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MSPB & EEOC hearings, OFO appeals, informal and formal discrimination claims Non attorney uniquely serving nationwide from Philadelphia |
| 29 C.F.R. Part 1614.204 Class Complaints |
§1614.204 Class complaints.
(a) Definitions. (1) A class is a group of employees, former
employees or applicants for employment who, it is alleged, have been
or are being adversely affected by an agency personnel management
policy or practice that discriminates against the group on the basis
of their race, color, religion, sex, national origin, age or handicap.
(2) A 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;
(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 1614.105.
(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 agency that allegedly
discriminated 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 an agency's
receipt of a complaint, the agency shall: Designate an agency
representative who shall be any of the individuals referenced in
1614.102(b)(3), 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 agency to submit additional information relevant to the
complaint.
(2) The administrative judge may recommend that the agency dismiss
the complaint, or any portion, for any of the reasons listed in
1614.107 or because it does not meet the prerequisites of a class
complaint under 1614.204(a)(2).
(3) If the 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 recommend that the agency
dismiss the allegation. If the explanation is satisfactory, the
administrative judge shall refer the allegation to the agency 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
recommend that the agency 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 recommed that the agency extend
the time limits for filing a complaint and for consulting with a
Counselor in accordance with the time limit extension provisions
contained in 1614.105(a)(2) and 1614.604.
(6) When appropriate, the administrative judge may recommend that
a class be divided into subclasses and that each subclass be treated
as a class, and the provisions of this section then shall be construed
and applied accordingly.
(7) The administrative judge's written recommendation to the
agency on whether to accept or dismiss a complaint and the complaint
file shall be transmitted to the agency and notification of that
transmittal shall be sent to the agent. The administrative judge's
recommendation to accept or dismiss shall become the agency decision
unless the agency accepts, rejects or modifies the recommeded decision
within 30 days of the receipt of the recommended decision and
complaint file. The agency shall notify the agent by certified mail,
return receipt requested, and the administrative judge of its decision
to accept or dismiss a complaint. At the same time, the agency shall
forward to the agent copies of the administrative judge's
recommendation and the complaint file. The 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 A or that the complaint is also
dismissed as an individual complaint in accordance with 1614.107
. In
addition, it shall inform the agent of the right to appeal the
dismissal of the class complaint to the Office of Federal Operations
or to file a civil action and include EEOC Form 573, Notice Of
Appeal/Petition.
(e) Notification. (1) Within 15 days of accepting a class
complaint, the agency 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) The name of the agency or organizational segment, 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 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 notify the agent and the agency 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, caused 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 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 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 representative of
the agency a copy of all materials obtained concerning the complaint
and provide opportunity for the agent to discuss materials with the
agency representative and attempt resolution of the complaint.
(2) The complaint may be resolved by agreement of the agency and
the agent at any time as long as the agreement is fair and reasonable.
(3) If the complaint is resolved, the terms of the resolution
shall be reduced to writing and signed by the agent and the agency.
(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 shall state the relief, if any, to be granted by the
agency. A resolution shall bind all members of the class. Within 30
days of the date of the notice of resolution, any member of the class
may petition the EEO Director to vacate the resolution because it
benefits only the class agent or is otherwise not fair and reasonable.
Such a petition will be processed in accordance with 1614.204
(d) and
if the administrative judge finds that the resolution is not fair and
reasonable, he or she shall recommend that the resolution be vacated
and that the original class agent be replaced by the petitioner or
some other class member who is eligible to be the class agent during
further processing of the class complaint. An agency's decision that
the resolution is not fair and reasonable vacates any agreement
between the former class agent and the agency. An agency decision on
such a petition shall inform the former class agent or the petitioner
of the right to appeal the decision to the Office of Federal
Operations and include EEOC Form 573, Notice of Appeal/Petition.
(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 29 CFR 1614.109
(a)
through (f).
(i) Report of findings and recommendations. (1) The
administrative judge shall transmit to the agency 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 agency of the date
on which the report of findings and recommendations was forwarded to
the agency.
(j) Agency decision. (1) Within 60 days of receipt of the report
of findings and recommendations issued under 1614.204
(i), the agency
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 agency 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 agency's final decision is to reject or modify the
findings and recommendations of the administrative judge, the decision
shall contain specific reasons for the agency's action.
(4) If the agency has not issued a final decision with 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 agency 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 agency shall require any relief
authorized by law and determined to be necessary or desirable to
resolve the issue of discrimination.
(6) A final decision on a class complaint shall, subject to
subpart D of this part, be binding on all members of the class and the
agency.
(7) The final decision shall inform the agency of the right to
appeal or to file a civil action in accordance with subpart D of this
part and of the applicable time limits.
(k) Notification of decision. The agency 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 agency
within 10 days of the transmittal of its final decision to the agent.
(l) Relief for individual class members. (1) When discrimination
is found, an agency 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 1614.501.
(2) When class-wide discrimination is not found, but it is found
that the class agent is a victim of discrimination, 1614.501
shall
apply. The agency shall also, within 60 days of the issuance of the
final decision finding no class-wide discrimination, issue the
acknowledgement of receipt of an individual complaint as required by
1614.106(d) and process in accordance with the provisions of subpart
A 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 head of the agency or
its EEO Director within 30 days of receipt of notification by the
agency of its final decision. The claim must include a specific,
detailed showing that the claimant is a class member who was affected
by a personnel action or matter resulting from the discriminatory
policy or practice, and that this discriminatory action took place
within the period of time for which the agency found class-wide
discrimination in its final decision. The period of time for which
the agency finds class-wide discrimination shall begin not more than
45 days prior to the agent's initial contact with the Counselor and
shall end not later than the date when the agency eliminates the
policy or practice found to be discriminatory in the final agency
decision. The agency 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 D
of this part and the applicable time limits.
How to File a Formal Complaint of discrimination in federal employment. (You must first file an
informal (pre-complaint) complaint within 45 days of the act of harm).
Federal EEO Process explained.
(a) Definitions. (1) A class is a group of employees, former
employees or applicants for employment who, it is alleged, have been
or are being adversely affected by an agency personnel management
policy or practice that discriminates against the group on the basis
of their race, color, religion, sex, national origin, age or handicap.
(2) A 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;
(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 1614.105.
(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 agency that allegedly
discriminated 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 an agency's
receipt of a complaint, the agency shall: Designate an agency
representative who shall be any of the individuals referenced in
1614.102(b)(3), 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 agency to submit additional information relevant to the
complaint.
(2) The administrative judge may recommend that the agency dismiss
the complaint, or any portion, for any of the reasons listed in
1614.107 or because it does not meet the prerequisites of a class
complaint under 1614.204(a)(2).
(3) If the 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 recommend that the agency
dismiss the allegation. If the explanation is satisfactory, the
administrative judge shall refer the allegation to the agency 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
recommend that the agency 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 recommed that the agency extend
the time limits for filing a complaint and for consulting with a
Counselor in accordance with the time limit extension provisions
contained in 1614.105(a)(2) and 1614.604.
(6) When appropriate, the administrative judge may recommend that
a class be divided into subclasses and that each subclass be treated
as a class, and the provisions of this section then shall be construed
and applied accordingly.
(7) The administrative judge's written recommendation to the
agency on whether to accept or dismiss a complaint and the complaint
file shall be transmitted to the agency and notification of that
transmittal shall be sent to the agent. The administrative judge's
recommendation to accept or dismiss shall become the agency decision
unless the agency accepts, rejects or modifies the recommeded decision
within 30 days of the receipt of the recommended decision and
complaint file. The agency shall notify the agent by certified mail,
return receipt requested, and the administrative judge of its decision
to accept or dismiss a complaint. At the same time, the agency shall
forward to the agent copies of the administrative judge's
recommendation and the complaint file. The 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 A or that the complaint is also
dismissed as an individual complaint in accordance with 1614.107
. In
addition, it shall inform the agent of the right to appeal the
dismissal of the class complaint to the Office of Federal Operations
or to file a civil action and include EEOC Form 573, Notice Of
Appeal/Petition.
(e) Notification. (1) Within 15 days of accepting a class
complaint, the agency 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) The name of the agency or organizational segment, 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 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 notify the agent and the agency 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, caused 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 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 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 representative of
the agency a copy of all materials obtained concerning the complaint
and provide opportunity for the agent to discuss materials with the
agency representative and attempt resolution of the complaint.
(2) The complaint may be resolved by agreement of the agency and
the agent at any time as long as the agreement is fair and reasonable.
(3) If the complaint is resolved, the terms of the resolution
shall be reduced to writing and signed by the agent and the agency.
(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 shall state the relief, if any, to be granted by the
agency. A resolution shall bind all members of the class. Within 30
days of the date of the notice of resolution, any member of the class
may petition the EEO Director to vacate the resolution because it
benefits only the class agent or is otherwise not fair and reasonable.
Such a petition will be processed in accordance with 1614.204
(d) and
if the administrative judge finds that the resolution is not fair and
reasonable, he or she shall recommend that the resolution be vacated
and that the original class agent be replaced by the petitioner or
some other class member who is eligible to be the class agent during
further processing of the class complaint. An agency's decision that
the resolution is not fair and reasonable vacates any agreement
between the former class agent and the agency. An agency decision on
such a petition shall inform the former class agent or the petitioner
of the right to appeal the decision to the Office of Federal
Operations and include EEOC Form 573, Notice of Appeal/Petition.
(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 29 CFR 1614.109
(a)
through (f).
(i) Report of findings and recommendations. (1) The
administrative judge shall transmit to the agency 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 agency of the date
on which the report of findings and recommendations was forwarded to
the agency.
(j) Agency decision. (1) Within 60 days of receipt of the report
of findings and recommendations issued under 1614.204
(i), the agency
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 agency 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 agency's final decision is to reject or modify the
findings and recommendations of the administrative judge, the decision
shall contain specific reasons for the agency's action.
(4) If the agency has not issued a final decision with 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 agency 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 agency shall require any relief
authorized by law and determined to be necessary or desirable to
resolve the issue of discrimination.
(6) A final decision on a class complaint shall, subject to
subpart D of this part, be binding on all members of the class and the
agency.
(7) The final decision shall inform the agency of the right to
appeal or to file a civil action in accordance with subpart D of this
part and of the applicable time limits.
(k) Notification of decision. The agency 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 agency
within 10 days of the transmittal of its final decision to the agent.
(l) Relief for individual class members. (1) When discrimination
is found, an agency 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 1614.501.
(2) When class-wide discrimination is not found, but it is found
that the class agent is a victim of discrimination, 1614.501
shall
apply. The agency shall also, within 60 days of the issuance of the
final decision finding no class-wide discrimination, issue the
acknowledgement of receipt of an individual complaint as required by
1614.106(d) and process in accordance with the provisions of subpart
A 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 head of the agency or
its EEO Director within 30 days of receipt of notification by the
agency of its final decision. The claim must include a specific,
detailed showing that the claimant is a class member who was affected
by a personnel action or matter resulting from the discriminatory
policy or practice, and that this discriminatory action took place
within the period of time for which the agency found class-wide
discrimination in its final decision. The period of time for which
the agency finds class-wide discrimination shall begin not more than
45 days prior to the agent's initial contact with the Counselor and
shall end not later than the date when the agency eliminates the
policy or practice found to be discriminatory in the final agency
decision. The agency 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 D
of this part and the applicable time limits.
How to File a Formal Complaint of discrimination in federal employment. (You must first file an
informal (pre-complaint) complaint within 45 days of the act of harm).
Federal EEO Process explained.