§ 268.203 Filing and presentation of a class complaint.

(a) The complaint must be submitted in writing by the agent or his representative and be signed by the agent.

(b) The complaint shall set forth specifically and in detail:

(1) A description of the Board personnel management policy or practice giving rise to the complaint; and

(2) A description of the resultant personnel action or matter adversely affecting the agent.

(c) The complaint must be filed not later than 15 calendar days after the agent's receipt of the notice of final interview with the Counselor.

(d) The complaint may be filed with the Board's Staff Director for Management, the Board's Equal Employment Opportunity Officer, the Federal Woman's Program Coordinator, or the Board's Director of Equal Employment Opportunity.

(e) A complaint shall be deemed filed on the date it is postmarked, or, in the absence of a postmark, on the date it is received by an official with whom complaints may be filed.

(f) At all stages, including counseling, in the preparation and presentation of a complaint or claim and appeal from a decision on a complaint or claim the agent or claimant shall have the right to be accompanied, represented, and advised by a representative of his own choosing: Provided, The choice of a representative does not involve a conflict of interest. The representative shall be designated in writing and the designation made a part of the class complaint file.

(g) If the agent is an employee in an active duty status, he shall have a reasonable amount of official time to prepare and present his complaint. Employees, including attorneys, who are representing employees of the Board in discrimination complaint cases must be permitted to use a reasonable amount of official time to carry out that responsibility whenever it is not inconsistent with the faithful performance of their duties.

§ 268.204 Acceptance, rejection or cancellation.

(a) Within 10 calendar days of the Board's receipt of a complaint, the Board's Director of Equal Employment Opportunity shall forward the complaint, along with a copy of the Counselor's report and any other information pertaining to timeliness or other relevant circumstances related to the complaint, to the United States Civil Service Commission with a request for assignment to the complaint of a complaints examiner.

(b) The complaints examiner may recommend that the Board reject the complaint, or a portion thereof, for any of the following reasons:

(1) It is not timely filed;

(2) It consists of an allegation identical to an allegation contained in a previous complaint filed on behalf of the same class which is pending before the Board or which has been resolved or decided by the Board;

(3) It is not within the purview of this subpart;

(4) The agent failed to consult a Counselor in a timely manner;

(5) It lacks specificity and detail; (6) It was not submitted in writing or was not signed by the agent;

(7) It does not meet all of the prerequisites set forth in § 268.201.

(c) If an allegation is not included in the Counselor's report, the complaints examiner shall afford the agent 15 calendar days to explain whether the matter was discussed and if not, why he did not discuss the allegation with the Counselor. If the explanation is not satisfactory, the complaints examiner may recommend that the Board reject the allegation. If the explanation is satisfactory, the complaints examiner may refer the allegation to the Board for further counseling of the agent.

(d) If an allegation lacks specificity and detail, the complaints examiner shall afford the agent 15 calendar days to provide specific and detailed information. The complaints examiner may recommend that the Board reject the complaint if the agent fails to provide such information within the specified time period. If the information provided contains new allegations out

side the scope of the complaint, the complaints examiner must advise the agent how to proceed on an individual or class basis concerning these allegations.

(e) The complaints examiner may recommend that the Board was not notified of the prescribed time limits and was not otherwise aware of them or that he was prevented by circumstances beyond his control from acting within the time limit.

(f) When appropriate the complaints examiner may recommend that a class be divided into subclasses and that each subclass be treated as a class, and the provisions of this section then shall be construed and applied accordingly.

(g) The complaints examiner may recommend that the Board cancel a complaint after it has been accepted because of failure of the agent to prosecute the complaint. This action may be taken only after the complaints examiner has provided the agent a written request, including notice of proposed cancellation, that the agent provide certain information or otherwise proceed with the complaint, and the agent has failed to satisfy this request within 15 calendar days of receipt of the request.

(h) An agent must be informed by the complaints examiner in a request under paragraph (c) or (d) of this section that the complaint may be rejected if the information is not provided.

(i) The complaints examiner's recommendation on whether to accept, reject, or cancel a complaint shall be transmitted in writing to the Board, the agent, and the agent's representative. The complaints examiner's recommendation to accept, reject, or cancel shall become the Board's decision unless the Board or its designee rejects or modifies the decision within 10 calendar days of its receipt. The Board shall notify the agent, the agent's representative, and the complaints examiner of its decision to accept, reject, or cancel a complaint. The notice of a decision to reject or cancel shall inform the agent of his right to proceed with his individual complaint of discrimination and of his right to file a civil action.

§ 268.205 Notification and opting out.

(a) After acceptance of a class complaint, the Board, within 15 calendar days, shall use reasonable means, such as delivery, mailing, distribution, or posting, to notify all class members of the existence of the class complaint.

(b) A notice shall contain: (1) The name of the Board or crganizational segment(s) thereof involved, its location, and the date of acceptance of the complaint; (2) a description of the issues accepted as part of the class complaint; (3) an explanation that class members may remove themselves from the class by notifying the Board within 30 calendar days after issuance of the notice; and (4) an explanation of the binding nature of the final decision on or resolution of the complaint. § 268.206 Avoidance of delay.

The complaint shall be processed promptly after it has been accepted. To this end, the parties shall proceed with the complaint without undue delay so that the complaint is processed within 180 calendar days after it was filed.

§ 268.207 Freedom from restraint, interference, coercion, and reprisal.

(a) Agents, claimants, their representatives, witnesses, the Director of Equal Employment Opportunity, the Equal Employment Opportunity Officer, Equal Employment Opportunity Investigators, Equal Employment Opportunity Counselors, and other Board officials having responsibility for the processing of discrimination complaints shall be free from restraint, interference, coercion, and reprisal at all stages in the presentation and processing of a complaint, including the counseling stage under § 268.202, or any time thereafter.

(b) A person identified in paragraph (a) of this section, if a Federal employee or applicant, may file a complaint or restraint, interference, coercion, or reprisal in connection with the presentation and processing of a complaint of discrimination. The complaint shall be filed and processed in accordance with provisions of Subpart A of this part.

§ 268.208 Obtaining evidence concerning the complaint.

(a) General. (1) Upon the acceptance of a complaint, the Board or its designee shall designate an agency representative. The agency representative shall not be an alleged discriminating official of any individual designated under § 268.102(a) of Subpart A of this part.

(2) In representing the Board, the Board representative shall consult with officials, if any, named or identified as responsible for the alleged discrimination, and other officials or employees of the Board as necessary. In such consultation, the Board representative will be subject to the provisions of the Board's regulations, rules, and instructions concerning privacy and access to individual personnel records and reports.

(b) Development of evidence. (1) The complaints examiner shall notify the agent, or his representative, and the Board's representative that a period of not more than 60 calendar days will be allowed both parties to prepare their cases. This time period may be extended by the complaints examiner upon the request of either party. Both parties are entitled to reasonable development of evidence on matters relevant to the issues raised in the complaint. Evidence may be developed through interrogatories, depositions, and requests for production of documents. It shall be grounds for objection to producing evidence that the information sought by either party is irrelevant, overburdensome, repetitious, or privileged.

(2) In the event that mutual cooperation fails, either party may request the complaints examiner to rule on a request to develop evidence. When the complaints examiner renders his report of findings and recommendations on the merits of the complaint, a party's failure to comply with the complaints examiner's ruling on an evidentiary request may be taken into account.

(3) During the time period for development of evidence, the complaints examiner may, in his discretion, direct that an investigation of facts relevant to the complaint, or any portion thereof, be conducted by an investigator

(c) If resolution of the complaint is arrived at, the terms of the resolution shall be reduced to writing, and signed by the agent and the Board or its designee. A resolution may include a finding on the issue of discrimination and must include any corrective action agreed upon. Corrective action in the resolution must be consistent with law and Board regulations, rules and instructions. A copy of the resolution shall be provided the agent.

(d) Notice of the resolution shall be given to all class members in the same manner as notification of the acceptance of the class complaint and shall state the terms of corrective action, if any, to be granted by the Board. A resolution shall bind all members of the class.

(e) If the Board does not carry out, or rescinds, any action specified by the terms of the resolution for any reason not attributable to the acts or conduct of the agent, his representative, or class members, the Board upon the agent's written request shall reinstate the complaint for further processing from the point processing ceased under the terms of the resolution.

§ 268.210 Hearing.

On the expiration of the period allowed for preparation of the case, the

complaints examiner shall set a date for a hearing. The hearing shall be conducted in accordance with

§ 268.107 of Subpart A of this part.

§ 268.211 Report of findings and recommendations.

(a) The complaints examiner shall transmit to the Board or its designee: (1) The record of the hearing;

(2) The findings and analysis with regard to the complaint; and

(3) A report of findings and recommended decision on the complaint, including corrective action pertaining to systemic relief for the class and any individual corrective action, where appropriate, with regard to the personnel action or matter which gave rise to the complaint.

(b) The complaints examiner shall notify the agent of the date on which the report of findings and recommendations was forwarded to the Board or its designee.

§ 268.212 Agency decision.

(a) Within 30 calendar days of receipt of the report of findings and recommendations issued under § 268.211, the Board or its designee shall issue a decision to accept, reject, or modify the findings and recommendations of the complaints examiner.

(b) The decision of the Board or its designee shall be in writing and shall be transmitted to the agent or his representative, along with a copy of the record of the hearing and a copy of the findings and recommendations of the complaints examiner.

(c) When the decision of the Board or its designee is to reject or modify the findings and recommendations of the complaints examiner, the decision shall contain the specific reasons in detail for the action.

(d) If the Board or its designee has not issued a decision within 30 calendar days of its receipt of the complaints examiner's report of findings and recommendations, those findings and recommendations shall become the final Board decision. The final Board decision and the record of the hearing shall be transmitted to the agent or his representative within 5 calendar days of the expiration of the 30-day period.

(e) The Board or its designee shall inform the agent or his representative of the right to file a civil action in accordance with § 268.215.

(f) A final Board decision on a class complaint shall be binding on all members of the class and the board.

(g) When the Director of Equal Employment Opportunity or other person designated by the Board makes the decision on a class complaint, the agent shall be advised in writing of his right to have the Board review the class complaint and of the requirement that such a request for review be submitted to the Board within 15 calendar days of the agent's receipt of notification of such decision.

§ 268.213 Notification to class members of decision.

Class members shall be notified by the Board, through the same media employed to give notice of the existence of the class complaint, of the Board decision and corrective action, if any. The notice, where appropriate, shall include information concerning the rights of class members to seek individual relief, and of the procedures to be followed. Notice shall be given by the Board within 10 calendar days of the transmittal of its decision to the agent.

§ 268.214 Corrective action.

(a) When discrimination is found, the Board shall eliminate or modify the personnel policy or practice out of which the complaint arose, and provide individual corrective action to the agent in accordance with § 268.113 of Subpart A of this part. Corrective action in all cases must be consistent with law and Board regulations, rules and instructions.

(b) When discrimination is found and a class member believes that but for that discrimination he would have received employment or an employment benefit, the class member may file a written claim with the Board or the Board's Director of Equal Employment Opportunity within 30 calendar days of notification by the Board of its decision.

(c) The claim must include a specific, detailed showing that the claimant is a

class member who was affected by personnel action or matter resulting from the discriminatory policy or practice within not more than 135 calendar days preceding the filing of the class complaint.

(d) The Board, the Board's Director of Equal Employment Opportunity, or other person designated by the Board shall attempt to resolve the claim for relief within 60 calendar days after the date the claim was postmarked, or, in the absence of a postmark, within 60 calendar days after the date it was received by an official with whom claims may be filed. If the Board and claimant do not agree that the claimant is a member of the class or upon the relief to which the claimant is entitled, the Board shall refer the claim, with recommendations concerning it, to the complaints examiner.

(e) The complaints examiner shall notify the claimant of the right to a hearing on the claim and shall allow. the parties to the claim an opportunity to submit evidence and representations concerning the claim. If a hearing is requested, it shall be conducted in accordance with § 268.107 of Subpart A of this part. If no hearing is requested, the complaints examiner, in his discretion, may hold a hearing to obtain necessary evidence concerning the claim.

(f) The complaints examiner shall issue a report of findings and recommendations on the claim which shall be treated the same as a report of findings and recommendations under §§ 268.211 and 268.212.

(g) If the complaints examiner determines that the claimant is not a member of the class or that the claim was not timely filed, the examiner shall recommend rejection of the claim and give notice of his action to the Board, the claimant, and the claimant's representative. Such notice shall include advice as to the complainant's right to file a civil action in accordance with the provisions of this part.

§ 268.215 Right to file a civil action for judicial review.

An agent who has filed a complaint or a claimant who has filed a claim for relief based on race, color, religion,