Chapter 10 ADMINISTRATIVE APPEALS, CIVIL ACTIONS, AND APPOINTMENT OF COUNSEL

Aggrieved persons must be made aware of administrative and civil action time limitations which potentially may bar an aggrieved person's ability to file appeals and civil actions. All time periods set out in this Management Directive are stated in calendar days unless otherwise indicated. The first day counted is the day after the event from which the time period begins to run and the last day of the period shall be included unless it falls on a Saturday or Sunday or federal holiday, in which case the period shall be extended to include the next business day. All time periods are subject to waiver, estoppel and equitable tolling.

All parties should be aware that attorney's fees may be awarded at the administrative level and beyond under Title VII of the Civil Rights Act of 1964 (see 42 U.S.C. § 2000e-16), Title II of the Genetic Information Nondiscrimination Act of 2008, (42 U.S.C. § 2000ff), and the Rehabilitation Act of 1973, (see 29 U.S.C. § 791), but that attorney's fees are not available at the administrative level under the Age Discrimination in Employment Act, (29 U.S.C. § 633a) or the Equal Pay Act, (29 U.S.C. § 206(d)).

Finally, the agency must advise complainants that they can request that a U.S. District Court appoint counsel for them after they file suit in that court.

The following time limits apply for filing an appeal to the Commission:

1. Appeals limits for complainant=s appeal of an agency's final action on or dismissal of individual complaints of discrimination: Within thirty (30) days of receipt of the dismissal or final action. See 29 C.F.R. § 1614.401(a).
2. Appeals limits for decisions on class complaints of discrimination under 29 C.F.R. § 1614.402(a):
   1. a class agent or an agency may appeal an Administrative Judge's decision accepting or dismissing all or part of a class complaint; a class agent may appeal a final action on a class complaint; a class member may appeal a final action on a claim for individual relief under a class complaint; and
   2. a class member, a class agent, or an agency may appeal a final decision on a petition pursuant to 29 C.F.R. § 1614.204(g)(4). See 29 C.F.R. § 1614.401(c). Appeals filed by class agents or class members described in 29 C.F.R. § 1614.401(c) must be filed within thirty (30) days of receipt of the final action or final decision on a petition pursuant to 29 C.F.R. § 1614.204(g)(4). Appeals filed by agencies on an Administrative Judge's decision accepting or dismissing all or part of a class complaint must be filed within (30) days of receipt of the hearing file and decision. Appeals filed by agencies on an Administrative Judge's decision on the merits of a class complaint must be filed within sixty (60) days of receipt of the hearing file and decision.
3. Appeals limits for allegations of noncompliance with a settlement agreement or an Administrative Judge's decision that has not been appealed to the Commission or been the subject of a civil action under 29 C.F.R. § 1614.504:
   1. Within thirty (30) days of the complainant's receipt of an agency's determination on an allegation of noncompliance.
   2. Thirty-five (35) days after the complainant serves the agency with an allegation of noncompliance, if the agency has not issued a determination.

   Notice to the EEO Director of noncompliance is a prerequisite to the filing of an appeal alleging breach of a settlement agreement.^[1]

4. Appeals limits on final grievance decisions in employment discrimination claims where 5 U.S.C. § 7121(d) applies to the agency: Within 30 days of receipt of the final decision of an agency, an arbitrator, or the Federal Labor Relations Authority when employment discrimination was raised.
5. Limits on petitions for consideration of final decisions of the MSPB on mixed case appeals and mixed case complaints (5 C.F.R. § 1201.151 et seq. and 5 U.S.C. § 7702):^[2]
   1. Within 30 days of receipt of the final MSPB decision.
   2. Within 30 days after the decision of a MSPB field office becomes final.
6. Appeals limits for an agency's appeal if the agency's final order following a decision by an Administrative Judge does not fully implement the decision of the Administrative Judge:
   1. Within forty (40) days of receipt of the Administrative Judge's decision.
   2. Under 29 C.F.R. § 1614.401(b), an agency is required to file an appeal to the Commission if the agency's final order does not fully implement the decision of the Administrative Judge. The Commission's use of the word "may" in 29 C.F.R. § 1614.401(b) is not inconsistent with this requirement. The agency has the option to appeal if it is not satisfied with the Administrative Judge's decision. If the agency chooses not to appeal, however, it must fully implement the Administrative Judge's decision. In other words, when the agency decides whether it will fully implement the Administrative Judges' decision, it is also deciding whether to appeal; a decision to fully implement means that it is not appealing while a decision not to fully implement means that it is appealing.

In addition to providing for appeals to the Commission by complainants alleging breach of a settlement agreement, 29 C.F.R. § 1614.504(a) provides that a complainant may file an appeal alleging agency noncompliance with a final action through which the agency has accepted the decision of an Administrative Judge. The complainant first must present his/her allegations of noncompliance to the EEO Director. The complainant thereafter may appeal:

1. Within thirty (30) days of the complainant's receipt of an agency's determination on the allegation of noncompliance; or
2. Thirty-five (35) days after the complainant serves the agency with the allegation of noncompliance, if the agency has not issued a determination.

A petition to the Commission to consider a final MSPB decision on a mixed case appeal or on the appeal of a final decision on a mixed case complaint, under 29 C.F.R. § 1614.303 and 29 C.F.R. § 1614.304, must be in writing and must include:

1. The name and address of the petitioner and of petitioner's representative (if any);
2. A statement of the reasons why the decision of the MSPB is alleged to be incorrect, only with regard to the issues of discrimination based on race, color, religion, sex, national origin, age, disability or genetic information;
3. A copy of the decision issued by the MSPB; and
4. The signature of the petitioner or representative, if any. See Chapter IX Section IV.H of this management directive for information on electronic signatures.

At the time the agency issues its final decision on a mixed case complaint the agency shall advise the complainant of the right to appeal the decision to the MSPB (not the Commission) within thirty (30) days of receipt of the agency's final decision provided at 29 C.F.R. § 1614.302(d)(3).

1. Title VII, Age Discrimination in Employment Act, the Genetic Information Nondiscrimination Act, Rehabilitation Act - 29 C.F.R. § 1614.407.

   A complainant who has filed a non-mixed individual complaint, an agent who has filed a class complaint, or a claimant who has filed a claim for individual relief in a class action complaint may file a civil action in an appropriate U.S. District Court:

   1. Within ninety (90) days of receipt of an agency's final action on an individual complaint, or final decision on a class complaint, if no appeal has been filed.
   2. After 180 days from the date of filing an individual or class complaint if no appeal has been filed and no final action on an individual complaint or no final decision on a class complaint has been issued.
   3. Within 90 days after receipt of the Commission's final decision on appeal.
   4. After 180 days from the date of filing an appeal with the Com­mission if there has been no final decision by the Commission.
2. The Equal Pay Act - 29 C.F.R. § 1614.408

   Regardless of whether the individual complainant pursued any administrative complaint processing, a complainant may file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, within three years of the date of the alleged violation of the Equal Pay Act. Recovery of back wages is limited to two years prior to the date of filing suit, or to three years if the violation is willful; liquidated damages in an amount equal to lost back wages may also be awarded. The filing of an administrative complaint does not toll the time for filing a civil action.

Filing a timely civil action under any of these statutes terminates Commission processing of an appeal. See 29 C.F.R. § 1614.409. If a civil action is filed after an appeal has also been filed, the parties are requested to notify the Commission of this event in writing.

The Civil Rights Act of 1991 did not extend the time limit for filing a civil action in mixed case complaints. See 29 C.F.R. § 1614.310, which sets forth the statutory rights to file a civil action in mixed case complaints.

Consistent with the court's holding in Hilliard v. Volcker, 659 F.2d 1125 (D.C. Cir. 1981), it is the Commission's policy to require all federal agencies subject to the Management Directive to inform complainants, in writing, of their statutory right to request court appointment of counsel for representation in connection with the filing of civil actions that arise under Title VII, the Genetic Information Nondiscrimination Act, and the Rehabilitation Act.

In Hilliard, the court held that agencies must inform complainants unsuccessful in the administrative process that, in the event they file a civil action, the court has discretionary authority to appoint counsel for them. A litigant who fails to request counsel should not be penalized because an agency has been remiss in its duty to inform the complainant of the court's authority.

Therefore, all federal agencies subject to 29 C.F.R. Part 1614 must include the following language in every final action or final decision on complaints which allege discrimination of race, color, religion, sex, national origin, age, disability, genetic information, and/or retaliation:

1. Within 30 days of your receipt of the final action or final decision (as appropriate), you have the right to appeal this final action or final decision to:

   Equal Employment Opportunity Commission
   Office of Federal Operations
   P.O. Box 77960
   Washington, DC 20013

2. You also have the right to file a civil action in an appropriate U.S. District Court. If you choose to file a civil action, you may do so
   • - within 90 days of receipt of this final action or final decision (as appropriate) if no appeal has been filed, or
   • - within 90 days after receipt of the EEOC's final decision on appeal, or
   • - after 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission.

You must name the person who is the official agency head or department head as the defendant. Agency or department means the national organization, and not just the local office, facility, or department in which you might work. Do not name just the agency or department. In your case, you must name as the defendant. [The Administrative Judge or agency must supply the name of the proper person.] You must also state the official title of the agency head or department head. Failure to provide the name or official title of the agency head or department head may result in dismissal of your case.

If you decide to file a civil action, under Title VII or under the Rehabilitation Act, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action MUST BE FILED WITHIN NINETY (90) CALENDAR DAYS of the date you receive the final action or final decision (as appropriate) from the agency or the Commission.