The Coalition For Change, Inc.

(C4C)
Comments to the Equal Employment Opportunity Commission’s
Proposed Change to
Federal Sector Complaint Processing (29 CFR 1614)

RIN 3046–AA97

On February 14, 2019, the U.S. Equal Employment Opportunity Commission (EEOC)
announced in Federal Register Vol. 84, No. 31 its technical Notice of Proposed Rulemaking
(NPRM). The NPRM creates a procedural change to the federal sector processing regulations.
The NPRM mostly reflects a policy the EEOC promotes about when a complainant may
“withdraw” an administrative appeal to the EEOC from the employing agency’s final action
and instead, file a lawsuit in federal court.

The Coalition For Change, Inc. (C4C), an advocacy group that addresses race
discrimination and retaliation in the federal sector, opposes the EEOC’s proposal. Our
members, comprising present and former employees harmed by federal workplace abuses,
view the EEOC proposal as problematic. Given the EEOC’s recurrent failure to enforce
federal agencies’ non-compliance with its complaint processing guidelines1, the C4C certainly
grasps why one may cheer a proposal permitting a complainant to voluntarily withdraw an
administrative appeal from the EEOC’s Office of Federal Operations and, simply take their
chances in court. Still, despite the EEOC’s shortcomings, the EEOC’s NPRM sets many
federal employees (or applicants) up for doom. In documenting our comments to the NPRM,
we discuss three key concerns.

Firstly, Congress empowered the EEOC to handle federal complaints. Legislatures did
not plan for the EEOC to cast its caseload on the courts. Secondly, not all Circuits embrace
the Ninth Circuit’s ruling on whether and when a complainant may file a civil action after

1 The Government Accountability Office (GAO) reports complainants often cite the lack of consequences for agencies that do not
comply with the 180-day requirement to complete investigations. (August 2009-GAO-09-712) “A commissioner noted that a
double standard exists, because a complaint would be dismissed if a complainant missed any of the deadlines” (p.12).
Additionally, the C4C has documented the EEOC’s non-responsiveness to multiple inquiries made to get information about the
EEOC’s compliance to perform agency field audits as called for under 29 C.F.R. 1614.104(b). Despite having a “certified receipt
card” acknowledging the EEOC received our organization’s Freedom of Information Act (FOIA) request the EEOC fails to respond.
FOIA made in October 2018 still awaits EEOC reply.

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filing an earlier EEOC administrative appeal or request for reconsideration. Thirdly, the
EEOC needs to serve as a better steward over the federal complaint system.

1. The EEOC’s Failure to Adopt Congressional Intent

The Congress laid a scheme for the favored method of relying on the administrative
processes of the EEOC to resolve federal employment complaints. 2 Section 717 of the Civil
Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972,
creates an administrative and judicial enforcement system. The Congress largely passed the
Act to give the EEOC3 the lawful ability to enforce civil rights. Furthermore, Congress added
section 717 to the Act to make sure the aggrieved exhausted administrative remedies before
filing suit. In a novel approach to undermine congressional intent for the EEOC to act as an
arbiter over federal complaints, the EEOC issues NPRM RIN 3046-AA97. In doing so, the
EEOC contorts the congressional scheme on exhaustion of administrative remedies. The
Supreme Court case Brown v. GSA, 425 U.S. 820 (1976) sequences the congressional scheme
for a complainant to enter court after filing an appeal with the EEOC. Nevertheless, the
EEOC’s NPRM allows a complainant to willingly withdraw from the EEOC appeal process
(after the complainant chooses the appeals forum) and file a civil action “within 90 days of
receipt of an agency final action.”

Undoubtedly, the NPRM weakens the EEOC’s crucial role as an adjudicator in the
federal complaint appeal process and disrupts the administrative complaint resolution system
Congress foresaw. Congress gave the EEOC broad remedial authority. The Congress
expected the “enforcement agency” to use it capably – instead of relinquishing its’ duty to the
courts. As stated in the EEOC’s 2019 Congressional Budget Justification:
“The Commission has the responsibility for serving as the neutral arbiter in the federal
sector for appeals from agency decisions on EEO complaints, collective bargaining
agreement grievances alleging discrimination against federal agencies, and reviewing
decisions by the Merit Systems Protection Board containing allegations of appealable
actions under 29 C.F.R. Part 1614. The appellate decisions issued by the Commission
serve as a vehicle for the development and promulgation of the Commission's EEO
policy in the federal sector” (Paragraph C: Federal Sector Appeals Program FY 2019)

2 In extending Ti tle VII p rotections to federa l employees , Congress c reated “c omp lementary admi ni stra ti ve
and j udicial enforcement mec ha nisms,” Brown v. GSA, 425 U. S. at 831 (197 6), whi le s ti ll emp hasi zi ng i ts
preference for admi nis trati ve res olution of dis putes s ee id. at 833–34.
3 In 1978, the EEOC replaced the C ivi l Service C ommis sion a s the body i n charge of ha ndli ng federa l
employment discri mi nati on c laims. See Reorganiza ti on Pla n No. 1 of 1978 .

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2. The EEOC’s NPRM Encourages Conflict Among the Circuits

The EEOC’s NPRM, based on the Ninth Circuit’s decision in Bullock v. Berrien,4 will
cause immeasurable conflict among the Circuits. It will further confuse the present
exhaustion of administrative remedies debate. When promoting the NPRM, the EEOC
misleads stakeholders with its statement: “that an administrative appeal or a request for
reconsideration may be withdrawn without affecting the complainant’s right to file a
civil action (NPRM, p. 4016).” The C4C challenges this premise. For the EEOC will put many
employees in harm’s way given other Circuits do not share the Ninth Circuit’s position
allowing a complainant to abandon the EEOC appeal process and to file a civil action.
Dissenting Circuits will likely dismiss a complainant’s case for failure to exhaust
administrative remedies. In light of our concern, the Coalition For Change, Inc. (C4C) poses
the following to the EEOC:

1. Can the EEOC guarantee that other Circuits will rule as the Ninth Circuit?
2. Did the EEOC issue the NPRM solely on the Ninth Circuit’s decision; or did the EEOC first
identify other Circuits that have ruled like the Ninth Circuit?
3. What other Circuits, if any, have ruled like the Ninth Circuit?
4. What guarantee do complainants have that the U.S. Department of Justice (DOJ) will
support EEOC’s proposal as it relates to “administrative exhaustion?”
5. Has the EEOC obtained any comments from the DOJ backing the NPRM?
6. Will the EEOC share any comments the DOJ makes with the public?
7. What has the EEOC done to guarantee the DOJ won’t argue to the court in a “Motion to
Dismiss” that a complainant entered the court prematurely, failed to exhaust
administrative remedies, and failed to satisfy congressional timeframes governing the
filing of a civil action after making an appeal to the EEOC as set at 42 U.S.C. § 2000e-
16(c)?
8. Lastly, before binding the federal government in a vital matter that grew out of its own
litigation, where the EEOC was the Defendant in a discrimination claim, has the EEOC
petitioned the Supreme Court for clarity on the Bullock v Berrien exhaustion matter?

4 T he EEOC pr omotes the NPRM ba sed on the Ninth C ircui t’s holding i n Bulloc k v. Berrien, 688 F. 3d 613
(ni nth Cir. 2012), a cas e i n whi ch the EEOC is the DEFENDANT. In Bullock , Mar y Bulloc k, who wor ked as an
admi nistr ati ve la w judge (ALJ) for the EEOC from 1999 to 2007 , fi led a n admi ni stra ti ve c omp lai nt under the
Rehabi li tation Ac t of 1973.

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 In the U.S. Court of Appeals For the District of Columbia Circuit case, Howard v
Pritzker5 (2015), the Circuit noted the following as it relates to the 90-day rule, appeals to the
EEOC, and a complainant’s access to court.

“Although allowing an aggrieved employee to file a civil action, Congress imposed

“certain preconditions:” seek relief from the employing agency that allegedly
discriminated and then either seek appellate review by the EEOC and file suit
within ninety days after its final action, or file suit within ninety days after
receiving a final agency decision without appealing to the EEOC.”
Howard/Megginson v Pritzker (p13) No. 12-5370

In Howard v Pritkzer (2015), the District of Columbia Circuit covered the administrative
process at length. The District of Columbia Circuit clearly underscored the preference for
administrative resolution of disputes. It opined (at p.15) – “Congress chose to address
employment discrimination in a manner that emphasized using the employing agency and
the EEOC to resolve complaints free of judicial involvement and vested broad remedial
authority in them.” Note, at the request of the Department of Justice courts in various
Circuits have summarily dismissed employee complaints,6, for failing to meet the
congressional administrative exhaustion scheme. For example, unlike the Ninth Circuit that
gave Bullock the option to withdraw her EEOC appeal and to file a civil action, the Court in
Debacker v Federal Bureau of Investigation did not give a similar option. Instead, the Court
DISMISSED the case brought into court as premature where complainant filed a civil action
waiting only 142 days after filing an EEOC appeal and without receiving a decision on her
administrative appeal.7 Notably, the Court found that Debacker8:

1. “failed to file suit (1) "[w]ithin 90 days of receipt of the [OFO's] final decision on an
appeal" [29 CFR 1614.407(c)]; or

5 Janet Howard, Joyc e E. Meggi ns on v Penny Pritzker , Secr etar y of C ommerce, No. 12 -5370, Ja n. 6, 2015.
6 U. S. Depar tment of Justic e defends the i nteres ts of the U ni ted Sta te a nd r epres ents the head of federa l
dep artments / agencies named as a Defenda nt i n ci vi l ac ti ons.
7 Bulloc k filed i n c ourt withi n 90 days of the “a genc y” fina l acti on; however , s he did s o AFTER elec ti ng the
c ongressi onal scheme for the EEOC appea l process, she then aba ndoned the admi nis tra ti ve pr ocess before the
EEOC issued a fi na l acti on.
8 Debacker vs Federa l Bureau of Investiga tion, N.D. W. Va. (Marc h 19, 2013) Ci vi l Acti on No. 1:12 C V9, at *5.

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 2. "[a]fter 180 days from the date of filing an appeal with the [OFO] if there has been no
final decision by the [OFO]" [as required by 29 C.F.R. § 1614.407(d)].

3. The EEOC’S NPRM Shifts Appeals Caseload Onto the Courts

The EEOC 2019 Budget Justification9 states how “the agency still needs to effectively
manage its appellate inventory.” [See Chart 6: Federal Sector Appeals Workload copied from
the EEOC budget document.] Certainly, the NPRM, if finalized, will cut the EEOC’s appeal
inventory.10 However, it will also hinder the EEOC’s efforts to curb discrimination in the
federal sector.11 Once a complainant leaves
the administrative process, the EEOC does
not check the outcome of the court action.
Most disconcerting, where discrimination is
found, the EEOC does nothing to pursue
discipline against federal officials who break
anti-discrimination laws.12
The C4C finds it curious that the EEOC,
which seldom concerns itself with court
matters involving a “federal complainant,”
uses the Bullock v Berrien discrimination
case, in which it is a named DEFENDANT –
to rewrite federal complaint regulations.
While the C4C would support a positive measure to reduce the EEOC’s appeals inventory, the
C4C cannot support a measure that herds complainants into a court system often hostile to
pro se plaintiffs. Rather, than rewriting regulations to enable a complainant to escape the
federal complaint process, the EEOC should improve its operations so that an individual
seeking an EEOC appeal will want to pursue resolution through an administrative system
perceived as fair and efficient. The EEOC can begin its federal complaint processing

9 U. S. Equal Emp loyment Opp or tunity C ommissi on’s C ongressi ona l Budget Justific ati on 2019
10 29 CFR 1614.409 states that a civil action shall terminate the Commission’s processing of the appeal.
11 “In its effort to eliminate dis crimination in the federa l s ec tor, the EEOC 's appellate federa l s ector program
is sues appellate dec isions” (EEOC -Congressiona l Budget Justi fica ti on 2019 ).
12 Additi onally, i n the admi nistrati ve forum when the EEOC fi nds discrimi na ti on the “enforcement agenc y”
has been der elict i n r eferri ng c ases to the Offic e of Sp ecia l C ounsel (OSC) to seek disc ipli ne for lawbrea kers.
A C 4C Fr eedom of Informa tion Act to the EEOC revea led that despite the Memora ndum of U nders ta nding
between the EEOC and the OSC, the EEOC fa iled to refer a ny cases to the OSC for di scip li nar y ac tion.
Reference: https ://www.scri bd.c om/doc/3167 08 17 2/C 4C -Freedom-Of-Information-Act -Reques t-to-EEOC

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improvement efforts by enforcing the 180-day requirement to complete investigations and
appropriately sanctioning the agency when it fails to comply with 29 CFR 11614.108.

Summary

In closing, the U.S. Equal Employment Opportunity Commission is to provide

leadership on the federal government's equal employment opportunity program. Therefore, it
should follow the intent of Congress.13 It should not issue complex regulations on exhaustion
of administrative remedies that only provokes more questions, and fosters increased conflict
across Circuits. In light of the EEOC’s enforcement role, the EEOC should set an example for
federal agencies to follow on how to resolve complaints “in-house” administratively. The
EEOC should take measures to improve the administrative redress system. Towards this
goal, the EEOC should focus on pro-actively and responsibly holding agencies
(and their officials) accountable for unlawful discrimination. Moreover, to
improve the culture of the federal workplace the EEOC should revisit its Performance
Accountability Report and its Strategic Plan and explore how the EEOC can include
measures14, the Coalition For Change, Inc. (C4C) presented to Carlton M. Hadden, EEOC’s
Director-Office of Federal Operations in 2016, and the measures Representative Elijah
Cummings introduced in the Federal Employee Anti-discrimination Act of 2019.

Submitted by:

Tanya Ward Jordan, President and Founder

The Coalition For Change, Inc. (C4C)

Paulette Taylor-Civil and Human Rights Chair

The Coalition For Change, Inc. (C4C)

Submission Date: March 22, 2019

13 T he Ci vi l Ser vice Commissi on (and the EEOC as of 197 9) was gi ven authori ty to enforce the non -
dis crimi nati on p rovis ions “ ‘thr ough appr opria te remedies, i nc ludi ng rei ns tatement or hiring of emp loyees
wi th or wi thout bac k pa y,’ to issue ‘rules, regula ti ons, orders, a nd i nstr ucti ons as i t deems necessar y a nd
appr opri ate’ to carr y out i ts responsi bi li ties under the Ac t .
14 C 4C measures at https ://www.sc ribd.com/doc/3158 96267 /Acc ounta bi li ty -Tra nspa rency -Measures

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