Chandler v. Roudebush Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae
Public Court Documents
January 1, 1975

135 pages
Cite this item
-
Brief Collection, LDF Court Filings. Chandler v. Roudebush Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae, 1975. ec243b3d-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/919d58fb-38ff-49be-9676-9a6318655904/chandler-v-roudebush-brief-of-the-naacp-legal-defense-and-educational-fund-as-amicus-curiae. Accessed May 15, 2025.
Copied!
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 MEIIEN PRESS INC. — N. Y. C 219