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Management Directive 110

Chapter 9
APPEALS TO THE COMMISSION

I. INTRODUCTION

Sections 1614.401(a)-(e) of 29 C.F.R. identify those entitled to file appeals to the Commission. 29 C.F.R. § 1614.402(a) provides that appeals to the Commission must be filed by complainant within thirty (30) days[1] of receipt of an agency's final action - that is, a dismissal, final agency decision (FAD), final order, or final determination. If an attorney of record represents the complainant, the 30-day time limit shall begin to run from the date of receipt by the attorney of the agency's final action. If an agency determines not to implement the decision of an Administrative Judge either in full or in part, it must notify the complainant of its determination in a final order issued within forty (40) days of its receipt of the Administrative Judge's decision and it must simultaneously file an appeal with the Commission, in a digital format acceptable to the Commission, absent a good showing why the agency cannot submit digital records. See Chapter 6, Section VIII for more information on what constitutes good cause shown. The complainant may file an appeal with the Commission in either a digital format acceptable to the Commission or by mail. For information regarding appeals submissions see Section IV of this Chapter.

The complainant shall furnish a copy of the appeal to the agency at the same time it is filed with the Commission. In or attached to the appeal to the Commission, the complainant must certify the date and method by which service was made on the agency.

The individual complainant should use EEOC Form 573, Notice of Appeal/Petition. A copy of the Form is attached as Appendix P to this Management Directive. The agency shall attach a copy of EEOC Form 573 to all final actions and dismissals of equal employment complaints. The Commission has prepared a separate form that agencies may use to file appeals with the Commission. A copy of that form is attached as Appendix O.

II. ADVISING THE PARTIES OF THEIR APPEAL RIGHTS

A. Rights Following Administrative Judge Issuance of a Decision

  1. Merits/Class Certification Cases
    1. In a decision on the merits of a non-class complaint or concerning the issue of certification of a class action, the Administrative Judge shall advise the parties that the agency has forty (40) days from the date of its receipt of the Administrative Judge's decision to review the decision and to take final action on the decision by issuing a final order. The 40-day period within which the agency must take final action does not commence until the Administrative Judge issues an order advising the agency that the decision of the Administrative Judge is the final decision and that the agency must take final action within 40 days of its receipt thereof. Where an Administrative Judge issues a decision finding discrimination, the 40-day period will not commence until the Administrative Judge issues a final decision regarding remedies and attorney's fees.[2]
    2. In a decision on the merits of a class complaint, the Administrative Judge shall advise the parties that the agency has sixty (60) days from the date of its receipt of the Administrative Judge's decision to review the decision and to take final action on the decision by issuing a final order. The 60-day period within which the agency must take final action does not commence until the Administrative Judge issues an order advising the agency that the decision of the Administrative Judge is the final decision and that the agency must take final action within 60 days of its receipt thereof.[3]
    3. The Administrative Judge should inform the complainant of the following:
      1. (1) where the agency's final action/final order advises the complainant that the agency accepts the Administrative Judge's decision, the agency will advise the complainant that s/he has thirty (30) days from the date the complainant receives the agency's final order to file an appeal of the final order.
      2. (2) the agency's failure to take final action by issuing a final order within this 40- or 60-day review period will be deemed acceptance of the Administrative Judge's decision;
      3. (3) the complainant's 30-day period for filing an appeal of the agency's final order/Administrative Judge's decision begins at the conclusion of the agency's 40- or 60-day review period;
      4. (4) where the agency's final action/final order advises the complainant that the agency has determined not to fully implement the Administrative Judge's decision, the agency must file an appeal of the Administrative Judge's decision simultaneously with notifying the complainant of its determination (providing the complainant with a copy of the appeal) and advise the complainant of his/her right to file a separate appeal of the Administrative Judge's decision within 30 days of the complainant=s receipt of the agency's final order.
  2. Procedural Dismissal

    When the Administrative Judge issues a procedural dismissal, s/he must advise the complainant that the complainant will have the right to file an appeal of the agency's final order within 30 days of the complainant's receipt thereof.

  3. Class Action Settlement Agreements

    A petition to vacate a resolution may be filed with the Administrative Judge asserting that the resolution favors only the class agent or is not fair, adequate, and reasonable to the class as a whole. An Administrative Judge's decision that a class action settlement agreement is fair, adequate, and reasonable binds all members of the class. The decision must inform the petitioner of the right to appeal the decision to the Commission. The decision must include a copy of EEOC Form 573, Notice of Appeal/Petition.

    An Administrative Judge's decision that a resolution is not fair, adequate, and reasonable vacates the agreement between the class agent and the agency. The decision must inform the class agent, the petitioner, class members, and the agency, of the right to appeal the decision to the Commission. The decision must include a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix P). The agency may use the separate form at Appendix O for filing its appeal with the Commission.

B. Agency Final Action

  1. Agency Final Action

    An agency final action involves agency issuance of a final order to the complainant. The final order informs the complainant whether the agency will fully implement the decision of the Administrative Judge and contains notice of the complainant's right to appeal to the Commission. The term "fully implement" means that the agency adopts without modification the decision of the Administrative Judge. If the agency's final order advises the complainant that the agency will not fully implement the decision of the Administrative Judge, the agency must file an appeal of the decision with the Commission simultaneously with issuing the final order to the complainant. In this way, an agency will take final action on a complaint referred to an Administrative Judge by issuing a final order, but it will not be provided with the opportunity of introducing new evidence or writing a new decision in the case. The agency may use the form attached hereto as Appendix O to file its appeal with the Commission. Whether the agency's final order advises the complainant that the agency will or will not fully implement the Administrative Judge's decision, the agency must provide the complainant with a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix P).

  2. Notice of Rights
    1. Full Implementation

      Where the agency issues a final order in which it agrees to fully implement the Administrative Judge's decision, the order must inform the complainant that s/he has the right to file an appeal of the Administrative Judge=s decision and agency's final order.

      The agency further must inform the complainant that s/he must file an appeal within 30 days of his/her receipt of the agency's final order and the agency must provide the complainant with a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix P).

    2. Less than Full Implementation

      Where the agency issues a final order through which it informs the complainant that it does not intend to fully implement the Administrative Judge's final decision, the agency's final order must inform the complainant that the agency, simultaneously with the issuance of its final order to the complainant, has filed an appeal of the Administrative Judge's decision with the Commission. The agency may use the form appended hereto at Appendix O to file its appeal with the Commission.

      The agency must provide the complainant with a copy of the appeal. The final order further must inform the complainant of the following:

      1. (1) the complainant may file a separate appeal of the agency's final order;
      2. (2) the Commission, as a general rule and in the absence of a separate appeal from the complainant, will review only the agency's decision not to fully implement the Administrative Judge's decision; and
      3. (3) if the complainant contends that the Administrative Judge erred either in any rulings made during the pendency of the action or in the decision, the complainant must file a separate appeal from the agency's final order to challenge such errors.

      The final order must inform the complainant that any such appeal must be filed within 30 days of the complainant's receipt of the final order, and the agency must provide the complainant with a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix P).

C. Agency Final Decision

In any case where the agency issues a final decision (for example, where the complainant elects to have the agency issue a final decision following completion of the investigation), the agency must inform the complainant of his/her right to file an appeal with the Commission and provide the complainant with a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix P). The agency further must inform the complainant that any such appeal must be filed within 30 days of complainant's receipt of the agency's final decision.

D. Agency Procedural Decision

Where the agency issues a decision dismissing a complaint in its entirety pursuant to 29 C.F.R. § 1614.107(a), the agency must inform the complainant of his/her right to file an appeal with the Commission and provide the complainant with a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix P). The agency further must inform the complainant that any such appeal must be filed within 30 days of complainant's receipt of the agency's dismissal decision.

E. Mixed Case Complaints

The agency must advise the complainant that s/he may appeal a final agency decision on a mixed case complaint by filing the appeal with the Merit Systems Protection Board (not the Commission). The agency further must inform the complainant that any such appeal must be filed within 30 days of his/her receipt of the agency's decision. For a fuller discussion concerning the processing of mixed cases, see Chapter 4, Section II of this Management Directive.

III. PERSONS WHO MAY APPEAL

The Commission's regulations governing appeals to the Commission are located at subpart D of 29 C.F.R. Part 1614. Section 1614.401 of 29 C.F.R. sets out who may appeal to the Commission when an issue of employment discrimination is raised either alone or in connection with a grievance, settlement, or a Merit Systems Protection Board (MSPB) claim.

A. A Complainant May Appeal

  1. An agency's dismissal of or final action on a complaint.[4]

B. An Agency Must Appeal

  1. If it determines not to fully implement an Administrative Judge's decision to dismiss or on the merits of a complaint, in an appeal filed simultaneously with the final order served on the complainant.[5]
  2. If it determines, in a class complaint, not to fully implement an Administrative Judge's certification decision or a decision on the merits, in an appeal filed simultaneously with the final order served on the agent.

The agency may use the form appended hereto at Appendix O to file its appeal with the Commission.

C. An Agency May Appeal

An Administrative Judge's decision to vacate a proposed resolution of a class complaint on the grounds that it is not fair, adequate, and reasonable to the class as a whole. The agency may use the form appended hereto at Appendix O to file its appeal with the Commission

D. A Class Agent May Appeal

  1. An Administrative Judge's decision accepting or dismissing all or part of a class complaint.[6]
  2. An agency final action on the merits of the complaint.
  3. An Administrative Judge's decision to vacate a proposed resolution of a class complaint on the grounds that it is not fair, adequate, and reasonable to the class as a whole.[7]
  4. An agency's alleged noncompliance with a settlement agreement in accordance with 29 C.F.R. § 1614.504.

E. A Class Member or Petitioner May Appeal

  1. An Administrative Judge's decision finding a proposed resolution fair, adequate, and reasonable to the class as a whole if the class member filed a petition to vacate the resolution; or finding that the petitioner is not a member of the class and did not have standing to challenge the resolution.
  2. An Administrative Judge's decision that a proposed resolution is not fair, adequate and reasonable to the class as a whole.[8]
  3. An agency's final action on a claim for individual relief under a class complaint.
  4. An agency's alleged noncompliance with a resolution in accordance with 29 C.F.R. § 1614.504.

F. A Grievant May Appeal

  1. A final decision of the agency.
  2. A final decision of the arbitrator.
  3. A final decision of the Federal Labor Relations Authority (FLRA) on the grievance.
  4. Exception: A grievant may not appeal under subpart D of Part 1614, when the dispute initially raised in the negotiated grievance procedure is:
    1. still ongoing in that process,
    2. in arbitration,
    3. before the FLRA,
    4. appealable to the Merit Systems Protection Board (MSPB), or
    5. if 5 U.S.C. § 7121(d) is inapplicable to the involved agency.

IV. FILING THE APPEAL AND RESPONSE

A. How to Appeal

  1. The complainant, agent, grievant or individual class claimant (hereinafter appellant) must file an appeal by mailing the appeal to:

    Equal Employment Opportunity Commission
    Office of Federal Operations
    P.O. Box 77960
    Washington, DC 20013
    Fax: (202) 663-7022

    As an alternative the appeal may be submitted through facsimile or the Commission's electronic document submission portal.

    The complainant should use EEOC Form 573, Notice of Appeal/Petition - Complainant (Appendix P) and should indicate what is being appealed.

  2. Unless it has shown good cause why it is unable to do so,[9], the agency must file an appeal with the Commission in digital format, either by using the Commission's electronic document submission portal or by some other approved method. See 29 C.F.R. § 1614.403(g). The agency may file its appeal by using the form appended hereto at Appendix O to file its appeal with the Commission and/or by providing the Commission with a copy of the order it sends to the complainant.
  3. Where an agency files an appeal simultaneously with providing the complainant with a final order indicating that it does not intend to fully implement the decision of the Administrative Judge, the complainant need not file a separate appeal as a prerequisite to Commission review of the propriety of the agency's decision not to implement the Administrative Judge's decision. If, however, the complainant believes that other issues presented in his/her complaint and addressed by the Administrative Judge were wrongly decided, or if the complainant believes that the Administrative Judge's decision contained errors, the complainant should file an appeal from the agency's final order in order to ensure that the Commission will address these issues as well. Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal.

B. Service of Notice of Appeal

The complainant on appeal shall furnish a copy of the appeal to the agency at the same time it is filed with the Commission. In or attached to the appeal to the Commission, the complainant must certify the date and method by which service was made on the agency.

The agency must certify to the Commission that it has provided the complainant with a copy of the order in which it advised the complainant that it did not intend to fully implement the Administrative Judge's decision, that it informed the complainant of his/her right to file an appeal of its decision and provided the complainant with information as to how s/he may file an appeal, and that it provided the complainant with a copy of EEOC Form 573, Notice of Appeal/Petition (Appendix P).

C. Appeal Will Be Acknowledged

OFO will docket and acknowledge in writing the receipt of an appeal. Where both the agency and the complainant file appeals based on the same complaint following the agency's issuance of an order stating that it does not intend to fully implement the decision of the Administrative Judge, the Commission shall consolidate the appeals under a single Commission Appeal No. and consider both appeals simultaneously.

D. Dismissal of Appeal

If a party files an appeal beyond the applicable time limits, the Commission may dismiss the appeal. The agency should advise the complainant in its dismissal decision or final order that if s/he files his/her appeal beyond the thirty (30)-day period set forth in the Commission's regulations, s/he should provide an explanation as to why his/her appeal should be accepted despite its untimeliness. If the complainant cannot explain why his/her untimeliness should be excused in accordance with 29 C.F.R. § 1614.604, the Commission may dismiss the appeal as untimely.

E. Briefs and Supporting Documents

The complainant may file a brief or statement in support of his/her appeal with the Office of Federal Operations. The optional brief or statement must be filed within thirty (30) days of filing the notice of appeal and a copy of it must be sent to the other party.

The agency may file a brief or statement in support of its final action. The brief or statement must be filed within twenty (20) days of filing its appeal, and in accordance with 29 C.F.R. § 1614.403(g), must be filed in a digital format acceptable to the Commission (see Appendix L).

F. Statements in Opposition to an Appeal

Any statement or brief in opposition to an appeal must be submitted to OFO and served on the opposing party within thirty (30) days of receipt of the statement or brief supporting the appeal. Where both the complainant and the agency file appeals and briefs or statements in support of their appeals, both parties may file statements in opposition to the appeal of the other party. If no brief or statement supporting the appeal is filed, the party opposing the appeal must file its opposition within sixty (60) days of the receipt of the appeal.

G. Submission of Case File

Absent notice from the Commission that it has the case file from the hearing on the same matter, the agency must submit the complaint file to OFO within thirty (30) days of notification that the complainant has filed an appeal or within thirty (30) days of submission of an appeal by the agency. If the complaint was adjudicated by an Administrative Judge, the complaint file must include copies of all documents issued by or served on the Administrative Judge, including, but not limited to, all correspondence to and from the Administrative Judge, orders from the Administrative Judge, and motions and briefs of the parties. Agencies should develop internal procedures that will ensure the prompt submission of complaint files upon a determination not to fully implement an Administrative Judge's decision or notice that a complainant has filed an appeal.

The agency must submit appeals and complete complaint case file(s) to the Commission's Office of Federal Operations in a digital format unless they can show good cause for not doing so. Complainants and their representative(s), if applicable, are strongly encouraged to file all documents in a digital format. See, 29 C.F.R. §1614.403(g). All documents may be uploaded to the Commission's electronic document submission portal. If a CD is used, it is preferred that all documents be provided in a PDF format.

The electronic complaint file must at a minimum have the following features:

  • Electronic bookmarks corresponding to the file index and section dividers of the paper file, if a paper file was created;
  • Sequentially numbered pages starting with the first page of the file. All pages in the report of investigation must be accounted for in the page numbering of the document, including the cover page and any administrative documents, in order for the numbers in the paper file to match precisely the numbers in the electronic file. An individual entering page number 150 into Adobe Acrobat should come to the exact same page as an individual turning to page 150 of the paper file. Administrative documents added after the paper file was compiled may be submitted in a separate PDF file.

H. Signatures on Electronic Documents

It is the Commission's policy to support, encourage, and in the case of agency submissions on appeal, mandate the use of digital documents in lieu of paper for documentation sent to the Commission specifically under the authority of 29 C.F.R. § 1614.403(g). A digital document used by a person, agency, or other entity shall have the same force and effect as those documents not produced by electronic means.

In support of the policy, the Commission considers electronic signatures on such submissions as having the same force and effect as signatures and records produced by hand or other non-electronic means. "Electronic signature" means any digital symbol, sound, or process attached to or logically associated with a digital record and executed or adopted by a person with the intent to sign the record. The Commission will accept an array of digital objects to serve as an electronic signature. These objects can range from keyboarded characters (for example, "/s/Jane Doe"), a graphical image of a handwritten signature, or an authenticated process that creates an electronic signature. An electronic signature is considered attached to or logically associated with a digital record if the electronic signature is linked to the record during transmission and storage.

V. APPELLATE PROCEDURE

A. Where Record Is Complete

Where the record is complete, OFO shall issue a decision in accordance with 29 C.F.R. § 1614.405.

B. Where Record Requires Supplementation

While the Commission retains the right to supplement the record on appeal, it is intended that this right will be exercised only in rare instances to avoid a miscarriage of justice.

  1. Where the record requires supplementation, OFO may require additional information from one or both of the parties. OFO may supplement the record by an exchange of letters, memoranda, or investigation. Each party shall provide copies of such supplemental information to the other party at the time it is submitted to OFO.
  2. Where the record is so incomplete as to require remand to the agency in order to complete the investigation, the Commission shall designate a time period between thirty (30) and ninety (90) days within which the agency must complete the investigation. During the period of remand, the appeal will be held in abeyance and the complaint will be monitored by OFO. Upon completion of the investigation, the agency must provide the complainant with a copy of its supplemental record and findings and return the completed record to OFO. The complainant may, within fifteen (15) days of receipt of the supplemental record, submit a statement concerning the supplemental record to OFO. Upon receipt by OFO, the supplemental record will be included in the appeal file and the appeal will be processed appropriately.

C. Sanctions

Absent good cause shown, there is no legitimate basis for either party to an appeal to fail to comply with the appellate procedures in 29 C.F.R. § 1614.404 or to fail to respond fully and in a timely fashion to a request for information. Accordingly, where either party to an appeal fails to comply with the appellate procedures in 29 C.F.R. § 1614.404 or fails to respond fully and in a timely fashion to requests for information, without good cause shown, OFO shall, in appropriate circumstances, impose any of the following sanctions:

  1. draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information;[10]
  2. consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party;
  3. issue a decision fully or partially in favor of the opposing party; or
  4. take such other actions as appropriate.

See 29 C.F.R. § 1614.404(c). OFO will aggressively utilize sanctions if parties fail, without good cause shown, to comply with the appellate procedures or to respond fully and timely to information requests.[11] Sanctions may be used to effectuate the policies of the Commission by both deterring the non-complying party from similar conduct in the future and by providing an equitable remedy to the opposing party.

Before OFO issues sanctions on either party to an appeal, it will provide the party with a notice to show cause why the sanctions identified in the notice should not be imposed. The notice to show cause will identify the specific conduct that is the basis for the finding of noncompliance and will describe the proposed sanction(s) to be imposed. The notice to show cause will further provide the non-complying party with an opportunity to cure its noncompliance within a reasonable period of time, to be noted in the order. If the party fails to cure its noncompliance or to otherwise show good cause why sanctions should not be imposed, OFO shall impose the sanctions identified in its notice.[12]

D. Appeals Decisions Are Final

An appellate decision issued under 29 C.F.R. § 1614.405(a) is final pursuant to 29 C.F.R. § 1614.407 unless a timely request for reconsideration is filed by a party to the case. A party may request reconsideration within thirty (30) days of receipt of a decision of the Commission, which the Commission in its discretion may grant, if the party demonstrates that 1) the appellate decision involved a clearly erroneous interpretation of material fact or law, or 2) the decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c); Section VII of this Chapter.

VI. STANDARDS OF REVIEW ON APPEAL

Generally, standards of review delineate the nature of the inquiry on appeal by establishing the extent to which the reviewing body will substitute its own judgment for that of the prior decision-maker. The Commission has essentially employed a de novo standard of review in issuing appeals decisions since it took over the federal sector EEO function from the Civil Service Commission pursuant to Reorganization Plan No. 1 of 1978.

The decision on an appeal from an agency's dismissal or final action shall be based on a de novo review, except that the review of the factual findings in a decision by an Administrative Judge issued pursuant to 29 C.F.R. § 1614.109(i) and 29 C.F.R. § 1614.204(i) shall be based on a substantial evidence standard of review. This Section of the Management Directive will ensure a degree of uniformity and predictability in assessing case development and in processing appeals.

A. Review of Final Decisions Issued by the Agency

Appeals of final decisions or actions issued by agencies, duly filed pursuant to 29 C.F.R. § 1614.401(a), (d), or (e) will be considered by the Commission in the following manner:

  1. Agency dismissals pursuant to 29 C.F.R. § 1614.107 and final decisions on the merits of individual complaints pursuant to 29 C.F.R. § 1614.110(b) shall be reviewed de novo.
  2. The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. On appeal the Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and the Commission will issue its decision based on the Commission's own assessment of the record and its interpretation of the law.
  3. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. The Commission may request supplementation of the record. See 29 C.F.R. § 1614.404(b).
  4. Following de novo review, the Commission will issue decisions on the appeals of decisions issued pursuant to 29 C.F.R. § 1614.110(b) based on a preponderance of the evidence.
  5. Where appropriate, and after the requisite analysis, the Commission may adopt the findings and conclusions of the final decision issued by the agency. Such an adoption does not short-cut the review process, but merely serves to expedite communication of the result of the review.

B. Review of Decisions Issued by Administrative Judges

The Commission shall consider an appeal by either an agency or a complainant following a final action based on a decision from an Administrative Judge issued pursuant to 29 C.F.R. § 1614.109(g) (summary judgment decisions), 29 C.F.R. § 1614.109(i) (decisions on individual complaints), and 29 C.F.R. §§ 1614.204(d) and (i) (decisions on class complaints), duly filed pursuant to 29 C.F.R. § 1614.401 et seq., in the following manner:

  1. The review of the post-hearing factual findings in an Administrative Judge's decision shall be based on a substantial evidence standard of review. In Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951), the Supreme Court noted that substantial evidence "is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . . It 'must do more than create a suspicion of the existence of the fact to be established. [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.'" [Citations omitted.]
  2. Applying the substantial evidence review standard, the Commission will give deference to an Administrative Judge's post-hearing factual findings based on evidence in the record. Factual determinations will be distinguished from legal determinations, and the Administrative Judge's factual determinations will be given deference. For example, a credibility determination of an Administrative Judge based on the demeanor or tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony of the witness or the testimony of the witness otherwise so lacks in credibility that a reasonable fact finder would not credit it.
  3. A finding of discriminatory intent will be treated as a factual finding subject to the substantial evidence review standard. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
  4. Legal determinations will be reviewedde novo on appeal.
    1. Legal determinations in decisions, whether made by an Administrative Judge or by the agency, will be reviewed using a de novo standard. There will be no presumption that the previous decision-maker was correct in his/her interpretation or application of the law.
    2. An Administrative Judge's decision to issue a decision without a hearing pursuant to 29 C.F.R. § 1614.109(g) will be reviewed de novo. The substantial evidence standard of review will apply only to decisions rendered following a hearing and will not apply to decisions issued on summary judgment or to decisions issued without a hearing with the consent of the parties.
  5. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the hearing. The Commission may request supplementation of the record. See 29 C.F.R. § 1614.404(b).

C. The Responsibility of the Parties

  1. On appeal, the burden is squarely on the party challenging the Administrative Judge's decision to demonstrate that the Administrative Judge's factual determinations are not supported by substantial evidence. This burden does not exist in a de novo review. The appeals statements of the parties, both supporting and opposing the Administrative Judge's decision, are vital in focusing the inquiry on appeal so that it can be determined whether the Administrative Judge's factual determinations are supported by substantial evidence.
  2. In an appropriate case, and in instances where a party fails to submit a statement or brief in support of his/her appeal, the Commission may issue a summary decision.

VII. RECONSIDERATION

A. Reconsideration Is Not an Appeal

A request for reconsideration is not a second appeal to the Commission. A party may request reconsideration within thirty (30) days of receipt of a Commission decision. The Commission, in its discretion, may grant the request if the party demonstrates that:

  1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
  2. The decision will have a substantial impact on the policies, practices, or operations of the agency. 29 C.F.R. §§ 1614.405(c)(1) & (2).

The Commission reserves the right to reopen any decision on its own motion. See Parnell v. Dep't. of Veterans' Affairs, EEOC Request No. 0520100031 (Dec. 7, 2009).

B. Reconsideration Procedures

  1. Requests for reconsideration and any supporting statement or brief must be filed with the Office of Federal Operations (OFO) within thirty (30) days of receipt of a decision of the Commission and a statement or brief in opposition to a request for reconsideration must be filed within twenty (20) days of receipt of another party's timely request for reconsideration. OFO will accept statements or briefs in support of the request from complainants by fax transmittal, provided they are no more than ten (10) pages long. Agency briefs must be submitted in an approved digital format. The request must also include proof of service on the opposing party.
  2. The requesting party must submit any supporting documents or brief at the time the request is filed. The burden is on the requesting party to make a substantial showing that its request meets one of the two prerequisites for a granting of reconsideration.
  3. The opposing party shall have 20 days from receipt of another party's timely request for reconsideration in which to submit any brief or statement in opposition. Such brief or statement must be served on the requesting party and proof of service must be included with the submission to OFO. OFO will accept briefs or statements in opposition to the request from complainants by fax transmittal, provided they are no more than 10 pages long. Agency briefs must be submitted in an approved digital format.
  4. Failure to provide a proof of service or to submit comments within the prescribed time frame will result in the denial of the request, or the option not to consider the party's untimely statement or brief.

C. Reconsideration Decision Is Final

The Commission's decision on a request for reconsideration is final, and there is no further right by either party to request reconsideration. If the decision remands the complaint for further agency consideration, the parties retain the rights of appeal and reconsideration with respect to any subsequent decision.

VIII. REMEDIES

A. An Agency Shall Provide Full Relief after a Finding of Discrimination

When the agency or the Commission finds that the agency has discriminated against an applicant or employee, the agency shall provide an appropriate remedy as explained in 29 C.F.R. Part 1614, subpart E.

B. Clear and Convincing Standard Needed to Limit Relief; Duty to Cure Discrimination Remains

  1. When an Administrative Judge, agency, or the Commission finds that discrimination existed, but also finds by clear and convincing evidence that the agency would have made the same employment decision even absent the discrimination, the agency shall nevertheless take all steps necessary to eliminate the discriminatory practice and ensure that it does not recur.
  2. Back pay, computed in the manner prescribed by 5 C.F.R. § 550.805, shall be awarded from the date the individual would have entered on duty, assumed the duties of the position at issue, or not been removed from the position unless clear and convincing evidence indicates that the applicant or employee would not have been selected for, placed into, or removed from the position even absent discrimination. The complainant has the obligation to mitigate damages.

C. Relief in Individual Cases

A discussion of the relief available in individual cases is set forth in Chapter 11 of this Management Directive.

D. Relief in Class Cases

A discussion of the relief available in class cases is set forth in Chapter 8, Section XI, of this Management Directive.

IX. COMPLIANCE

A. Relief Ordered in a Decision on Appeal

  1. Compliance with Orders of the Equal Employment Opportunity Commission in final federal appeals decisions is mandatory. Section 717(b) of Title VII, 42 U.S.C. § 2000e-16(b) provides that the Commission shall have authority to enforce prohibitions against discrimination in the federal government "through appropriate remedies, including reinstatement or hiring of employees with or without back pay as will effectuate the policies of this section and shall issue rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities."
  2. The ordered relief shall be provided in full not later than one hundred twenty (120) days after receipt of the final decision unless otherwise ordered in the decision. A decision is considered final when it is issued. The 120-day period includes the 30-day period in which the complainant can file a request for reconsideration, as well as the 90-day period in which the complainant can file a civil action.
  3. A complainant may petition OFO to seek enforcement of a Commission Order. 29 C.F.R. § 1614.503(a). The petition shall be submitted to OFO and shall set forth the basis for the complainant=s assertion that the agency is not complying with the decision. If a petition is docketed acknowledgment letters will be sent to both parties identifying the new docket number and advising them of the right to submit a brief or to comment on the issue(s) in dispute.
  4. Where the Director of OFO is unable to obtain satisfactory compliance with the final decision, the Director shall submit appropriate findings and recommendations for enforcement to the Commission pursuant to 29 C.F.R. § 1614.503(d). Among other things, the Commission may certify the matter to the Office of Special Counsel pursuant to a memorandum of understanding. See 29 C.F.R. § 1614.503(f) or issue a notice to show cause for noncompliance to the head of an agency that has failed to comply with a Commission order pursuant to 29 C.F.R. § 1614.503(e).
  5. Where the Commission has determined that an agency is not complying with a prior decision and wishes to complete administrative efforts, the Commission shall notify the complainant of his/her right to seek judicial review of the agency=s refusal to order the relief or commence a de novo proceeding. See 29 C.F.R. § 1614.503(g).

B. Interim Relief

  1. Interim relief where the agency files a request for reconsideration of a decision regarding removal, separation, or suspension continuing beyond the date of the request for reconsideration:
    1. When the agency requests reconsideration and the case involves removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the agency shall comply with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the position specified by the Commission, pending the outcome of the agency=s request for reconsideration. 29 C.F.R. § 1614.502(b).
    2. The agency must notify the complainant that his/her restoration is temporary or conditional at the same time it seeks reconsideration. Failure of the agency to provide notification will result in the dismissal of the agency=s request. 29 C.F.R. § 1614.502(b)(3).
    3. When the agency seeks reconsideration of a decision that included an award of payments of amounts owed, the agency may delay such payment provided it advises the complainant of its delay and further informs the complainant that it will pay interest on any award ultimately determined to be owed to the complainant. 29 C.F.R. § 1614.502(b)(2).
  2. Interim relief where an agency appeals from a decision of an Administrative Judge in a case involving separation, or suspension continuing beyond the date of the appeal, and when the Administrative Judge's decision orders retroactive restoration:
    1. The agency shall comply with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the position specified in the decision, pending the outcome of the agency appeal. The employee may decline the offer of interim relief. 29 C.F.R. § 1614.505(a)(1).
    2. An agency may decline to return a complainant to his/her place of employment if it determines that the return or presence of the complainant will be unduly disruptive to the work environment. However, the agency must provide prospective pay and benefits. 29 C.F.R. § 1614.505(a)(5).
    3. An agency also may delay the payment of other amounts, exclusive of pay and benefits, when it files an appeal of an Administrative Judge=s decision. If an agency declines to make such payments, it will be required to pay interest on these amounts from the date of the decision until payment is made if the outcome of the appeal requires the agency to make the payment. 29 C.F.R. § 1614.505(a)(3).
    4. An agency must inform the Commission and the complainant in writing that it will delay making required payments at the same time that it files its appeal that it will delay making the payments of any amounts owed pending resolution of the appeal. See 29 C.F.R. § 1614.505(a)(4). If an agency fails to inform either the complainant or the Commission and fails further to make the payments required by the decision being appealed, the Commission will dismiss the appeal. The complainant must file a request for dismissal with the Commission within twenty-five (25) days of the date of service of the agency=s appeal and provide the agency with a copy of the request. The agency will have fifteen (15) days from receipt of the complainant=s request to file a response. 29 C.F.R. § 1614.505(b).

C. Sanctions

  1. There is no legitimate basis for delay in complying with a Commission order, particularly in those cases where the Commission has ordered relief after a finding of discrimination.
  2. OFO will aggressively utilize sanctions if the agency fails to implement the relief ordered.
  3. OFO may recommend that the Commission take enforcement action where an agency does not comply with a Commission order, or, as directed by the Commission, refer the matter to another appropriate agency. See 29 C.F.R. § 1614.503(d). The Commission may issue a show cause notice to the head of the federal agency that is in noncompliance or refer the matter to the Office of Special Counsel for enforcement action. See 29 C.F.R. §§ 1614.503(e) and (f).
  4. OFO may issue a notice to the complainant that the administrative process for securing compliance has been exhausted. See 29 C.F.R. § 1614.503(g). Such a notice will inform the complainant of the right to file a civil action for enforcement of the Commission decision and to seek judicial review of the agency's refusal to implement the relief ordered by the Commission, or of the right to commence proceedings pursuant to the appropriate statute.
  5. An OFO notice to the complainant advising that the administrative process for securing compliance has been exhausted may be issued after the Commission determines an agency is not complying with a prior decision, when an agency fails or refuses to submit a report of compliance required by the Commission, or upon receipt of a request from the complainant. In determining whether to issue such a notice, OFO will consider such factors as whether the agency is making reasonable efforts to comply with the Commission order or, if the notice is requested by the complainant, whether the complainant has legal representation to secure enforcement in court. After issuing such a notice, the Commission ordinarily will terminate its administrative processing of the complaint. Processing will continue, however, if the Director of OFO determines that continued processing would effectuate the purposes of the laws enforced by the Commission.

D. Priority Consideration for Cases Remanded for Investigation

Agencies should give priority to cases remanded for an investigation if this is necessary to comply with the time frames contained in a Commission order. OFO will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint.

E. Remand of Dismissed Claims

Where a complainant's appeal includes a dismissed claim that the Administrative Judge has affirmed but that OFO reverses either on appeal or on reconsideration, OFO shall remand the dismissed claim to the Administrative Judge for further processing in accordance with 29 C.F.R. § 1614.109. Where a complainant appeals from an agency final decision that includes a dismissed claim that OFO reverses, OFO shall remand the dismissed claim to the agency and include an order directing the agency to process the matter in accordance with 29 C.F.R. § 1614.108, except that OFO may order the completion of the investigation within a time period shorter than 180 days.

F. Complainant May File an Appeal Alleging a Breach of a Settlement Agreement

Where a complainant files an appeal alleging a breach of a settlement agreement and the Commission determines that the agreement was breached, the complainant may request enforcement of the settlement agreement or may request reinstatement of the underlying complaint at the point at which the processing of the complaint was stopped. See Chapter 10, Section II (A)(3) for more information about settlement agreement appeals. Where a complaint is reinstated for further processing, both the agency and the complainant would be returned to the status quo ante at the time that the parties entered into the settlement agreement, which would require the complainant to return any benefits received pursuant to the agreement. See Christensen v. Dep't. of Homeland Security, EEOC Appeal No. 0120081918 (September 17, 2008) (citing Armour v. Dep't. of Defense, EEOC Appeal No. 01965593 (June 24, 1997).

G. Complainant May Appeal to the Commission for Enforcement of an Agency Final Action

A complainant may file an appeal with the Commission for enforcement of an agency=s final action through which the agency has accepted the decision of an Administrative Judge. 29 C.F.R. §§ 1614.504(a) - (c). The complainant first must notify the agency=s EEO Director of the agency=s alleged noncompliance with the final action within thirty (30) days of when the complainant knew or should have become aware of the agency=s noncompliance. If the agency has not responded to the complainant=s notice within thirty-five (35) days, the complainant may file an appeal with the Commission. If the agency has responded to the complainant=s notice before the complainant files an appeal with the Commission, the complainant must file an appeal within 30 days of his/her receipt of the agency=s response.

H. Compliance Reports Required by Commission Appellate Decisions Containing Orders for Corrective Action

The implementation paragraph found in Commission appellate decision orders provides that a compliance report shall be submitted within thirty (30) calendar days of the completion of all ordered corrective action.

The compliance report must contain 1) supporting documentation for all ordered corrective action, and 2) evidence that copies of all submissions in support of compliance were sent to the complainant. See Appendix Q for a Quick Reference Chart describing the documentation required to satisfy compliance with the most common orders found in the Commission appellate decisions.

Compliance reports, like all other agency submissions on appeal, must be submitted in a digital format acceptable to the Commission (see Appendix L) unless an agency has shown good cause why they are unable to submit in a digital format. Submissions may be made using the Commission's electronic submission portal, or by copying the digital file onto a CD and submitted to:

(The designated Compliance Officer)
Office of Federal Operations
Equal Employment Opportunity Commission
Post Office Box 77960
Washington, DC 20013

All submissions must reference the compliance docket number assigned to the compliance action.

X. CIVIL ACTIONS

Filing a civil action terminates Commission processing of an appeal. See 29 C.F.R. § 1614.409.

XI. NOTICE REQUIREMENTS

Agencies are required to notify complainants of their rights to appeal to the Commission and to file a civil action within the specified limitations periods. Agencies must also notify complainants of their statutory right to request court appointment of counsel for representation in connection with the filing of civil actions, which arise from Title VII, GINA, and the Rehabilitation Act. See Hilliard v. Volcker, 659 F.2d 1125 (D.C. Cir. 1981). Therefore, agencies subject to 29 C.F.R. Part 1614 are required to include the appropriate language in every decision on complaints which allege discrimination. Sample language is provided in Chapter 10, Section IV of this Management Directive.


[1] All time limits stated in this Management Directive are in calendar days. The time limits in Part 1614 are subject to waiver, estoppels, and equitable tolling. 29 C.F.R. § 1614.604(c). For further guidance, see EEOC Compliance Manual, Section 2 "Threshold Issues," IV-D, Timeliness.

[2] If service of the Administrative Judge's decision was by mail without the use of certified mail/return receipt, the agency may add five days to the date that the final action is due. This rule, adding five days to the date of service, shall apply in all instances where the party being served has the right to take an action within a period of time following such service, except where the serving party uses certified mail/return receipt and can establish the date of actual receipt.

[3] Due to the potential complexity of class complaints that proceed through litigation, the 60-day period is intended to provide agencies adequate time to review the Administrative Judge's decision on liability and relief.

[4] An agency's final action on a complaint may include either 1) a dismissal, see 29 C.F.R. § 1614.107(a); 2) a final order from the agency stating whether it will fully implement the decision of the Administrative Judge, see 29 C.F.R. § 1614.110(a); 3) a final agency decision on the merits of the complaint where the complainant requested an immediate final decision pursuant to 29 C.F.R. § 1614.108(f); or 4) an agency's final determination on its alleged noncompliance with a settlement agreement in accordance with 29 C.F.R. § 1614.504. See 29 C.F.R. § 1614.110(b). The regulations further provide that the agency must file an appeal with the Commission at the same time it serves the final order on the complainant following receipt of a decision from an Administrative Judge where it does not intend to fully implement the decision. The agency's filing of an appeal of an Administrative Judge's decision that it does not intend to fully implement will result in the Commission's review of the agency's decision not to fully implement the Administrative Judge's decision. The complainant need not file a separate appeal to have the Commission review the agency's actions. Where, however, the complainant contends that the Administrative Judge erred either in any rulings made during the pendency of the action or in the decision, the complainant would need to file an appeal from the agency's final order to challenge such errors.

If an agency fails to take any action during the 40-day period, the Administrative Judge's decision would be deemed ratified and the complainant would be entitled to file an appeal of the Administrative Judge's decision as ratified after the expiration of the 40-day period. The agency would not be permitted to cross-appeal or challenge any aspect of the Administrative Judge's decision in this situation.

[5] If the agency issues a final order to the complainant stating that it does not intend to fully implement the decision of the Administrative Judge but fails to file an appeal, the agency's final order has no effect on the Administrative Judge's decision. If the agency fails properly to issue a final order and file an appeal simultaneously with the issuance of the order, the Administrative Judge's decision will be deemed ratified by the agency upon the expiration of the agency's 40-day period for accepting or not accepting the Administrative Judge's decision.

[6] Included is a dismissal of a complaint that does not meet the prerequisites of a class complaint as enumerated in 29 C.F.R. § 1614.204(a)(2) where the decision to dismiss informs the class agent that the complaint is being filed as an individual complaint. The Office of Federal Operations, Appellate Review Programs, will provide expedited consideration (within 90 days of receipt of appeal) of class complaints that are dismissed for failure to meet the prerequisites of a class complaint. See 29 C.F.R. § 1614.405(b).

[7] See 29 C.F.R. § 1614.204(g)(4). A petition to vacate a resolution may be filed with the Administrative Judge asserting that the resolution favors only the class agent or is not fair, adequate, and reasonable to the class as a whole. The petitioner may file an appeal with the Commission if the Administrative Judge finds the resolution fair, adequate, and reasonable to the class as a whole. If the Administrative Judge finds the agreement not fair, adequate, and reasonable, the class agent, class members, and the agency may file an appeal.

[8] As noted above, where the Administrative Judge finds the agreement not fair, adequate, and reasonable, the class agent, class members, and the agency may file an appeal. If the Administrative Judge finds that the agreement is fair, adequate, and reasonable, only the petitioner may file an appeal.

[9] For a showing of good cause the agency must submit a written request to the Director of the Office of Federal Operations identifying why they cannot meet the digital filing requirements and when they expect to be able to meet the digital filing requirements.

[10] See for example, Smith v. Dep't. of Transportation (Federal Aviation Administration), EEOC DOC 0320080085, (Mar. 21, 2012) (finding that because the agency failed to comply with OFO's explicit order to produce comparative evidence, the agency was subject to sanctions for its noncompliance, including the drawing of an adverse inference that the requested comparative evidence would have reflected unfavorably on the agency).

[11] The Commission has exercised its inherent authority to enforce its Part 1614 regulations by ordering sanctions in response to various violations. See for example, Vu v. Social Security Administration, EEOC Appeal No. 0120072632 (Jan. 20, 2011)(finding that the agency was subject to sanctions for its failure to submit the complete complaint file); DaCosta v. Dep't. of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000)(Commission issued sanction against agency for failure to complete timely investigation).

[12] Sanctions usually will be contained in the decision of the Commission on appeal. If the sanction is contained in a separate order and not the decision on the appeal, the sanction is not immediately reviewable. Once OFO issues a decision on an appeal, the sanctioned party may request reconsideration pursuant to 29 C.F.R. § 1614.405(c). If the sanction is issued while a matter is pending review under 29 C.F.R. § 1614.405(c) or is contained in a 29 C.F.R. § 1614.405(c) decision, there is noadministrative review available.