Personnel Appeals Board; Procedural Rules

<RULE> GOVERNMENT ACCOUNTABILITY OFFICE <CFR>4 CFR Part 28</CFR> <SUBJECT>Personnel Appeals Board; Procedural Rules</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Government Accountability Office Personnel Appeals Board. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective as of July 18, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Stuart Melnick, Executive Director, 202-512-3836 or Kevin Wilson, Solicitor, 202-512-7517, <E T="03">pab@gao.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> 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. <HD SOURCE="HD1">4 CFR 28.95</HD> 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. <HD SOURCE="HD2">28.95(c)</HD> The National Employment Lawyers Association commented that “[t]he edit in proposed 4 CFR § 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 § 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. <HD SOURCE="HD2">28.95(d)</HD> The National Employment Lawyers Association commented, “GAO should consider modifying proposed 4 CFR § 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 § 28.95(d) in its proposed rule, and the Board's stakeholders have not had an opportunity to comment on it. <HD SOURCE="HD2">28.95(h)</HD> 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 § 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. <E T="03">See Burlington Northern Santa Fe Ry.</E> v. <E T="03">White,</E> 548 U.S. 53 (2006). The National Employment Lawyers Association commented that “GAO should also consider modifying proposed 4 CFR § 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 <E T="03">per se</E> reprisal line of cases, under <E T="03">Binseel</E> and its progeny, which recognize a freestanding <E T="03">per se</E> violation 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 <E T="03">Burlington Northern Santa Fe Ry.</E> v. <E T="03">White,</E> 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 § 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 § 28.95(h)' in § 28.98(e)(1) also is not clear.” The Board intends “a claim of retaliation that could be raised under § 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 § 28.95(h) are necessarily retaliation claims. The inclusion of it here is designed to help individuals better recognize that § 28.95(h) claims are retaliation claims because the term “retaliation” is not used in § 28.95(h). <HD SOURCE="HD1">4 CFR 28.98</HD> 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 40k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━