Chandler v. Roudebush Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae

    I n  t h e

I m p a m i ?  © H u rt  a t  tip? 3U tii?&  S t a t e s
O ctober T er m , 1975 

No. 74-1599

J ew e ll  D . C h an d ler ,

v.
Petitioner,

B ichard  L . R o udebush .

O N  W R IT  OP CERTIORARI TO T H E  U N IT E D  STATES 

COU RT OP APPE A LS POR T H E  N IN T H  C IR C U IT

BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CUMAE

J ack  G reenberg 
J am es  M. N abrit , III 
C harles S te p h e n  R alston  
B il l  L a n n  L ee 
M elvy n  L eyen th al  
E ric S ch n apper

10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



I N D E X

Interest of Amiens ............................................................ 1

Summary of Argument.......................    2

A rg u m en t—

I. Prior Decisions Of This Court Require That 
Federal Employees Be Afforded A Plenary Trial 
in Federal Court................. .................... ........ .....  4

II. Under the Standards of Alexander v. Gardner- 
Denver, the CSC Complaint Process Cannot Sub­
stitute for a Trial in Federal Court ..................  16

A. Introduction ...............................................    16
B. Summary and History of Part 713 ..............  17
C. The Administrative Process Is Not Equiva­

lent To a Civil Action in Federal Court....... 20

1. The Failure to Follow Title VII Law .... 20
2. Deficiencies in the Fact-Finding Process 25
3. The Exclusive Control By the Agency of

the Process ............     27
4. Other Variations from Court Procedures 29

C onclusion  ..........................................................................................  30

A ppen d ix  A—

Description and Critique of the EEO Complaint 
Process ...................................................................  la

A ppendix  B—

Federal Personnel Manual Letter No. 713-17 ....... 41a

PAGE



11

ENDIX 0 ---

Documents Belated to EEO Procedures ..............  81a

PAGE

A ppen d ix  0

T able oe A u th o rities

Cases:

Albemarle Paper Co. v. Moody,------U.S.-------, 45 L.Ed.

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)
passim

Allen v. Veterans Administration, 8 EPD tf 9783 (W.D.
Pa. 1974) ................... ....... ...... ......... .............................. 12

Bernardi v. Butz, 7 EPD fl 9381 (N.D. Cal. 1974) ....... 12
Brown v. Gaston County Dyeing Machine Co., 457 F.2d

1377 (4th Cir. 1972) ............................... ........ .............. 25
Brown v. General Services Administration, No. 74-768 2,15 
Burns v. Thiokol Corp., 483 F.2d 300 (5th Cir. 1973) ..27, 31

Caro v. Schultz, 9 EPD fl 9987 (N.D. 111. 1975) ............... 12
Caro v. Schultz, ------  F.2d -------, 10 E.P.D. ff 10,381

(7th Cir. 1975) ........................................................ . 5
Cates v. Johnson, 377 F. Supp. 1145 (W.D. Pa. 1974) .. 12 
Chambers v. United States, 451 F.2d 1045 (Ct. Cl. 1971) 8
Chandler v. Johnson, 7 EPD fl 9139 (C.D. Cal. 1973) ....5,12
Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ................. 21
Coopersmith v. Johnson, 7 EPD 9388 (D.D.C. 1974) 12

Day v. Weinberger, 8 EPD fl 9771 (D.D.C. 1974) ......... 21

Ettinger v. Johnson, 10 FEP Cas. 642 (E.D. Pa. 1974) 12
Fisher v. Brennan, 10 FEP Cas. 685 (E.D. Tenn. 1974) 12
Ford v. United States Steel Corp., 520 F.2d 1043 (5th 

Cir. 1975) 10



I l l

Gautier v. Weinberger, 6 EPD If 901 (D.D.O. 1973) __  12
Griggs v. Duke Power Go., 401 U.S. 424 (1971) ....... 2
Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975) ........ 14

Haire v. Callaway, 9 FEP Gas. 168 (E.D. No. 1974) .... 12
Haire v. Callaway, ------  F.2d ------ , 11 F.E.P. Cases

769 (Nov. 17, 1975) .........................................5,11,16,19
Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973) .. 12 
Hackley v. Boudebush, 520 F.2d 108 (D.C. Cir.

1975) ............ ..................... ........ ................. .......5, 7, 8, 9,13,
15, 20, 23, 25, 26, 29

Harris v. Ulanich, No. 73-369-N, E.D. Va., opinion
dated November 14, 1974 ................... ........ ............. 12

Hodgson v. First Federal Savings and Loan, 455 F,2d 
818 (5th Cir. 1972) .............. ........... .......................... 21

Johnson v. Georgia Highway Express, Inc., 417 F.2d
1122 (5th Cir. 1969) .................... .......... ...... ........... 31

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364
(5th Cir. 1974) ........................................ ....................  21

Johnson v. Railway Express Agency, 421 U.S. 454
(1975) _____ _____________ _________ ____________2, 7, 31

Johnson v. U.S. Postal Service, 364 F. Supp. 37 (N.D.
Fla. 1973) ............ .......................... ...............................  12

Laurel v. United States, 5th Cir. No. 74-3746 ..............  15
Leinster v. Engman, 8 EPD Tf 9774 (D.D.C. 1974) .......  12
Levens v. General Services Administration, 10 FEP 

Cas. 493 (W.D. Mo. 1975) .......... ........................ .......  12

Marshall v. United States Federal Highway Adminis­
trator, 7 EPD Tf 9184 (D.D.C. 1973)

PAGE

12



IV

McDonnell Douglas Corp v. Green, 411 U.S. 792
(1973) ..............................................................2,6,8,10,16,

22, 23, 27, 30
McGowan v. United States Information Agency, 8 EPD

If 9787 (D.D.C. 1974) ........... ...................................... -  12
McLaughlin v. Callaway, 9 EPD |f|f 9888, 10,098 (S.D. ■

Ala. 1974) ........................-............-...... -..................... 12,13
McLaughlin v. Hoffman, 5th Cir. No. 75-2261 ------------ 13
Meadows v. Ford Motor Co., 510 F.2d 939 (6th Cir.

1975) .....      21
Morton v. Mancari, 417 U.S. 535 (1974) ............. .........6,19

Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968) ........ ..............- .................. ....... ...... .......... -........  31

Nimitz v. Berzak, 7 EPD ff 9273 (E.D. La. 1974) ....... 12

Oringel v. Matthews, 5th Cir. No. 74-3971 ..................  5

Palmer v. Rogers, 10 EPD If 10,265 (D.D.C. 1975) ....... 21
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) 2
Place v. Weinberger, No. 74-116 .........................   2
Pointer v. Sampson, 62 F.R.D. 689 (D.D.C. 1974) -----  13
Polcover v. Secretary of the Treasury, 477 F.2d 1223 

(D.C. Cir. 1973) ............................................................  8

Reynolds v. Wise, 8 EPD Iflf 9777 (N.D. Tex. 1973),
9778 (N.D. Tex. 1974) ............ .......................... ........... 12

Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir.
1975) ...................................... .................................— 26, 27

Richerson v. Fargo, 10 FEP Cas. 862 (E.D. Pa. 1975) 12
Roberts v. Mumford, 8 EPD If 9692 (D.D.C. 1974) 12
Robinson v. Warner, 8 EPD |f 9452 (D.D.C, 1974) ..... 12
Roney v. Saxbe, 8 EPD |f 9587 (D.D.C. 1974) ............  12
Russell v. Johnson, 10 FEP Cas. 924 (W.D. Pa. 1975) 12

PAGE



V

Salone v. United States, 7 EPD If 9376 (W.D. Okla.
1974) ..............................................................................  12

Salone v. United States, 511 F.2d 902 (10th Cir. 1975),
pending on petition for certiorari, No. 74-1600 .......2, 4, 5,

11,19
Smith v. Gunther, 9 EPD H 9915 (D.D.C. 1975) ............  12
■Smith v. Snyder, 381 F. Supp. 1083 (E.D. Pa. 1974) .... 12 
Sperling v. United States, 7 EPD If 9274 (D. N.J. 1974) 12
Sperling v. United States, 515 F.2d 465 (3rd Cir. 1965),

PAGE

petition for a writ of certiorari pending, No. 75-247
5, 8,9

Swain v. Hoffman, 5th Cir. No. 72-2002 ..... ......... ........ ...6,15

Thomas v. Department of State, 8 EPD 9622 (D.D.C. 
1974) .......... ...................... ....... .................-....................  12

Thompson v. Department of Justice, 372 F. Supp. 762 
(N.D. Cal. 1974) ................................................ ........ . 12

Tomlin v. Air Force Medical Center, 369 F. Supp. 353 
(S.D. Ohio 1974) ....................................................... 12

Wormley v. Department of the Navy, 8 FEP Cas. 1008 
(N.D. Cal. 1974) ............ ........ ....... .......... .....................  12

Statutes:

Equal Employment Opportunity Act of 1972—

P.L. 92-261 ................................ - ......................... -....  4, 6
5 U.S.C. §§ 702, 704 .............. .................................. 8

5 U.S.C. §706(2) ...... ................................................ 7,8

12 U.S.C. §1848 ........... - ............ .............................. 7
15 U.S.C. § 21 (c) ............ ....................... .'...... . 7
15 U.S.C. § 45(c) .................................. ...................  7



VI

15 U.S.C. § 522 .......................................................... 7

21 U.S.C. § 348(g) (2) ...............................................  7

21 U.S.C. §371 (f)(3 ) ............... ............................... 7
29 U.S.C. § 160(e)   _____________ _________  7

42 U.S.C. § 1981 ................................... ....................  15

42 U.S.C. § 2GQ0e-5 .................................. ....... ..-..6, 7, 8

42 U.S.C. § 20Q0e-16 .............................................passim

49 U.S.C. § 16(2) ______ ____________ ___________ 7

5 ( Part 713 ....................... ......................... passim

5 C.F.R. §713.251 ........................... ........................  13

Other Authorities:

Brief for Defendants, McLaughlin v. Hoffman, 5th 
Cir. No. 75-2261 ................. ............ ........................ . 13

Brief for Defendants-Appellees, Swain v. Hoffman,
5th Cir. No. 75-2002 ...................... .... ......................... 13

Brief for Respondents, Brown v. General Services Ad­
ministration, No. 74-768 - ................. - ....... ......... ...... 15,29

Bureau Intergovernmental Personnel Programs Pub­
lication 152-46 (July 1974) ........................ ................ 21

CSC/ARB Decision No. 713-73-465 ................................ 22

118 Cong. Rec. 7169, 7566 ______ __ ........................... 7
PPM Letter No. 713-17 ......... ..................................... .....  20

General Counsel’s Notes, Yol. 1, No. 1 (Sept. 1972),
p. 1 .................. .......... ........................ ............................ . 21

PAGE



VX1

H. Rep.. No. 92-238, on H.R. 1746, 92d Cong., 1st Sess., 
at 24 (1971) .................... ...............................................  25

Letter from Irving Jaffe, Acting Asst. Attorney Gen­
eral to Senator Tunney dated May 6, 1975, reprinted 
in C.C.H., Employment Practices Gnide, Tf 5327 .......  14

Minutes of U.S. Civil Service Commission, Nov. 14, 
1973, p. 324 .................................................................. . 23

Petition for a Writ of Certiorari, 8 alone v. United 
States, No. 74-1600

PAGE

8



I n  th e

(flourt of t!|£ Btutvz
O ctobeb T e e m , 1975 

No. 74-1599

J ew ell  D. C h an d leb ,

y.

Petitioner,

R ichabd  L . R o udebush .

O N  W E IT  OF CEETIOEAEI TO T H E  U N IT E D  STATES 
COUET OF A PPE A LS FOE T H E  N IN T H  C IB C U IT

BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE

Interest o f Amicus*

The NAACP Legal Defense and Educational Fund, Inc., 
is a non-profit corporation, incorporated under the laws 
of the State of New York in 1939. It was formed to assist 
Negroes to secure their constitutional rights by the prose­
cution of lawsuits. Its charter declares that its purposes 
include rendering legal aid gratuitously to Negroes suffer­
ing injustice by reason of race who are unable, on account 
of poverty, to employ legal counsel on their own behalf.

* Letters of consent to the filing of this Brief from counsel for 
the petitioner and the respondent have been filed with the Clerk of 
the Court.



2

The charter was approved by a New York Court, author­
izing the organization to serve as a legal aid society. The 
NAACP Legal Defense and Educational Fund, Inc. (LDF), 
is independent of other organizations and is supported by 
contributions from the public. For many years its attor­
neys have represented parties in this Court and the lower 
courts, and it has participated as amicus curiae in this 
Court and other courts, in cases involving many facets of 
the law.

Attorneys for the Legal Defense Fund have handled 
many cases involving Title YII of the Civil Rights Act of 
1964 and discrimination in employment generally.* Since 
the amendment of Title YII in 1972 to cover federal em­
ployees, LDF has become involved in cases raising a vari­
ety of procedural and substantive issues in actions brought 
under both Title YII and other statutes on behalf of fed­
eral employees.** In most of our cases the specific issue 
involved here—the right to a trial so-called de novo—is 
involved. Tims, LDF and its clients have an immediate 
interest in the resolution of this important issue.

Sum m ary o f  A rgu m en t

I.

In amending Title VII of the Civil Rights Act of 1964 
to extend its protections to employees of the federal gov­
ernment, Congress intended to give federal employees the

* E.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); 
Griggs v. Duke Poiver Co., 401 U.S. 424 (1971) ; McDonnell Doug­
las v. Green, 411 U.S. 792 (1973) ; Johnson v. Railway Express
Agency, 421 U.S. 454 (1975); Albemarle Paper Co. v. Moody, -------
U .S .------ , 45 L.EcL2d 280 (1975).

** E.g., Brown v. G.S.A., No. 74-768; Place v. Weinberger, No. 
74-116; Salone v. United States, No. 74-1600.



3

same rights as those enjoyed by employees of private com­
panies and state and local governments. A  central prin­
cipal in the statutory scheme embodied in Title YII is that 
there is a variety of overlapping and independent remedies 
available to eradicate discrimination in employment. The 
central role in enforcement has been given to the federal 
courts. Therefore, federal employees are entitled to the 
same plenary trial pursuant to the Federal Rules of Civil 
Procedure as are all other employees. Only in this way 
can federal employees be assured of an impartial tribunal 
and the resolution of discrimination claims based on the 
application of the law of Title VII to a complete record.

II.
The administrative procedure established by regulations 

of the Civil Service Commission, together with either a 
review of or an independent determination based on but 
limited to the record compiled administratively is no sub­
stitute for a plenary trial in federal court. The procedure 
suffers from the same deficiencies present in arbitration 
proceedings that were noted by this Court in Alexander 
v. Gardner-Denver Co., 415 U.S. 36 (1974). These include 
the absence of a fact finding apparatus comparable to 
that in federal court, the failure to follow Title VII law, 
and the ultimate fact finding and decision-making power 
being in the hands of an interested party. Thus, under the 
standards of Alexander, the record made in such a pro­
ceeding is entitled to no special deference, but may, of 
course, be introduced into evidence to be given whatever 
weight may be appropriate.



4

ARGUMENT

I.

Prior Decisions Of This Court Require That Federal 
Employees Be Afforded A Plenary Trial in Federal 
Court.

The issue presented by this case—whether a federal em­
ployee1 who brings a civil action under Title VII of the 
Civil Rights Act of 19642 is entitled to the same plenary 
judicial trial, or “ trial de novo” , as it has been called, as 
are all other employees—encompasses two questions. First, 
may evidence relevant to whether there has been discrim­
ination other than evidence developed during an admin­
istrative proceeding be discovered and introduced in court ? 
Second, should a federal court make an independent deter­
mination, based on all the available evidence, whether there 
has been a violation of Title VII, or must it affirm an ad­
ministrative determination of no discrimination if that de­
termination is not irrational or arbitrary, or is supported 
by “ substantial evidence?” Essentially three rules have 
been adopted by the lower courts.

The Tenth Circuit, in Salone v. United States, 511 F.2d 
902 (1975), pending on petition for certiorari, No. 74-1600, 
has held that if any facts other than those in the admin­
istrative record are needed, the case is to be remanded to 
the agency. The role of the district court is the limited 
review of the Administrative Procedure Act. The Ninth 
Circuit in the present case, and recently the Eighth Circuit

1 Throughout this Brief the word “ employee” includes applicants 
for employment and former employees as well as persons actually 
employed by the federal government.

2 As amended by the Equal Employment Opportunity Act of 
1972, P.L. 92-261.



5

in Haire v. Callaway, ------F .2d------- 11 F.E.P. Cases 769
(Nov. 17, 1975), have held with regard to the first question 
that the plaintiff must bear a substantial burden of demon­
strating a “need” to supplement the administrative record; 
otherwise, no new evidence may be introduced. However, 
exactly how that burden is to be met is not clearly defined. 
With regard to the second question, the Eighth Circuit held 
that an independent determination as to a Title YII viola­
tion should be made, while the Ninth Circuit apparently 
follows the “ substantial evidence” rule.

The three other circuits that have ruled on these issues 
have held that a federal employee is entitled to proceed 
under Title YII in the same way as any other employee 
under the rule of Alexander v. Gardner Denver Co., 415 
U.S. 36 (1974). Sperling v. United States, 515 F.2d 465 
(3rd Cir. 1965), petition for a ivrit of certiorari pending,
No. 75-247; Caro v. Schultz, ------  F.2d ------ , 10 E.P.'D.
H 10,381 (7th Cir. 1975); HacMey v. Roudebush, 520 F.2d 
108 (D.C. Cir. 1975). Thus, he need not meet the Chandler 
and Haire burden of demonstrating a need “before he can 
exercise procedures routinely accorded to civil litigants.” 
HacMey v. Roudebush, 520 F.2d at 171. Just like an arbi­
trator’s decision under Alexander, the record of the ad­
ministrative process may be admitted “ for whatever weight 
the trial judge wishes to accord it,” and the court may ex­
ercise the normal power over discovery to avoid unneces­
sary duplication. 520 F.2d at 150-151.

The Department of Justice has, in the lower courts, 
argued, in essence, for the Salone rule; i.e., no new evidence 
may be introduced in court, and there is a limited scope 
of review.3 Amicus urges that the result reached by the

3 In response to an inquiry at oral argument in the case of 
Oringel v. Matthews, 5th Cir. No. 74-3971, the Department of 
Justice has informed the court that its position is that “since [42 
U.S.C. 2000&-16] does not define the scope of judicial review or



6

Third, Seventh and District of Columbia Circuits is clearly 
correct, and is compelled by the face of the statute (42 
U.S.C. § 2000e-16), its legislative history, purpose, and the 
decisions of this Court in Alexander v. Gardner Denver Co., 
supra; McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973), and Morton v. Mancari, 417 U.S. 535 (1974).

Alexander v. Gardner-Denver Co., and McDonnell Doug­
las Corp. v. Green, at 798-99, held explicitly that a plain­
tiff is entitled to a full plenary trial de novo in a civil ac­
tion maintained under the provisions of 42 U.S.C. § 2000e-5 
of Title YII of the Civil Eights Act. Alexander, discusses 
at length why the ultimate responsibility for the full en­
forcement of Title YII rests with the federal courts and 
why this responsibility necessarily entails a full plenary 
trial. When Congress enacted the Equal Employment Op­
portunity Act of 1972 and amended Title YII to provide 
federal employees with a cause of action under it for the 
first time, it intended, as noted in Morton v. Mancari, at 
546-47, that the substantive law of Title VII be applied to 
federal employees. As an integral part of ensuring that 
goal, Congress provided, in 42 U.S.C. § 2000e-16(c) and 
(d), that federal employees can bring a “ civil action as 
provided in section 2000e-5,” which action would be gov­
erned by the “ provisions of section 2000e-5(f) through 
(k),” precisely the provisions interpreted and applied by 
this Court in Alexander. Even prior to Alexander, of 
course, the lower federal courts had generally held that a 
full plenary trial de novo was required in such actions.4 
Thus, the face of the statute leads to the conclusion that

contain any requirement of a trial de novo, the scope of judicial 
review is that provided under the Administrative Procedure Act.” 
5 U.S.C. § 706(2). Justice Department Memorandum in Response 
to Court Request, p. 1. The Department has taken the same posi­
tion in Swam v. Callaway, 5th Cir. No. 75-2002.

4 See the cases cited in McDonnell Douglas Corp. v. Green, 411 
U.S. at 799.



7

a federal employee receives what has been termed a trial 
de novo, a full plenary hearing in the District Court. In­
deed, the only words of the statute that could possibly lead 
to a different conclusion, the phrase “as applicable” in 
§ 2000e-16(d), do no more than exclude the references in 
2000e-5 to the Attorney General and the Equal Employ­
ment Opportunity Commission, since those references are 
not “applicable” to an action brought by a private party 
in which the federal government is itself the defendant.6 
Hackley v. Roudebush, 520 F.2d at 120-121.

Thus, as in the private sector, Congress intended that 
federal employees have access to a variety of independent 
and overlapping remedies to attack discrimination in em­
ployment. Alexander v. Gardner-Denver Go., 415 U.S. at 
48-49; see also, Johnson v. Railway Express Agency, 421 
U.S. 454, 459 (1975). The error the Eighth, Ninth, Tenth 
Circuits, and the government make, is to view the proceed­
ing in federal court as an adjunct to the administrative 
process, dependent on and limited to it. The use of the 
phrase “civil action” 6 in § 2O0Oe-16(c), and the link to the

6 The authoritative analysis of the 1972 Amendments as reported 
by the House-Senate Conference Committee, explicitly states that, 
“ The provisions of [2C00e-5(f)-(k) ], concerning private civil ac­
tions by aggrieved persons are made applicable to . . . Federal 
employees.” Section-by-section Analysis of H.R. 1746, the Equal 
Employment Opportunity Act of 1972, 118 Cong. Ree. at pp. 7169- 
7566 (92d Cong., 2d Sess. (1972). (Emphasis added).

6 Had Congress intended to preclude trials de novo, and to limit 
the district courts to determining whether the agency decision was 
supported by substantial evidence, it would have said so explicitly. 
See e.g., 5 U.S.C. § 706(2) (E ) ( “substantial evidence” test); 15 
XJ.S.C. § 45(e) (findings to be upheld “ if supported by evidence” ) ; 
15 U.S.C. § 21(e) ( “substantial evidence” test); 15 XJ.S.C. §522 
(facts found by agency “priina facie evidence” of those facts); 29 
XJ.S.C. § 160(e) ( “substantial evidence” ) ; 49 XJ.S.C. § 16(2.) (find­
ings of commission' “prima facie” evidence of facts stated therein) ; 
21 XJ.S.C. §371 ( f ) (3 )  ( “substantial evidence” ) ; 21 XJ.S.C. §348 
(g )(2 ) (findings to be sustained “ if based upon a fair evaluation 
of the entire record” ) ; 12 XJ.S.C. § 1848 ( “substantial evidence” ).



8

provisions of 2000e-5 through 2000e-16(d), show the con­
trary. The fact that a federal employee must give the 
agency 180 days to act on his complaint as a pre-condition 
to his filing an action under Title VII is only an exhaustion 
requirement; as in any other case brought pursuant to 
200Ge-5, it is not a limitation on his rights once he is in 
federal court.7 McDonnell Douglas Corf. v. Green, 411 U.S. 
at 798-99.

As explained exhaustively in Hacldey v. Roudebush, 
supra, and by the petitioner in her brief herein, the leg­
islative history of 2000e-16 clearly establishes, in our view, 
that the overriding concern of Congress was to remedy the 
inequitable situation of federal employees having fewer 
rights in federal court than all other employees.8

7 The government’s argument that since § 2000e-16 does not 
specify a “standard of review,” the scope of review is that under 
the A.P.A., 6 U.S.C. §706(2), is founded on the misconception 
that the eourt proceeding is one to review the administrative action, 
viz., a “ petition for review,” rather than an independent civil 
action. This notion is belied by the fact that a Title VII plaintiff 
need not wait for a final agency decision as is the case before an 
A.P.A. proceeding may be brought, but may file before such a 
decision once 180 days have expired. Under those circumstances 
there will be nothing to review. Of course, if Congress intended 
an A.P.A. proceeding, it would have said so, instead of explicitly 
stating that the “civil action” would proceed under § 2000e-5 .just 
as any other private action. Finally, A.P.A. review was already 
available, since any employee whose discrimination claim was re­
jected would have been a person “ adversely affected or aggrieved 
by [final] agency action” (5 U.S.C. §§ 702, 704). See, Chambers 
v. United States, 451 F.2d 1045 (Ct.CL 1971) ; Polcover v. Secre­
tary of the Treasury, 477 F.2d 1223 (D.C. Cir. 1973). Thus, to 
accept the government’s argument would be to render § 2000e-16 
(c) a virtual nullity, and 20C0e-16(d) meaningless, since if the 
“civil action” is an A.P.A. review it is difficult to see what portions 
of § 2000e-5(f)-(k) would be applicable.

8 Rather than repeat the analysis of legislative history, we re­
spectfully refer the Court to Hachley, to the petition for a Writ 
of certiorari in Salone v. United States, No. 74-1600, and to Sperl­
ing v. United States, 515 F.2d 465 (3rd Cir. 1975).



9

The government is left then with two arguments. One 
is that for “policy” reasons courts should he able to dis­
pose of Title YII actions expeditiously. The Third Circuit 
in Sperling v. United States, 515 F.2d at 483-484, and the 
District of Columbia Circuit in Hachley v. Roudebush, 520 
F.2d at 148-156 and 170-71, forcefully rejected this argu­
ment by noting that it is the responsibility of the federal 
courts to enforce the acts Congress has passed and not try 
to avoid that duty by so construing statutes as to render 
them ineffective. See also, Alexander v. Gardner-Denver 
Co., 415 U.S. at 60, n. 21.

The second argument, and the one to which we will ad­
dress ourselves in detail, is that the administrative remedy 
available to federal employees is “ different” and “better” 
from that discussed in Alexander and so therefore Alex- 
ander does not apply. The conclusion the government seeks 
to draw is a non-sequitur because the holding in Alexander 
was that an employee is entitled to a trial in federal court. 
Even if he were given an administrative remedy precisely 
equivalent to the one in federal court, Alexander does not 
specifically hold that a federal court can evade its primary 
responsibility to enforce Title YII by denying a trial de 
novo. At best, the record developed in such a hypothet­
ically equivalent administrative process would be entitled 
to greater evidentiary weight than would an inferior 
process. See, 415 U.S. at 60, n. 21. We think, however, 
it is obvious that the administrative remedy available to 
federal employees is nowhere near the equivalent of an 
action brought in federal court pursuant to the Federal 
Rules of Civil Procedure or Evidence, and will demonstrate 
that the defects in the procedure discussed in Alexander 
are present in the procedure established by the regulations 
of the Civil Service Commission. Before doing so, however, 
we wish to bring to the Court’s attention related considera­



10

tions that require the conclusion that a trial de novo must 
be given as a matter of right.

As indicated in the Statement of Interest of Amicus, the 
Legal Defense Fund has been engaged in the litigation of 
civil rights cases in federal court for some 35 years. Since 
the effective date of Title VII in 1965, the Fund has played 
a leading role in litigating fair employment cases in fed­
eral court, both as to procedural issues and as to the merits 
against some of the country’s largest employers. See, e.g., 
Ford v. United States Steel, 520 F.2d 1043 (5th Cir. 1975). 
In the last three years the Fund has become extensively 
involved in Title VII cases against the nation’s largest sin­
gle employer, the United States government, with a present 
docket of nearly 30 cases involving agencies such as the 
Departments of the Army, Navy, and Air Force, the Na­
tional Aeronautics and Space Administration, and the 
Postal Service.

Our long experience in litigating civil rights eases in 
general, and employment discrimination cases in particular, 
has convinced us that it is only through full plenary trials 
in federal courts, with the full range of discovery available 
therein, that adequate determinations of the merits of em­
ployment discrimination claims can be made. Whether the 
case involves individual claims such as in McDonnell Doug­
las Corp. v. Green, 411 U.S. 792 (1973), or broad class
problems such as Albemarle Paper Co. v. Moody, ------
U.S. ------ , 45 L. Ed. 2d 280 (1975), a court can properly
decide the case only after the parties have had a full op­
portunity to unearth all the relevant facts. This can be 
done only if there is available to all parties (and partic­
ularly to the plaintiffs, since in the typical employment 
discrimination case the defendant necessarily has virtually 
all the relevant information in its possession), the power 
to subpoena witnesses both for trial and depositions, to



11

require the production of documents, to conduct and en­
force broad discovery in the form of interrogatories and 
requests for admission and the other devices made avail­
able through the Federal Rules.9

It is also essential for the proper adjudication of the 
merits of such claims that it be made by a fully impartial 
tribunal governed by the extensive body of law developed 
over the last 10 years in Title VII cases. As recognized by 
this Court in McDonnell Douglas Corp. v. Green, supra, 
and Alexander v. Gardner-Denver Co., supra, the one tri­
bunal which meets these standards is a federal court. And, 
it is because of this that Congress has deliberately chosen 
to place the ultimate responsibility for the enforcement of 
the vital right of equal employment opportunity in the 
hands of the federal courts.

The practical affect of the Chandler-Salone-Haire ap­
proach would be to substantially impair the effectiveness 
of federal courts as enforcers of Title VII. Under the gov­
ernment’s summary judgment procedure they would serve 
essentially to rubber-stamp agency findings of no discrim­
ination arrived at by a process, as will be described in 
detail below, that does not permit the development of full 
records and that is not governed by the law of Title VII.10

9 The fault in the Chandler-Haire approach is to put the burden 
on the plaintiff to 'show why he must conduct such discovery. In 
every employment discrimination case the bulk of the relevant in­
formation is necessarily in the hands of the defendant employer. 
A  plaintiff simply cannot show what he might be able to unearth 
through discovery, until he has propounded and had answered 
appropriate interrogatories, motions to produce or inspect, and 
the like. Hence, as much or more So than in any other type of 
litigation, the normal burden under the Federal Rules to object 
to and demonstrate why discovery requests should not be com­
plied with should be on the party required to respond.

10 Of some 28 district court decisions by courts affording less 
than a de novo trial since 1973, in each and every, case the district 
court refused to overturn the administrative decision and granted



12

Under the Haclcley approach, on the other hand, the ad­
ministrative record would still serve a useful function. 
Particularly where there has been an administrative hear-

summary judgment in favor of the defendants. Salone V. United 
States, 7 EPD If 9376 (W.D. Okla. 1974); Sperling v. United 
States, 7 EPD If 9274 (D.N.J. 1974) ; Chandler v. Johnson, 7 EPD 
If 9139 (C.D. Cal. 1973); Nimitz v. Berzak, 7 EPD If 9273 (E.D. 
La. 1974); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973); 
Gautier v. Weinberger, 6 EPD f[ 9001 (D.D.C. 1973) ; Tomlin v. 
Air Force Medical Center, 369 F.Supp. 353 (S.D. Ohio 1974) ; 
Thompson v. Department of Justice, 372 F.Supp. 762 (N.D. Cal. 
1974); Bernardi v. Butz, 7 EPD If 9381 (N.D. Cal. 1974); John­
son v. U.S. Postal Service, 364 F.Supp. 37 (N.D. Fla. 1973) ; 
Coopersmith v. Johnson, 7 EPD Tf 9388 (D.D.C. 1974) ; Roney v. 
Saxbe, 8 EPD If 9587 (D.D.C. 1974); Thomas v. Department of 
State, 8 EPD If 9622 (D.D.C. 1974); Roberts v. Mumford, 8 EPD 
11 9692 (D.D.C. 1974) ; Cates v. Johnson, 377 F.Supp. 1145 (W.D. 
Pa. 1974); Wormley v. Department of the Navy, 8 FEP Cas. 1008 
(N.D. Cal. 1974); Leinster v. Engman, 8 EPD ff 9774 (D.D.C. 
1974) ; McGowan v. United States Information Agency, 8 EPD 
If 9787 (D.D.C. 1974); Allen v. Veterans Administration, 8 EPD 
If 9783 (W.D. Pa, 1974); Caro v. Schultz, 9 EPD ff 9987 (N.D. 
111. 1975) ; Smith v. Gunther, 9 EPD If 9915 (D.D.C. 1975) ; Mar­
shall v. United States Federal Highway Administrator, 7 EPD 
If 9184 (D.D.C. 1973) ; Smith v. Snyder, 381 F.Supp. 1083 (E.D. 
Pa. 1974) ; Ettinger v. Johnson, 10 FEP Cas. 642 (E.D. Pa. 1974) ; 
Fisher v. Brennan, 10 E E P Cas. 685 (E.D. Tenn. 1974); Haire 
v. Callaway, 9 FEP Cas. 168 (E.D. No. 1974); Russell v. Johnson, 
10 FEP Cas. 924 (W.D. Pa, 1975); Richerson v. Fargo, 10 FEP 
Cas. 862 (E.D. Pa. 1975).

In many of these cases the district court’s decision is utterly 
devoid of any discussion of the facts of the case or of what evi­
dence allegedly supports the administrative decision. In cases 
decided on the merits under the de novo standard the difference 
is striking; the decisions include detailed discussions of the evi­
dence and specific findings as to disputed facts. Plaintiffs have 
won 'somewhat more than half of these cases. Reynolds v. Wise, 
8 EPD fflf 9777 (N.D. Tex. 1973), 9778 (N.D. Tex. 1974) (plaintiff 
w on ); Robinson v. Warner, 8 EPD 1f 9452 (D.D.C. 1974) (court, 
though denying de novo trial's generally, gave one in this case; 
plaintiff w on ); McLaughlin v. Callaway, 9 EPD fflf 9888, 10,098 
(S.D. Ala. 1974) (court, though denying de novo trials generally, 
gave one in this case; plaintiff w on ); Levens v. General Services 
Administration, 10 FEP Cas. 493 (W.D. Mo. 1975) (government 
w on ); Harris v. Ulanich, No. 73-369-N, E.D. Va., opinion dated 
November 14, 1974 (government won).



13

mg, it can be utilized as part of discovery and introduced 
in the same way depositions are. As the Court noted in 
Hackley, 520 F.2d at 150-51, Title VII plaintiffs typically 
do not seek delay, but rather the expeditious resolution of 
their claims. Thus, they would ordinarily be amenable to 
the proper utilization of the factual material already 
gathered administratively, 520 F.2d at 156-157, just as is 
the case in private employment litigation under Alexander 
(see, 415 U.S. at 60).

The Court should also be aware of the importance of the 
de novo issue to other questions that have arisen in Title 
YII litigation against the federal government, and upon 
whose resolution rests the effectiveness of the statute. 
First, is whether a federal employer can maintain a class 
action, under the provisions of Rule 23, in the same way 
as can private and state and local government employees.
See, Albemarle Paper Co. v. Moody, ------< U.S. ------, 45
L. Ed. 2d 280 (1975). The government has advanced a 
variety of reasons why such an action cannot be main­
tained and the question is still to be resolved by the appel­
late courts.11 Second, is whether, in those cases brought

11 The government has variously argued that since a trial de novo 
could not be had neither could a class action be maintained, be­
cause such a proceeding would necessarily involve the introduc­
tion of additional evidence (see, Pointer v. Sampson, 62 F.R.D. 
689 (D.D.C. 1974)); that, despite this Court’s holding in Albe­
marle Paper Company v. Moody, 45 L.Ed.2d at 294, n. 8, a class 
action cannot be maintained unless every member of the class has 
exhausted administrative remedies (Briefs for Defendants-Appel­
lees in Swain v, Hoffman, 5th Cir. No. 75-2002, pp. 51-59; and 
McLaughlin v. Hoffman, 5th Cir. No. 75-2261, pp. 20-25) ; and 
that an individual plaintiff must have filed an administrative 
“ third-party complaint” under 5 C.F.R. 713.251 as a prerequisite 
to maintaining a class action in federal court (see, McLaughlin 
v. Callaway, 382 F. Supp. 885 (S.D. Ala. 1974)). In McLaughlin, 
the government has now, however, acknowledged that the Civil 
Service regulations “ do not permit filing of a class action admin­
istrative complaint.” Brief for Defendants, p. 13.



14

under that provision of 42 U.S.C. § 2000e~16 that allows 
the filing of a court action 180 days after the filing of an 
administrative charge of discrimination in the absence of 
a final agency decision, the district court should proceed to 
trial, or the matter stayed or remanded to the agency for 
completion of the administrative process. See, Grubbs v. 
Buts, 514 F.2d 1323 (D.C. Cir. 1975). Third, is whether 
attorneys’ fees can be awarded to a successful plaintiff. 
Although the government has abandoned its complete op­
position to such awards in the face of the clear language 
of the statute that allowed an award against the govern­
ment (See, Letter from Irving Jaffe, Acting Asst. Attor­
ney General to Senator Tunney dated May 6, 1975, re­
printed in C.C.H., Employment Practices Guide, fl 5327.), 
it may still take the position that attorneys’ fees cannot be 
awarded for work done by counsel in the administrative 
process prior to the filing of an action under Title VII, 
even though the plaintiff is successful in the court action.12 
Fourth, is an issue arising because the regulations govern­
ing the administrative process severely restrict the kinds 
of cases in which either back pay or a retroactive promo­
tion or hiring may be ordered. They impose a heavy bur­
den on the complainant to affirmatively establish that he 
would have been given the job in question “but for” the 
presence of discrimination. In court, the government has

12 Since the Civil Service Commission has held that there is no 
basis in its regulations for either the award of counsel fees or for 
making an attorney available to a complaining federal employee 
(in contrast, during the administrative process, the agency is usu­
ally represented by an attorney from its staff), if the government’s 
position on the de novo question is adopted most federal employ­
ees would be limited to the record made in a proceeding where he 
was unrepresented by counsel. Piling an action in federal court, 
where under the statute counsel may be appointed or his counsel 
fee's reimbursed, will avail him little because he will not be al­
lowed to introduce any new evidence that his attorney might be 
able to develop through discovery or otherwise.



15

argued that this rule should govern also, a contention that 
so far has 'been rejected by the lower courts because it is 
contrary to Title VII law.13 The “but for” rule argued for 
by the government, coupled with limiting the court to con­
sidering only the evidence developed in the administrative 
process would mean that virtually no federal employees 
would get any effective relief that would render them whole 
for injury suffered from discrimination. Fifth, the gov­
ernment has linked the de novo issue here with the ques­
tion presented in Brown v. General Services Administra­
tion, No. 74-768, i.e., whether Title VII is the exclusive 
remedy available to federal employees to correct discrim­
ination and therefore repealed, inter alia, 42 IT.S.C. § 1981 
and the Mandamus Act. (Brief for Respondents in No. 
74-768, p. 32).14

13 See, discussion and citations at note 17, infra.

14 There is also a subsidiary is'sue to the general trial de novo 
question mentioned but not resolved by the Court of Appeals in 
Hackley v. Boudebush, 520 F.2d 108, 158, n. 201 (D.C. Cir. 1975). 
In that footnote, the court suggests that if a plaintiff did not elect 
to have an administrative hearing or failed to put on certain evi­
dence, he might be barred from so doing in federal court. (This 
issue is raised in two eases now pending before the Fifth Circuit, 
Laurel v. United States, 5th Cir. No. 74-3746, and Swain v. Hoff­
man, 5th Cir. No. 75-2002.) The Court of Appeals carefully noted 
that it was not deciding the issue, and, of course, it is not pre­
sented by any of the cases presently before this Court. We do 
wish to suggest, nevertheless, that it cannot be held that a federal 
employee waives his right to a full, plenary hearing in federal 
court if he elects to have his administrative complaint decided 
without a hearing. An employee, following the investigation, is 
informed unequivocally that he has a choice of having his com­
plaint decided on the basis of the investigation file or after a 
hearing. In either case, he is told, he has the right to file an 
action in federal court after the agency decision if he is dissatis­
fied. There is no hint or suggestion that his rights in court will 
be diminished if he chooses one option rather than the other; to 
the contrary, the clear implication is that they will be the same. 
See, the suggested letter sent to complainants reproduced in App. 
B, p. 79a. This Court held in Alexander that “ there can be no



16

II.
Under the Standards Alexander v. Gardner-Denver, 

the CSC Complaint Process Cannot Substitute lor a 
Trial in Federal Court.

A. Introduction.
We come now to the basis of the ruling of the court below, 

and the government’s main contention, viz., that since the 
administrative remedy available to federal employees is 
different than those discussed in Alexander and McDonnell 
Douglas Corp. v. Green, the holdings of those cases do not 
apply. Before discussing why this contention is wrong we 
wish to emphasize that it is also irrelevant. As we have 
urged above, both the face of the statute and its legislative 
history demonstrate that Congress intended that federal 
employees have the same right to a plenary trial in federal 
court that all other employees have. Similarly, even if the
Eighth Circuit in IIaire v. Callaway, ------  F.2d ------ , 11
F.E.P. Cases 769 (8th Cir. 1975), were correct (which it is 
not) in concluding that the administrative remedy plus 
an independent determination by a federal court based on 
the administrative record is an “ equivalent” remedy to a 
plenary trial in federal court, the decision still misses the 
point of Alexander and Green. Those eases are founded on 
the principle that Congress has deliberately provided con­
current, overlapping, and independent remedies for the 
elimination of discrimination in employment, see Alexander 
v. Gardner-Denver Co., 415 U.S. at 47-48. Thus, even if one 
remedy, administrative or otherwise, were in fact equiva­
lent to any other, this would not mean that the first was

prospective waiver of an employee’s rights under Title V II” (415 
U.S. at 51) ; certainly there is no knowing or meaningful waiver 
of a known right or privilege under the administrative scheme 
here.



17

either exclusive of or a limitation on the availability of 
an alternative.

Nevertheless, since the argument that the Civil Service 
Commission EEO procedures are an adequate remedy and 
therefore rights in federal court must be limited has been 
made, we believe it should be met. In the Brief proper, we 
will discuss the CSC procedures in terms of the analysis in 
Alexander v. Gardner-Denver, and will demonstrate that 
they suffer from the same deficiencies as do the arbitration 
procedures involved in that case. We have also prepared 
a detailed description and critique of the process that goes 
through it step-by-step, and this discussion is contained in 
Appendix A to this Brief. Both the Brief and the Appen­
dix are based on a variety of sources in addition to the EEO 
regulations in 5 C.F.R. Part 713 themselves, since the 
regulations alone do not give either a full or an accurate 
picture of the EEO complaint process. The first part of 
Appendix A is an explanation of the sources and method­
ology used to arrive at the conclusions made here, and we 
refer the Court to pp. la-5a, infra. Throughout the Brief 
we will, with a few exceptions, refer to the Appendix, 
which cites to the original sources, rather than repeat those 
citations here.

B. Summary and History of Pari 713.

Basically the process is divided into four parts, three of 
which involve the agency and the last the Appeals Review 
Board of the Civil Service Commission (CSC/ARB), vis.:
(1) pre-complaint counseling; (2) the investigation; (3) the 
hearing and final agency decision; and (4) an optional 
appeal to CSC/ARB.

1. The regulations, and CSC/ARB decisions, require as 
an absolute precondition to filing a complaint of discrimina­



18

tion, that an employee first go through informal counseling 
(see, App. A, pp. 14a-15a). He must see a counselor within 
30 days after the occurrence of the event he considers dis­
criminatory. The counselor attempts to bring about a 
resolution of the problem without the necessity of a formal 
complaint. After 21 days, if no resolution has been reached, 
the employee is informed that he may file a formal com­
plaint within 15 days.

2. Upon timely filing of the complaint, and if there are 
no other procedural bars to it in the opinion of the local 
EEO officer, an investigator is requested from the agency. 
The investigator prepares a report, a copy of which, along 
with a proposed resolution by the local agency head of the 
complaint, is given to the employee. The employee is in­
formed that he may accept the proposed resolution, have 
the complaint decided by the national agency head on the 
basis of the investigative report, or have a hearing by a 
complaints examiner supplied by the Civil Service Com­
mission. If he chooses the first option, the proposed resolu­
tion is put into formal written form and no further action 
is open to the employee. If he chooses the second or makes 
no choice at all, the agency issues its final decision and the 
employee may either appeal to CSC/ARB or file an action 
under Title VII.

3. If the third option is taken, a complaints examiner is 
provided by the regional office of the Commission. Follow­
ing a hearing, the examiner makes a recommended decision 
to the agency head, which is not given to the complainant 
until after the final agency decision is rendered. The ex­
aminer’s recommendation is not binding on the agency.

4. After the final agency decision, the employee may 
either appeal to CSC/ARB in 15 days or file a Title VII 
action in 30.



19

As the Court noted in Morton v. Mancari, 417 U.S. 535, 
546-47 (1974), Congress passed § 2000e-16 and made Title 
YII applicable to federal employees largely because of dis­
satisfaction with the existing complaint resolution process 
set up by the Civil Service Commission. Among the criti­
cisms were the complexity of the system, the delays in 
processing complaints, the control of the process and final 
decision-making by the agency-employer, and the focus of 
the system on identifying individual discriminators rather 
than on correcting systemic discrimination.

The system thus criticized had been instituted in 1969 by 
extensive revisions in the existing, largely informal, pro­
cedures for handling discrimination complaints. These 
changes, in Congress’ view, were not adequate, and it ex­
pected that the system would be reformed as a result of the 
power provided the Commission in the 1972 Act. However, 
a comparison of the present CSC regulations dealing with 
investigation and hearing procedures, which became effec­
tive in late 1972, with those in effect during Congressional 
consideration of § 2000e-16, showTs that no fundamental 
reform of the complaint process has been undertaken. Thus, 
those provisions of the regulations that are most important 
for the trial de novo issue, are unaltered except for some 
minor and non-substantive word changes. We call the 
Court’s attention to pp. 57a-61a of Appendix B for a 
graphic demonstration that the procedure relied upon by 
the courts below in Chandler, Salone, and Haire is the same 
in all essential respects to that criticized by Congress in 
1971 as “ineffective.” Morton v. Mancari, 417 U.S. at 547.15

15 None of the major changes in the regulations are directly rele­
vant to the trial de novo issue. They include the addition of sec­
tions dealing with reprisals (§§ 713.261-713.263), “ third-party” 
complaints (§ 713.251), notification of complainants of their right 
to sue under Title VII (§713.281), and the remedies and correc­
tive action that are available (§ 713.271). Appendix B reproduces



20

C. The Administrative Process Is Not Equivalent 
To a Civil Action in Federal Court.

In Alexander, this Court discussed three general ways in 
which arbitration differed from a proceeding in federal 
court. They were, first, the role of the arbitrator and the 
non-Title YII orientation of the arbitration process; second, 
differences in the fact-finding process; and third, the exclu­
sive control over the arbitration process by one of the in­
terested parties. We urge that an examination of the EEO 
complaint process shows similar deficiencies rendering it 
also an “ inappropriate forum for the final resolution of 
rights created by Title VII.” 415 U.S. at 56.

1. The Failure to Follow Title VII Law.

In Alexander, the Court noted that discrimination claims 
required the resolution of statutory or constitutional issues 
and that this was “ especially necessary with respect to Title 
VII, whose broad language frequently can be given mean­
ing only by reference to public law concepts.”  415 U.S. at 57. 
Particularly striking in the decisions of the Appeals Re­
view Board and agencies, in investigative reports, recom­
mended decisions of complaints examiners, and the various 
manuals and directives issued to guide those involved in 
the decision-making process, is the absence of references 
to the substantive law of Title VII, particularly as inter­
preted by the courts.16

in its entirety PPM Letter No. 713-17, which shows all of the 
changes in the regulations instituted in 1972. This is the docu­
ment referred to in Eackley v. Boudebush, 520 F.2d 108, 137, n. 
117 (D.C. Cir. 1975).

16 See, the guidebooks issued to counselors, investigators, and 
complaints examiners referred to in Appendix A, p. 2a. The 
Complaints Examiner’s Handbook makes no reference whatsoever 
to any of the numerous court decisions dealing with burden of 
proof, prima facie case, etc. The Bureau of Intergovernmental



21

Indeed, with regard to at least one particularly crucial 
aspect of Title YII enforcement the regulations on their 
face are in direct conflict to established Title YII law. Thus, 
5 C.F.R. § 713.271 requires that in order for a complainant 
to receive a retroactive promotion or back pay, the burden 
is on him not only to show that he was the victim of racial 
discrimination, but also that it is “clear” that “but for” the 
discrimination he would have been promoted, been ap­
pointed to the particular job in question, etc. This rule is 
directly contrary to Title VII law, since the courts have 
consistently held that once a plaintiff or affected class mem­
ber has shown discrimination and that he has been denied 
a job, the burden shifts to the employer to demonstrate by 
clear and convincing evidence that in spite of the discrim­
ination the employee would not have gotten the position and 
that therefore he is not entitled to a retroactive promotion 
or to back pay.17 The rule similarly ignores this Court’s

Personnel Program's of the CSC does distribute to state and local 
government agencies a digest of EEO eases prepared in 1974 by 
the General Counsel’s office (BIPP publication 152-46), and the 
General Counsel’s office, since September 1972, has published 
periodically an abstract of court decisions “for the benefit of the 
members of the Interagency Advisory Group and other employees 
concerned with personnel programs and policies.”  General Coun­
sel’s Notes, Vol. 1, No. 1 (Sept. 1972), p. 1. There is no indica­
tion in any of the EEO decisions rendered, however, that any of 
the cases so digested are ever considered. Indeed, it is interesting 
to note that the first case cited in the former publication {Hodgson 
v. First Federal Savings and Loan, 455 F.2d 818 (5th Cir. 1972)), 
and a case cited in Vol. 1, No. 3 of the latter ( Cooper v. Allen, 
467 F.2d 836 (5th Cir. 1972)), are directly contrary to the CSC 
regulations governing what must be shown in order to obtain back 
pay. See, infra.

17 See, e.g., Johnson v. Goodyear Tire & Rubier Co., 491 F.2d 
1364, 1379-80 (5th Cir. 1974); Meadows v. Ford Motor Co., 510 
F.2d 939, 941-48 (6th Cir. 1975) and the cases cited in n. 16, 
supra. In federal government cases the “but for” rule has been 
explicitly rejected as inconsistent with the law of Title VII. Bay 
v. Weinberger, 8 E.P.D. 9771 (D.D.C. 1974); Palmer v. Rogers, 
10 E.P.D. f[ 10,265 (D.D.C. 1975).



22

holding in McDonnell Douglas Corp. v. Green, supra, that 
once the plaintiff had established certain basic elements 
showing discrimination, the burden then shifted to the em­
ployer to demonstrate that nevertheless there were valid 
reasons for not hiring the plaintiff. If the plaintiff in Mc­
Donnell Douglas had been a federal employee in the ad­
ministrative process, he would not have made his case for 
getting a job and back pay if he had only proven the 
elements set out in that opinion, since he would not have 
affirmatively established that he would in fact have gotten 
the job in the absence of discrimination.

The failure to conform to Title VII law with regard to 
burden of proof is not accidental, particularly with regard 
to the making of a prima facie case by statistical evidence. 
In a decision rendered in April 1973, CSC/ARB in fact 
applied proper standards of Title VII law in what was to 
become a pivotal case in Civil Service Commission EEC 
enforcement.18 The Appeals Board noted the showing of 
a failure generally to promote any Jewish employees above 
a certain G-S level despite their evident qualifications and 
of the failure to promote the complainants individually. 
It held that the complainants had established a prima facie 
case of discrimination which the agency had failed to rebut 
by showing a “nonreligious merit basis” for the failure to 
promote. Therefore it ordered that appropriate corrective 
action be taken. The Civil Service Commission reopened 
the case under § 713.235 and vacated the decision of CSC/ 
ARB, deciding, in effect, that the complainants had not 
met their burden of proof of establishing not only that 
there was discrimination, but that they would have gotten 
some particular job if there had been none. The Commis­
sion did not find that the agency had shown the negative.

18 CSC/ARB Decision No. 713-73-465.



23

(Minutes of U.S. Civil Service Commission, Nov. 14, 1973, 
p. 324) The result of this decision, which under the reg­
ulations has binding precedential affect on both agencies 
and CSC/ARB, is that ARB since has rarely attempted to 
rely on statistical evidence to establish a prima facie case.19

Another deviation from Title VII law is embodied in the 
handbook used by Complaints Examiners in deciding 
whether the evidence supports a finding of discrimination. 
As pointed out in Hackley v. Roudebush, 520 F.2d 108; 138, 
n. 129; 171, n. 3 (Leventhal, J., concurring), the examiner 
is essentially instructed to find discrimination only in those 
cases where there is no reasonable doubt to the contrary. 
Thus, the burden on the complainant is significantly more 
onerous than in a Title VII proceeding under the rule of 
McDonnell Douglas Corp. v. Green, supra.

Other examples of failures to follow Title VII law are 
legion, and include the refusal to recognize the concept of 
a continuing violation,20 the refusal to consider systemic 
or class violations in any meaningful way, and the severe 
limitations on the kinds of relief available in the adminis­
trative process. Despite the repeated description of Title 
VII as a remedial statute which to be effective must be

19 The order of the commission reopening and reversing the ARB 
was dated November 14, 1973. Our study of CSC/ARB decisions 
(see, App. A, pp. 3a-4aj reveals that prior to December 31, 1973, 
ARB considered allegations that there was discrimination against 
the complainant’s class generally in 85% of the cases where such 
an allegation was made (40 out of 47). In 10 of those cases, dis­
crimination was found against the group. After December 31, 
1973, on the other hand, such evidence, was considered in only 8 
of the 20 eases (30%) in which an allegation of general discrimi­
nation Was made. In 6 other cases (as compared to 1 pre-December 
31 case) general allegations of discrimination were considered as 
only “background information,” but not as probative evidence that 
the individual complainant had been discriminated against.

20 See, App. A, pp. 12a.



24

broadly construed,21 the Civil Service Commission persists 
in so limiting the kinds of relief obtainable as to render the 
statute ineffective. We have already noted the “but for” 
rule, the results of which are that hardly any federal em­
ployees have gotten either back pay or retroactive promo­
tions.22 The standard relief given, if any, is “ training” 
which may lead to a promotion, or at best, priority con­
sideration for the next promotion. CSC/ARB has flatly 
held that it is powerless, because of the “but for” rule, to 
grant the kind of systemic class-wide relief that is standard 
in private Title VII actions.23

Thus, just as this Court pointed out in Alexander that 
the specialized competence of arbitrators lay in the mean­
ing of collective bargaining agreements (415 U.S. at 56-57), 
so the expertise of those officials involved in the processing 
of EEC complaints relates primarily to the intricacies of 
federal personnel policy, rather than the substantive law of 
Title VII.24 The complaints examiner, for example, has as 
a primary function the adjudication of such matters as ad­
verse actions against federal employees, reductions in force, 
etc., rather than racial discrimination. The typical decision 
at both the agency level and CSC/ARB, limits its inquiry 
to attempting to find direct evidence of overt discrimination 
by a particular supervisor.26 In contrast, where such direct

21 See, e.g., Albemarle Paper Company v. Moody, ------- U.S ------ -
45 L.Ed.2d 280 (1975).

22 See, App. A, p. 34a.
23 See, App. A, p. 35a.
24 A  reading of the decisions demonstrates that the orientation 

of the persons making them is that of personnel officers, rather 
than persons experienced in adjudicating racial discrimination 
complaints. See, e.g., App. A, 22a, n. 24; 38a, n. 56.

25 This limitation of the inquiry to an attempt to find specific 
overt acts of racial discrimination is in and of itself contrary to



25

evidence is not adduced but rather evidence typical of Title 
VII cases is, namely, evidence relating to the lack of ad­
vancement of blacks, women, or other minority groups in 
general, the decisions then proceed to explanations of why 
in the particular ease the non-selection of the complainant 
was justified under personnel practices.

2. Deficiencies in the Fact-Finding Process.

Hackley v. Roudehush, supra, noted that the administra­
tive process, available to federal employees “ falls short of 
a Title VII action in certain of the crucial respects stressed 
in Alexander v. Gardner-Denver”  relating to fact-finding 
(520 F.2d at 171 (Leventhal, J concurring)). At no point 
in the process does a complainant have available to him 
anything equivalent to discovery. He can request the in­
vestigator to make certain inquiries, but the investigator 
is under no compulsion to do so.26 At the hearing stage, 
if the complainant seeks to have information furnished him 
prior to the hearing so that adequate preparation can be 
made, whether the request be in the form of interroga­
tories, the production of documents, or the interviewing of 
witnesses, he is told that the complaints examiner has no 
power to require the agency to furnish such information 
and whether or not it will is wholly within the agency’s 
discretion.27 The effect of these limitations is to put the 
complainant at a severe disadvantage since, as the courts 
have often recognized, in an employment discrimination 
case the evidence uniquely tends to be in the hands of the

prevailing Title VII law. See, e.g., Brown v. Gaston County Dye­
ing Machine Co., 457 F.2d 1377, 1382 (4th Cir. 1972), and was 
cited by Congress in 1971 as a major deficiency in the CSC process. 
See, H. Rep. No. 92-238, on H. R. 1746, 92d Cong. 1st Sess., at 24 
(1971).

26 See, App. A, pp. 25a-28a.
27 Id., at 36a; App. C, p. 90a.



26

defendant, and the plaintiff must have access to it before 
trial. See, e.g., Rich v. Martin Marietta Corp., 522 F.2d 333, 
342-43 (10th Cir. 1975). Indeed, the complaints examiner 
has no subpoena power at all. He can request that em­
ployees of federal agencies be produced at the hearing, but 
if, as for example was the case in Hachley (520 F.2d at 
114, n. 15), an important witness is no longer employed 
and does not appear voluntarily, there is simply no way 
to obtain his testimony.

The process itself is specifically stated to be non-adver- 
sarial; it does not purport to be like a hearing in court, 
but is defined as an adjunct to the investigation.28 The con­
sequences for the complainant are severe. Although there 
is said to be no burden of proof, if the complainant does 
not, for example, prove and make the record “clear” that 
he would have gotten a job “but for” discrimination, he 
will find out from the agency head or CSC/ARB, after it 
is too late to do anything about it, that he has not estab­
lished his right to get any effective relief.29

There is no provision whatsoever in the regulations for 
furnishing a complainant with an attorney. The complain­
ant is entitled to have a representative, but if he cannot 
afford to hire his own lawyer, the only thing he can do is 
to attempt to get an attorney who works for the same 
agency to represent him. An attorney employed by the gov­
ernment but working for another agency is unlikely to do 
so because under the regulations he is not entitled to ad­
ministrative leave, but must use up annual leave or take 
an unpaid leave of absence.30 On the other hand, the agency

28 HacJcley v. Roudebush, 520 F.2d 138, n. 129, 171. App. A, 
pp. 29a~30a.

29 See, App. A, p. 30a, n. 40.
80 See, App. A, pp. 28a-29a.



27

is generally represented by an attorney at the hearing, 
particularly in the case of military departments which are 
able to rely on staff judge advocates to appear for them.31 
Thus, in many instances, a complainant must either attempt 
to present his own case or rely on a lay advocate to assist 
him. Given the complexities of proving a discrimination 
claim and the difficulties in. marshalling proof, it is not 
surprising that the records developed in such proceedings 
are often inadequate to establish even a prima facie case 
of discrimination.

Finally, the limitations on consideration of statistical 
data and evidence of general practices with regard to mi­
norities make the fact-finding process wholly inadequate. 
Complaints examiners refuse to allow the admission of such 
evidence on the ground that it cannot be relevant to indivi­
dual claims of discrimination, and class claims cannot be 
raised in an individual complaint proceeding. These re­
strictive rulings are consistently affirmed by CSC/ARB32 
in disregard of this Court’s holding in McDonnell Douglas 
Corp. v. Green, 411 U.S. at 804-805, and numerous deci­
sions by lower federal courts (see, e.g., Burns v. Thiohol 
Co., 483 F.2d 300 (5th Cir. 1973), and cases there cited, 
and Rich v. Martin Marrietta Corp., 522 F.2d 333 (10th 
Cir. 1975)).

3. The Exclusive Control By the Agency of the Process.

In Alexander, the Court noted that one problem with 
deferring to an arbitration proceeding was that the process 
was under the control of the union, which often might be 
an interested party (415 U.S. at 58, n. 19). The situation 
is the same with regard to the adjudication of EEO com-

31 See, e.g., the case discussed in App. A, p. 29a, n, 39.
32 See, App., pp. 30a-31a.



2 8

plaints. At every stage in the agency proceeding the entire 
process is under the control of the agency, the ultimate de­
fendant in a Title VII case. The EEO counselor is an em­
ployee of the local office of the agency; the EEO officer is 
also and indeed is often connected with the division whose 
head also supervises the personnel office. The investigator 
is an employee of the agency, whose role is only to recom­
mend a resolution that is acceptable to the local agency 
head. He is dependent on the local agency personnel for 
obtaining information, since he has no subpoena power.

At the next step, a complaints examiner is provided by 
the Civil Service Commission. However, he does not func­
tion independently from the agency in the way that an 
administrative law judge does. He has no power to require 
the agency to provide information prior to the hearing, and 
even at the hearing itself he does not have available com­
pulsory process. He does not himself make the decision, 
but only forwards a recommended decision to the head of 
the agency, the person who will ultimately be the named de­
fendant in any action brought under Title VII. A  com­
plainant has no right to see the recommended decision or 
the transcript of the hearing before the final decision is 
made.

The agency head need not adopt the recommended deci­
sion of the complaints examiner, and not surprisingly a 
decision finding no discrimination is almost always adopted, 
whereas decisions recommending a finding of discrimina­
tion are not followed in about 25% of the cases.33 Although 
the regulations purport to require the agency head to give 
his reasons why he does not adopt the recommended deci­
sion of the complaints examiner, this provision is not ef­
fectively enforced.34

33 See, the statistics cited in App. A, p. 32a, n. 44.
34 See, App., pp. 31a-32a, n. 43.



29

At this point, the complainant can go into federal court; 
thus, the fact that an appeal to CSC/ARB can he taken is 
irrelevant as far as the trial de novo issue is concerned 
(see, Hachley v. Roudebush, 520 F,2d at 154-155). In any 
event, ARB does nothing but review the record made at the 
agency level and affirms findings of no discrimination in 
more than 96% of the cases.36

4. Other Variations from Court Proceedings.

In addition to the deficiencies similar to those in the 
arbitration process discussed in Alexander, the EEO com­
plaint process is different from a court proceeding in other 
important respects. As discussed at some length in Ap­
pendix A (pp. 6a-9a; 12a-13a; 18a-22a), a complainant is 
faced with a variety of technical and rigorously enforced 
procedural hurdles before he can get a decison on the 
merits. Thus, he must pick one of a variety of alternative 
procedures without full information as to the consequences 
of selecting one as opposed to another; he may, thereby, 
inadvertently waive important rights. (App. A, 23a-24a). 
He must meet two limitations periods before a complaint 
can be filed {Id., 18a). If the complaint fails to meet the 
various deadlines imposed on him, the proceeding is either 
terminated or restricted in scope. On the other hand, if 
the agency fails to act within specified time periods there 
are, with one exception,36 no similar consequences. In short,

86 See, Brief for Respondents in Brown v. G.S.A., No. 74-768, 
App. C, p. 53a. See, App. A, p. 33a, nn. 46 and 48. According 
to statistics compiled by the CSC, in FY  1973 and 1974 combined, 
agencies rendered 2250 decisions on the merits in EEO cases. 
There were final agency decisions finding discrimination in 308 
or, 13.7%.

86 Section 713.220 provides that if the complaints examiner 
recommends a finding for the complainant and if the agency 
does not issue its decision within 30 days after submission of the 
recommended decision, and if a final agency decision has not been



30

there are no such devices as a default judgment or other 
enforceable sanctions against a dilatory defendant as exist 
in the Federal Rules. Finally, not only are the rules under 
which EEO complaints decided not in conformity with Title 
VII law, but they are secret. Decisions of CSC/ARB are 
virtually unobtainable; the fact that the Commission has 
reopened cases under § 713.235 is unknown (counsel for 
amicus learned of them literally by accident), and the docu­
ments explaining them are difficult to obtain.

In sum, a complainant is cast adrift in a system of un­
necessary complexity, that operates according to rules that 
can not be readily determined, in which the power over 
what evidence is to be considered is in the hands of the 
defendant, and in which that same defendant is the judge. 
However this process might be characterized, it is clearly 
not equivalent to an action in federal court.

CONCLUSION

The proper resolution of the issue in this case depends 
upon a recognition of the relationship between the substan­
tive rights guaranteed by Title VII, and the procedures 
available in federal courts to enforce them. The rules estab­
lished by decisions of this Court, relating to such proce­
dural questions as burden of proof,37 trial de novo,M class

rendered within 180 days after the date the complaint was filed, 
then the recommended decision becomes the final agency decision 
and cannot be rejected. The instances of this occurring are 
relatively rare, particularly since complaints examiners recom­
mend for the complainant in only a small percentage of the cases.

87 McDonnell Douglas Corp. v. Green, supra.
88 Alexander v. Gardner-Denver Co., supra.



31

actions and equitable discretion,39 the right to counsel 
fees,40 and the existence of alternative remedies,41 as well 
as the extensive body of law developed by the lower fed­
eral courts on these and other issues such as the right to 
broad discovery42 and the scope of class actions43 are all 
founded upon this relationship. Title VII is a remedial 
statute, intended by Congress to correct one of the great 
ills of our society. Its broad pronouncements as to rights 
cannot be made realities unless the procedures available to 
the courts are correspondingly broad and effective. This 
Court has already held, in Morton v. Mancari, 417 U.S. 535, 
546-47 (1974), that the purpose of the 1972 amendments 
embodied in 42 U.S.C. § 2000e-16 was to make the substan­
tive law of Title VII applicable to the federal government. 
This purpose can be realized if, and only if, the procedural 
law of private Title VII law is also fully applicable.

For the foregoing reasons, the decision of the court below 
should be reversed.

Respectfully submitted,

J ack  G reenberg 
J am es M. N abrit , III 
C harles S te p h e n  R alston  
B il l  L a n n  L ee 
M elvyn  L eve n th a l  
E ric S ch n apper  

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Amicus Curiae

39 Albemarle Paper Co. v. Moody, supra.
40Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968).
41 Johnson v. Railway Express Agency, 421 U.S. 454 (1975).
42 See, e.g., Burns v. Thiokol Corp., 483 F.2d 300 (5th Cir. 1973).
43 See, e.g., Johnson v. Georgia Highway Express, Inc., 417 

F.2d 1122 (5th Cir. 1969).



Explanation and Critique of the EEO Complaint Process

APPENDIX A



A P P E N D IX  A

Explanation and Critique of the EEO Complaint Process

A. Introductory Note: Sources and Methodology

The discussion in the Brief and the following analysis 
of the administrative complaint system begins with the 
regulations themselves, including not only Part 713, but 
other Parts of Title 5 of the Code of Federal Regulations, 
and with those sections and publications in the Federal 
Personnel Manual (FPM) interpreting them. As the Court 
will note, however, the regulations and the FPM, deal with 
procedures, and virtually the only substantive rule is in 5 
C.F.R. If 213.271 relating to when an award of back pay or 
a retroactive promotion may be given. The interpretations 
of the regulations are found in a variety of manuals and 
other explanatory material sent out by the Civil Service 
Commission.1 These include, Equal Employment Opportu­
nity Counseling, a Guide Booh (Personnel Methods, Series 
No. 19, 1973); Investigating Complaints• of Discrimination 
in Federal Employment (Personnel Methods, Series No. 17,

1 In a letter dated October 24, 1974, the Acting Chief of the 
Discrimination Complaints and Enforcement Section, United 
States Civil Service Commission, informed amicus that the fol­
lowing materials are those relied upon by the Section “ in provid­
ing assistance to complainants and agencies in the processing of 
EEO complaints.” (1) FPM Letter No. 713-17 (reproduced as 
Appendix B) ; (2) FPM Letter No. 713-21; (3) FPM Letter No. 
713-28; (4) FPM Letter No. 713-20; (5) Letter of Chairman Rob­
ert Hampton to Arthur Sampson, head of the General Services 
Administration, dated June 18, 1973; (6) FPM Bulletin No. 713- 
34; (7) FPM Bulletin No. 713-35; (8) Personnel Methods Series 
No. 18 (dealing with Adverse Action Appeals); (9) Appendix 
B-6, FPM Chapter 713; (10) Personnel Methods Series No. 17 
(on file with the Clerk of Court). Letter from Walter J. Dent 
to Phyllis McClure (reproduced in Appendix C, infra, p. 81a).

la



2a

1971); Discrimination Complaints Examiner’s Handbook 
(1973); and a letter memorandum dated January 27, 1975, 
from Irving Kator, Assistant Executive Director of the 
CSC, to agency Directors of Equal Employment Opportu­
nity and Directors of Personnel explaining the relationship 
between individual EEO complaints and so-called “Third- 
Party” allegations (or complaints) of discrimination.

As this Appendix was being written, amicus learned that 
the CSC had recently issued a revised Counselor’s Guide­
book (October, 1975) and a revised Investigator’s Guide­
book (March, 1975). We have reviewed both, and believe 
that no substantive changes have been made in either. The 
new investigator’s guidebook in particular mainly rear­
ranges existing sections. The discussions in each as to the 
scope of the investigation—the key provisions—are essen­
tially the same. Compare, pp. 8-12 and 15-17 of the old 
guidebook with pp. 21-26 and 29-32 of the new. The draft 
of the new investigator’s guidebook was analyzed by the 
Civil Bights Commission in its recent report, and found to 
be largely unchanged. See, The Federal Civil Rights En­
forcement Effort— 1974, Vol. V. To Eliminate Employment 
Discrimination (July, 1975), at pp. 71-75. We have also 
obtained a copy of a draft of a new Complaints Examiner’s 
Handbook that is being prepared. It too does not seem to 
contain any substantive changes; in particular, the hearing 
is still described as non-adversarial and there is no right 
to pre-hearing discovery. We have lodged with the Clerk 
of the Court copies of the four guidebooks and the two 
versions of the Complaints Examiner’s Handbook for the 
convenience of the Court. They will be cited as follows: 
“Counselor’s Guidebook;” “Revised Counselor’s Guide­
book;” “Investigator’s Guidebook;” “Revised Investiga­
tors Guidebook;” “Handbook;” and “Revised Handbook.”

A p p en d ix  A



3a

In individual cases that are appealed to the Civil Service 
Commission decisions are rendered by the Appeals Review 
Board (formerly the Board of Appeals and Review), re­
ferred to here as CSC/ARB, that are based on the regula­
tions and various interpretations of them. However, under 
the regulations CSC/ARB decisions have no precedential 
value, they do not interpret or apply Title VII law as 
developed by the courts, and are essentially ad hoc deci­
sions. 5 C.F.R. § 713.235 permits the complainant, the 
agency (or the Commission) to request that the Commis­
sioners themselves re-open and reconsider any ARI^ deci­
sion. Under § 713.235, Commission decisions have prece­
dential value and govern subsequent interpretations of the 
regulations by ARB and the agencies.

In December, 1974, amicus obtained from a regional CSC 
office a set of all the decisions of the Appeals Review Board 
from September 6, 1972 to July 1, 1974, more than 1,000 
decisions. After Fiscal Year 1974, all CSC/ARB decisions 
were no longer made available to regional offices. How­
ever, since 1973, CSC/ARB has published on a monthly 
basis a “Digest of Significant Decisions,” including EEO 
decisions under Part 713, to which amicus subscribes. In 
addition, since July 1, 1974, we have obtained a number 
of CSC/ARB decisions dealing with such important ques­
tions as burden of proof, class actions, continuing viola­
tion, etc.

Early this year, amicus learned that the Civil Service 
Commission had, on eight occasions involving a total of 
thirteen complainants, considered requests that CSC/ARB 
decisions be reopened under § 713.235. Six cases, involving 
nine individuals, were reopened. Three dealt with proce­
dural questions and three with the merits. Amicus obtained 
copies of the minutes of these actions, which consist of a

A p p en d ix  A



4a

very brief summary of what had been done. Upon making a 
request under the Freedom of Information Act, we learned 
that the Commission did not issue or publish opinions as 
such; however, we were supplied with material, in the form 
of letters to either the agency or the complainant, that did 
give reasons for the action.

The decisions of CSC/ABB were analyzed as follows. 
Staff counsel for amicus surveyed the decisions and pre­
pared analytical index sheets. A group of senior law stu­
dents from Columbia University reviewed all the decisions 
and indexed them. A  number of topic areas were then des­
ignated, and the students read all decisions relating to 
each, and prepared papers analyzing the decisions. Counsel 
reviewed the papers, cross-checked the CSC/ABB decisions 
for accuracy, and analyzed further in light of the Digest 
of Significant Decisions and the Commission reopenings. 
In this way, we were able to ascertain the various rules 
under which the decisions were rendered.

In addition to the above materials, we have also had 
access to investigative reports and EEO hearing tran­
scripts in particular cases. Finally, counsel for amicus 
have themselves represented complainants in EEO inves­
tigations and hearings. The analysis that follows is based 
on a synthesis of our research into and experience with 
the EEO complaint process.

CSC/AEB decisions are cited in three ways: (1) deci­
sions rendered up to June 31, 1974 were indexed under 
Part 713 and numbered in chronological order, e.g., 713- 
73-593, and will be cited here in the form “ABB, 713- 
73-593” ; (2) decisions after June 31, 1974, that amicus has 
do not have index numbers on them, and will be cited by 
date and complainant’s name {e.g., AEB, Oct. 21, 1974

A p p en d ix  A



5a

(In re Sm ith)); (3) decisions in tlie Digest of Significant 
Decisions are given digest numbers in the form, RBO 
71360025, and will be so cited with a reference to the vol­
ume and page of the Digest, thus, “RB071360025, Digest 2, 
p. 12.” We have included in Appendix C a complete ARB 
decision (at pp. 82a-85a), as an example. Citation to deci­
sions on reopenings by the Commission itself will be to the 
date of the Commission minutes and to a description of the 
explanatory material obtained. All of the materials re­
ferred to or used in the following analysis can be obtained 
from the Washington office of the Commission.

A similar analysis of the complaint system is contained 
in a recent report of the United States Commission on Civil 
Rights, The Federal Civil Rights Enforcement Effort—  

1974, Vol. V, To Eliminate Employment Discrimination 
(July, 1975) [hereinafter, “ CRC Report” ] at pp. 61-86, 619- 
23 and 656-58. These excerpts have been reproduced as an 
Appendix to the Brief for Petitioner in Brown v. General 
Services Administration, No. 74-768. The Civil Rights Com­
mission report not only describes and draws conclusions 
about the process, but recommends that, “ The Commis­
sion should issue completely revised complaint procedures 
which provide Federal employees charging discrimination 
a full and fair proceeding consistent with Title YII stan­
dards.” Id. at 656. The complaint procedures were also 
analyzed earlier in a report prepared by Ralph Nader’s 
Public Interest Research Group, M.W. Brewer, Jr., Behind 
the Promises: Equal Employment Opportunity in the Fed­
eral Government (June, 1972). This study has recently 
been edited and incorporated in R. G. Vaughn, The Spoiled 
System, A Call for Civil Service Reform  (1975).

A p p en d ix  A



6a

B. The Regulatory Scheme

The CSC system for processing EEO complaints can best 
be analogized to common law pleading in its complexity 
and opportunities for missteps. The first difficulty arises in 
choosing which of many routes one should pursue, since 
in addition to the regular complaint procedure under 5
C.F.R. §§ 713.211-713.236, 713.271, and 713.281-713.283, 
there are a variety of other procedures under which com­
plaints raising discrimination related claims may be pur­
sued. These include:

(1) Charges of reprisal because of filing of a com­
plaint of discrimination (5 C.F.R. §713.261-.263);

(2) “ Third-party complaints” (5 C.F.R. § 713.251);

(3) Complaints of racial discrimination as a defense 
to an adverse action (e.g., suspension, dismissal, 
withholding of wage increase, etc.) (5 C.F.R. 
§ 772.306);

(4) Appeals from termination at the end of a proba­
tionary period (5 C.F.R. Part 315);

(5) Challenges to C.S.C. required job requirements 
(e.g., tests or educational qualifications) (5 C.F.R. 
§ 300.103-300.104);

(6) Appeals from a Reduction in Force Action (5 
C.F.R. Part 351);

(7) Grievances (5 C.F.R. Part 771);

(8) Appeals from assignment of grade (5 C.F.R. Part 
511).

Some of these procedures will be discussed, infra, in 
greater detail. The point to be made here is that, for ex­

A p p e n d ix  A



A p p en d ix  A

ample, an employee who is faced with an adverse action 
or a probationary employee who is terminated before he 
has acquired tenure, and who wishes to charge discrimina­
tion must elect to proceed either under Part 713 or under 
Part 772 (adverse action) or Part 315 (probationary em­
ployee). He is informed of the different internal proce­
dures that will be followed, e.g., under Parts 772 and 315 
the initial decision is made by the Federal Employees Ap­
peals Agency at the regional CSC office, rather than by 
the agency itself. He is not informed, however, that if the 
adverse action is reversed on a procedural ground, then 
the underlying discrimination claim will never be reached.2

2 The complexities of the system can be illustrated by a case coun­
sel for amicus handled. Complainant filed an EEO complaint under 
Part 713 in July of 1973. In September, on the day an investigator 
arrived, complainant was informed that his discharge from the ser­
vice was being proposed under adverse action procedures. The 
local EEO officer then cancelled the EEO complaint on the .ground 
that the discrimination claim could be raised in the adverse action 
proceeding. Complainant filed both a complaint and a charge of 
reprisal under §713.261 (see, infra, p. 36a), and, as a result, 
the discrimination complaint was reinstated. However, when the 
complainant was discharged, the agency took the position that the 
discrimination complaint merged into the adverse action appeal. 
Complainant protested that the regulations did not so provide and 
that he was entitled to have the discrimination and reprisal com­
plaints processed expeditiously and independently of the appeal. 
The CSC refused to so order and informed him that the discrim­
ination and reprisal charges would be considered as part of his 
appeal. However, his discharge was reversed on a procedural 
ground (in July 1974, the following year) and the discrimination 
claim was never reached. He then requested the CSC to require 
the processing of the EEO claim, now a year old (the regulations 
require that it be disposed of in 180 days), but got no reply. In 
the meantime, the agency appealed the decision ordering his rein­
statement to CSC/ARB, thereby automatically staying his return 
to work. CSC/ARB affirmed and he returned to his job in Decem­
ber, 1974. He filed an action under Title V II at the same time, 
since his underlying complaint of racial discrimination had never 
been resolved. Subsequently, the United States moved to remand



8a

He is also not informed that if he chooses any avenue other 
than Part 713, he will not, at its end, he informed that he 
has a right to sue under Title VII. See, infra, pp. 37a- 
38a.

Moreover, because of the short and strictly enforced time 
requirements for filing under the various provisions, if a 
complainant chooses the wrong avenue, by the time he dis­
covers his error it will be too late to file under the proper 
one. This problem arises particularly when an employee 
seeks to challenge a CSC job qualification by proceeding 
under Part 713. He will discover that such a challenge is 
“not within the purview” of that Part, since it covers only 
agency actions, too late to file under Part 300, the only 
means for challenging CSC actions3 (see infra, pp. 38a- 
40a).

The administration of Part 713 itself suffers from a 
similar rigid application of technical rules, the result of 
which is either to eliminate a substantial number of com­
plaints without ever reaching the merits, or to severely 
restrict the scope of inquiry. The narrowing of the process 
begins with the complaint form which requires that a par­
ticular person be named as the discriminator and one spe­
cific act be designated. The focus of the inquiry is still 
based on the assumption “that employment discrimination 
is primarily a matter of malicious intent on the part of 
individuals,” precisely the defect noted by the House Re-

the case to the agency for further processing of the administrative 
complaint (see Brief, supra). As part of that request, the agency 
ordered, in April 1975, that the investigation of the BEO com­
plaint be resumed. The District Court denied the motion to re­
mand, noting the passage of 780 days since the complaint was filed 
without final action. See, McHoney v. Callaway, B.D.N.Y., C.A. 
74-C-1729 (Oct. 10, 1975).

3 Unless the CSC is the employing agency, in which case Part 
713 must be used. See n. 26, infra.

A p p en d ix  A



9a

port cited in Morton v. Cancari, 417 U.S. 535, 547 (1974).4 
Thus, the common outcome of the process is that charges 
against an individual are explained away by reference 
to personnel policies or other reasons that do not deal with 
systemic types of discrimination.5

The process that a Federal employee must follow may 
be contrasted with that under the Equal Employment Op­
portunity Commission, used by all other employees. The 
EEOC investigation is deliberately broad and wide ranging. 
It seeks to uncover and correct systemic problems and to 
afford effective relief not only to the individual complain­
ant, but to all affected persons. See, EEOC Compliance 
Manual, Investigations, W61-905, CCH Employment Prac­
tices Guide. See also, Graniteville Co. v. EEOC, 438 F.2d 
32 (4th Cir. 1971). The results obtained by EEOC are sim­
ilarly broad and effective, despite its lack of plenary ad­
ministrative enforcement power such as the CSC has; thus, 
in Fiscal Tears 1974 and 1975, the EEOC obtained more 
than 160 million dollars in back pay for 100 thousand em­
ployees. See, text at n. 50, infra. Indeed, Congress ex- 
pceted that the CSC consult with the EEOC because of its 
knowledge and experience, and develop its EEO programs

4 H.R. Rep. No. 92-238, on H.R. 1746, 92d Cong., 1st. Sess., 23-25 
(1971); see also S. Rep. No. 92-415, on S. 2515, 92d Cong., 1st. 
Sess., 14 (1971).

5 For example, in the case reproduced in App. C, pp. 82a-85a, 
In re Jones, although systemic discrimination was found that ad­
versely affected the complainant, it was laid to the former super­
visor. Since the present selecting official was not himself shown, 
to ARB’s satisfaction, to have discriminated personally, neither a 
retroactive promotion nor back pay was awarded. In another case, 
ARB, May 6, 1975 (In re Williams), ARB noted that the agency 
(the Tennessee Valley Authority) had never hired a black into the 
particular job in question, but denied relief to the complainant by 
accepting without question the agency’s explanation why he was 
not hired. See also C.R.C. Report, p. 66, n. 219.

A p p en d ix  A



10a

along similar lines. S. Rep. No. 92-415, on S. 2515, 92d 
Cong., 1st Sess., p. 16 (1971).

C. Part 713 Procedures

A flow chart of the complaint process under Part 713 
follows. It should be noted that the process is potentially 
more complex than the chart indicates, since a complaint 
may be rejected or cancelled at certain points for failure 
to prosecute (see, 5 C.F.R. § 713.220(b)). Thus, for ex­
ample, if a complainant does not show up for a meeting 
with the investigator (see chart, 4.C.), the complaint may 
be cancelled.

A p p en d ix  A

(See Opposite)



FLOW CHART: EEO COMPLAINT PROCESS - 5 C.F.R. Chapter 713
(Key: the times to the left are mandatory time periods;

the time periods to the right in parentheses 
indicate time periods in which the agency is 
supposed to do something)

1 *)*ACT OF DISCRIMINATION 
3 0 DAYS X

2** FIRST INTERVIEW WITH EEO COUNSELLOR I
!

y
(21 days)

3 FINAL INTERVIEW W/COUNSELLOR: NOTICE OF
RIGHT TO FILE FORMAL COMPLAINT

15 DAYS
4^WRITTEN COMPLAINT FILED

I a. Complaint accepted [b. COMPLAINT REJECTED
[for procedural reasons]

c. Investigator arrives 15 DAYS ' """" ' \ OR
4?■ d. investigative Report completed (i) APPEAL rTO

(given to complainant within c . S . c . (go
five days). Recommendation 
made.

to 9)
y (20 days) 3 0 DAYS5**LETTER OF PROPOSED DECISION VDAYS (ii) FILE

6*FREQUEST FOR. HEARING - OR FOR FINAL 
, AGENCY DECISION WITHOUT HEARING*

Hearing - Complaints Examiner 
makes recommendation.

1* *FINAL AGENCY DECISION
15. DAYS OR 3 0 DAYS

8*,*FILE NOTICE OF APPEAL TO CSC 
. APPEALS REVIEW BOARD - - - -

FILE IN 
FEDERAL 
COURT

IN 
FEDERAL 
COURT

V
180 days 

after com­
plaint filed 

can file in 
Fed. Ct. UNLESS 

appeal taken to 
CSC pursuant to 

8

9* ^DECISION OF C.S.C.
30 DAYS

l
l
VAfter 180 days can file 

in Fed. ct.
4/lOt-FILE IN FEDERAL COURT

6 I f  Complainant does nothing, then the proposed decision becomes the 
final agency decision - go to 7.



11a



12a

1. A ct or D iscrim in a tio n  (713.213(a); 713.214(a) (1) ( i ) )

■The civil service regulations do not recognize the con­
cept of a continuing violation.7 Thus, something must have 
happened to the complainant within the thirty-day period 
before he goes to see an EEQ counsellor. (The thirty days 
runs either from the date of a discriminatory act or from 
the effective date of a personnel action, if that action is 
claimed to he discriminatory). Although events occurring 
prior to the 30-day period can be used as “background 
material,” relief can be given only as to events within the 
period, no matter what the relationship of the earlier events 
to the occurrence considered to he timely.8

A p p en d ix  A

7 CSC/AKB has flatly held that, “ there is no provision [in the 
regulations] whatsoever for accepting non-specific complaints of 
‘continuing’ discrimination.” (ARB October 15, 1974, (In re Con­
ner)). We think this position is wrong, since it conflicts with a 
number of decisions upholding the concept. Cox v. United States 
Gypsum, 409 F.2d 289 (7th Cir. 1969) ; Boudreaux v. Baton Bouge 
Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971). See also, 
CRC Report at p. 65, n. 218, and Ettinger v. Johnson, 518 F.2d
648 (3rd Cir. 1975). „„ nn

It should be noted that § 713.213 as it was in effeet from 1966-69 
(see 31 Fed. Reg. 3069, 32 Fed. Reg. 15631), did contain a pro­
vision that, “ A complaint concerned with a continuing discrim­
inatory practice having a material bearing on employment may 
be filed at any time.” This provision was subsequently deleted.

8 ARB May 6, 1975 (In re Williams). In Williams, a black chal­
lenged his failure to be hired as a heavy equipment operator by 
the Tennessee Valley Authority (no black had ever been hired for 
the job). The reason given for his not being hired was his lack of 
training as a crane operator. Complainant also alleged, however, 
that blacks had generally been excluded from the apprenticeship 
program that gave the training alleged to be necessary. These facts 
were considered only as they indicated a “possible^ pattern of dis­
crimination directed against the complainant individually which 
might have a direct bearing on the matter forming a proper basis 
for a complaint.”  However, no relief could be afforded for such 
past actions. See also, CRC Report, at p. 65.



13a

The thirty-day rule has been strictly construed by CSC/ 
ABB. Thus, although § 713.214(a) (4) provides that:

The agency shall extend the time limits in this sec­
tion (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 by circumstances 
beyond his control from submitting the matter within 
the time limits; or (ii) for other reasons considered 
sufficient by the agency. . . .

In fact, few reasons for failing to comply are accepted.9
It should be noted that the 30-day rule is purely admin­

istrative. Title VII does not specify a time limit for filing 
a charge against the federal government as it does for 
filing a charge with the EEOC. Thus, the rigidity with 
which the rule is imposed seems particularly unjustified,

A p p en d ix  A

9 In 1972-1974, CSC/ARB decided 90 appeals involving timeli­
ness of initial contact with the counselor. There were 73 affirmances 
of agency findings of untimeliness, 5 remands for further fact­
finding as to the reasons for untimeliness, and only 12 decisions 
accepting reasons given by complainants. These mostly involved 
cases where complainants had proven they were misinformed by 
agency personnel.

BAR has rejected explanations that military obligations pre­
vented contacting a counselor for three months (No. 713-73-368) ; 
that the employee had been assured by his union that it would han­
dle the matter (No. 713-73-417) ; that management had said the 
matter would be handled “ informally” (No. 713-74-508) ; even 
where the complainant was on authorized sick leave with severe ill­
nesses the case was only remanded to determine whether he could 
have contacted a counselor nevertheless (No. 713-73-433). See also, 
No. 713-74-574, discussed infra at n. 12, where the fact that the em­
ployee was in jail for two months was not a sufficient excuse. The 
fact that a complainant started out in one of the other CSC pro­
cedures available does not toll the period for going to a counselor. 
See, e.g., Nos. 713-74-66; 713-73-527; 713-74-399 (following griev­
ance procedures does not excuse failure to go to an EEC counselor).



14a

especially in view of the refusal of the CSC to recognize 
no longer the concept of a continuing violation.

2. I n terview  W it h  C ounselor (713.213(a))

Although § 2Q00e-16 itself speaks only of the filing of 
an “ initial charge” , the CSC regulations provide that a 
complainant first must go to an EEO counselor and at­
tempt informal resolution before he can file a “ formal” 
complaint of discrimination. The counseling process is an 
absolute prerequisite to filing a complaint. Moreover, the 
fact that a complaint was sought to be filed within the 
time period will not cure a failure to follow the counsel­
ing process.

One effect of the counseling requirement is to extend the 
180-day period in the statute to 201 days, since the regula­
tions require that at least 21 days be spent in counseling. 
Thus, the counseling requirement is arguably in conflict with 
§ 2000e-16, since one of Congress’ main concerns was de­
lays in the process.

Counselors are not full-time EEO people, but are as­
signed to act as counselors part-time away from their reg­
ular jobs. The counselor’s role is to attempt an informal 
settlement of the problem within 21 days; indeed, more 
than Ys of all complaints filed government-wide were so 
disposed of.

No firm data is available as to the kinds of “corrective 
action” taken as a result of counseling.10 Nevertheless, it

10 EEO offices fill out monthly reports on counseling that set out 
the following categories of corrective action: (1) “ agency improved 
personnel practices” ; (2) “promotion received” ; (3) “ training op­
portunity received” ; (4) “reappointment/reinstatement” ; (5) “re­
quested reassignment received” ; (6) “Adverse Action reduced or 
rescinded” ; (7) “ other disciplinary action reduced or rescinded” ; 
(8) “Priority consideration for next promotion” ; (9) “ Other.”

A p p en d ix  A



15a

is clear that such action is most often of a limited nature. 
For example, it is impossible for counselors to get anyone 
either a retroactive promotion or back pay since the regula­
tions make a finding of discrimination a precondition for 
both (713.271), and counselors have no power to make 
such a finding. Congress was critical of the whole concept 
of informal resolution of complaints since it “denied em­
ployees adequate opportunity for impartial investigation 
and resolution of complaints.” H.R. Rep. No. 92-238 on 
H.R. 1746, 92d Cong. 1st Sess., at 23 (1971). S. Rep. No. 
92-415 on S.2515, 92d Cong., 1st Sess., at 14 (1971).

Under the system as administered, only about 10% of 
the persons who go to see a counselor file a complaint. 
About 35% more receive some sort of “ corrective action” 
as a result of counseling. The other 55% neither file nor 
get any relief. (See, Brief for Respondents in Broivn v. 
G.S.A., No. 74-768, at pp. 48-49). While there is no firm 
data as to what happens to that 55%, it is notable that 
the EEO counselor’s guidebook, at p. 1, notes with pride 
the fact that only one out of ten persons file a complaint. 
Thus, while the regulations state that counselors are not 
supposed to prevent persons from filing (§713.213), coun­
selors are certainly not led to encourage people to do so. 
Again, EEOC practice may be contrasted; there, the first 
thing that is done is the filling out and filing of a written 
complaint, after  which investigation and conciliation is 
pursued.

3. N otice of R ight  to F ile  (713.213(a))
At the end of 21 days, if there has been no disposition 

agreed upon by both the complainant and the agency, the 
counselor is to give the complainant a letter notifying him 
of his right to file a discrimination complaint within 15

A p p en d ix  A



16a

days after a final interview with the counselor. (The failure 
to give such notice carries no sanction against the agency.)

4. F ilin g  on t h e  C o m plain t  (713.214)

Within 15 days the formal written complaint must he 
filed with the EEO officer, or other designated official,11 
or it will he rejected as untimely.12 CSC considers that the 
180-day period at the end of which a civil action may be 
filed in court runs from, the date of filing of the administra­
tive EEO complaint, and some agencies take the position 
that the complaint is not “filed” until the EEO officer sends 
a letter of formal receipt. Thus, the date of receipt is not 
necessarily determinative. In some instances, EEO officers 
neither formally accept or reject a complaint on the 
grounds attempts are being made to resolve it “ informally.” 
Like the counseling requirement, these filing procedures 
have the effect of further extending the 180-day provision 
of § 2000e-16 in which a civil action may he filed.

The letter from the EEO counselor may note that it is 
preferable that the complaint he on the standard agency 
form.13 The form requires that an “ alleged discriminatory

11 The regulations specify that the complaint may also be filed 
with the agency director of E E O ; in every instance, the complaint 
is sent to the local EEO officer for processing.

12 Section 713.214(a) (3) provides that it is timely if postmarked 
within the 15-day period as long as it is addressed to one of the 
officials designated by the agency. This requirement is also strictly 
construed. Thus, a complainant mailed a complaint well within the 
15 days, but addressed it to the “ Equal Employment Opportunity 
Office, Washington, D. C.”  The letter was delivered to the EEOC, 
which re-routed it to the agency EEO office, but not until 34 days 
had passed. ARB affirmed the agency’s rejection of the complaint 
as untimely (ARB, No. 713-74-574). This result was later rejected 
as a defense to a Title Y II action. Hunt v. Schlesinger, 389 P. 
Supp. 725 (W.D. Tenn. 1974).

13 See, Revised Counselor’s Guidebook, p. 14.

A p p en d ix  A



17a

official” be named (in contrast the form used by the EEOC 
only requires that the company or the union be designated). 
Since most often the problem is with an immediate or close 
supervisor, this puts the complainant in the uncomfortable 
position of bringing charges against the person who will 
have the greatest control over his future career. The focus 
of the complaint process on seeking to establish individual, 
and usually overt, acts of discrimination, rather than on 
systemic problems impinging on minority employees as a 
class, was one of the main criticisms voiced by Congress 
in 1971.14

A p p en d ix  A

14 “Aside from the inherent structural defects the Civil Service 
Commission has been plagued by a general lack of expertise 
in recognizing and isolating the various forms of discrimina­
tion which exist in the system. The revised directives to Fed­
eral agencies which the Civil Service Commission has issued 
are inadequate to meet the challenge of eliminating systemic 
discrimination. The Civil Service Commission seems to assume 
that employment discrimination is primarily a problem of 
malicious intent on the part of individuals. It apparently has 
not recognized that the general rules and procedures it has 
promulgated may actually operate to the disadvantage of mi­
norities and women in systemic fashion. All too frequently 
policies established at the policy level of the Civil Service Com­
mission do not penetrate to lower administrative levels. The 
result is little or no action in areas where unlawful practices 
are most pronounced. Civil Service selection and promotion 
requirements are replete with artificial selection and promotion 
requirements that place a premium on “ paper” credentials 
which frequently prove of questionable value as a means of 
predicting actual job performance. The problem is further 
aggravated by the agency’s use of general ability tests which 
are not aimed at any direct relationship to specific jobs. The 
inevitable consequence of this, as demonstrated by similar prac­
tices in the private sector, and, found unlawful by the Supreme 
Court, is that classes of persons who are culturally or educa­
tionally disadvantaged are subjected to a heavier burden in 
seeking employment.” H.R. Rep. No. 92-238, on H.R. 1746, 
92d Cong., 1st. Sess., at 24 (1971). See also, S. Rep. No. 92- 
415, in S. 2515, 92d Cong., 1st. Sess., at 14 (1971), cf., Douglas 
v. Hampton, 512 F.2d 976 (D.C. Cir. 1975).



18a

4a and b. A cceptance  on R ejection  oe t h e  C om plain t  
(713.215)

Theoretically, the EEO officer can reject a complaint only 
for procedural deficiencies; e.g., untimeliness, failure to 
have first submitted to counseling, etc. Actually, however, 
some of bases for rejecting a complaint relate to the merits. 
The three grounds for rejecting a complaint specified in 
§713.215 are: (1) untimeliness; (2) the complaint deals 
with the same subject matter as an earlier complaint; and 
(3) the issues raised are “ not within the purview” of the 
discrimination regulations.

a. Timeliness (713.214(a) (i) and (ii))

A complainant must meet two limitation periods or his 
complaint will be rejected as untimely by the EEO officer. 
First, it is untimely if there was no event within 30 calen­
dar days prior to the initial contact with the counselor. 
Second, it is untimely if not filed within 15 calendar days 
of the date of the complainant’s final interview with the 
counselor. Neither of these requirements is established by 
statute, but has been imposed by regulation. In contrast, 
§ 2000e-5(e) imposes a 180-day period in which private and 
state and local employees must file a complaint with the 
EEOC or a state F.E.P.C. Whether a failure to meet the 
Part 713 time requirements would bar a Title VII action 
has yet to be resolved by the courts, although they gener­
ally have declined to enforce them with the same rigid­
ity as has CSC/ARB. See, e.g. Hunt v. Schlesinger, 389 
F. Supp. 725 (W.D. Tenn. 1974).

A p p en d ix  A



19a

b. Same Subject Matter as a Previous or Pending Com­
plaint (713.215)

The EEO officer must reject the allegations of a com­
plaint “which set forth identical matters as contained in a 
previous complaint filed by the same complainant which is 
pending in the agency or has been decided by the agency.” 
Presumably, if a complaint referred only to an event that 
was the subject matter of an earlier complaint it would 
necessarily be untimely and could be rejected on that basis. 
Therefore, the regulation could be read as requiring the 
rejection only of those allegations in the complaint (as 
opposed to the complaint as a whole) that relate to previ­
ously adjudicated or pending matters. On the other hand, 
if, for example, a complainant wishes to raise a charge of 
reprisal because of the filing of an earlier EEO complaint 
he must file a new complaint if the first complaint is on 
appeal to ABB, even though the second complaint would 
deal with matters related to a complaint already adjudi­
cated by the agency.

c. “Not Within Purview”  (713.215)
A significant number of complaints, or portions of 

complaints, are rejected as “not within the purview of 
§ 713.212.” The most important allegations so rejected are 
“general allegation[s] of discrimination . . . which [are] 
unrelated to an individual complaint of discrimination,” 
(§ 713.212(b)), i.e., class action type allegations. CSC/ 
ARB has squarely held that:

There is no provision in the Civil Service regulations 
for the processing of general allegations of discrimina­
tion within the context of individual complaints of 
discrimination.

A p p en d ix  A



20a

Rather, such allegations have to he raised as a ‘‘third- 
party” complaint, under 713.251.16

There are three problems with the third-party complaint 
procedure. First, § 713.251 specifies that it applies only to 
general allegations “by organizations or other third par­
ties” that are “unrelated to an individual complaint of 
discrimination.” A recent memorandum explaining the 
third-party procedure issued by the Commission also makes 
it clear that a third-party complaint is not allowed if the 
allegations relate to the complaints of any individuals.16 
This ignores the obvious fact that in any racial discrimina­
tion case the whole point of making class allegations is that 
they are related to a particular person’s individual com­
plaints, and indeed affect all members of the diseriminated- 
against group. See, Sosna v. Iowa, 419 U.S. 393, 413, n. 1 
(White, J., dissenting).

Second, the third-party allegations procedure is not ad­
judicatory in nature. As described in the regulation and 
in the recent memorandum, its purpose is simply “to call 
agency management’s attention” to allegedly discrimina­
tory policies. Third-party allegations are “handled solely 
through an agency investigation,” 17 which,

A p p en d ix  A

15 ARB, October 15, 1974 (In re Williams). There, the complain­
ant had attempted to allege that women and minorities “as a class” 
were discriminated against by the agency’s personnel policies per­
taining to recruitment, hiring, promotions, and other aspects of 
employment. The allegation was rejected by the agency. See also, 
CRC Report at pp. 63-64; 68-69.

16 Memorandum letter, dated January 27, 1975, from Irving 
Kator, Assistant Executive Director, USCSC, to Directors of Equal 
Employment Opportunity and Directors of Personnel.

17 Iiid.



21a

Is not expected to cover individual cases in sufficient 
depth which necessarily would result in findings or 
decisions with respect to those individuals.18

There is no right to an appeal to the Civil Service Com­
mission, rather, only a “review” can be sought. The review 
is not conducted by the Appeals Review Board as an adju- 
cation of rights; rather it is handled by the regional CSC 
office or the CSC’s Bureau of Personnel Management Eval­
uation. At most that review may result in a request to 
the agency to conduct a further investigation; there is no 
adjudication as such.

Third, consistent with the above, the CSC does not 
consider that the third-party allegation procedure under 
§ 713.251 gives rise to the right to proceed in federal court 
under Title VII. Thus, § 713.282 provides when “ an em­
ployee or applicant” will be notified of his right to file a 
civil action. It refers only to §§ 713.215, 713.217, 713.220, 
713.221, and 713.234, viz., those sections relating to indi­
vidual complaints, and excludes any reference to § 713.251. 
In accord with § 713.282, the Commission does not notify 
a third-party complainant of a right to bring action when 
it concludes its review under § 713.251(b). The Depart­
ment of Justice has also taken the position that a third- 
party complaint cannot be the basis for filing a class action 
under Title VII.19

Thus, a complainant is faced with being unable to raise 
(or get investigated and adjudicated) class-type allega-

A p p en d ix  A

18 Ilid.
19 Brief for Appellees in McLaughlin v. Callaway, 5th Cir. No. 

75-2261, p. 13.



22a

tions,20 and at the same time being relegated to a procedure 
that is both ineffective and irrelevant to the administrative 
adjudication of his complaint. Moreover, because class 
claims cannot be raised, complaints examiners consistently 
refuse to permit the introduction of evidence relating to 
discriminatory employment practices on the ground such 
evidence is not “relevant” to individual claims.21

Aside from the class allegation issue, the “not within 
purview” provision has been variously applied. Thus, for 
example, CSC/ARB has held that an agency correctly re­
jected a claim that “ older blacks” had been discriminated 
against, since discrimination on the basis of age was not 
within the purview of Part 713.22 ARB has reversed agency 
rejections as “not within purview” based on a finding that 
the complainant had not been discriminated against. Since 
this was in effect, a finding on the merits, the case was 
remanded for a hearing.28 On the other hand, ARB has 
affirmed such a rejection by independently determining that 
since the complainant had been properly classified, he could 
not have been discriminated against.24

20 Hid.

21 See, e.g., ARB, No. 713-73-593. There, ARB upheld the re­
fusal to call certain witnesses because, “ they were to testify rela­
tive to the equal employment opportunity program with respect 
to Hispanic Americans,” and such testimony was not “pertinent” 
to an individual claim of discrimination. See also, ARB, May 6, 
1975 (In re Williams).

22 ARB, No. 713-74-29.
23 ARB, No. 713-74-402.
24 RB071360089, Digest, 2, p. 19. This case demonstrates that 

the orientation of ARB personnel i's towards standard personnel 
matters rather than discrimination. The complainant had filed an

A p p en d ix  A



23a

Of great significance is whether the specific practice that 
harms the complainant is reviewable by the agency at all. 
Although § 713.212, by its terms, seems to encompass all 
discriminatory acts, in fact, it covers only those for which 
the agency is responsible. Thus, challenges to CSC exams, 
regulations, job qualifications, etc., are not within the pur­
view of chapter 713.25 Unfortunately, if the complainant 
makes a mistake on this ground, his complaint is simply 
rejected; it is not forwarded to the proper office (e.g., the 
CSC if a test is at issue). By the time the complainant 
figures out he should be proceeding under a different part 
of the regulations it may be too late to file a timely com­
plaint anywhere.26 The explanatory materials prepared by

A p p en d ix  A

EEO complaint charging the personnel officer with discrimination 
in refusing to reclassify his postion to a higher GS level. The 
agency found only that the position had been classified in accord­
ance with the prescribed procedures, without, apparently, address­
ing the discrimination claim itself. ARB, on appeal, got an ad­
visory opinion from the CSC Classification Appeals Office that 
there was no error in the classification. Therefore, since FPM 
Chapter 713 Appendix B, paragraph B -3 .e (l)(b ) requires proof 
that a deliberate error had been made, ARB found that the com­
plainant was not within the purview of Part 713, and declined to 
accept the appeal.

25 They must be filed under part 300 of Chapter 5, C.F.R.; see 
infra, pp. 38a-40a.

26 There are variations on this problem. In one case a complain­
ant filed with the CSC director of EEO claiming discrimination 
in the way the Federal Service Entrance Examination had been 
administered by the CSC. The complaint was rejected on the 
ground that the complainant had not sought employment with the 
CSC as an agency, but with the federal government generally. 
Therefore, the complaint was “not within purview.”  (Undoubted­
ly, if the complaint had been filed with any particular agency it 
would have been rejected on the ground that the agency had no 
authority to review actions of the CSC.) The letter decision says 
nothing about a Part 300 appeal or, indeed, any alternative way 
to get the merits of the national origin discrimination claim ad-



24a

the CSC for dissemination to federal employees do not 
contain this information. See, “Fed. Facts 10” , U.S. Civil 
Service Commission, October, 1973.

The EEO officer must also reject anything in the com­
plaint relating to a matter not brought to the attention of 
the EEO counselor (713.218(a)(1)). This requirement is 
also rigorously applied.263- Finally, the officer may require 
that the complainant make his allegations specific rather 
than general on pain of having the complaint rejected. This 
usually entails naming an alleged discriminatory official or 
identifying some specific discriminatory action in contrast 
to alleging generally a failure to promote, etc. Again, 
EEOC practice, which allows the filing of the initial com­
plaint in the most general terms, may be constrasted. See, 
e.g., Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th 
Cir. 1968).

4. c. and d. T h e  I nvestigation  (713.216)

If the complaint is accepted, it is the EEO officer’s duty 
to request an investigation and to handle any adminis­
trative chores necessary to ensure its being carried out. 
The investigator is supposed to be independent; never­
theless, in all instances he is an employee of the agency. 
As noted in Morton v. Mancari, supra, the House Commit­
tee report for the 1972 Amendments declared that, “the 
present law and the proposed statute do not permit in-

A p p en d ix  A

judicated administratively. (ARB No. 713-74-679). See also, ARB 
No. 713-74-561. The complainant charged discrimination by CSC 
in failing to find complainant “suitable for employment . . . with 
federal agencies in general, rather than with the [CSC]” as the 
employing agency. Therefore, the complaint was properly re­
jected as “not within the purview” of the regulations.

26a See, e.g., ARB No. 713-73-540. See also, CRC Report at p. 
69, and the Revised Investigator’s Guidebooks, at pp. 6, 9.



25a

dustry and labor organizations to be the judges of their 
own conduct in the area of employment discrimination. 
There is no reason why government agencies should not 
be treated similarly.” H.R. Rep. No. 92-238, on H.R. 1746, 
supra, at 24-25.27 Both House and Senate Committee re­
ports criticized the resolution process as having “denied 
employees adequate opportunity for impartial investigation 
and solution of complaints”  because “each agency is still 
responsible for investigating and judging itself.” Senate 
Rep. No. 92-415, on S. 2515, 92d Cong., 1st Sess., at 24. See, 
also, CRC Report, p. 70.

As a matter of general practice, the investigation is lim­
ited as to both time and scope, despite language in the reg­
ulations that suggests the contrary.28 Indeed, the investiga­
tor is specifically told not to enlarge “the scope of the 
investigation beyond the specific issues complained of” 
(Revised Investigator’s Guidebook, p. 10), again in con­
trast to an EEOC investigation. The complainant has no 
control over what the investigator looks into, although he 
can suggest names of witnesses and is entitled to supply a 
detailed statement himself. The investigator must rely on 
local personnel for information. Statements are taken from 
witnesses ex parte, with the complainant having no right 
to be present or to have particular questions asked or

27 See, Hearings on H.R. 6228 & H.R. 13517 Before the General 
Subcomm. on Labor of the House Comm, on Education and Labor, 
91st Cong., 1st & 2d Sess. at 112 (1970) ; Hearings on S. 2453, 
Before the Subcomm. on Labor of the Senate Committee on Labor 
and Public Welfare, 91st Cong., 1st Sess., at 79 (1969).

28 For example, 5 C.F.R. §713.216 (a) requires that the investi­
gator shall investigate the “general environment” in the “organi­
zational segment” of the complainant. This sounds like a broad 
class-systemic investigation. One agency, however, interprets “ or­
ganizational segment” as being limited to the immediate office in 
which the complainant is located (in one instance,, a three-person 
office).

A p p en d ix  A



26a

pursued. (See, Investigator’s Guidebook at 23, Revised In­
vestigator’s Guidebook at 14.) Nor can he require that 
particular information be collected.29 A common pattern 
of investigation is the taking of short affidavits from indi­
viduals containing conclusory statements as to whether the 
accused individual is discriminatory. In addition, very 
general data relating to the agency’s affirmative action 
plan is put into the record.

After completing the investigation, the investigator sub­
mits Ms report (all of which must be given to the com­
plainant within 5 days). Although the practice varies, in 
most agencies the investigator makes no finding as to 
whether there has been discrimination. He may recom­
mend a disposition of the complaint which is not binding 
on either party, but forms the basis of an attempt to in­
formally resolve the complaint.

As in the counseling stage, the proposed dispositions are 
usually limited in scope. Again, since back pay can not

A p p en d ix  A

29 Thus, in a number of cases complainant’s counsel have sub­
mitted to investigator's interrogatories reauesting information ob­
tained as a matter of course in Title Y II cases. For example:

“ 1. Please provide tbe following statistical data on the New 
York Regional Office of the Drug Enforcement Admin­
istration :
(a) the number of employees by race, and by .job category 

(or description) and by General Schedule Classifica­
tion, as of (i) March, 1965; (ii) March, 1966; (iii) 
March, 1967; fiv) March, 1968; (v) March, 1969; 
(vi) March, 1970; fvii) March, 1971; (viii) March, 
1972; (ix) March, 1973; (x) March, 1974; (xi) March, 
1975.

(b) the number of Criminal Investigator's employed by 
the New York Regional Office, by race, as of each of 
the dates specified in paragraph 1(a) immediately 
above.”

Investigators have either ignored such requests or have declined 
to comply on the ground the information was “ irrelevant” to an 
individual charge of discrimination (a conclusion directly contrary 
to McDonnell Douglas v. Green, 411 U.S. 792 (1973)).



27a

be given without a finding of discrimination by the na­
tional agency head (or his designee), it cannot be ob­
tained at this stage.30 Occasionally, a promotion is of­
fered;31 more typically, the proposed relief involves train­
ing or consideration “as a strong candidate” for future 
vacancies.32 Despite these limitations, some attempt at con­
ciliation is a condition to proceeding to the next step in 
the process.

5, L etter  oe P roposed D ecision  (713.217)

If no agreement is reached, then 20 days after the in­
vestigative report is filed, the local EEO officer sends the 
complainant a Notice of Proposed Disposition by the local 
agency head. I f  the complainant is satisfied, or if he does 
nothing, the proposed decision of the local agency head 
automatically becomes the final agency decision. I f he is 
not satisfied, he is given the option of either having a 
hearing, or having the national agency head or his designee, 
usually the Director of EEO, decide the merits based on 
the investigative record. He is informed that regardless 
of the option chosen he will be able to file an action 
under Title V II within 30 days after the final agency 
decision.33

A p p en d ix  A

6. H earing  B efore a C om plain ts  E x am in er  (713.2(8))
I f the complainant elects a hearing, a complaints exam­

iner employed by the CSC (usually from the regional

80 See, Notices of Proposed Disposition of Discrimination Com­
plaint from Joseph D. Atkinson, EEO officer, to Sylvester A. 
Barret and Gloria A. Williams, November 27, 1974, reproduced in 
App. C, infra, pp. 86a-89a.

81 Ibid.
32 Ibid.

33 See, App. B, p. 79a, infra.



28a

FEAA office) is assigned.34 The complainant is sent a 
letter from the designated hearing examiner informing him 
that within 5 days after its receipt he must supply the 
names of all witnesses he wishes called, and a general 
statement of their testimony.35

The complaints examiner has no power to provide for 
the interviewing of witnesses or to require the agency 
to supply documents or information before the hearing. 
Requests for such pre-hearing discovery are met with the 
response that it is solely within the agency’s discretion 
whether to comply.86 On the other hand, the agency, and 
its representative, have full access to its own records and 
employees in order to prepare before hand. Thus, even 
the complainant who is represented by counsel is at a 
distinct disadvantage. See, Rich v. Martin Marietta, 522 
F.2d 333, 342-43 (10th Cir. 1975). The production of docu­
ments at the hearing itself is no substitute for adequate 
discovery prior to the hearing. In an employment dis­
crimination case it is typically necessary to propound sup­
plemental interrogatories or to follow up on depositions 
in order to ferret out all necessary information.

The procedures for the hearing itself are detailed in 5 
C.F.R. § 713.218, and in the Complaints Examiner’s Hand­
book at pp. 34, et seq. At the hearing, as during the inves­
tigation, the complainant has the right to have a represen­
tative ; however, he has no right to have a lawyer appointed 
and CSC/ARB has held that the regulations do not allow

34 See, CRC Report, p. 76, n. 259, for a description of the quali­
fications of Complaints Examiners. Expertise in Title VII laws or 
employment discrimination matters is not required.

36 See, Complaint's Examiners’ Handbook, p. 93.
36 See, e.g., Letter of Samuel F. Vesser, Jr., Assistant Appeals 

Officer, CSC, to Ms. Caryl Privett, March 13, 1975, reproduced in 
App. C at p. 90a, infra.

A p p en d ix  A



29a

for counsel fees to a complainant who prevails in the 
administrative process.37 Thus, if the complainant can­
not afford to hire an attorney, he can get counsel only 
if he can convince a government-employed attorney to act 
as his representative. Under CSC regulations, only an 
attorney employed by the complainant’s own agency, i.e., 
the agency charged with discrimination, can do so on official 
time, if such representation is not “inconsistent with the 
faithful performance” of the attorney’s regular duties as 
determined by the agency. An attorney from another agency 
can act as representative only by using up annual leave 
or by taking a leave without pay.88 Thus, a complainant is 
generally represented by a lay person. In contrast, the 
agency, particularly the military departments, is usually 
represented by counsel.39

The hearing is not an adversary proceeding, but “an ex­
tension of the investigative process.” Handbook, pp. 39, 
53-54. Therefore, “ the concept of burden of proof does not 
apply.” Ibid. Moreover, although both the agency and the 
complainant are responsible for furnishing all the informa­
tion they have, neither has the burden of producing all of 
the evidence in support of his position. Bather, it is the

A p p en d ix  A

37 ARB, November 8, 1974 {In re Brown).
38 FPM Bulletin No. 713-41, October 10, 1975.
39 See, e.g., ARB, September 25, 1975 (In re Howard, et al.). 

There, the complainants arrived prepared to represent themselves. 
When they discovered that the agency (the Air Force) would be 
defended by a military lawyer, they protested that such a proceed­
ing would be unfair. As ARB recited:

The hearing was terminated when the complainants withdrew 
from the hearing because the agency was represented by an 
attorney. They requested that the agency furnish them with 
an attorney but were told that there was no provision for legal 
aid. Id., at p. 2.



30a

responsibility of the examiner to elicit testimony and to 
obtain witnesses or evidence that are needed. Id., at pp. 
39-40, 55-57. Even though the complainant presents Ms 
case first, he is not “required to prove discrimination.” 
Id. at 56.

Although this procedure sounds good, in operation its 
non-adversarial nature works to the complainant’s disad­
vantage. The fact of the matter is that if it is not proven; 
(1) that there was discrimination; (2) that the complain­
ant was the victim of it; and (3) that it is “clear” that “but 
for” the discrimination he would have been given the job 
in question, then the complainant will lose. Thus, if he 
relies on the apparent duty of the complaints examiner to 
develop all the relevant proof, when he gets the decision 
of the agency and ARB he will discover that he indeed 
had a burden of proof after all. The decisions of ARB 
in particular are replete with comments on failure to prove 
discrimination or deficiencies in the record that result in 
the rejection of the complainant’s claims.40

The complaints examiner has wide latitude in deciding 
what evidence is admissible. Although some of the rules 
of evidence, particularly regarding the admissibility of 
hearsay in the form of affidavits, are not strictly applied, 
the standard of relevance is in fact narrower than in Title 
VII court actions. This is most noticeably the case regard­
ing evidence of patterns of class discrimination; it is typ­
ically excluded, and the exclusion is upheld on the ground 
that the examiner has “the duty of conducting the hearing 
in such a way as to adduce evidence pertinent to the com­
plaint, and to exclude testimony or information which is

A p p en d ix  A

40 See, e.g., ARB, October 4, 1974 (In re Jones), reproduced in 
App. C, pp. 82a-85a, infra.



31a

not pertinent.” 41 In practice, this means that it is “as­
sumed” that all pertinent evidence is in the Investigator’s 
report, and that the exclusion of evidence is justified.42

Following the hearing, the examiner makes a recom­
mended decision to the agency head. As with the former 
regulations, “the conclusions and findings of the examiner 
are in the nature of recommendations to the agency head 
who makes the final agency determination as to whether 
discrimination exists.” H.R. Rep. No. 92-238, on H.R. 1746, 
supra, at 24; Senate Rep. No. 92-415, on S. 2515, supra, at 
14. The complainant does not have the right to see, review 
or comment on the examiner’s recommendation or to see 
the transcript prior to the final agency decision. See, 
Handbook, p. 79; §§ 713.218(g) and 713.221(b)(2). Thus, 
he has no opportunity to influence the agency decision, 
or to file a memorandum based on a review of the tran­
script of testimony. This is in contrast to, e.g., the oppor­
tunity to comment on or object to a master’s report prior 
to a district court’s decision under F.R. Civ. Proc., Rule 
53(e)(2). Gf., 42 U.S.C. § 2000e-5(f) (5).

7. F inax, A gency  D ecision  (713.221)

Most agencies have delegated responsibility for making 
the decision to a director of EEO. If the agency decides 
not to adopt the examiner’s recommended decision the 
regulations state that reasons for the rejection are to be 
given (5 C.F.R., § 713.221(b) (2)). Unfortunately, this pro­
vision was rendered ineffective by the Civil Service Com­
mission itself when it held that as long as CSC/ARB gave 
reasons why a decision was made, the agency need not do

A p p en d ix  A

41 ARB, 713-73-593, at p. 3.
42 Ibid.



32a

so.43 In a significant number of instances proposed deci­
sions finding discrimination are not followed by agencies.44 
Based on the report of the hearing (or on the investigative 
file if the complainant has chosen not to have a hearing) 
the national department or agency head, or his designee, 
makes a decision (5 C.F.R. §713.221). The decision is to 
require remedial or corrective action if necessary. The 
complainant must be sent a copy of the report of the 
examiner and the hearing record, along with the agency 
decision.

8.-10. A ppeal  to CSC/ARB (713.231-713.234)
The complainant is informed of his right either to ap­

peal to CSC/ARR within 15 days or to file an action in 
federal court within 30. I f the former option is chosen, 
a new 180-day period commences. The decision of CSC/ 
ARB is final45 and a civil action must be filed within 30 
days of receipt of notice thereof. During consideration of

A p p en d ix  A

43 This ruling was handed down by the CSC in three eases (in­
cluding one now before this Court sub nom., Salone v. United States, 
No. 74-1600), in which the Commission declined to reopen and 
review an ARB decision. The Commission’s general counsel had 
requested reopenings on the ground the agencies had not given 
reasons for not following the recommended decisions of the com­
plaints examiners. The Commission declined to reopen because 
ARB had detailed reasons for the final decision rendered. (Minutes 
of U.S.C.S.C., Feb. 27, 1974). The problem with this result is that 
there is no reason for the agency to give reasons, since if an appeal 
is taken to ARB, that body will detail reasons.

44 In Fiscal Year 1974, agencies reversed 29 out of 109 Exam­
iner’s findings of discrimination (26.6%). In contrast, they re­
versed only 7 out of 534 findings of no discrimination (1,3%).

45 Except that the Commission itself has the discretion to reopen 
under § 713.235. See, supra, pp. 3a-4a. Such reopenings may be 
on the initiative of the Commission, the agency, or the complainant.



33a

the 1972 Amendments, Congress expressly stated that, “ The 
system which permits the Civil Service Commission to 
sit. in judgment over its own practices and procedures 
which themselves may raise questions of systemic discrim­
ination, creates a built-in conflict-of-interest.” H.R. Rep. 
No. 92-238, on H.R. 1746, supra at 24.

Congress also criticized ARB because it “rarely reverses 
the agency decision” on discrimination (Ibid). This is still 
the case. The government’s own statistics show that in the 
first three fiscal years since § 2000e-16 wrent into effect 
(July 1, 1972 to June 30, 1975), ARB decided 1,354 EEC 
appeals on the merits.46 It reversed agency findings of no 
discrimination in only 45 cases, or 3.32%. In other words, 
ARB itself found discrimination only in those 45 in­
stances.47 Even if the appeals where ARB ordered fur­
ther corrective action without disturbing the agency find­
ing as to discrimination are included, complainants re­
ceived favorable ARB dispositions on other than proce­
dural issues in only 137 out of a total of 1,389 appeals, 
less than 10% of the cases.48

A p p en d ix  A

46 See App. C, p. 53a, Brief for Respondents in Brown v. O.S.A., 
No. 74-768. The figure of 1,354 is arrived at by totalling for the 
three fiscal years the appeals in the categories, “Affirmed—Agency 
found no discrimination” ; “Affirmed— Agency found no discrim­
ination (but further corrective action recommended by ARB” ; “Re­
versed—Agency found no discrimination.” The other categories 
involve either procedural questions (i.e., untimeliness), or appeals 
where the agency itself had found discrimination so that that ques­
tion was not at issue. But see, text at n. 48, infra.

47 Two of those cases were reopened and vacated by the Commis­
sion under § 713.251.

48 ipjjg total figure was arrived at by adding in the totals for the 
categories: “ Affirmed—Agency found discrimination” ; and “A f­
firmed— Agency found discrimination (further corrective action 
recommended by A R B ).” The figure 137 was arrived at by adding



34a

C orrective and  R em edial  A ction  (713.271)

Either the agency or the CSC can order certain specified 
corrective or remedial action as specified in § 713.271. Cor­
rective action is ordered in a significant number of cases 
even though discrimination is not found. The reason for 
this may be that if there is no finding of discrimination 
then no back pay can be awarded. Thus, both agencies 
and the CSC give some future relief but avoid expending 
government funds.

Even if discrimination is found, back pay cannot be 
granted unless it is shown that a promotion would have 
been given “but for” the discrimination, a rule directly 
contrary to that applied by courts in Title VII actions 
(see the discussion in the Brief, supra). This rule is rig­
orously applied and awards of back pay government-wide 
have been rare indeed. Thus, in fiscal year 1974, only 40 
federal employees received back pay49 as a result of agency 
action. This is in dramatic contrast to the private sector, 
where the EEOC, without the plenary power that federal 
agencies or the CSC have over federal employment, ob­
tained in the same fiscal year back pay for 49,388 em­
ployees in the amount of $56,266,827 through conciliation.50

A p p en d ix  A

to the 45 cases where ARB itself actually found discrimination, 
those cases where it affirmed agency findings of discrimination or 
where, although it affirmed findings of no discrimination, it ordered 
further corrective action.

49 Brief for Respondents, Brown v. G.8.A., p. 49, n. 28; which 
states that back pay was granted in only 4 per cent of the 985 
agency dispositions on the merits.

50 Letter from Marty Rogers, Special Assistant to the Executive 
Director of EEOC to Eric Schnapper, Esq., November 21, 1975. 
In FY  1975 EEOC obtained $109,669,285 in back pay for 51,216 
employees (see, App. C, p. 91a).



35a

Since a complainant cannot prosecute his complaint on 
behalf of a class, such relief as there is is limited to his 
individual problem. Thus, in a case where discrimination 
against black civilian employees generally at a major in­
stallation was shown, the Air Force granted only very 
limited relief. An appeal was taken to ARB requesting 
that broad class relief of the kind given in private Title 
VII cases be afforded.61 ARB held that it could not give 
relief other than that specified in § 713.271(b).62 There­
fore, the appeal was denied.63 Finally, the third-party 
complaint provision states that the Commission may order 
back pay if it finds discrimination (§ 713.251(c)). Amicus 
has received from the Commission copies of all final third- 
party orders; back pay has never been ordered either for 
an individual or for a class.

A p p en d ix  A

51 The requested relief included class-wide back pay, upgrading 
of blacks to proper seniority levels, appointment of blacks to super­
visory positions, a revision of the rating and supervisory assess­
ment system to eliminate discriminatory factors, co'sts and attor­
neys’ fees.

62 That is, individual relief limited to : retroactive promotion or 
back pay subject to the “but for” rule; priority consideration for 
a promotion; cancellation of an unwarranted personnel or disci­
plinary action; and full opportunity to participate in benefits that 
had been denied him.

58 ARB, September 25, 1975 {In re Howard, et al.). See also, 
e.g., ARB No. 713-74-203 (relief to women generally cannot be 
given even where there is proof of class discrimination) ; ARB, 
May 6, 1975 (In re Williams) (ARB noted complete absence of 
blacks in position in question, but only suggested that the “agency 
might consider the possibility” of instituting an affirmative action 
program); ARB No. 713-74-577 (Complaints Examiner should not 
order class relief in an individual case; see Handbook, pp. 73-74.)



36a

D. Other C.8.C. Procedures
1. C harges oe R eprisal

The regulations (5 C.F.R. § 713.261-713.262) provide 
two procedures to make a charge that a complainant has 
suffered reprisal because he has filed an EEC complaint. 
He can file a complaint of reprisal making the allegation 
and have it processed under the procedures described 
above (% 713.262(a)), or he can file a charge of reprisal 
under the provisions of § 713.262(b). This section purports 
to furnish an expedited procedure by which immediate re­
lief can be obtained if there is a reprisal. The charge 
must be filed with the agency head or EEO officer within 
15 days after the act of reprisal. Within 15 days the 
agency is to send the CSC a copy of the charge and a 
report of the action taken in response. If the agency has 
not acted within 15 days, or if adequate corrective action 
has not been taken, the complainant may submit a state­
ment to the CSC, which can make the agency take appro­
priate action.

The effectiveness of this procedure is yet to be demon­
strated. The CSC (through the office of the Director of 
Equal Employment Opportunity) has taken the position 
that the procedure is not intended to allow interference 
with normal personnel actions. This translates to mean 
that if, e.g., an employee is fired after filing a complaint, 
the CSC will take the agency’s word that the firing was 
done in the normal course of business, will not interfere, 
and will require the employee to pursue the regular ad­
verse action appeal procedures.

2. A dverse A ction  A ppeals

If a federal employee has been fired, suspended, or has 
had some other adverse action taken against him, he is

A p p en d ix  A



A p p en d ix  A

entitled to an appeal under 5 C.F.R. Part 772. The appeal 
is to the Federal Employees Appeals Agency at the re­
gional CSC office. There is then a right to petition the 
Appeals Review Board of the CSC, which has discretion 
as to whether or not it will hear the case.54

Section 772.306 provides that if an employee makes an 
allegation that an adverse action was based in whole or in 
part on discrimination, he shall be given the option either 
to have that complaint processed under Part 713, or to 
have the allegation adjudicated by the FEAA as part of 
the appeals process. In either case, an investigation is 
held by the agency pursuant to 5 C.F.R. 713.216, but the 
initial decision on the discrimination claim is made either 
by the local agency or by the FEAA appeals examiner, 
depending on which route is taken. If the FEAA route 
is taken one of the procedural steps is shortcutted. There 
is still a hearing on the discrimination complaint, but 
the hearing occurs without a local agency proposed deci­
sion (he., step 5 on the flow chart is omitted), and there is 
no final decision by the national agency head.

There are two problems with the FEAA option. First, 
if the adverse action is reversed because the agency failed 
to comply with procedural requirements (a common re­
sult), the discrimination claim will not be reached. Second, 
the regulations do not provide that a complainant electing 
to proceed under Part 772 will be told of his right to sue

54 The system was extensively revised in July, 1974. Prior to the 
revision, an employee had the option of a hearing by the agency, 
with review by the C.S.C., or a hearing by a C.S.C. appeals ex­
aminer, with review by the C.S.C. This option has been eliminated, 
and a one-step review procedure substituted. Part 771, provides 
procedures by which an employee may present any grievance (i.e., 
“any matter of concern or dissatisfaction” ), to an agency for reso­
lution, and Section 771.109 provides that any allegation of discrim­
ination made in connection with a grievance shall be processed 
under Part 713. 5 C.F.R. 713.219 was appropriately amended.



38a

under Title VII, and in fact lie is not even if the merits 
of his EEO claim are reached.

3. P robationary E mployees

If a non-tenured federal employee is separated at the 
end of his probationary period for “ failure to make satis­
factory progress in training,” he can appeal on the ground 
of discrimination under Part 315 of 5 C.F.E., or file a 713 
complaint.56 If he goes the 315 route, the appeal is to the 
regional FEAA of the CSC. The FEAA requires the local 
agency head to conduct an investigation pursuant to Part 
713 and send the investigative report to the FEAA. The 
employee is given an opportunity to review and comment 
upon the investigative report within 10 days, hut there is 
no hearing. After the FEAA decision, there is an appeal 
to CSC/AEB pursuant to 5 C.F.R. 772.310. Neither FEAA 
nor CSC/AEB informs the employee of his right to sue 
under Title VII.66

4. C hallenges to J ob Q u alifications

There are three different sources for job qualifications 
such as tests, educational requirements, etc., that may give 
rise to discrimination charges:

1. The Agency;
2. The CSC (e.g., CSC examinations);
3. Statute (e.g., Veterans Preference)

65 The only other grounds for appeal are that the termination 
was based on partisan political reasons, marital status, or physical 
handicap.

66 See, e.g., ARB, October 31, 1975 (In re Harris). The Harris 
case again demonstrates the orientation of the process towards ordi­
nary personnel issues, and the limited nature of the inquiry. ARB 
held that it could not “review . . . the sufficiency of the reasons for 
termination. . . . ” Thus, it failed to inquire whether the reason 
given for the dismissal of the complainant were pretextual (within 
the meaning of McDonnell Douglas v. Green), and essentially ac­
cepted those reasons at face value.

A p p en d ix  A



39a

If a complainant challenges an agency imposed job quali­
fication, he simply files a complaint under Part 713 and it 
is processed accordingly.

If he seeks to challenge a CSC imposed requirement, he 
cannot file under Part 713, since an agency has no power 
to alter a CSC rule. He must file an appeal under 5 C.F.R. 
Part 300, especially §§ 300.102-104.”  The appeal must be 
filed within 15 days of the date of application of the em­
ployment or the date the complainant became aware of the 
results of the application of the practice. Thus, if an

” 5 C.F.R. § 300.103(b) and (c).
(b) Relevance. (1) There shall be a rational relationship be­
tween performance in the position to be filled (or in the target 
position in the case of an entry position) and the employment 
practice used. The demonstration of rational relationship shall 
include a showing that the employment practice was profes­
sionally developed. A  minimum educational requirement may 
not be established except as authorized under section 3308 of 
title 5, United States Code.

(2) In the case of an entry position the required relevance 
may be based upon the target position when—

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

(ii) New employees, within 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 employment prac­
tice shall not discriminate on the basis of race, eoior, religion, 
sex, national origin, partisan political affiliation, or other non­
merit factor. This requirement is generally met when an em­
ployment practice is relevant to performance in the position 
to be filled (or in the target position in the case of an entry 
position).

5 C.F.R. §300.104:
(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 p p en d ix  A



40a

employee goes to an EEO counselor within the thirty days 
provided by Part 713 on the assumption that that is the 
proper procedure, he will be too late to proceed under 
Part 300. See text at n. 26, supra. The appeal must set 
forth the basis of the complainant’s belief that the employ­
ment practice discriminates against him. The regulations 
do not provide for an investigation; however, the appeal 
is processed under the provisions of Part 772, Subpart D 
and therefore the Appeals Review Board will provide the 
option of having the case decided on the record or having 
a hearing before a member of the Board or an appeals 
officer (5 C.F.R. §772.403).

The third category of job qualifications are those set by 
statute. The CSC has held that challenges to such qualifi­
cations are not within the purview of the regulations, since 
the CSC has no power to alter them.

A p p en d ix  A

a basic requirement in section 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 a violation occurred, and shall 
be filed with the Board of Appeals and Review, U.S. Civil 
Service Commission, Washington, D.C. 20415, no later than 15 
days from the date the employment 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 subparagraph for good cause 
shown by the candidate.

(3) An appeal shall be processed in accordance with sub­
part D of part 772 of this chapter.

* * *
(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 
discriminates against him on the basis of race, color, religion, 
sex, or national origin. The complaint shall be filed and pro­
cessed in accordance with subpart B of Part 713 of this chapter.



APPENDIX B

Federal Personnel Manual Letter No. 713-17



41a

______________________________________ —  ADVANCE COPY
PUBLISHED IN ADVANCE OF INCORPORATION

IN FPM CHAPTER 71I & F H 4 SUDO. 990-1 FPM  LTR . NO. T13-17
RETAIN UNTIL SUPERSEDED.

UNITED STATES CIVIL SERVICE COMMISSION

FEDERAL PERSONNEL MANUAL SYSTEM

LETTER
Washington, D,C, 201+15

PPM LETTEK NO. 713-17 November 3, 1972

SUBJECT: Revisions in Equal Opportunity Regulations (Part 713)

Heads o f Departments and Independent Establishments:

The purpose of this Letter is  to provide a summary of the major revisions 
to the Equal Opportunity regulations (part 713) and to transmit the revised 
regulations as well as to prescribe certain actions to be taken by agencies 
in connection with these changes.

The regulatory changes have been made to implement the Equal Employment 
Opportunity Act of 1972 (P. L. 92-26l), and to strengthen the system of 
discrimination complaint processing. They are designed to assure employees 
and applicants of their right to fa ir  and fast adjudication of discrimina­
tion complaints and to assure that agencies move affirmatively in accordance 
with the law in effecting equal employment opportunity for  a ll  persons.

In accordance with the requirements of P. L. 92-261 regarding consultation 
with interested groups, the revised regulations were adopted after consul­
tation with representatives of c iv il rights organizations, women's groups, 
labor organizations and Federal agencies.

SIGNIFICANT CHANGES ADOFTED

The following is  a summary of the major changes in the regulations:

o To emphasize the affirmative aspects of agency equal employment 
opportunity obligations, the requirements for submission of 
national and regional EEO plans and the responsibility of agency 
heads to assure that principal and operating EEO o ff ic ia ls  meet 
'qualification requirements are stated. (Sections 713-203; 
713.203(a); and 713.204(d)(1))

o Agencies are required to designate a Federal Women's Program
Coordinator with responsibility for advising the Director of EEO 
on matters affecting the employment and advancement of women. 
(Section 713.204(c))

INQUIRIES: Office of Federal Equal Employment Opportunity (Code 101-27642
or 24420, or 632-7642 or 4420 

CSC CODE 713, Equal Employment Opportunity

DISTRIBUTION: FIM (advan ce e d i t io n  lim ite d )



42a

FPM Ltr. No. 713-17 (2)

o Agencies are required to publicize and post permanently on
bu lle tin  boards the names and addresses o f various EEO o f f ic ia ls .  
(Section 713-204 (f))

o Agencies are required to make reasonable accommodation to the 
relig iou s needs o f applicants and employees (including those who 
observe the Sabbath on other than Sunday) when the accommodation 
can be made by a substitution of a qu a lified  employee, a grant 
o f leave, or other means without undue hardship on the business 
of the agency. The agency has an affirm ative duty to attempt to 
accommodate and i f  a complaint arises in th is connection, the 
agency has the duty to demonstrate it s  in a b ility  to accommodate. 
(Section 713-204(g))

o The time lim it fo r  contacting an EEO Counselor is  extended from 
15 to  30 calendar days from the date of the alleged discriminatory 
act (Section 713.214(a ) ( l )  ( i ) ) and agencies are required to assure 
that fu l l  cooperation is  provided the counselor by a l l  employees 
in the performance of his duties (Section 713.213(b))

o In addition to the EEO O fficer , the o f f ic ia l s  designated to
receive a complaint include the head of the agency, the Director 
of EEO, the head o f a f i e ld  establishment, a Federal Women's 
Program Coordinator and any other o f f ic ia l s  designated fo r  this 
purpose by the agency. (Section 713.214(a)(2))

o Counselors are prohibited from attempting in any way to restrain 
a person from f i l in g  a complaint o f discrim ination. Counselors 
may not advise a person not to  f i l e  a complaint. (Section 
713.213.(a ))

o The time lim it fo r  completion o f counseling has been converted 
from 15 work days to 21 calendar days fo r  consistency with 
other time lim its which are stated in calendar days. (Section 
713.213(a))

o I f  the fin a l counseling interview is  not completed in 21 days, 
the counselor must on the 21st day n otify  the person counseled of 
his right to f i l e  a complaint at any time thereafter and up to 
15 days a fter the f in a l interview has been conducted. (Section 
713.213(a))

o I f  a fter investigation o f the complaint an adjustment is  not ar­
rived a t, the complainant is  allowed 15 days instead of seven from 
the date o f receipt of the proposed d isposition  to request a 
hearing. The complainant’ s request must be in w riting. (Section 
713.217(b))

o When there is  a finding of discrim ination, agencies must take 
remedial action, with or without back pay, as appropriate, and 
must review the case to determine i f  d iscip linary action should 
be taken and record the basis fo r  the decision to take or not to 
take discip linary  action. (Section 713.221(c))



43a

FPM. L tr .  No. 713-17 (3>

o Where an action otherwise appealable to the Commission involves 
a discrimination issue, the agency must inform the employee o f his 
right to e lect to proceed under this part.. (Section 713-236)

o A complaint is  deemed f i le d  (fo r  the purpose o f determining the 
running o f time lim its) on the date i t  is  delivered to an agency 
o f f i c ia l  designated to receive complaint or, i f  mailed to such 
o f f ic ia l s ,  on the postmark date. (Section 713.214(a)(3))

o Agencies are required to acknowledge receipt o f complaints in 
writing and in the acknowledgement notice advise the complainant 
of a l l  his rights, including appeal to the Commission and right 
to f i l e  a c i v i l  action . (Section 713-2 l4 (a )(3 ))

o Expedited procedures are provided fo r  action on complaints of 
coercion or reprisa l by a complainant, his representative, or 
by a witness. A llegations may be handled during the hearing 
on the orig inal complaint, or, i f  a charge arises before a hear­
ing, agencies w ill be required to investigate and report to the 
Commission on actions taken on the charge within 15 days of 
receipt o f the charge. (Section 713-262)

o Agencies are required to furnish the investigative f i l e  promptly 
to the complainant and provide him an opportunity to discuss the 
f i l e  with appropriate o f f i c ia l s .  (Section 713.217(a))

o Complaints must be resolved within 180 days of f i l in g .  Agencies 
are required to report monthly to the Commission on pending com­
plaints. I f  a decision on the complaint has not been made within 
75 days o f f i l in g  and the Commission has not been requested to 
supply a complaints examiner within that period of time, the agency 
w ill be required, to take whatever measures the Commission considers 
appropriate to expedite processing or the Commission may assume 
responsib ility  fo r  processing the complaint, including making the 
investigation (on a reimbursable basis) and requiring the agency 
to propose a d isposition  to the complainant within 15 days of 
receipt of the investigator’ s report. (Section 713.220(e))

o A recommendation fo r  a finding o f discrimination by a Complaints 
Examiner w ill become a f in a l decision o f discrimination binding 
on the agency 30 days a fter the recommendation is  made, where 
the agency has fa ile d  to issue a fin a l decision within l 80 days 
o f f i l in g  of the complaint. (Section 713.220(d))

o Remedial action on behalf of applicants or employees in cases 
where there is  a finding o f discrimination must be taken by the 
agency. I f  an applicant has been denied employment because of



44a

FPM L tr .  No. 713-17 1A )

d iscr im in a tion , the agency sh a ll o f f e r  him employment 3nd the 
t i t l e  and grade denied him. Appointment sh a ll be re tro a ctiv e  to 
the date the ap p lican t would have been h ired . Back pay sh a ll be 
awarded from the beginning o f the re tro a c tiv e  p er iod . Both the 
appointment and the back pay may not extend from a date e a r lie r  
than 2 years p r io r  to  the date the complaint was in i t i a l l y  f i l e d .

Sim ilar a ction  (in clu d in g  back pay) sh a ll be taken when i t  is  
determined that an employee was d iscrim inated  against and i t  is  
reasonable to  b e lie v e  that he was denied a prom otion, or  other 
employment b e n e f it .  Back pay l i a b i l i t y  where there is  a re tro ­
a c t iv e  promotion is  lim ited  to  two years p r io r  to  the date the 
complaint was f i l e d  but in  any event not to  exceed the date the 
complainant would have been promoted.

Findings o f  d iscrim ination  in volv in g  awards o f  back pay and 
re tro a c tiv e  appointments or  promotions may be made by the agency 
or  by the Commission on th e ir  own motion and not based on com­
p la in ts . In such event, the p eriod  o f  r e t r o a c t iv ity  may extend 
up to  two years p r io r  to  the date the fin d in g  o f  d iscrim ination  
was recorded, but in  the case o f  a re tro a ctiv e  promotion not to  
exceed the date the employee would have been promoted absent the 
d iscr im in a tion .

Where there is  a fin d in g  o f  d iscrim in ation  and i t  i s  not c lea r  
that except f o r  the d iscrim ination  the complainant would have 
been promoted, he must be given con sidera tion  f o r  promotion to  
a p o s it io n  f o r  which he is  q u a lifie d  before  con sideration  is  
given to  oth er candidates and i f  not s e le c te d , the agency must 
record  the reasons fo r  such n on se lection . S im ilar p r io r ity  
con sideration  must be given to  an app lican t where there is  f in d ­
ing o f d iscrim ination  but no reasonable ce rta in ty  that the com­
plainant would have been h ired . (S ection  713-271)

o Complainants must be n o t i f ie d  o f  th e ir  r igh ts  under the complaint 
procedures and the time lim its  a p p lica b le  th ereto  in clud ing  the 
r igh t to  f i l e  a c i v i l  a ction  in an appropriate U.S. D is t r ic t  
Court. (S ection  713-281)

N otice o f  r ig h t to  f i l e  a complaint must be provided by the 
Counselor; the re ce ip t  o f  the com plaint must be acknowledged by 
the D irector  o f  EEO or  EEO O ff ic e r  and the complainant advised 
o f  h is adm in istrative r igh ts  and r igh t to  f i l e  a c i v i l  a c tio n ; 
and the d e c is io n  le t t e r  on a com plaint must inform the com­
plainant o f  h is  r ig h t to  appeal to  the Commission and to  f i l e  a 
c i v i l  a ction  in an appropriate U.S. D is t r ic t  Court. (Sections 
7 1 3 .21 3 (a ); 7 1 3 -2 lM a )(3 ) ;  713-215; 71 3 . 217( c ) ;  71 3 .22 0 (d ); and 
71 3 .22 1 (d ))



45a

F?M L t r . No. 713-17 (5)

o Complaints by th ird  parties or organizations must he investigated 
by the agency and the agency must prepare a f i l e  re flectin g  the 
results of the investigation and make the f i l e  available to the 
complaining parties along with it s  decision on the complaint.
Within 30 days, the complaining party may request that the decision 
be reviewed by the Commission which may require additional investi­
gation by the agency or make it s  own investigation and order such 
corrective action, including back pay, as i t  deems appropriate.
(Section 71 3 .251)

o O ffic ia ls  conducting discrimination complaint hearings are 
referred to  as "Complaint Examiners" in lieu  o f "Appeal 
Examiners". In addition to present authority, they are also 
authorized to require the appearance o f an employee o f any 
Federal agency i f  he has information pertinent to the complaint 
under consideration. (Section 713.218(c))

EFFECTIVE DATES

With the exception of section 713-271, the regulation changes become 
e ffe ctiv e  December 1, 1972. Section 713-271 dealing with remedial action, 
including back pay, is  retroactive to March 2b, 1972, the e ffe ctiv e  date 
of enactment o f The Equal Employment Opportunity Act o f 1972.

ACTIONS REQUIRED BY AGENCIES

Agencies must take certain actions p rior to the e ffe c tiv e  date of^the 
regulations to assure employees o f their rights under the regulations:

1. A ll persons responsible fo r  the administration o f the equal 
employment opportunity program must be advised as quickly as 
possible of the changes in the regulations and the way in 
which uhe changes a ffe c t  their resp on sib ilit ies . Directors 
o f Equal Bnployment Opportunity, Equal Bnployment Opportunity 
O fficers , Federal Women Coordinators and other o f f ic ia ls  have 
new or changed resp on sib ilities  as explained in the regulation 
changes noted above and they must be informed o f these responsi­
b i l i t i e s .

2. A ll f in a l decisions made on or a fter March 2b, 1972, which 
involved a finding of discrimination must be reviewed to 
determine i f  back pay or retroactive promotion or appointment
is  in order ; i f  so, such action should be taken. Section 713-271 
o f the regulations should be cited  as authority fo r  the action.

3 . O ffic ia ls  authorized to receive complaints must be advised to 
forward complaints immediately upon receipt to the Director of 
Equal Employment Opportunity or an Equal Bnployment Opportunity 
O ffic ia l so there w ill be no delay in undertaking processing of 
complaint. The Director o f Equal Bnployment Opportunity or 
appropriate Equal Bnployment Opportunity O ffic ia l w ill order 
the investigation.



46a

FPM L t r .  No. 713- 17 ( 6 )

if-. Take a l l  fea sib le  steps to  publicize the follow ing information:

o The names and addresses o f the Director o f Equal 
Employment Opportunity, the Federal Women’ s Program 
Coordinators, and the appropriate EEO O fficer  and 
Counselors.

o The time requirements fo r  contacting an EEO Counselor.

This information must be posted permanently on o f f i c ia l  
bu lle tin  boards but other means, such as employee 
bu lletin s and le t te r s , should be used to  make sure 
employees know who to contact in connection with a 
complaint o f discrimination and the time lim its fo r  
contacting a counselor.

5- Prepare required notices to complainants and d istribute them to 
appropriate o f f i c ia l s  fo r  their use in discrimination complaint 
processing. (See samples attached.)

6. Undertake any training programs necessary to acquaint counselors 
and other EEO o f f ic ia ls  o f th eir  resp on sib ilit ies  under the 
revised regulations. Commission training programs in Washington 
and in the f i e ld  w ill be available to assist agencies in this 
regard.

7. Review the agency's entire complaint processing system and make 
necessary changes to assure that a l l  complainants w ill receive a 
fin a l decision within 180 days of f i l in g .

8. Take specia l measures immediately to make a fin a l agency decision 
in a l l  discrimination complaint cases pending over 180 days.

By d irection  of the Commission:

Attachment
1. Regulations 
2-6 Sample notices

Bernard Rosen 
Executive Director



47a

Attachment. 1 to  FPM Ltr .  713-17

Part 713 -- EQUAL OPPORTUNITY

(Present regulations are shown in right-hand column -- deleted material 
is bracketed; added material is shown in left-hand column)

Review

SUBPART A. (RESERVED)

SUBPART B. EQUAL OPPORTUNITY WITHOUT 
REGARD TO RACE, COLOR, RELIGION, SEX, 

OR NATIONAL ORIGIN

General Provisions
S*c.
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

Agency Regulation* for Processing 
Complaints of Discrimination

713.211 General
713.212 Coverage
713.213 Precomplaint processing
713.214 Filing and presentation of complaint
713.215 Rejection or cancellation of complaint
713.216 Investigation
713.217 Adjustment of complaint and offer of hearing
713.218 Hearing
713.219 Relationship to other agency appellate pro­

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

Appeal to the Commission

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

Report* to the Commmmsm

713.241 Reports to the Commission,?.
on complaints

Third-Party Allegations
713.251 Third-party allegations of discrimination 

Freedom from Reprisal or Interference
713.261 Freedom from reprisal
713.262 Review of allegations of reprisal

713.271 Remedial actions
Right To File a Civil Action

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



48a

Attachment 1 to FPM Lir. 713-1-7 (J)

St'BP ART C. MINORITY GROUP STATI STM'S 
SYSTEM

713.301 Applicability
713.302 Agency systems

SUBPART D. EQt'AL OPPORTUNITY WITHOUT 
REGARD TO POLITICS, MARITAL STATUS, OR 

PHYSICAL HANDICAP
713.401 Equal opportunity without regard to politics, 

marital status, or physical handicap
A u t h o r it y : The provisions of this part 713 issued

______________________________________ under 5 U.S.C. 1301, 3301, 3302, 7151-7154, 730E/
a, e ,  , - i n . J  E.O. 10577; 3 CFR, 1954^1958 Comp., p. 218, E.O.

, BO s c a t .  I l l ,  11222,3 CFR 1964-1965 Comp., p. 306, E.O. 11478,
3 CFR 1969 Comp.)

SUBPART A. [RESERVED] 
SUBPART B. EQUAL OPPORTUNITY 
W ITHOUT REGARD TO  RACE. COLOR, 
RELIGION, SEX, OR NATIONAL ORIGIN

General Provisions

Sec. 713.201 Purpose and applicability, (a) 
Purpose. This subpart sets forth the regulations 
under which an agency shall establish a con­
tinuing affirmative program for equal oppor­
tunity in employment and personnel operations 
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 dissatisfied with an

___________agency’s /processing of? his complaint of dis-
d e c i s i o n  o r  o t h e r  f i n a l  a c t i o n  on crimination on grounds of race, color, religion,

sex, or national origin.
(b) Applicability. (1) This subpart applies (i) 

to military department as defined in section 
102 of title 5, United States Code, executive 
agencies (other than the General Accounting 
Office) as defined in section 105 of title 5, United 
States Code, the United States Postal Serv­
ice, and the Postal Rate C o m m is s io n ,a n d  
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 of the United 
States.



49a

Sec. 713.202 General policy. It is the polic) 
of the Government of the United States and 
of the government of the District of Columbia 
to provide equal opportunity in employment 
for all persons, to prohibit discrimination m 
employment because of race, color, religion, 
sex, or national origin, and to promote the full 
realization of equal employment opportunity 
through & continuing affirmative program in 
each agency.

Sec. 713.203 Agency propam . The head 
of each agency shall exercise personal leadership 
in establishing, maintaining, and carrying out 
a continuing affirmative program designed to 
promote equal opportunity in every aspect of 
agency personnel policy and practice in the 
employment, development, advancement, and 
treatment of employees. Under the terms of its

Attachment 1 to  FPM Ltr .  713-17 (3 )

and assure that the principal and 
operating officials responsible for 
carrying out the equal employment 
opportunity program meet established 
qualifications requirements

program, an agency shalljr to the maximum 
extent possible}:

(a) Provide sufficient resources to administer 
its equal employment opportunity program in a 
positive and effective m anner

(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 
disciplinary action against employees who 
engage in discriminatory practices;

(c) Utilize to the fullest extent the present 
skills of employees 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, \eork-study pro­
grams, and other training measures so that they 
may perform at their highest potential and 
advance in accordance with their abilities;

(e) Communicate the agency’s equal em­
ployment opportunity policy and program and
its employment needs to all sources of job 
candidates without regard to race, color, re­
ligion, sex, or national origin, and solicit their 
recruitment assistance on a continuing basis;



50a

Attachment 1 to  FPM L tr .  713-17 (A)

labor

as many _____ ________________

, Federal- Women' s Program ______
Coordinators, and other persons

(f) Participate at the community level with 
other employers, with schools and universities, 
and with other public and private groups in 
cooperative action to improve employment 
opportunities and community conditions that 
affect employability;

(g) Review, evaluate, and control mana­
gerial and supervisory performance in such a 
manner as to insure a continuing affirmative 
application and vigorous enforcement of the 
policy of equal opportunity, and provide 
orientation, training, and advice to managers 
and supervisors to assure their understanding 
and implementation of the equal employment 
opportunity policy and program;

(hi Provide recognition to employees, super­
visors, managers, and units demonstrating 
superior accomplishment in equal employment 
opportunity;

(i) Inform its employees and recognized 
_£mploye3organizations of the affirmative equal

employment opportunity policy and program 
and enlist their cooperation;

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

(k) Provide for the prompt, fair, and impar­
tial consideration and disposition of complaints 
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.

Sec. 713.204 Implementation o f agency pro­
gram, To implement the program established 
under this subpart, an agency shall:

(a) Develop the plans, procedures, and 
regulations 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 section 713,202 and its

program established in accordance with section 
713.203;

(c) Designate a Director of Equal Employ- 
ment Opportunity/Zand^uchl Equal Employ- 
ment Opportunity Officer^fandj Equal Employ-

_ ment Opportunity Counselors^, as may be 
necessary, to assist the head of the agency to 
carry out the functions described in this sub-



51a

Attachment 1 to FPM Ltr. 713-17 (3)

and the qualifications of the 
persons so designated

national and regional equal 
employment opportunity

complaints

subject to section 713.251;

part in ail organizational units and locations 
of the agency. The functioning jof the Director 
of Equal Employment Opportunity, the Equal 
Employment Opportunity Officer, and the 
Equal Employment Opportunity Counseled 
shall be subject to review by the Commission. 
The Director of Equal Employment Oppor­
tunity shall be under the immediate super­
vision of the head of his agency, and shall be 
given the authority necessary to enable him to 
carry out his responsibilities under the regula­
tions 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^pians, procedures, 
regulations^ reports, an3 other matters per­
taining to the policy in section 713.202 and the 
agency program required to be established 
under section 713.203;

(2) Evaluating from time to time the 
sufficiency of the total agency program for 
equal employment opportunity and reporting 
thereon to the head of the agency with recom­
mendations as to any improvement or correction 
needed, including remedial or disciplinary action 
with respect to managerial or supervisory em­
ployees who have failed in their responsibilities;

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

(4) Providing for counseling, by an Equal 
Employment Opportunity Counselor, of any 
aggrieved employee or applicant for employ­
ment who believes that he has been discrimi­
nated 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 applicant before a com­
plaint of discrimination may be filed under 
section 713.214;

(5) Providing for the receipt and invest iga- 
tion of individual from pi hints! of discrimination 
in personnel matters within tne agency, subject 
to sections 713.211 through 713.222;

(6) Providing for the receipt, investigation, 
and disposition of general allegations by organi­
zations or other third parties of discrimination 
in personnel matters within the agency [whid', 
are unrelated to an individudal complaint of 
discrimination subject to sections 713.211 
through 713.222,,under procedures determined 
by the agency to be appropriate, with notifica­
tion of decision to the party submitting the 
allegation}



52a

Attachment i to FPM Ltr. 713-17 (6 )

(e) Insure that equal oppor­
tunity for women is an integral part 
of the agency’s overall program by 
assigning to the Federal Women's 
Program Coordinators the function of 
advising the Director of Equal 
Employment Opportunity on matters 
affecting the employment and advance 
ment of women;

(7) When authorized by the head of the 
agency, making the decision under section 
713.221 for the head of the agency on complaints 
of discrimination and ordering such corrective 
measures as he may consider necessary, in­
cluding the recommendation for such disciplin­
ary action as is warranted by the circumstances 
when an employee has been found to have en­
gaged in a discriminatory practice; and

(8) When not authorized to make the de­
cision for the head of the agency on complaints 
of discrimination, reviewing, at his discretion, 
the record on any complaint before the de­
cision is made under section 713.221 and making 
such recommendations to the head of the agency 
or his designee as he considers desirable, in­
cluding the recommendation for such disciplin­
ary action a9 is warranted by the circumstances 
when an employee is found to have engaged in 
a discriminatory practice;

(f) Publicize to its ____
employees and post permanently 
on official bulletin boards:

(1) The names and addresses of 
the Director of Equal Employment 
Opportunity and the Federal Women's 
Program Coordinators;

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

__£e) Publicize to its employees:
(1) The name and address of the Director of 

Equal Employment Opportunity;
(2) Where appropriate, the name and ad­

dress of an Equal Opportunity Officer; andj

(3) The name and address of the Equal 
Employment Opportunity Counselor and the 
organizational units he serves; his availability 
to counsel an employee or|qualifiedj applicant 
for employment who believes that he has been 
discriminated against because of race, color, 
religion, sex, or national origin; and the re­
quirement that an employee or [qualified] ap­
plicant for employment must consult the Coun­
selor as provided by section 713.213 about his 
allegation of discrimination because of race, 
color, religion, sex, or national origin before a 
complaint as provided by section 713.214 may 
be filed; a

and



53a

Attachment 1 to FPM Ltr .  713-17 (7 )

(4) Time limits for contact---------^
ing an Equal Employment Opportunity Counselor;

( g )  . __________________________________  Make reasonable accommodations to
the religious needs o f applicants and employees, 
including the needs of those who observe the 
Sabbath on other than Sunday, when those

(b y  s u b s t i t u t i o n  o f  a n o th e r  ____________________accommodations can be made ^ by a grant of
q u a l i f i e d  em p lo y e e , leave, a change o f a tour of duty, or other
h a rd sh ip  on .— _______ ______________ ______________ means) without undue [interference w itij the

I f  an a g en cy  can n ot accom m odate a n ________ business of the agencjfrjo r  with the rights of
em ployee o r  a p p l i c a n t ,  i t  has a d u ty  in  a other applicants or employees; an j*» 
com p la in t  a r i s in g  under t h i s  su b p a rt t o  [(g))M ake readily available to its employees a
d em on stra te  i t s  i n a b i l i t y  t o  do s o ;  [ copy of its regulations issued to carry out its

( h ) — --------------------------------- ---------------------- 1 program of equal employment opportunity^/
; and ______________________________ J

(i) Submit annually for the ^
review and approval 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 employees 
to advance so as to perform at their highest 
potential;

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

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

Sec. 713.205 C om m iss ion  r e v ie w  and 
evaluation of agency program operations. The
Commission shall review and evaluate agency 
program operations periodically, obtain such 
reports as it deems necessary, and report to the 
President as appropriate on overall progress.
When it finds that an agency's program opera­
tions are not in conform ity with the policy set 
forth in section 713.202 and the regulations in 
this subpart, the Commission shall require im­
provement or corrective action to bring the 
agency’s program operations into conform­
ity with this policy and the regulations in this

The head of each department and --- subpart
agency shall comply with the rules, 
regulations, orders, and instructions 
issued by the Commission.



54a

Attachment 1 to FPM Ltr. 713-17 (S)

with that agency

(Section 713.251 applies to general 
allegations by organizations or other 
third parties. )

issues in

issues in

Agency Regulations for Processing 
Complaints of Discrimination

Sec. 713.211 General. An agency shall ensure 
that its regulations governing the processing of 
complaints of discrimination on grounds of race, 
color, religion, sex, or national origin comply 
with the pr nciples and requirements in sections 
713.212 through 713.222.

Sec. 713.212 Coverage, (a) The agency shall 
provide in its regulations for the acceptance of 
a complaint from any aggrieved employee or 
applicant for emplovment^vho believes (hut. he 
has been discriminated against 1 eoause 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 of discrimination by an or­
ganization or other third party which is unre­
lated to an individual complaint of discrimina- 

jtion^subject to sections 713.211 through 713.222.
Sec. 713.213 Precomplaint processing, (a) 

An agency shall require that an aggrieved person 
who believes that he has been discriminated 
against because of race, color, religion, sex, or 
national origin consult with an Equal Employ­
ment Opportunity Counselor when he wishes 
to resolve the matter. The agency shall require 
the Equal Employment Opportunity Counselor 
to make whatever inquiry he believes necessary 
into the matter; to seek a solution of the matter 
on an informal basis; to counsel the aggrieved 
person concerning the/m erits of] the matter; to 
keep a record of his counseling activities so as 
to brief, periodically, the Equal Employment 
Opportunity Officer on those activities; and. 
when advised that a complaint of discrimination 
has been accepted from an aggrieved person, 
to submit a written report to the Equal Em­
ployment Opportunity Officer, with a copy to 
the aggrieved person, summarizing his actions 
and advice both to the agency and the aggrieved 
person concerning the /m erits qfj the matter. 
The Equal Employment Opportunity Counselor 
shall, insofar as is practicable, conduct his final 
interview with the aggrieved person not later 
than ^5 workdaysjafter the date on which the21 calendar days



55a

Attachment 1 to FPM Ltr. 713-17 (9)
If the final interview is not concluded- 
yithin 21 days and the matter has not 
reviously been resolved to the satis­
faction of the aggrieved person, the 
aggrieved person shall be informed in 
writing at that time of his right to 
file a complaint of discrimination.
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 restrain the aggrieved person 
from filing a complaint.

(b) The agency snail assure that full — ~—  
cooperation is provided by all employees 
to the Equal Employment Opportunity Counselor 
in the performance of his duties under this 
section.

(c)

and be signed by the complainant. 
The complaint may be delivered in 
person or submitted by mail.

30

30

or his representative 
an appropriate official

(2) The appropriate officials to 
receive complaints are the head of the 
agency, the agency's Director of Equal 
Employment Opportunity, the head of a 
field installation, an Equal Employment 
Opportunity Officer, a Federal Women’s 
Program Coordinator, and such other 
officials as the agency may designate 
for that purpose. Upon receipt of the 
complaint, the agency official shall 
transmit it to the Director of Equal 
Employment Opportunity or appropriate 
qual Employment Opportunity Officer 
who shall acknowledge its receipt in 
accordance with subparagraph (3) of 
this paragraph.

matter was called to his attention by the 
aggrieved person, f f he Equal Employment 
Opportunity Counselor shall advise the ag­
grieved person in the final interview of his right 
to file a complaint of discrimination with the 
organization’s Equal Employment Opportunity 
Officer if the matter has not been resolved to his 
satisfaction and of the time limits governing the 
acceptance of a complaint in section*713.214j 
The Equal Employment Opportunity Counselor 
shall not reveal the identity of an aggrieved 
person who has come to him for consultation, 
except when authorized to do so by the ag­
grieved person, until the agency has accepted a 
complaint of discrimination from him.

___j£b)} The Equal Employment Opportunity
Counselor shall be free from restraint, inter­
ference, coercion, discrimination, or reprisal in 
connection with the performance of his duties 
under this section.

Sec. 713.214 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 representativef]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 Opportunity 
Counselor the matter causing him to 
believe he had been discriminated against 
within [is] calendar days of the date of 
that matter, or, if a personnel action, 

_____ within [l5l calendar days of its effective
date Ĵand

(ii) the complainant+submitted bis written
complaint to ft he Equal Employment 
Opportunity Officer) within 15 calendar 
days of the date of his final interview 
with the Equal Employment Opportunity 
Counselor.

— >



56a

Attachment 1 to FPM Ltr. 713-17 (10)

(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 com­
plainant or his representative in writing 
receipt of the complaint and advise the 
complainant in writing of all his adminis­
trative rights and of his right to file a 
civil action as set forth in section 713.281, 
including the time limits imposed on the 
exercise of these rights.

(A)

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 section 
713.212 or which set forth identical 
matters as contained in a previous 
complaint filed by the same complainant 
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.

and of his right to file a civil action 
as described in section 713.281.

I___________

ft2)j 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 by circumstances beyond his 
control from submitting the matter within the 
time limits, or (ii) for other reasons considered 
sufficient by the agency.

(b) Presentation oj complaint. At any stage 
in the presentation of a complaint, includin 
the counseling stage under section 713.213. tlu 
complainantfshall be free from restraint, inter­
ference, coercion, discrimination, or reprisal nndj 
shall have the right to he accompanied, repre­
sented, and advised by a representative of his 
own choosing. If the complainant is an employee 
of the agency, he shall have a reasonable amount 
of official time to present his complaint if be is 
otherwise in an active duty status. If the com­
plainant is an employee of the agency and he 
designates another employee of the agency as 
his representative, the representative shall (be 
free from restraint, interference, coercion, dis­
crimination, or reprisal, and shaljfhave a reason­
able amount of official time, if he is otherwise in 
an active duty status, to present the complaint.

Sec. 713.215 Rejection or cancellation of 
complaint. {When the head of the agency, or 

■”* his designee, decides to reject a complaint be­
cause it was not timely filed or because it is 
not within the purview of section 713.212 or to 
cancel a complaint because of a failure of the 
complainant to prosecute the complaint or be­
cause of a separation of the complainant which 
is not related to his complaint, he shall transmit 
the decision by letter to the complainant ana 
his representative!] •♦The decision letter shall 
inform the complainant of his right to appeal 
the decision of the agoney to the Commission 
and of the time limit within which the appeal 
may be submittodffii



57a

Attachment 1 to FPM Ltr. 713-17 (11)

Sec. 713.216 Investigation, (a) The Equal 
Employment Opportunity Officer shall advise 
the Director of Equal Employment Oppor­
tunity of the acceptance of a complaint. The 
Director of Equal Employment Opportunity 
shall provide for the prompt investigation of 
the complaint. The person assigned to investi­
gate 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 complaint arose. 
The agency shall authorize the investigator to 
administer oaths and require that statements 
of witnesses shall be under oath or affirmation, 
without a pledge of confidence. The investi­
gation shall include a thorough review of the 
circumstances under which the alleged discrimi­
nation occurred, the treatment of members of 
the complainant’ s group identified by his com­
plaint as compared with the treatment of other 
employees in the organizational segment in 
which the alleged discrimination occurred, and 
any policies and practices related to the work 
situation which may constitute, or appear to 
constitute, discrimination even though they 
have not been expressly cited by the com­
plainant. Information needed for an appraisal 
of the utilization of members of the complain­
ant’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 com­
plainant’s group needed to facilitate an adjust­
ment of the complaint or to make an informed 
decision on the complaint shall, if available, be 
recorded by name in the investigative file. tAs 
used in this subpart, the term “ investigative 
file”  shall mean the various documents and 
information acquired during the investigation 
under this section—-including affidavits of the 
complainant, of the alleged discriminating offi­
cial. and of the witnesses and copies of. or 
extracts from, records, policy statements, or 
regulations of the agency—organized to show 
their relevance to the complaint or the general 
environment out of which the complaint arose.) 
If necessary, the investigator may obtain infor­
mation regarding the membership or nonmem- 
bership of a person in the complainant’s group 
by asking each person concerned to provide 
the information voluntarily; he shall not require 
or coerce an employee to provide tins informa­
tion. jThe agency shall furnish the complainant 
or liis representative a copy of the investigative 
file j



58a

Attachment 1 to  FPM Ltr .  713-17 (12)

For this purpose, the agency shall 
furnish the complainant or his 
representative a copy of the in­
vestigative file promptly after 
receiving it from the investigator, 
and provide opportunity for the com­
plainant to discuss the investigative 
file with appropriate officials.

If the agency does not carry out, or - 
rescinds, any action specified by the 
terms of the adjustment for any reason 
not attributable to acts or conduct of 
the complainant, the agency shall, upon 
the complainant’s written request, rein­
state the complaint for further process­
ing from the point processing ceased und 
the terms of the adjustment.
(1) of the proposed disposition of 
the 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 decision by 
the head of the agency or his designee 
without a hearing.
15-day _________

(b> The Director of Equal Employment Op­
portunity shall arrange to furnish to the person 
conducting the investigation a written authori­
zation (1) to investigate all aspects of com ­
plaints 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.

Sec. 713.217 Adjustment of complaint and 
offer 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^Jf an adjustment 
of the complaint is arrived at, the terms of the 
adjustment shall be reduced to writing and 
made part of the complaint file, with a copy of 
the terms of the adjustment provided the 
complainant.^

(b) If an adjustment of the complaint is not 
arrived at, the complainant shall be notified in 
writing fo f the proposed disposition thereof. 
In that notice, the agency shall advise the com­
plainant of ®>his right to a hearing with a 
subsequent decision by the head of the agency 
or his designee and his right to such a decision** 
without a hearing. The agency shall allow tlu* 
complainant seven calendar days from receipt 
of the notice to notify the agency whether or 
not he wishes to have a hearings]

(c) If the complainant fails to notify the

-a g finr.v a l  his wishes within thef7-dav} period 
prescribed in paragraph (h) of this section, the 
appropriate Equal Employment Opportunity 
Officer may adopt the disposition o f 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 deci­
sion for the head of the agency under those 
circumstances. When this is done, the Equal



59a

Attachment 1 to FPM Ltr. 713-17 (13)

and of his right to file a civil 
action as described in section 
713.281.

Complaints 
a complaints

complaints

a complaints

complaints
complaints

complaints

Employment Opportunity Officer shall trans­
mit the decision by letter to the complainant 
and Ids representative which shall inform the 
complainant of his right of appeal to the Cotn- 
mission and the time limit applicable theretqf/If 
the Equal Employment Opportunity Officer 
does not issue a decision under this paragraph, 
the complaint, together with the complaint file, 
shall be forwarded to the head of the agency, 
or his designee, for decision under section 
713.221.

_______Sec. 713 218 Hearing. (n )£  1 ppealyeraminer.
th e  heating shall be held by fan appeal^ ex- 
untiner who must be an employee of another 
agency except when the agency in which the 
complaint arose is (1) the government of the 
District of Columbia or (2) an agency which, 
by reason of law. is prevented from divulging 
information concerning the matter complained 
of to a person who lias not received the security 
clearance required by that agency, in which 
event the agency shall arrange with the Com­
mission for the selection of an impartial em­
ployee of the agency to serve a>fappeals]ex- 
aminer. (For purposes of this paragraph, the 
Department of Defense is considered to be a 
single agency.) The agency in which the com­
plaint arose shall request the Commission to 
supply the name of fen appeals]examiner who

“* has been certified by the Commission as quali­
fied to conduct a hearing under this section.

(b) Arrangement* for hearing. The agency in 
which the complaint arose shall transmit the 
complaint file containing all the documents 
described in section 713.222 which have been 
acquired up to that point in the processing of 
the complaint, including the original copy of 
the investigative file (which shall be considered 
by the {appeals) examiner in making his recoin- 
mended decision on the complaint), to thejap-

1 peals?examiner who shall review the complaint
file to determine whether further investigation 
is needed before scheduling the hearing. W hen 
the (anneals] examiner determines that further 
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 section 713.210 
apply to any further investigation by the 
.iypm-v nil thp fompliiint. Thefrpueul^exnnuncr 

’ shall schedule the hearing for a convenient 
time and place.

complaints



60a

Attachment 1 to FPM L t r . 713-17 (14)

complaints

complaints

complaints

complaints
complaints

complaints

complaints 
any agency

(c) Conduct o f hearing. (1) Attendance at the 
hearing is limited to persons determined by the

______________________ _ _ ______ {appeals? examiner to have a direct connection
with the com plaint.

______________________ _________________ (2) The /appeals? examiner shall conduct the
hearing so as to bring out pertinent facts, includ­
ing the production o f pertinent documents. 
Rules of evidence shall not be applied strictly, 

_____________________________  but the [appeals! examiner shall exclude irrele­
vant or unduly repetitious evidence. Informa­
tion having a bearing on the complaint or em­
ployment policy or practices relevant to the 
complaint shall be received in evidence. The 
complainant, his representative, and the repre­
sentatives of the agency at the hearing shall he 
given the opportunity to cross-examine wit­
nesses who appear and testify. Testimony shall 
be under oath or affirmation.

__________ ______________________________  (d) Powers o f [appeals] examiner. In addition
_________________________ _ ______ to the other powers vested in the / appeals)

examiner by the agency in accordance with this 
subpart, the agency shall authorize thefappeals} 

' 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 hearing for 

contumacious conduct or misbehavior that 
obstructs the hearing.

(e) Witnesses at hearing. The /appeals] ex­
sub f e e t '  t o  t h i s  su b o a r t  aminer lEall request [ die agenqjf to make

may ___________________
an employee of any Federal agency
determines is necessary to furnish__
information pertinent to the com­
plaint under consideration. The 
complaints

An agency to whom a request is made-

complaints ____________________ __
not administratively impracticable^ 
administratively impracticable _____

available as a witness at the hearing an employee 
requested by the complainant when he deter­
mines that the testimony o f the employee is 
necessary. H e/shali]also request the appearance 
of /any other employee] whose testimony he 

_(cfesires to supplement the information in the 
investigative file. The appealsj examiner shall 
give the complainant his reasons for the denial 
o f a request for the appearance of employees 
as witnesses and shall insert, those reasons in 
the record of the hearing. / The ngencv] shall 
make its employees available as witnesses at a 
hearing on a complaint, when requested to do 
so by the (appeals)examiner and it is jadminis- 
tratively practicable? to comply with the re- 
quest. When it isfeot administratively practica­
ble) to comply with the request for a witness, 
the ngency^shall provide an explanation to theto whom request is made



61a

Attachment 1 to  FPM L tr .  713-17 (15)

complaints
complaints

complaints

An employee of an
he is •____
a witness.

complaints

complaints

complaints

complaints

complaints

complaints

which do not bear directly 

which bear on -------------

J&ppealsJ examiner. If the explanation is in­
adequate, the (appealsjexaminer shall so advise 
the agency and request it to make the employee 
available as a witness at the hearing. If the 
explanation is adequate, the jappealslexaminer 

~ shall insert it in the record o f the hearing, 
provide a copy to the complainant, and make 
arrangements to secure testimony from the 
employee through a written interrogatory. 

Jgm ployees o f thej agency shall be in a duty 
status during the timejthey arefmade available 
as /witnesses^ Witnesses shall be free from 
restraint, interference, coercion, discrimination, 
or reprisal in presenting their testimony at the 
hearing or during the investigation under 
section 713.216~i

(f) Record o f hearing. The hearing shall be 
recorded and transcribed verbatim. All docu­
ments submitted to, and accepted by, the 

/appeals]examiner at the hearing shall be made 
part of the record of the hearing. If the agency 
submits a document that is accepted, it shall 
furnish a copy of the document to the com ­
plainant. If the complainant submits a docu­
ment that is accepted, he shall make the 
document available to the agency representa­
tive for reproduction.

(g) Findings. analysis, and recommendations. 
The /appeals! examiner shall transmit to the 
head of the agency or his designee (1) the com­
plaint file (including the record of the hearing),

(2) the findings and analysis of the/appealsjex- 
aminer with regard to the matter which gave 
rise to the complaint and the general environ­
ment out of which the complaint arose, and (3) 

— the recommended decision of the jin peal j  ex- 
aminer on the merits of the complaint, including 
recommended remedial action, where appropri­
ate, with regard to the matter which gave rise 
to the complaint and the general environment 
out of which the complaint arose. The [jppeulsl 
examiner shall notify the complainant of the 
date on which this was done. In addition, the 

/appeals] examiner shall transmit, by separate 
letter to the Director of Equal Employment 
Opportunity, whatever findings and recommen­
dations he considers appropriate with respect to 
conditions in the agency/having no bearing]on 
the matter which gave rise to the complaint or 
the general environment out of which the com­
plaint arose.



62a

Attachment 1 to  FPM L tr .

within 180 calendar days 
it was filed, including

complaints

713-17 (16 )

Sec. 713.210 Relationship to other agency 
appellate procedures. -> (a) Except as provided 
in paragraphs (b) and (c) o f this section, when 
an employee*-  makes a written allegation of 
discrimination on grounds of race, color, reli­
gion, sex, or national origin, in connection with 
an action that would otherwise be processed 
under -»a  grievance or appeals system*-  of the

_____ ageney^the agency may process the allegation
of discrimination under ->that system when 
the system*-  meets the principles and require­
ments in sections 713.212 through 713.220 and 
the head of the agency, or his designee, makes 
the decision of the agency on the issue of dis­
crimination. That decision on the issue of dis­
crimination shall be incorporated in and become 
a part of the decision 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 of discrimination made in 
connection with a grievance under subpart C 
of part 771 of this chapter shall be processed 
under this part.**

Sec. 713.220 Avoidance of delay, (a) The 
complaint shall be resolved promptly. T o this

end, both the complainant and the agency 
shall proceed with the complaint without undue

a f t e r  ____ __________aie laY .S Q -±ilfl^ ]M _£flm > la iiU  is resolveiijTexcept
in unusual circumstances, within 00 calendar 
days after its receipt by the Equal Employ­
ment Opportunity Officer, exclusive of] time 
spent in the processing of the complaint by

________________________the jappeals] examiner under section 713.218.
■^'MWhen the complaint has not been resolved 
within this limit, the complainant may appeal 
to the Commission for a review of the reasons 
for the delay. Upon review o f this appeal, the 
Commission may require the agency to take 
special measures to ensure prompt process­
ing of the complaint or may accept the 

, appeal for consideration under section 713.234]] 
(b) The head of the agency or his designee 

may cancel a complaint if the complainant 
fails to prosecute the complaint without undue 
delay. However, instead of cancelling for failure 
to prosecute, the complaint may be adjudicated 
if sufficient information for that purpose is 
available.,



63a

Attachment 1 to FPM Ltr. 713-17

(c) The agency shall furnish the 
Commission monthly reports on all com­
plaints pending within the agency in a 
form specified by the Commission. If 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 
ensure prompt processing of the complaint 
or may assume responsibility for pro­
cessing the complaint, including supply­
ing an investigator to conduct any 
necessary investigation on behalf of the 
agency. When the Commission supplies
an investigator, the agency shall reim­
burse the Commission for all expenses 
incurred in connection with the investi­
gation and shall notify the complainant 
in writing of the proposed disposition 
of the. complaint no later than 15 calen­
dar days after its receipt of the in­
vestigative report.

(d) When the complaints examiner has 
submitted a recommended decision finding 
discrimination and the agency has not 
issued a final decision within 180 cal­
endar days after the date the complaint 
was filed, the complaints examiner's 
recommended decision shall become a 
final decision binding on the agency
30 calendar days after its submission to 
the agency. In such event, the agency 
shall so notify the complainant of the 
decision and furnish to him a copy of the 
findings, analysis, and recommended deci­
sion of the complaints examiner under 
section 713.218(g) and a copy of the 
hearing record and also shall notify him 
in writing of his right of appeal to the 
Commission and the time limits applicable 
thereto and of his right to file a civil 
action as described in section 713.281.

(17)



64a

Attachment 1 to PPM Ltr. 713-1-7 (18)

Sec. 713.221 Decision by head of agency 
or designee, (a) The head of the agency, or 
his designee, shall make the decision <>f the 
agency on a complaint based on information 
in the complaint tile. A person designated to 
make the decision for the head of the agency 
shall be one who is fair, impartial, and objective.

“M b )(l) The decision of the agency shall 
be in writing and shall he transmitted by letter 
to the complainant and his representative.

When there has been no hearing, the ja»
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

c o m p la in ts  ___________________________ ___________ derision of the (appeal^ examiner under section
713.218(g) and a copy of the hearing record. 
The decision of (lie agency shall adopt, reject, 
or modify the decision recommended by the

c o m p l a i n t s ____________________ __________________ {appeal^ examiner. If the decision is to reject
or modify the recommended decision, the de­

s p e c i f i c  r e a so n s  in  d e t a i l  __________________  cision letter shall set forth the fre a so ns] for re­
jection or modification.

(3) When there has been no hearing and no 
decision under section 713.217(c), the decision 
letter shall set forth the findings, analysis,

and decision 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 

, whether or not there is a finding of the policy of equal opportunity^ 
discrimination. When discrimination 
is found, the agency shall require 
remedial action to be taken in accord­
ance with section 713.271, shall review 
the matter giving rise to the complaint 
to determine whether disciplinary action 
against alleged discriminatory officials 
is appropriate, and shall record the basis 
for its decision to take, or not to take, 
disciplinary action but this decision shall 
not be included in the compla’nt file.



65a

Attachment 1 to  FPM L tr .  713-17 ( 1 9 )

, of his right to file a civil action 
in accordance with section 713.281, 
and of the time limits applicable 
thereto.

Except as provided in section --
713.221(c), this file shall contain

(d) The decision letter sh&l! inform the com­
plainant of his right to appeal the decision of 
the agency to the Commission/and of the time 
limit within which the appeal may be sub- 
mittedj

Sec. 713.222 Complaint file. The agency 
shall estabKsh a complaint file /containing! all 
documents pertinent to the complaint. The

(a) the notice of the Equal Employment- 
Opportunity Counselor to the aggrieved 
person under section 713.213(a), (b)

(c)
(d )
(e)

(f )

<g>

(h )

(i)

complaints

(j>

complaint file shall include copies of f(a)| the 
written report of the Equal Employment Op­
portunity Counselor under section 713.213 to 
the Equal Employment Opportunity Officer on 
whatever precomplaint counseling efforts were
made with regard to the complainant’s case, hbj)

£tXdJ ̂the complaint, fc^j the investigative file, fa il 
the complaint is withdrawnhy tFe complainant, 
a written statement of the complainant or his 
representative to that effect, gej) if adjustment 
of the complaint is arrived it under section 
713.217, the written record of the terms of the 
adjustment, j(f)]  if no adjustment of the com-
plaint is arrived at under section 713.217 
copy o f the letter notifying the complainant of 
the proposed disposition of the complaint and 
of his right to a hearing,/(g)] if decision is made
under section 713.217(c), a copy of the letter to 
the complainant transmitting that decision, £h) j  

if a~Kearing was held, the record of the hearing, 
together with the Appeals) examiner’s findings, 
analysis, and recommended decision on the 
merits of the complaint, j ( i j j  if the Director of 
Equal Employment Opportunity is not the



66a

Attachment 1 to FBI Ltr. 713-17 (20)

designee, the recommendations, if any, made by 
him to the head of the agency or his designee,

( k ) ____________________________________________ andfjjjif decision is made under section 713.221,
a copy of the letter transmitting the decision 
of the head of the agency or his designee. The 
complaint file shall not contain any document 
that has not been made available to the 
complainant or to his designated physician 
under section 294.401 of this chapter.

Appeal to the Comm ission

Sec. 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:

, or a portion thereof, for  -------------1 (1) To reject his complaint because (i) it
713S2 1 5 -COVered by SeC tion was not timely filed, or (ii) it was not within

the purview of the agency’s regulations-*] or
(2) To cancel his complaint |(i)j because of 

the complainant's failure to prosecute his 
complaint^or (ii) because of the complainant's 
separation which is not related to his complaint; 
or

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

(b) A complainant may not appeal to the 
Commission under paragraph (a) of this 
section 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 Com­
mission.

Sec. 713.232 Where to appeal. The com­
plainant shall file his appeal in writing, either 
personally or by mail, with the Board of 
Appeals and Review, U.S. Civil Service Com­
mission, Washington, D.C. 20415.

Sec. 713.233 Tims limit, (a) Except as 
provided in paragraph (b) of 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 
showing by the complainant that he was not 
notified 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.



67a

Attachment 1 to FPM Ltr.  713-17 (21)

but shall contain a notice 
of the right to file a civil 
action in accordance with 
Section 713.282

and the com plain ant having been in ­
formed by the agency o f  h is  r ig h t  to  
p roceed  under t h is  subpart e l e c t s  to  
p roceed  by appeal to  the Commission,

on complaints

Sec. 713.234 Appellate procedures. The 
Board of Appeals and Review shall review the 
complaint file and all relevant written rep­
resentations made to the board. The board may 
remand a complaint to the agency for further 
investigation or a rehearing if it considers that 
action necessary or have additional investiga­
tion conducted by Commission personnel. This 
subpart applies to any further investigation 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 decision 
setting forth its reasons for the decision and 
shall send copies thereof to the complainant, 
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 decision 
of the board is final,/and there is no further 
right to appeaj

Sec. 713.235 Review by the Commis­
sioners. The Commissioners may, in their dis­
cretion, reopen and reconsider any previous 
decision when the partv requesting reopening 
submits written argument or evidence which 
tends to establish that:

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

(2) The previous decision involves an errone­
ous interpretation of law or regulation or a mis­
application of established policy; or

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

Sec. 713.236 Relationship to other appeals. 
When the basis of the complaint of discrimina­
tion because of race, color, religion, sex, or 
national origin involves an action which is 
otherwise appealable to the Commrisionf jthe 
case, including the issue of discrimination, will 
be processed under the regulations appropriate 
to that appeal when the complainant makes a 
timely appeal to the Commission in accordance 
with those regulations.

R ep orts to  th e C om m ission

_____ Sec. 713.241 Reports to the Commission
I Each agency shall report to the Commission 

information concerning precomplaint counseling 
tatus and disposition of complaints 
subpart at such times and in such 
the Commission prescribes. ___



68a

Third Party Allegations

Sec. 713.251 Third-party allegations of discrimination, (a) Coverage. 

This section applies to general allegations by organizations or other 

third parties of discrimination in personnel matters within the agency 

which are unrelated to an individual complaint of discrimination subject 

to section 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 

investigate the allegation. The agency may require additional specifi­

city as necessary to proceed with its investigation. The agency shall 

establish a file on each general allegation, and this file shall con­

tain 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 submitting the allegation of 

its decision, including any corrective action taken on the general 

allegations, and shall furnish to the Commission on request a copy of 

its decision.

(c). Commission procedures. If the third party disagrees with the 

agency decision, it may, within 30 days after receipt of the decision, 

request the Commission to review it. The request shall be in writing and 

shall set forth with particularity thd 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 

corrective action, with or without back pay, as it deems appropriate.

Attachment 1 to  FEM L tr .  7 13 -17  (2 2 )



69a

Freedom from Reprisal or In terferences

Section 713.261. Freedom from reprisal, (a) Complainants, their 

representatives, and witnesses shall be free from restraint, inter­

ference, coercion, discrimination or reprisal at any stage in the 

presentation and processing of a complaint, including the counsel­

ing stage under section 713, or any time thereafter.

Sec. 713.262 Review of allegations of reprisal. (a) Choice of review 

procedures■ A complainant, his representative, or a witness who alleges 

restraint, interference, coercion, discrimination, or reprisal in connec­

tion with the presentation of a complaint under this subpart, may, if 

an employee or applicant, have the allegation reviewed as an individual 

complaint of discrimination subject to section 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 appro­

priate agency official as defined in section 713.214 (a) (2) within 15 

calendar days of the date of the alleged occurrence. 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 of the date Of its receipt a copy of the charge

Attachment 1 to  FPM L tr .  713- 17 (23 )



70a

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 calendar days after receipt 

of such a charge, the 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 of the investigation of 

his complaint under section 713.216, requests a hearing and in connection 

with that complaint alleges restraint, interference, coercion, discrimina­

tion, or reprisal, the complaints examiner assigned to hold the hearing 

shall consider the allegations 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.

Remedial Actions

Sec. 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 discriminated against and except for 

that discrimination 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 con­

sidered a declination of the offer, unless the individual can show that 

circumstances beyond his control prevented him from responding within the

Attachment 1 to  FPM L tr .  713-17 (24)



71a

Attachment. 1 to FPM Ltr. 7 l3-i7 (25)

time limit. If the offer is accepted, appointment shall be retroactive 

to the date the applicant would have been hired, subject to the limita­

tion in subparagraph (4) of this paragraph. Back pay, computed in the 

same manner prescribed by section 550.804 of this chapter, shall be 

awarded from the beginning of the retroactive period, subject to the 

same limitation, until the date the individual 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 requirements for completion of a probationary or 

trial period that is required. If the offer is declined, the agency 

shall award the individual a sum equal to the back pay he would have 

received, computed in the same manner prescribed by section 550.804 of 

this chapter, from the date he would have been appointed until the date 

the offer was made, subject to the limitation 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 discrimination, the agency shall consider the individual for any 

existing vacancy of the type and grade for which he had been considered 

initially and for which he is qualified before consideration is given 

to other candidates. If the individual is not selected, the agency 

shall record the reasons for non-selection. If no vacancy exists, the 

agency shall give him this priority consideration for the next vacancy 

for which he is qualified. This priority shall take precedence over



72a

priorities provided under other regulations in this chapter.

(3) This paragraph shall be cited as the authority under which 

the above-described appointments or awards of back pay shall be made.

(4) A period of retroactivity or a period for which back pay is 

awarded under this paragraph may not extend from a date earlier than 

two years prior to the date on which the complaint was intitially filed 

by the applicant. If a finding of discrimination was not based on a 

complaint, the period of retroactivity or period for which back pay is 

awarded under this paragraph may not extend earlier than two 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 administrative 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 prescribed by section 530.804 of this chapter, when the record 

clearly shows that but for the discrimination the employee would have 

been promoted or would have been employed at a higher grade, except 

that the back pay liability may not accrue from a date earlier than 

two years prior to the date the discrimination complaint was filed, but, 

in any event, not to exceed the date he would have been promoted. If a 

finding of discrimination was not based on a complaint, the back pay 

liability may not accrue from a date earlier than two years prior to the 

date the finding of discrimination was recorded, but, in any event, not 

to exceed the date he would have been promoted.

Attachment 1 to FPM Ltr .  713-17 (26 )



73a

(2) Consideration for promotion to a position for which he is 

qualified before consideration is given to other candidates when the 

record shows that discrimination existed at the time selection for 

promotion was made but it is not clear that except for the discrimi­

nation the employee would have been promoted. If the individual is not 

selected, the agency shall record the reasons for nonselection. This 

priority consideration shall take precedence over priorities under other 

regulations in this chapter.

(3) Cancellation of an unwarranted personnel action and restoration 

of the employee.

(4) Expunction from the agency's records of any reference to 

or any record of an unwarranted disciplinary action that is not a 

personnel action.

(5) Full opportunity to participate in the employee benefit 

denied him (e.g., training, preferential work assignments, overtime 

scheduling).

Right to File a Civil Action

Sec. 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 United States 

District Court within:

(a) Thirty (30) calendar days of 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

Attachment 1 to FPM L tr .  713-17 (27 )

dec ision,



74a

Attachment 1 to FPM Ltr. 713-17 (28)
28

(c) Thirty (30) calendar days of his receipt of notice

of final action taken by the Commission on his complaint, 

or,

(d) One hundred-eighty (180) calendar days from the date of 

filing an appeal with the Commission if there has been 

no Commission decision.

Sec. 713.282 Notice of right. An agency shall notify an 

employee or applicant 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 

section 713.215, 713.217, or 713.221. The Commission shall notify an 

employee or applicant of his right to file a civil action, and of the 

30-day time limit for filing, in any decision under section 713.234.

Sec. 713.283 F.ffect 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.



75a

Attachment 2 to  FPM L tr .  713-17

S u b ject: NOTICE OF RIGHT TO FILE A DISCRIMINATION COMPLAINT

From: EEO Counselor DATE:
(S p e c ific  In s ta lla t io n )

To: Name o f Person Counseled

This is to inform you that although counseling on the matter you 
brought to the attention of the EEO Counselor has not been com- 
pleted, 21 calendar days have gone by since you first contacted 
the Counselor and you are now entitled, if you want to do so, o 
file a discrimination complaint if you believe you have been dis­
criminated against on the basis of race, color, religion, sex or 
national origin.

If you do not file a complaint at this time, counseling will 
continue and your right to file a complaint will also continue 
until 15 calendar days AFTER THE FINAL INTERVIEW with the 
Counselor. The Counselor will inform you in writing when the 
final counseling interview is conducted.

If you file a complaint, it must be in writing and be filed in 
person or by mail with the Director of EqualJEjEEl£52^
(provide specific mailing address), or any of the following officials 
authorized to receive discrimination complaints.

o Agency Head
(Provide address)

o Installation Head
(Provide address)

o EEO Officer
(Provide address)

o Federal Women's Program Coordinator 
(Provide address)

Note to Agency:

A copy of this notice should be kept by the Counselor. If a 
complaint is filed, the copy should accompany the Counselor's 
report on ’ is counseling activities and made a part of the com 
plaint file. This notice should be given by the Counselor to 
the person counseled 21 calendar days after the Counselor was 
first consulted on the matter by the employee or applicant.



76a

Subject 

From:

To:

Note to

Attachment 3 to  FPM L t r . 713-17

NOTICE OF FINAL INTERVIEW WITH EEO COUNSELOR

EEO Counselor DATE:
(Specific Installation)

Name of Person Counseled

This is notice of the final counseling interview in con­
nection with the matter you presented to the EEO Counselor.

If you believe you have been discriminated against on the 
basis of race, color, religion, sex or national origin, you 
have the right to file a COMPLAINT OF DISCRIMINATION WITHIN 
15 CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE.

The complaint must be in writing and may be filed in person 
or by mail with the Director of Equal Employment Opportunity 
(provide specific mailing address), or any of the following 
officials authorized to receive discrimination complaints:

o Agency Head
(Provide address)

o Installation Head
(Provide address)

o EEO Officer
(Provide address)

o Federal Women's Program Coordinator 
(Provide address)

Agency:

A copy of this notice should be kept by the Counselor. If a 
complaint is filed, the copy should accompany the Counselor's 
report on his counseling activities and made a part of the 
complaint file.



77a

Attachment A to FPM Ltr. 713-17

Subject: NOTICE OF RECEIPT OF DISCRIMINATION COMPLAINT

From: Director of EEO DATE:
(or other appropriate official)

To: Complainant

The purpose of this notice is to acknowledge receipt of your 
discrimination complaint and to provide you with written notifi­
cation of your rights as well as the time requirements for 
exercising those rights. If you have further questions ask your 
EEO Counselor or Equal Employment Opportunity Officer.

o Your complaint will be investigated. Based on the in­
formation developed by the investigation an effort at 
an adjustment on an informal basis will be made. You 

11 receive a copy of the investigative report and 
have an opportunity to discuss it with an appropriate 
agency official.

o If an adjustment of the complaint is arrived at, the 
terms of the adjustment will be reduced to writing and 
you will be provided a copy.

o If an adjustment of the complaint is not arrived at, you 
wili be notified in writing of the proposed disposition 
of the complaint. You will also be notified of your right 
to a hearing by an EEO Complaints Examiner who will recom­
mend a decision to your agency, or to a decision by the 
agency head or his designee without a hearing. If you want 
a hearing, or a decision by the agency head or his designee 
without a hearing, you must NOTIFY THE AGENCY IN WRITING 
WITHIN 15 CALENDAR DAYS OF RECEIPT OF THE PROPOSED DISPO­
SITION OF YOUR COMPLAINT.

o If you fail to request a hearing or to ask for a decision 
by the agency head without a hearing within the 15 days of 
your receipt of the proposed disposition, that disposition 
will become the final decision of the agency. YOU MAY 
APPEAL THE FINAL AGENCY DECISION ON YOUR COMPLAINT TO THE 
COMMISSION WITHIN 15 CALENDAR DAYS OR YOU MAY FILE A CIVIL 
ACTION IN AN APPROPRIATE U. S. DISTRICT COURT WITHIN 30 DAYS.



78a

A ttachnu 'nt t o  F PM Lt r . 7 1 3 -1 7  ( 2 )

o If you are dissatisfied with the final decision of 
the agency (after a hearing or without a hearing), 
you may appeal to the Civil Service Commission 
within 15 calendar days of receipt of the notice or 
within 30 days you may file a civil action in an 
appropriate U.S. District Court.

o If you decide to appeal to the Commission’s Board of 
Appeals and Review you will still have an opportunity 
to file a civil action in U.S. District Court within 
30 days after receipt of the Board’s decision, or 
within 180 days of your appeal to the Board if no 
final decision has been rendered.

o If the agency has not issued a final decision on 
your complaint within 180 days of the date it was 
filed, you may file a civil action in an appro­
priate U.S. District Court.

Note to Agency:

A copy of the notice as given to the complainant should be 
filed by the agency in the complaint file.



79a

Attachment 5 to  FPM L tr .  713-17

object: NOTICE OF PROPOSED DISPOSITION OF DISCRIMINATION COMPLAINT

rom: EEO Officer DATE:

o: Complainant

The purpose of this notice is to inform you of the proposed 
disposition of your discrimination complaint and your rights 
if you are dissatisfied with the proposed disposition.

o PROPOSED DISPOSITION

(State the specific proposed disposition of the 
complaint)

o RIGHT OF HEARING

If you are dissatisfied with the proposed dis­
position, you may request a hearing and decision 
by the agency head or his designee, if YOU NOTIFY 
THE AGENCY WITHIN 15 CALENDAR DAYS OF RECEIPT OF 
THE NOTICE that you desire a hearing.

o RIGHT OF DECISION WITHOUT A HEARING

If you are dissatisfied with the proposed dis­
position, you may request a decision by the head 
of the agency or his designee without a hearing.

If you fail to notify the agency of your wishes within the 15 
day period, the EEO Officer may adopt as the agency's final 
decision the proposed disposition shown above and will so 
notify you in writing. Upon receipt of notification you may 
appeal to the Civil Service Commission within 15 calendar days 
or file a civil action in a Federal District Court within 30 
days.

If you appeal to the Commission, you may still file a civil 
action within 30 days of receipt of the Commission decision 
or within 180 days of your appeal to the Commission if you 
have not received a final decision from the Commission.

ote to Agency:

A copy of the notice as given to the complainant should be 
filed by the agency in the complaint file.



80a

Subject 

From: 

To:

Note To

Attachment 6 to FPM Ltr. 713-17

NOTICE OF FINAL DECISION OF AGENCY

Agency Head or Designee DATE:

Complainant

Attached to this notice is the final decision of the agency on 
your complaint of discrimination. If you are dissatisfied with 
this final decision, you have the following appeal rights:

o You may appeal to the Civil Service Commission
within 15 calendar days of receipt of the decision.

o You may file a civil action in an appropriate U. S. 
District Court within 30 days of receipt of the 
decision.

o If you elect to appeal to the Commission, a civil 
action in a U . S. District Court may be filed within 
30 days of receipt of the Commission's final decision.

o A civil action may also be filed anytime after 180 
days of the date of initial appeal to the Commission, 
if there has not been a final decision rendered.

Agency:

This form is to be used under the following circumstances:

(1) when a discrimination complaint is rejected or 
cancelled;

(2) when a proposed disposition is adopted after 
failure to request a hearing or decision by 
the agency without a hearing;

(3) when a final agency decision is made after a 
recommended decision by the Complaints Examiner; 
and,

(4) when an agency makes a final decision on the 
merits without a hearing.

A copy of the notice as given to the complainant should be 
filed by the agency in the complaint file.

6 P 0  8 6 2 . 1 3 0



APPENDIX C

Documents Related to EEO Procedures



81a

U N IT E D  S T A T E S  C IV IL  SE R VIC E C O M M IS S IO N  ' » « * * " » ■ ' ™

W A S H IN G T O N , D .C . 20415

YO'JR REFERENCE

Ms. Phyllis McClure 
NAACP Legal Defense Fund 
Room 510
1028 Connecticut Avenue N.W. 
Washington, D. C. 20036

OCT 2 4 1974

Dear Ms. McClure:

This responds to your telephone request of October 23, 1974, Enclosed 
are materials which provide guidance for the investigation of EE0 
discrimination complaints and describe the complaint process. This 
list, though not comprehensive, consists of instructions, regulations 
and guidelines which we rely on most in providing assistance to com­
plainants and agencies in the processing of EE0 complaints.

* 1) FPM Letter No. 713-17
2) FPM Letter No. 713-21
3) FPM Letter No. 713-28
4) FPM Letter No. 713-20
3) Chairman letter June 18, 1973
6) Bulletin No. 713-34
7) Bulletin No, 713-35
8) Personnel Methods Series No. 18

* 9) Appendix B-6, FPM Chapter 713 (under revision)
'*10) Personnel Methods Series No. 17

* Guidance on the investigation of discrimination complaints.
** Revised October 1974 (pending publication)

T lope this information answers some of your questions. If we can 
be of further assistance let us know.

Sincerely yours,

Walter J . Dent, Acting Chief 
D iscrim ination Complaints and 

Enforcement Section

MERIT I ’RiNCIPLES ASSURE QUALITY AND EQUAL OPPORTUNITY
1883-1973



82a

UNITED STATES CIVIL SERVICE COMMISSION
APPEALS REVIEW BOARD 
Washington, D. C. 20415

D E C I S I O N

IN THE MATTER OF
)
)
) TYPE CASE: Discrimination Rased 
) On Race

m m  jcnes,.Jii»________________ )

Before: Roel, Bechtold and McDonald, Board 
Members

INTRODUCTION

The complainant appealed from the March 19, 1974, d e c is io n  by the D irector  
'Of'Equal Employment Opportunity, Department o f  the Army, which found tr.at 
the complainant had not been d iscrim inated  against because ox h is  race in  
connection  with h is  n o n -se le ct io n  fo r  promotion t o  a GS-12 A rcn itect p o s i­
t io n .  The agency d e c is io n  fu rth er  found th at the complainant had been 
discrim inated against because o f  h is  race in  h is  employment s itu a t io n  at 
th e  M obile D is t r ic t ,  Corps o f  Engineers.

STATEMENT OF THE CASE

The complainant, a Black male, i s  employed by the Mobile D is t r i c t ,  Corps 
o f  Engineers, in  the p o s it io n  o f  A rcn ite c t , GS—11.

On Ju ly  12, 1972, the complainant contacted an Equal Employment Opportunity 
Counselor and in d ica ted  h is  d es ire  to  f i l e  a d iscr im in a tion  complaint con­
cerning the se le c t io n  o f  another employee f o r  a vacant GS-12 A rch itect s 
p o s it io n . Ho inform al re so lu tio n  o f the matter was reached and complainant 
f i l e d  a form al complaint o f  d iscrim in ation  on September 21, 19 7 -, a lle g in g  
th at r a c ia l  d iscrim in ation  had occurcd in  the s e le c t io n  o f  another employee 
f o r  the vacancy in  qu estion .

An in v e s tig a t io n  was conducted and an in v e s tig a t iv e  report subm itted on  ̂
January 26, 1973. ’Based on the in v e s tig a t iv e  re p o rt , a proposed d is p o s i­
t io n  o f  the complaint was issu ed  by the agency on November 2, 197a, deny­
in g  the complaint o f  d iscrim in a tion . The complainant then requested a 
hearing in  connection  with h is  com plaint, which was conducted on Novem­
ber 30, 1973. In  h is  rep ort , the Complaint1s Examiner recommended that a

1220 - 36/69



83a

fin d in g  be made that the a lle g a tio n  o f  d iscr im in a tion  based on race was 
not supported by the ev idence.

AGENCY DECISION

The f in a l  agency d e c is io n , issu ed  on March 19, 1974, h eld  th at the e v i­
dence o f  record  did  not su bstantiate  com plainant's a l le g a t io n  o f  r a c ia l  
d iscrim in ation  in  regard to  h is  n o n -se le ct io n  f o r  prom otion t o  the p o s i­
t io n  o f  A rch ite ct , GS-12. Her,-/ever, the agency found th at the M obile D is­
t r i c t ,  Corps o f  Engineers had fa i le d  t o  implement the agen cy 's  a ffim ative  
Equal Employment Opportunity program; th at the complainant had not been 
provided the opportunity  f o r  maximum u t i l i z a t io n  o f  h is  education  and 
tra in in g ; and th at the complainant had been su b jected  t o  a clim ate o f  
r a c ia l  p re ju d ice  in  the work environment at the Mobile D is t r i c t .  The 
agency a lso  found that com plainant's prom otional op p ortu n ities  had been 
adversely  a ffe c te d  and th at except f o r  h is  ra ce , he might have progressed 
under the Department's Career Program t o  the GS-12 le v e l  in  the M obile 
D is t r ic t  or  elsewhere in  the Corps o f  Engineers. I t  was a ls o  the agency 
d e c is io n  that complainant was otherwise d iscrim inated  against in  h is  em­
ployment s itu a t io n . Based on i t s  f in d in g s , the agency d ir e c te d  that the 
complainant be given  continuing p r io r i t y  con sidera tion  f o r  a v a ila b le  GS-12 
vacan cies in  the Mobile D is t r ic t ,  Corps o f  Engineers, f o r  which he i s  
q u a lifie d , u n t i l  co.xplainant i s  se le cte d  f o r  promotion or  u n t i l  he de­
c lin e s  a bona f id e  o f f e r .

REPRESENTATIONS TO THE APPEALS REVIEW BOARD

In  h is  l e t t e r  o f  appeal t o  the Board dated A p r il 18, 1974, the complainant 
expressed d is s a t is fa c t io n  with the agency 's d e c is io n  and requested a re ­
view  o f  h is  case. S p e c i f i c a l ly ,  the complainant questioned the thorough­
ness o f  the in v e s tig a t iv e  fin d in gs o f  the In v e s tig a to r  assigned t o  h is 
case, and he questioned the appra isa ls given the th ree  candidates f o r  the 
GS-12 p o s it io n  in  qu estion . Complainant a lso  r e fe r s  t o  a fu rth er  act o f  
a lleg ed  d iscrim in ation  occu rrin g  w ithin  the la s t  f iv e  months, not pre­
v io u s ly  made a part o f  h is  complaint o f  d iscr im in a tion .

ANALYSIS AND FINDINGS

The Board has considered the com plainant's a lle g a tio n s  in  l ig h t  o f  the 
en tire  record  estab lish ed  in  h is  case . As a re su lt  o f  i t s  review , the 
Board fin d s  that the com plainant's a lle g a tio n  o f  r a c ia l  d iscrim in a tion  in  
connection  with h is  n o n -se le ct io n  fo r  promotion t o  the s p e c i f i c  GS-12 
A rch itect p o s it io n  i s  unsupported by the evidence o f  record .

Complainant's main argument throughout the complaint o f  d iscr im in a tion  has 
been that he was the best q u a lif ie d  o f  the th ree candidates fo r  the p o s it io n



84a

in  qu estion . In  th is  connection  he questions the ap pra isa ls  given t o  the 
other candidates by th e ir  su pervisor, which appra isa ls formed the b a sis  
f o r  the D electin g  o f f i c i a l 's  f in a l  ch o ice  f o r  the p o s it io n .

The Board fin d s  no evidence, other than the com plainant's unsupported a l ­
le g a t io n s , that the appra isa ls in  question  were the r e su lt  o f  r a c ia l  b ias 
on the part o f  the o f f i c i a l  vino completed those a p p ra isa ls , and that sa id  
o f f i c i a l  was not l i s t e d  as an a lle g e d  d iscrim in atin g  p a rty . The record  
r e f le c t s  that each o f  the candidates f o r  the p o s it io n  in  question  was 
rated "H ighly Q u a lifie d " f o r  the p o s it io n  and the ch o ice  o f  any one o f  
the candidates would have been ju s t i f ia b le .  Moreover, the record  in d i­
cates th at the s e le c t in g  o f f i c i a l  (who i s  the a lle g e d  d iscrim in atin g  
party) based h is  s e le c t io n  upon h is  intim ate acquaintance w ith the work, 
experience and knowledges o f  a l l  o f  the candidates, not ju s t  on the p ro­
motion ap p ra isa ls .

In  s itu a tio n s  where the av a ila b le  candidates are su b s ta n tia lly  equ a lly  
q u a lif ie d  f o r  a p o s it io n , the s e le c t in g  o f f i c i a l  has the d is c r e t io n  to  
choose the candidate whom he b e lie v e s  can best perform  the du ties  o f  the - 
p o s it io n . In  th is  case , there i s  no evidence that the s e le c t in g  o f f i c i a l 's  
evalu ation  o f  the candidates and tils subsequent s e le c t io n  f o r  the p o s it io n  
were based in  any way upon any con sideration  o f  the can d idates ' ra ces .

M u le  there i s  evidence o f  past in e q u a lity  o f  treatment o f  the complainant 
which, as determined by the ' agency D irector  o f  Equal Employment Opportunity 
in d ica te s  that the complainant was not given equal tra in in g  and opportunity  
f o r  advancement, the evidence s tron g ly  in d ica te s  th at any charge o f  d is ­
crim ination  in  these p ra c t ice s  would be la id  against the p r io r  S ection  
C h ief rath er than the su pervisor named by the com plainant. In  any event, 
the Board fin d s  in s u f f ic ie n t  o b je c t iv e  evidence t o  show th at the fa i lu r e  
t o  s e le c t  the complainant f o r  the vacant GS-12 p o s it io n  was because o f  
h is  ra ce .

The complainant noted th at cop ies o f  employee ap pra isa ls  completed on 
June 1 , 1972, were not in cluded  in  the in v e s t ig a t iv e  f i l e ,  and he has 
requested that the Board review the appraisa ls and the personnel f i l e s  
o f  the three candidates fo r  the p o s it io n  in  qu estion  in  order t o  make a 
d e c is io n  on the r e la t iv e  q u a lif ic a t io n s  o f  these can d idates. The com­
pla inant has charged that the personnel f i l e s  o f  th e  candidates w i l l  not 
su bstantiate  the appra isa ls in  qu estion .

With regard t o  th e  ex clu sion  o f  the appra isa ls from the in v e s t ig a t iv e  re ­
p o r t , the Board notes that employee appraisa ls are considered  t o  be con­
f id e n t ia l  t o  the in d iv id u a l in volved  and that th ere i s  considerable  
la t itu d e  under C iv i l  S erv ice  Commission regu lation s regarding the in c lu -  

•sion o f  such appra isa ls in  the in v e s tig a t iv e  r e p o rt . The Board a lso  notes 
that employee appra isa ls are U g lily  su b je ct iv e  in  nature and are be­
tween the employee, h is  su pervisor, and agency management. F in a lly , as 
noted above, the s e le c t in g  o f f i c i a l  in d ica ted  in  h is  ju s t i f i c a t io n fo r

3



85a

4

the s e le c t io n  he made that he used not on ly  the employee ap pra isa l but a lso  
h is  person al knowledge o f  the a b i l i t i e s  and performance o f  the candidates, 
with a l l  th ree o f  whom he had a lon g  and c lo s e  working r e la t io n s h ip . Under 
the circum stances, the Board has. no .basis ,f o r  any independent review  o f  the 
r e la t iv e  q u a lif ic a t io n s  o f  the three candidates f o r  the GS-12 p o s it io n .

Complainant, in  h is  appeal t o  the Board, has a lso  provided  in form ation  not 
p re v io u s ly  a part o f  Siis complaint o f  d iscr im in a tion , not considered  by the 
agency in  the processin g  o f  h is  current com plaint, and not covered in  the 
agency 's f in a l  d e c is io n . A ccord in g ly , th is  in form ation  i s  not a matter f o r  
review  by th e  Board in  i t s  ad ju d ica tion  o f  th is  appeal.

The Board notes that w hile th e  agency found no evidence o f  r a c ia l  d iscrim ina­
t io n  in  com plainant's n o n -se le ct io n  f o r  promotion t o  th e  GS-12 vacancy in  
th is  in sta n ce , the agency d id  recommend c o r r e c t iv e  a c t io n  be taken in  the 
com plainant's case based on a fin d in g  that the M obile D is t r i c t ,  Corps o f  
Engineers, had f a i le d  t o  implement the agen cy 's  a ffirm a tiv e  Equal Employ­
ment Opportunity program. The c o r r e c t iv e  a c tio n  was t o  take the form o f  
continuing p r io r i t y  con sidera tion  t o  the complainant f o r  G3-12 v a ca n cies . 
(Complainant was promoted t o  a GS-12 A r c h it e c t 's  p o s it io n  on May 5, 1974 
accord ing  t o  in form ation  fu rn ish ed  the Board and th u s, the p r io r i t y  con­
s id e ra tio n  recommendation would now be m oot.)

Pursuant t o  the fo re g o in g , th e  d e c is io n  issu ed  by the Department o f  the 
Array in  th is  case dated March 19, 1974, i s  hereby a ffirm ed .

C iv i l  S erv ice  regu lation s provide that th e  d e c is io n  o f  the Board i s  f in a l  
and th at th ere  i s  no fu rth er  r ig h t  o f  adm in istrative appeal. However, i f  
th e  complainant i s  not s a t is f ie d  with th is  d e c is io n , he i s  e n t it le d , under 
se c t io n  717(c) o f  the C iv i l  F ights Act o f  1964, as amended on March 24, 
1972, t o  f i l e  a c i v i l  a ction  in  an appropriate U.S. D is t r ic t  Court w ith in  
t h ir t y  (3 0 )calendar days o f  h is  r e ce ip t  o f  th is  d e c is io n .

For th e  Commissioners:

DECISION

W illiam  P . Berzak 
Chairman

October 4, 1974



86a

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
LYNDON S JOHNSON SPACE CENTER '

Houston. Tex'-s 77C53
% w  ̂  ̂

REPLY TO 
ATTN O^: A J November 27. 197**

TO: JF3**/Sylvester A. Barrett

FROM: AJ/Equal Opportunity O ff ic e r

SU3J2CT: N otice  o f  Proposed D isposition  o f  D iscrim ination  Complaint

The purpose o f  ttijs'SJ.otice is  to  inform you o f  the proposed d is p o s it io n  
o f  your d iscr im in a tion  complaint and your r igh ts  i f  you are d is s a t is f ie d  
w ith  the proposed  d is p o s it io n .

• Proposed D isposition

This o f f i c e  has.'been "unable to  in form ally  s e t t le  your com plaint. 
I t  would appear th at the evidence as -presented at th is  time 
does not fu l ly  support your a lle g a tio n  o f  d iscr im in a tion . With 
regard  to  the back p3y is su e ,' no award-can be made 'without a 
fin d in g  o f  d iscrim in ation  by the A ssistant Adm inistrator fo r  
Equal Opportunity Programs. We, th e re fo re , o f f e r  the fo llow in g  
d is p o s it io n  which was sta ted  in  the proposed adjustment le t t e r  
dated November 12 , 197**: "When a GS-7 p o s it io n  becomes Vacant
w ith in  th e; R ed istrib u tion  and U t iliza tio n  Section  or  s im ilar 
area  in vhich  you have adequate experience , you w i l l  be 
regarded as a strong  candidate. In the event that you apply, 
th is  o f f i c e  and your organ ization  d ir e c to r  w i l l  review  your 
q u a l i f ic a t io n s  and the t o t a l  s e le c t io n  process to  the extent 
n ecessary  to  determine that yoa- are given a l l  proper consider^ 
a t io n  f o r  that p o s it io n ."

We f e e l  that you should be advised o f  your r ig h t  to  S: hearing 
o r  you r  r ig h t  to  a d ec is ion  w ithout a hearing.

No fu rth e r  action  w i l l  be taken on your complaint by th is  
o f f i c e .

» R ight o f  Hearing

I f  you are d is s a t is f ie d  with the proposed d is p o s it iq n , you may 
requ est a hearing and decision  by the*Agency head o r  h is  
d es ign ee , i f  you  n o t i f y  the  Agency w i t h in  IS coj-endma dcgjc o j 
r e c e i p t  o f  th e  n o t ic e  that.you  d e s ire -a  hearing.



87a

I f  y ou  r e q u e s t  a  h e a r in g  you  a re  e x p e c te d  to  p ro c e e d  w ith o u t  
d e la y  i n  p r e s e n t in g  y o u r  c o m p la in t b e f o r e  th e  a s s ig n e d  C o m p la in ts  
Exam in e r . I f  y o u  p l im  t o  have a r e p r e s e n t a t iv e ,  'you s h o u ld  
itrm '.ed ia te ly  o b t a in  r e p r e s e n ta t io n  and  you  s h o u ld  a ls o  b e g in  
p r e p a r in g  a  l i s t  o f  p ro p o se d  w itn e s s e s  w it h  a  summary o f  the  
te s t im o n y  you  b e l ie v e  ea ch  w ou ld  p r e s e n t  a t  th e  h e a r in g .  The 
C o m p la in ts  .E x a m in e r  w i l l  r e q u e s t  t h i s  l i s t  im m e d ia te ly  a f t e r  
b e in g '^ a ss ig n ed  to. y o u r  c a se .

F a i l u r e  t o  p ro s e c u te  y o u r  c o m p la in t  w ith o u t ,  undue, d e la y  may be 
g ro u n d s  fo_r~tbe C o m p la in ts  E xam in e r t o  r e t u r n  y o u r  c a se  to  
th e  Agency . The Agency may t h e r e a f t e r  is s u e  a  f i n a l  d e c is io n  
b a se d  on th e -e v id e n c e  p r e s e n t  i n  th e  c o m p la in t  f i l e .

Bight o r  D ecis ion  Without A Hearing

I f  you are d is s a t is f ie d  w ith the proposed d is p o s it io n , you 
may request a d ec is ion  by the head o f  the Agency or  h is  
designee w ithout a h e a r in g ,‘ based upon the evidence present in  
the com plaint f i l e .

I f  you f a i l  t o -n o t i fy  the Ageppy o f  your wishes w ith in  the' 15 
day p e r io d , the EEO O ff ic e r  may adopt as the Agency's f in a l  
d e c is io n  the proposed d is p o s it io n  shown above-arid w i l l  so 
n o t i fy  you in  w rit in g . Upon re ce ip t ~cTf n o t i f ic a t io n  you may 
anneal t o  the C iv i l  Serv ice  Commission’ s Appeals Review Board 
w ith in  15 calendar days.

We recogn ize  that you have ex erc ised  your r ig h t to  f i l e  a 
c i v i l  a ction  in  Federal. D is t r ic t  Court. N everth e less, we are 
continu in g  to  process your case adm in istratively  w ith in  the
Agency.

/
•—'d o s  eph D.. Atkins on ,

BH6/Aneta A. Davis 
G a b rie lle  K. McDonald 
183^ Scuthnore B lv d ., Suite 203 
Houston, Texas 77^0^



88a

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 
LYHCON B. JOHNSON SPAfE CENTER 

Houston. T e x a s * 77053

^oUJT/0.v
&

o .. *

=?EPLY TO 
ATJT.N O E : JJJ

November 27, 197L

^0 : JFS/C-lcria A. Williams

FRCH:. AJ/Equal Opportunity O f f ic e r -

SUBJECT;- ^Q tice  o f  Proposed D isp os ition  o f  D iscrim ination  Complaint

Ute purpose o f  th is  n o tice  i 's to  inform  you o f  the proposed d is c o s it io n  
o f  your d iscr im in a tion  complaint and your r ig h ts  i f  you are -d is s a t is f ie d  
with the 'proposed d isp o s it io n ..

e Proposed D isp os ition

In an attempt t o  in form ally  reso lv e  your s i tu a t io n , numerous 
meetings have re su lte d  in  3 p o s it iv e  a c t io n s :

1 . Promotion to  G3-5, May 197L

2 . .Reassignment to -th e  Center Property S e c tio n , Property
' Branch, L o g is t ics  D iv ision  (Proposed Adjustment L e tte r , 

paragraph " a " ,  dated October 31 , 1971*)

3. Strong con sideration  fo r  upward m o b ility  program con s isten t 
w ith your in te r e s t^ a n d  q u a lif ic a t io n s  when the next c la ss  
i s  announced (Proposed Adjustment L e tte r , paragranh "b " , 
dated October 31, 197^). In the event o fyyou r s e le c t io n  
fo r  th is  p o s it io n ,  you would be promoted to  a C-3-7 upon 
s a t is fa c to r y  com pletion o f  the one-year tra in in g  required 
by the program.

Even though we have made p o s it iv e  e f fo r t s  as s ta ted  above, 
there s t i l l  remains the unresolved issue o f  back pay. Under 
the e x is t in g  co n s tra in ts , we are unable to  con sider back pay 
without a fin d in g  o f  d iscrim ination  by the A ssista n t Adm inistrator 
f o r  Equal Opportunity Programs. I t  would appfear that the' 
ev iden ce , as presented at th is  ‘tim e, does not j fu l ly  support 
the a lle g a tio n  o f  d iscr im in a tion ; th e r e fo re , no fu rth er  action  
w i l l  be. taken on your complaint by th is  o f f i c e .  However, th is  
does not mean that a d d ition a l appeals routes are not a v a ilab le  
■for fu rth er review as sta ted  below . In -view  o f  the fa c t  that 
we Rave exhausted a l l  p o ss ib le  action s w ithin  our au th ority , 
we f e e l  that you should be advised o f  your r ig h t to" a' hearing 
or your r ig h t t o  a d ec is ion  without a .h earin g.



89a

2

s> Right o f  Hearing

I f  you are d is s a t is f ie d  v ith  the proposed d is p o s it io n ,-y o u  
m ay'request, a hearing end d ec is ion  by th eA gen cy -h sad  o r  h is  
de's'f'gnee", i f  you  n o t i f y  th e  Agency  w i t h in  IS c a le n d a r - J a y s  o f  
r e c e ip t  o f ' t h e  n o t ic e  th at you des ire  a hearing.

• i f  y o u  re q u e s t  a  h e a r in g  you  a re  e x p e c te d  to  p ro c e e d  w ith o u t
d e la y  i n  p r e s e n t in g  y o u r  c o r tp la in t  b e fo r e  th e  a s s ig n e d  C o m p la in ts  
Exam in e r. i f  you  p la n  to  nave a r e p r e s e n t a t iv e , y o u  s h o u ld  
im m e d ia te ly  o b t a in  r e p r e s e n ta t io n  and  -you s h o u ld  a l s o  b e g in  
p r e p a r in g  a  l i s t  o f  p ro p o s e d  w itn e s s e s  w it h  a  summary o f  tn e  
t e s t in o n ^ y o u  b e l ie v e  eaon w o u ld  p r e s e n t  a t  tn e  h e a r in g .  ^
The C o m p la in ts  E xam in e r w i l l  r e q u e s t  t h i s  l i s t  im m e d ia te ly  
a f t e r  b e in g  a s s ig n e d  to  y o u r  ca se .

F a i l u r e  to  p ro s e c u te  y o u r  c o m p la in t  w it h o u t  unave d e la y  may be 
g rou n d s  f o r  the  C o m p la in ts _ Exam in e r t o  r e t u r n  y o u r  c a se  - to  _ 
th e  A a e n cy . The 'Agency nay  t h e r e a f t e r  is s u e  a  f i n a l -  d e c is io n -  
b a se d  on  th e  e v id e n ce  p r e s e n t  i n  -the c o m p la in t  f i l e .

» Right o f  D ecision  Without’ A Hearing

I f  you are d is s a t is f ie d  v ith  the proposed d is p o s it io n ,  you 
' may request a d ec is ion  by the head o f  the Agency o r  h is  

designee w ithout a h earin g , based upon the evidence present 
in  the ecmplaint f i l e .

I f  you f a i l  to  -n otify  the Agency o f  your w ishes w ith in  the 
15 day p e r io d , the EEO O ff ic e r  may adopt as the Agency s f in a l  
d e c is io n  the proposed d is p o s it io n  shown aDOve and vilcL-.so n o t i fy  
you in w r it in g . Upon re ce ip t  o f  n o t i f i c a t io n  you may appeal 
t o  the C iv i l  S erv ice  Commission's Appeals Review Board w ithin 
15 calendar days.

We recogn ize  that you have ex erc ised  your r ig h t  to  f i l e  a 
c i v i l  a ction  in  Federal D is t r ic t  Court, n e v e rth e le ss , we are 
continu ing  to  process your case ad m in istra tive ly  w ith in  tae

Joseph D. Atkinson, J r .

c c :
BH6/Aneta A. Davis 
G a b rie lie ,K . McDonald 
183*+ Southnore 31vd. , Suite 203 
Houston, Texas .7-700^



m n i  m .s c  reff.
'll

U N IT E D  S T A T E S  C IV IL  S E R V IC E  C O M M IS S IO N  
F E D E R A L  E M P L O Y E E  A P P E A L S  A U T H O R I T Y A ppl:IE lI:b

Atlanta Fiold Office 
13*10 Spring Street. N W 
Atlanta Georgia 30309

March 13, 1975

Ms, Caryl P rivett 
Adams, Baker & Clemon 
Suite 1600, 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

Dear Ms. P r iv e tt :

This is  in  further regard to  the d iscrim ination  complaint o f  Mrs. 
Dorothy Holloway.

The hearing on the complaint has been rescheduled fo r  Monday, A pril 7, 
1975, beginning at 9:00 a.m. in  the Second F loor Conference Room, 
Building 4202, Marshall Space F ligh t Center, H u n tsv ille , Alabama.

With regard to  your request that I order the agency to  answer your 
in terrog a tories  and to furnish you documents, such matters are be ­
yond the scope o f  my authority  under Part 713 o f  the C iv il  Service 
Commission Regulations. I f  you are unable to  obtain  the desired  in ­
formation from the agency, you may request such inform ation  at the 
hearing and, i f  relevance or m a teria lity  is  e sta b lish e d , the agency 
w il l  be requested to  furnish these documents and they w i l l  be entered 
in to  the record as e x h ib its .

S in cere ly  yours

SAMUEL F. VESSER, JR. 
A ssistant Appeals O ffice r

c c :
Mrs, Dorothy Holloway 
3805 Eaton Road 
H u n tsv ille , Alabama 35811



91a

E Q U AL E M P L O Y M E N T  O P P O R T U N I T Y  C O M M IS S I O N  

W A S H I N G T O N .  D .C .  20506

/  ' NOV 2 1 1975

M r. E r i c  S ch n a p p er
NAACP L e g a l D e fe n s e  and E d u c a t io n a l  Fund
10 C o lu n b u s C i r c l e
New Y o rk , New Y o rk  10019

D ea r  M r. S ch n a p p e r :

T h is  i s  in  r e s p o n s e  t o  y o u r  t e le p h o n e  c a l l  o f  N ovem ber 20 
r e q u e s t i n g  d a ta  on  th e  num ber o f  i n d i v i d u a l s  who r e c e i v e d  
b a ck  pay fro m  EEOC c o n c i l i a t i o n  a g r e e m e n ts  and th e  cum ula 
t i v e  d o l l a r  f i g u r e  o f  t h i s  b a ck  p a y .

In  FY 1 9 7 5 , th e  num ber o f  p e r s o n s  b e n e f i t t e d  w as 5 1 ,2 1 6 ;  
th e  d o l l a r  f i g u r e  was $ 1 0 9 ,6 6 9 ,2 3 5 ;  and th e  num ber o f  sue 
c e s s f u l  c o n c i l i a t i o n s  was 5 ,9 8 ? .

In  FY 1 9 7 4 , th e  number o f  p e r s o n s  b e n e f i t t e d  xoas 4 9 , ? 8 8 ;  
th e  d o l l a r  f i g u r e  was $ 5 6 ,2 6 6 ,8 2 7 ;  and th e  num ber o f  s u c ­
c e s s f u l  c o n c i l i a t i o n s  ’was 4 ,5 1 9 .

I h ope th a t  t h i s  in fo r m a t io n  i s  u s e f u l .

S i n c e r e ly  y o u r s

M arty  R o g e rs
S p e c ia l  A s s i s t a n t  t o  th e

E x e c u t iv e  D i r e c t o r



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