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Federal Register / Vol. 58, No. 33 / Monday, February 22, 1993 / Rules and Regulations

9529

examine who shall, if required, have a notification of that transmittal shall be issues raised in the clase complaint. proper security clearance. The

sent to the agent of the class. The Evidenco may be developed hrough administrative judge may require the administrative pidga's recommendation interrogatories, depositions, and agent of the class or the Board to submit to accept or dismiss shall become the requests for admissions, stipulations or additional information relevant to the Board's decision unless the Board production of documents. It shall be complaint. accepts, rejects or modifies the

grounds for objection to producing, (2) The administrative judge may recommended decision within 30 days evidence that the information sought by recommend that the Board dismiss the of the receipt of the recommended either party is irrelevant. class complaint, or any portion, for any decision and complaint file pursuant to overburdensome, repetitious, privileged. of the reasons listed in $268.206 of this $ 268.209 of this part. The Board shall or that production would be unlawful. part, or because it does not meet the notify the agent of the class by certified (2) I'mutual cooperation fails, either prerequi-itos of a class complaint under mall, return receipt requested, and the party may request the administrativo $268.102(g) of this part.

administrative judge of its decision to judge to rule on a request to develop (3) If an allegation of discrimination accept or dismiss a class complaint. At evidence. If a party fails without good in the class complaint is not included in the same time, the Board shall forward cause shown to respond fully and in the EEO Counselor's report, the

to the agent of the class copies of the timely fashion to a request made or administrative judge shall afford the administrativa judge's recommendation approved by the administrative judge agent of the class 15 calendar days to

and the complaint file. The dismissal of for documents, records, comparative state whether the matter was discussed a class complaint shall inform the agent data, statistics or affidavits, and the with the EEO Counselor and, if not, of the class either that the class

information is solely in the control of explain why it was not discussed. If the complaint is being filed on that data as

one party, such failuro may. in explanation is not satisfactory, the an individual complaint of

appropriate circumstances, cause the administrative judge shall recommend discrimination and will be processed administrative judge: that the Board dismiss the allegation under subpart B of this part, or that the (i) To draw an adverse inference that under $268.206 of this part. If the class complaint is also dismissed as an the requested information would have explanation is satisfactory, the

individual complaint in accordance reflected unfavorably on the party administrative judge shall refer the with $ 268.206 of this part. In addition, refusing to provide the requested allegation to the Board for further

it sball inform the agent of the class of information; counseling by an EEO Counselor with the right to file a request for review of (ii) To consider the matters to which the agent of the class. After counseling. the dismissal of the class complaint the requested information pertains to be the allegation shall be consolidated with with the Commission pursuant to established in favor of the opposing the class complaint.

$268.401 of this part, or to file a civil party: (4) If an allegation of discrimination

action. A copy of EEOC Form 573, (ilij To exclude other evidence offered in the class complaint lacks specificity

Notice of Appeal/Petition, shall be by the party failing to produce the and detail, the administrative judge

attached to the Board's decision to requested information; shall afford the agent of the class 15 dismiss a class complaint pursuant to

(iv) To recommend that a decision be calendar days to provide specific and $ 268.209(b)(4) of this part.

entered in favor of the opposing party: detailed information. The

(d) Noufication. (1) Within 15 administrative judge shall recommend calendar days of accepting a class

(v) To tako such other actions as the that the Board dismiss the class complaint, the Board sball use

administrative judge deems appropriate. complaint if the agent of the class fails

reasonable means, such as delivery, (3) During the period for development to provide such information within the

mailing to last known address or of evidenco, the administrative judge specified time period. If the information distribution, to notify all class members may, in his or her discretion, direct that provided contains new allegations

of the acceptance of the class complaint. an investigation of facts relevant to the outside the scope of the complaint, the (2) Such notice shall contain:

class complaint or any portion be administrative judge shall advise the (1) The date of acceptance of the class conducted. agent of the class how to proceed on an complaint by the Board:

(4) Both parties shall furnish to the individual or class basis concerning (ii) A description of the issues administrative judge copies of all these allegations

accepted as part of the class complaint: materials that they wish to be examined (5) The administrative judge shall (iii) An explanation of the binding and such other material as may be recommend that the Board extend the nature of the Board's dismissal, final requested. time limits for filing a class complaint decision or resolution of the class In Opportunity for resolution of the and for consulting with an EEO

complaint on class members; and class complaint (1) The administrative Counselor in accordance with the time (iv) The name, address and telephone judge shall furnish the agent of the class limit extension provisions contained in number of the agent of the class or, if and the Board's representative a copy of $268.204(a)(2) and 268.604 of this represented, the representative. all materials obtained concoming the part.

le) Obtaining evidence concerning the class complaint and provide (6) When appropriate, the

complaint. (1) Upon the acceptance of a opportunity for the agent of the class to administrative judge may recommend class complaint by the Board, the discuss the materials with the Board's that a class be divided into subclasses administrative judge shall noufy the representative and to attempt resolution and that each subclass be treated as a agent of the class and the Board's of the class complaint. class, and the provisions of this section representative of the time period that (2) The class complaint may be shall then be construed and applied will be allowed both parties to prepare resolved by agreement of the Board and accordingly

their case. This time period will include the agent of the class at any time as long (7) The administrative judge's written at least 60 days and may be extended by as the agreement is fair and reasonable. recommendation to the Board on the administrative judge upon the (3) If the class complaint is resolved. whether to accept or dismiss a class request of either party. Both parties are the terms of the resolution shall be complaint and the complaint file shall entitled to reasonable development of reduced to writing and signed by the be transmitted to the Board, and evidence on matters relevant to the agent of the class and the Board.

or

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Federal Register / Vol. 58. No. 33 / Monday, February 22, 1993 / Rules and Regulations

part.

(4) Notice of the agreement of (1) Board decision. (1) Within 60 days in accordance with $268.501(c) of this resolution shall be given to all class of receipt of the report of findings and members in the same manner as recommendations issued under

(2) When class-wide discrimination is notification of the acceptance of the $268.305(h) of this part, the Board shall not found, but it is found that the agent class complaint and shall state the issue a final decision pursuant to

of the class is a victim of discrimination, relief, if any, to be granted by the Board. $268.209 of this part, which shall $268.501 shall apply. The Board shell An agreement of resolution shall bind accept, reject, or modify the findings also, within 60 days

of the issuance of all members of the class. Within 30 days and recommendations of the

its final decision finding no class-wide of the date of the notice of the administrative judge.

discrimination, issue the agreement of resolution, any member of (2) The final decision of the Board acknowledgement of receipt of an the class may petition the Commission shall be in writing and shall be individual complaint as required by to vacate the agreement of resolution transmitted to the agent of the class by $268.205(d) and process in accordance because it benefits only the agent of the certified mail, return receipt requested. with the provisions of subpart B of this class or is otherwise not fair and

along with a copy of the report of part, each individual complaint that was reasonable. Such a petition will be findings and recommendations of the subsumed into the class complaint. processed in accordance with paragraph administrative judge.

(3) When clase-wide discrimination is (c) of this section and if the

(3) When the Board's final decision is found in a final decision of the Board, administrative judge finds that the

to reject or modify the findings and and a class member believes that he or agreement of resolution is not fair and

recommendations of the administrative she is antitled to individual relief, the reasonable, he or she shall recommend

judge, the Board's final decision shall class member may file a written claim that the agreement of resolution be vacated and that the original agent of

contain specific reasons for the Board's with the Board's EEO Programs Officer final decision.

within 30 days of receipt of notification the class be replaced by the petitioner (4) If the Board has not issued a final by the Board of its final decision. The or some other class member who is decision within 60 days of its receipt of

claim must include a specific, detailed eligible to be the agent of the class : the administrative judge's report of

showing that the claimant is a class during further processing of the class

findings and recommendations, those member who was affected by a action or complaint. The Board may determine,

findings and recommendations of the matter resulting from the discriminatory with respect to the petition, that the

administrative judge shall become the personnel policy or practice, and that agreement of resolution is not fair and

Board's final decision. The Board shall ibis discriminatory action took place reasonable, which vacates any

transmit the final decision to the agent within the period of time for which the agreement between the former agent of of the class within 5 calendar days of

Board found class-wide discrimination the class and the Board. The Board's decision to vacate the agreement of the expiration of the 60-day period.

in its final decision. The period of time (5) The final decision of the Board

for which the Board finds class-wide resolution shall be communicated to the shall require any relief authorized by

discrimination shall begin not more former agent of the class and to the law and determined to be necessary or

than 45 days prior to the initial contact petitioner, and shall inform them of their right to file a request for review desirable to resolve the issue of

by the agent of the class with the EEO with the Commission under $268.401 of

Counselor and shall end not later than discrimination this part. A copy of EFOC Form 573,

(6) The final decision of the Board

the date wben the Board eliminates the Notice of Appeal/Petition, shall be

shall, subject to subpart E of this part, personnel policy or practice found to be attached to the Board's decision be binding on all members of the class

discriminatory in the Board's final and the Board.

decision. The Board shall issue a final pursuant to $268.209(b)(5) of this part.

(9) Hearing. On expiration of the (7) The final decision shell inform the decision on each such claim within 90 period allowed for preparation of the

class agent of the right to seek review by days of biling. Such decision must case, the administrative judge shall set the Commission, or to file a civil action, include a notice of the right to file a a date for a bearing. The hearing shall

in accordance with subpart E of this request for review with the Commission be conducted in accordance with part, and of the applicable time limits.

or a civil action in accordance with $S 268.208(a) through (1) of this part.

() Notification of decision. The Board subpart E of this part and the applicable (b) Report of findings and

shall notify class members of the time limits. A copy of EEOC Form 573, recommendations. (1) The

Board's final decision and relief Notice of Appeal/Petition, shall be administrative judge shall transmit to awarded, if any, through the same

attached to the Board's decision the Board a report of findings and media employed to give notice of the pursuant to $ 268.209(b)(7) of this part. recommendations on the class

existence of the class complaint. The complaint, including a recommended notice, where appropriate, shall include Subpart D_Review by the Equal decision, systemic relief for the class information concerning the rights of

Employment Opportunity Commission and any individual relief, where class members to seek individual relief, $268.401 Review by the Equal appropriate, with regard to the

and of the procedures to be followed. Employment Opportunity Commission. personnel policy or practice that gave Notice shall be given by the Board (a) An individual complainant may rise to the class complaint. within 10 calendar days of the

file a request for review with the (2) If the administrative judge finds no transmittal of the final decision to the Commission of a final decision issued class relief appropriate, he or she shall agent of the class.

by the Board under $268.209 of this determine if a finding of individual (k) Relief for individual class part, or a dismissal by the Board of all discrimination is warranted and, if so, members. (i) When the Board finds or a portion of an individual complaint shall recommend appropriate relief. class discrimination, the Board shall under $268.206 of this part.

(3) The administrative judge shall eliminate or modify the personnel (b) An agent of the class may file a notify the Board of the date on which policy or practice out of which the request for review with the Commission the report of findings and

complaint arose and provide

individual of a dismissal of all or a portion of a recommendations was forwarded to the relief, including an award of attorney's class complaint rendered by the Board

Federal Register / Vol. 58. No: 33 / Monday, February 22, 1993 / Rules and Regulations

3531

decision of the Board accepting or $268.403 How to sook review.

1268.406 Decialone on review. rejecting all or a portion of a report of (a) The complainant must file a (a) The Commission's Office of findings and recommendations of an

request for review with the Commission Federal Operations sball issue a written administrativo judge with regard to a by sending EEOC Form 573, Notice of decision (the EEOC decision) setting class complaint pursuant to Š 268.305(1) Appeal/Potition, to the Director, Office forth its reasons for the decision. The of this part. A clase member may file a of Federal Operations, Equal

Commission shall dismiss roquests for request for review with the Commission Employment Opportunity Commission. review in accordance with $$ 268.206, of a final decision by the Board on a

P.O. Box 19848, Washington, DC 20036, 268.403(c) and 268.507 of this part. The claim for individual relief under a class

or by personal delivery or facsimile. The EEOC decision shall be based on the complaint pursuant !o $268.305(k) of

complainant should indicate what preponderance of the evidence. If the this part. Both an agent of the class and matters he or she is requesting the

EEÓC decision contains a finding of a class member may file a request for Commission to review.

discrimination, appropriate remedy(ies) review with the Commission of a final (6) The complainant shall furnish a shall be included and, where decision of the Board on a petition copy of the request for review to the appropriate, the entitlement to interest, pursuant to $ 268.305(0(4) of this part. Board's EEO Programs Officer at the attorney's foes or costs shall be (c) A complainant, agent of the class same time that he or she files the

indicated. The EEOC decision shall or individual class claimant may file a request for review with the Commission reflect the date of its issuance, inform request for review with the Commission In or attached to the request for review the complainant of his or her civil of the Board's alleged noncompliance by the Commission, the complainant action rights, and be transmitted to the with a setulement agreement or final must certify the date and method by complainant and to the Board by decision in accordance with 9 268.504 which service was made on the board.

certified mail, return receipt requested. of this part.

(c) If a complainant does not file a (b) The EEOC decision issued under 925€.402 Time limita for review by the

request for review with the Commission paragraph (a) of this section is final, Equal Employment Opportunity

within the time limits of this subpart D, subject to paragraph (c) of this section Commission.

the request for review shall be untimely within the meaning of $268.406(d) of and shall be dismissed by the

this part unless: (a) Any dismissal of a complaint or a Commission.

(1) Either party files a timely request portion of a complaint, or any final

(d) Any statement or brief in support

for reconsideration pursuant to decision of the Board, as set forth in of the request for review must be

$268.406 of this part; or paragraphs (b)(1) through (7) of

(2) The Commission on its own submitted to the Director, Office of $268.209 of this part, may be reviewed Federal Operations, Equal Employment

motion reconsiders the case. by the Commission if a request for

(c) The Board, within 30 days of Opportunity Commission, and to the review is filed with the Commission

Board within 30 days of the filing of the receiving the EEOC decision, shall issue within 30 days of the complainant's request for review. Following receipt of

a final decision pursuant to $268.209 of receipt of the dismissal or final

this part based upon the EEOC decision. the request for review, and any brief in decision. In the case of class complaints, support of the request for review, the $268.406 Reconsideration. any final decision of the Board received

Director, Office of Federal Oporations, (a) Within a reasonable period of time, by an agent of the class, petitioner or any individual class claimant may be

Equal Employment Opportunity the Commission may. In its discretion,

Commission, shall request the reviewed by the Commission if a request complaint file from the Board The

reconsider an EEOC decision issued for review is filed with the Commission

under $ 268.405(a) of this part, Board shall submit the complaint file notwithstanding any other provisions of within 30 days of its receipt. Where a and any Board statement or brief in

this part. complainant has notified the EEO

opposition to the request for review to (oA party may request Programs Officer of alleged the Director, Office of Federal

reconsideration of an EEOC decision noncompliance with a settlement Operations, Equal Employment

issued under $268.405(a) of this part agreement in accordance with 9 268.504 Opportunity Commission, within 30 provided that such request is made of this part, the complainant may file a

days of receipt of the Commission's v.ithin 30 days of receipt of an EEOC request for review with the Commission

request for the complaint file. A copy of decision or within 20 days of receipt of within 35 days after notification to the the Board's statement or brief shall be EEO Programs Officer under

another party's timely request for served on the complainant at the same reconsideration. Such request, along $ 268.504(a) of this part of such time.

with any supporting statement or brief, noncompliance, but the complainant must file a request for review within 30 $268.404 Procedure on review.

shall be submitted to the Commission's

Office of Review and Appeals, and to all days of receipt of the Board's

(a) The Commission's Office of determination

parties with proof of such submission. Federal Operations shall review the

All other parties shall have 20 days from (b) If the complainant is represented complaint file and aii written statements the date of service in which to submit by an attorney of record, then the 30-day and briefs from either party. The

to all other parties, with prooi of time period provided in paragraph (a) of Commission may supplement the record submission, any statement or brief in this section within which to file a by an exchange of letters of memoranda. opposition to the request. request for review shall be calculated investigation, remand to the Board or

(c) The request for reconsideration or from the receipt of the notification other procedures.

the statement or brief in support of the required under $ 268.504(a) of this part (b) if the Commission's Office of request shall contain arguments or by the attorney. In all other instances, Federal Operations requests information evidence which tend to establish that: the time within which to file a request from one or both of the parties to

(1) New and material evidence is for review with the Commission shall be supplement the record. each party available that was not readily available calculated from the receipt of the providing information shall send a copy when the EEOC decision

was issued: notification required under $268.504(a) of the information submitted to the (2)

The EEOC decision involved an of this part by the complainant. Commission to the other party.

erroneous interpretation of law,

9532

Federal Register / Vol 50, No 33 / Monday, February 22, 1993 / Rules and Regulations

regulation of material fact, ar

of the offer, unless the appbicant for (1) Nondiscriminatory placement, misapplication of stablished policy: or employment can sbow that

with back pay

comipated in the manner (3) The EEOC decision is of such circumstances beyond his or her control prescribed to 5 CFR 505.805 mless exceptional nature as to bave substantial prevented a response within the time clear and convincing evidence precedential implications. limit.

contained in the record demonstrates (d) A decision on a request for

(ii) If the offer is accepisce

that the personnel action would have reconsideration by either party is final appointment shall be retroactive to the been taken oven absent the and there shall be so further right by date the applicant for employment discrimination. Interest on beck pay either party to request reconsideration would have been hired. Beck pay.

shall be included in the back pay of an BEOĆ decision.

computed in the mamar prescribed in computation where sovereign immunity

5 CFR 550.805 shall be awarded from Subpert E-famedier, Entorcement

has been waived. The back pay liability the date the applicant for employment under Title VII as the Rebabilitation Ad and Civt Actions

would beve entered on duty until the is limited to the two years prior to the $281.501 Aerodius and relich

date the applicant for employment date the discrimination complaint wes (a) General procechures. When the

actually enters on duty unless clear and filed; Board finds discrimination where

convincing avidance indicates that the (2) If clear and convincing evidence issuing its final decision prorsuant to

applicant would not have been selected indicates that, although discrimination $268.209 of this part, the Board shall

even absant discrimination. Interest on exdistod at the time the personnel action consider the following elements in

back pey shall be included in the back was takan, the personnel action would providing full relief to complainants:

pay computation wbars rovarmign have been taken oven abesnt (1) Notification to all employees of the immunity has been waived. AB discrimination, the Board shell Board of their right to be free of

applicant for employment shall be nevertheless eliminate any unlawful discrimination and assurance

deemed to have performed sarvice at the discriminatory practice and ensure it that the particular types of

Board during such period for all does not recer; discrimination found will not recur, purposes except for meeting service (3) Cancellation of an unwarranted (2) Commitment that correctivo,

roquirements for completion of a personnel action and restoration of the curative or preventive action will be required probationary period

employee; taken, or moestros adopted, to ensure

G) If the offer of employment is (4) Expunction from the Board's that violations of low and this part

declined, the Board shall award the records of any adverse materials relating similar to those found unlawful will not applicant for employment a rum equal to the discriminatory practices and recur;

to the back pay be or she would have (5) Pull opportunity to participate in (3) An unconditional offer to each received, computed in the manner the employee benefit denied leg.. identified victim of discrimination of prescribed in Ś CFR 505.805 from the training. praferential work assignments, placement in the position the person

date be or she would bave been overtimo scheduling). would have occupied but for the

appointed until the data tho affar wes (d) Mitigation of damages. The Board discrimination suffered by that person,

declined, subject to the limitation of shall not decline to grant roljer based or a substantially equivalent position:

paragraph (b)(3) of this section. Interest upon failure to mitigate damages unless (4) Payment to each identified victim on back pay shall be included in the it has clear and convincing evidence of discrimination one make whole basis back pay computation. The Board sbal} the be employee or applicant for for any loss of earnings the person may

inform the applicant for employment, in sployment has failed to mitigate have suffered as a result of the

its offer of amployment of the right to damages. The Board shall beve the discrimination; and

this award in the event the offer of burden of proving by a preponderance (5) Commitment that the Board shall employment is declined.

of the evidence that the cornplainant has cease from angeging in the specific (2) When it is determined in a final failed to mitignto his or her dermaga. unlawful employment practice found in decision that discrimination existed at (c) Attorney's fees or costs-11) the case.

the time the applicant for employment Awards of attorney's fees or costs. The (6) Relief for an applicant. (1) (1) was considered for employment but also provisions of this paragraph (e) relating When it is determined in a fuel by clear and convincing evidence that to the sword of attorney's toes or costs decision that an applicant for

the applicant would not bave been hired shall apply to allegations of employment has been discriminated even absent discrimination, the Board discrimination prohibited by The VTI against the Board sball offer the shall nevertheless take all steps and the Rehabústation Act. In a notice applicant for employment the position necessary to eliminate the

of final action or a decision, the that the applicant for employment discriminatory practice and sure it esployee or applicant fa sployment would have occupied absant does not recor.

may be awarded reasonable sttorney's discrimination or, if justified by the (3) Beck pey under this paragraph (b) fees or costs (including expert witness circumstances, a substantially

for complaints under Tilbe VII or the fees) incurred in the processing of the equivalent position unless clear and Rehabilitation Ad may not extend from complaint. In this regard: convincing evidence indicates that the • dale earlier than two years prior to the b) A finding of discrimination raises applicant for employment would not dels or which the complaint was a presumption of entitlement to an have been selected even absent the initially filed by the applicant for award of attorney's fees, discrimination. The affar to the employment.

(ii) Attorney's fees are allowable only applicant for amployment shall be made (c) relief for an employee. When it is for the services of members of the Bar in writing. The applicant for

determined in a final decision that en and law clerks, paralegals or law employment shall beve 15 days from employee of the Board was

students under the supervision af receipt of the offer within which to discriminated against the Board shall members of the Bar, except that do accept or decline the effor. Falun to provide relied, which shell include, but award is allowable for the services at accept the offer within the 15-day need sot be limited 10,000 & mors of any employee of the Federal

Federal Register / Vol. 58, No. 33 / Monday, February 22, 1993 / Rules and Regulations

9533

(til) Attorney's foes shall be paid only difficulty of the questions, the skill (2) The Board shall notify the for services performed after the filing of requisite to perform the legal service Commission and the employee in a written complaint and after the properly, the attorney's preclusion from writing, at the same time it requests complainant has notified the Board that other employment due to acceptance of reconsideration, that the relief it he or she is represented by an attorney. the case, the customary foe, whether the provides is temporary or conditional. except that fees allowable for a fee is fixed or contingent, time

(c) Relief shall be provided in full no reasonable period of time prior to the limitations imposed by the client or the notification of representation for any circumstances, the amount involved and later than 60 days after all services performed in reaching a the results obtained, the experience,

administrative proceedings have ended. determination to represent the reputation, and ability of the attorney, $260.503 Entorcement of EEOC decisione. complainant. Written submissions to the the undesirability of the case, the nature Board that are signed by the and length of the professional

(a) Petition for enforcement. As set representative shall be deemed to relationship with the client, and the

forth in this section, a complainant may constitute notice of representation. awards in similar cases. Only in cases petition the Commission for

(2) Amount of awards. (i) When the of exceptional success should any of enforcement of an EEOC decision issued attorney's fees or costs are awarded, the these factors be used to enhance an

under the review process of this part. complainant's attorney shall submit a award computed by the formula set The petition shall be submitted to the verified statement of costs and

forth in this paragraph (e)(2)(ii)(B). Office of Federal Operations, Equal attorney's fees (including expert witness (C) The costs that may be awarded are Employment Opportunity Commission. fees), as appropriate, to the Board those authorized by 28 U.S.C. 1920 to The petition shall specifically set forth within 30 days of receipt of the final include: Fees of the reporter for all or the reasons that lead the complainant to decision, unless a request for revie or any of the stenographic transcript believe that the Board is not complying reconsideration is filed. A statement of necessarily obtained for use in the case; with the EEOC decision. attorney's fees shall be accompanied by fees and disbursements for printing and an affidavit executed by the attorney of

(b) Compliance. The Commission's witnesses; and fees for exemplification racord itemizing the attorney's charges

Office of Federal Operations may take and copies necessarily obtained for use for legal services and both the verified

appropriate action to ascertain whether in the case. statement and the accompanying

the Board should have adopted the

(iii) Witness foes shall be awarded in affidavit shall be made a part of the accordance with the provisions of 28

EEOC decision pursuant to $ 268.209 of complaint file. The amount of attorney's U.S.C. 1821, except that no award shall

this part. If the Commission determines foes or costs to be awarded the

be made for a federal employee

who is

that the Board has failed to comply with

the EEOC decision in full, the complainant shall be determined by. in a duty status when made available as agreement among the complainant, the

Commission may undertake the efforts a witness. complainant's representative and the

set forth in paragraphs (c) and (d) of this Board. Such agreement shall

$268.502 Compliance with EEOC section to obtain compliance by the immediately be reduced to writing. decisione.

Board. (ii) (A) If the complainant, the (a) The relief ordered in an EEOC

(c) Clarification. The Commission's complainant's representative and the decision, if accepted pursuant to Office of Federal Operations may, on its Board cannot reach an agreement on the $268.209 of this part as a final decision,

own motion or in response to the amount of attorney's fees or costs within or not acted upon by the Board within

petition for enforcement or in 20 days of the Board's receipt of the the time periods of Ġ 268.209 of this connection with a timely request for verified statement and accompanying part, shall be binding upon the Board. reconsideration, issue a clarification of affidavit, the Board shall issue a Failure to implement its final decision,

an EEOC decision. A clarification may decision determining the amount of or the EEOC decision in such

not change the result of a prior EEOC attorney's fees or costs due within 30 circumstances, shall be grounds for the

decision or enlarge or diminish the days of receipt of the statement and complainant to file a civil action under

relief contained in the EEOC decision, affidavit. The decision of the Board SS 268.505 and 268.506 of this part.

but it may further explain the meaning shall include the specific reasons for (b) Notwithstanding

paragraph (a) of determining the amount of the award. this section when the

Board requests

or intent of the EEOC decision. The

Commission may also send a notice to The complainant or the complainant's reconsideration, when the case involves

the Board seeking an explanation why representative may file a request for an employee's removal, separation, or

the Board failed to adopt the EEOC review with the Commission of the suspension continuing beyond the date

decision as its final decision under Board's decision, and the Board's notice of the request for reconsideration, and to the complainant and his or her when the EEOC decision recommends

S 268.209 of this part, and the Board representative shall include EEOC Form retroactive restoration, the Board shall

shall respond to such request within 30 573, Notice of Appeal/Petition. comply with the EEOC decision only to days of receipt of the notice

addressing (B) The amount of attorney's fees shall the extent of the temporary or

the issue raised by the Commission. be calculated in accordance with conditional restoration of the employee (d) Notification to complainant of existing case law using the following to duty status in the position

completion of administrative efforts. standards: The starting point shall be recommended by the Commission, Where the Commission has determined the number of hours reasonably pending the outcome of the Board's that the Board has failed to adopt the expended multiplied by a reasonable request for reconsideration.

EEOC decision as its final decision, the hourly rate. This amount may be (3) Service under the temporary or Commission may notify the reduced or increased in consideration of conditional restoration provisions of complainant who has petitioned the the following factors, although this paragraph (b) shall be credited Commission under paragraph (a) of this ordinarily many of these factors are toward the completion of a probationary section of his or her right to file a civil subsumed within the calculation set or trial penod, or eligibility for a within action under $268.505 of this part for forth in this paragraph (@)(2)(ii)(B): The grade increase, if the EEOĆ decision is failure of the Board to adopt the EEOC time and labor required, the novelty and upheld.

decision as its final decision.

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