[Code of Federal Regulations]
[Title 12, Volume 3]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 12CFR268.204]

[Page 813-816]
 
                       TITLE 12--BANKS AND BANKING
 
                   CHAPTER II--FEDERAL RESERVE SYSTEM
 
PART 268--RULES REGARDING EQUAL OPPORTUNITY--Table of Contents
 
        Subpart C--Provisions Applicable to Particular Complaints
 
Sec. 268.204  Class complaints.

    (a) Definitions. For the purposes of this section:
    (1) Class is a group of Board employees, former employees or 
applicants for employment who, it is alleged, have been or are being 
adversely affected by a Board personnel management policy or practice 
that discriminates against the group on the basis of their race, color, 
religion, sex, national origin, age or disability.
    (2) Class complaint is a written complaint of discrimination filed 
on behalf of a class by the agent of the class alleging that:
    (i) The class is so numerous that a consolidated complaint of the 
members of the class is impractical;
    (ii) There are questions of fact common to the class;
    (iii) The claims of the agent of the class are typical of the claims 
of the class;
    (iv) The agent of the class, or, if represented, the representative, 
will fairly and adequately protect the interests of the class.
    (3) An agent of the class is a class member who acts for the class 
during the processing of the class complaint.
    (b) Pre-complaint processing. An employee or applicant who wishes to 
file a class complaint must seek counseling and be counseled in 
accordance with Sec. 268.104. A complainant may move for class 
certification at any reasonable point in the process when it becomes 
apparent that there are class implications to the claim raised in an 
individual complaint. If a complainant moves for class certification 
after completing the counseling process contained in Sec. 268.104, no 
additional counseling is required. The administrative judge shall deny 
class certification when the complainant has unduly delayed in moving 
for certification.
    (c) Filing and presentation of a class complaint. (1) A class 
complaint must be signed by the agent or representative and must 
identify the policy or practice adversely affecting the class as well as 
the specific action or matter affecting the class agent.
    (2) The complaint must be filed with the Board not later than 15 
days after the agent's receipt of the notice of right to file a class 
complaint.
    (3) The complaint shall be processed promptly; the parties shall 
cooperate and shall proceed at all times without undue delay.
    (d) Acceptance or dismissal. (1) Within 30 days of the Board's 
receipt of a complaint, the Board shall: Designate an agency 
representative who shall not be one of the individuals referenced in 
Sec. 268.102(b)(4), and 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 
Commission. The Commission shall assign the complaint to an 
administrative judge or complaints examiner with a proper security 
clearance when necessary. The administrative judge may require the 
complainant or the Board to submit additional information relevant to 
the complaint.
    (2) The administrative judge may dismiss the complaint, or any 
portion, for any of the reasons listed in Sec. 268.106 or because it 
does not meet the prerequisites of a class complaint under 
Sec. 268.204(a)(2).
    (3) If an allegation is not included in the Counselor's report, the 
administrative judge shall afford the agent 15 days to state whether the 
matter was discussed with the Counselor and, if not, explain why it was 
not discussed. If the explanation is not satisfactory, the 
administrative judge shall dismiss the allegation. If the explanation is 
satisfactory, the administrative judge shall refer the allegation to the 
Board for further counseling of the agent. After counseling, the 
allegation shall be consolidated with the class complaint.
    (4) If an allegation lacks specificity and detail, the 
administrative judge

[[Page 814]]

shall afford the agent 15 days to provide specific and detailed 
information. The administrative judge shall dismiss the complaint if the 
agent fails to provide such information within the specified time 
period. If the information provided contains new allegations outside the 
scope of the complaint, the administrative judge shall advise the agent 
how to proceed on an individual or class basis concerning these 
allegations.
    (5) The administrative judge shall extend the time limits for filing 
a complaint and for consulting with a Counselor in accordance with the 
time limit extension provisions contained in Secs. 268.104(a)(2) and 
268.604.
    (6) When appropriate, the administrative judge may decide 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.
    (7) The administrative judge shall transmit his or her decision to 
accept or dismiss a complaint to the Board and the agent. The Board 
shall take final action by issuing a final order within 40 days of 
receipt of the hearing record and administrative judge's decision. The 
final order shall notify the agent whether or not the Board will 
implement the decision of the administrative judge. If the final order 
does not implement the decision of the administrative judge, the Board 
shall simultaneously appeal the administrative judge's decision in 
accordance with Sec. 268.403 and append a copy of the appeal to the 
final order. A dismissal of a class complaint shall inform the agent 
either that the complaint is being filed on that date as an individual 
complaint of discrimination and will be processed under subpart B of 
this part or that the complaint is also dismissed as an individual 
complaint in accordance with Sec. 268.106. In addition, it shall inform 
the agent of the right to appeal the dismissal of the class complaint to 
the Equal Employment Opportunity Commission or to file a civil action 
and shall include EEOC Form 573, Notice of Appeal/Petition.
    (e) Notification. (1) Within 15 days of receiving notice that the 
administrative judge has accepted a class complaint or a reasonable time 
frame specified by the administrative judge, the Board shall use 
reasonable means, such as delivery, mailing to last known address or 
distribution, to notify all class members of the acceptance of the class 
complaint.
    (2) Such notice shall contain:
    (i) An identification of the Board as the named agency, its 
location, and the date of acceptance of the complaint;
    (ii) A description of the issues accepted as part of the class 
complaint;
    (iii) An explanation of the binding nature of the final decision or 
resolution of the class complaint on class members; and
    (iv) The name, address and telephone number of the class 
representative.
    (f) Obtaining evidence concerning the complaint. (1) The 
administrative judge shall notify the agent and the Board's 
representative of the time period that will be allowed both parties to 
prepare their cases. This time period will include at least 60 days and 
may be extended by the administrative judge 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 
admissions, stipulations or 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) If mutual cooperation fails, either party may request the 
administrative judge to rule on a request to develop evidence. If a 
party fails without good cause shown to respond fully and in timely 
fashion to a request made or approved by the administrative judge for 
documents, records, comparative data, statistics or affidavits, and the 
information is solely in the control of one party, such failure may, in 
appropriate circumstances, cause the administrative judge:
    (i) To draw an adverse inference that the requested information 
would have reflected unfavorably on the party refusing to provide the 
requested information;
    (ii) To consider the matters to which the requested information 
pertains to

[[Page 815]]

be established in favor of the opposing party;
    (iii) To exclude other evidence offered by the party failing to 
produce the requested information;
    (iv) To recommend that a decision be entered in favor of the 
opposing party; or (v) To take such other actions as the administrative 
judge deems appropriate.
    (3) During the period for development of evidence, the 
administrative judge may, in his or her discretion, direct that an 
investigation of facts relevant to the class complaint or any portion be 
conducted by an agency certified by the Commission.
    (4) Both parties shall furnish to the administrative judge copies of 
all materials that they wish to be examined and such other material as 
may be requested.
    (g) Opportunity for resolution of the complaint. (1) The 
administrative judge shall furnish the agent and the Board's 
representative a copy of all materials obtained concerning the complaint 
and provide opportunity for the agent to discuss the materials with the 
Board's representative and attempt resolution of the complaint.
    (2) The complaint may be resolved by agreement of the Board and the 
agent at any time pursuant to the notice and approval procedure 
contained in paragraph (g)(4) of this section.
    (3) If the complaint is resolved, the terms of the resolution shall 
be reduced to writing and signed by the agent and the Board.
    (4) 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 to the administrative judge. It shall state the relief, if any, to 
be granted by the Board and the name and address of the EEOC 
administrative judge assigned to the case. It shall state that within 30 
days of the date of the notice of resolution, any member of the class 
may petition the administrative judge to vacate the resolution because 
it benefits only the class agent, or is otherwise not fair, adequate and 
reasonable to the class as a whole. The administrative judge shall 
review the notice of resolution and consider any petitions to vacate 
filed. If the administrative judge finds that the proposed resolution is 
not fair, adequate and reasonable to the class as a whole, the 
administrative judge shall issue a decision vacating the agreement and 
may replace the original class agent with a petitioner or some other 
class member who is eligible to be the class agent during further 
processing of the class complaint. The decision shall inform the former 
class agent or the petitioner of the right to appeal the decision to the 
Equal Employment Opportunity Commission and include EEOC Form 573, 
Notice of Appeal/Petition. If the administrative judge finds that the 
resolution is fair, adequate and reasonable to the class as a whole, the 
resolution shall bind all members of the class.
    (h) Hearing. On expiration of the period allowed for preparation of 
the case, the administrative judge shall set a date for hearing. The 
hearing shall be conducted in accordance with Sec. 268.108(a) through 
(f).
    (i) Report of findings and recommendations. (1) The administrative 
judge shall transmit to the Board a report of findings and 
recommendations on the complaint, including a recommended decision, 
systemic relief for the class and any individual relief, where 
appropriate, with regard to the personnel action or matter that gave 
rise to the complaint.
    (2) If the administrative judge finds no class relief appropriate, 
he or she shall determine if a finding of individual discrimination is 
warranted and, if so, shall recommend appropriate relief.
    (3) The administrative judge shall notify the agent of the date on 
which the report of findings and recommendations was forwarded to the 
Board.
    (j) Board decision. (1) Within 60 days of receipt of the report of 
findings and recommendations issued under Sec. 268.204(i), the Board 
shall issue a final decision, which shall accept, reject, or modify the 
findings and recommendations of the administrative judge.
    (2) The final decision of the Board shall be in writing and shall be 
transmitted to the agent by certified mail, return receipt requested, 
along with a copy of the report of findings and recommendations of the 
administrative judge.

[[Page 816]]

    (3) When the Board's final decision is to reject or modify the 
findings and recommendations of the administrative judge, the decision 
shall contain specific reasons for the Board's action.
    (4) If the Board has not issued a final decision within 60 days of 
its receipt of the administrative judge's report of findings and 
recommendations, those findings and recommendations shall become the 
final decision. The Board shall transmit the final decision to the agent 
within five days of the expiration of the 60-day period.
    (5) The final decision of the Board shall require any relief 
authorized by law and determined to be necessary or desirable to resolve 
the issue of discrimination.
    (6) The final decision on a class complaint shall, subject to 
subpart E of this part, be binding on all members of the class and the 
Board.
    (7) The final decision shall inform the agent of the right to appeal 
or to file a civil action in accordance with subpart E of this part and 
of the applicable time limits.
    (k) Notification of decision. The Board shall notify class members 
of the final decision and relief awarded, if any, through the same media 
employed to give notice of the existence of the class complaint. 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 days of the 
transmittal of its final decision to the agent.
    (l) Relief for individual class members. (1) When discrimination is 
found, the Board must eliminate or modify the employment policy or 
practice out of which the complaint arose and provide individual relief, 
including an award of attorney's fees and costs, to the agent in 
accordance with Sec. 268.501.
    (2) When class-wide discrimination is not found, but it is found 
that the class agent is a victim of discrimination, Sec. 268.501 shall 
apply. The Board shall also, within 60 days of the issuance of the final 
decision finding no class-wide discrimination, issue the acknowledgment 
of receipt of an individual complaint as required by Sec. 268.105(d) and 
process in accordance with the provisions of subpart B of this part, 
each individual complaint that was subsumed into the class complaint.
    (3) When discrimination is found in the final decision and a class 
member believes that he or she is entitled to individual relief, the 
class member may file a written claim with the Board or the Board's EEO 
Programs Director within 30 days of receipt of notification by the Board 
of its final decision. Administrative judges shall retain jurisdiction 
over the complaint in order to resolve any disputed claims by class 
members. The claim must include a specific, detailed showing that the 
claimant is a class member who was affected by the discriminatory policy 
or practice, and that this discriminatory action took place within the 
period of time for which the Board found class-wide discrimination in 
its final decision. Where a finding of discrimination against a class 
has been made, there shall be a presumption of discrimination as to each 
member of the class. The Board must show by clear and convincing 
evidence that any class member is not entitled to relief. The 
administrative judge may hold a hearing or otherwise supplement the 
record on a claim filed by a class member. The Board or the Commission 
may find class-wide discrimination and order remedial action for any 
policy or practice in existence within 45 days of the agent's initial 
contact with the Counselor. Relief otherwise consistent with this Part 
may be ordered for the time the policy or practice was in effect. The 
Board shall issue a final decision on each such claim within 90 days of 
filing. Such decision must include a notice of the right to file an 
appeal or a civil action in accordance with subpart E of this part and 
the applicable time limits.