(c) Counsel the aggrieved person concerning the merits of the matter;

(d) Insofar as is practicable, conduct his final interview with the aggrieved person not later than 15 workdays after the date on which the matter was called to his attention by the aggrieved person;

(e) If the matter has not been resolved to the satisfaction of the aggrieved person, advise the aggrieved person in writing at the final interview of his right to file a complaint of discrimination with the appropriate EEO Officer and of the time limits governing the acceptance of a complaint;

(f) Keep a record of his counseling activities so as to be able to periodically brief the appropriate EEO Officer on those activities;

(g) When advised by the EEO Officer that a complaint of discrimination has been accepted from an aggrieved person, submit a written report to the EEO Officer, with a copy to the aggrieved person, summarizing his actions and advice both to the Department and the aggrieved person concerning the merits of the matter (the report shall be included in the complaint file);

(h) Not reveal the identity of an aggrieved person who has come to him for consultation, except when authorized to do so by the aggrieved person, until the Department has accepted a complaint of discrimination from him;

(i) Upon acceptance by the Department of a complaint of discrimination from an aggrieved person, be relieved of further counseling responsibility with respect to the matter; and

(j) Be free from restraint, interference, coercion, discrimination, or reprisal in connection with the performance of his duties.

COMPLAINTS

§ 7.30 Presentation of complaint.

At any stage in the presentation of a complaint, including the counseling stage, the complainant shall be free from restraint, interference, coercion, discrimination, or reprisal and shall have the right to be accompanied, represented, and advised by a representative of his own choosing. If the complainant is an employee of the Depart

ment, he shall have a reasonable amount of official time to present his complaint if he is otherwise in an active duty status. If the complainant is an employee of the Department and he designates another employee of the Department as his representative, the representative shall be free from restraint, interference, coercion, discrimination, or reprisal, and shall have a reasonable amount of official time, if he is otherwise in an active duty status, to present the complaint.

§ 7.31 Who may file complaint, with whom filed, and time limits.

(a) Any aggrieved person (hereafter referred to as the complainant) who has observed the provisions of § 7.25 may file a complaint if the matter of discrimination was not resolved to his satisfaction. A complaint may also be filed by an organization acting for the complainant with his consent. The Department may accept a complaint only if the complainant:

(1) Brought to the attention of the EEO Counselor the matter causing the complainant to believe he has been discriminated against within 15 calendar days of the date of that matter; or, if a personnel action, within 15 calendar days of its effective date; and

(2) Submitted his complaint in writing to the appropriate EEO Officer within 15 calendar days of the date of his final interview with the EEO Counselor.

(b) The EEO Officer shall extend the time limits in this section:

(1) When the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or

(2) For other reasons considered sufficient by the EEO Officer.

(c) A complaint concerned with a continuing discriminatory practice having a material bearing on employment may be filed at any time.

(d) The Department will also accept from an individual or an organization complaints or allegations of a general pattern or practice of discrimination which may be unrelated to any specif

ic complaint involving a particular individual. Such complaints shall be received, investigated, and processed on an individual basis as determined by the Director of EEO. There is no appeal to the Civil Service Commission from actions taken on these complaints.

(e) The right to withdraw a complaint at any stage is assured.

§ 7.32 Contents.

(a) In order to expedite the processing of complaints of discrimination, the complainant should be urged to include in his complaint the following information:

(1) Whether the alleged discrimination is based upon race, color, religion, sex, or national origin.

(2) The specific action or personnel matter about which the complaint is made.

(3) Facts and other pertinent information to support the allegation of discrimination.

(4) The relief desired.

(b) In no event shall the lack of complete information at the time of filing constitute grounds for refusal by the Department to accept a complaint.

(c) The written complaint need not conform to any particular style or format.

§7.33 Acceptability.

(a) The EEO Officer shall determine whether the complaint comes within the purview of this subpart and shall advise the complainant and his representative in writing of the acceptance, rejection, or cancellation of his complaint. A complaint may be rejected, with the concurrence of the Director or Deputy Director of EEO, because it was not filed within the required time limits or because it is not within the purview of this subpart. It may be canceled because of a failure of the complainant to prosecute the complaint or because of a separation of the complainant from the Department for reasons not related to his complaint.

(b) If the EEO Officer determines, and the Director or Deputy Director of EEO concurs, that the complaint is to be rejected or canceled, the written decision of the EEO Officer to the complainant shall inform him of his

right to appeal to the Civil Service Commission and of the time limit applicable thereto, if he believes the rejection or cancellation improper.

§7.34 Processing.

(a) The EEO Officer will process complaints involving the organizational unit for which he is responsible. However, the Director or Deputy Director of EEO, as he deems necessary, may assume jurisdiction of any case. This may include the designation as processing officer of an official other than the EEO Officer for the organizational unit concerned. In the latter case, the Director or Deputy Director of EEO shall so notify all interested parties.

(b) Based on a request from the EEO Officer, the Director or Deputy Director of EEO shall provide for the prompt investigation of the complaint. The request for an investigation shall be made in writing to the Director, Office of Investigation.

(1) The person assigned to investigate the complaint shall occupy a position in the Department which is not, directly or indirectly, under the jurisdiction of the head of that part of the Department in which the complaint

arose.

(2) The investigation shall include a thorough review of the circumstances under which the alleged discrimination occurred, the treatment of members of the complainant's group identified by his complaint as compared with the treatment of other employees in the organizational unit in which the alleged discrimination occurred, and any policies and practices related to the work situation which may constitute, or appear to constitute, discrimination even though they have not been expressly cited by the complainant. If necessary, the investigator may obtain information regarding the membership or nonmembership of a person in the complainant's group by asking each person concerned to provide the information voluntarily; he shall not require or coerce an employee to provide this information. Information needed for an appraisal of the utilization of members of the complainant's group as compared to the

utilization of persons outside the complainant's group shall be recorded in statistical form in the investigative file, but specific information as to a person's membership or nonmembership in the complainant's group needed to facilitate an adjustment of the complaint or to make an informed decision on the complaint shall, if available, be recorded by name in the investigative file.

(3) Insofar as is practicable, the investigative process shall be completed within 30 calendar days.

(4) The investigative file shall contain the various documents and information acquired during the investigation including affidavits: (i) of the complainant; (ii) of the official charged with discrimination; and (iii) of other persons interviewed and copies of, or extracts from, records, policy statements, or regulations of the Department organized to show their relevance to the complaint or the general environment out of which the complaint arose.

(5) The investigator shall be furnished a written authorization to: (i) Investigate all aspects of complaints of discrimination, (ii) require all employees of the Department to cooperate with him in the conduct of the investigation, and (iii) require employees of the Department having any knowledge of the matter complained of to furnish testimony under oath or affirmation without a pledge of confidence.

(6) The investigator shall submit to the EEO Officer and to the Director of EEO the results of the investigation as well as the investigative file, which shall be included in the complaint file. (7) The EEO Officer shall furnish the complainant or his representative a copy of the investigative file.

§ 7.35 Adjustment of complaint.

The EEO Officer shall provide an opportunity for adjustment of the complaint on an informal basis after the complainant has reviewed the investigative file.

(a) Adjustment arrived at. If an adjustment of the complaint is arrived at, the terms of the adjustment shall be reduced to writing by the EEO Officer, signed by him, the complainant, and other appropriate persons, and

made part of the complaint file. The EEO Officer shall furnish a copy of the terms to the complainant and forward the complaint file to the Director or Deputy Director of EEO.

(b) Adjustment not arrived at. If an adjustment of the complaint is not arrived at, the EEO Officer shall notify the complainant in writing of the proposed disposition of his case. The notice shall advise the complainant of his right to a hearing with subsequent decision by the Director or Deputy Director of EEO. The notice also shall indicate the complainant's right to a decision without a hearing if he so elects. The notice shall advise the complainant that he has 7 calendar days from receipt of the notice to inform the EEO Officer whether or not a hearing is desired. The EEO Officer shall make a copy of the notice a part of the complaint file.

(1) No hearing to take place. Upon timely notification to the EEO Officer by the complainant that he does not desire a hearing, or upon his failure to notify the EEO Officer of his wishes within the 7-day period, the EEO Officer shall forward the complaint file to the Director or Deputy Director of EEO for decision.

(2) Hearing to take place. Upon timely notification to the EEO Officer by the complainant that he desires a hearing, the EEO Officer shall take the steps described in § 7.36.

§ 7.36 Hearing.

(a) Appeals examiner. The hearing shall be held by an appeals examiner who must be an employee of a Federal agency other than the Department. The EEO Officer shall request the appropriate local office of the Civil Service Commission to supply the name of an appeals examiner who has been certified by the Commission as qualified to conduct a hearing under this section.

(b) Arrangements for hearing. The EEO Officer shall transmit the complaint file to the appeals examiner who shall review it to determine whether further investigation is needed before scheduling the hearing. The complaint file shall include all the documents described in § 7.40

which have been acquired in the processing of the complaint. When the appeals examiner determines that further investigation is needed, he shall remand the complaint to the EEO Officer for further investigation or arrange for the appearance of witnesses necessary to supply the needed information at the hearing. The requirements of § 7.34 apply to any further investigation by the Department on the complaint. The appeals examiner shall schedule the hearing for a convenient time and place.

(c) Prehearing conference. In arranging for the hearing, the appeals examiner at his discretion may arrange a prehearing conference during which he shall seek to clarify the issues, accept stipulations on facts to which the interested parties may agree, establish a schedule for the hearing, and explain his role in the hearing.

(d) Conduct of hearing. (1) Attendance at the hearing shall be limited to persons determined by the appeals examiner to have a direct connection with the complaint; (2) the appeals examiner shall conduct the hearing so as to bring out pertinent facts, including the production of pertinent documents. Rules of evidence shall not be applied strictly, but the appeals examiner shall exclude irrelevant or unduly repetitious evidence. Information having a bearing on the complaint or employment policy or practices relevant to the complaint shall be received in evidence. The complainant, his representative and the representatives of the Department at the hearing shall be given the opportunity to cross-examine witnesses who appear and testify. Testimony shall be under oath or affirmation.

(e) Powers of appeals examiner. In addition to the other powers vested in the appeals examiner by the Department in accordance with this subpart, the appeals examiner is authorized to: (1) Administer oaths or affirmations; (2) Regulate the course of the hearing:

(3) Rule on offers of proof;

(4) Limit the number of witnesses whose testimony would be unduly repetitious; and

(5) Exclude any person from the hearing for contumacious conduct or

misbehavior that obstructs the hearing.

(f) Witnesses at hearing. The appeals examiner shall request the EEO Officer to make available as a witness at the hearing an employee requested by the complainant when the appeals examiner determines that the testimony of the employee is necessary. The appeals examiner shall also request the appearance of any other employee whose testimony he desires to supplement the information in the investigative file. The appeals examiner shall give the complainant his reasons for the denial of a request for the appearance of employees as witnesses and shall insert those reasons in the record of the hearing. Employees shall be made available as witnesses at a hearing on a complaint when so requested by the appeals examiner and it is administratively practicable to comply with the request. When it is not administratively practicable to comply with the request for a witness, the EEO Officer shall provide an explanation to the appeals examiner. If the explanation is inadequate, the appeals examiner shall so advise the EEO Officer and request that the employee be made available as a witness at the hearing. If the explanation is adequate, the appeals examiner shall insert it in the record of the hearing, provide a copy to the complainant, and make arrangements to secure testimony from the employee through a written interrogatory. Employees shall be in a duty status during the time they are made available as witnesses. Witnesses shall be free from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony at the hearing or during the investigation.

(g) Record of hearing. The hearing shall be recorded and transcribed verbatim. All documents submitted to, and accepted by, the appeals examiner at the hearing shall be made a part of the record of the hearing. If the Department submits a document that is accepted, it shall furnish a copy of the document to the complainant. If the complainant submits a document that is accepted, he shall make the document available to the Department representative for reproduction.

(h) Findings, analysis, and recommendations. The appeals examiner shall transmit to the Director or Deputy Director of EEO the complaint file (including the record of the hearing), together with his findings and analysis with regard to the matter which gave rise to the complaint and the general environment out of which the complaint arose and his recommended decision on the merits of the complaint, including recommended remedial action where appropriate. The appeals examiner shall notify the complainant of the date on which this was done. In addition, the appeals examiner shall transmit, by separate letter to the Director or Deputy Director of EEO, whatever findings and recommendations he considers appropriate with respect to conditions in the Department even though they have no bearing on the matter which gave rise to the complaint or the general environment out of which the complaint arose.

§ 7.37 Relationship to other HUD appellate procedures.

(a) Except as provided in paragraphs (b) and (c) of this section, when a complainant makes a written allegation of discrimination because of race, color, religion, sex, or national origin in connection with an action that would otherwise be processed under the grievance or appeals procedure of the Department, the Department may process the allegation of discrimination under its grievance or appeals procedure when that procedure meets the principles and requirements in §§ 7.25 through 7.38. However, with regard to the issue of discrimination (as distinguished from other aspects of the action), the Director or Deputy Director of EEO shall make the decision of the Department as provided in § 7.39. That decision shall be incorporated in and become a part of the decision on the grievance or the appeal.

(b) An allegation of discrimination made in connection with an appeal under subpart B of 5 CFR part 771 and appropriate Department procedures shall be processed under that subpart and said procedures.

(c) An allegation of discrimination made in connection with a grievance

under subpart C of 5 CFR part 771 and HUD Handbook 771.2, Employee Grievances, shall be processed under this subpart.

§ 7.38 Avoidance of delay.

(a) The complaint shall be resolved promptly. To this end, both the complainant and the Department shall proceed with the complaint without undue delay so that the complaint is resolved, except in unusual circumstances, within 60 calendar days after its receipt by the appropriate EEO Of. › ficer, exclusive of time spent in the processing of the complaint by the appeals examiner. When the complaint has not been resolved within this time limit, the complainant may appeal to the Civil Service Commission for an review of the reasons for the delay. Upon review of this appeal, the Commission may require the Department to take special measures to insure the prompt processing of the complaint, or the Commission may accept the appeal for consideration pursuant to §§ 7.45 through 7.49.

(b) The Director of EEO may cancel a complaint if the complainant fails to prosecute the complaint without undue delay. However, instead of can- : celing for failure to prosecute, he may adjudicate the complaint if sufficient information for that purpose is available.

§ 7.39 Decision by Director of EEO.

(a) Following consultation with the General Counsel and the Assistant Secretary for Administration, the Director of EEO shall make the decision of the Department on a complaint = based on information in the complaint file.

(b) The decision shall be in writing and shall be transmitted by letter to the complainant and his representative, with copies to the head of the organizational unit in which the complaint arose; the Assistant Secretary for Administration; and the General Counsel. When there has been a hear. ing on the complaint, the complainant and his representative shall be furnished a copy of the findings, analysis, and recommended decision of the appeals examiner as described in