EQUAL OPPORTUNITY DIRECTIVE NO. 1998-13

To:          Bureau Equal Opportunity Officers

From:       E. Melodee Stith, Director Office for Equal Opportunity

Subject:    Internal Civil Rights Complaint Processing Procedures

I. Purpose

This Equal Opportunity Directive sets forth internal procedures for processing civil rights complaints in both federally assisted and federally conducted programs and activities of the Department of the Interior. These procedures are intended to better explain to bureaus and offices their responsibilities in implementing current regulations that are already in effect. Additionally, this directive sets forth the internal procedures for processing disability rights complaints against public entities whether or not they receive Federal financial assistance.

II. Authority

The internal procedures cited in this directive are established under the authority of the following Federal nondiscrimination laws:

A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4), prohibits discrimination based on race, color, or national origin in programs or activities receiving Federal financial assistance.

B. Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 to 1688), prohibits discrimination based on sex in any educational program or activity receiving Federal financial assistance.

C. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), prohibits discrimination based on an individual's disability in programs or activities receiving Federal financial assistance and in any program or activity conducted by the any executive branch agency.

D. Title II of the Americans with Disabilities Act prohibits discrimination on the basis of disability in State or local government programs whether or not they receive Federal financial assistance.

E. The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) prohibits discrimination based on age in programs or activities receiving Federal financial assistance.

III. Departmental Office for Equal Opportunity's Complaint Processing Responsibilities

The Director of the Departmental Office for Equal Opportunity shall be responsible for the following:

A. Monitoring. Oversight and monitoring responsibilities for civil rights complaints filed with any bureau or office;

B. Policy Development. The development of civil rights policies, regulations, guidelines, and procedures;

C. Coordination with Other Federal Agencies. Reporting to other Federal agencies regarding the scope and nature of the Department's civil rights compliance and enforcement policies, i.e., Department of Justice, Department of Health and Humans Services, etc.;

D. Legal Actions. The effectuation of all legal and administrative enforcement actions against a recipient including but not limited to fund termination proceedings in instances where voluntary compliance efforts have failed.

IV. Bureau Responsibilities in Processing Federal Assistance Civil Rights Complaints

A. Public Notification. All Bureaus and Offices shall establish and publish procedures for promptly processing complaints. The complaint procedures must provide for notifying in writing the complainant and the applicant and/or recipient as to the disposition of the complaint. Bureaus and Offices shall investigate all complaints received that are within their jurisdiction that allege discrimination on the basis of race, color, national origin, disability, age, or sex.

B. Responsible Official(s). Bureau and Office Equal Opportunity Officers or the bureau's designee shall be responsible for processing and investigating civil rights complaints.

C. Complaint Referrals. If a Bureau or Office lacks jurisdiction over a complaint, the Bureau or Office shall, refer the complaint to an appropriate Federal, State, or local government agency for appropriate action or otherwise notify the complaint of the agency's lack of jurisdiction.

D. Reporting Requirements. Considering the gravity and nature of the complaint, the most egregious complaints should be reported to the Departmental Office for Equal Opportunity within five (5) days upon receipt. Otherwise, the monthly reporting of complaints, as established in Equal Opportunity Directive No. 1998-05 will be sufficient.

E. Investigations Conducted by Primary Recipients. If a Bureau or Office permits a primary recipient to investigate a complaint against an applicant or subrecipient to which it extends Federal financial assistance, the Bureau or Office shall ascertain whether the primary recipient's procedures for investigating complaints are fair and in compliance with Federal regulation. The Bureau or Office having jurisdiction over the recipient shall obtain a written report of each such complaint and investigation and shall retain review responsibility over the investigation and disposition of each complaint. Bureaus shall require each recipient processing Federal assistance civil rights complaints to maintain a log or tracking system accounting for each complaint received.

F. Staffing. Bureaus and Offices that administer Federal financial assistance programs shall provide sufficient staff and resources to implement an effective civil rights compliance and enforcement program.

V. Recipient Complaint Processing Responsibilities

A. Notification. Recipients must notify the public of its rights to file a complaint of alleged discrimination and shall outline the procedures for filing such complaints.

1. Public Notification Required. The procedures for filing complaints with the Department of the Interior including the recipient's nondiscrimination policy must be included in all manuals, brochures, pamphlets, and other materials which are ordinarily distributed to the public to describe program availability

2. Posters. Displaying Departmental nondiscrimination policy posters in reasonable numbers and places throughout all aspects of the recipient's operations.

B. Recordkeeping. Complaints received by a recipient should be recorded in a tracking system designed to record essential information regarding the complaint. All such complaints should be forwarded to the Bureau's Equal Opportunity Office who have provided assistance to the recipient. Complaints must be forwarded to the Bureau's Equal Opportunity Office within ten (10) days upon receipt. The date the complaint was received should be entered on the complaint. The recipient may retain a confidential copy for its records. The log entry must contain a case number; the complainant's name address, and phone number; a description of the complaint ; the date complaint was filed and investigation completed; the disposition of the case and all other pertinent information.

VI. Procedures for Complaints Alleging Discrimination Based on Race, Color, National Origin, Disability or Sex in Federal Financial Assistance Programs.

A. Policy. Any person who believes he or she, either individually or as a member of a specific group or class of persons, has been subjected to discrimination on the basis of race, color, national origin, disability, age, or sex may personally, or by representative, file a complaint.

B. Procedures for Filing Complaints. All complaints alleging discrimination on the basis of race, color, national origin, disability, age, or sex must be in writing, and must be signed by the complainant or his/her representative.

C. Time Limits. Complaints must be filed within 180 days from the date of the alleged discrimination. The time limit for filing complaints may be extended by the Director of the Departmental Office for Equal Opportunity, U. S. Department of the Interior, Washington, D. C. 20240 or by the Bureau or Office Equal Opportunity Officer, having jurisdiction over the complaint.

D. Assistance in Filing Complaints. Bureaus and Offices will facilitate the filing of complaints by taking the following measures:

1. Accepting as a sufficient complaint, any written statement which identifies the parties involved and the date the complainant first had knowledge of the alleged violation, describes generally the action or practice complained of, and is signed by the complainant;

2. Permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint;

3. Notifying the complainant and the recipient of their rights and obligations under the complaint procedures, including the right to have a representative at all stages of the complaint process;

4. Notifying the complainant and the recipient (or their representatives) of their right to contact the Bureau or Office for information and assistance regarding the complaint resolution process.

E. Where to File. Complaints may be filed with the Director of the Departmental Office for Equal Opportunity, U. S. Department of the Interior, Washington, D. C. 20240 or with the Bureau or Office, Civil Rights Office having jurisdiction over the complaint. Complaints filed directly with Bureaus or Offices must be reported to the Director of the Departmental Office for Equal Opportunity on a monthly basis, as required by Equal Opportunity Directive No. 1998-5.

F. Complaints Tracking System. Each Bureau or Office shall maintain a tracking system that accounts for all civil rights complaints filed with it, and its recipients, identifying each complainant, the authority under which the complaint is covered, i.e., Title II of the ADA, Section 504 (federally conducted), Title VI, Age Discrimination Act, etc.; the basis of the complaint; the date the complaint was filed; the disposition; and the date of disposition. Pursuant to Equal Opportunity Directive No. 1998-05, all bureaus must submit monthly status reports on all civil rights complaints under their jurisdiction.

VII. Age Discrimination Complaint Procedures

A. Mediation Required. All complaints covered by the Age Discrimination Act of 1975 that have been sufficiently filed with the Department of the Interior will be promptly referred to the Federal Mediation and Conciliation Service (FMCS) for mediation purposes. Age discrimination complaints that are not covered by the regulatory requirements of the Act do not need to be referred to the FMCS. In referring complaints to the FMCS, Bureaus and Offices must ensure that the following standards are met:

1. The complaint falls within the jurisdiction of the Age Discrimination Act.

2. The complaint contains all necessary information for immediate processing.

3. That the complainant and the recipient participate in the mediation process as necessary to reach an agreement or make an informed judgement as to whether an agreement is possible.

4. That, if the complainant and the recipient reach an agreement, the FMCS prepares a written statement of the agreement and the complainant and the recipient sign it. The agreement must be coordinated with the Departmental Office for Equal Opportunity. The FMCS shall send the agreement to the Bureau or Office Equal Opportunity Office. The Departmental Office for Equal Opportunity and the Bureau or Office, however, reserves the right to monitor the recipient's compliance with the agreement.

5. The mediation process will not be used by any Bureau or Office no longer than sixty (60) days after receiving a complaint.

6. That mediation ends if:

a. Sixty (60) days have elapsed from the time the complaint was filed;

b. Prior to the end of that 60 day period, an agreement is reached;

c. Prior to the end of that 60 day period, the FMCS determines that an agreement cannot be reached;

d. The FMCS returns an unresolved complaint to the Department of the Interior; or

e. If the complainant withdraws from mediation.

B. Age Discrimination Complaints: Informal Investigations

1. Upon receipt, the bureau's designated official(s) will investigate complaints that are unresolved after mediation, or are reopened because of a breach of a mediation agreement.

2. Informal fact finding methods will be used such as "desk audits"of the recipient's practices. Such investigations shall provide for conducting joint and/or separate interviews with the complainant(s) and respondent and others having knowledge of the recipient's practices.

3. Terms established in all agreements shall be in writing and signed by the bureau's Equal Opportunity Officer and the Director of the Departmental Office for Equal Opportunity.

4. The settlement may not affect any other enforcement action that is planned or in progress by the Department of the Interior, including but not limited to the conduct of compliance reviews and/or complaint investigations that may involve the recipient.

5. A settlement agreement or any act of voluntary compliance does not constitute a finding of discrimination against a recipient.

C. Age Discrimination Complaints: Formal Investigations

If the Bureau or Office fails to resolve an age discrimination complaint informally, the bureau shall conduct a formal investigation of the recipient's practices. The bureau shall develop formal findings through an onsite investigation of the complaint. If the investigation indicates a violation of the Age Discrimination Act, the bureau shall attempt to obtain voluntary compliance. If voluntary compliance fails, the bureau shall report its findings along with a recommendation for formal enforcement action to the Director of the Departmental Office for Equal Opportunity.

VIII. Complaints Filed Under Title II of the Americans with Disabilities Act

A. Scope. Title II of the American with Disabilities Act (ADA) prohibits discrimination on the basis of disability in programs and activities of public entities whether or not they receive Federal financial assistance.

B. Department's Delegated Responsibilities. The Department of the Interior has been delegated by the Department of Justice responsibilities for all programs, services, and regulatory activities relating to public lands and natural resources, including parks and recreation, water and waste management, environmental protection, energy, historic and cultural preservation.

C. Receipt of Complaints. Any Bureau or Office that receives a complaint under Title II of the ADA shall promptly review the complaint to determine whether or not it has jurisdiction under section 504.

D. When the Department Lacks Jurisdiction. When the Departmental Office for Equal Opportunity receives a complaint and the Department of the Interior lacks jurisdiction over the complaint and is not the designated agency for investigating the complaint, it shall refer the complaint to a Federal agency that does have section 504 jurisdiction or to the appropriate designated agency under the Department of Justice's regulation at 28 CFR Part 35, Subpart G.

E. When Bureaus and Offices Lack Jurisdiction. If the Bureau or Office does not have section 504 jurisdiction over the complaint, the complaint should be forwarded to the Director of the Departmental Office for Equal Opportunity for review and referral purposes.

F. Bureau Responsibility for ADA Complaints Covered by Section 504. If a Bureau or Office that receives an ADA complaint has section 504 jurisdiction over the complaint, it shall process the complaint according to its procedures for processing section 504 complaints. Likewise, if the Bureau has responsibility for the complaint under section 504, the Bureau shall investigate the complaint.

G. Employment Complaints. Title II employment complaints that are received by any Bureau of Office that are covered by the equal employment provisions of Title I of the ADA shall be promptly forwarded to the appropriate District Office of the U. S. Equal Employment Opportunity Commission for appropriate handling after consultation with the Departmental Office for Equal Opportunity.

IX. Complaint Resolution Procedures

A. Complaint Resolution Policy. It is the policy of the Department of the Interior to resolve all complaints of alleged discrimination promptly and appropriately whenever possible. Other information about the existence of compliance violations or discrimination in covered programs or activities may be addressed through the complaint resolution process, alternative dispute resolution processes, compliance reviews, or technical assistance.

B. Monitoring. Monitoring is an integral part of the complaint resolution process, especially in instances where remedial action is required. Strong remedies can only be achieved through effective monitoring.

C. Considering a Complaint Resolved. Bureaus and Offices may consider a

complaint resolved when any of the following occur:

1. The complainant decides to withdraw his or her complaint.

2. The Bureau or Office obtains information at any time indicating that the allegations raised by the complaint have been resolved. In such cases, the Bureau or Office will confirm whether or not the complainant has been resolved.

3. The complaint has been investigated by another agency and the resolution of the complaint meets the Departmental Office for Equal Opportunity's standards.

4. The Bureau or Office facilitates resolution between the recipient and complainant through early informal complaint resolution efforts.

5. The Bureau or Office determines, on its own or, in consultation with the Departmental Office for Equal Opportunity, that there is insufficient evidence to support a finding or violation.

D. Alternative Dispute Resolution. Bureaus and Offices may rely upon a variety of tools in resolving complaints. These include: early complaint resolution, negotiated agreements, preliminary and final findings, and enforcement. Bureaus and Offices are encouraged to use any of these approaches to resolve allegations from complainants that fall within their jurisdiction. Any approach or combination of approaches, may be initiated at any time after receipt of the complaint and multiple approaches may be used to resolve any case. Bureaus and Offices shall consider which tool is most likely to

promote complaint resolution. For example, a Bureau or Office may be preparing to issue findings when a recipient indicates a willingness to voluntarily resolve a compliance violation. Alternatively, the recipient may indicate a willingness to enter into an agreement in order to resolve the complaint. Consequently, the Bureau or Office could negotiate an agreement and promptly resolve the complaint.

1. Case Planning. Complaint resolution should be preceded by planning or where a decision has been made to conduct a preliminary inquiry or investigation of a complaint, such preparation shall include:

a. Reviewing agency records to gain background information on the respondent or recipient such as the scope and size of its operations, type and amount of Federal financial assistance received by the respondent, civil rights assurance statements, court orders, the size of the population served, and racial and ethnic data of potential and actual program beneficiaries, etc.

b. Consulting with the Departmental Office for Equal Opportunity and the Office of the Solicitor, where appropriate.

c. Reviewing compliance reports issued by other agencies at State and Federal levels.

d. Reviewing any complaints or previous investigations involving the respondent.

e. Securing community information or profiles from Federal, State and local agencies, such as State and local Human Rights agencies, the U. S. Commission of Civil Rights, U. S. Census Bureau, or other Federal civil rights enforcement agencies.

2. Early Complaint Resolution. Bureaus and Offices should use early complaint resolution where appropriate. Early Complaint Resolution (ECR) facilitates the resolution of complaints by affording the parties implicated in the complaint with the opportunity to resolve the allegations prompting the complaint. It may occur at any time during the complaint resolution process, and may be carried out by any Departmental, Bureau, or Office staff member whether or not the staff member has been or will be, involved in fact finding related to the complaint allegations.

3. Use Early Complaint Resolution Where Appropriate. If the Departmental Office for Equal Opportunity and the Bureau or Office having jurisdiction over the complaint determines that ECR is appropriate, and the complainant and the recipient are willing to resolve the complaint, the Bureau or Office shall initiate ECR to facilitate an agreement between the respondent and the complainant.

4. Departmental Office for Equal Opportunity's ECR Role. In ECR, the Departmental Office for Equal Opportunity reserves the right to approve or disapprove any agreement reached between the parties. At the conclusion of ECR, Bureaus and Offices shall provide the Departmental Office for Equal Opportunity with a copy of a statement signed by the complainant that the allegation has been resolved and a copy of any settlement agreement that has been signed by the complainant.

The Departmental Office for Equal Opportunity, as apart of its ECR responsibilities shall:

a. If appropriate, negotiate a written agreement for resolution with the respondent. This may occur any time during the investigation process.

b. Close any complaint that it determines is not supported by sufficient evidence. To this effect, the case will be closed and the complainant notified in writing of that determination.

c. Issue a "letter of finding" and move to enforcement, if the Departmental Office for Opportunity determines that the evidence establishes a violation and negotiations are unsuccessful.

E. Collects Information and Pursues Resolution. Bureaus and Offices are encouraged to use a variety of fact finding techniques, e.g., joint discussions with the complainant and respondent, consultations with local grassroots organizations, preliminary data requests, etc.

1. Interviews. During the course of complaint investigations, it is usually better to interview the complainant at the beginning of the investigation. Additionally, the heads of local advocacy groups including State and local human rights agencies should be interviewed. Interviews with the complainant and/or witnesses should be at a place and under circumstances convenient to them, and should be conducted in private whenever possible.

2. Onsite Observations. Onsite observations shall be made, where appropriate, to document evidence of overt civil rights violations which shall be brought to the respondent's or recipient's immediate attention so that no time is lost in effecting compliance.

3. Statistical and Racial Data. Statistical and racial data relating to the area of services provided by the respondent or recipient may be an important index to evaluating disparities between various racial groups of actual and potential program beneficiaries. Where necessary, Bureaus and Offices may require recipients to collect and maintain data on the frequency and scope of program participation by minorities and nonminorities in federally assisted programs.

(Authority: Title VI of the Civil Rights Act of 1964, (42 U.S.C. 2000d to 2000d-4) and Departmental regulation at 43 CFR 17.5(b) )

4. Access to Records. Each recipient or respondent shall permit access by the Secretary or his/her designee during normal business hours to its books, records, accounts, and other sources of information and its facilities to enable a determination as to whether the recipient or respondent is in compliance with the nondiscrimination requirements of the Department of the Interior. Bureaus and Offices shall have access to a recipient's or respondent's records, even if those records identify individuals by name and the names are not related to the investigation.

(Authority: Title VI of the Civil Rights Act of 1964, (42 U.S.C. 2000d to 2000d-4) and Departmental regulation at 43 CFR 17.5(c) )

5. Rebuttals. Complaint investigators, where appropriate, shall ensure that recipients are apprised of the allegations in the complaint, and provided the opportunity to respond. Prior to rendering a decision, complainants may provide additional information in support of their complaints and rebut information provided by the respondent of the complaint.

6. Confidentiality. Bureaus and Offices, upon request and where possible, will protect the confidentiality of complainants and other participants involved in any civil rights proceeding of the Department.

7. Contents of Records. Case files shall contain tangible evidence such as records, notes of conversations, "before and after" photographs, etc.

F. Communication with All Parties. Bureaus and Offices shall communicate with both parties, the respondent and complainant, as appropriate, regarding progress in resolving the complaint. Whether or not recipients should be given advance notice of an impending inquiry or investigation is a matter for determination by individual bureaus. The same is true as to when such notice should be given and how the parties shall be notified, i.e., letter, telephone, e-mail, etc. If a Bureau or Office has reason to believe that advance communication with the respondent or recipient would prejudice its investigation or result in a "cover up" or might endanger the complainant in any way, some other approach may be relied upon by the Bureau or Office.

G. Case Resolution Letters. If the complaint results in resolution, the Bureau or Office shall issue, in consultation with the Departmental Office for Equal Opportunity a complaint resolution letter. The case resolution letter should be concise. Additional information about complaint resolution letters and related documentation is described below.

1. If resolution is the result of ECR, the allegations and other factual information must be reflected in the case file. A copy of any agreement between the parties should be enclosed with the resolution letter. Such resolution shall provide the basis for a final agency decision which will be issued by the Departmental Office for Equal Opportunity. The resolution agreement and the final agency decision, as covered in this section, are one and the same.

2. For all other cases, the allegations, pertinent factual information, and analysis, as appropriate, must be reflected in the case file. The resolution letter must include sufficient information so that those receiving the document can understand how the determination was reached. Specifically, the complaint resolution letter should contain:

a. The basis for the complaint (race, color, national origin, sex, disability, and/or age);

b. A brief statement of the allegations over which the Department of the Interior has jurisdiction;

c. A brief statement of the Bureau's or Office's jurisdiction over the complaint; and

d. An explanation of the basis for the determination that the complaint has been resolved.

e. The letter may also include a summary of the pertinent legal standard and a brief statement and analysis of the ultimate facts.

H. Final Decisions. The Departmental Office for Equal Opportunity shall approve and issue all final agency decisions in cases where complaints are appealed to the Department. To this end, Bureaus and Offices will be responsible for negotiating complaint resolutions and preparing final agency decisions for the Director of the Departmental Office for Equal Opportunity's signature.

I. Intimidatory or Retaliatory Acts. It is the policy of the Department of the Interior to strictly prohibit any intimidatory or retaliatory acts against any individual for reasons of his or her participation in any civil rights proceeding associated with the Department of the Interior. To this effect, no person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege associated with the nondiscrimination complaint policies described in this directive.