Rule2024-13064
Personnel Appeals Board; Procedural Rules
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Published
June 18, 2024
Effective
July 18, 2024
Issuing agencies
Government Accountability Office
Abstract
The Government Accountability Office Personnel Appeals Board (PAB or Board) is finalizing amendments to its regulations. The PAB published a proposed rule on November 24, 2023, which contained several significant refinements to the Board's procedures. The General Accounting Office Personnel Act of 1980 provides authority to make these changes.
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<title>Federal Register, Volume 89 Issue 118 (Tuesday, June 18, 2024)</title>
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[Federal Register Volume 89, Number 118 (Tuesday, June 18, 2024)]
[Rules and Regulations]
[Pages 51395-51400]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13064]
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Rules and Regulations
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Federal Register / Vol. 89, No. 118 / Tuesday, June 18, 2024 / Rules
and Regulations
[[Page 51395]]
GOVERNMENT ACCOUNTABILITY OFFICE
4 CFR Part 28
Personnel Appeals Board; Procedural Rules
AGENCY: Government Accountability Office Personnel Appeals Board.
ACTION: Final rule.
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SUMMARY: The Government Accountability Office Personnel Appeals Board
(PAB or Board) is finalizing amendments to its regulations. The PAB
published a proposed rule on November 24, 2023, which contained several
significant refinements to the Board's procedures. The General
Accounting Office Personnel Act of 1980 provides authority to make
these changes.
DATES: This rule is effective as of July 18, 2024.
FOR FURTHER INFORMATION CONTACT: Stuart Melnick, Executive Director,
202-512-3836 or Kevin Wilson, Solicitor, 202-512-7517, <a href="/cdn-cgi/l/email-protection#2a5a4b486a4d4b45044d455c"><span class="__cf_email__" data-cfemail="5a2a3b381a3d3b35743d352c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The Board is authorized by Congress,
pursuant to 31 U.S.C. 751-755, to hear and decide cases brought by
Government Accountability Office (GAO) employees concerning various
personnel matters, including adverse or performance-based actions,
claims of discrimination, alleged prohibited personnel practices, and
labor-management relations. The Board also exercises authority over
GAO's EEO process at the agency. The Board's procedural regulations
applicable to GAO appear at 4 CFR parts 27 and 28. The Board is
revising two sections of these regulations to ensure consistency with
current law and to address a process ambiguity in the current language.
The Board is also replacing gendered pronouns with gender-neutral
pronouns.
4 CFR 28.95
The Board is amending section 28.95 by specifically referencing the
Equal Pay Act of 1963 (29 U.S.C. 206(d)), the Genetic Information
Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-1), and the Pregnancy
Workers Fairness Act (42 U.S.C. 2000gg-1) in its definition of
prohibited EEO discrimination. The addition of the reference to the
Equal Pay Act of 1963 is to clarify that the prohibition on
discrimination in wages on the basis of sex derives from the Equal Pay
Act of 1963's amendment of the Fair Labor Standards Act of 1938 (29
U.S.C. 206(d)).
The additions of the references to the Genetic Information
Nondiscrimination Act of 2008 and the Pregnancy Workers Fairness Act in
paragraph (e) and new paragraph (f) of 4 CFR 28.95 reflect types of
discrimination that became prohibited on the effective dates of the
respective statutes but had not yet been codified into the Board's
regulations.
Similarly, the revision of the definition of prohibited
discrimination in new paragraph (h) of 4 CFR 28.95 includes a list of
activities that may not form the basis for employment actions.
Discrimination in retaliation for protected EEO activity became
prohibited on the effective dates of the respective EEO statutes. This
revision codifies existing prohibitions and does not create a new cause
of action.
Five sets of comments responded to the proposed changes to this
section. The Women and Gender Liaison Group and the GAO Employees
Organization, IFPTE Local 1921, supported the Board's codification of
employee protections in the Equal Pay Act of 1963, the Genetic
Information Nondiscrimination Act of 2008, and the Pregnant Workers
Fairness Act.
28.95(c)
The National Employment Lawyers Association commented that ``[t]he
edit in proposed 4 CFR Sec. 28.95(c) is legally incorrect, since sex-
basis pay discrimination claims do not sound solely in the Equal Pay
Act (EPA). Instead, sex-basis pay discrimination claims concurrently
sound in both the EPA and in Title VII. . . .'' The Board thanks the
National Employment Lawyers Association for this comment. The proposed
amendment was not intended to give the impression that Sec. 28.95(c)
is the only section under which a claim of sex-basis pay discrimination
may be brought. Section 28.95(a), among other things, already includes
in its definition of prohibited discrimination claims under Title VII
on the basis of sex.
28.95(d)
The National Employment Lawyers Association commented, ``GAO should
consider modifying proposed 4 CFR Sec. 28.95(d) to also include claims
for improper collection, archival and/or dissemination of employees'
confidential medical information.'' The Board thanks the National
Employment Lawyers Association for this suggestion. The Board will not
consider this suggestion at this time because the Board has not
proposed any amendments to Sec. 28.95(d) in its proposed rule, and the
Board's stakeholders have not had an opportunity to comment on it.
28.95(h)
Both GAO's Office of General Counsel and the PAB's Office of
General Counsel (PAB/OGC) suggested the Board replace the term
``employment action'' in Sec. 28.95(h). GAO's Office of General
Counsel indicated that ``employment action'' is not a commonly used
term in the context of retaliation and suggested that ``adverse'' or
``materially adverse'' employment action should be used instead. The
PAB/OGC suggested that ``employment action'' be replaced with a broader
term, such as ``retaliatory action,'' ``retaliation,'' or ``employer
action.''
Based on these comments, the Board has accepted these suggestions
and replaced ``employment action'' with ``materially adverse action''
in the final rule. Materially adverse action is a broader term used by
the Supreme Court in the EEO context, and it covers actions that go
beyond the terms and conditions of employment. See Burlington Northern
Santa Fe Ry. v. White, 548 U.S. 53 (2006).
The National Employment Lawyers Association commented that ``GAO
should also consider modifying proposed 4 CFR Sec. 28.95(h) to include
other activity likely to have a chilling effect as giving rise to a
possible retaliation claim. In particular, GAO should consider adopting
the EEOC's per se reprisal line of cases, under Binseel and its
progeny, which recognize a freestanding per se violation
[[Page 51396]]
claim for comments or conduct [that] are likely to have a chilling
effect on employees' protected EEO activity. . . .''
The Board considered this comment in deciding to replace the phrase
``employment action'' with ``materially adverse action.'' The Supreme
Court described materially adverse action in Burlington Northern Santa
Fe Ry. v. White, 548 U.S. 53, 57 (2006) to include an action that
``could well dissuade a reasonable worker from making or supporting a
charge of discrimination.'' This language is intended to include
activities, including nonemployment actions likely to have a chilling
effect on making or supporting a claim of discrimination.
GAO's Office of General Counsel also suggested replacing the term
``unlawful employment practice'' in Sec. 28.95(h) because it is not a
commonly used term in the context of retaliation. The term ``unlawful
employment practice'' is based on guidance contained in the EEOC's
Enforcement Guidance on Retaliation and Related Issues. The guidance
states, ``[i]n addition to participation, an individual is protected
from retaliation for opposing any practice made unlawful under the EEO
laws.'' Therefore, the Board considered this suggestion, but elected to
keep the language in the proposed rule.
GAO's Office of General Counsel commented that ``the reference to a
`claim of retaliation that could be raised under Sec. 28.95(h)' in
Sec. 28.98(e)(1) also is not clear.'' The Board intends ``a claim of
retaliation that could be raised under Sec. 28.95(h)'' to mean an EEO-
related retaliation claim. The use of ``retaliation'' here is
admittedly redundant because all claims that could be raised under
Sec. 28.95(h) are necessarily retaliation claims. The inclusion of it
here is designed to help individuals better recognize that Sec.
28.95(h) claims are retaliation claims because the term ``retaliation''
is not used in Sec. 28.95(h).
4 CFR 28.98
The final rule also resolves ambiguity over when retaliation claims
related to discrimination on one of the EEO-protected bases, including
claims of retaliation under prohibited personnel practices laws like 5
U.S.C. 2302(b)(9), must go through GAO's EEO process pursuant to GAO
Order 2713.2 before a charge containing these claims can be filed with
the PAB/OGC and a petition containing them can be filed with the Board.
Retaliation claims related to discrimination on one of the EEO-
protected bases involving a removal, a suspension of more than 14 days,
or a furlough of not more than 30 days continue to have the option,
pursuant to 4 CFR 28.98(c), of filing a discrimination complaint with
GAO pursuant to GAO Order 2713.2 or bypassing the EEO process and
filing a charge directly with the PAB/OGC. The final rule revisions
clarify that other retaliation claims related to discrimination on one
of the EEO-protected bases may also bypass GAO's EEO process if they
are not reasonably related to the filing or assisting with a
discrimination complaint filed pursuant to GAO Order 2713.2. The PAB/GC
will be empowered to decide whether retaliation claims related to
discrimination on one of the EEO-protected bases are reasonably related
to filing or assisting with a discrimination complaint filed pursuant
to GAO Order 2713.2. If the claims are reasonably related to the filing
or assisting with a discrimination complaint filed pursuant to GAO
Order 2713.2, the PAB/OGC would inform the individual that they need to
file their complaint with GAO pursuant to GAO Order 2713.2 before the
PAB/OGC is permitted to process their charge on these allegations. If
the PAB/GC determines the claims are not reasonably related to filing
or assisting with a discrimination complaint pursuant to GAO Order
2713.2, the PAB/OGC would advise the individual that the charge
containing these claims can be processed by the PAB/OGC without delay.
The purpose of giving this unreviewable discretion to the PAB/GC is to
give certainty to individuals that their claims may be processed
immediately by the PAB/OGC without fear of having the claims
subsequently dismissed for failure to exhaust the administrative
remedies contained in GAO Order 2713.2.
Finally, the final rule amendments allow the PAB/OGC to hold in
abeyance nondiscrimination allegations while related discrimination
allegations are being pursued through GAO's EEO process. Once the
discrimination complaint resolution process concludes, or the
individual opts out, both types of claims could be investigated
together. The PAB/GC is to utilize this provision when the claims are
so related that the PAB/GC determines it would be most appropriate to
conduct a single investigation into them. The PAB/GC will have
discretion to revisit this decision at any time and no longer hold a
claim in abeyance. For purposes of 4 CFR 28.12(g), the length of time a
claim is held in abeyance will count toward the 180-day period, after
which a charging party may opt out of the PAB/OGC's investigation and
file a petition with the Board.
All seven commenters to the proposed rule addressed section 28.98.
The Board has made several changes based on these comments. These
changes are discussed in greater detail in this section.
28.98(b)
The GAO Office of General Counsel requested clarification on ''what
is meant by `processes a complaint' (i.e., accepts the complaint for
investigation, completes the investigation, issues a FAD, etc.).'' The
language in Sec. 28.98(b) is intended to have the same meaning as the
previous version of this section, which stated, ``A charge relating to
GAO's disposition of any individual EEO complaint may be filed with the
Board's General Counsel at the following times . . .'' The final rule
changes the language to the active voice and describes the EEO process.
It should be interpreted in the same way as the previous Sec.
28.98(b).
28.98(c)
The PAB/OGC suggested adding ``certain'' to the title of 4 CFR
28.98(c) so that it reads ``Special rules for certain adverse and
performance-based actions.'' The PAB/OGC was concerned that there could
be confusion over whether ``materially adverse action'' in 4 CFR
28.98(h) is limited to the commonly known Chapter 75 adverse actions
listed in 4 CFR 28.98(c)--namely a removal, suspension for more than 14
days, reduction in grade or pay, or furlough of not more than 30 days.
The Board's addition of the word ``certain'' to the title of 4 CFR
28.98(c) is intended to connote that adverse actions listed in 4 CFR
28.98(c) are only a subset of the ``materially adverse actions''
covered by 4 CFR 28.98(h).
28.98(e)
All seven commenters submitted comments on Sec. 28.98(e). The
Office of Opportunity and Inclusiveness (O&I), which is responsible for
GAO's discrimination complaint resolution process under GAO Order
2713.2, appeared to oversimplify the proposed Sec. 28.98(e) process
when it wrote that ``the forum for processing certain retaliation
claims would depend on whether the Board's General Counsel determines
that the claim relates to retaliation `for filing or assisting with a
discrimination complaint filed pursuant to GAO Order 2713.2' '' The
Sec. 28.98(e) process was designed to give individuals the ability to
choose the forum where they want to bring their EEO-based retaliation
claims. The key is
[[Page 51397]]
that individuals choose their desired forum. The PAB/GC does not make
this determination for them. The PAB/GC's role is to determine whether
an individual's requested forum can be accommodated.
The most commonly raised issue was a request to clarify what claims
relate to retaliation for filing or assisting with a discrimination
complaint filed pursuant to GAO Order 2713.2. Two commenters
specifically asked whether informal contact with an EEO counselor would
be related to filing or assisting with a discrimination complaint filed
pursuant to GAO Order 2713.2.
The phrase ``relates to retaliation for filing or assisting with a
discrimination complaint filed pursuant to GAO Order 2713.2'' is
intended to include retaliation for any task reasonably related to the
discrimination complaint process listed in GAO Order 2713.2. Such task
need not be limited to participating in the formal complaint process.
As such, it should be interpreted to include retaliation for engaging
in pre-complaint EEO counseling with O&I. To make clear that the
``relates to retaliation'' language is not to be strictly interpreted,
the Board has added ``reasonably'' to this phrase so that it reads
``reasonably relates to retaliation'' in Sec. Sec. 28.98(e),
(e)(1)(i), and (e)(1)(ii).
Several commenters requested examples of actions that relate to
retaliation for filing or assisting with a discrimination complaint
filed pursuant to GAO Order 2713.2 and examples of ones that would not.
Examples of actions that would reasonably be related to filing or
assisting with a discrimination complaint filed pursuant to GAO Order
2713.2 include: (1) having previously filed a discrimination complaint
with O&I pursuant to GAO Order 2713.2, (2) having previously filed a
disability complaint with O&I pursuant to GAO Order 2713.2, (3) having
provided testimony in another employee's discrimination claim filed
with O&I pursuant to GAO Order 2713.2, and (4) having engaged in pre-
complaint counseling with O&I pursuant to GAO Order 2713.2. Examples of
actions that would not reasonably be related to filing a discrimination
complaint filed pursuant to GAO Order 2713.2 include: (1) filing a
complaint against an individual with O&I in the anti-harassment portal,
(2) filing a reasonable accommodation request with GAO's Reasonable
Accommodation Team, (3) providing testimony resulting from another
employee's filing a complaint in the anti-harassment portal with O&I,
(4) being associated with, such as a family member or friend, an
individual who filed a discrimination complaint with O&I pursuant to
GAO Order 2713.2, (5) refusing to follow a discriminatory directive,
and (6) opposing discrimination by speaking up at a meeting against a
comment that denigrated an ethnic group.
O&I questioned whether the Board considered replacing ``relates to
retaliation for filing or assisting with a discrimination complaint
filed pursuant to GAO Order 2713.2'' with ``participating in an O&I
process,'' which would include both the discrimination complaint
resolution process under GAO Order 2713.2 as well as GAO's Anti-
Harassment Policy. Yes, the Board did consider this option but decided
against requiring retaliation claims related to all O&I activities to
be processed first by O&I. The Board did not want individuals with EEO-
related retaliation claims to be forced to go through the
discrimination complaint resolution process when their claims were
insufficiently related to the discrimination complaint resolution
process. A former GAO employee commented that having the choice to
bypass O&I in such situations was ``extraordinarily important and
should have been made sooner.'' The former employee detailed the
frustrations they experienced when their claim was required to be
reviewed by O&I before it could be filed with the Board. The GAO
Employees Organization, IFPTE Local 1921, also supported this change.
O&I requested how a hypothetical would be handled where an
individual has an EEO-based retaliation claim that does not relate to
filing or assisting with a discrimination complaint pursuant to GAO
Order 2713.2 but also contains other bases of discrimination (e.g., sex
and race) that involve the same personnel action. Assuming the
individual wanted the EEO-related retaliation claim reviewed by the
PAB/OGC and not O&I, the employee would still be required to file the
other discrimination claims with O&I pursuant to the discrimination
complaint resolution process.
After the individual filed the discrimination claims with O&I
pursuant to Order 2713.2, the sex and race discrimination claims could
later be included in a charge filed with the PAB/OGC at any of the
times listed in 4 CFR 28.98(b). While the sex and race discrimination
claims were going through O&I's discrimination complaint resolution
process, the PAB/GC would have the choice of when to begin the
investigation into the EEO-based retaliation claim. Because that claim
shares a common personnel action with the sex and race discrimination
claims being reviewed by O&I, the PAB/GC could hold the retaliation
claim in abeyance pursuant to 4 CFR 28.98(f) if the PAB/GC determines
it would be more appropriate to wait for the sex and race
discrimination claims to have completed the discrimination complaint
resolution process and investigate all three claims together.
In the context of this same hypothetical, O&I asked, ``[h]ow should
the General Counsel respond if the individual also raises other
discrimination claims, such as harassment based on disability?'' If the
PAB/GC were to receive a harassment based on a disability claim, the
Board would first expect the PAB/GC to determine if the individual were
attempting to allege discrimination on the basis of disability. If so,
the PAB/OGC could investigate the claim immediately if it involved a
removal, suspension for more than 14 days, reduction in grade or pay,
or furlough of not more than 30 days. 4 CFR 28.98(c). If it involved a
different personnel action, the PAB/OGC would instruct the individual
to file a claim with O&I. 4 CFR 28.98(a). If the individual was not
attempting to allege discrimination based on disability, the Board
expects the PAB/OGC to analyze the claim under all statutes within its
jurisdiction and make the individual aware of the anti-harassment
protections offered by O&I.
Two commenters made suggestions regarding the length of time the
PAB/GC has to make a Sec. 28.98(e) determination. The GAO Employees
Organization, IFPTE Local 1921, suggested adding a timeline during
which the PAB/GC must make this determination. The National Employment
Lawyers Association suggested that the date on which a Sec.
28.98(e)(1) claim is filed with the PAB/OGC should be treated as the
filing date with O&I for the subsequent filing under the discrimination
complaint resolution process. Both commenters appear concerned that a
delay by the PAB/GC in making a Sec. 28.98(e) determination may
prevent a timely filing with O&I. The Board's Executive Director plans
to contact the Managing Director of O&I to find a mutually acceptable
resolution to this potential problem. The Board expects these
discussions to fully resolve this issue. However, if O&I does not
accept a Sec. 28.98(e)(1) complaint on timeliness grounds where an
individual acted reasonably yet could not meet O&I's filing deadline,
the individual should refile the complaint with the PAB/OGC. The Board
expects that in such a situation, it would find ``good cause''
[[Page 51398]]
under Sec. 28.16(b) to waive its requirement that O&I review the
claim. The Board has no intention of allowing an individual to forfeit
their claim by undertaking a process the Board created when they
experience delays outside of their control.
28.98(e)(1)
The GAO Office of General Counsel indicated that ``the reference to
a `claim of retaliation that could be raised under Sec. 28.95(h)' in
Sec. 28.98(e)(1) also is not clear.'' ``A claim of retaliation that
could be raised under Sec. 28.95(h)'' means an EEO-related retaliation
claim. The use of ``retaliation'' here is admittedly redundant because
all claims that could be raised under Sec. 28.95(h) are necessarily
retaliation claims. The inclusion of it here is designed to help
individuals better recognize that Sec. 28.95(h) claims are retaliation
claims because the term ``retaliation'' is not used in Sec. 28.95(h).
The GAO Office of General Counsel commented on the reference to 5
U.S.C. 2302(b)(9) in Sec. 28.98(e)(1). ``This paragraph concerns `a
claim of retaliation that could be raised under Sec. 28.95(h),
including the prohibited personnel practices listed in 5 U.S.C.
2302(b)(9).' The reference to 5 U.S.C. Sec. 2302(b)(9) appears to be
overbroad. Section 2302(b)(9) lists several different prohibited
personnel practices, including retaliation for filing whistleblower
retaliation claims and disclosing information to an Inspector General.
A `claim of retaliation that could be raised under Sec. 28.95(h),'
however, is limited to EEO-related protected activity. The reference to
section 2302(b)(9) therefore should be narrowed given the context.''
The Board recognizes that 5 U.S.C. 2302(b)(9) broadly covers
reprisal for engaging in protected activities. Some of these protected
activities cannot relate to the EEO laws, including disclosing
information to the Inspector General or refusing to obey an order that
would require a law, rule, or regulation violation. The reference to 5
U.S.C. 2302(b)(9) is intended to include only those claims that can be
brought under sec. 2302(b)(9) that are related to the EEO process. It
has no applicability to non-EEO sec. 2302(b)(9) claims. For example, if
an employee brought a claim to the PAB/OGC that they were being
retaliated against for disclosing information about a non-EEO topic to
GAO's Office of Inspector General, Sec. 28.98(e) would not apply, and
no analysis under Sec. 28.98(e) would be performed. Section
28.98(e)(1) only applies to ``claim[s] of retaliation that could be
raised under Sec. 28.95(h).'' In this example, Sec. 28.95(h) does not
apply because the claim is not related to ``opposing any unlawful
employment practice, or for participating in any manner in an
investigation, hearing, or in any stage of an administrative or
judicial proceeding, under any of the [EEO laws].''
The GAO Office of General Counsel commented that it was unclear
what information the PAB/GC could use in making a Sec. 28.98(e)(1)
determination. ``[The GAO Office of General Counsel] suggest[s] that
this section should delineate the basis on which the determination is
made: the employee's submission(s), an investigation, or something
else. It is also unclear how the PAB General Counsel's decision is
communicated to the employee.''
The Board expects the PAB/GC will primarily rely on the information
submitted by the charging party's description of their allegation. The
Board does not anticipate any investigation will need to be performed
for the PAB/GC to make this determination, but if some investigation is
necessary, the final rule's amendments would not prohibit it. The final
rule's amendments do not address the method of communication of a Sec.
28.98(e) decision to an employee and defer to the PAB/GC on the best
manner to perform this task.
The GAO Office of General Counsel comments that ``[t]he
determination of the General Counsel should be reviewable as it can
have significant implications for employees and the exercise of their
rights. The General Counsel's decision also affects GAO with respect to
investigating and resolving employee claims. Accordingly, we believe
there should be a mechanism for the Board to review this
determination.''
The Board agrees that Sec. 28.98(e) determinations will have
significant implications for employees and the exercise of their
rights. Notably, Sec. 28.98(e) will take away no employee rights.
Individuals retain the same right to bring EEO claims directly to O&I
pursuant to the discrimination complaint resolution process. The final
rule attempts to clarify that certain EEO-related retaliation claims
must be brought to O&I first. The discrimination complaint resolution
process must proceed before the PAB/OGC can investigate them. Other
EEO-related retaliation claims may be brought directly to the PAB/OGC
and investigated without going through the discrimination complaint
resolution process. The PAB/GC is tasked with applying the Board's
standard to determine which EEO-related retaliation claims fall into
each category.
The Board acknowledges that if the PAB/GC were to determine that a
claim falls under Sec. 28.98(e)(1)(ii), GAO would be directly affected
as these claims would no longer go through O&I's discrimination
complaint review process where they could potentially be resolved.
Specifically, GAO would be required to investigate the claims much
earlier than if the claims were processed pursuant to the
discrimination complaint review process. The Board considered various
options on reviewability but elected to give the PAB/GC the sole
authority to make Sec. 28.98(e)(1) determinations for three reasons.
First, other than stay requests the PAB has historically not been
involved in the PAB/OGC's processes before a petition is filed with the
Board. Second, Sec. 28.98(e)(1) was designed to give individuals
certainty and allow Sec. 28.98(e)(1)(ii) claims to be investigated
more expediently without having to go through the O&I process, which
can be quite lengthy. A review mechanism would defeat this purpose.
Third, the Board Members do not want to be prejudiced by the parties'
descriptions of legal claims and evidence before a petition is even
filed, because they may subsequently be assigned the case as an
Administrative Judge or review it in an en banc appeal.
The PAB/OGC requested that the word ``instruct'' in Sec.
28.98(e)(1)(i) be replaced with ``advise'' so the relevant portion
would read, ``the Board's Office of General Counsel shall advise the
charging party to file the claim as a complaint of discrimination
pursuant to GAO Order 2713.2.'' The PAB/OGC believes the word
``instruct'' was too strong, and by replacing it with ``advise,'' the
PAB/OGC would be able to address Sec. 28.98(e)(1)(i) claims similarly
to how it already addresses EEO discrimination claims where the
charging party has not exhausted the O&I process. The Board considered
and agreed with this suggestion.
28.98(e)(2)
GAO's Office of General Counsel and the PAB/OGC commented that the
reference to Sec. 28.95(g) in Sec. 28.98(e)(2) should be a reference
to Sec. 28.95(h). The Board thanks the commenters for identifying the
error and has made this change.
28.98(f)
The PAB/OGC commented that ``Section 28.98(f) contains the sub-
title, `Claims related to EEO matters pending with EEO.' Instead of
referencing `matters pending with EEO,' the PAB/
[[Page 51399]]
OGC suggests that `EEO' be replaced with `GAO's Office of Opportunity
and Inclusiveness' or `GAO's EEO Office'.'' The Board considered and
agreed with the suggestion, finding that it more accurately described
the section than the previous title. The Board opted for the second of
the two suggestions, replacing ``EEO'' with ``GAO's EEO Office.'' The
Board concluded that more individuals would understand a reference to
``EEO Office'' than O&I, which is a name and office unique to GAO.
Additionally, O&I's jurisdiction concerns more than EEO matters and the
use of ``GAO's EEO Office'' instead of ``GAO's Office of Opportunity
and Inclusiveness'' more accurately describes the type of claims
addressed in Sec. 28.98(f)(3).
28.98(f)(3)
The GAO Office of General Counsel commented, ``Similar to our
comment on Sec. 28.98(e)(1) above, it is unclear what information the
PAB General Counsel would use to determine whether a claim is
`sufficiently related to a discrimination complaint.''' The Board
anticipates that the PAB General Counsel would primarily rely upon
information submitted by the charging party but could request and
consider information from O&I about the potentially related claims.
The GAO Office of General Counsel had several questions related to
holding a claim in abeyance. ``What happens if the employee decides not
to file a charge under Sec. 28.98(b) for the related claim?'' If no
charge is filed regarding a claim, the PAB/OGC will not investigate
that claim. ``Is there a timeframe for the abeyance, or may the claim
be held in abeyance indefinitely?'' The PAB/GC should not hold a claim
in abeyance longer than the time it takes O&I (GAO's EEO Office) to
process the sufficiently related claim(s) pursuant to the
discrimination complaint review process, which culminates with either
O&I's dismissal of the claim or a Final Agency Decision. ``Must the
charging party/GAO be notified of the General Counsel's determination
to hold a claim in abeyance and/or to resume an investigation?'' The
PAB/OGC is expected to notify the charging party and GAO of both the
GC's determination to hold a claim in abeyance as well as to resume an
investigation. The final rule's amendments are silent on the method by
which this information is to be transmitted, which is intended to give
the PAB/OGC discretion on how to communicate these notifications.
Gender Neutral Pronouns
In addition to the amendments to Sec. 28.95 and Sec. 28.98, the
final rule replaces the gendered pronouns in all the Board's
regulations with gender-neutral ones. The Women and Gender Liaison
Group and the GAO Employees Organization, IFPTE Local 1921, supported
these changes.
List of Subjects in 4 CFR Part 28
Administrative practice and procedure, Claims, Equal employment
opportunity, Government employees.
For the reasons stated in the preamble, the Government
Accountability Office amends title 4, chapter I, subchapter B, part 28
of the Code of Federal Regulations as follows:
PART 28--GOVERNMENT ACCOUNTABILITY OFFICE PERSONNEL APPEALS BOARD;
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT
THE GOVERNMENT ACCOUNTABILITY OFFICE
0
1. The authority citation for part 28 continues to read as follows:
Authority: 31 U.S.C. 753.
PART 28 [Amended]
0
2. Amend part 28 by removing the word or phrase indicated in the left
column of the table from wherever it appears in the part and adding the
word or phrase indicated in the right column in its place:
------------------------------------------------------------------------
Remove Add
------------------------------------------------------------------------
``him or her''............................ ``them''.
``him- or herself''....................... ``themselves''.
``himself or herself''.................... ``themselves''.
``his or her''............................ ``their''.
``his/her''............................... ``their''.
``he or she has''......................... ``they have''.
``he or she is''.......................... ``they are''.
------------------------------------------------------------------------
Sec. 28.80 [Amended]
0
3. Amend Sec. 28.80 by removing the words ``he or she determines'' in
the second sentence and adding in their place the words ``they
determine''.
0
4. Amend Sec. 28.95 by:
0
a. Revising paragraph (c);
0
b. In paragraph (d) removing the word ``or'' at the end of the
paragraph; and
0
c. Redesignate paragraph (e) as paragraph (g); and adding a new
paragraph (e) and paragraphs (f) and (h).
The revision and additions read as follows:
Sec. 28.95 Purpose and scope.
* * * * *
(c) Section 6(d) of the Fair Labor Standard Act of 1938 as amended
by the Equal Pay Act of 1963 (29 U.S.C. 206(d)), prohibiting
discrimination in wages on the basis of sex;
* * * * *
(e) Section 202 of the Genetic Information Nondiscrimination Act of
2008 (42 U.S.C. 2000ff-1), prohibiting discrimination on the basis of
genetic information;
(f) Section 103 of the Pregnant Workers Fairness Act (42 U.S.C.
2000gg-1), prohibiting discrimination on the basis of pregnancy,
childbirth or related medical conditions; or
* * * * *
(h) Prohibited discrimination also includes any materially adverse
action taken against an employee or applicant for employment for
opposing any unlawful employment practice, or for participating in any
manner in an investigation, hearing, or in any stage of an
administrative or judicial proceeding, under any of the statutes or
laws identified in paragraphs (a) through (g) of this section.
0
5. Amend Sec. 28.98 by:
0
a. Revising paragraphs (a), (b) introductory text, (b)(1) and (2);
0
b. Revising the paragraph (c) heading;
0
c. Adding the words ``Office of'' between the words ``Board's'' and
``General'' in paragraph (c)(1);
0
d. Revising the second, third, and fourth sentences of paragraph (c)(2)
and revising paragraph (d);
0
e. Redesignating paragraph (e) as paragraph (f) and adding a new
paragraph (e); and
0
f. Adding a heading to newly redesignated paragraph (f) and adding
paragraph (f)(3).
The revisions and additions read as follows:
Sec. 28.98 Individual charges in EEO cases.
(a) General rule for filing EEO claims. Except as provided in
paragraphs (c) and (e) of this section, an employee or applicant
alleging prohibited discrimination (as defined in Sec. 28.95) must
first file a complaint with GAO in accordance with GAO Order 2713.2 and
may not file directly with the Board's General Counsel.
(b) Time limits to file EEO claims with PAB/OGC. After GAO
processes a complaint in accordance with GAO Order 2713.2, an employee
or applicant for employment may file an individual EEO charge with the
Board's General Counsel as follows:
(1) Within 30 days from the receipt by the charging party of a GAO
decision rejecting the complaint in whole or part; or
(2) Whenever a period of more than 120 days has elapsed since the
[[Page 51400]]
complaint was filed, and a final GAO decision has not been issued; or
* * * * *
(c) Special rules for certain adverse and performance-based
actions. * * *
(2) * * * If the employee elects to file a complaint of
discrimination with GAO, they may still seek Board review of the matter
by filing a charge with the Board's Office of General Counsel at the
times authorized in paragraph (b) of this section. Where a
discrimination complaint filed with GAO relates to one or more non-EEO
issues that are within the Board's jurisdiction in addition to an EEO-
related allegation, the subsequent charge filed with the Board's Office
of General Counsel under paragraph (b) of this section shall be
considered a timely appeal of the non-EEO issue(s). An employee will be
deemed to have elected the EEO complaint process if they file a timely
written complaint of discrimination with GAO before filing a charge
with the Board's Office of General Counsel. * * *
(d) Special rules for RIF-based actions. An individual alleging
discrimination issues in connection with a RIF-based separation may
follow the procedures outlined above in paragraph (c) of this section
for adverse and performance-based actions, or may choose instead a
third option. In accordance with the provisions of Sec. 28.13, such an
individual may challenge that action by filing directly with the PAB,
thus bypassing both the Office of Opportunity and Inclusiveness and the
Board's Office of General Counsel.
(e) Special rules in certain retaliation actions. (1) Except as
outlined in paragraph (c) of this section, whenever a charging party
raises a claim of retaliation that could be raised under Sec.
28.95(h), including the prohibited personnel practices listed in 5
U.S.C. 2302(b)(9), and that claim has not already been filed pursuant
to GAO Order 2713.2, the Board's General Counsel has authority to, and
shall determine whether the claim reasonably relates to retaliation for
filing or assisting with a discrimination complaint filed pursuant to
GAO Order 2713.2. The General Counsel's determination shall not be
reviewable.
(i) If the Board's General Counsel determines the claim as
described in this paragraph (e)(1) reasonably relates to retaliation
for filing or assisting with a discrimination complaint filed pursuant
to GAO Order 2713.2, the Board's Office of General Counsel shall advise
the charging party to file the claim as a complaint of discrimination
pursuant to GAO Order 2713.2.
(ii) If the Board's General Counsel determines the claim as
described in this paragraph (e)(1) does not reasonably relate to
retaliation for filing or assisting with a discrimination complaint
pursuant to GAO Order 2713.2, the Board's Office of General Counsel
shall investigate the claim in accordance with Sec. 28.12.
(2) A charging party who files a claim that could be raised under
Sec. 28.95(h) may bring the retaliation claim both as a complaint of
discrimination under Sec. 28.95 and as a prohibited personnel practice
under 5 U.S.C. 2302(b)(9).
(f) Claims related to EEO matters pending with GAO's EEO Office. *
* *
(3) Where the Board's General Counsel concludes that one or more
claims are sufficiently related to a discrimination complaint filed by
the same claimant pursuant to GAO Order 2713.2 and that it would be
appropriate to investigate all claims together, the Board's Office of
General Counsel may hold the related claim(s) in abeyance until the
Board's General Counsel receives a charge pursuant to paragraph (b) of
this section with respect to the formal discrimination complaint or
decides that the investigation should resume.
Sec. 28.112 [Amended]
0
6. Amend Sec. 28.112 in paragraph (a)(2) by removing the words ``his,
her or''.
Carole W. Wilson,
Chair, Personnel Appeals Board, U.S. Government Accountability Office.
[FR Doc. 2024-13064 Filed 6-17-24; 8:45 am]
BILLING CODE 1610-02-P
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