The Equal Employment Opportunity Commission (EEOC) today issued a technical Notice of Proposed Rulemaking (NPRM) that proposes a limited procedural change to the federal sector processing regulations.
The NPRM was posted by the Federal Register for public inspection today and will be published in the Federal Register on Feb. 14, 2019. Members of the public wishing to comment on the NPRM will have 60 days from the date of publication to do so, through www.regulations.gov.
The NPRM, approved by the commission in a unanimous vote on Dec. 20, 2018, would change the rule for when a federal sector complainant may choose to withdraw an EEOC administrative appeal (that is, an administrative appeal to the EEOC from the employing department’s or agency’s final action) and instead file a lawsuit in federal court. Federal complainants are not required by statute to appeal to the EEOC before going to court; they simply have that option under the EEOC’s regulation.
Under the statute, however, complainants may go directly to court within 90 days of the employing agency’s final action. Because an EEOC administrative appeal is an optional step in the administrative process, this NPRM proposes to permit complainants to change their minds, withdraw an EEOC administrative appeal, and file in court within 90 days of the final agency action.
This specific issue was the focus of Bullock v. Berrien, 688 F.3d 613 (9th Cir. 2012), where the 9th Circuit allowed such a change of course because an EEOC appeal is optional. This NPRM would also propose a parallel change to the procedures governing a complainant’s optional request for administrative reconsideration of an EEOC administrative appeal decision. No other substantive changes are proposed in the NPRM.