U.S. Department of Commerce
Manual for Processing Discrimination Complaints
Part I, Section A, Chapter 5
THE APPEAL PROCESS FOR EEO COMPLAINT

This chapter deals with the appeal process in individual EEO complaints that are not mixed cases. For information about appeals in class complaints, see Chapter 10. For information on appeals of mixed cases, see Chapter 9.

The appeal process, which is administered by the EEOC, provides an opportunity for review of Department FADs by an outside agency. It also allows the Department to appeal decisions issued by AJs. There are two levels of review: the initial appeal to the Office of Federal Operations (OFO) and an opportunity for reconsideration by the EEOC.

Appeals to the Office of Federal Operations

Appeals filed by a complainant

A complainant may appeal a FAD, including a decision dismissing all or part of a complaint, to OFO.

Time frame for appeals. Appeals must be filed:

• within 30 calendar days of the complainant’s receipt of the FAD, or
• if the complainant is represented by an attorney, within 30 calendar days of the date the attorney received the FAD.

Method of filing an appeal. The complainant should use EEOC Form 573, Notice of Appeal/Petition, and should indicate what s/he is appealing. A copy of this notice is sent out with each FAD issued by the Department, except those issued in mixed case complaints.

The appeal may be filed by any of the following means:

• by mail to:

  Director, Office of Federal Operations
  Equal Employment Opportunity Commission
  P. O. Box 19848
  Washington, D.C. 20036

• by personal delivery to:

  Director, Office of Federal Operations
  Equal Employment Opportunity Commission
  1801 L Street, N.W.
  Room 5000
  Washington, D.C. 20507

• by facsimile to:
  (202) 663-7022 or
  (FTS) 989-7099

A copy of the appeal must be sent to the Department at the following address. In or attached to the appeal, the complainant must certify the date and method by which the copy was sent to the Department.

The Office of Civil Rights
Room 6012
U. S. Department of Commerce

Washington, D.C. 20230

Statement or brief in support of an appeal. Complainants may file a statement or brief in support of the appeal. The statement or brief must be submitted to the Director, OFO, through one of the methods listed above within 30 calendar days of filing the appeal. A copy of the statement also must be sent to the Department at the address listed above.

Appeals filed by the Department

The Department must issue a final order within 40 days of receipt of an AJ’s decision and, if it does not fully implement the AJ’s decision, must file an appeal at the same time.

Brief in support of the Department’s appeal. The Department must file a brief in support of its appeal within 20 days of filing the appeal.

Appeal Procedures

Opposition statements or briefs. Any statement or brief in opposition to an appeal must be submitted to OFO and served on the opposing party within 30 days of receipt of the statement or brief in support of the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.

Facsimiles. The OFO will accept statements or briefs by facsimile transmittal, as long as they are no more than 10 pages long.

Complaint file. The Department must submit the complaint file to OFO within 30 days of initial notification that a complainant has appealed, or within 30 days of submission of an appeal by the Department.

Interim Relief. If the Department appeals an AJ’s decision which ordered retroactive restoration of a complainant, the Department must temporarily or conditionally restore the complainant to his/her former position pending the outcome of the appeal when:

• The Department issues a final order notifying a complainant that it will not fully implement the AJ’s decision finding in favor of the complainant;
• The case involves separation, removal, or suspension continuing beyond the date of the final order; and
• The Department has not determined that the return or presence of the complainant will be unduly disruptive to the work environment.

When interim relief is indicated, the following provisions apply:

• A complainant may decline an offer of interim relief if s/he has obtained a better position.
• A grant of interim relief does not insulate a complainant from subsequent disciplinary or adverse action for another reason.
• Where an agency determines that restoration of a complainant will be unduly disruptive to the work environment, the agency must provide prospective pay and benefits.
• Interim relief does not apply in cases where the complainant alleges that s/he was not retained beyond the period of a temporary appointment which expired prior to the appeal or that the temporary position was not converted to a permanent position (e.g., the interim relief provision will not apply to temporary Census employees when the temporary appointment expired prior to the appeal or the employee was not converted to a permanent position.)

Standard of Review for AJ decisions. Factual findings by AJs after a hearing will be subject to a substantial evidence standard of review. EEOC will defer to the AJs factual findings and will not substitute its judgment on appeal unless there is substantial evidence that the findings were incorrect. Legal findings are subject to de novo review. No new evidence will be considered on appeal for cases that went to a hearing unless the evidence was not reasonably available during the hearing process.

Standard of Review for Department FADs without Hearing. The standard of review for FADs without a hearing is de novo review of both factual and legal findings, i.e. a new review rather than an examination of the FAD. OFO reviews the complaint file and all written statements and briefs from both parties and may supplement the record by an exchange of letters or memoranda, investigation, remand to the Department or other procedures. If OFO requests information from a party to supplement the record, the party providing information shall send a copy to the other party.

Decisions on Appeals. OFO, on behalf of the EEOC, issues a written decision setting forth its reasons for its findings and conclusions. Decisions are based on the preponderance of the evidence. OFO's decision is the final decision of the EEOC unless the EEOC reconsiders the decision.

Reconsideration

The EEOC may reconsider an OFO decision on its own motion or if either party files a timely request for reconsideration. The EEOC has the discretion to grant a request for reconsideration, but may do so only if the requester demonstrates that:

• the appellate decision involved a clearly erroneous interpretation of material fact or law, or
• the appellate decision will have a substantial impact on the policies, practices or operations of the agency.

Time limits for reconsideration:

• Reconsideration without request. The EEOC may reconsider an OFO decision on its own motion within a reasonable period of time.
• Request for reconsideration. Either the complainant or the Department may request that the EEOC review OFO's decision by filing a Request for Reconsideration. The request must be filed:
  • within 30 days of the party's receipt of OFO's decision; or
     
  • within 20 days of receipt of another party's timely request for reconsideration.

Filing Procedures. The request, along with any supporting statement or brief, shall be submitted to the OFO and to all parties with proof of such submission.

Statement in Opposition to the Appeal. All other parties shall have 20 days from the date of service in which to submit any statement or brief in opposition to the request. Copies must be provided to other parties, with proof of submission.

Interim Relief. If the Department requests reconsideration of a decision which ordered retroactive restoration of a complainant, and the case involves removal, separation, or suspension continuing beyond the date of the request for reconsideration, the Department must comply with the decision to the extent of the temporary or conditional restoration of the complainant to duty status in the position specified in the decision, pending the outcome of the Department's request for reconsideration. The Department also must notify the complainant that his/her restoration is temporary or conditional at the same time it seeks reconsideration.

EEOC Decision on Request for Reconsideration. The EEOC issues a decision after considering the written record, including the request and statements in opposition to the request. The decision is final and there is no further right by either party to request reconsideration unless the decision remands the complaint for further agency consideration, in which case the parties retain the rights of appeal and reconsideration with respect to any subsequent decision.

Right to file a civil action. Instead of filing an appeal or request for reconsideration, the complainant may file a civil action in federal district court.

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