Subpart B
Under 1981.109(a) the decision must include appropriate findings, conclusions, and an order addressing any remedies. The judge must explain the factual findings and legal conclusions supporting whether a violation occurred and then order appropriate relief if warranted. See the rule text in 1981.109(a).
Under 1981.109(a) the complainant has the initial burden to show that protected behavior or conduct was a contributing factor in the unfavorable personnel action. The judge may only find a violation if the complainant proves that the protected activity contributed to the adverse action. See 1981.109(a).
Under 1981.109(a) the named person can avoid relief by showing by clear and convincing evidence that the same unfavorable personnel action would have been taken even without any protected behavior. This is a higher proof standard than 'preponderance of the evidence' and requires the named person to convince the judge that their non-retaliatory reason is highly probable. See 1981.109(a).
Under 1981.109(b) the judge may order appropriate affirmative action to abate the violation, including reinstatement to the former position with back pay, restoration of terms and conditions of employment, and compensatory damages. The judge tailors remedies to correct the harm caused by the violation. See 1981.109(b).
Under 1981.109(b) at the complainant's request the judge shall assess against the named person costs and expenses reasonably incurred, including attorney and expert witness fees. To obtain these fees the complainant should request them in the proceeding and provide documentation showing the fees were reasonable. See 1981.109(b).
Under 1981.109(b) if the named person requests it and the judge finds the complaint was frivolous or brought in bad faith, the judge may award the named person a reasonable attorney's fee, but not more than $1,000. The named person must request the fee and the judge will determine reasonableness and award up to the statutory cap. See 1981.109(b).
Under 1981.109(c) the decision is served on all parties; any order requiring reinstatement (or lifting an order of reinstatement by the Assistant Secretary) becomes effective immediately when the named person receives the decision, and that reinstatement is not stayed by filing a timely petition for review. All other parts of the judge's order become effective 10 business days after the decision date unless a timely petition for review to the Administrative Review Board is filed. See 1981.109(c).
Under 1981.109(c) filing a timely petition for review with the Administrative Review Board does not stay an administrative law judge's decision that requires reinstatement; reinstatement becomes effective immediately upon the named person's receipt of the decision. See 1981.109(c).
Under 1981.109(a) the administrative law judge may not review the Assistant Secretary's decision to dismiss a complaint or the decision to proceed with an investigation, and a complaint may not be remanded for completion of an investigation simply because the Assistant Secretary dismissed it. If there otherwise is jurisdiction, however, the judge will hear the case on the merits. See 1981.109(a) and 1981.104(b).
Under 1981.109(b) "appropriate affirmative action to abate the violation" means the judge will order remedies reasonably designed to correct the effects of the violation—this commonly includes reinstatement, back pay, restoring job terms and privileges, and compensatory damages, but can include other corrective steps tailored to the damage suffered. The judge decides what is appropriate based on the facts. See 1981.109(b).
Under 1981.109(c) a named person who receives a decision requiring reinstatement should comply immediately because the reinstatement order is effective upon receipt and is not stayed by filing a petition for review. The named person may still file a timely petition with the Administrative Review Board to contest other aspects of the decision, but cannot delay carrying out reinstatement. See 1981.109(c).
Under 1981.109(b) a complainant should request fees from the administrative law judge and provide documentation showing the fees and expenses were reasonably incurred (for example, billing records, descriptions of services, and expert invoices). The judge will assess and order payment of reasonable costs and fees against the named person if the complainant requests them. See 1981.109(b).
Under Part 1981, these rules set procedures for handling discrimination complaints under Section 6 of the Pipeline Safety Improvement Act of 2002. Part 1981 establishes the litigation and procedural framework for those complaints. See the Part overview at 1981.