Federal Register: October 26, 2000 (Volume 65, Number 208)
DOCID: FR Doc 00-27470
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Treasury Department
CFR Citation: 24 CFR Part 7
Docket ID: [Docket No. FR-4607-P-01]
RIN ID: RIN 2501-AC73
NOTICE: Part V
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY:
Equal Employment Opportunity; Updating of EEO Policies and Procedures
DATES: Comment due date: November 27, 2000.
DOCUMENT SUMMARY:
This proposed rule amends HUD's regulations governing the Department's equal employment opportunity policies, procedures and programs. The amendments update the Department's current EEO regulations and make them consistent with recently issued regulations of the Equal Employment Opportunity Commission (EEOC).
SUMMARY:
Department of Housing and Urban Development,
SUPPLEMENTAL INFORMATION
I. Background
This proposed rule updates HUD's regulations in 24 CFR part 7 that pertain to the Department's equal employment opportunity policies, procedures and programs. The amendments to be made by this proposed rule will provide for regulations that supersede the last revision of part 7, issued on April 29, 1996. This rule proposes to conform to HUD's regulations to the recently amended EEOC regulations in 29 CFR part 1614. The revised part 1614 regulations became effective on November 9, 1999 (see final rule issued July 12, 1999, at 64 FR 37644). In addition, this proposed rule provides HUD's current and former employees and applicants with a more complete guide to the processing of equal employment opportunity (EEO) complaints. The most significant change proposed by this rule is the establishment of an Alternative Dispute Resolution (ADR) program designed to promote impartial, fair and early resolution of EEO complaints.
II. Changes to Part 7 Proposed by This Rule
The revisions proposed by this rule (in regulatory section numerical sequence) are as follows:
Section 7.1 Policy
This section adds reference to Executive Order 12871. Section 7.2 Definitions
This section defines and in some cases explains the following terms and acronyms which are used in this part: aggrieved individual, Alternative Dispute Resolution, claim, comparable, conflictofinterest complaint, Director of Equal Employment Opportunity, disability, Diversity Program Manager, EEO, EEOC, Equal Employment Opportunity Discrimination Complaint Manager, EEO Officer Pro Tem, final decision, final action, final order, neutral, organizational unit, record and reprisal.
Section 7.3 Designations
This section explains that cases presenting a conflictofinterest for the Office of Departmental Equal Employment Opportunity (ODEEO) will be transferred for processing to an EEO Officer Pro Tem (an official at a neutral federal agency). The Director of EEO will make such determinations as to the appropriateness of and need for such transfers on a casebycase basis. This section also requires that each organizational unit appoint an Equal Employment Opportunity Discrimination Complaint Manager (DCM) and a Diversity Program Manager. Section 7.5 EEO Alternative Dispute Resolution Program
This section describes the Department's alternative dispute resolution (ADR) program for EEO matters.
Section 7.10 Responsibilities of the Director of EEO
This section identifies the Director's responsibility to provide an ADR program for EEO matters at the precomplaint and formal complaint stages of the EEO process. This section also identifies the Director's responsibility to provide mandatory annual EEO and ADR training for supervisors and managers. Such training may be a component of Departmentwide supervisory and management training developed in coordination with the Offices of Human Resources and General Counsel. Section 7.11 Responsibilities of the EEO Officers
This section identifies the EEO Officer's duty to assist in providing for and ensuring managers' and supervisors' mandatory participation in EEO ADR training and cooperation with the ADR process. Section 7.12 Responsibilities of the EEO Counselors
This section is expanded to clearly describe the enhanced responsibilities of the EEO Counselors.
Section 7.13 Responsibilities of the Assistant Secretary for Administration
This section requires the coordination of mandatory EEO ADR training for EEO Counselors, supervisors and managers.
Section 7.14 Responsibilities of the Office of Human Resources
This section requires the development of an ongoing Departmentwide training program for supervisors and managers, to ensure understanding of the EEO ADR Program and coordination between and among the Director of EEO, the HUD Training Academy, the Office of General Counsel and the Office of Human Resources to provide the required EEO ADR training. Section 7.15 Responsibilities of Managers and Supervisors
This section adds the requirement of mandatory attendance by managers and supervisors at annual EEO ADR management and supervisory training, and the requirement of full cooperation during ADR and throughout the EEO complaint processing and investigation process. Section 7.16 Responsibilities of Employees
This section reiterates the requirement of employee cooperation
during EEO counseling, EEO investigations, ADR and throughout the entire EEO complaint process.
[[Page 64321]]
Section 7.26 EEO Alternative Dispute Resolution Program
This new section describes the EEO ADR Program made available in the EEO process.
Section 7.37 Final Action
This new section explains the various types of EEO final actions which result in final decisions and orders by the Department and EEOC Administrative Judges.
Section 7.38 Appeals
This new section explains the appeal procedures and the time limitations.
Section 7.39 Negotiated Grievance, MSPB Appeal and Administrative Grievance Procedures
This new section explains the other complaint processes available to Department employees.
Section 7.40 Remedies and Enforcement
This new section explains the remedies and the enforcement procedures to be followed in EEO cases where discrimination is found. Section 7.41 Compliance with EEOC Final Decisions
This new section explains the procedures to be followed by the Department when relief is ordered by EEOC.
Section 7.42 Enforcement of EEOC Final Decisions
This new section explains the procedures regarding the enforcement of EEOC's final decisions.
Section 7.43 Settlement Agreements
This new section explains the procedures for compliance with settlement agreements and final actions.
Section 7.44 Interim Relief
This new section explains how interim relief is granted when the Department appeals an EEOC decision.
Section 7.45 EEO Group Statistics and Reports
This new section describes the EEOC's requirements for the collection of statistics, accurate employment applicant flow information and other EEO data, and the submission of annual reports. III. Justification for Shortened Public Comment Period
It is the general practice of the Department to provide a 60day
public comment period on all proposed rules. The Department, however,
is reducing its usual 60day public comment period to 30 days for this
proposed rule. This rule pertains primarily to HUD employees and
through HUD's internal review process, this rule already has been disseminated to HUD employees, for review and comment.
IV. Findings and Certifications
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this proposed rule before publication and by approving it certifies that this rule would not have a significant economic impact on a substantial number of small entities. This proposed rule involves internal HUD operations and pertains only to current/former employees and applicants for employment at HUD. Environmental Impact
In accordance with 24 CFR 50.19(c)(3) of HUD's regulations, this proposed rule would provide for the enforcement of nondiscrimination within HUD, and therefore is categorically excluded from the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 43214347).
Executive Order 13132, Federalism
This rule does not have Federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of Executive Order 13132. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act 1995 (Pub. L. 1044; approved March 22, 1995) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and on the private sector. This rule would not impose any Federal mandates on any State, local, or tribal government, or on the private sector, within the meaning of the UMRA. List of Subjects in 24 CFR Part 7
Administrative practice and procedure, Equal employment opportunity, Organization and functions (Government agencies).
Accordingly, 24 CFR part 7 is proposed to be revised as follows:
PART 7EQUAL EMPLOYMENT OPPORTUNITY; POLICY, PROCEDURES AND PROGRAMS
Subpart AEqual Employment Opportunity Without Regard to Race, Color,
Religion, Sex, National Origin, Age, Disability or Reprisal General Provisions
Sec.
7.1 Policy.
7.2 Definitions.
7.3 Designations.
7.4 Affirmative employment programs.
7.5 EEO Alternative Dispute Resolution Program.
Responsibilities
7.10 Responsibilities of the Director of EEO.
7.11 Responsibilities of the EEO Officers.
7.12 Responsibilities of the EEO Counselors.
7.13 Responsibilities of the Assistant Secretary for
Administration.
7.14 Responsibilities of the Office of Human Resources.
7.15 Responsibilities of managers and supervisors.
7.16 Responsibilities of employees.
PreComplaint Processing
7.25 Precomplaint processing.
7.26 EEO Alternative Dispute Resolution Program.
Complaints
7.30 Presentation of complaint.
7.31 Who may file a complaint, with whom filed, and time limits. 7.32 Representation and official time.
7.33 Contents of the complaints.
7.34 Acceptability.
7.35 Processing.
7.36 Hearing.
7.37 Final action.
7.38 Appeals.
Other Complaint and Appeal Procedures
7.39 Negotiated grievance, MSPB appeal and administrative grievance procedures.
Remedies, Enforcement and Compliance
7.40 Remedies and enforcement.
7.41 Compliance with EEOC final decisions.
7.42 Enforcement of EEOC final decisions.
7.43 Settlement agreements.
7.44 Interim relief.
Statistics and Reporting Requirements
7.45 EEO group statistics and reports.
Subpart B[Reserved]
Authority: 29 U.S.C. 206(d), 633a, 791 and 794; 42 U.S.C. 2000e
note, 2000e16, 42 U.S.C. 3535(d); E.O. 11478 of Aug. 8, 1969; 34 FR
19285, Aug. 12, 1969; E.O. 10577, 3 CFR 19541958; E.O. 11222, 3 CFR 1964965.
[[Page 64322]]
Subpart AEqual Employment Opportunity Without Regard to Race,
Color Religion, Sex, National Origin, Age, Disability or Reprisal General Provisions
Sec. 7.1 Policy.
The Department's equal employment opportunity policy conforms with
the policies expressed in title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000d2000d4); the Civil Rights Act of 1991; Executive Order
11478 of 1969 (34 FR 12985, 3 CFR 19661970 Comp., p. 803); the Age
Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. et seq.);
the Equal Pay Act of 1963 (29 U.S.C. 206d); sections 501 and 504 of the
Rehabilitation Act of 1973, and reaffirming Executive Order 12871 (29
U.S.C. 791, 794); the Civil Service Reform Act of 1978 (5 U.S.C. 1101
et seq.); Executive Order 13087 of 1998 (63 FR 30097); and with the
EEOC's implementing regulations, codified under 29 CFR part 1614. It is
HUD's policy to provide equality of opportunity in employment in the
Department for all persons; to prohibit discrimination on the basis of
race, color, religion, sex, national origin, age, disability or
reprisal in all aspects of its personnel policies, programs, practices,
and operations and in all its working conditions and relationships with
current or former employees and applicants for employment; and to
promote the full realization of equal opportunity in employment through
continuing programs of affirmative employment at every level within the
Department. Procedures for filing EEO claims are found in the EEOC
regulations at 29 CFR part 1614. HUD is committed to promoting
affirmative employment through the removal of barriers and by positive
actions at every level, including the early resolution of EEO disputes. Sec. 7.2 Definitions.
AE means affirmative employment.
Aggrieved individual means a person who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. The terms ``aggrieved individual'' and ``aggrieved person'', as used in this part, are interchangeable.
Alternative Dispute Resolution (ADR) means a variety of approaches used to resolve conflict rather than traditional adjudicatory or adversarial methods such as litigation, hearings, and administrative processing and appeals. The approaches used may include, but are not limited to: negotiation, conciliation, facilitation, mediation, fact finding, peer review, minitrial, arbitration, or ombudsman.
Claim means action the agency has taken or is taking that causes
the aggrieved person to believe that he or she is a victim of discrimination. This term replaces the formerly used term
``allegation'' and is used interchangeably with the term ``issue''.
Comparable means a person designated as head of an organizational unit that is analogous to that headed by an Assistant Secretary.
Conflictofinterest complaint means an EEO complaint arising in the Department which names the Director of EEO or the Deputy Director of EEO, or both, as the responsible management officials.
Director of Equal Employment Opportunity (EEO) means the Director of HUD's Office of Departmental Equal Employment Opportunity who is also designated as the Director of EEO in this part.
Disability means the same as the term ``handicap'' under EEOC's regulations at 29 part 1614.
Discrimination Complaint Manager
(DCM) means the designee, appointed by the Assistant Secretary (EEO
Officer) or the Assistant Secretary's comparable, who assists the EEO
Officer in discharging his or her EEO responsibilities and is
responsible for carrying out the EEO discrimination complaint process
for the organizational unit pursuant to the applicable civil rights laws, the regulations at 29 CFR part 1614 and this part.
Diversity Program Manager means the designee appointed by the
Assistant Secretary (EEO Officer) or the Assistant Secretary's
comparable who assists the EEO Officer in promoting appreciation of the
contributions of women, minorities, and persons with disabilities, and in promoting the value of all Department employees.
EEO means equal employment opportunity.
EEO Officer Pro Tem means the Chief of Staff or an official at a neutral federal agency designated to process an EEO claim that would be a conflict of interest for the Director of EEO or the Deputy Director of EEO, or both.
EEOC and Commission mean the Equal Employment Opportunity Commission.
Final action means the Department's issuance of a final decision or final order.
Final decision means HUD's determination of the findings of fact and law on the merits or the procedural issues of an EEO complaint based upon the available record.
Final order means the Department's final action which states whether the Department will fully implement the decision or order of an EEOC Administrative Judge, or both.
Neutral means an individual who mediates or otherwise functions to specifically aid the parties in resolving the issues, and has no official, financial, or personal conflict of interest with respect to the issues being disputed, unless such interest is fully disclosed in writing to all parties and all parties agree that the neutral may serve.
Organizational unit means the jurisdictional area of the Department's program offices such as the Office of the Secretary, the Office of General Counsel, etc.
Record means all documents related to the EEO complaint as outlined in EEOC Management Directive 110.
Reprisal means the action taken against a current or former
employee or applicant in retaliation for previous EEO participation in
protected EEO activity or for opposing employment practice or policy
illegal under EEO statutes. The terms ``reprisal'' and ``retaliation'' are used interchangeably.
Sec. 7.3 Designations.
(a) Director of Equal Employment Opportunity. The Director of the
Office of Departmental Equal Employment Opportunity (ODEEO) is
designated as the Director of EEO, except for complaints naming the
Director or Deputy Director of Departmental EEO, or both, as the
responsible management official(s) in complaints arising in the ODEEO
which present a conflictofinterest. In such cases, the Director of EEO may:
(1) Transfer the case to the Chief of Staff for processing; or
(2) On behalf of the Department, enter into an agreement with one
or more federal agencies for processing of the Department's conflict
ofinterest cases by the designated federal official chosen to serve as the EEO Officer Pro Tem.
(b) Deputy Director of Equal Employment Opportunity. The Deputy
Director of the ODEEO is designated as the Deputy Director of EEO and acts in the absence of the Director of EEO.
(c) Equal Employment Opportunity Officer. The Director of EEO shall
designate the Assistant Secretary or the Assistant Secretary's comparable as EEO Officer for the Department's respective
organizational units for complaints arising in the respective Assistant
Secretary's or Assistant Secretary's comparable organizational unit.
(d) Equal Employment Opportunity Discrimination Complaint Manager (DCM). Each Assistant Secretary (EEO
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Officer) shall designate a DCM to represent the organizational unit in
EEO matters and assist the EEO Officer in carrying out EEO
responsibilities. The DCM shall be the Administrative Officer (AO) for
the organizational unit or another designee of the EEO Officer. Sec. 7.4 Affirmative employment programs.
The Office of the Secretary, each Assistant Secretary, the General Counsel, the Inspector General, the President of the Government National Mortgage Association, the Chief Financial Officer, the Chief Procurement Officer, the Chief Information Officer, the Director of Lead Hazard Control, the Director of the Office of Multifamily Housing Assistance Restructuring, the Director of the Departmental Enforcement Center, the Director of the Real Estate Assessment Center, and the Director of the Office of Federal Housing Enterprise Oversight and other positions that may be established and are comparable to an Assistant Secretary, shall establish, maintain and carry out a plan of affirmative employment (AE) to promote equal opportunity in every aspect of employment policy and practice. Each plan shall identify instances of underrepresentation of minorities, women and persons with disabilities, recognize situations or barriers that impede equality of opportunity, and include objectives and action items targeted to eliminate any employment, training, advancement, and retention issues which adversely affect minorities, women and persons with disabilities. Each plan must be consistent with 29 CFR part 1614, is subject to approval by the Director of EEO and shall be developed within the framework of Departmentwide guidelines published by the Director of EEO.
Sec. 7.5 EEO Alternative Dispute Resolution Program.
In accordance with the Secretary's Policy Statement regarding
Alternative Dispute Resolution (ADR) located on the Department's
website and 29 CFR 1614.102(b)(2), the Department shall establish and
maintain an ADR program that addresses, at a minimum, EEO matters at
the precomplaint and formal complaint stages of the EEO process. ADR
is a nonadversarial process that does not render a judgment with
respect to the dispute. With the assistance of an impartial and neutral
third party, ADR offers parties involved the opportunity to reach early
and informal resolution of EEO matters in a mutually satisfactory fashion.
(a) Program availability. In appropriate cases, the EEO ADR Program
is made available to an aggrieved person or Complainant during the pre
complaint and the formal complaint processing periods. Participation in
the program by the aggrieved person or complainant, is voluntary.
However, managers and supervisors shall cooperate in the ADR process
once the aggrieved person or complainant has requested to participate
and the ODEEO has determined that the matter is appropriate for ADR.
Participation in the EEO ADR Program at the formal complaint stage of
the EEO process will be determined on a casebycase basis by the
appropriate ODEEO official designated by the Director of EEO and does
not affect the processing of the formal complaint, including the investigation.
(b) EEO ADR program procedures. The ODEEO shall establish and
maintain all EEO ADR Program procedures which include appropriate consultations.
(c) ADR training. Training and education on the EEO ADR Program
will be provided to all Department employees, managers and supervisors, and other persons protected under the applicable laws.
(d) Precomplaint ADR election process. The appropriateness of a
particular EEO matter or EEO complaint for the Department's ADR Program
shall be determined on a casebycase basis by the ODEEO official
designated by the Director of EEO. The EEO Counselor shall advise the
aggrieved person that the aggrieved person may choose between
participation in the EEO ADR Program or the EEO traditional counseling
activities provided for at 29 CFR 1614.105(c). The aggrieved person's
election to proceed through ADR instead of EEO counseling is final.
(e) ADR counseling requirements. (1) The minimum information to be
provided by the EEO Counselor about the Department's ADR Program includes the following:
(i) Definition of the term ADR;
(ii) An explanation of the stages in the EEO process at which ADR may be available;
(iii) A description of the ADR technique(s) used by the Department;
(iv) A description of how the program is consistent with the EEO
ADR core principles that ensure fairness and require voluntariness, neutrality, confidentiality, and enforceability;
(v) An explanation of procedural and substantive alternatives; and
(vi) All time frames for the EEO administrative process including ADR.
(2) The EEO Counselor shall have no further involvement in
resolving the EEO matter after the referral to the EEO ADR program.
(f) Extension of precomplaint processing period for ADR. Where the
aggrieved person chooses to participate in ADR, the precomplaint
processing period shall not exceed 90 days from the date of initial contact with the EEO Office.
(1) The aggrieved person shall be informed in writing by the EEO
Counselor, no later than the thirtieth day after contacting the EEO
Counselor, of the right to file a discrimination complaint, if the
matter presented by the aggrieved person has not been resolved.
(2) Prior to the end of the 30day period from the date of initial
contact with the EEO Office, the aggrieved person may agree, in
writing, with the Department to postpone the final interview and extend
the precomplaint period for an additional period of no more than 60
days if the matter is not resolved. If the matter has not been resolved
before the conclusion of the agreed extension, the notice of right to
file a discrimination complaint shall be issued no later than the 90th
day of initial contact with the EEO Office. The notice shall inform the
aggrieved person of the right to file a discrimination complaint within
15 days of receipt of the notice, of the appropriate official with whom
to file a complaint and of the aggrieved person's duty to assure that
the Department is informed immediately if the aggrieved person retains
counsel or a representative and if the aggrieved person changes address.
(g) EEO ADR Program's relationship to negotiated grievance, MSPB
appeal and administrative grievance procedures. Participation in the
EEO ADR program does not preclude the aggrieved person or Complainant
from exercising rights under any of the Department's other complaint or
appeal procedures, when no resolution is reached. When participation in
ADR results in a settlement agreement and the aggrieved person or
Complainant believes the Department has failed to comply with its
terms, the aggrieved person or Complainant may exercise the right of appeal pursuant to 29 CFR 1614.504.
Responsibilities
Sec. 7.10 Responsibilities of the Director of EEO.
The Director and Deputy Director of EEO are responsible for:
(a) Advising the Secretary with respect to the preparation of
plans, procedures, regulations, reports, and other matters pertaining to the
[[Page 64324]]
Government's equal employment opportunity policy and the Department's EEO/ADR/AE programs;
(b) Developing and maintaining plans, procedures, and regulations
necessary to carry out the Department's EEO programs, including a
Departmentwide program of affirmative employment developed in
coordination with other officials; and approving programs of
affirmative employment established by each EEO Officer or comparable organizational head;
(c) Evaluating, at least annually, the sufficiency of each
organizational unit's EEO/ADR/AE program and providing reports thereon
to the Secretary with recommendations as to any improvement or
correction needed, including remedial or disciplinary action with
respect to managerial or supervisory employees who have failed in their responsibility;
(d) Appraising the Department's personnel operations at regular
intervals to ensure their conformity with the policies of the Government's and the Department's EEO program;
(e) Making changes in programs and procedures designed to eliminate
discriminatory practices and improve the Department's EEO/ADR/AE programs;
(f) Selecting EEO Counselors;
(g) Providing for counseling by an EEO Counselor to a current or
former employee or applicant for employment who believes that he or she
has been discriminated against because of race, color, religion, sex,
national origin, age, disability, or in retaliation for participation
in protected EEO activity; or for opposing a policy or practice illegal under EEO statutes;
(h) Providing for the prompt, fair and impartial processing of
individual complaints involving claims of discrimination within the Department subject to 29 CFR part 1614;
(i) Making the final decision on discrimination complaints and
ordering such corrective measures as may be necessary, including
disciplinary action warranted in circumstances where an employee has been found to have engaged in a discriminatory practice.
(j) Executing settlement agreements to resolve EEO complaints;
(k) Making available an ADR Program for EEO matters at both the
precomplaint and formal EEO complaint stages of the EEO administrative process;
(l) Developing and providing annual mandatory EEO and ADR training
for EEO Counselors, and all supervisors and managers in conjunction
with HUD Training Academy, Office of Human Resources, and the Office of
General Counsel, other federal agencies and resources with ADR information and expertise; and
(m) Publicizing to all employees and posting at all times the
names, business telephone numbers and addresses of the EEO Counselors,
EEO Director, EEO Officers, and Diversity Program Managers, notice of
EEO complaint processing time limits and the requirements of contacting
an EEO Counselor and completing the counseling phase before filing a complaint.
Sec. 7.11 Responsibilities of the EEO Officers.
Each EEO Officer is responsible for:
(a) Advising the Director of EEO on all matters affecting the
implementation of the Department's EEO/ADR/AE policies and programs in the organizational unit;
(b) Developing and maintaining a program of affirmative employment
for the organizational unit and ensuring that the program is carried out in an exemplary manner;
(c) Publicizing to all employees of the organizational unit the
name and address of the Director of EEO, the EEO Officer(s), and the
EEO Counselor(s), the EEO Discrimination Complaint Manager(s), the
Affirmative Employment Program (AEP) Manager, the Diversity Program Manager, ADR Officials, and the EEO complaint procedures;
(d) Informing all managers and supervisors in the organizational
unit of the responsibilities and objectives of the EEO Counselors,
DCMs, ADR officials, EEO investigators, and of the EEO complaint
process and the importance of cooperating and coordinating with all
appropriate Department personnel to informally find solutions to
problems brought to the EEO Officer's attention by current or former employees and applicants;
(e) Evaluating and documenting the performance by the managers and
supervisors in the organizational unit in carrying out their responsibilities under this subpart;
(f) Seeking a resolution of EEO matters brought to their attention;
(g) Designating a senior level Affirmative Employment Program (AEP)
Manager in Headquarters responsible for preparing the AEP plan;
managing the plan; providing advice and guidance to managers and
supervisors in removing barriers to EEO/AE/ADR and in implementing all
of their EEO/AE responsibilities; and reviewing all recruitment and
personnel actions taken by managers and supervisors to ensure the achievement of AEP objectives;
(h) Designating the Administrative Officer (AO) or other
Headquarters organizational unit official as the DCM to manage and
direct the organization's EEO responsibilities. In making such
designation, the EEO Officer shall ensure that the designation as the
DCM does not otherwise conflict with the official duties of the employee so designated;
(i) Designating a senior level Diversity Program Manager in HUD
Headquarters to manage and direct the organization's Diversity Program
and providing resources for diversity activities for its employees;
(j) Ensuring the successful operation of the EEO/AE/ADR Program by requiring management's support;
(k) Approving and making reasonable accommodation to the known
physical or mental limitations of qualified employees with disabilities
unless the accommodation would impose an undue hardship on the operations of Department; and
(l) Adhering to and implementing the Department's policy on religious accommodation.
Sec. 7.12 Responsibilities of the EEO Counselors.
The EEO Counselor is responsible for counseling and attempting
resolution of matters brought to the EEO Counselor's attention pursuant
to Secs. 7.25 and 7.30 and 29 CFR part 1614, by any current or former
employee or applicant for employment who believes that he or she has
been discriminated against because of race, color, religion, sex,
national origin, age, disability or in reprisal for participating in
EEO activity or opposing policies and practices that are illegal under
the EEO statutes. These responsibilities include, but are not limited to:
(a) Advising individuals, in writing, of their rights and responsibilities, including:
(1) The right to request a hearing and decision from EEOC or an
immediate final decision from the agency after an investigation; (2) Election rights;
(3) The right to file a notice of intent to sue and a lawsuit under
the ADEA instead of an administrative complaint of age discrimination; and
(4) The duty to mitigate damages;
(5) Relevant time frames.
(b) EEO Counselors shall advise aggrieved persons that only the
claims raised in precomplaint counseling (or issues or claims like or
related to claims raised in precomplaint counseling) may be alleged in
a subsequent complaint filed with the Department.
(c) EEO Counselors shall advise aggrieved persons of their duty to keep
[[Page 64325]]
the Department and EEOC informed of their current address and the name
of the representative, if applicable, and to serve copies of hearing and appeal notices on the Department.
(d) EEO Counselors shall provide to the aggrieved person the notice
of the right to file an individual or a class complaint. If the
aggrieved person informs the EEO Counselor that the aggrieved person
wishes to file a class complaint, the EEO Counselor shall explain the
class complaint procedures and the responsibilities of a class agent
and provide class complaint counseling prior to the issuance of the notice of right to file a complaint.
(e) EEO Counselors shall advise aggrieved persons that, where the
Department agrees to offer ADR in a particular case, they may choose
between participation in the EEO ADR Program and the traditional EEO
counseling process. The EEO Counselor shall conduct the final interview
with the aggrieved person within 30 days of the date the aggrieved
person initially contacted the Department's EEO office to request
counseling, unless the aggrieved person agrees to a longer counseling
period or if the aggrieved person elects the ADR program and agrees to
extend the initial 30day precomplaint period for an additional period of no more than 60 days.
(f) If the matter has not been resolved before the conclusion of
the agreed extension, the EEO Counselor shall issue the notice of right
to file a discrimination complaint no later than the 90th day of the
aggrieved person's initial contact with the EEO Office. The notice
shall inform the aggrieved person of the right to file a discrimination
complaint within 15 days of receipt of the notice; of the appropriate
official with whom to file a complaint; and of the aggrieved person's
duty to assure that the Department is informed immediately if the
aggrieved person retains counsel or a representative and if the aggrieved person changes address.
(g) EEO Counselors shall prepare a report sufficient to document
the fact that the required counseling actions were taken and an attempt
to resolve any jurisdictional questions was made. The report shall
include a precise description of the claim(s) and the basis(es)
identified by the aggrieved person; pertinent documents gathered during
the inquiry, specific information concerning timeliness of the initial
counseling contact, and a statement as to whether a resolution attempt was undertaken, and if so, the disposition.
(h) EEO Counselors shall not attempt in any way to dissuade the
aggrieved person from filing an EEO complaint. The EEO Counselor shall
not reveal to the responsible management officials the identity of an
aggrieved person who consulted the EEO Counselor, except when
authorized to do so by the aggrieved person, or until the Department
has received a formal discrimination complaint from that person involving that same matter.
Sec. 7.13 Responsibilities of the Assistant Secretary for Administration.
The Assistant Secretary for Administration shall:
(a) Provide leadership in developing and maintaining personnel
management policies, programs, automated systems and procedures which
will promote continuing affirmative employment to ensure equal
opportunity in the recruitment, selection, placement, training, awards,
recognition and promotion of employees, including an applicant flow tracking system;
(b) Provide positive assistance and guidance to organizational
units and personnel offices to ensure the effective implementation of
the personnel management policies, programs, automated systems, and EEO procedures;
(c) Participate at the national level with other government
departments and agencies, other employers, and other public and private
groups, in cooperative action to improve employment opportunities and community conditions which affect employability;
(d) Prepare and implement plans for recruitment and reports in
accordance with the Federal Equal Opportunity Recruitment Program
(FEORP) and the Disabled Veterans Affirmative Action Program (DVAAP);
(e) Provide reasonable accommodations to the known physical or
mental limitations of qualified employees with disabilities unless the
accommodations would impose an undue hardship on the operation of the Department's programs;
(f) Adhere to and implement the Department's policy on religious accommodation;
(g) Designate a senior level Disability Program Manager to promote
EEO/ADR/AE for persons with disabilities; to assure the accessibility
of all HUD facilities and programs; and to manage the resources for providing reasonable accommodation;
(h) In conjunction with the Director of EEO, provide and coordinate mandatory EEO Counselor training;
(i) Provide and coordinate mandatory supervisors' and managers' EEO/AE/ADR training;
(j) Provide applicant data to ODEEO for analysis; and
(k) Designate a DCM to represent the organizational unit in EEO
matters. The DCM shall be the AO for the organizational unit or another designee of the EEO Officer.
Sec. 7.14 Responsibilities of the Office of Human Resources.
In accordance with guidelines issued by the Assistant Secretary for Administration, Human Resources Officers shall:
(a) Appraise job structure and employment practices to ensure
equality of opportunity for all employees to participate fully on the
basis of merit in all occupations and levels of responsibility;
(b) Communicate the Department's EEO policy and program and its
employment needs to all sources of job candidates without regard to
race, color, religion, sex, national origin, disability, or age and
solicit their recruitment assistance on a continuing basis;
(c) Upon request, provide personnel information to EEO Counselors
and other authorized officials or agents of the agency who are involved in the processing of a discrimination complaint;
(d) Evaluate hiring methods and practices to ensure impartial consideration for all job applicants;
(e) Ensure that new employee orientation programs contain
appropriate references to the Department's EEO/ADR/AE policies,
procedures and programs and accomplishment of EEO objectives under the
Department's Performance, Accountability, Communications System (PACS) or other Departmental performance appraisal system;
(f) Participate in the preparation and distribution of such
educational materials as may be necessary to adequately inform all
employees of their rights and responsibilities as described in this part, including the Department's EEO program directives;
(g) In coordination with the Director of the HUD Training Academy,
develop an ongoing training program for supervisors and managers to
ensure understanding of the Departmental EEO/ADR/AE programs, policy
and other requirements which foster effective teamwork and high morale;
(h) In coordination with the Director of the HUD Training Academy,
the Office of General Counsel, the Office of Administration and the
Director of EEO, develop an ongoing training program for managers and
supervisors to ensure understanding of the Department's EEO [[Page 64326]]
and ADR programs. At a minimum, the training should include: (1) The Civil Rights Act of 1964 (42 U.S.C. 2000d);
(2) Sections 501 and 504 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794);
(3) The Administrative Dispute Resolution Act of 1996 (5 U.S.C.
556, 571) and its amendments emphasizing the federal government's
interest in encouraging mutual resolution of disputes and the benefits associated with using ADR;
(4) EEOC's regulations and policy guidance concerning EEO, AE and ADR;
(5) The ADR methods employed by the Department;
(6) An explanation of how to draft a settlement agreement that
complies with the standards required by ODEEO and 29 CFR part 1614;
(7) An explanation of the recourse available where noncompliance by the Department is alleged; and
(8) Training on EEO policy, programs and procedures;
(i) In coordination with the Director of the HUD Training Academy,
the Office of General Counsel, the Office of Administration, and the
Director of EEO, the Department may enter into agreements to have EEO/
AE/ADR mandatory annual supervisory and management training provided by other federal agencies or other resources;
(j) Decide all personnel actions on merit principles and in a
manner which will demonstrate affirmative EEO for the organization;
(k) Ensure to the greatest possible utilization and development of the skills and potential abilities of all employees;
(l) Track applicant flow and promptly take or recommend appropriate
action to overcome any impediment to achieving the objectives of the
EEO/ADR/AE programs and accomplishing the EEO objectives under the
Performance, Accountability, Communications System (PACS) or other Departmental performance appraisal system;
(m) Provide applicant data to ODEEO for analysis; and
(n) Provide recognition to employees, supervisors, managers and units demonstrating superior accomplishments in EEO.
Sec. 7.15 Responsibilities of managers and supervisors.
All managers and supervisors of the Department are responsible for:
(a) Removing barriers to EEO and ensuring that affirmative employment objectives are accomplished in their areas of
responsibility;
(b) Evaluating and documenting subordinate managers and supervisors on their performance of EEO/ADR/AE responsibilities;
(c) Encouraging and taking positive steps to ensure respect for and
acceptance of minorities, women and persons with disabilities, veterans and others of diverse characteristics in the workforce;
(d) Ensuring the nondiscriminatory treatment of all employees and
for providing full and fair opportunity for all employees in obtaining
employment and career advancement, including support for ADR, the
Upward Mobility Program, the Mentoring Program and the implementation of Individual Development Plans;
(e) Encouraging and authorizing staff participation in the various Diversity Program observances and training opportunities;
(f) Being proactive in addressing EEO/ADR/AE issues, and
maintaining work environments that encourage and support complaint
avoidance through sound management and personnel practices;
(g) Resolving complaints of discrimination early in the EEO process
either independently, or through the use of ADR techniques;
(h) Making reasonable accommodations to the known physical and
mental limitations of applicants and employees with disabilities when
those accommodations can be made without undue hardship on the business of the Department;
(i) Attending mandatory annual supervisory and management training; and
(j) Adhering to and implementing the Department's policy on religious accommodations.
Sec. 7.16 Responsibilities of employees.
All employees of the Department are responsible for:
(a) Being informed as to the Department's EEO/ADR/AE programs;
(b) Adopting an attitude of full acceptance and respect for
minorities, females, persons with disabilities, veterans and others of
diverse characteristics in the workforce, and support for and participation in ADR;
(c) Providing equality of treatment and service to all persons with
whom they come in contact in carrying out their job responsibilities;
(d) Providing assistance to supervisors and managers in carrying out their responsibilities in the EEO/ADR/AE programs; and
(e) Cooperating during EEO investigations and throughout the entire EEO ADR process.
PreComplaint Processing
Sec. 7.25 Precomplaint processing.
(a) An ``aggrieved person'' must request counseling in accordance
with 29 CFR 1614.105(a). The aggrieved person must initiate contact
with an EEO Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45
days of the effective date of the action. EEOC's regulation at 29 CFR
1614.105 shall govern the Department's precomplaint processing.
(b) The Department or the EEOC shall extend the 45day time limit
in paragraph (a) of this section when the individual shows that the
individual was not notified of the time limits and was not otherwise
aware of them, that the individual did not know and reasonably should
not have known that the discriminatory matter or personnel action
occurred, that despite due diligence the individual was prevented by
circumstances beyond the individual's control from contacting the EEO
Counselor within the time limits, or for other reasons considered sufficient by the ODEEO or the EEOC.
(c) At the initial counseling session, EEO Counselors must advise
individuals, in writing, of their rights and responsibilities, including:
(1) The right to request a hearing and decision from an
Administrative Judge of the EEOC or an immediate final decision from
the Department following an investigation in accordance with 29 CFR 1614.108(f);
(2) Election rights pursuant to 29 CFR 1614.301 and 29 CFR 1614.302;
(3) The right to file a notice of intent to sue pursuant to 29 CFR
1614.201(a) and a lawsuit under the ADEA instead of an administrative complaint of age discrimination under this subpart;
(4) The duty to mitigate damages;
(5) Relevant time frames; and
(6) The requirement that only the claims raised in precomplaint
counseling (or claims like or related to claims raised in precomplaint
counseling) may be alleged in a subsequent complaint filed with the Department.
Sec. 7.26 EEO Alternative Dispute Resolution Program.
(a) The aggrieved person may elect to participate in the EEO ADR
Program or the traditional EEO counseling procedures. When ADR is
chosen, the EEO Counselor shall advise the aggrieved person that if the
dispute is resolved during the ADR process, the terms of the agreement must be in writing and signed by both the
[[Page 64327]]
aggrieved person and the appropriate Department representative. The
Director of EEO will execute ADR settlement agreements that are
initiated in the EEO process. The EEO Counselor shall advise the
aggrieved person that if no resolution is reached under the EEO ADR
Program, or if the matter has not been resolved 90 days from the
initial contact with the EEO Office, the aggrieved person will receive
a final interview and the notice of right to file a formal complaint
shall be issued by the EEO Counselor. Nothing said or done during
attempts to resolve the complaint through ADR may be included in any
EEO complaint (should ADR be unsuccessful) nor can the ADR proceedings be disclosed.
(b) In appropriate cases (as determined by the Director of EEO on a
casebycase basis), ADR is available during the formal complaint
process. Participation in ADR at the formal complaint stage does not
affect the normal processing of the formal complaint, including the
investigation. Should ADR be initiated at the formal complaint stage,
the time period for processing the complaint may be extended by
agreement for not more than 90 days. If ADR does not resolve the EEO
issue(s), the complaint must be processed within the extended time
period agreed upon by the parties, but no later than the 90th day. Complaints
Sec. 7.30 Presentation of complaint.
At any stage in the presentation of a complaint, including the
counseling stage, the Complainant shall be free from restraint,
interference, coercion, discrimination, or reprisal and shall have the
right to be accompanied, represented, and advised by a representative
of the Complainant's own choosing, except as limited by 29 CFR part 1614.
Sec. 7.31 Who may file a complaint, with whom filed, and time limits.
(a) Who may file a complaint. Any aggrieved person (hereafter,
referred to as the Complainant in the formal complaint stage) who has
satisfied the requirements of Sec. 7.25 of this part, may file a
complaint, unless there is an executed settlement agreement or amended
complaint of like or similar issues. The complaint must be filed with
the Director of EEO within 15 days of receipt of the notice of right to
file a complaint issued by the EEO Counselor. The Department may accept
a complaint only if the Complainant has met the appropriate requirements of 29 CFR part 1614.
(b) Filing and computation of time. (1) All time periods in this
subpart stated in terms of days are calendar days unless otherwise stated.
(2) A document shall be deemed timely if the document is received
or postmarked before the expiration of the applicable filing period,
or, in the absence of a legible postmark, if the document is received
by mail within five days of the expiration of the applicable filing period.
(3) The time limits in this part are subject to waiver, estoppel and equitable tolling.
(4) The first day counted shall be the day after the event from
which the time period begins to run and the last day of the period
shall be included, unless the last day falls on a Saturday, Sunday or
Federal holiday, in which case the period shall be extended to include the next business day.
Sec. 7.32 Representation and official time.
(a) At any stage in the processing of an EEO complaint, including
the counseling stage under 29 CFR 1614.105 and during participation in
the EEO ADR Program, the Complainant shall have the right to be
accompanied, represented, and advised by a representative of
Complainant's choice, except as limited by 29 CFR part 1614.
(b) If the Complainant is an employee of the Department, the
Complainant shall have a reasonable amount of official time, if
otherwise on duty, to prepare the complaint and to respond to
Department and EEOC requests for information if the Complainant is
otherwise in active duty status. If the Complainant is an employee of
the Department and the Complainant designates another employee of the
Department as the Complainant's representative, the representative
shall have a reasonable amount of official time, if otherwise on duty,
to prepare the complaint and respond to Department and EEOC requests for information.
(c) The Department is not obligated to change work schedules, incur
overtime wages, or pay travel expenses to facilitate the choice of a
specific representative or to allow the Complainant and representative
to confer. The Complainant and the Complainant's representative, if
employed by the Department and otherwise in a pay status, shall be on
official time, regardless of their tour of duty, when their presence is
authorized or required by the Department or the EEOC during the
investigation, informal adjustment, or hearing on the complaint.
(d) In cases where the representation of a Complainant or the
Department would conflict with the official or collateral duties of the
representative, the EEOC or the Department may, after giving the representative an opportunity to respond, disqualify the
representative.
(e) Unless the Complainant states otherwise in writing, after the
Department has received written notice of the name, address and
telephone number of a representative for the Complainant, all official
correspondence shall be with the representative with copies to the
Complainant. When the Complainant designates an attorney as
representative, service of all official correspondence shall be made on
the attorney and the Complainant, but time frames for receipt of
materials shall be computed from the time of receipt by the attorney.
The Complainant must serve all official correspondence on the
designated representative of the Department and shall notify the
Department of any changes of the representative and Complainant's address.
(f) The Complainant shall at all times be responsible for
proceeding with the complaint and cooperating in the entire EEO
complaint process, whether or not the Complainant has designated a representative.
(g) Witnesses who are Federal employees, regardless of their tour
of duty and regardless of whether they are employed by the Department
or some other Federal agency, shall be in a duty status when their
presence is authorized or required by EEOC or Department officials in connection with an EEO complaint.
Sec. 7.33 Contents of the complaint.
(a) Information to be included in complaint. (1) The complaint
filed should include the following information:
(i) The specific claim or personnel matter which is alleged to be discriminatory;
(ii) The date the act or matter occurred;
(iii) The protected basis or bases on which the alleged discrimination occurred;
(iv) Facts and other pertinent information to support the claim(s) of discrimination; and
(v) The relief desired.
(2) To expedite the processing of complaints of discrimination, the
Complainant may use the HUD EEO1 Complaint Form to file the complaint.
(b) Amendments. (1) A Complainant may amend a complaint at any time prior to the conclusion of the
[[Page 64328]]
investigation to include issues or claims like or related to those
raised in the complaint. After requesting a hearing, a Complainant may
file a motion with the EEOC Administrative Judge to amend a complaint
to include issues or claims like or related to those raised in the complaint.
(2) The Department shall acknowledge receipt of a complaint or an
amendment to a complaint in writing and inform the Complainant of the
date on which the complaint or amendment was filed. The Department
shall advise the Complainant in the acknowledgment of the EEOC office
and its address where a request for a hearing shall be sent. Such acknowledgment shall also advise the Complainant that:
(i) The Complainant has the right to appeal the dismissal of or final action on a complaint; and
(ii) The Department is required to conduct an impartial and
appropriate investigation of the complaint within 180 days of the
filing of the complaint unless the parties agree in writing to extend
the time period. When a complaint has been amended, the Department
shall complete its investigation within the earlier of 180 days after
the last amendment to the complaint or 360 days after the filing of the
original complaint, except that the Complainant may request a hearing
from an EEOC Administrative Judge on the consolidated complaints any
time after 180 days from the date of the first filed complaint.
(c) Joint processing and consolidation. (1) Complaints of
discrimination filed by two or more Complainants consisting of
substantially similar allegations of discrimination or relating to the
same matter may be consolidated by the Department or the EEOC for joint processing after appropriate notification to the parties.
(2) Two or more complaints of discrimination filed by the same
Complainant shall be consolidated by the Department for joint
processing after appropriate notification to the Complainant. When a
complaint has been consolidated with one or more earlier filed
complaints, the Department shall complete its investigation within the
earlier of 180 days after the filing of the last complaint or 360 days
after the filing of the original complaint, except that the Complainant
may request a hearing from an EEOC Administrative Judge on the
consolidated complaints any time after 180 days from the date of the first filed complaint.
(3) EEOC Administrative Judges or the EEOC may, in their
discretion, consolidate two or more complaints of discrimination filed by the same Complainant.
(d) Class complaints(1) Definitions. (i) A class is a group of
employees, former employees or applicants for employment who, it is
alleged, have been or are being adversely affected by the Department's
personnel management policy or practice that discriminates against the
group on the basis of their common race, color, religion, sex, national
origin, age, disability, or in reprisal for participating in protected
EEO activity or for opposing a practice made illegal under the EEO statutes.
(ii) A class complaint is a written complaint of discrimination
filed on behalf of a class by the agent of the class that satisfies the requirements of 29 CFR 1614.204.
(2) Precomplaint processing. A current or former employee or
applicant who wishes to file a class complaint must be counseled in
accordance with 29 CFR 1614.105. A Complainant may move for class
certification at any reasonable point in the process when it becomes
apparent that there are class implications to the claim raised in an
individual complaint. If a Complainant moves for class certification
after completing the counseling process in 29 CFR 1614.105, no
additional counseling is required. Class certification shall be denied
by the EEOC Administrative Judge, when the Complainant has unduly delayed in moving for certification.
(3) Certification. Class complaints are certified by an EEOC
Administrative Judge in accordance with the provisions of 29 CFR 1614.204.
(e) Mixed case complaints.(1) Definitions. A mixed case complaint
is a complaint of employment discrimination filed with a Federal agency
based on race, color, religion, sex, national origin, age, disability,
or in reprisal for participating in protected EEO activity or for
opposing a policy or practice made illegal by the EEO statutes, related
to or stemming from an action that can be appealed to the Merit Systems
Protection Board (MSPB). The complaint may contain only a claim of
employment discrimination or the complaint may contain additional claims that the MSPB has jurisdiction to address.
(2) Election. An aggrieved person may initially file a mixed case
complaint with the Department pursuant to this section or an appeal on
the same matter with the MSPB pursuant to 5 CFR 1201.151, but not both.
The Department shall inform every employee who is the subject of an
action that is appealable to the MSPB and who has either orally or in
writing raised the issue of discrimination during the processing of the
action of the right to file either a mixed case complaint with the
Department or to file a mixed case appeal with the MSPB. If a person
files a mixed case appeal with the MSPB instead of a mixed case
complaint and the MSPB dismisses the appeal for jurisdictional reasons,
the Department shall promptly notify the individual in writing of the
right to contact an EEO counselor within 45 days of receipt of this
notice and to file an EEO complaint, subject to 29 CFR 1614.107.
(3) Procedures for agency processing of mixed case complaints. When
a complainant elects to proceed initially under 29 CFR part 1614,
subpart C, rather than with the MSPB, the procedures in 29 CFR part
1614, subpart A, shall govern the processing of the mixed case complaint with the following exceptions:
(i) At the time the Department advises a Complainant of the
acceptance of a mixed case complaint, the Department shall also advise the Complainant that:
(A) If a final decision is not issued within 120 days of the date
of filing of the mixed case complaint, the Complainant may appeal the
matter to the MSPB at any time thereafter as specified at 5 CFR
1201.154(b)(2) or may file a civil action as specified at 29 CFR 1614.310(g), but not both; and
(B) If the Complainant is dissatisfied with the Department's final
decision on the mixed case complaint, the Complainant may appeal the
matter to MSPB (not EEOC) within 30 days of receipt of the Department's final decision;
(ii) Upon completion of the investigation, the notice provided the
Complainant in accordance with 29 CFR 1614.108(f) will advise the
Complainant that a final decision will be issued within 45 days without a hearing; and
(iii) At the time that the Department issues its final decision on
a mixed case complaint, the Department shall advise the Complainant of
the right to appeal the matter to the MSPB (not EEOC) within 30 days of
receipt and of the right to file a civil action as provided at 29 CFR 1614.310(a).
(4) Dismissal. (i) The Department may dismiss a mixed case
complaint for the reasons provided in, and under the conditions
prescribed in 29 CFR 1614.107. If MSPB's Administrative Judge finds
that MSPB does not have jurisdiction over the matter, the Department
shall resume processing of the complaint as a nonmixed case EEO complaint.
[[Page 64329]]
Sec. 7.34 Acceptability.
(a) The Director of EEO shall determine whether a complaint comes
within the purview of 29 CFR part 1614 and shall advise the Complainant
and Complainant's representative, if applicable, in writing of the
acceptance or dismissal of the claims(s) of the complaint. The Notice of Receipt is provided to the Complainant, Complainant's
representative, if applicable, and to the organizational unit through the appropriate EEO Officer and DCM.
(b) Dismissals of complaints are governed by the notice
requirements and procedures in 29 CFR 1614.106(e)(1) and 29 CFR 1614.107.
(c) Prior to a request for a hearing in a case, the Department
shall dismiss an entire complaint for any of the reasons provided in 29
CFR 1614.107(a)(1) through (9), including a complaint that alleges
dissatisfaction with the processing of a previously filed complaint; or
where the Department, strictly applying the criteria in EEOC decisions,
finds that the complaint is part of a clear pattern of misuse of the
EEO process for a purpose other than the prevention and elimination of
employment discrimination. A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings; and
(ii) Claims that are similar or identical, lack specificity or involve matters previously resolved; or
(iii) Evidence of circumventing other administrative processes,
retaliating against the Department's inhouse administrative processes or overburdening the EEO complaint system.
(d) Where the Director of EEO believes that some, but not all, of
the claims in a complaint should be dismissed for the reasons provided
in Sec. 7.34 and 29 CFR 1614.107(a)(1) through (9), the Department
shall notify the Complainant in writing of its determination, the
rationale for that determination and that those claims will not be
investigated, and shall place a copy of the notice in the investigative
file. A determination under 29 CFR 1614.107(b)(1) that some claims
should be dismissed is reviewable by an EEOC Administrative Judge if a
hearing is requested on the remainder of the complaint, but is not
appealable until final action is taken on the remainder of the complaint.
Sec. 7.35 Processing.
(a) The Director of EEO will process complaints filed under 29 CFR
part 1614 for the Department with the assistance of the EEO Officer,
DCM, the EEO Counselor and the full cooperation of all other Department managers, supervisors and other employees.
(b) The Director of EEO shall, in accordance with 29 CFR part 1614,
provide for the development of an impartial and appropriate factual
record upon which to make findings on the claims raised by the written
complaint. An appropriate factual record is one that allows a
reasonable fact finder to draw conclusions as to whether discrimination
occurred. The person assigned to develop the factual record may use an
exchange of letters or memoranda, interrogatories, investigations,
factfinding conferences or any other factfinding methods that
efficiently and thoroughly address the matters at issue and is
encouraged, in accordance with 29 CFR 1614.108(b), to incorporate ADR
techniques into the investigative efforts in order to promote early resolution of complaints.
(c) The Director of EEO will provide the Complainant and
Complainant's representative, if applicable, and the EEO Officer a copy
of the record developed. Within 180 days from the filing of the
complaint, or where a complaint was amended, within the earlier of 180
days after the last amendment to the complaint or 360 days after the
filing of the original complaint, within the time period contained in
an order from the Office of Federal Operations on an appeal from a
dismissal, or within any period of extension provided for in 29 CFR
1614.108(f), the Department shall provide the Complainant with a copy
of the investigative file, and shall notify the Complainant that,
within 30 days of receipt of the investigative file, the Complainant
has the right to request a hearing and decision from an EEOC
Administrative Judge or may request an immediate final decision pursuant to 29 CFR 1614.110 from the Department.
Sec. 7.36 Hearing.
(a) Notification of right to request a hearing. The Director of EEO
will notify the Complainant, the General Counsel, EEO Officer, DCM and
Complainant's representative, where applicable, of the Complainant's
right to request an administrative hearing and decision before the EEOC
or the Department's final decision and the time frames for executing
the right to request an administrative hearing. Note: Where a mixed
case complaint is filed, the Complainant has no right to a hearing
before an EEOC Administrative Judge unless the MSPB has dismissed the
mixed case complaint or appeal for jurisdictional reasons. (See 29 CFR
1614.302(b)
FOR FURTHER INFORMATION CONTACT
William C. King, Director, Office of Departmental Equal Employment Opportunity, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410, (202) 7085921. (This telephone number is not tollfree.) Persons with hearing or speech impairments may access this number via TTY by contacting the Federal Information Relay Service at 18008778339.