[merged small][ocr errors]

(c) Counsel the aggrieved person ment, he shall have a reasonable concerning the merits of the matter; amount of official time to present his

(d) Insofar as is practicable, conduct complaint if he is otherwise in an his final interview with the aggrieved active duty status. If the complainant person not later than 15 workdays is an employee of the Department and after the date on which the matter he designates another employee of the was called to his attention by the ag Department as his representative, the grieved person;

representative shall be free from re(e) If the matter has not been re- straint, interference, coercion, discrimsolved to the satisfaction of the ag. ination, or reprisal, and shall have a grieved person, advise the aggrieved reasonable amount of official time, if person in writing at the final interview he is otherwise in an active duty of his right to file a complaint of dis- status, to present the complaint. crimination with the appropriate EEO Officer and of the time limits govern- 87.31 Who may file complaintwith ing the acceptance of a complaint;

whom filed, and time limits. (f) Keep a record of his counseling

(a) Any aggrieved person (hereafter activities so as to be able to periodical

referred to as the complainant) who ly brief the appropriate EEO Officer

has observed the provisions of $ 7.25 on those activities; (g) When advised by the EEO Offi- discrimination was not resolved to his

may file a complaint if the matter of cer that a complaint of discrimination has been accepted from an aggrieved filed by an organization acting for the

satisfaction. A complaint may also be person, submit a written report to the

complainant with his consent. The DeEEO Officer, with a copy to the ag- partment may accept a complaint only grieved person, summarizing his ac

if the complainant: tions and advice both to the Depart

(1) Brought to the attention of the ment and the aggrieved person con

EEO Counselor the matter causing the cerning the merits of the matter (the

complainant to believe he has been report shall be included in the com

discriminated against within 15 calenplaint file); (h) Not reveal the identity of an ag.

dar days of the date of that matter; or,

if a personnel action, within 15 calengrieved person who has come to him

dar days of its effective date; and for consultation, except when author.

(2) Submitted his complaint in writized to do so by the aggrieved person, until the Department has accepted a

ing to the appropriate EEO Officer

within 15 calendar days of the date of complaint of discrimination from him;

his final interview with the EEO (i) Upon acceptance by the Depart

Counselor. ment of a complaint of discrimination from an aggrieved person, be relieved

(b) The EEO Officer shall extend

the time limits in this section: of further counseling responsibility

(1) When the complainant shows with respect to the matter; and (j) Be free from restraint, interfer

that he was not notified of the time ence, coercion, discrimination, or re

limits and was not otherwise aware of prisal in connection with the perform them, or that he was prevented by cir. ance of his duties.

cumstances beyond his control from

submitting the matter within the time COMPLAINTS

limits; or

(2) For other reasons considered suf8 7.30 Presentation of complaint.

ficient by the EEO Officer. At any stage in the presentation of a (c) A complaint concerned with a complaint, including the counseling continuing discriminatory practice stage, the complainant shall be free having a material bearing on employfrom restraint, interference, coercion, ment may be filed at any time. discrimination, or reprisal and shall (d) The Department will also accept have the right to be accompanied, rep- from an individual or an organization resented, and advised by a representa- complaints or allegations of a general tive of his own choosing. If the com- pattern or practice of discrimination plainant is an employee of the Depart- which may be unrelated to any specif

ic complaint involving a particular in- right to appeal to the Civil Service dividual. Such complaints shall be re- Commission and of the time limit apceived, investigated, and processed on plicable thereto, if he believes the rean individual basis as determined by jection or cancellation improper. the Director of EEO. There is no appeal to the Civil Service Commission 8 7.34 Processing. from actions taken on these com

(a) The EEO Officer will process plaints.

complaints involving the organization(e) The right to withdraw a com

al unit for which he is responsible. plaint at any stage is assured.

However, the Director or Deputy Di$7.32 Contents.

rector of EEO, as he deems necessary,

may assume jurisdiction of any case. (a) In order to expedite the process

This may include the designation as ing of complaints of discrimination,

processing officer of an official other the complainant should be urged to in.

than the EEO Officer for the organiclude in his complaint the following

zational unit concerned. In the latter information:

case, the Director or Deputy Director (1) Whether the alleged discrimina

of EEO shall so notify all interested tion is based upon race, color, religion,

parties. sex, or national origin. (2) The specific action or personnel

(b) Based on a request from the EEO

Officer, the Director or Deputy Direcmatter about which the complaint is made.

tor of EEO shall provide for the (3) Facts and other pertinent infor

prompt investigation of the complaint. mation to support the allegation of

The request for an investigation shall discrimination.

be made in writing to the Director, (4) The relief desired.

Office of Investigation. (b) In no event shall the lack of com- (1) The person assigned to investiplete information at the time of filing

gate the complaint shall occupy a posiconstitute grounds for refusal by the tion in the Department which is not, Department to accept a complaint. directly or indirectly, under the juris

(c) The written complaint need not diction of the head of that part of the conform to any particular style or

Department in which the complaint format.


(2) The investigation shall include a 97.33 Acceptability.

thorough review of the circumstances (a) The EEO Officer shall determine under which the alleged discriminawhether the complaint comes within tion occurred, the treatment of memthe purview of this subpart and shall bers of the complainant's group identiadvise the complainant and his repre

fied by his complaint as compared sentative in writing of the acceptance, with the treatment of other employees rejection, or cancellation of his com- in the organizational unit in which the plaint. A complaint may be rejected, alleged discrimination occurred, and with the concurrence of the Director any policies and practices related to or Deputy Director of EEO, because it the work situation which may constiwas not filed within the required time tute, or appear to constitute, discrimilimits or because it is not within the nation even though they have not purview of this subpart. It may be can- been expressly cited by the complainceled because of a failure of the com- ant. If necessary, the investigator may plainant to prosecute the complaint or obtain information regarding the because of a separation of the com- membership or nonmembership of a plainant from the Department for rea- person in the complainant's group by sons not related to his complaint. asking each person concerned to pro

(b) If the EEO Officer determines, vide the information voluntarily; he and the Director or Deputy Director shall not require or coerce an employ. of EEO concurs, that the complaint is ee to provide this information. Inforto be rejected or canceled, the written mation needed for an appraisal of the decision of the EEO Officer to the utilization of members of the comcomplainant shall inform him of his plainant's group as compared to the utilization of persons outside the com- made part of the complaint file. The plainant's group shall be recorded in EEO Officer shall furnish a copy of statistical form in the investigative the terms to the complainant and forfile, but specific information as to a ward the complaint file to the Direcperson's membership or nonmember- tor or Deputy Director of EEO. ship in the complainant's group (b) Adjustment not arrived at. If an needed to facilitate an adjustment of adjustment of the complaint is not arthe complaint or to make an informed rived at, the EEO Officer shall notify decision on the complaint shall, if the complainant in writing of the proavailable, be recorded by name in the posed disposition of his case. The investigative file.

notice shall advise the complainant of (3) Insofar as is practicable, the in

his right to a hearing with subsequent vestigative process shall be completed decision by the Director or Deputy Di. within 30 calendar days.

rector of EEO. The notice also shall (4) The investigative file shall con- indicate the complainant's right to a tain the various documents and infor

decision without a hearing if he so mation acquired during the investiga

elects. The notice shall advise the tion including affidavits: (i) Of the

complainant that he has 7 calendar complainant; (ii) of the official

days from receipt of the notice to charged with discrimination; and (iii)

inform the EEO Officer whether or of other persons interviewed and copies of, or extracts from, records, ficer shall make a copy of the notice a

not a hearing is desired. The EEO Ofpolicy statements, or regulations of

part of the complaint file. the Department organized to show

(1) No hearing to take place. Upon their relevance to the complaint or the

timely notification to the EEO Officer general environment out of which the

by the complainant that he does not complaint arose.

desire a hearing, or upon his failure to (5) The investigator shall be furnished a written authorization to: (i)

notify the EEO Officer of his wishes

within the 7-day period, the EEO OffiInvestigate all aspects of complaints of discrimination, (ii) require all employ.

cer shall forward the complaint file to ees of the Department to cooperate

the Director or Deputy Director of

EEO for decision. with him in the conduct of the investigation, and (iii) require employees of

(2) Hearing to take place. Upon the Department having any knowl.

timely notification to the EEO Officer edge of the matter complained of to

by the complainant that he desires a furnish testimony under oath or affir

hearing, the EEO Officer shall take mation without a pledge of confidence.

the steps described in $7.36. (6) The investigator shall submit to

87.36 Hearing. the EEO Officer and to the Director of EEO the results of the investigation (a) Appeals examiner. The hearing as well as the investigative file, which shall be held by an appeals examiner shall be included in the complaint file. who must be an employee of a Federal

(7) The EEO Officer shall furnish agency other than the Department. the complainant or his representative The EEO Officer shall request the apa copy of the investigative file.

propriate local office of the Civil Serv

ice Commission to supply the name of 87.35 Adjustment of complaint.

an appeals examiner who has been The EEO Officer shall provide an certified by the Commission as qualiopportunity for adjustment of the fied to conduct a hearing under this complaint on an informal basis after section. the complainant has reviewed the in- (b) Arrangements for hearing. The vestigative file.

EEO Officer shall transmit the com(a) Adjustment arrived at. If an ad- plaint file to the appeals examiner justment of the complaint is arrived who shall review it to determine at, the terms of the adjustment shall whether further investigation is be reduced to writing by the EEO Of. needed before scheduling the hearing. ficer, signed by him, the complainant, The complaint file shall include all and other appropriate persons, and the documents described in $7.40 which have been acquired in the proc. misbehavior that obstructs the hearessing of the complaint. When the ap- ing. peals examiner determines that fur. (f) Witnesses at hearing. The appeals ther investigation is needed, he shall examiner shall request the EEO Offiremand the complaint to the EEO Of. cer to make available as a witness at ficer for further investigation or ar- the hearing an employee requested by range for the appearance of witnesses the complainant when the appeals exnecessary to supply the needed infor- aminer determines that the testimony mation at the hearing. The require- of the employee is necessary. The apments of $ 7.34 apply to any further peals examiner shall also request the investigation by the Department on appearance of any other employee the complaint. The appeals examiner whose testimony he desires to suppleshall schedule the hearing for a con- ment the information in the investigavenient time and place.

tive file. The appeals examiner shall (c) Prehearing conference. In arrang- give the complainant his reasons for ing for the hearing, the appeals exam- the denial of a request for the appeariner at his discretion may arrange a ance of employees as witnesses and prehearing conference during which shall insert those reasons in the record he shall seek to clarify the issues, of the hearing. Employees shall be accept stipulations on facts to which made available as witnesses at a hearthe interested parties may agree, es- ing on a complaint when so requested tablish a schedule for the hearing, and by the appeals examiner and it is adexplain his role in the hearing.

ministratively practicable to comply (d) Conduct of hearing. (1) Attend- with the request. When it is not ad. ance at the hearing shall be limited to ministratively practicable to comply persons determined by the appeals ex- with the request for a witness, the aminer to have a direct connection EEO Officer shall provide an explanawith the complaint; (2) the appeals ex- tion to the appeals examiner. If the aminer shall conduct the hearing so as explanation is inadequate, the appeals to bring out pertinent facts, including examiner shall so advise the EEO Of. the production of pertinent docu- ficer and request that the employee be ments. Rules of evidence shall not be made available as a witness at the applied strictly, but the appeals exam- hearing. If the explanation is adeiner shall exclude irrelevant or undulyquate, the appeals examiner shall repetitious evidence. Information insert it in the record of the hearing, having a bearing on the complaint or provide a copy to the complainant, employment policy or practices rele- and make arrangements to secure tesvant to the complaint shall be received timony from the employee through a in evidence. The complainant, his rep- written interrogatory. Employees shall resentative and the representatives of be in a duty status during the time the Department at the hearing shall they are made available as witnesses. be given the opportunity to cross-ex- Witnesses shall be free from restraint, amine witnesses who appear and testi- interference, coercion, discrimination, fy. Testimony shall be under oath or or reprisal in presenting their testimoaffirmation.

ny at the hearing or during the inves(e) Powers of appeals examiner. In tigation. addition to the other powers vested in (g) Record of hearing. The hearing the appeals examiner by the Depart shall be recorded and transcribed verment in accordance with this subpart, batim. All documents submitted to, the appeals examiner is authorized to: and accepted by, the appeals examiner

(1) Administer oaths or affirmations; at the hearing shall be made a part of

(2) Regulate the course of the hear the record of the hearing. If the Deing:

partment submits a document that is (3) Rule on offers of proof;

accepted, it shall furnish a copy of the (4) Limit the number of witnesses document to the complainant. If the whose testimony would be unduly rep- complainant submits a document that etitious; and

is accepted, he shall make the docu(5) Exclude any person from the ment available to the Department rephearing for contumacious conduct or resentative for reproduction.

(h) Findings, analysis, and recom- under subpart C of 5 CFR part 771 mendations. The appeals examiner and HUD Handbook 771.2, Employee shall transmit to the Director or Grievances, shall be processed under Deputy Director of EEO the com- this subpart. plaint file (including the record of the hearing), together with his findings 87.38 Avoidance of delay. and analysis with regard to the matter

(a) The complaint shall be resolved which gave rise to the complaint and

promptly. To this end, both the com. the general environment out of which

plainant and the Department shall 1 the complaint arose and his recom

proceed with the complaint without mended decision on the merits of the

undue delay so that the complaint is complaint, including recommended re

resolved, except in unusual circummedial action where appropriate. The

stances, within 60 calendar days after appeals examiner shall notify the com

its receipt by the appropriate EEO Of. plainant of the date on which this was

ficer, exclusive of time spent in the done. In addition, the appeals examin

processing of the complaint by the ap. er shall transmit, by separate letter to

peals examiner. When the complaint the Director or Deputy Director of

has not been resolved within this time EEO, whatever findings and recom

limit, the complainant may appeal to mendations he considers appropriate

the Civil Service Commission for a with respect to conditions in the De

review of the reasons for the delay. 5. partment even though they have no

Upon review of this appeal, the Combearing on the matter which gave rise

mission may require the Department to the complaint or the general envi.

to take special measures to insure the ronment out of which the complaint

prompt processing of the complaint, or arose.

the Commission may accept the 8 7.37 Relationship to other HUD appel. appeal for consideration pursuant to late procedures.

$$ 7.45 through 7.49.

(b) The Director of EEO may cancel (a) Except as provided in paragraphs

a complaint if the complainant fails to (b) and (c) of this section, when a com

prosecute plainant makes a written allegation of

the complaint without discrimination because of race, color,

undue delay. However, instead of can.

celing for failure to prosecute, he may religion, sex, or national origin in connection with an action that would oth

adjudicate the complaint if sufficient erwise be processed under the griev

information for that purpose is avail

able. ance or appeals procedure of the Department, the Department may proc

87.39 Decision by Director of EEO. ess the allegation of discrimination under its grievance or appeals proce

(a) Following consultation with the dure when that procedure meets the General Counsel and the Assistant principles and requirements in 88 7.25 Secretary for Administration, the Di. to through 7.38. However, with regard to rector of EEO shall make the decision the issue of discrimination (as distin. of the Department on a complaint guished from other aspects of the based on information in the complaint action), the Director or Deputy Direc- file. tor of EEO shall make the decision of (b) The decision shall be in writing the Department as provided in $ 7.39. and shall be transmitted by letter to That decision shall be incorporated in the complainant and his representaand become a part of the decision on tive, with copies to the head of the orthe grievance or the appeal.

ganizational unit in which the com(b) An allegation of discrimination plaint arose; the Assistant Secretary made in connection with an appeal for Administration; and the General : under subpart B of 5 CFR part 771 Counsel. When there has been a hear. : and appropriate Department proce- ing on the complaint, the complainante dures shall be processed under that and his representative shall be fursubpart and said procedures.

nished a copy of the findings, analysis, (c) An allegation of discrimination and recommended decision of the apmade in connection with a grievance peals examiner described in


« ForrigeFortsett »