during which the agency can finish its investigation or 
by supplementation of the record through discovery or other methods 
ordered by the administrative judge. When an administrative judge 
becomes aware that one or more complaints in the agency process should 
be consolidated with a complaint in the hearing process, the 
administrative judge may consolidate all claims at the hearing stage or 
hold the complaint in the hearing process until the others are ready 
for hearing.
    Management Directive 110 will contain additional guidance on 
amendment of complaints, consolidation of complaints, and 
fragmentation, including what constitutes a cognizable claim under the 
employment discrimination statutes.

Hearings

    The Commission proposed several changes to the hearings provisions 
in the Notice of Proposed Rulemaking, the most significant being the 
proposal to make administrative judge's decisions final in complaints 
referred to them for hearing. The Commission received dozens of 
comments on this proposal, with the majority of agency commenters 
opposing it and the non-agency commenters overwhelmingly favoring it. A 
number of agencies challenged EEOC's statutory authority to make 
administrative judges' decisions final, arguing that section 717(c) of 
Title VII requires that agencies take final action on EEO complaints 
before a complainant may appeal to EEOC. In addition, an agency argued 
that agency final action is required to trigger federal court suit 
rights. Section 717(c) permits an individual to file a lawsuit in 
federal court in four instances, including within 90 days of receipt of 
notice of final action. One agency suggested that EEOC could make administrative 
judges' decisions final by moving the hearing process to the appellate 
stage. Agencies also expressed concern about EEOC's resources, 
believing that there will be an increase in requests for hearings if 
administrative judges' decisions are made final. Agencies also 
questioned the quality and consistency of administrative judges' 
decisions in opposing the change. Several agencies complained that they 
would be unable to defend themselves if administrative judges' 
decisions were made final.
    Several agencies, however, supported the proposal. One noted that 
EEOC's statistics demonstrate a problem with the EEO process 
government-wide that undermines the confidence of complainants in the 
system and creates a perception of unfairness. The civil rights groups, 
unions and attorneys' groups that commented on the proposal strongly 
supported it and some noted that it is the most important change 
proposed by EEOC in the NPRM.
    The Commission has carefully considered all of the comments on this 
issue. The Commission strongly believes that allowing agencies to 
reject or modify an administrative judge's findings of fact and 
conclusions of law and to substitute their own decision leads to an 
unavoidable conflict of interest and creates a perception of unfairness 
in the federal EEO system. While the Commission believes that its 
interpretation of the statute regarding the Commission's authority is 
correct, the Commission has decided to revise the proposal in order to 
make needed improvements in the procedures while recognizing the 
concerns expressed by the agencies. At the same time the Commission 
will preserve the functional goal of the earlier proposal: agencies 
will no longer be able to simply substitute their view of a case for 
that of an independent decision-maker.
    In response to comments from agencies that the Office of Federal 
Operations was upholding agency decisions that reversed administrative 
judge's decisions finding discrimination, we made two independent 
inquiries of EEOC's information systems. The Commission had not 
previously studied that information or reported it, although it had 
collected it. The first inquiry showed that in 1994 and 1996, there 
were 80 administrative judges' decisions favorable to complainants that 
were reversed by the agency, appealed to the Office of Federal 
Operations, and for which the Office of Federal Operations issued a 
decision on the merits. Of those 80 decisions, EEOC upheld the 
administrative judge in 53 instances and upheld the agency in 27 
instances. In the second inquiry, we found that in fiscal year 1998, 
there were 157 decisions by the Office of Federal Operations reviewing 
administrative judges' decisions adverse to agencies. Of those 
decisions, 135 (86%) affirmed the administrative judge in whole, 8 (5%) 
reversed in whole or in part, and 14 (9%) modified the administrative 
judge's decision. These inquiries demonstrated that the arguments made 
by the agencies were not supported by the facts. EEOC upholds 
administrative judges' decisions in a significant majority of all 
cases.
    The final rule provides that administrative judges will issue 
decisions on all complaints referred to them for hearings. Agencies 
will have the opportunity to 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 will notify the 
complainant whether or not the agency will fully implement the decision 
of the administrative judge and will contain notice of the 
complainant's suit and appeal rights. If the agency's final order does 
not fully implement the decision of the administrative judge, the 
agency must simultaneously file an appeal of the decision with EEOC. In 
this way, agencies will take final action on complaints referred to 
administrative judges by issuing a final order, but they will not 
introduce new evidence or write a new decision in the case. Agencies 
will have an additional 20 days to file a brief in support of their 
appeal.
    To parallel the provision on interim relief in section 1614.502(b), 
we are adding a provision requiring an agency to provide interim relief 
in limited circumstances when the agency appeals. When the agency 
issues a final order notifying the complainant that it will not fully 
implement the administrative judge's decision, the case involves 
removal, separation or suspension continuing beyond the date of the 
order, and the administrative judge's decision provided for retroactive 
restoration, the agency must comply with the decision to the extent of 
the temporary or conditional restoration of the employee to duty status 
in the position stated by the administrative judge pending the outcome 
of the appeal. In response to agency comments, we have revised the 
regulation to more closely track the MSPB's interim relief provision, 
including a provision permitting agencies to 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. Prospective pay and benefits must be provided, 
however. In addition, we have noted in the regulation that an employee 
may decline an offer of interim relief, and a grant of interim relief 
does not insulate a complainant from subsequent disciplinary or adverse 
action for another reason. Interim relief does not apply in cases where 
the complainant alleges that she or he was not retained beyond the 
period of a temporary appointment which expired prior to the appeal or 
that the temporary position was not converted to a permanent position. 
For example, where the Census hires temporary employees and the 
temporary appointment would have expired prior to the appeal, or the 
employee was not converted to a career position, the interim relief 
provision would not apply.
    In another proposed change to the hearings process in the NPRM, we 
proposed that at the end of the investigation or after 180 days, 
complainants who want to request a hearing will send their requests 
directly to the EEOC office instead of to the agency EEO office in 
order to eliminate delays. Almost all of the commenters agreed with 
this proposal. A few commenters asked that complainants be required to 
notify the agency at the same time that they make the request to EEOC. 
That requirement was already contained in the proposal so no change is 
being made. We have made some minor changes to the provision. We added 
a requirement that all requests for hearings must be in writing. The 
proposal stated that EEOC would request the complaint file after it 
received a request for hearing. The final rule has been revised to 
state that the agency must forward the file within 15 days of the date 
of receipt of the request for hearing. Since the agency will be 
receiving notice directly from the complainant when a hearing is 
requested, eliminating the request from EEOC and the time incident to 
preparation of that letter will result in a more efficient process. If 
any agency receives a request for a hearing that has not also been 
submitted to EEOC, the agency should forward the request along with the 
file to EEOC and should advise the complainant of its actions and of 
the requirement that requests be submitted directly to EEOC.
    In response to comments, the Commission has decided to revise 
section 1614.109(a) to better explain the administrative judge's 
responsibilities in the hearing process and to remove the current 
provision permitting administrative judges to remand for counseling issues that are like or 
related to those issues raised in the complaint. Section 1614.109(a) 
now provides that upon appointment, the administrative judge will 
assume full responsibility for adjudication of the complaint, including 
overseeing the development of the record. The Commission intends that 
the administrative judge will take complete control of the case once a 
hearing is requested. The new sentence clarifies that the agency's 
authority to dismiss a complaint ceases once a hearing is requested. 
Administrative judges will preside over any necessary supplementation 
of the record in the hearing process without resort to remands of 
complaints to agencies for additional investigations. Remands of 
complaints to agencies for supplemental investigations have 
proliferated, resulting in fragmentation or unwarranted delays. The 
changes to the regulation will eliminate these remands and improve the 
timeliness and efficiency of the complaint process.
    In the NPRM, the Commission proposed to add a new section 
1614.109(b) providing that administrative judges have the authority to 
dismiss complaints during the hearing process for all of the reasons 
contained in section 1614.107. Nearly all commenters, agencies and 
others, supported this proposal. In response to comments, the 
Commission has revised the regulation to provide that administrative 
judges may dismiss complaints on their own initiative, after notice to 
the parties, or upon an agency's motion to dismiss a complaint.
    The Commission has made several minor revisions to the hearings 
section of the regulations. In response to a comment, we have added a 
new section (f)(1) providing that the administrative judge must serve 
all orders to produce evidence on both parties. We have revised section 
1614.109(i) to provide that the time frame for issuing a decision will 
run from the administrative judge's receipt of the complaint file from 
the agency, rather than, as currently provided, from receipt by EEOC of 
a request for a hearing. In addition, the Commission has revised the 
section to provide that administrative judges send the hearing record, 
rather than the entire record, to the parties with the final decision. 
Finally, the Commission has removed the requirement that administrative 
judges send final decisions and the record to the parties by certified 
mail. This will save the Commission scarce resources.

Procedures for Handling Clearly Meritless Cases

    The growing inventory of cases pending at agencies, in the hearings 
units and on appeal to the Commission causes delays across the board. 
The problem is exacerbated by the allocation of scarce resources to 
meritless cases. Many commenters representing all points of view 
identified this situation as an urgent priority, and the Federal Sector 
Workgroup devoted considerable attention to the problem. The Workgroup 
noted the widespread concern among stakeholders that the system is 
overburdened by meritless complaints and misused as a forum for 
workplace disputes that do not involve EEO matters. Its Report 
concluded that ``Government resources should be targeted to addressing 
colorable claims of discrimination. Excessive resources devoted to non-
meritorious claims of discrimination undermines the credibility of the 
process and impairs the rights of those with meritorious claims.'' The 
Commission agrees.
    Among the measures proposed by the Commission in its NPRM to 
address this problem were two provisions to give administrative judges 
additional procedures for quickly resolving complaints that are 
inappropriately in the EEO process or that lack merit. First, the 
Commission proposed to give administrative judges the authority to 
dismiss complaints during the hearing process for all of the reasons 
contained in the dismissal section, 29 CFR 1614.107, including for 
failure to state a claim. As discussed above, the Commission has 
included this proposed section 1614.109(b), which most commenters 
supported, in its final rule.
    The second proposal was a provision for decisions without a hearing 
in cases that lack merit, which would have supplemented administrative 
judges' existing authority to issue summary judgment decisions 
currently contained in 29 CFR 1614.109(e). The Commission proposed to 
add a provision, section 1614.109(g)(4), permitting administrative 
judges to issue a decision without a hearing where they determine, even 
though material facts remain in dispute, that there is sufficient 
information in the record to decide the case, that the material facts 
in dispute can be decided on the basis of the written record, that 
there are no credibility issues that would require live testimony in 
order to evaluate a witness' demeanor and that the case lacks merit.
    Almost all non-agency commenters as well as about half of the 
agency commenters opposed granting administrative judges this new 
authority, arguing that there must be a hearing if material facts are 
in dispute. Individual commenters and those representing civil rights 
groups and unions also doubted that the administrative judge would have 
sufficient information in the record to decide the case under this 
procedure because the agency compiles the record and the complainant is 
likely not to have had an opportunity to develop evidence. Some 
suggested that complainants have won cases that may have seemed non-
meritorious when filed, based on discovery and live testimony at the 
hearing. Several agency commenters believed the procedure would also 
adversely affect agencies by leading to erroneous decisions based on 
incomplete evidence. Agencies also thought it was unclear and difficult 
to distinguish from traditional summary judgment. A number of agency 
commenters supported the proposal as an appropriate way to streamline 
the process and deal with the increasing workload. When the 
investigatory record is complete, they argued, a hearing may waste 
resources and cause agency employees to be absent from work when their 
testimony is not really necessary.
    The Commission has decided that it is not necessary to add this 
provision at this time. We believe that the problem of meritless 
complaints can be addressed through appropriate application of the 
failure to state a claim dismissal basis and the traditional summary 
judgment provision. Dismissal for failure to state a claim is 
appropriate when a complaint alleges conduct that does not rise to the 
level of a violation of the anti-discrimination statutes. Summary 
judgment under section 1614.109(e) is appropriate for complaints that 
state a claim but that involve no genuine dispute over material facts. 
Continued processing of cases that should have been dismissed for 
failure to state a claim or decided on summary judgment contributes to 
the growing inventory and the perception that the system gives too much 
consideration to trivial matters. Such cases should be resolved more 
quickly at earlier stages in the process using existing legal 
standards. The Commission summarizes these standards below and intends 
to provide more detailed guidance in Management Directive 110.
    Dismissal for Failure to State a Claim: Existing section 
1614.107(a) requires that agencies dismiss a complaint that fails to 
state a claim under section 1614.103. Under the new section 
1614.109(b), administrative judges may dismiss complaints for the same 
reasons as contained in section 1614.107. In determining whether a complaint 
states a claim, the proper inquiry is whether the conduct as alleged 
would constitute an unlawful employment practice under the EEO 
statutes. Cobb v. Department of the Treasury, Request No. 05970007 
(March 13, 1997). See Burlington Industries, Inc. v. Ellerth, 118 S. 
Ct. 2257, 2268-9 (1998)(referencing cases in which courts of appeals 
considered whether various employment actions were sufficient to state 
a claim under the civil rights laws).
    When a complainant does not challenge agency action or inaction 
with respect to an employment decision or a specific term, condition or 
privilege of employment, but alleges a hostile and discriminatory 
working environment, the severity of the alleged conduct must be 
evaluated to determine whether the complaint is actionable under the 
statutes. As the Supreme Court has stated, ``Conduct that is not severe 
or pervasive enough to create an objectively hostile or abusive work 
environment--an environment that a reasonable person would find hostile 
or abusive--is beyond Title VII's purview.'' Harris v. Forklift 
Systems, Inc., 510 U.S. 17, 21-22 (1993); see Meritor Savings Bank, FSB 
v. Vinson, 477 U.S. 57, 67 (1986).
    In Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the 
Court reemphasized that conduct must rise above a certain minimum level 
to be actionable: `` `[S]imple teasing,' * * * offhand comments, and 
isolated incidents (unless extremely serious) will not amount to 
discriminatory changes in the `terms and conditions of employment.' '' 
118 S. Ct. at 2283 (citations omitted). To determine whether an 
environment is sufficiently hostile or abusive, courts must look at all 
of the circumstances, including the frequency and severity of the 
conduct. Id. These standards should ``ensure that Title VII does not 
become a `general civility code.' * * * Properly applied, they will 
filter out complaints attacking `the ordinary tribulations of the 
workplace'' * * *.'' Id. at 2283-84 (citations omitted).
    The Commission also has repeatedly stated that isolated comments, 
petty slights, and trivial annoyances are not actionable. See EEOC 
Compliance Manual Section 8, ``Retaliation,'' No. 915.003 (May 20, 
1998) at 8-13; EEOC Policy Guidance on Current Issues of Sexual 
Harassment, No. N-915.050 (March 19, 1990) at 14; EEOC Enforcement 
Guidance on Harris v. Forklift Systems, Inc., No. 915.002 (March 8, 
1994) at 6 n.4; see also, e.g., Cobb v. Department of the Treasury, 
supra.; Moore v. United States Postal Service, Appeal No. 01950134 
(April 17, 1997); Backo v. United States Postal Service, Request No. 
05960227 (June 10, 1996); Phillips v. Department of Veterans Affairs, 
Request No. 05960030 (July 12, 1996); Miller v. United States Postal 
Service, Request No. 05941016 (June 2, 1995); Banks v. Department of 
Health and Human Services, Request No. 05940481 (February 16, 1995) . 
However, a persistent pattern of harassing conduct or a particularly 
severe individual incident, when viewed in light of the work 
environment as a whole, may constitute a hostile environment. See, 
e.g., Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 
25, 1996).
    The Commission cautions that before dismissing a complaint the 
administrative judge must ensure that the claim has not been fragmented 
inappropriately into more than one complaint. As discussed above under 
the heading ``Fragmentation,'' a series of subsequent events or 
instances involving the same claim should not be treated as separate 
complaints, but should be added to and treated as part of the first 
claim.
    Summary Judgment: The problem identified by the Workgroup can also 
be addressed through more effective use of the existing summary 
judgment authority. Summary judgment is proper when ``material facts 
are not in genuine dispute.'' 29 CFR 1614.109(e). Only a dispute over 
facts that are truly material to the outcome of the case should 
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 248 (1986) (only disputes over facts that might affect the outcome 
of the suit under the governing law, and not irrelevant or unnecessary 
factual disputes, will preclude the entry of summary judgment). For 
example, when a complainant is unable to set forth facts necessary to 
establish one essential element of a prima facie case, a dispute over 
facts necessary to prove another element of the case would not be 
material to the outcome. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 
(1986).
    Moreover, a mere recitation that there is a factual dispute is 
insufficient. The party opposing summary judgment must identify the 
disputed facts in the record with specificity and demonstrate that 
there is a dispute by producing affidavits or records that tend to 
disprove the facts asserted by the moving party. In addition, the non-
moving party must explain how the facts in dispute are material under 
the legal principles applicable to the case. 29 CFR 1614.109(e)(2); 
Anderson, 477 U.S. at 257; Celotex, 477 U.S. at 322-24; Patton v. 
Postmaster General, Request No. 05930055 (1993) (summary judgment 
proper where appellant made only a general pleading that his job 
performance was good but set forth no specific facts regarding his 
performance and identified no specific inadequacies in the 
investigation).

Class Complaints

    The Federal Sector Workgroup identified a series of concerns with 
the class complaint process. It found that despite studies indicating 
that class-based discrimination may continue to exist in the federal 
government, recent data reflect that very few class complaints are 
filed or certified at the administrative level. While an effective 
administrative process for class complaints offers several important 
advantages over litigation in federal court, including informality, 
lower cost, and speed of resolution, the Workgroup found that the 
current process does not adequately address class-based discrimination 
in the federal government. As a result, complainants often have elected 
to pursue their complaints in federal court.
    Class actions play a particularly vital role in the enforcement of 
the equal employment laws. They are an essential mechanism for 
attacking broad patterns of workplace discrimination and providing 
relief to victims of discriminatory policies or systemic practices. The 
courts have long recognized that class actions ``are powerful stimuli 
to enforce Title VII,'' providing for the ``removal of artificial, 
arbitrary, and unnecessary barriers to employment when the barriers 
operate invidiously to discriminate on the basis of racial or other 
impermissible classification.'' Wetzel v. Liberty Mutual Ins. Co., 508 
F.2d 239, 254 (3d Cir.), cert. denied, 421 U.S. 1011 (1975). The class 
action device exists, in large part, to vindicate the interests of 
civil rights plaintiffs. See 5 James W. Moore, Moore's Federal Practice 
Sec. 23.43[1][a], at 23-191 (3d ed. 1997).
    These same policies apply with equal force in the federal sector. 
Accordingly, the Commission is making several changes in its regulation 
to strengthen the class complaint process. The purpose of these changes 
is to ensure that complaints raising class issues are not unjustifiably 
denied class certification in the administrative process and that class 
cases are resolved under appropriate legal standards consistent with 
the principles applied by federal courts.
    In the NPRM, the Commission proposed four regulatory changes to the 
class complaint procedures found at 29 CFR 1614.204. The Commission proposed to revise section 1614.204(b) to 
provide that a complainant may move for class certification at any 
reasonable point in the process when it becomes apparent that there are 
class implications raised in an individual complaint. If a complainant 
moves for class certification after completing counseling, the 
complainant will not be required to return to the counseling stage. 
Individual commenters and those representing civil rights groups 
uniformly endorsed the proposed change. Some agency commenters 
supported the change but asked that the regulation define ``reasonable 
point in the process''; some suggested that this point be during the 
investigation or within a short time after distribution of the agency 
investigative file, rather than during discovery. Other agencies 
opposed the change, arguing that it would entail additional 
investigative costs, cause delays and invite abuse by complainants 
seeking to bypass the counseling process by making frivolous class 
allegations. They maintained that a complainant should have to elect 
between a class or an individual claim at the pre-complaint stage. If a 
complainant can move for class certification on the eve of hearing, 
they argued, the agency would be required to put the individual 
complaint on hold and start its investigation all over again as a class 
case. Others objected only to eliminating counseling, as that is how 
the complainant is informed of his or her rights and responsibilities 
as class agent.
    The Commission believes that this revision is an important step 
toward removing unnecessary barriers to class certification of 
complaints that are properly of a class nature. The Commission has 
consistently recognized that its decisions on class certification must 
be guided by the complainant's lack of access to pre-certification 
discovery on class issues; this is different from the situation of a 
federal court Rule 23 plaintiff who does have access to pre-
certification discovery on class issues. Similarly, an individual 
complainant often will not have reason to know at the counseling stage, 
and sometimes even after the agency's investigation, that the 
challenged action actually reflects an agency policy or practice 
generally applicable to a class of similarly situated individuals.
    Because of the importance of discovery, the Commission has decided 
not to place the restrictions suggested by some of the commenters on 
the time at which a complainant may seek class certification. The 
Commission intends that ``reasonable point in the process'' be 
interpreted to allow a complainant to seek class certification when he 
or she knows or suspects that the complaint has class implications, 
i.e., it potentially involves questions of law or fact common to a 
class and is typical of the claims of a class. Normally, this point 
will be no later than the end of discovery at the hearing stage. The 
complainant must seek class certification within a reasonable time 
after the class nature of the case becomes apparent. The administrative 
judge will deny class certification if the complainant has unduly 
delayed in moving for certification. In response to the comments, the 
Commission has added language to this effect in the regulation. The 
Commission disagrees with those commenters who advocated returning the 
complaint for additional counseling. It will be the responsibility of 
the agency or administrative judge, as appropriate, to ensure that the 
class agent is advised of his or her obligations at the time the 
complainant moves for certification. The Commission believes it is 
impracticable and unproductive to require the complainant to return to 
counseling at this stage.
    A request for class certification made after the filing of an 
individual complaint but before the issuance of the notice required by 
section 1614.108(f) will be forwarded to an EEOC administrative judge 
for a decision on whether to accept or dismiss a class complaint. The 
administrative judge's decision will be appealable to the Office of 
Federal Operations. The filing of an appeal will not stay further 
proceedings, although either party may request that the administrative 
judge stay the administrative process pending a decision on appeal.
    The Commission proposed in the Notice of Proposed Rulemaking to 
amend section 1614.204(d  

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