29 C.F.R. §1614.204  - Class complaints Process

(a) Definitions.  

(1) 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 an agency personnel management policy or practice that discriminates against the group on the basis of their race, color, religion, sex, national origin, age or handicap.

(2) A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that:   

• (i) The class is so numerous that a consolidated complaint of the members of the class is impractical;
• (ii) There are questions of fact common to the class;             
• (iii) The claims of the agent of the class are typical of the claims of the class;                                      
• (iv) The agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class.

(3) An agent of the class is a class member who acts for the class during the processing of the class complaint.

(b) Pre-complaint processing.

An employee or applicant who wishes to file a class complaint must seek counseling and be counseled in accordance with §1614.105.

(c) Filing and presentation of a class complaint.  

(1) A class complaint must be signed by the agent or representative and must identify the policy or practice adversely affecting the class as well as the specific action or matter affecting the class agent.

(2) The complaint must be filed with the agency that allegedly discriminated not later than 15 days after the agent's receipt of the notice of right to file a class complaint.

(3) The complaint shall be processed promptly;  the parties shall cooperate and shall proceed at all times without undue delay.

(d) Acceptance or dismissal.  

(1) Within 30 days of an agency's receipt of a complaint, the agency shall:  Designate an agency representative who shall be any of the individuals referenced in  §1614.102(b)(3), and forward the complaint, along with a copy of the Counselor's report and any other information pertaining to timeliness or other relevant circumstances related to the complaint, to the Commission [EEOC].  The Commission shall assign the complaint to an administrative judge or complaints examiner with a proper security clearance when necessary.  The administrative judge may require the complainant or agency to submit additional information relevant to the complaint.

(2) The administrative judge may recommend that the agency dismiss the complaint, or any portion, for any of the reasons listed in §1614.107 or because it does not meet the prerequisites of a class complaint under §1614.204(a)(2).  

(3) If the allegation is not included in the Counselor's report, the administrative judge shall afford the agent 15 days to state whether the matter was discussed with the Counselor and, if not, explain why it was not discussed. If the explanation is not satisfactory, the administrative judge shall recommend that the agency dismiss the allegation.  If the explanation is satisfactory, the administrative judge shall refer the allegation to the agency for further counseling of the agent. After counseling, the allegation shall be consolidated with the class complaint.                       

(4) If an allegation lacks specificity and detail, the administrative judge shall afford the agent 15 days to provide specific and detailed information.  The administrative judge shall recommend that the agency dismiss the complaint if the agent fails to provide such information within the specified time period.  If the information provided contains new allegations outside the scope of the complaint, the administrative judge shall advise the agent how to proceed on an individual or class basis concerning these allegations.

(5) The administrative judge shall recommend that the agency extend the time limits for filing a complaint and for consulting with a Counselor in accordance with the time limit extension provisions contained in §1614.105(a)(2) and §1614.604.

(6) When appropriate, the administrative judge may recommend that a class be divided into subclasses and that each subclass be treated  as a class, and the provisions of this section then shall be construed and applied accordingly.  

(7) The administrative judge's written recommendation to the agency on whether to accept or dismiss a complaint and the complaint file shall be transmitted to the agency and notification of that transmittal shall be sent to the agent. The administrative judge's recommendation to accept or dismiss shall become the agency decision unless the agency accepts, rejects or modifies the recommended decision within 30 days of the receipt of the recommended decision and complaint file. The agency shall notify the agent by certified mail, return receipt requested, and the administrative judge of its decision to accept or dismiss a complaint.  At the same time, the agency shall forward to the agent copies of the administrative judge's recommendation and the complaint file. The dismissal of a class complaint shall inform the agent either that the complaint is being filed on that date as an individual complaint of discrimination and will be processed under subpart A or that the complaint is also dismissed as an individual complaint in accordance with §1614.107. In addition, it shall inform the agent of the right to appeal the dismissal of the class complaint to the Office of Federal Operations or to file a civil action and include EEOC Form 573, Notice Of Appeal/Petition.

(e) Notification.  

(1) Within 15 days of accepting a class  complaint, the agency shall use reasonable means, such as delivery, mailing to last known address or distribution, to notify all class members of the acceptance of the class complaint.                     

(2) Such notice shall contain:                                    

• (i) The name of the agency or organizational segment, its location, and the date of acceptance of the complaint;                
• (ii) A description of the issues accepted as part of the class complaint;                                            
• (iii) An explanation of the binding nature of the final decision or resolution of the complaint on class members;  and      
• (iv) The name, address and telephone number of the class representative.

(f) Obtaining evidence concerning the complaint.  

(1) The administrative judge notify the agent and the agency representative of the time period that will be allowed both parties to prepare their cases.  This time period will include at least 60 days and may be extended by the administrative judge upon the request of either party.  Both parties are entitled to reasonable development of evidence on matters relevant to the issues raised in the complaint.  Evidence may be developed through interrogatories, depositions, and requests for admissions, stipulations or production of documents.  It shall be grounds for objection to producing evidence that the information sought by either party is irrelevant, over burdensome, repetitious, or privileged.                                     

(2) If mutual cooperation fails, either party may request the administrative judge to rule on a request to develop evidence. If a  party fails without good cause shown to respond fully and in timely fashion to a request made or approved by the administrative judge for documents, records, comparative data, statistics or affidavits, and the information is solely in the control of one party, such failure may, in appropriate circumstances, caused the administrative judge:   

• (i) To draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information;                                                
• (ii) To consider the matters to which the requested information pertains to be established in favor of the opposing party;            
• (iii) To exclude other evidence offered by the party failing to produce the requested information;      
• (iv) To recommend that a decision be entered in favor of the opposing party;  or                              
• (v) To take such other actions as the administrative judge deems appropriate.                                      

(3) During the period for development of evidence, the administrative judge may, in his or her discretion, direct that an investigation of facts relevant to the complaint or any portion be conducted by an agency certified by the Commission.            

(4) Both parties shall furnish to the administrative judge copies of all materials that they wish to be examined and such other material as may be requested.

(g) Opportunity for resolution of the complaint.  

(1) The administrative judge shall furnish the agent and the representative of the agency a copy of all materials obtained concerning the complaint  and provide opportunity for the agent to discuss materials with the agency representative and attempt resolution of the complaint.    

(2) The complaint may be resolved by agreement of the agency and the agent at any time as long as the agreement is fair and reasonable.                                                                

(3) If the complaint is resolved, the terms of the resolution shall be reduced to writing and signed by the agent and the agency.

(4) Notice of the resolution shall be given to all class members in the same manner as notification of the acceptance of the class complaint and shall state the relief, if any, to be granted by the agency.  A resolution shall bind all members of the class. Within 30 days of the date of the notice of resolution, any member of the class may petition the EEO Director to vacate the resolution because it benefits only the class agent or is otherwise not fair and reasonable. Such a petition will be processed in accordance with  1614.204(d) and if the administrative judge finds that the resolution is not fair and reasonable, he or she shall recommend that the resolution be vacated and that the original class agent be replaced by the petitioner or some other class member who is eligible to be the class agent during further processing of the class complaint.  An agency's decision that the resolution is not fair and reasonable vacates any agreement between the former class agent and the agency.  An agency decision on such a petition shall inform the former class agent or the petitioner of the right to appeal the decision to the Office of Federal Operations and include EEOC Form 573, Notice of Appeal/Petition.

(h) Hearing.  

On expiration of the period allowed for preparation of the case, the administrative judge shall set a date for hearing. The hearing shall be conducted in accordance with 29 CFR 1614.109 (a) through (f).

(i) Report of findings and recommendations.  

(1) The administrative judge shall transmit to the agency a report of findings and recommendations on the complaint, including a recommended decision, systemic relief for the class and any individual relief, where appropriate, with regard to the personnel action or matter that gave rise to the complaint.                

(2) If the administrative judge finds no class relief appropriate, he or she shall determine if a finding of individual discrimination is warranted and, if so, shall recommend appropriate relief.    

(3) The administrative judge shall notify the agency of the date on which the report of findings and recommendations was forwarded to the agency.

(j) Agency decision.  

(1) Within 60 days of receipt of the report of findings and recommendations issued under  1614.204(i), the agency shall issue a final decision, which shall accept, reject, or modify the findings and recommendations of the administrative judge.

(2) The final decision of the agency shall be in writing and shall be transmitted to the agent by certified mail, return receipt requested, along with a copy of the report of findings and recommendations of the administrative judge.

(3) When the agency's final decision is to reject or modify the findings and recommendations of the administrative judge, the decision shall contain specific reasons for the agency's action.

(4) If the agency has not issued a final decision with 60 days of its receipt of the administrative judge's report of findings and recommendations, those findings and recommendations shall become the final decision.  The agency shall transmit the final decision to the agent within five days of the expiration of the 60-day period.

(5) The final decision of the agency shall require any relief authorized by law and determined to be necessary or desirable to resolve the issue of discrimination.

(6) A final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the class and the agency.

(7) The final decision shall inform the agency of the right to appeal or to file a civil action in accordance with subpart D of this part and of the applicable time limits.                               

(k) Notification of decision.  

The agency shall notify class members of the final decision and relief awarded, if any, through the same media employed to give notice of the existence of the class complaint.  The notice, where appropriate, shall include information concerning the rights of class members to seek individual relief, and of the procedures to be followed. Notice shall be given by the agency within 10 days of the transmittal of its final decision to the agent.

(l) Relief for individual class members.  

(1) When discrimination is found, an agency must eliminate or modify the employment policy or practice out of which the complaint arose and provide individual relief, including an award of attorney's fees and costs, to the agent in accordance with1614.501.

(2) When class-wide discrimination is not found, but it is found  that the class agent is a victim of discrimination, 1614.501 shall  apply.  The agency shall also, within 60 days of the issuance of the final decision finding no class-wide discrimination, issue the acknowledgement of receipt of an individual complaint as required by 1614.106(d) and process in accordance with the provisions of subpart A of this part, each individual complaint that was subsumed into the class complaint.

(3) When discrimination is found in the final decision and a class member believes that he or she is entitled to individual relief, the class member may file a written claim with the head of the agency or its EEO Director within 30 days of receipt of notification by the agency of its final decision.  The claim must include a specific, detailed showing that the claimant is a class member who was affected by a personnel action or matter resulting from the discriminatory policy or practice, and that this discriminatory action took place within the period of time for which the agency found class-wide discrimination in its final decision.  The period of time for which the agency finds class-wide discrimination shall begin not more than 45 days prior to the agent's initial contact with the Counselor and shall end not later than the date when the agency eliminates the policy or practice found to be discriminatory in the final agency decision.  The agency shall issue a final decision on each such claim within 90 days of filing.  Such decision must include a notice of the right to file an appeal or a civil action in accordance with subpart D of this part and the applicable time limits.

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