(a) When the Board, or the Commission, in an individual
case of discrimination, finds that an applicant or an employee has
been discriminated against, the Board shall provide full relief which
shall include the following elements in appropriate circumstances:
(1) notification to all employees
of the Board in the affected facility of their right to be free of
unlawful discrimination and assurance that the particular types of
discrimination found will not recur;
(2) commitment that corrective, curative, or preventive action will
be taken, or measures adopted, to ensure that violations of the law
similar to those found unlawful will not recur;
(3) an unconditional offer to each identified
victim of discrimination of placement in the position the person would
have occupied but for the discrimination suffered by that person,
or a substantially equivalent position;
(4) payment to each identified victim of
discrimination on a make-whole basis for any loss of earnings the
person may have suffered as a result of the discrimination; and
(5) commitment that the Board shall
cease from engaging in the specific unlawful employment practice found
in the case.
8-501
(b) Relief for an applicant.
(1) (i) When the Board, or the Commission, finds that an applicant
for employment has been discriminated against, the Board shall offer
the applicant the position that the applicant would have occupied
absent discrimination or, if justified by the circumstances, a substantially
equivalent position unless clear and convincing evidence indicates
that the applicant would not have been selected even absent the discrimination.
The offer shall be made in writing. The individual shall have 15 days
from receipt of the offer within which to accept or decline the offer.
Failure to accept the offer within the 15-day period will be considered
a declination of the offer, unless the individual can show that circumstances
beyond his or her control prevented a response within the time limit.
(ii) If the offer is accepted,
appointment shall be retroactive to the date the applicant would have
been hired. Back pay, computed in the manner prescribed in 5 CFR 550.805,
shall be awarded from the date the individual would have entered on
duty until the date the individual actually enters on duty unless
clear and convincing evidence indicates that the applicant would not
have been selected even absent discrimination. Interest on back pay
shall be included in the back-pay computation where sovereign immunity
has been waived. The individual shall be deemed to have performed
service for the Board during this period for all purposes except for
meeting service requirements for completion of a required probationary
or trial period.
(iii) If the
offer of employment is declined, the Board shall award the individual
a sum equal to the back pay he or she would have received, computed
in the manner prescribed in 5 CFR 550.805, from the date he or she
would have been appointed until the date the offer was declined, subject
to the limitation of paragraph (b)(3) of this section. Interest on
back pay shall be included in the back pay computation. The Board
shall inform the applicant, in its offer of employment, of the right
to this award in the event the offer is declined.
(2) When the Board, or the Commission,
finds that discrimination existed at the time the applicant was considered
for employment but also finds by clear and convincing evidence that
the applicant would not have been hired even absent discrimination,
the Board shall nevertheless take all steps necessary to eliminate
the discriminatory practice and ensure it does not recur.
(3) Back pay under this paragraph (b) for
complaints under title VII or the Rehabilitation Act may not extend
from a date earlier than two years prior to the date on which the
complaint was initially filed by the applicant.
8-502
(c) Relief for an employee. When the Board,
or the Commission, finds that an employee of the Board was discriminated
against, the Board shall provide relief, which shall include, but
need not be limited to, one or more of the following actions:
(1) Nondiscriminatory placement, with
back pay computed in the manner prescribed in 5 CFR 550.805, unless
clear and convincing evidence contained in the record demonstrates
that the personnel action would have been taken even absent the discrimination.
Interest on back pay shall be included in the back-pay computation
where sovereign immunity has been waived. The back-pay liability under
title VII or the Rehabilitation Act is limited to two years prior
to the date the discrimination complaint was filed.
(2) If clear and convincing evidence indicates
that, although discrimination existed at the time the personnel action
was taken, the personnel action would have been taken even absent
discrimination, the Board shall nevertheless eliminate any discriminatory
practice and ensure it does not recur.
(3) Cancellation of an unwarranted personnel action and restoration
of the employee.
(4) Expunction
from the Board’s records of any adverse materials relating to the
discriminatory employment practice.
(5) Full opportunity to participate in the employee benefit denied
(e.g., training, preferential work assignments, overtime scheduling).
(d) The Board has the burden of proving by a preponderance
of the evidence that the complainant has failed to mitigate his or
her damages.
8-503
(e) Attorney’s fees or costs.
(1) Awards of attorney’s fees or costs. The provisions of this paragraph
relating to the award of attorney’s fees or costs shall apply to allegations
of discrimination prohibited by title VII and the Rehabilitation Act.
In a decision or final action, the Board, administrative judge, or
Commission may award the applicant or employee or reasonable attorney’s
fees (including expert witness fees) and other costs incurred in the
processing of the complaint.
(i) A finding of discrimination raises
a presumption of entitlement to an award of attorney’s fees.
(ii) Any award of attorney’s fees or
costs shall be paid by the Board.
(iii) Attorney’s fees are allowable only for the services of members
of the bar and law clerks, paralegals, or law students under the supervision
of members of the bar, except that no award is allowable for the services
of any employee of the federal government.
(iv) Attorney’s fees shall be paid for
services performed by an attorney after the filing of a written complaint,
provided that the attorney provides reasonable notice of representation
to the Board, administrative judge, or Commission, except that fees
are allowable for a reasonable period of time prior to the notification
of representation for any services performed in reaching a determination
to represent the complainant. The Board is not required to pay attorney’s
fees for services performed during the precomplaint process, except
that fees are allowable when the Commission affirms on appeal an administrative
judge’s decision finding discrimination after the Board takes final
action by not implementing an administrative judge’s decision. Written
submissions to the Board that are signed by the representative shall
be deemed to constitute notice of representation.
8-504
(2) Amount of
awards.
(i)
When the Board, administrative judge, or the Commission determines
an entitlement to attorney’s fees or costs, the complainant’s attorney
shall submit a verified statement of attorney’s fees (including expert-witness
fees) and other costs, as appropriate, to the Board or administrative
judge within 30 days of receipt of the decision and shall submit a
copy of the statement to the Board. A statement of attorney’s fees
and costs shall be accompanied by an affidavit executed by the attorney
of record itemizing the attorney’s charges for legal services. The
Board may respond to a statement of attorney’s fees and costs within
30 days of its receipt. The verified statement, accompanying affidavit
and any Board response shall be made a part of the complaint file.
(ii) (A) The Board or
administrative judge shall issue a decision determining the amount
of attorney’s fees or costs due within 60 days of receipt of the statement
and affidavit. The decision shall include a notice of right to appeal
to the EEOC along with EEOC Form 573, Notice of Appeal/Petition, and
shall include the specific reasons for determining the amount of the
award.
(B) The amount of attorney’s
fees shall be calculated using the following standards: The starting
point shall be the number of hours reasonably expended multiplied
by a reasonable hourly rate. There is a strong presumption that this
amount represents the reasonable fee. In limited circumstances, this
amount may be reduced or increased in consideration of the degree
of success, quality of representation, and long delay caused by the
Board.
(C) The costs that may be awarded
are those authorized by 28 U.S.C. 1920 to include: fees of the reporter
for all or any of the stenographic transcript necessarily obtained
for use in the case; fees and disbursements for printing and witnesses;
and fees for exemplification and copies necessarily obtained for use
in the case.
(iii)
Witness fees shall be awarded in accordance with the provisions of
28 U.S.C. 1821, except that no award shall be made for a federal employee
who is in a duty status when made available as a witness.
