(a) Prior to a request for a hearing in a case, the Board
shall dismiss an entire complaint—
(1) that fails to state a claim under section
268.103 or section 268.105(a), or states the same claim that is pending
before or has been decided by the Board or the Commission;
(2) that fails to comply with the applicable
time limits contained in sections 268.104, 268.105, and 268.204(c),
unless the Board extends the time limits in accordance with section
268.604(c), or that raises a matter that has not been brought to the
attention of a counselor and is not like or related to a matter that
has been brought to the attention of a counselor;
(3) that is the basis of a pending civil
action in a United States District Court in which the complainant
is a party provided that at least 180 days have passed since the filing
of the administrative complaint, or that was the basis of a civil
action decided by a United States District Court in which the complainant
was a party;
(4) [Reserved]
(5) that is moot or alleges that a proposal
to take a personnel action, or other preliminary step to taking a
personnel action, is discriminatory, unless the complaint alleges
that the proposal or preliminary step is retaliatory;
(6) where the complainant cannot be located,
provided that reasonable efforts have been made to locate the complainant
and the complainant has not responded within 15 days to a notice of
proposed dismissal sent to his or her last known address;
(7) where the Board has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant has failed to respond
to the request within 15 days of its receipt or the complainant’s
response does not address the Board’s request, provided that the request
included a notice of the proposed dismissal. Instead of dismissing
for failure to cooperate, the complaint may be adjudicated if sufficient
information for that purpose is available;
(8) that alleges dissatisfaction with the
processing of a previously filed complaint; or
(9) where the Board, strictly applying
the criteria set forth in Commission decisions, finds that the complaint
is part of a clear pattern of misuse of the EEO process for a purpose
other than the prevention and elimination of employment discrimination.
A clear pattern of misuse of the EEO process requires—
(i) evidence of multiple complaint
filings; and
(ii) allegations
that are similar or identical, lack specificity, or involve matters
previously resolved; or
(iii)
evidence of circumventing other administrative processes, retaliating
against the Board’s in-house administrative processes or overburdening
the EEO complaint system.
8-454
(b) Where the
Board believes that some but not all of the claims in a complaint
should be dismissed for the reasons contained in paragraphs (a)(1)
through (9) of this section, the Board shall notify the complainant
in writing of its determination, the rationale for that determination
and that those claims will not be investigated, and shall place a
copy of the notice in the investigative file. A determination under
this paragraph is reviewable by an administrative judge if a hearing
is requested on the remainder of the complaint, but is not appealable
until final action is taken on the remainder of the complaint.
