Penn v. Schlesinger Brief for the Respondents in Opposition

    No.  7 4 -4 7 6

J it the JSiyreme djmtrt trf the I f o M  States
O ctober  T e r m , 1974

W il l ie  P e n n , e t  a l ., p e t it io n e r s

v.
J a m e s  R . S c h l e s in g e r , I n d iv id u a l l y  a n d  as  

S ec r e ta r y  op  D e f e n se , et  a l .

ON PETITION FOR A WRIT OF CERTIORARI TO TEE UNITED 
STATES COURT OF APPEALS FOR TEE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ROBERT H. BORK,
. Solicitor General,

CARLA A. HILLS,
Assistant Attorney General, 

ROBERT E. KOPP,
JAMES C. HAIR, Jr.,

Attorneys,
Department of Justice, 

Washington, D.C. 20530.



I N D E X

Page

Opinions below____ ____________________________ 1
Jurisdiction____________________________________  1
Question presented_____________________________  2
Constitutional, statutory, and regulatory pro­

visions involved______________________________ 2
Statement_____________________________________  2
Argument________________________________  9
Conclusion_______________________________________  20
Statutory appendix_____________________________ 21

CITATIONS
Cases:

Beale v. Blount, 461 F. 2d 1133_____________  7, 19
Caldwell v. National Brewing Co., 443 F. 2d

1044, certiorari denied, 405 U.S. 916________  19
Christian v. New York Department of Labor,

414 U.S. 614_______________________________ 18
Damico v. California, 389 U.S. 416____________  19
Dugan v. Rank, 372 U.S. 609_______________  5, 6
Dunham v. Crosby, 435 F. 2d 1177_____________ 19
Risen v. Eastman, 421 F. 2d 560, certiorari

denied, 400 U.S. 841_______________________  19
Hadnott v. Laird, 463 F. 2d 304_____________ 18, 19
Houghton v. Shafer, 392 U.S. 639______________ 19
Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682_____________________________ 5, 6
McKart v. United States, 395 U.S. 185___ 8, 9,13,14 
McNeese v. Board of Education, 373 U.S. 668. 18, 19 
Monroe v. Pape, 365 U.S. 167_________________ 19

( i )



II

Cases— Continued Page
Sampson v. Murray, 415 U.S. 61____________  18
Wilwording v. Swenson, 404 U.S. 249________ 19
Young v. International Telephone & Telegraph 

Co., 438 F. 2d 757_______________________  19
Constitution, statutes and regulations:

United States Constitution:
Fifth Amendment__________________  2, 3, 4, 21
Thirteenth Amendment________________  3

Civil Rights Act of 1870, 16 Stat. 144
42 U.S.C. 1981______ 2, 3, 4, 5, 7, 8-9, 16, 17, 18

Equal Employment Opportunity Act of 1972,
86 Stat. I l l ,  Section 717, 42 U.S.C. (Supp.
Ill, 1973 ed.) 2000e-16____ 2, 5, 11, 12, 17, 19, 21

Civil Rights Act of 1964, 78 Stat. 253, Section
701, 42 U.S.C. 2000e(b)_________ 9-10, 12, 17, 19

Civil Rights Act of 1964, 78 Stat. 253, Title 
VII, as amended, 42 U.S.C. 2000e, et seq.:

42 U.S.C. 2000e_______________________  19
42 U.S.C. 2000e-5(e)__________________  12,25
42 U.S.C. Supp. Ill, 1973 ed. 2000e-16__ 2,

11, 17, 19, 21
42 U.S.C. Supp. Ill, 1973 ed. 2000e-

16(c)_______________________________  5, 12
42 U.S.C. Supp. Ill, 1973 ed. 2000e-

16(e)------------
5 U.S.C. 7151______
28 U.S.C. 1292(b). _
28 U.S.C. 1331_____
28 U.S.C. 1343(4)... 
28 U.S.C. 1346(a)(2)
28 U.S.C. 1361.___
28 U.S.C. 2201_____
5 C.F.R. Part 300__ 
5 C.F.R. Part 713. _ 
5 C.F.R. 713.251__

___  12
2, 10, 16, 25
____  6
___  3
____  3

3
3

29
.. 2, 10, 34 
___ 8,16



I ll

Miscellaneous: P a g e

Executive Order 11246, 30 Fed. Reg. 12319_.. 2, 10 
Executive Order 11478, 34 Fed. Reg. 12985 . _ 3, 4,

5, 10, 26
Executive Order 11590, 36 Fed. Reg. 783E 3, 10, 26
H. Rep. No. 92-238, 92d Cong., 1st Sess____  10
S. Rep. No. 92-415, 92d Cong., 1st Sess_____ 11



<3n the Supreme d^ourt of the United States
O ctober  T e r m , 1974

No. 74-476

W il l ie  P e n n , et  a l ., p e t it io n e r s  
v.

J a m e s  R. S c h l e s in g e r , I n d iv id u a l l y  a n d  a s  
S ecr etary  op D e f e n se , e t  a l .

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, sitting en 
banc (App. la-12a), is reported at 497 P. 2d 970. The 
original panel opinion of the court of appeals (App. 
13a-45a) is reported at 490 P. 2d 700. The order of 
the district court (App. 47a-61a) is reported at 350 
P. Supp. 752.

JURISDICTION

The judgment of the court of appeals, sitting en 
banc, was entered on July 26, 1974. The petition for 
a writ of certiorari was filed on October 23, 1974. The

(i)



2

jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1).

QUESTION PRESENTED

Whether, in a suit brought by two individual em­
ployees of the federal government and others sim­
ilarly situated and by the Alabama 1STAACP charg­
ing 17 federal agencies with systematic discrimination 
in the employment and promotion of blacks in Ala­
bama, the allegations that one individual plaintiff was 
unaware of available administrative remedies and the 
other was discouraged from proceeding administra­
tively are sufficient grounds for allowing maintenance 
of the suit without a prior exhaustion of available ad­
ministrative remedies.

CONSTITUTIONAL, STATUTORY, AND REGULATORY 
PROVISIONS INVOLVED

The Fifth Amendment to the United States Consti­
tution and the pertinent provisions of the Civil Rights 
Act of 1870, 16 Stat. 144, 42 U.S.C. 1981; the Equal 
Employment Opportunity Act of 1972, 86 Stat. I l l ,  
amending Title V II  of the Civil Rights Act of 1964, 
78 Stat. 253, 42 U.S.C. (Supp. I l l ,  1973 ed.) 2000e-16; 
and 5 U.S.C. 7151; together with Executive Order 
11478, 34 Fed. Reg. 12985, and the Employment (Part 
300 of 5 C.F.R.) and Equal Opportunity Regulations 
(Part 713 of 5 C .F.R .), are set forth in a Statutory 
Appendix (hereinafter “ Stat. App.” ), infra, pp. 
21-67.

STATEMENT

The named petitioners are Willie Penn and Charles 
Foster—two federal employees who claim that they 
have been discriminated against by their employer,



3

the Department of Defense (D O D )—and the Ala­
bama State Conference of the NAACP, Inc. They 
brought this suit on behalf of themselves, the orga­
nization’s membership, and “ all blacks in Alabama 
similarly situated” (App. 66a) against the United 
States and the individuals heading seventeen separate 
federal agencies employing persons in Alabama, in­
cluding DOD.1

In their complaint, as amended,2 petitioners alleged 
that: (1) Penn and Poster, both civilian employees 
of DOD at Maxwell Air Force Base, Alabama, have 
been denied promotions or advancement solely be­
cause of their race (App. 82a-85a) ; (2) Penn’s white 
supervisor, to whom he had repeatedly made known 
his desire for advancement, had failed to inform him 
of his right to file a complaint with an Equal Em­
ployment Opportunity Officer, in breach of her legal 
duty (App. 96a-97a) ; and (3) Foster’s white super­
visors, including an Equal Employment Opportunity

1 The federal agency heads sued were the Secretaries of the 
Departments of Defense, Treasury, Interior, Agriculture, Com­
merce, Labor, Health, Education and Welfare, Housing and 
Urban Development, and Transportation; the Attorney Gen­
eral; the Postmaster General; the Directors of the General 
Services Administration and the Selective Service System; the 
Comptroller General; the Chairmen o f the Railroad Retire­
ment Board and the National Aeronautics and Space Adminis­
tration and the Administrator of the Small Business Adminis­
tration (App. 69a-74a).

2 Petitioner Foster was brought into the action by amend­
ment to the complaint (App. 95a-103a). Jurisdiction was 
alleged under the Fifth and Thirteenth Amendments to the 
United States Constitution; 42 U.S.C. 1981; 28 U.S.C. 1331, 
1343(4), 1346(a)(2), 1361 and 2201; and Executive Order 
11478, 34 Fed. Reg. 12985, as amended by Executive Order 
11590, 36 Fed. Reg. 7831 (Stat. App., infra, pp. 21-67). An 
amount in excess of $10,000 was alleged to be involved (App. 
65a).



4

Counselor to whom he had repeatedly complained 
about his lack of advancement, had discouraged him 
from prosecuting his complaint administratively by 
advising, for example, “ that he would have to file 
a suit if  he expected to carry his complaint fur­
ther”  (App. 97a-102a). They further alleged that all 
respondent federal agencies have “ engaged in a 
systematic practice of racial discrimination in em­
ployment of blacks in Alabama” , and that the statu­
tory and constitutional rights of all Alabama blacks 
have been violated by the failure of federal agencies 
“ to effectively recruit blacks in Alabama for employ­
ment * * * ”  and by the agencies’ use of “ employ­
ment entrance tests * * * where blacks scored lower 
than whites on the average and where such tests had 
not been validated to job performance * * * ” (App. 
79a-87a).3

As relief, petitioners requested: (1) declarations 
that respondents had violated 42 U.S.C. 1981 by en­
gaging in “ a practice of denial of equal right to con­
tract with blacks in Alabama in employment * * 
the Fifth Amendment by engaging in a practice of 
systematic discrimination against blacks in employ­
ment, and Executive Order 11478;4 and (2) orders

3 Plaintiffs cited numerous statistics in support o f these 
allegations, which purport to show generally that the per­
centage of blacks employed by the federal government in 
Alabama is approximately 2.6%, whereas the black popula­
tion in Alabama is approximately 26.4% (App. 74a-82a, 89a- 
94a).

4 Executive Order 11478 directed the establishment of a com­
prehensive administrative scheme for insuring equal employ­
ment opportunities in the federal government (see Stat. App., 
infra, p. 26).



5

compelling defendant agencies to perform their duty 
under Executive Order 11478, requiring the agencies 
“ to institute a practice of hiring one black for every 
one white hired until the ratio of blacks in defendants’ 
Federal jobs in Alabama is approximately in pro­
portion to the percentage of blacks in Alabama’s pop­
ulation” , and requiring DOD to promote Penn and 
Foster immediately (Penn to a GfS-11 level and Foster 
to at least a OS-5 level rating) and to pay them the 
salary they would have received, with interest, had 
they not been denied promotion on account of race 
(App. 86a-87a, 102a-103a).

Respondents moved to dismiss the suit on the 
grounds of failure to exhaust administrative remedies 
and of sovereign immunity, except as waived in Sec­
tion 717(c) of the Equal Employment Opportunity 
Act of 1972, 42 U.S.C. (Supp III , 1973 ed.) 2000e- 
16(c). Petitioners opposed dismissal on the alterna­
tive grounds, among others, that Penn and Foster had 
sufficiently exhausted their administrative remedies 
because their agency had failed to advise them that 
they could file administrative complaints alleging dis­
crimination or that exhaustion of administrative 
remedies is not a prerequisite to maintaining an action 
under 42 U.S.C. 1981.

On grounds of sovereign immunity, the district 
court granted respondents’ motion to dismiss as to the 
United States (App. 49a-55a). However, the court 
denied the motion to dismiss as to respondent agency 
heads, finding that petitioners’ allegations against 
them fell within the Larson-Dugan exception to the



6

doctrine of sovereign immunity 5 6 (App. 56a-57a) and 
that the individual petitioners had adequately ex­
hausted their administrative remedies (App. 57 a - 
60a). With regard to the requirement of exhaustion, 
no mention was made by the court of the Alabama 
NAACP.6 The court also authorized petitioners, upon 
the expiration of fifteen days, to proceed with their 
discovery (App. 61a).

Together with its order, the district court issued the 
certificate necessary for prosecution of an interlocu­
tory appeal under 28 U.S.C. 1292(b) (App. 46a). The 
court of appeals granted respondents leave to take 
such an appeal7 and ordered that all further proceed­
ings before the district court in the case be stayed 
pending final disposition of the appeal.8

A  divided panel of the court of appeals affirmed the 
order of the district court. The court first held that 
petitioners’ allegation that the federal government

5 See Larson v. Domestic <& Foreign Commerce C orf., 337 U.S. 
682; Dugan v. Bank, 372 U.S. 609.

6 The district court found it unnecessary to rule on whether 
42 U.S.C. 1981 “runs against federal officers” (App. 55a, n. 3).

7 Respondents limited their application for leave to take an 
interlocutory appeal to two issues: (1) the exhaustion of ad­
ministrative remedies question; and (2) whether the relief 
sought by the complaint is barred by the doctrine of sovereign 
immunity. Respondents, however, never briefed or argued the 
latter issue in the court of appeals and have not argued on ap­
peal that the doctrine of sovereign immunity bars suits for 
racial discrimination in employment against them or the United 
States.

8 Thus, appeal was authorized before respondents had filed 
an answer to the complaint and before the issue of the propriety 
of petitioners’ maintaining a class action in the circumstances 
alleged and the definition of the class had been litigated.



7

violated their contract rights on account of race does 
state a cause o f action under 42 U.S.C. 1981 that is 
not barred by the doctrine of sovereign immunity and 
for which relief in the nature of mandamus is avail­
able (App. 15a-23a). Then, confining its analysis of 
the exhaustion of administrative remedies issue solely 
to the two individual petitioners, without reference 
either to petitioner NAACP or the class which the 
individual petitioners purport to represent, the court 
held that all petitioners had sufficiently exhausted 
their administrative remedies (App. 23a-28a). The 
court based this holding on the individual petitioners’ 
allegations that they had not been advised of their 
administrative remedies, or had been misled as to the 
availability of such remedies by their DOI) super­
visors (ibid.).9

The dissenting judge, observing that “ [t]his is not 
run. of the mill litigation but potentially a massive 
case” (App. 29a), found petitioners’ allegations in­

9 The panel majority found binding the distinction drawn in 
Beale v. Blount, 461 F. 2d 1133, 1138-1139 (C.A. 5), between 
federal court actions under 42 U.S.C. 1981 against federal offi­
cials and such actions against state agencies or officials. Ac­
cordingly, the majority stated that “ [w]e cannot accept appel­
lant’s [sic—appellees’] argument * * * that we equate the pres­
ent suit with one in which a Section 1981 plaintiff may deliber­
ately bypass administrative remedies under Title V II of the 
Civil Rights Act” (App. 24a, n. 11). The concurring opinion, 
however, stated that “ it seems clear from existing precedent that 
in an action under the Civil Rights Act of 1866, 42 U.S.C. 1981 
et seq., exhaustion of administrative remedies is not required” 
and recommended that the circuit “ take the earliest oppor­
tunity to rationalize and make consistent this confusing area 
of the law” (App. 28a-29a).



8

sufficient to permit them to avoid exhausting available 
administrative remedies as a prerequisite to their 
suit (App. 29a-45a). He was of the opinion that the 
policies underlying adherence by the courts to the 
exhaustion requirement discussed in McKart v. United 
States, 395 U.S. 185, 193-195, were disserved by the 
majority decision allowing petitioners to bypass the 
administrative remedies available to them (App. 41a).

Thereafter, respondents timely petitioned for, and 
were granted, rehearing en banc (490 F. 2d at 714). 
The full court of appeals concluded, for the reasons 
set forth in the opinion of the dissenting member of the 
original panel (which the court en banc thus adopted 
as its own), “ that the claims of the individual plain­
tiffs should have been dismissed for failure to exhaust 
administrative remedies”  (App. 2a). Moreover, find­
ing that the Alabama NAACP “ now has an adminis­
trative remedy under amended regulations adopted 
shortly after the District Court denied the motion to 
dismiss,”  the court concluded that “under the circum­
stances of this case it too should be required to ex­
haust”  (App. 2a, n. I ) .10 Accordingly, the case was 
remanded to the district court with instructions to dis­
miss (App. 3a). Four judges dissented (App. 3a-12a) 
on the grounds that exhaustion of administrative 
remedies is not a prerequisite to a suit under 42 TJ.S.C.

10 The court’s reference was to 5 C.F.K. 713.251 which now 
sets out procedures for allegations of discrimination made by 
organizations or other third parties. Under the regulation, the 
party submitting the allegation shall be notified of the agency's 
decision on the allegation and may appeal the agency decision 
to the Civil Service Commission. See 5 C.F.R. 713.251(b) 
and (c).



9

1981 against federal officials and that, in any event, 
on the facts of this case the requirement has either 
been satisfied or should be excused (ibid.).

ARGUMENT

The en banc decision of the court of appeals is cor­
rect. It is consistent with the requirements of current 
law governing federal employment discrimination 
suits and properly applies the principles of the ex­
haustion of administrative remedies doctrine sum­
marized by this 'Court in McKart v. United States, 
supra. Review by this Court is therefore not war­
ranted.

1. Petitioners contend that the effectiveness of the 
administrative complaint process for federal employ­
ment discrimination will be promoted by a reversal 
of the en banc decision of the court of appeals, which 
they assert (Pet. 12-13) has both frustrated the con­
gressional goal of eliminating discrimination in fed­
eral employment “ by refusing to police the admin­
istrative process”  and undermined the effectiveness 
of that administrative complaint process “ by sanc­
tioning the wrong-doing of administrative officers and 
counselors.” But a consideration of the governing 
statutes and the circumstances of this case demon­
strate otherwise.

a. In enacting the Civil Rights Act of 1964 Con­
gress, while expressly excluding the United States 
from coverage as an “ employer” for purposes of the 
Equal Employment Opportunities subchapter (Title 
V II ) , provided “ [t]hat it shall be the policy of the 
United States to insure equal employment opportuni­



10

ties for Federal employees without discrimination 
because of race, color, religion, sex, or national origin 
and the President shall utilize his existing authority 
to effectuate this policy.” 11 This policy was imple­
mented with the promulgation in 1965 of Executive 
Order 11246, 30 Fed. Reg. 12319, which directed, inter 
alia, that the Civil Service Commission provide agen­
cies with guidance and supervision in the develop­
ment of Equal Employment Opportunity affirmative 
action programs and that it issue regulations pro­
viding aggrieved employees and applicants for em­
ployment with administrative remedies, including the 
opportunity for impartial agency review of their com­
plaints and appeal to the Commission.12 Regulations 
establishing such a remedial scheme were thereafter 
promulgated and have since been revised periodically 
by expansion of the relief available. See 5 C.F.R. 
Part 713.

In 1972, Congress enacted the Equal Employment 
Opportunity Act of 1972, amending Title Y II  of the 
Civil Rights Act of 1964. The Committee on Education 
and Labor of the House of Representatives stated in 
its report: 13

Despite the series of executive and adminis­
trative directives on equal employment oppor­

11 Pub. L. 88-352, Section 701, 78 Stat. 253, formerly 42 
U.S.C. 2000e(b). In 1966, this statement of policy was de­
leted from the Civil Rights Act and incorporated, with insub­
stantial changes, into that part of the Code covering federal 
employees, at 5 U.S.C. 7151.

12 Executive Order 11246 was amended by Executive Order 
11478, 34 Fed. Reg. 12985, and Executive Order 11590, 36 Fed. 
Reg. 7831.

13 H. Rep. No. 92-238, 92d Cong., 1st Sess., p. 23.



11

tunity, Federal employees, unlike those in the 
private sector to whom Title V II  is applicable, 
face legal obstacles in obtaining meaningful 
remedies. There is serious doubt that court re­
view is available to the aggrieved Federal em­
ployee. Monetary restitution or back pay is not 
attainable. In promotion situations, a critical 
area of discrimination, the promotion is often 
no longer available. * * *

Similarly, the Committee on Labor and Public W el­
fare of the Senate stated in its report: 14

The testimony of the Civil Service Commis­
sion notwithstanding, the committee found that 
an aggrieved Federal employee does not have 
access to the courts. In many cases, the em­
ployee must overcome a U.S. Government de­
fense of sovereign immunity or failure to 
exhaust administrative remedies with no cer­
tainty as to the steps required to exhaust such 
remedies. Moreover, the remedial authority of 
the Commission and the courts has also been in 
doubt. * * *

Adding a new Section 717 to the Civil Rights Act o f 
1964, 42 U.S.C. (Supp. I l l ,  1973 ed.) 2000e-16, which 
became effective March 24,1972, Congress (1) declared 
that the federal competitive service “ shall be made 
free from any discrimination based on race, color, 
religion, sex, or national origin” ; (2) authorized and 
directed the Civil Service Commission to supervise and 
enforce the statute “ through appropriate remedies, in­
cluding reinstatement or hiring of employees with or 
without back pay” ; and (3) provided that an aggrieved

14 S. Rep. No. 92-415, 92d Cong., 1st Sess., p. 16.



12

employee or applicant for employment may institute a 
civil action against the head of his department, agency 
or unit within 30 days of receipt of notice of final action 
by a department or agency or by the Civil Service 
Commission on appeal, or if  no action has been taken, 
after 180 days from the filing of the initial charge 
with the department or agency or with the Civil Serv­
ice Commission on appeal. In  adding these provisions 
to Title V II  of the Civil Rights Act of 1964, Congress 
stated that “ [njothing contained in this Act shall re­
lieve any Government agency or official of its or his 
primary responsibility to assure nondiscrimination in 
employment as required by the Constitution and 
statutes or of its or his responsibilities under Execu­
tive Order 11478 relating to equal employment oppor­
tunity in the Federal Government.”  42 U.S.C. 
(Supp. I l l ,  1973ed.) 2000e-16(e).

Congress has therefore not authorized direct en­
forcement actions in the courts in federal employment 
discrimination cases, without prior exhaustion by com­
plainants of prescribed administrative remedies. Had 
it intended otherwise, it would not have excluded the 
federal government and its agencies from the purview 
of Title V II  of the Civil Rights Act of 1964, which 
provides a judicial remedy for non-federal employees 
alleging discriminatory practices by their employer. 
See 42 U.S.C. 2000e-5(e).15 Nor would it, in convert­
ing the federal nondiscrimination policy into a statu­
tory requirement by amendment of Title V II, have

15 The exclusion of the United States from coverage as an 
“employer” for purposes of Title V II  continues in effect. See 
42 U.S.C. 2000e(b).



13

continued to make federal agencies primarily responsi­
ble for implementing equal employment opportunities 
or required exhaustion of prescribed administrative 
remedies as a prerequisite to filing suit.

b. The decision of the court of appeals is entirely 
consistent with the congressional policy embodied in 
these statutes and with the general principle that “ no 
one is entitled to judicial relief for a supposed or 
threatened injury until the prescribed administrative 
remedy has been exhausted.” McKart v. United States, 
supra, 395 U.S. at 193. Moreover, it is clear on the 
facts of this ease, as documented in the opinion adopt­
ed by the court en banc (App. 29a-45a), that to al­
low the judicial proceedings to continue without a 
prior resort by all petitioners to the administrative 
process would have significantly harmful effects: First, 
the Civil Service Commission would be impeded in 
the exercise of its authority to compel federal agencies 
to meet their statutory duty to rectify discriminatory 
employment practices. McKart v. United States, 
supra, 395 U.S. at 193. Second, premature involvement 
of the courts would hamper the achievement of uni­
formity in the resolution of complaints of discrimina­
tion within the federal government. Id. at 193-95. 
Third, petitioners, respondents and the courts all would 
be deprived o f the Commission^ expertise, accumu­
lated over the past decade, and assistance in resolv­
ing the complaints and eliminating their underlying 
causes. Id. at 194. Finally, requiring compliance with 
the exhaustion requirement here is important to judi­
cial economy since it will allow petitioners’ complaints

568- 796— 75-----------2



14

either to be successfully resolved administratively or 
to be scaled down to more manageable dimensions. Id. 
at 195.

By contrast, the decisions of the district court and 
the court of appeals’ panel would have entertained 
petitioners’ sweeping judicial challenge to the employ­
ment practices of all seventeen respondent federal 
agencies based solely on the two individual petitioners’ 
allegations that they were not properly advised as to 
the availability of administrative remedies by sub­
ordinate officials of their agency. Such a judicial reso­
lution, which in effect constituted a reprimand of 
virtually the entire federal establishment in Alabama 
for what was at most the errors of one agency’s subor­
dinate personnel, was overbroad and inconsistent with 
the exhaustion doctrine. As noted in the court of ap­
peals’ en banc opinion (App. 33a) :

The narrow fulcrum employed to lever this 
plenary inquiry out of institutional channels 
and into the federal court system consists of 
vague and unverified allegations by two in­
dividuals employed by a single federal agency 
(and at one location) concerning informal re­
marks alleged to have been made to them by two 
(or three) other government employees desig­
nated as EEO “ counselors” or “ officers.”  Sel­
dom was so small a camel’s nose employed to 
drag so large a camel into the tent.

2. Petitioners further contend that the court o f ap­
peals erred in requiring them to exhaust administra­
tive remedies because: (1) they had already resorted 
to the existing administrative remedies which had



15

proved futile; and (2) the remedies which did exist 
did not contemplate an appeal to the Commission by 
Penn and Foster of their agency’s refusal to process 
their complaints (Pet. 15-18). Both contentions were 
properly rejected by the full court of appeals. With 
respect to the individual petitioners’ alleged attempts 
at exhaustion, the court pointed out that (App. 43a) :

The material in the complaint bearing on 
plaintiffs’ informal contacts with Maxwell [Air 
Force Base] personnel designated as EEO of­
ficials was added by amendment after exhaus­
tion surfaced as an issue and in an effort to 
allege frustration. But neither plaintiff has al­
leged that he lacked actual knowledge of his 
right to file a formal administrative complaint, 
or that his failure to proceed further in admin­
istrative channels was in fact caused by the re­
marks made to him. I  can find nothing in the 
amended complaint to support the District 
Court’s conclusion that plaintiffs’ failure to go 
farther was solely due to the misbehavior of 
others. Bather, the pleadings do not exclude the 
possibility that plaintiffs knew of the proce­
dures available to them and determined to re­
pair to the court as an advised choice.

The court en banc also noted that, when Penn and 
Foster purportedly attempted to exhaust their admin­
istrative remedies, the Civil Service Commission was 
under Executive order to ensure that all agencies 
provided for the prompt, fair and impartial consid­
eration of employment discrimination complaints 
(App. 37a-38a, n. 1) and that the Commission’s 1971 
regulations required agencies, if attempts at informal



16

resolution of such a complaint failed, to notify the 
complainant in writing of its proposed disposition of 
his complaint and of his right to a full evidentiary 
hearing before an impartial examiner (App. 39a). 
Thus, while the 1971 regulations did not expressly 
provide for Commission review of an agency’s fail­
ure to comply with the regulations, there can be 
little doubt that had petitioners brought any alleged 
noncompliance by their agency to the Commission’s 
attention, the Commission would have taken, appropri­
ate corrective action.16

3. Finally, petitioners urge this Court to resolve the 
question whether available administrative remedies 
must be exhausted before an employment discrimina­
tion suit can be instituted under 42 U.S.C. 1981 
against the federal government or its officers (Pet. 
18-22). However, that question neither is open to ser­

16 Nor is certiorari warranted because the 1971 regulations 
did not provide for the filing o f complaints by organizations 
such as the NAACP (Pet. 18, n. 23). As the court en banc noted 
(App. 40a-41a, n. 3), those regulations were amended in Octo­
ber 1972, just after the district court had ruled, to provide for 
the filing with an agency of “ general allegations by organi­
zations or other third parties of discrimination in personnel 
matters within the agency which are unrelated to an individual 
complaint * * and for their investigation and resolution by 
the agency. See n. 10, supra. An organization or third party 
filing such allegations also may appeal the agency decision 
to the Civil Service Commission (5 C.F.K. 713.251). The full 
court of appeals therefore correctly concluded that, now that 
the N A A GP has an administrative remedy, and particularly 
in the circumstances of this case, it too should be required 
to exhaust before proceeding with a suit in the district court 
(App. 2a, n. 1).



17

ious dispute nor presently merits this Court’s atten­
tion.

42 U.S.C. 1981 does not deal specifically with the 
problem of discrimination in employment by the fed­
eral government. The only time Congress has ex­
pressly legislated a judicial remedy for federal em­
ployment discrimination was in 1972 when it enacted 
42 U.S.C. (Supp. I l l ,  1973 ed.) 2000e-16(c). Then, 
confirming its support for the anti-discrimination poli­
cies of the Civil Service Commission undertaken in 
implementing 5 U.S.C. 7151, Congress carefully 
adopted the requirement of exhaustion of the admin­
istrative remedies prescribed by the Equal Opportu­
nity Regulations. In short, in the only two statutes 
enacted to deal specifically with federal employment 
discrimination—5 U.S.C. 7151 (formerly 42 U.S.C. 
(1964 ed.) 20Q0e(b)) and 42 U.S.C. (Supp. I l l ,  1973 
ed.) 2000e-16—direct enforcement actions have been 
precluded by Congress.

Permitting direct actions under 42 U.S.C. 1981 (or 
any other statute) against the federal government or 
its officers for alleged employment discrimination 
would thus place that statute in irreconcilable conflict 
with the remedial requirements of 42 U.S.C. (Supp. 
I l l ,  1973 ed.) 2000e-16, which were designed to effec­
tuate a congressional intent that departments and 
agencies of the federal government be directly respon­
sible for eliminating employment discrimination and 
that federal employees present their complaints of 
discrimination to their employing agencies before re­
sorting to the courts. By contrast, a holding that direct



18

actions are permissable under 42 U.S.C. 1981 would 
likely result in the bringing directly to the courts of 
many federal employment discrimination grievances,, 
which might otherwise be resolved administratively, 
thereby inappropriately burdening the federal 
judiciary

These adverse consequences are correctly avoided 
by the decision below, which is consistent with that 
of the only other court of appeals, the District o f 
Columbia Circuit, which has considered the question 
whether available administrative remedies must be 
exhausted as a prerequisite to suit against federal 
officials for alleged employment discrimination. See 
Hadnott v. Laird, 463 F. 2d 304 (C.A.D.C.). More­
over, this Court only recently has reached a similar 
result in suits against federal officials involving other 
employee rights and benefits. Christian v. New York 
Department of Labor, 414 U.S. 614; Sampson v. Mur­
ray, 415 U,S. 61.

Adherence to the exhaustion doctrine in employ­
ment discrimination suits brought against federal 
officials under 42 U.S.C. 1981 does not require federal 
employees or applicants for federal employment to 
resort to inadequate remedies (McNeese v. Board o f  
Education, 373 U.S. 668, 674-676) or to do a futile 
act (Houghton v. Shafer, 392 XJ.S. 639, 640).17 The 
Equal Opportunity regulations, which are the product



19

of years of improvement, provide a comprehensive 
administrative scheme for remedying both individual 
and systematic employment discrimination practices 
within the federal government.17 18 Those regulations 
now provide for relief which could fully satisfy the 
demands of all petitioners (see App. 40a-41a, n. 3 ).19

17 Because a specific federal remedy is thus provided, the 
decisions of this Court holding that exhaustion of state reme­
dies is not a prerequisite to suits under the federal civil rights 
laws against state governmental entities or officials—see, e.g., 
Damico v. California, 389 U.S. 416; McNeese v. Board, of Edu­
cation, supra; Houghton v. Shafer, supra;. Wilwording v. 
Swenson, 404 U.S. 249; Monroe v. Pape, 365 U.S. 167, 180-183— 
are inapposite. See Eisen v. Eastman, 421 F. 2d 560, 568-569 
(C.A. 2), certiorari denied, 400 U.S. 841; Beale v. Blount, 461 
F. 2d 1133, 1139 (C.A. 5) ; Hadnott v. Laird, supra, 463 F. 2d 
at 309; Dunham v. Crosby, 435 F. 2d 1177, 1180 (C.A. 1).

18 Those regulations are discussed in detail in the opinion 
below (App. 37a-40a).

10 Decisions in civil rights suits against private employer's are 
also -inapposite because of the greater indicia that the adminis­
trative remedy here provided was intended to be exclusive. The 
Fifth and Third Circuits have held that nothing in Title Y II 
of the Civil Eights Act of 1964, 42 U.S.C. 2000e, providing 
remedies before the Equal Employment Opportunity Commis­
sion and in the courts for alleged discrimination by certain pri­
vate employers (those having a prescribed minimum number o f  
employees) affecting interstate commerce, “either expressedly or 
impliedly imposes any jurisdictional barrier to a suit brought 
under § 1981.” Caldwell v. National Brewing Company, 443 F. 2d 
1044, 1046 (C.A. 5), certiorari denied, 405 U.S. 916; Young v. 
International Telephone <& Telegraph Co., 438 F. 2d 757, 760- 
764 (C.A. 3). This is in sharp contrast to the comprehensiveness 
of 42 U.S.C. (Supp. I l l ,  1973 ed.) 2000(^16.



20

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that the petition for a writ of certiorari should 
be denied.

F ebetjart 1975.

R obert H. B o r e ,
Solicitor General. 

C a r l a  A . H il l s , 
Assistant Attorney General. 

R obert  E . K o pb ,
J a m e s  C . H a ir , Jr.,

Attorneys.



STATUTORY A P P E N D IX

The Fifth Amendment to the United States Consti­
tution provides in pertinent part:

No person shall be * * * deprived of life, 
liberty, or property, without due process of law;

Section 1981 of 42 U.S.C. provides:
A ll persons within the jurisdiction of the 

United States shall have the same right in every 
State and Territory to make and enforce con­
tracts, to sue, be parties, give evidence, and to 
the full and equal benefit of all laws and pro­
ceedings for the security of persons and prop- 
ertv as is enjoyed by white citizens, and shall 
he subject to'like punishment, pains, penalties, 
taxes, licenses, and exactions of every kind, 
and to no other.

The Equal Employment Opportunity Act of 1972, 
Pub. L. 92-261, 86 Stat. I l l ,  amending Title V II  of 
the Civil Rights Act of 1964, 42 U.S.C. (Supp. I l l ,  
1973 ed.) 2000e-16, provides in pertinent part:

§ 2000e-16 E m p l o y m e n t  b y  F ed eral  G o vern ­
m e n t — D is c r im in a t o r y  P rac tices  P r o h ib ­
ited  ; E m p l o y e e s  or A p p l ic a n t s  for  E m p l o y ­
m e n t  S u b je c t  to C overage

(a) All personnel actions affecting employees 
or applicants for employment (except with re­
gard to aliens employed outside the limits of 
the United States) in military departments as 
defined in section 102 of Title 5, in executive 
agencies (other than the General Accounting 
Office) as defined in section 105 of Title 5 (in­
cluding employees and applicants for employ­
ment who are paid from nonappropriated 
funds), in the United States Postal Service 

( 21)



22

and the Postal Rate Commission, in those units 
of the Government of the District of Columbia 
having positions in the competitive service, and 
in those units of the legislative and judicial 
branches of the Federal Government having 
positions in the competitive service, and in the 
Library of Congress shall be made free from 
any discrimination based on race, color, re­
ligion, sex, or national origin.

CIVIL SERVICE COMMISSION; ENFORCEMENT POW­
ERS; ISSUANCE OF RULES, REGULATIONS, ETC.; 
ANNUAL REVIEW AND APPROVAL OF NATIONAL 
AND REGIONAL EQUAL EMPLOYMENT OPPORTUN­
ITY PLANS; REVIEW AND EVALUATION OF EQUAL 
EMPLOYMENT OPPORTUNITY PROGRAMS AND PUB­
LICATION OF PROGRESS REPORTS ; CONSULTATIONS 
WITH INTERESTED PARTIES; COMPLIANCE WITH 
RULES, REGULATIONS, ETC.; CONTENTS OF 
NATIONAL AND REGIONAL EQUAL EMPLOYMENT 
OPPORTUNITY PLANS; AUTHORITY OF LIBRARIAN 
OF CONGRESS

(b) Except as otherwise provided in this sub­
section, the Civil Service Commission shall 
have authority to enforce the provisions of sub­
section (a) of this section through appropriate 
remedies, including reinstatement or hiring of 
employees with or without back pay, as will 
effectuate the policies of this section, and shall 
issue such rules, regulations, orders and in­
structions as it deems necessary and appropri­
ate to carry out its responsibilities under this 
section. The Civil Service Commission shall—

(1) be responsible for the annual review 
and approval of a national and regional 
equal employment opportunity plan which 
each department and agency and each ap­
propriate unit referred to in subsection (a) 
of this section shall submit an order to



23

maintain an affirmative program of equal 
employment opportunity for all such em­
ployees and applicants for employment;

(2) be responsible for the review and 
evaluation of the operation of all agency 
equal employment opportunity programs, 
periodically obtaining and publishing (on 
at least a semiannual basis) progress re­
ports from each such department, agency, 
or unit; and

(3) consult with and solicit the recom­
mendations of interested individuals, 
groups, and organizations relating to equal 
employment opportunity.

The head of such department, agency, or unit 
shall comply with such rules, regulations, or­
ders, and instructions which shall include a pro­
vision that an employee or applicant for em­
ployment shall be notified of any final action 
taken on any complaint of discrimination filed 
by him thereunder. The plan submitted by 
each department, agency, and unit shall include, 
but not be limited to—

(1) provision for the establishment of 
training and education programs designed 
to provide a maximum opportunity for em­
ployees to advance so as to perform at their 
highest potential ; and

(2) a description of the qualifications in 
terms of training and experience relating 
to equal employment opportunity for the 
principal and operating officials of each 
such department, agency, or unit responsi­
ble for carrying out the equal employment 
opportunity program and of the allocation 
o f personnel and resources proposed by 
such department, agency, or unit to carry 
out its equal employment opportunity pro­
gram.



24

With respect to employment in the Library of 
Congress, authorities granted in this subsection 
to the Civil Sendee Commission shall be exer­
cised by the Librarian of Congress.

CIVIL ACTION BY EMPLOYEE OR APPLICANT FOR 
EMPLOYMENT FOR REDRESS OF GRIEVANCES; TIME 
FOR BRINGING OF ACTION; HEAD OF DEPARTMENT, 
AGENCY, OR UNIT AS DEFENDANT

(c) Within thirty days of receipt of notice of 
final action taken by a department, agency, or 
unit referred to in subsection (a) of this sec­
tion, or by the Civil Service Commission upon 
an appeal from a decision or order of such de­
partment, agency, or unit on a complaint of 
discrimination based on race, color, religion, sex 
or national origin, brought pursuant to subsec- 
section (a) of this section, Executive Order 
11478 or any succeeding Executive orders, or 
after one hundred and eighty days from the fil­
ing of the initial charge with the department, 
agency, or unit or with the Civil Service Com­
mission on appeal from a decision or order o f  
such department, agency, or unit until such time 
as final action may be taken by a department, 
agency, or unit, an employee or applicant for 
employment, if  aggrieved by the final disposi­
tion of his complaint, or by the failure to take 
final action on his complaint, may file a civil 
action as provided in section 2000e-5 of this 
title, in which civil action the head of the de­
department, agency, or unit, as appropriate, 
shall be the defendant.

SECTION 2 00 0e-5  ( f )  THROUGH (k ) OF THIS TITLE 
APPLICABLE TO CIVIL ACTIONS

(d) The provisions of section 2000e-5 ( f)  
through (k) of this title, as applicable, shall 
govern civil actions brought hereunder.



25

GOVERNMENT AGENCY OR OFFICIAL NOT RELIEVED 
OF RESPONSIBILITY TO ASSURE NONDISCRIMINA­
TION IN EMPLOYMENT OR EQUAL EMPLOYMENT 
OPPORTUNITY

(e) Nothing contained in this Act shall re­
lieve any Government agency or official of its or 
his primary responsibility to assure nondis­
crimination in employment as required by the 
Constitution and statutes or of its or his re­
sponsibilities under Executive Order 11478 re­
lating to equal employment opportunity in the 
Federal Government.

Section 7151 of 5 U.S.C. provides:

S u b c h a p t e r  II.— A n t id is c r im in a t io n  in  
E m p l o y m e n t

§ 7151 POLICY

It is the policy of the United States to insure 
equal employment opportunities for employees 
without discrimination because of race, color, 
religion, sex, or national origin. The President 
shall use his existing authority to carry out 
this policy. (Pub. L. 89-554, Sept. 6, 1966, 80 
Stat. 523.)

Historical and revision notes

D e r iv a t io n  U n ite d  S ta tes  C o d e R e v is e d  s ta tu te s  a n d  s ta tu te s  
a t  la rg e

_______________ 42  U .S .C . 20 00 J u ly  2, 1964, P u b lic L a w
e (b )  (2 d  p r o v is o ) . 8 8 -3 5 2 . § 7 0 1 (b ) (2d p ro -

v is o ) ,  78  S ta t. 254.

The word “ Federal” is omitted as unneces­
sary in view of the definition of “ employee” 
in section 2105.



26

Standard changes are made to conform with 
the definitions applicable and the style of this 
title as outlined in the preface to the report.

Executive Order 11478, as amended by E.O. 11590,. 
provides:

E x e c u t iv e  O rder  11478— E q u a l  E m p l o y m e n t  
O p p o r t u n it y  in  t h e  F ederal  G o v e r n m e n t  
[ as  A m e n d e d ]

S o u r ce : Executive Order 11478, 34 F.R. 12985, 
Aug. 12, 1969, as amended by the following: E.O. 11590, 
36 F.R. 7831, Apr. 27, 1971.

It has long been the policy of the United 
States Government to provide equal oppor­
tunity in Federal employment on the basis o f 
merit and fitness and without discrimination 
because of race, color, religion, sex, or national 
original. All recent Presidents have fully sup­
ported this policy, and have directed depart­
ment and agency heads to adopt measures to 
make it a reality.

As a result, much has been accomplished 
through positive agency programs to assure 
equality o f opportunity. Additional steps, how­
ever, are called for in order to strengthen and 
assure fully equal employment opportunity in 
the Federal Government.

Now, therefore, under and by virtue of the 
authority vested in me as President of the 
United States by the Constitution and statutes 
of the United States, it is ordered as follows: 

S e c t io n  1. It is the policy of the Government 
of the United States to provide equal oppor­
tunity in Federal employment for all persons, 
to prohibit discrimination in employment be­
cause of race, color, religion, sex, or national 
origin, and to promote the full realization of 
equal employment opportunity through a con­
tinuing affirmative program in each executive 
department and agency. This policy of equal 
opportunity applies to and must be an integral



27

part of every aspect of personnel policy and 
practice in the employment, development, ad­
vancement, and treatment of civilian employees 
of the Federal Government.

S ec . 2. The head of each executive depart­
ment and agency shall establish and maintain 
an affirmative program of equal employment 
opportunity for all civilian employees and 
applicants for employment within his jurisdic­
tion in accordance with the policy set forth in 
section 1. It is the responsibility of each 
department and agency head, to the maximum 
extent possible, to provide sufficient resources 
to administer such a program in a positive and 
effective manner; assure that recruitment activ­
ities reach all sources of job candidates; utilize 
to the fullest extent the present skills of each 
employee; provide the maximum feasible op­
portunity to employees to enhance their skills 
so they may perform at their highest potential 
and advance in accordance with their abilities ; 
provide training and advice to managers and 
supervisors to assure their understanding and 
implementation of the policy expressed in this 
Order; assure participation at the local level 
with other employers, schools, and public or 
private groups in cooperative efforts to improve 
community conditions which affect employabil­
ity ; and provide for a system within the depart­
ment or agency for periodically evaluating the 
effectiveness with which the policy of this 
Order is being carried out.

S ec . 3. The Civil Service Commission shall 
provide leadership and guidance to depart­
ments and agencies in the conduct of equal 
employment opportunity programs for the 
civilian employees of and applicants for em­
ployment within the executive departments and 
agencies in order to assure that personnel 
operations in Government departments and 
agencies carry out the objective of equal oppor­
tunity for all persons. The Commission shall



28

review and evaluate agency program operations 
periodically, obtain such reports from depart­
ments and agencies as it deems necessary, and 
report to the President as appropriate on over­
all progress. The Commission will consult from 
time to time with such individuals, groups,_ or 
organizations as may be of assistance in im­
proving the Federal program and realizing the 
objectives of this Order.

S e c . 4. The Civil Service Commission shall 
provide for the prompt, fair, and impartial 
consideration of all complaints of discrimina­
tion in Federal employment on the basis of 
race, color, religion, sex, or national origin. 
Agency systems shall provide access to coun­
seling for employees who feel aggrieved and 
shall encourage the resolution of employee 
problems on an informal basis. Procedures for 
the consideration of complaints shall include 
at least one impartial review within the execu­
tive department or agency and shall provide 
for appeal to the Civil Service Commission.

S e c . 5. The Civil Service Commission shall 
issue such regulations, orders, and instructions 
as it deems necessary and appropriate to carry 
out this Order and assure that the executive 
branch of the Government leads the way as an 
equal opportunity employer, and the head of 
each executive department and agency shall 
comply with the regulations, orders, and in­
structions issued by the Commission under this 
Order.

S e c . 6. This Order applies (a) to military 
departments as defined in section 102 of title 5, 
United States Code, and executive agencies 
(other than the General Accounting Office) as 
defined in section 105 of title 5, United States 
Code, and to the employees thereof (including 
employees paid from nonappropriated funds), 
and (b) to those portions of the legislative and



29

judicial branches of the Federal Government 
and of the Government of the District of Co­
lumbia having positions in the competitive serv­
ice and to the employees in those positions. 
This Order does not apply to aliens employed 
outside the limits of the United States.

Sec. 7. Part I  of Executive Order No. 11246 
of September 24, 1965, and those parts of Ex­
ecutive Order No. 11375 of October 13, 1967, 
which apply to Federal employment, are hereby 
superseded.

S e c . 8. This Order shall be applicable to the 
United States Postal Service and to the Postal 
Rate Commission established by the Postal Re­
organization Act of 1970.

[Sec. 8 added by E.O. 11590, 36 F.R. 7831, Apr. 27, 1971]

The Employment Regulations, Part 300 of 5 C.F.R., 
provide in pertinent part:

PART 300—EMPLOYMENT (GENERAL)

S ubpart  A — E m p l o y m e n t  P ractices

Sec.
300.101 Purpose.
300.102 Policy.
300.103 Basic requirements.
300.104 Appeals, grievances and complaints.

S u bpart  B— [R eserved]

S ubpart  C — C om m ission  A pproval i n  F il l in g  
P ositions in  G S -1 6  an d  A bove

300.301 Commission approval in filling positions in 
GS-16 and above.

S u bpart  T)— C e ilin g  on  P e r m a n e n t  E mployees

300.401 Limitations on career appointments and con­
versions.

568-796— 75------3



30

S u bpart  E—O bligated P ositions

300.501 Definitions.
300.502 Restriction on filling obligated position on

permanent basis.

S u bpart  F—T im e -i n -G rade R estrictions

300.601 Applicability.
300.602 Restrictions.
300.603 Exceptions to restrictions.
300.604 Periods of creditable service.
300.605 Other time restrictions.

S u bpart  G — [R eserved]

S u bpart  PI— [R eserved]

S u bpart  I— E m p l o y m e n t  oe S u bstitutes  in  t h e  F ield 
S ervice oe t h e  P ost O eeice D e par tm e n t

300.901 Temporary appointment of substitutes in the
postal field service.

300.902 Change of substitutes to regulars in the postal
field service.

A u t h o r it y : The provisions of this Part 300 issued 
under 5 U.S.C. Secs. 3301, 3302, E.O. 1057T; 3 CFR, 
1954—1958 Comp., p. 218, unless otherwise noted. Secs. 
300.101-300.104 also issued under 5 U.S.C. Secs. 7151, 
7154; E.O. 11478; 3 CFR, 1969 Comp.

S ource : The provisions of this part 300 appear at 33 
F.R. 12412, Sept. 4, 1968, unless otherwise noted.

S tjbpaet A— E m p l o y m e n t  P rac tices

S ource : The provisions of this Subpart appear at 36 
F.R. 15447, Aug. 14, 1971, unless otherwise noted.

§  300.101 PURPOSE

The purpose of this subpart is to establish 
principles to govern, as nearly as is administra­
tively feasible and practical, the employment 
practices of the Federal Government generally, 
and of individual agencies, that affect the re-



31

eruitment, measurement, ranking, and selection 
of individuals for initial appointment and com­
petitive promotion in the competitive service or 
in positions in the government of the District 
of Columbia required to be filled in the same 
manner that positions in the competitive service 
are filled. For the purpose o f this subpart, the 
term “ employment practices”  includes the de­
velopment and use of examinations, qualifica­
tion standards, tests, and other measurement 
instruments.

§ 300.102 POLICY

This subpart is directed to implementation of 
the policy that competitive employment 
practices:

(a) Be practical in character and as far as 
possible relate to matters that fairly test the 
relative capacity and fitness of candidates for 
the jobs to be filled:

(b) Result in selection from among the best 
qualified candidates:

(c) Be developed and used without discrimi­
nation because of race, color, religion, sex, na­
tional origin, partisan political affiliation, or 
other nonmerit grounds; and

(d) Insure to the candidate opportunity for 
appeal or administrative review, as appropriate.

§ 300.103 BASIC REQUIREMENTS

(a) Job analysis. Each employment practice 
of the Federal Glovernment generally, and of 
individual agencies, shall be based on a job 
analysis to identify:

(1) The basic duties and responsibilities;
(2) The knowledge, skills, and abilities 

required to perform the duties and responsibili­
ties; and

(3) The factors that are important hi 
evaluating candidates. The job analysis may 
cover a single position or group of positions, or



32

an occupation or group of occupations, having 
common characteristics.

(b) Relevance. (1) There shall be a rational 
relationship between performance in the posi­
tion to be filled (or in the target position in the 
case of an entry position) and the employment 
practice used. The demonstration of rational re­
lationship shall include a showing that the em­
ployment practice was professionally devel­
oped. A  minimum education requirement may 
not be established except as authorized under 
section 3308 of title 5, United States Code.

(2) In the case of any entry position the 
required relevance may be based on the target 
position when—-

(1) The entry position is a training position 
or the first of a progressive series of established 
training and development positions leading to 
a target position at a higher level; and

(ii) New employees, with a reasonable period 
of time and in the great majority of cases, can 
expect to progress to a target position at a 
higher level.

(c) Equal employment opportunity. An em­
ployment practice shall not discriminate on the 
basis of race, color, religion, sex, national 
origin, partisan political affiliation, or other 
nonmerit factor. This requirement is generally 
met when an employment practice is relevant to 
performance in the position to be filled (or in 
the target position in the case of an entry 
position).

§ 300.3 04 APPEALS, GRIEVANCES, AND COMPLAINTS

(a) Employment practices. (1) A  candidate 
who believes that an employment practice which 
was applied to him and which is administered 
or required by the Commission violates a basic 
requirement in § 300.103 is entitled to appeal to 
the Commission.

(2) An appeal shall be in writing, shall set 
forth the basis for the candidate’s belief that



33

a violation occurred, and shall be filed with the 
Board of Appeals and Review, TT.S. Civil Serv­
ice Commission, Washington, D.C. 20415, no 
later than 15 days from the date the employ­
ment practice was applied to the candidate or 
the date he became aware of the results of the 
application of the employment practice. The 
board may extend the time limit in this sub­
paragraph for good cause shown by the candi­
date.

(3) An appeal shall be processed in accord­
ance with Subpart D of Part 772 of this 
chapter.

(b) Examination ratings. A  candidate may 
file an appeal with the Commission from his 
examination rating or the rejection of his appli­
cation. The appeal shall be filed and processed 
in accordance with instructions in Chapter 337 
of the Federal Personnel Manual.

(c) Complaints and grievances to an agency. 
(1) A  candidate may file a complaint with an 
agency when he believes that an employment 
practice which was applied to him and which 
is administered or required by the agency dis­
criminates against him on the basis of race, 
color, religion, sex, or national origin. The com­
plaint shall be filed and processed in accordance 
with Subpart B of Part 713 of this chapter.

(2) Except as provided in subparagraph (1) 
of this paragraph, an employee may file a griev­
ance with an agency when he believes that an 
employment practice which was applied to him 
and which is administered or required by the 
agency violates a basic requirement in § 300.103. 
The grievance shall be filed and processed un­
der the agency grievance system, or a negoti­
ated grievance system, established in accord­
ance with Subpart C of Part 771 of this 
chapter.

* * * * *



34

The Equal Opportunity Regulations, Part 713 of 
5 C.F.R., as amended in October 1972, provide:

PART 713—EQUAL OPPORTUNITY

S u bpart  B—E q u a l  O ppo r t u n it y  W it h o u t  R egard to 
R ace , C olor, R elig io n , S e x , or N a t io n a l  O rig in

Subpart B of Part 713 Equal Opportunity is revised 
to implement the Equal Employment Opportunity Act 
of 1972, 86 Stat. 103, and to strengthen the system 
of complaint processing. Among others, these changes 
emphasize the affirmative aspects of agency equal em­
ployment opportunity obligations, set out requirements 
for submission of national and regional plans, extend 
the time limits for contacting a counselor, provide for 
the reasonable accommodation to the religious needs 
of applicants and employees, provide for timely inves­
tigation and resolution of complaints including com­
plaints of coercion and reprisal, set out the remedial 
action available( including back pay), and strengthen 
the third party complaint system.

G eneral  P rovisions
Sec.
713.201 Purpose and applicability.
713.202 General policy.
713.203 Agency program.
713.204 Implementation of agency program.
713.205 Commission review and evaluation of agency

program operations.

A gen cy  R egulations  eor P rocessing C o m plain ts  o r  
D isc r im in a t io n

713.211 General.
713.212 Coverage.
713.213 Precomplaint processing.
713.214 Filing and presentation o f complaint.
<13.215 Rejection or cancellation o f complaint.
713.216 Investigation.
713.217 Adjustment of complaint and offer of liearino-.



35

Sec.
713.218 Hearing.
712.219 Relationship to other agency appellate proce­

dures.
713.220 Avoidance of delay.
713.221 Decision by head of agency or designee.
713.222 Complaint file.

A ppeal  to th e  C om m ission

713.231 Entitlement.
713.232 Where to appeal.
713.233 Time limit.
713.234 Appellate procedures.
713.235 Review by the Commissioners.
713.236 Relationship to other appeals.

R eports to th e  C om m ission  

713.241 Reports to the Commission on complaints.

T h ir d -P a rty  A llegations 

713.251 Third-party allegations of discrimination. 

F reedom F rom  R eprisal  or I nterference

713.261 Freedom from reprisal.
713.262 Review of allegations of reprisal.

R em edial  A ctions 

713.271 Remedial actions.

R ig h t  T o F ile  a  C iv il  A ction

713.281 Statutory right.
713.282 Notice of right.
713.283 Effect on administrative processing.

A u t h o r it y : The provisions of this Subpart B issued 
under 5 U.S.C. 1301, 3301, 3302, 7151-7154, 7301; 86 
Stat. I l l ;  E.O. 10577; 3 CFR, 1934F58 Comp., p. 218, 
E.O. 11222, 3 CFR 1961-1965 Comp., p. 306, E.O. 11478, 
3 CFR 1969 Comp.



36

S u b p a r t  B— E q u a l  O p p o r t u n it y  W it h o u t  R e ­
gard to R a c e , C olor , R e l ig io n , S e x , or N a ­
t io n a l  O r ig in

General Provisions

§ 713.201 PURPOSE AND APPLICABILITY

(a) Purpose. This subpart sets forth the reg­
ulations under which an agency shall establish 
a continuing affirmative program for equal op­
portunity in employment and personnel opera­
tions without regard to race, color, religion, 
sex, or national origin and under which the 
Commission will review an agency’s program 
and entertain an appeal from a person dis­
satisfied with an agency’s decision or other 
final action on his complaint of discrimination 
on grounds of race, color, religion, sex, or na­
tional origin.

(b) Applicability. (1) This subpart applies:
(i)  To military department as defined in sec­
tion 102 of title 5, United States Code, execu­
tive agencies (other than the G-eneral Account­
ing Office) as defined in section 105 of title 5, 
United States Code, the U.S. Postal Service, 
and the Postal Rate Commission, and to the 
employees thereof, including employees paid 
from nonappropriated funds, and (ii) to those 
portions of the legislative and judicial branches 
of the Federal Government and the government 
of the District of Columbia having positions in 
the competitive service and to the employees 
in those positions.

(2) This subpart does not apply to aliens 
employed outside the limits o f the United 
States.

§ 713.202 GENERAL POLICY

It is the policy of the Government of the 
United States and of the government of the 
District of Columbia to provide equal oppor­
tunity in employment for all persons, to pro-



37

Mbit discrimination in employment because of 
race, color, religion, sex, or national origin, 
and to promote the full realization of equal 
employment opportunity through a continuing 
affirmative program in each agency.

§ 713.203 AGENCY PROGRAM

The head of each agency shall exercise per­
sonal leadership in establishing, maintaining, 
and carrying out a continuing affirmative pro­
gram designed to promote equal opportunity in 
every aspect of agency personnel policy and 
practice in the employment, development, ad­
vancement, and treatment of employees. Under 
the terms of its program, an agency shall:

(a) Provide sufficient resources to administer 
its equal employment opportunity program in 
a positive and effective manner and assure that 
the principal and operating officials responsible 
for carrying out the equal employment oppor­
tunity program meet established qualifications 
requirements;

(b) Conduct a continuing campaign to eradi­
cate every form of prejudice or discrimination 
based upon race, color, religion, sex, or national 
origin, from the agency’s personnel policies and 
practices and working conditions, including dis­
ciplinary action against employees who engage 
in discriminatory practices;

(c) Utilize to the fullest extent the present 
skills of employee by all means, including the 
redesigning of jobs where feasible so that tasks 
not requiring the full utilization of skills of 
incumbents are concentrated in jobs with lower 
skill requirements;

(d) Provide the maximum feasible oppor­
tunity to employees to enhance their skills 
through on-the-job training, work-study pro­
grams, and other training measures so that they 
may perform at their highest potential and 
advance in accordance with their abilities;

568- 796— 75- 4



38

(e) Communicate the agency’s equal employ­
ment opportunity policy and program and its 
employment needs to all sources of job candi­
dates without regal'd to race, color, religion, 
sex, or national origin, and solicit their recruit­
ment assistance on a continuing basis;

( f )  Participate at tire community level with 
other employers, with schools and universities, 
and with other public and private groups in co- 
operative action to improve employment op­
portunities and community conditions that af­
fect employability;

(g) Review, evaluate, and control managerial 
and supervisory performance in such a manner 
as to insure a continuing affirmative applica­
tion and vigorous enforcement of the policy of 
equal opportunity, and provide orientation, 
training, and advice to managers and super­
visors to assure their understanding and imple­
mentation of the equal employment opportunity 
policy and program;

(h) Provide recognition to employees, super­
visors, managers, and units demonstrating su­
perior acomplishment in equal employment 
opportunity;

(i) Inform its employees and recognized 
labor organizations of the affirmative equal em­
ployment opportunity policy and program and 
enlist their cooperation;

( j )  Provide for counseling employees and 
applicants who believe they have been discrim­
inated against because of race, color, religion, 
sex, or national origin and for resolving in­
formally the matters raised by them;

(k) Provide for the prompt, fair, and im­
partial consideration and disposition of com­
plaints involving issues of discrimination on 
grounds of race, color, religion, sex, or national 
origin; and

(l) Establish a system for periodically evalu­
ating the effectiveness of the agency’s overall 
equal employment opportunity effort.



39

§ 713.204 IMPLEMENTATION OF AGENCY PROGRAM

To implement tlie program established under 
this subpart, an agency shall:

(a) Develop the plans, procedures, and regu­
lations necessary to carry out its program 
established under this subpart;

(b) Appraise its personnel operations at 
regular intervals to assure their conformity 
with the policy in § 713.202 and its program 
established in accordance with § 713.203;

(c) Designate a Director of Equal Employ­
ment Opportunity and as many Equal Oppor­
tunity Officers, Equal Employment Opportu­
nity Counselors, Federal Women’s Program 
Coordinators, and other persons as may be nec­
essary, to assist the head of the agency to carry 
out the functions described in this subpart in 
all organizational units and locations of the 
agency. The functioning and the qualifications 
o f the persons so designated shall be subject to 
review by the Commission. The Director of 
Equal Employment Opportunity shall be under 
the immediate supervision of the head of his 
agency, and shall be given the authority nec­
essary to enable him to carry out his responsi­
bilities under the regulations in this subpart;

(d) Assign to the Director of Equal Employ­
ment Opportunity the functions of;

(1) Advising the head of his agency with 
respect to the preparation of national and 
regional equal employment opportunity 
plans, procedures, regulations, reports, and 
other matters pertaining to the policy in 
§ 713.202 and the agency program required 
to be established under § 713.203;

(2) Evaluating from time to time the 
sufficiency of the total agency program for 
equal employment opportunity and report­
ing thereon to the head o f the agency with 
recommendations as to any improvement 
or correction needed, including remedial or



40

disciplinary action with respect to man­
agerial or supervisory employees who have 
failed in their responsibilities;

(3) When authorized by the head of the 
agency, making changes in programs and 
procedures designed to eliminate discrim­
inatory practices and improve the agency’s 
program for equal employment opportu­
nity;

(4) Providing for counseling by an Equal 
Employment Opportunity Counselor, of 
any aggrieved employee or applicant for 
employment who believes that he has been 
discriminated against because of race, color, 
religion, sex, or national origin and for 
attempting to resolve on an informal basis 
the matter raised by the employee or appli­
cant before a complaint of discrimination 
may be filed under §713.214;

(5) Providing for the receipt and in­
vestigation of individual complaints of dis­
crimination in personnel matters within the 
agency, subject to §§ 713.211 through 
713.222;

(6) Providing for the receipt, investiga­
tion, and disposition of general allegations 
by organizations or other third parties of 
discrimination in personnel matters within 
the agency subject to § 713.251.

(7) When authorized by the head of the 
agency, making the decision under § 713.221 
for the head of the agency on complaints 
o f discrimination and ordering such cor­
rective measures as he may consider nec­
essary, including the recommendation for 
such disciplinary action as is warranted by 
the circumstances when an employee has 
been found to have engaged in a discrim­
inatory practice; and

(8) When not authorized to make the 
decision for the head of the agency on com­
plaints of discrimination, reviewing at his



41

discretion, the record on any complaint be­
fore the decision is made under § 713.221 
and making such recommendations to the 
head of the agency or his designee as he 
considers desirable, including the recom­
mendation for such disciplinary action as 
is warranted by the circumstances when 
an employee is found to have engaged in a 
discriminatory practice;

(e) Insure that equal opportunity for  women 
is an integral part of the agency’s overall pro­
gram by assigning to the Federal Women’s Pro­
gram Coordinators the function of advising the 
Director of Equal Employment Opportunity 
on matters affecting the employment and ad­
vancement of women;

( f )  Publicize to its employees and post per­
manently on official bulletin boards:

(1) The names and addresses of the 
Director of Equal Employment Opportun­
ity and the Federal Women’s Program 
Coordinators;

(2) The name and address of the appro­
priate Equal Employment Opportunity 
Officer;

(3) The name and address of the Equal 
Employment Opportunity Counselor and 
the organizational units he serves; his avail­
ability to counsel an employee or applicant 
for employment who believes that he has 
been discriminated against because of race, 
color, religion, sex, or national origin; and 
the requirement that an employee or appli­
cant for employment must consult the 
Counselor as provided by § 713.213 about 
his allegation of discrimination because of 
race, color, religion, sex, or national origin 
before a complaint as provided by § 713.214 
may be filed; and

(4) Time limits for contacting an Equal 
Employment Opportunity Counselor.



42

(g ) Make reasonable accommodations to the 
religious needs of applicants and employees, 
including the needs of those who observe the 
Sabbath on other than Sunday, when those 
accommodations can be made (by substitution 
of another qualified employee, by a grant of 
leave, a change of a tour of duty, or other 
means) without undue hardship on the business 
of the agency. I f  an agency cannot accommo­
date an employee or applicant, it has a duty in 
a complaint arising under this subpart to dem­
onstrate its inability to do so ; and

(h) Make readily available to its employees 
a copy of its regulations issued to carry out its 
program of equal employment opportunity.

(i) Submit annually for the review and ap­
proval of the Commission written national and 
regional equal employment opportunity plans 
of action. Plans shall be submitted in a format 
prescribed by the Commission and shall include, 
but not be limited to—

(1) Provision for the establishment of 
training and education programs designed 
to provide maximum opportunity for em­
ployees to advance so as to perform at their 
highest potential;

(2) Description of the qualifications, in 
terms of training and experience relating 
to equal employment opportunity, of the 
principal and operating officials concerned 
with administration of the agency’s equal 
employment opportunity program; and

(3) Description of the allocation of per­
sonnel and resources proposed by the 
agency to carry out its equal employment 
opportunity program.

§ 713.205 COMMISSION REVIEW AND EVALUATION 
OF AGENCY PROGRAM OPERATIONS

The Commission shall review and evaluate 
agency program operations periodically, obtain



43

such reports as it deems necessary, and report 
to the President as appropriate on overall prog­
ress. When it finds that an agency’s program 
operations are not in conformity with the 
policy set forth in § 713.202 and the regulations 
in this subpart, the Commission shall require 
improvement or corrective action to bring the 
agency’s program operations into conformity 
with this policy and the regulations in this sub­
part. The head of each department and agency 
shall comply with the rules, regulations, orders, 
and instructions issued by the Commission.

A g e n c y  R e g u l a tio n s  fo r  P rocessing  
C o m p l a in t s  of D is c r im in a t io n

§ 7 1 3 .2 1 1  GENERAL

An agency shall insure that its regulations 
governing the processing of complaints of dis­
crimination on grounds of race, color, religion, 
sex, or national origin comply with the prin­
ciples and requirements in §§ 713.212 through 
713.222.

§ 7 1 3 .2 1 2  COVERAGE

(a) The agency shall provide in its regula­
tions for the acceptance of a complaint from 
any aggrieved employee or applicant for em­
ployment with that agency who believes that he 
has been discriminated against because of race, 
color, religion, sex, or national origin. A  com­
plaint may also be filed by an organization for 
the aggrieved person with his consent

(b) Sections 713.211 through 713.222 do not 
apply to the consideration by an agency of a 
general allegation o f discrimination by an orga­
nization or other third party which is unrelated 
to an individual complaint of discrimination 
subject to §§ 713.211 through 713.222. (Section 
713.251 applies to general allegations by orga­
nizations or other third parties.)



44

§ 713.213 PRECOMPLAINT PROCESSING

(a) An agency shall require that an 
aggrieved person who believes that he has been 
discriminated against because o f race, color, 
religion, sex, or national origin consult with an 
Equal Employment Opportunity Counselor 
when he wishes to resolve the matter. The 
agency shall require the Equal Employment 
Opportunity Counselor to make whatever in­
quiry he believes necessary into the matter; to 
seek a solution o f the matter on an informal 
basis; to counsel the aggrieved person concern­
ing the issues in the matter; to keep a record of 
his counseling activities so as to brief periodi­
cally, the Equal Employment Opportunity Offi­
cer on those activities; and, when advised that 
a complaint o f discrimination has been accepted 
from an aggrieved person, to submit a written 
report to the Equal Employment Opportunity 
Officer, with a copy to the aggrieved person, 
summarizing his actions and advice both to the 
agency and the aggrieved person concerning the 
issues in the matter. The Equal Employment 
Opportunity Counselor shall, insofar as is prac­
ticable, conduct his final interview with the 
aggrieved person not later than 21 calendar 
days after the date on which the matter was 
called to his attention by the aggrieved person. 
I f  the final interview is not concluded within 
21 days and the matter has not previously been 
resolved to the satisfaction of the aggrieved 
person, shall be informed in writing at that 
time of his right to file a complaint of discrimi­
nation. The notice shall inform the complainant 
of his right to file a complaint at any time after 
receipt of the notice up to 15 calendar days 
after the final interview (which shall be so 
identified in writing by the Equal Employment 
Opportunity Counselor) and the appropriate 
official with whom to file a complaint. The 
Counselor shall not attempt in any way to re­



45

strain the aggrieved person from filing a formal 
complaint. The Equal Employment Opportunity 
Counselor shall not reveal the identity of an 
aggrieved person who has come to him for con­
sultation, except when authorized to do so by 
the aggrieved person, until the agency has 
accepted a complaint of discrimination from 
him.

(b) The agency shall assure that full cooper­
ation is provided by all employees to the Equal 
Employment Opportunity Counselor in the per­
formance of his duties under this section.

(c) The Equal Employment Opportunity 
Counselor shall be free from restraint, inter­
ference, coercion, discrimination, or reprisal in 
connection with the peformance of his duties 
under this section.

§ 733.214 FILING AND PRESENTATION OF 
COMPLAINT

(a) Time limits. (1) An agency shall require 
that a complaint be submitted in writing by the 
complainant or his representative and be signed 
by the complainant. The complaint may be de­
livered in person or submitted by mail. The 
agency may accept the complaint for processing 
in accordance with this subpart only if—

(i) The complainant brought to the 
attention of the Equal Employment Op­
portunity Counselor the matter causing 
him to believe he had been discriminated 
against within 30 calendar days of the date 
of that matter, or, if  a personnel action, 
within 30 calendar days of its effective 
date; and

(ii) The complainant or his represent­
ative submitted his written complaint to an 
appropriate official within 15 calendar days 
of the date of his final interview with the 
Equal Employment Opportunity Counselor.



46

(2) The appropriate officials to receive com­
plaints are the head of the agency, the agency’s 
Director of Equal Employment Opportunity, 
the head of a field installation, an Equal Em­
ployment Opportunity Officer, a Federal Wom­
en’s Program Coordinator, and such other of­
ficials as "the agency may designate for that pur­
pose. Upon receipt of the complaint, the agency 
official shall transmit it to the Director of Equal 
Employment Opportunity or appropriate Equal 
Employment Opportunity Officer who shall ac­
knowledge its receipt in accordance with sub­
paragraph (3) of this paragraph.

(3) A  complaint shall be deemed filed on the 
date it is received, if delivered to an appropriate 
official, or on the date postmarked if  addressed 
to an appropriate official designated to receive 
complaints. The agency shall acknowledge to the 
complainant or his representative in writing 
receipt of the complaint and advise the com- 
plaintant in writing of all his administrative 
rights and of his right to file a civil action as 
set forth in § 713.281, including the time limits 
imposed on the exercise of these rights.

(4) The agency shall extend the time limits 
in this section: (i) When the complainant 
shows that he was not notified of the time limits 
and was not otherwise aware of them, or that 
he was prevented bv circumstances bevond his 
control from submitting the matter within the 
time limits; or (ii) for other reasons considered 
sufficient by the agency.

(b) Presentation of complaint. At any stage 
in the presentation of a complaint, including 
the counseling stage under § 713.213, the com­
plainant shall have the right to be accompanied, 
represented, and advised by a representative o f 
his own choosing. I f  the complainant is an em­
ployee of the agency, he shall have a reasonable 
amount o f official time to present his complaint 
if he is otherwise in an active duty status. I f  
the complainant is an employee of the agency



47

and ne designates another employee o f the 
agency as his representative, the represent­
ative, shall have a reasonable amount of official 
time, if he is otherwise in an active duty status, 
to present the complaint.

§  713.215 REJECTION OR CANCELLATION OF 
COMPLAINT

The head of the agency or his designee may 
reject a complaint which was not timely filed 
and shall reject those allegations in a complaint 
which are not within the purview of § 713.212 or 
which set forth identical matters as contained in 
a previous complaint filed by the same com­
plainant which is pending in the agency or has 
been decided by the agency. He may cancel a 
complaint because of failure of the complainant 
to prosecute the complaint. He shall transmit 
the decision to reject or cancel by letter to the 
complainant and his representative. The de­
cision letter shall inform the complainant of his 
right to appeal the decision of the agency to the 
Commission and of the time limit within which 
the appeal may be submitted and of his right to 
file a civil action as described in § 713.281.

§ 713.216 INVESTIGATION

(a) The Equal Employment Opportunity 
Officer shall advise the Director o f Equal Em­
ployment Opportunity of the acceptance of a 
complaint. The Director of Equal Employment 
Opportunity shall provide for the prompt in­
vestigation of the complaint. The person as­
signed to investigate the complaint shall occupy 
a position in the agency which is not, directly 
or indirectly, under the jurisdiction of the head 
of that part of the agency in which the com­
plaint arose. The agency shall authorize the 
investigator to administer oaths and require 
that statements of witnesses shall be under



48

oath or affirmation, without a pledge of confi­
dence. The investigation shall include a thor­
ough review of the circumstances under which 
the alleged discrimination occurred, the treat­
ment of members of the complainant’s group 
identified by his complaint as compared with 
the treatment of other employees in the orga­
nizational segment in which the alleged discrim­
ination occurred, and any policies and prac­
tices related to the work situation which may 
constitute, or appear to constitute, discrimina­
tion even though they have not been expressly 
cited by the complainant. Information needed 
for an appraisal of the utilization of members 
of the complainant’s group as compared to the 
utilization of persons outside the complainant’s 
group shall be recorded in statistical form in 
the investigative file, but specific information 
as to a person’s membership or nonmembership 
in the complainant’s group needed to facilitate 
an adjustment of the complaint or to make an 
informed decision on the complaint shall, if  
available, be recorded by name in the investi­
gative file. (As used in this subpart, the term 
“ investigative file”  shall mean the various doc­
uments and information acquired during the 
investigation under this section— including affi­
davits of the complainant, o f the alleged dis­
criminating official, and of the witnesses and 
copies of, or extracts from, records, policy 
statements, or regulations of the agency— orga­
nized to show their relevance to the complaint 
or the general environment out of which the 
complaint arose.) I f  necessary, the investigator 
may obtain information regarding the member­
ship or nonmembership of a person in the 
complainant’s group by asking each person con­
cerned to provide the information voluntarily; 
he shall not require or coerce an employee to 
provide this information.

(b) The Director of Equal Employment 
Opportunity shall arrange to furnish to the



49

person conducting the investigation a written 
authorization: (1) To investigate all aspects 
of complaints of discrimination, (2) to require 
all employees of the agency to cooperate with 
him in the conduct of the investigation, and
(3) to require employees of the agency having 
any knowledge of the matter complained of to 
furnish testimony under oath or affirmation 
without a pledge of confidence.

§ 713.217 ADJUSTMENT OF COMPLAINT AND 
OFFEE OF HEARING

(a) The agency shall provide an opportunity 
for adjustment of the complaint on an informal 
basis after the complainant has reviewed the 
investigative file. For this purpose, the agency 
shall furnish the complainant a copy of the 
investigative file promptly after receiving it 
from the investigator, and provide opportunity 
for the complainant to discuss the investigative 
file with appropriate officials. I f  an adjustment 
of the complaint is arrived at, the terms of the 
adjustment shall be reduced to writing and 
made part o f the complaint file, with a copy 
of the terms of the adjustment provided the 
complainant. I f  the agency does not carry out, 
or rescinds, any action specified by the terms 
of the adjustment for any reason not attributa­
ble to acts or conduct of the complainant the 
agency shall, upon the complainant’s written 
request, reinstate the complaint for further 
processing from the point processing ceased 
under the terms of the adjustment.

(b) I f  an adjustment of the complaint is not 
arrived at, the complainant shall be notified in 
writing: (1) O f the proposed disposition of 
complaint, (2) of his right to a hearing and 
decision by the agency head or his designee 
if  he notifies the agency in writing within 15 
calendar days of the receipt of the notice that 
he desires a hearing, and (3) of his right to a



50

decision by the head of the agency or his des­
ignee without a hearing.

(c) I f  the complainant fails to notify the 
agency of his wishes within the 15-day period 
prescribed in paragraph (b) of this section, the 
appropriate Equal Employment Opportunity 
Officer may adopt the disposition of the com­
plaint proposed in the notice sent to the com­
plainant under paragraph (b) of this section 
as the decision of the agency on the complaint 
when delegated the authority to make a de­
cision for the head of the agency under those 
circumstances. When this is done, the Equal 
Employment Opportunity Officer shall, transmit 
the decision by letter to the complainant and 
his representative which shall inform the com­
plainant of his right o f appeal to the Commis­
sion and the time limit applicable thereto and 
of his right to file a civil action as described in 
§ 713.231. I f  the Equal Employment Opportu­
nity Officer does not issue a decision under this 
paragraph, the complainant, together with the 
complaint file shall be forwarded to the head 
of the agency, or his designee, for decision 
under §713.221.

§7 1 3 .2 1 8  HEARING.

(a) Complaints examiner. The hearing shall 
lie held by a complaints examiner who must be 
an employee of another agency except when the 
agency in which the complaint arose is: (1) 
The government of the District o f Columbia, 
or (2) an agency which, by reason of law, is 
prevented from divulging information concern­
ing the matter complained of to a person who 
has not received the security clearance required 
by that agency, in which event the agency shall 
arrange with the Commission for the selection 
of an impartial employee of the agency to 
serve as complaints examiner. (For purposes 
of this paragraph, the Department of Defense



51

is considered to be a single agency.) The agency 
in which the complaint arose shall request the 
Commission to supply the name of a complaints 
examiner who has been certified by the Com­
mission as qualified to conduct a hearing under 
this section.

(b) Arrangements for hearing. The agency in 
which the complaint arose shall transmit the 
complaint file containing all the documents 
described in § 713.222 which have been acquired 
up to that point in the processing of the com­
plaint, including the original copy of the inves­
tigative file (which shall be considered by the 
complaints examiner in making his recom­
mended decision on the complaint), to the com­
plaints examiner who shall review the complaint 
file to determine whether further investigation 
is needed before scheduling the hearing. When 
the complaints examiner determines that fur­
ther investigation is needed, he shall remand the 
complaint to the Director of Equal Employ­
ment Opportunity for further investigation or 
arrange for the appearance of witnesses neces­
sary to supply the needed information at the 
hearing. The requirements of § 713.216 apply to 
any ftirther investigation by the agency on* the 
complaint. The complaints examiner shall sched­
ule the hearing for a convenient time and place.

(c) Conduct of hearing. (1) Attendance at 
the hearing is limited to persons determined by 
the complaints examiner to have a direct con­
nection with the complaint.

(2) The complaints examiner shall conduct 
the hearing so as to bring out pertinent facts, 
including the production of pertinent docu­
ments. Rules o f evidence shall not be applied 
strictly, but the complaints examiner shall ex­
clude irrelevant or unduly repetitious evidence. 
Information having a bearing on the complaint 
or employment policy or practices relevant to 
the complaint shall be received in evidence. 
The complainant, his representative, and the



52

representatives of the agency at the hearing 
shall be given the opportunity to cross-examine 
witnesses who appear and testify. Testimony 
shall be under oath or affirmation.

(d) Powers of complaints examiner. In addi­
tion to the other powers vested in the com­
plaints examiner by the agency in accordance 
with this subpart, the agency shall authorize 
the complaints examiner to:

(1) Administer oaths or affirmations;
(2) Regulate the course of the hearing;
(3) Rule on offers of proof;
(4) Limit the number of witnesses whose 

testimony would be unduly repetitious; and
(5) Exclude any person from the hear­

ing for contumacious conduct or misbe­
havior that obstructs the hearing.

(e) Witnesses at hearing. The complaints ex­
aminer shall request any agency subject to this 
subpart to make available as a witness at the 
hearing an employee requested by the com­
plainant when he determines that the testimony 
of the employee is necessary. He may also 
request the appearance of an employee of any 
Federal agency whose testimony he determines 
is necessary to furnish information pertinent 
to the complaint under consideration. The com­
plaints examiner shall give the complainant his 
reasons for the denial of a request for the ap­
pearance of employees as witnesses and shall 
insert those reasons in the record of the hear­
ing. An agency to whom a request is made 
shall make its employees available as witnesses 
at a hearing on a complaint when requested to 
do so by the complaints examiner and it is not 
administratively impracticable to comply with 
the request. When it is administratively im­
practicable to comply with the request for a 
witness, the agency to whom request is made 
shall provide an explanation to the complaints 
examiner. I f  the explanation is inadequate, the



53

complaints examiner shall so advise the agency 
and request it to make the employee available 
as a witness at the hearing. I f  the explanation 
is adequate, the complaints examiner shall in­
sert it in the record of the hearing, provide a 
copy to the complainant, and make arrange­
ments to secure testimony from the employee 
through a written interrogatory. An employee 
of an agency shall be in a duty status during 
the time he is made available as a witness.

( f )  Record of hearing. The hearing shall be 
recorded and transcribed verbatim. All docu­
ments submitted to, and accepted by, the com­
plaints examiner at the hearing shall be made 
part o f the record of the hearing. I f  the agency 
submits a document that is accepted, it shall 
furnish a copy of the document to the complain­
ant. I f  the complainant submits a document 
that is accepted, he shall make the document 
available to the agency representative for 
reproduction.

(g) Findings, analysis, and recommendations. 
The complaints examiner shall transmit to the 
head of the agency or his designee: (1) The 
complaint file (including the record of the hear­
ing), (2) the findings and analysis of the com­
plaints examiner with regard to the matter 
which gave rise to the complaint and the gen­
eral environment out of which the complaint 
arose, and (3) the recommended decision of 
the complaints examiner on the merits of the 
complaint, including recommended remedial ac­
tion, where appropriate, with regard to the 
matter which gave rise to the complaint and 
the general environment out o f which the com­
plaint arose. The complaints examiner shall 
notify the complainant of the date on which 
this was done. In addition, the complaints ex­
aminer shall transmit, by separate letter to 
the Director of Equal Employment Oppor­
tunity, whatever findings and recommendations 
he considers appropriate with respect to con-

568- 796—  75----- 5



54

ditions in the agency which do not bear directly 
on the matter which gave rise to the complaint 
or which bear on the general environment out 
of which the complaint arose.

§ 713.219 RELATIONSHIP TO OTHER AGENCY 
APPELLATE PROCEDURES

(a) Except as provided in paragraphs (b) 
and (c) of this section, when an employee 
makes a written allegation of discrimination 
on grounds of race, color, religion, sex, or na­
tional origin, in connection with an action that 
would otherwise be processed under a grievance 
or appeals system of the agency, the agency 
may process the allegation of discrimination 
under that system when the system meets the 
principles and requirements in §§ 713.212 
through 713.220 and the head of the agency, 
or his designee, makes the decision of the 
agency on the issue of discrimination. That 
decision on the issue of discrimination shall be 
incorporated in and become a part of the de­
cision on the grievance or appeal.

(b) An allegation of discrimination made in 
connection with an appeal under Subpart B of 
Part 771 of this chapter shall be processed 
under that subpart.

(c) An allegation o f discrimination made in 
connection with a grievance under Subpart C 
of Part 771 of this chapter shall be processed 
under this part.

§ 713.220 AVOIDANCE OF DELAY

(a) The complaint shall be resolved prompt­
ly. To this end, both the complainant and the 
agency shall proceed with the complaint with­
out undue delay so that the complaint is resolved 
within 180 calendar days after it was filed, in­
cluding time spent in the processing of the com- 
nlaint bv the complaints examiner under 
§ 713.218.'



(b) The head of the agency or his designee 
may cancel a complaint if the complainant fails 
to prosecute the complaint without undue de­
lay. However, instead of canceling for failure 
to prosecute, the complaint may be adjudicated 
if  sufficient information for that purpose is 
available.

(c) The agency shall furnish the Commission 
monthly reports on all complaints pending 
within the agency in a form specified by the 
Commission. I f  an agency has not issued a final 
decision, and has not requested the Commission 
to supply a complaints examiner, within 75 
calendar days from the date a complaint was 
filed, the Commission may require the agency 
to take special measures to insure prompt proc­
essing of the complaint or may assume re­
sponsibility for processing the complaint, in­
cluding supplying an investigator to conduct 
any necessary investigation on behalf of the 
agency. When the Commission supplies an in­
vestigator, the agency shall reimbixrse the Com­
mission for all expenses incurred in connection 
with the investigation and shall notify the com­
plainant in writing of the proposed disposi­
tion of the complaint no later than 15 calendar 
days after its receipt of the investigative report.

(d) When the complaints examiner has sub­
mitted a recommended decision finding discrim­
ination and the agency has not issued a final 
decision within 180 calendar days after the date 
the complaint was filed, the complaints ex­
aminer’s recommended decision shall become 
a final decision binding on the agency 30 calen­
dar days after its submission to the agency. In 
such event, the agency shall so notify the com­
plainant of the decision and furnish to him a 
copy of the findings, analysis, and recommended 
decision of the complaints examiner under 
§ 713.218(g) and a copy of the hearing record 
and also shall notify him in writing of his right



56

of appeal to the Commission and the time limits 
applicable thereto and of his right to file a 
civil action as described in § 713.281.

§ 713.221 DECISION BY HEAD OF AGENCY OK 
DESIGNEE

(a) The head of the agency, or his designee, 
shall make the decision of the agency on a com­
plaint based on information in the complaint 
file. A  person designated to make the decision 
for the head of the agency shall be one who is 
fair, impartial, and objective.

( b )  (1) The decision of the agency shall be 
in writing and shall be transmitted by letter to 
the complainant and his representative. When 
there has been no hearing, the decision shall 
contain the specific reasons in detail for the 
agency’s action, including any remedial action 
taken.

(2) When there has been a hearing on the 
complaint, the decision letter shall transmit a 
copy of the findings, analysis, and recommended 
decision of the complaints examiner under sec­
tion 713.218(g) and a copy of the hearing- 
record. The decision of the agency shall adopt, 
reject, or modify the decision recommended by 
the complaints examiner. I f  the decision is to 
reject or modify the recommended decision, the 
decision letter shall set forth the specific rea­
sons in detail for rejection or modification.

(3) When there has been no hearing and no 
decision under § 713.217(c), the decision letter 
shall set forth the findings, analysis, and deci­
sion of the head of the agency or his designee.

(c) The decision of the agency shall require 
any remedial action authorized by law deter­
mined to be necessary or desirable to resolve 
the issues of discrimination and to promote the 
policy of equal opportunity, whether or not 
there is a finding o f discrimination. When dis­
crimination is found, the agency shall require-



57

remedial action to be taken in accordance with 
§ 713.271, shall review the matter giving rise 
to the complaint to determine whether disciplin­
ary action against alleged discriminatory offi­
cials is appropriate, and shall record the basis 
for its decision to take, or not to take, disciplin­
ary action but this decision shall not be in­
cluded in the complaint file.

(d) The decision letter shall inform the com­
plainant of his right to appeal the decision of 
the agency to the Commission of his right to 
file a civil action in accordance with § 713.281, 
and of the time limits applicable thereto.

§ 713.222 COMPLAINT PILE

The agency shall establish a complaint file. 
Except as provided in § 713.221(c), this file 
shall contain all documents pertinent to the 
complaint. The complaint file shall include 
copies o f : (a) The notice of the Equal Employ­
ment Opportunity Counselor to the aggrieved 
person under § 713.213(a), (b) the written re­
port of the Equal Employment Opportunity 
Counsel under § 713.213 to the Equal Employ­
ment Opportunity Officer on whatever precom­
plaint counseling efforts were made with regard 
to the complainant’s case, (c) the complaint,
(d ) the investigative file, (e) if the complaint 
is withdrawn by the complainant, a written 
statement of the complainant or his representa­
tive to that effect, ( f )  if adjustment of the com­
plaint is arrived at under § 713.217, the written 
record of the terms of the adjustment, (g ) if  no 
adjustment of the complaint is arrived at under 
§ 713.217, a copy of the letter notifying the com­
plainant of the proposed disposition of the com­
plaint and of his right to a hearing, (h) if de­
cision is made under §713.217 (c), a copy of the 
letter to the complainant transmitting that deci­
sion, (i) if a hearing was held, the record of the 
hearing, together with the complaints ex­



58

aminer’s findings, analysis, and recommended 
decision on the merits of the complaint, ( j )  if 
the Director of Equal Employment Opportu­
nity is not the designee, the recommendations, 
if  any, made by him to the head of the agency 
or his designee, and (k) if decision is made 
under § 713.221, a copy of the letter transmit­
ting the decision of the head of the agency or 
his designee. The complaint file shall not con­
tain any document that has not been made 
available to the complainant or to his designated 
physician under § 294.401 of this chapter.

A p p e a l  to  t h e  C o m m is s io n

§ 713.231 ENTITLEMENT

(a) Except as provided by paragraph (b) 
of this section, a complainant may appeal to 
the Commission the decision of the head of the 
agency, or his designee:

(1) To reject his complaint, or a portion 
thereof, for reasons covered by § 713.215; or

(2) To cancel his complaint because of 
the complainant’s failure to prosecute his 
complaint; or

(3) On the merits of the complaint, 
under § 713.217(c) or §713.221, but the 
decision does not resolve the complaint to 
the complainant’s satisfaction.

(b) A  complainant may not appeal to the 
Commission under paragraph (a) of this sec­
tion when the issue of discrimination giving rise 
to the complaint is being considered, or has been 
considered, in connection with any other appeal 
by the complainant to the Commission.

§ 713.232 WHERE TO APPEAL

The complainant shall file his appeal in writ­
ing, either personally or by mail, with the 
Board of Appeals and Review, TJ.S. Civil Serv­
ice Commission, Washington, D.C. 20415.



59

§ 713.233 TIME LIMIT

(a) Except as provided in paragraph (b) o f 
this section, a complainant may file an appeal 
at any time after receipt of his agency’s notice 
of final decision on his complaint but not later 
than 15 calendar days after receipt of that 
notice.

(b) The time limit in paragraph (a) of this 
section may be extended in the discretion of the 
Board of Appeals and Review, upon a show­
ing by the complainant that he was not noti­
fied of the prescribed time limit and was not 
otherwise aware of it or that circumstances 
beyond his control prevented him from filing an 
appeal within the prescribed time limit.

§ 713.234 APPELLATE PROCEDURES

Tlie Board of Appeals and Review shall re­
view the complaint file and all relevant written 
representations made to the board. The board 
may remand a complaint to the agency for fur­
ther investigation or a rehearing if it considers 
that action necessary or have additional investi­
gation conducted by Commission personnel. 
This subpart applies to any further investiga­
tion or rehearing resulting from a remand from 
the board. There is no right to a hearing before 
the board. The board shall issue a written deci­
sion setting forth its reasons for the decision 
and shall send copies thereof the complain­
ant, his designated representative, and the 
agency. When corrective action is ordered, the 
agency shall report promptly to the board that 
the corrective action has been taken. The deci­
sion of the board is final, but shall contain a 
notice of the right to file a civil action in ac­
cordance with § 713.282.

§ 713.235 REVIEW BY THE COMMISSIONERS

The Commissioners may, in their discretion, 
reopen and reconsider anv previous decision.



60

when the party requesting reopening submits 
written argument or evidence which tends to 
establish that:

(1) New and material evidence is avail­
able that was not readily available when the 
previous decision was issued;

(2) The previous decision involves an 
erroneous interpretation of law or regula­
tion or a misapplication of established pol­
icy; or

(3) The previous decision is of a prec­
edential nature involving a new or un­
reviewed policy consideration that may 
have effects beyond the actual case at hand, 
or is otherwise of such an exceptional na­
ture as to merit the personal attention of 
the Commissioners.

§  713.236 RELATIONSHIP TO OTHER APPEALS

When the basis of the complaint of discrimi­
nation because of race, color, religion, sex, or 
national origin involves an action which is 
otherwise appealable to the Commission and the 
complainant having been informed by the agen­
cy of his right to proceed under this subpart 
elects to proceed by appeal to the Commission, 
the case, including the issue of discrimination, 
will be processed under the regulations appro­
priate to that appeal when the complainant 
makes a timely appeal to the Commission in 
accordance with those regulations.

R eports  to  t h e  C o m m is s io n

§ 713.241 REPORTS TO THE COMMISSION ON 
COMPLAINTS

Each agency shall report to the Commission 
information concerning precomplaint counsel­
ing and the status and disposition of complaints 
under this subpart at such times and in such 
manner as the Commission prescribes.



61

T h ir d  P a r t y  A l le g a tio n s

§ 713.251 THIRD-PARTY ALLEGATION OF 
DISCRIMINATION

(a) Coverage. This section applies to general 
allegations by organizations or other third par­
ties of discrimination in personnel matters with­
in the agency which are unrelated to an indi­
vidual complaint of discrimination subject to 
§§ 713.211 through 713.222.

(b) Agency procedure. The organization or 
other third party shall state the allegation with 
sufficient specificity so that the agency may in­
vestigate the allegation. The agency may re­
quire additional specificity as necessary to pro­
ceed with its investigation. The agency shall 
establish a file on each general allegation, and 
this file_ shall contain copies of all material used 
in making the decision on the allegation. The 
agency shall furnish a copy of this file to the 
party submitting the allegation and shall make 
it available to the Commission for review on 
request. The agency shall notify the party sub­
mitting the allegation of its decision, including 
any corrective action taken on the general al­
legations, and shall furnish to the Commission 
on request a copy of its decision.

(c) Commission procedures. I f  the third 
party disagrees with the agency decision, it 
may, within 30 da vs after receipt o f the de­
cision, request the Commission to review it. The- 
request shall be in writing and shall set forth 
with particularity the basis for the request. 
When the Commission receives such a request,, 
it shall make, or require the agency to make, 
any additional investigations the Commission 
deems necessary. The Commission shall issue a 
decision on the allegation ordering such cor­
rective action, with or without back pay, as it: 
deems appropriate.



62

F reedo m  F r o m  R e p r isa l  or I n te r fe r e n c e s

§7 1 3 .2 6 1  FREEDOM FROM REPRISAL

(a) Complainants, their representatives, and 
witnesses shall be free from restraint interfer­
ence, coercion, discrimination, or reprisal at any 
stage in the presentation and processing of a 
complaint, including the counseling stage under 
section 713, or any time thereafter.

§ 713.262 REVIEW OF ALLEGATIONS OF REPRISAL

(a) Choice of review procedures. A  complain­
ant, his representative, or a witness who alleges 
restraint, interference, coercion, discrimination, 
or reprisal in connection with the presentation 
of a complaint under this subpart, may, if an 
emplovee nr applicant, have the allegation re­
viewed as an individual complaint of discrimi­
nation subject to §§ 713.211 through 713.222 or 
as a charge subject to paragraph (b) of this 
section.

(b) Procedure for review of charges. (1) An 
employee or applicant may file a charge _ of 
restraint, interference, coercion, discrimination 
or reprisal, in connection with the presentation 
of a complaint with an appropriate agency 
official as defined in § 713.214(a) (2) within 15 
calendar days of the date of the alleged occur­
rence. The charge shall be in writing and shall 
contain all pertinent facts. Except as provided 
in subparagraph (2) of this paragraph, the 
agency shall undertake an appropriate inquiry 
into such a charge and shall forward to the 
Commission within 15 calendar days o f the 
date of its receipt a copy of the charge and 
report of action taken. The agency shall also 
provide the charging party with a copy of the 
report of action taken. When the agency has 
not completed an appropriate inquiry 15 calen­
dar days after receipt of such a charge, the



63

charging party may submit a written statement 
with all pertinent facts to the Commission, and 
the Commission shall require the agency to take 
whatever action is appropriate.

(c) When a complainant, after completion 
o f the investigation of his complaint under 
§ 713.216, requests a hearing and in connection 
with that complaint alleges restraint, interfer­
ence, coercion, discrimination, or reprisal, the 
complaints examiner assigned to hold the hear­
ing shall consider the allegation as an issue in 
the complaint at hand or refer the matter to 
the agency for further processing under the 
procedure chosen by the complainant pursuant 
to paragraph (a) of this section.

R e m e d ia l  A ctio n s

§ 713.271 REMEDIAL ACTIONS

(a) Remedial action involving an applicant.
(1) When an agency, or the Commission, finds 
that an applicant for employment has been dis­
criminated against and except for that discri­
mination would have been hired, the agency 
shall offer the applicant employment of the 
type and grade denied him. The offer shall be 
made in writing. The individual shall have 15 
calendar days from receipt of the offer within 
which to accept or decline the offer. Failure to 
notify the agency of his decision within the 15- 
day period will be considered a declination of 
the offer, unless the individual can show that 
circumstances beyond his control prevented 
him from responding within the time limit. I f  
the offer is accepted, appointment shall be re­
troactive to the date the applicant would have 
been hired, subject to the limitation in sub- 
paragraph (4) of this paragraph. Backpay, 
computed in the same manner prescribed by 
§ 550.804 of this chapter, shall be awarded from 
the beginning of the retroactive period, subject 
to the same limitation, until the date the indi-



64

vidual actually enters on duty. The individual 
shall be deemed to have performed service for 
the agency during this period of retroactivity 
for all purposes except for meeting service re­
quirements for completion of a probationary or 
trial period that is required. I f  the offer is 
declined, the agency shall award the individual 
a sum equal to the backpay he would have re­
ceived, computed in the same manner pres­
cribed by § 550.804 of this chapter, from the 
date he would have been appointed until the 
date the offer was made, subject to the limita­
tion of subparagraph (4) of this paragraph. 
The agency shall inform the applicant, in its 
offer, of his right to this award in the event he 
declines the offer.

(2) When an agency, or the Commission, 
finds that discrimination existed at the time 
the applicant was considered for employment 
but does not find that the individual is the one 
who would have been hired except for discri­
mination, the agency shall consider the indivi­
dual for any existing vacancy of the type and 
grade for which he had been considered initi­
ally and for which he is qualified before con­
sideration is given to other candidates. I f  the 
individual is not selected, the agency shall 
record the reasons for nonselection. I f  no va­
cancy exists, the agency shall give him this pri­
ority consideration for the next vacancy for 
which he is qualified. This priority shall take 
precedence over priorities provided under other 
regulations in this chapter.

(3) This paragraph shall be cited as the au­
thority under which the above-described ap­
pointments or awards of backpay shall be made.

(4) A  period of retroactivity or a period 
for which backpay is awarded under this para­
graph may not extend from a date earlier than 
2 years prior to the date on which the complaint 
was initially filed by the applicant. I f  a finding 
of discrimination was not based on a complaint, 
the period of retroactivity or period for which



63

backpay is awarded this paragraph may not 
extend earlier than 2 years prior to the date 
the finding of discrimination was recorded.

(b) Remedial action involving an employee. 
When an agency, or the Commission, finds that 
an employee of the agency was discriminated 
against and as a result of that discrimination 
was denied an employment benefit, or an ad­
ministrative decision adverse to him was made, 
the agency shall take remedial actions which 
shall include one or more of the following, but 
need not be limited to these actions:

(1) Retroactive promotion, with back­
pay computed in the same manner pre­
scribed by § 550.804 of this chapter, when 
the record clearly shows that but for the 
discrimination the employee would have 
been promoted or would have been em­
ployed at a higher grade, except that the 
backpay liability may not accrue from a 
date earlier than 2 years prior to the date 
the discrimination complaint was filed, but, 
in any event, not to exceed the date he 
would have been promoted. I f  a finding of 
discrimination was not based on a com­
plaint, the backpay liability may not ac­
crue from a date earlier than 2 years prior 
to the date the finding of discrimination 
was recorded, but, in any event, not to ex­
ceed the date he would have been promoted.

(2) Consideration for promotion to a po­
sition for which he is qualified before con­
sideration is given to other candidates when 
the record shows that discrimination ex­
isted at the time selection for promotion was 
made but it is not clear that except for the 
discrimination the employee would have been 
promoted. I f  the individual is not selected, 
the agency shall record the reasons for 
nonseleetion. This priority consideration 
shall take precedence over priorities under 
other regulations in this chapter.



6 6

(3) Cancellation of an unwarranted per­
sonnel action and restoration of the 
employee.

(4) Expunction from the agency’s rec­
ords of any reference to or any record of 
an unwarranted disciplinary action that is 
not a personnel action.

(5) Pull opportunity to participate in 
the employee benefit denied him (e.g., 
training, preferential work assignments, 
overtime scheduling).

R ight T o P ile a  Civil A ction

§ 713.281 STATUTORY RIGHT

An employee or applicant is authorized by 
section 717(c) of the Civil Rights Act, as 
amended, 84 Stat. 112, to file a civil action in an 
appropriate 17.S. District Court within:

(a) Thirty (30) calendar days o f his receipt; 
of notice of final action taken by his agency on 
a complaint.

(b) One hundred-eighty (180) calendar days 
from the date of filing a complaint with his 
agency if  there has been no decision.

(c) Thirty (30) calendar days of his receipt 
of notice of final action taken by the Commis­
sion on his complaint, or,

(d) One hundred-eighty (180) calendar days 
from the date of filing an appeal with the Com­
mission if  there has been no Commission 
decision.

§ 713.282 NOTICE OF RIGHT

An agency shall notify an employee or appli­
cant of his right to file a civil action, and of the 
30-day time limit for filing, in any final action 
on a complaint under §§ 713.215 and 713.217, or 
§ 713.221. The Commission shall notify an em­
ployee or applicant of his right to file a civil



67

action, and of the 30-day time limit for filing, 
in any decision under § 713.234.

§ 713.283 EFFECT ON ADMINISTRATIVE 
PROCESSING

The filing of a civil action by an employee or 
applicant does not terminate agency processing 
of a complaint or Commission processing of an 
appeal under this subpart.

U n it e d  S ta te s  C iv il  S ervice  C o m m is s io n ,
[ s e a l ] J a m e s  C . S p r y ,

Executive Assistant to the Commissioners.

[FR Doc. 72-18054 Filed 10-20-72; 8 :49 am]

11,S. GO1FRNYEN1 PRINTING OFFICE: 1975



mM