« ForrigeFortsett »
made with regard to the complain case before a formal complaint filed by the complainant as desc
(b) The complaint;
(d) If the complaint is withdrap the complainant, a written state by the complainant or his repres tive to that effect;
(e) If the adjustment of the plaint is arrived at as describe $ 7.35, the written record of the 1
under subpart C of 5 CFR part m 17.36(h), as well as a copy of the tranminer and HUD Handbook 771.2. Empions script of the oral testimony and other or or Grievances, shall be processed under
oral statements at the hearing. com- this subpart.
(1) When there has been a hearing, in $$ 7.25 and 7.26; of the
the decision shall adopt, reject, or ndings 87.38 Avoidance of delay.
modify the decision recommended by matter (a) The complaint shall be meistens is to reject or modify the recom
the appeals examiner. When the deci. at and which
promptly. To this end, both the cu mended decision of the appeals exami:
plainant and the Department ste recomproceed with the complaint wither
iner, the letter transmitting the deci. of the undue delay so that the complain:
sion shall set forth the reasons for reed re- resolved, except in unusual circa
jection or modification. 2. The stances, within 60 calendar days ate
(2) When there has been neither an e com. its receipt by the appropriate EZO O. adjustment as described in $ 7.35 nor a
of the adjustment; is was ficer, exclusive of time spent in de decision shall set forth the findings, bearing, the letter transmitting the
(f) If no adjustment of the amin. processing of the complaint by the analysis , and decision of the Director
plaint is arrived at as describi ter to peals examiner. When the compe
$ 7.35, a copy of the letter noti or of has not been resolved within this to
the complainant of the propose ecom
(c) The decision shall require any repriate
the complainant may appen: medial action authorized by law deter position of the complaint and the Civil Service Commission for i mined to be necessary or desirable to
right to a hearing; e Dereview of the reasons for the des effect the resolution of the issues of
(g) If the decision is made a ve no e rise Upon review of this appeal, the Cas discrimination and to promote the
scribed in $ 7.39, a copy of the let envi. mission may require the Departce policy of equal opportunity. In such
the complainant transmitting th Olaint
(h) If a hearing was held, the the Commission may accept the organizational unit concerned and of the hearing, together with th appel- appeal for consideration pursuan the Assistant Secretary for Adminis
peals examiner's findings, an $$ 7.45 through 7.49.
tration as to the specific action
to be and recommended decision or (b) The Director of EEO may care taken with respect to each individual
merits of the complaint; and raphs a complaint if the complainant tak : involved.
(i) A copy of the letter transm comon of
prosecute the complaint wies (d) The letter transmitting the deci. the decision.
undue delay. However, instead of a sion shall advise the complainant of color, celing for failure to prosecute, be as his right to appeal the decision on his
APPEAL TO THE CIVIL SERVICI con
adjudicate the complaint if suffioz complaint to the Civil Service Com
information for that purpose is or mission if he is not satisfied with it
8 7.45 Entitlement.
(a) Except as provided by para proc87.39 Decision by Director of EEO. $7.47.
(b) of this section, a complainan ation
(e) An employee, other than a com(a) Following consultation with 3
appeal to the Civil Service Comer roce
the decision of the Department: s the General Counsel and the Agrice plainant, who believes that a decision
(1) To reject his complaint b E 7.25 Secretary for Administration, the 3 constitutes an inequity to him, has re
it was not: rd to rector of EEO shall make the dece course to the Department grievance Estin
of the Department on a compiu procedures or, as appropriate, the De (i) Filed within required time the based on information in the compepartment adverse action procedures (see $7.31); or
including opportunity for an appeal to file.
(ii) Within the purview of the irec
and procedures set forth in th: on of (b) The decision shall be in vrz the Civil Service Commission.
part; or 7.39. and shall be transmitted by letter 87.40 Complaint file.
(2) To cancel his complaint b ed in the complainant and his represcia
The Director of SEO shall establish non tive, with copies to the head of the :
of the complainant's: ganizational unit in which the . and maintain a complaint file contain- (i) Failure to prosecute his ution plaint arose; the Assistant Securing all documents pertinent to the plaint or peal for Administration; and the Ger complaint. The complaint file, which
(ii) Separation from the Depa; 771
Counsel. When there has been sies shall not contain any document that for reasons which are not rela -oceing on the complaint, the complar has not been made available to the
his complaint; or that and his representative shall be complainant, shall include copies of:
(3) On the merits of the com (a) The written report of the EEO nished a copy of the findings, anet
as described in $7.39 if the d tion and recommended decision of the Counselor to the SEO Officer on
does not resolve the complaint whatever counseling efforts were satisfaction of the complainant. unce peals examiner
(b) A complainant may not appeal to report promptly to the Board that the the Civil Service Commission under corrective action has been taken. The paragraph (a) of this section when the decision of the Board is final and issue of discrimination giving rise to there is no further right to appeal. the complaint is being considered, or has been considered, in connection 8 7.49 Appellate review by the Commiswith any other appeal by the com- sioners. plainant to the Commission.
The Civil Service Commissioners 87.46 Where to appeal.
may, in their discretion, reopen and
reconsider any previous decision when An appeal by a complainant must be the party requesting reopening subfiled by him or his representative in mits written arguments or evidence writing either personally or by mail, which tends to establish that: with the Board of Appeals and (a) New and material evidence is Review, U.S. Civil Service Commission,
available that was not readily avail. Washington, DC 20415.
able when the previous decision was
issued. 87.47 Time limit.
(b) The previous decision involves an (a) Except as provided in paragraph erroneous interpretation of law or reg. (b) of this section, a complainant may ulation or a misapplication of estabfile an appeal at any time up to 15 cal
lished policy; or endar days after his receipt of the
(c) The previous decision is of a preletter transmitting the decision of the
cedential nature involving a new or Department.
unreviewed policy consideration that (b) The time limit stated in para
may have effects beyond the actual graph (a) of this section may be ex
case at hand, or is otherwise of such tended in the discretion of the Board
an exceptional nature as to merit the of Appeals and Review of the Commis
personal attention of the Commission. sion, upon a showing by the complain
ers. ant that he was not notified of the prescribed time limit and was not oth
PART 8—NONDISCRIMINATION erwise aware of it or that circumstances beyond his control prevented
BASED ON HANDICAP IN FEDERhim from filing an appeal within the
ALLY ASSISTED PROGRAMS AND prescribed time limit.
ACTIVITIES OF THE DEPARTMENT
OF HOUSING AND URBAN DEVEL8 7.48 Appellate procedures.
OPMENT The Board of Appeals and Review of the Commission shall review the com
Subpart A-Goneral Provisions plaint file of the Department and all
Sec. relevant written representations made
8.1 Purpose. to the Board. However, there is no
8.2 Applicability. right to a hearing before the Board.
8.3 Definitions. The Board may remand a complaint to 8.4 Discrimination prohibited. the Department for further investiga- 8.5 (Reserved) tion or a rehearing if the Board con- 8.6 Communications. siders that action necessary, or have additional investigation conducted by
Subpart B-Employment Commission personnel. The provisions
8.10 General prohibitions against employ. of this subpart apply to any further
ment discrimination. investigation or rehearing resulting 8.11 Reasonable accommodation. from a remand from the Board. The 8.12 Employment criteria. Board shall issue a written decision 8.13 Preemployment inquiries. setting forth its reasons for the decision and send copies thereof to the Subpart C-Program Accessibility complainant, his designated represent
8.20 General requirement concerning proative, and the Department's Director
gram accessibility. of EEO. When corrective action is or 8.21 Non-housing facilities. dered, the Director of EEO shall 8.22 New construction-housing facilities.
Subpart A-General Provisions
Sec. 8.23 Alterations of existing housing facili
ties. 8.24 Existing housing programs. 8.25 Public housing and multi-family
Indian housing. 8.26 Distribution of accessible dwelling
units. 8.27 Occupancy of accessible dwelling
units. 8.28 Housing certificate and housing
voucher programs. 8.29 Homeownership programs (Sections
235(i) and 235(j), Turnkey III and Indian Housing Mutual Self-Help Pro
grams). 8.30 Rental rehabilitation program. 8.31 Historic properties. 8.32 Accessibility standards. 8.33 Housing adjustments.
Subpart D-Enforcement 8.50 Assurances required. 8.51 Self-evaluation. 8.52 Remedial and affirmative action. 8.53 Designation of responsible employee
and adoption of grievance procedures. 8.54 Notice. 8.55 Compliance information. 8.56 Conduct of investigations. 8.57 Procedure for effecting compliance. 8.58 Hearings. 8.59 Decisions and notices.
8 8.1 Purpose.
(a) The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C 794), to the end that no otherwise qualified individual with handicaps in the United States shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Housing and Urban Development. This part also implements section 109 of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5309). This part does not effectuate section 504 as it applies to any program or activity conducted by the Department. Compliance with this part does not assure compliance with requirements for accessibility by physically-handicapped persons imposed under the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157; 24 CFR part 40).
(b) The policies and standards for compliance established by this part are established in contemplation of, and with view to enforcement through, the Department's administration of programs or activities receiving Federal financial assistance and the administrative procedures described in subparts D and E (including, without limitation, judicial enforcement under $ 8.57(a)).
Subpart E-Practice and Procedure for
Hearings 8.60 General information. 8.61 Appearance and practice. 8.62 Parties. 8.63 Form, execution, service and filing of
documents. 8.64 Time. 8.65 Proceedings prior to hearing. 8.66 Responsibilities and duties of adminis
trative law judge. 8.67 Hearing procedures. 8.68 The record. 8.69 Posthearing procedures, decisions. 8.70 Judicial standards of practice. 8.71 Post-termination proceedings. APPENDIX A TO PART 8-FEDERAL FINANCIAL
ASSISTANCE FROM THE DEPARTMENT OF
WHICH THIS PART APPLIES
TIONS OF HANDICAPPED PERSONS AUTHORITY: Sec. 504, Rehabilitation Act of 1973 (29 U.S.C. 794); sec. 109, Housing and Community Development Act of 1974 (42 U.S.C. 5309); sec. 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3536(d)).
SOURCE: 53 FR 20233, June 2, 1988, unless otherwise noted.
8 8.2 Applicability.
This part applies to all applicants for, and recipients of, HUD assistance in the operation of programs or activities receiving such assistance. Such assistance includes, but is not limited to, that which is listed in appendix A of this part. 8 8.3 Definitions.
As used in this part:
Accessible, when used with respect to the design, construction, or alteration of a facility or a portion of a facility other than an individual dwelling unit, means that the facility or portion of the facility when designed, construct
ed or altered, can be approached, en- Alteration means any change in a fa-4 tered, and used by individuals with cility or its permanent fixtures or physical handicaps. The phrase acces- equipment. It includes, but is not limsible to and usable by is synonomous ited to, remodeling, renovation, rehawith accessible.
bilitation, reconstruction, changes or Accessible, when used with respect to rearrangements in structural parts the design, construction, or alteration and extraordinary repairs. It does not of an individual dwelling unit, means include normal maintenance or rethat the unit is located on an accessi- pairs, reroofing, interior decoration, or ble route and when designed, con- changes to mechanical systems. structed, altered or adapted can be ap- Applicant for assistance means one proached, entered, and used by indi- who submits an application, request, viduals with physical handicaps. A plan, or statement required to be apunit that is on an accessible route and proved by a Department official or by is adaptable and otherwise in compli- a primary recipient as a condition of ance with the standards set forth in eligibility for Federal financial assist$ 8.32 is accessible within the meaning ance. An application means such a re. of this paragraph. When a unit in an quest, plan or statement. existing facility which is being made Auxiliary aids means services or deaccessible as a result of alterations is vices that enable persons with imintended for use by a specific qualified paired sensory, manual, or speaking individual with handicaps (e.g., a cur- skills to have an equal opportunity to rent occupant of such unit or of an- participate in, and enjoy the benefits other unit under the control of the of, programs or activities receiving same recipient, or an applicant on a Federal financial assistance. For exwaiting list), the unit will be deemed ample, auxiliary aids for persons with accessible if it meets the requirements impaired vision may include readers, of applicable standards that address Brailled materials, audio recordings, the particular disability or impairment and other similar services and devices. of such person.
Auxiliary aids for persons with im. Accessible route means a continuous paired hearing may include telephone unobstructed path connecting accessi. handset amplifiers, telephones com ble elements and spaces in a building patible with hearing aids, telecom. or facility that complies with the munication devices for deaf persons space and reach requirements of appli- (TDD's), interpreters, notetakers, writcable standards prescribed by $ 8.32. ten materials, and other similar servAn accessible route that serves only ices and devices. accessible units occupied by persons Department or HUD means the Dewith hearing or vision impairments partment of Housing and Urban De. need not comply with those require- velopment. ments intended to effect accessibility Facility means all or any portion of for persons with mobility impair- buildings, structures, equipment, ments.
roads, walks, parking lots, rolling stock Adaptability means the ability of or other real or personal property or certain elements of a dwelling unit, interest in the property. such as kitchen counters, sinks, and Federal financial assistance means grab bars, to be added to, raised, low- any assistance provided or otherwise ered, or otherwise altered, to accom- made available by the Department modate the needs of persons with or through any grant, loan, contract or without handicaps, or to accommodate any other arrangement, in the form the needs of persons with different of: types or degrees of disability. For ex- (a) Funds; ample, in a unit adaptable for a hear- (b) Services of Federal personnel; or ing-impaired person, the wiring for (c) Real or personal property or any visible emergency alarms may be in- interest in or use of such property, installed but the alarms need not be in- cluding: stalled until such time as the unit is (1) Transfers or leases of the propermade ready for occupancy by a hear ty for less than fair market value or ing-impaired person.
for reduced consideration; and
(2) Proceeds from a subsequent of alcohol or drugs prevents the inditransfer or lease of the property if the vidual from participating in the proFederal share of its fair market value gram or activity in question, or whose is not returned to the Federal Govern. participation, by reason of such curment.
rent alcohol or drug abuse, would conFederal financial assistance includes stitute a direct threat to property or community development funds in the the safety of others. As used in this form of proceeds from loans guaran- definition, the phrase: teed under section 108 of the Housing (a) Physical or mental impairment and Community Development Act of includes: 1974, as amended, but does not include
(1) Any physiological disorder or assistance made available through
condition, cosmetic disfigurement, or direct Federal procurement contracts
anatomical loss affecting one or more or payments made under these con
of the following body systems: Neurotracts or any other contract of insur
logical; musculoskeletal; special sense ance or guaranty.
organs; respiratory, including speech Handicap means any condition or
organs; cardiovascular; reproductive; characteristic that renders a person an
digestive; genito-urinary; hemic and individual with handicaps.
lymphatic; skin; and endocrine; or Historic preservation programs or
(2) Any mental or psychological disactivities means programs or activities
order, such as mental retardation, orreceiving Federal financial assistance
ganic brain syndrome, emotional or that have preservation of historic
mental illness, and specific learning properties as a primary purpose.
disabilities. The term Historic properties means those
mental impairment includes, but is properties that are listed or are eligi.
not limited to, such diseases and condible for listing in the National Register of Historic Places, or such properties hearing impairments, cerebral palsy,
tions as orthopedic, visual, speech and designated as historic under a statute
autism, epilepsy, muscular dystrophy, of the appropriate State or local government body.
multiple sclerosis, cancer, heart dis
ease, diabetes, mental retardation, Individual with handicaps means
emotional illness, drug addiction and any person who has a physical or
alcoholism. mental impairment that substantially
(b) Major life activities means funclimits one or more major life activities;
tions such as caring for one's self, perhas a record of such an impairment; or is regarded as having such an impair forming manual tasks, walking, seeing,
hearing, speaking, breathing, learning ment. For purposes of employment, this term does not include: Any indi
and working. vidual who is an alcoholic or drug
(c) Has a record of such an impairabuser whose current use of alcohol or
ment means has a history of, or has drugs prevents the individual from
been misclassified as having, a mental performing the duties of the job in or physical impairment that substanquestion, or whose employment, by
tially limits one or more major life ac
tivities. reason of current alcohol or drug abuse, would constitute a direct threat
(d) Is regarded as having an impairto property or the safety of others; or
ment means: any individual who has a currently (1) Has a physical or mental impaircontagious disease or infection and ment that does not substantially limit who, by reason of such disease or in. one or more major life activities but fection, would constitute a direct that is treated by a recipient as constithreat to the health or safety of other tuting such a limitation; individuals or who, by reason of the (2) Has a physical or mental impaircurrently contagious disease or infec- ment that substantially limits one or tion, is unable to perform the duties of more major life activities only as a the job. For purposes of other pro- result of the attitudes of others grams and activities, the term does not toward such impairment; or include any individual who is an alco- (3) Has none of the impairments deholic or drug abuser whose current use fined in paragraph (a) of this section