(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the respondent of the filing of the
complaint, of the allegations contained in the complaint, and of the
substance of the evidence supporting the complaint (redacted to protect
the identity of any confidential informants). A copy of the notice to
the respondent will also be provided to the appropriate office of the
federal agency charged with the administration of the general
provisions of the statute(s) under which the complaint is filed.
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section the respondent
may submit to the Assistant Secretary a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent may request a meeting with the Assistant Secretary
to present its position.
(c) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with 29
CFR part 70.
(d) Investigation under the six environmental statutes. In addition
to the investigative procedures set forth in Sec. 24.104(a), (b), and
(c), this paragraph sets forth the procedures applicable to
investigations under the Safe Drinking Water Act; Federal Water
Pollution Control Act; Toxic Substances Control Act; Solid Waste
Disposal Act; Clean Air Act; and Comprehensive Environmental Response,
Compensation and Liability Act.
(1) A complaint of alleged violation will be dismissed unless the
complainant has made a prima facie showing that protected activity was
a motivating factor in the unfavorable personnel action alleged in the
complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity;
(ii) The respondent knew or suspected, actually or constructively,
that the employee engaged in the protected activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a motivating factor in the unfavorable
action.
(3) The complainant will be considered to have met the required
burden if the complaint on its face, supplemented as appropriate
through interviews of the complainant, alleges the existence of facts
and either direct or circumstantial evidence to meet the required
showing, i.e., to give rise to an inference that the respondent knew or
suspected that the employee engaged in protected activity and that the
protected activity was a motivating factor in the unfavorable personnel
action. The burden may be satisfied, for example, if the complainant
shows that the adverse personnel action took place shortly after the
protected activity, giving rise to the inference that it was a
motivating factor in the adverse action.
(4) The complaint will be dismissed if the respondent demonstrates
by a preponderance of the evidence that it would have taken the same
unfavorable personnel action in the absence of the complainant's
protected activity.
(e) Investigation under the Energy Reorganization Act. In addition
to the investigative procedures set forth in Sec. 24.104(a), (b), and
(c), this paragraph sets forth special procedures applicable
only to investigations under the Energy Reorganization Act.
(1) A complaint of alleged violation will be dismissed unless the
complainant has made a prima facie showing that protected activity was
a contributing factor in the unfavorable personnel action alleged in
the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity;
(ii) The respondent knew or suspected, actually or constructively,
that the employee engaged in the protected activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the unfavorable
action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the unfavorable personnel action. The
burden may be satisfied, for example, if the complainant shows that the
adverse personnel action took place shortly after the protected
activity, giving rise to the inference that it was a contributing
factor in the adverse action. If the required showing has not been
made, the complainant will be so advised and the investigation will not
commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent, pursuant to the procedures provided in this paragraph,
demonstrates by clear and convincing evidence that it would have taken
the same unfavorable personnel action in the absence of the
complainant's protected behavior or conduct.
(5) If the respondent fails to make a timely response or fails to
demonstrate by clear and convincing evidence that it would have taken
the same unfavorable personnel action in the absence of the behavior
protected by the Act, the Assistant Secretary will proceed with the
investigation. The investigation will proceed whenever it is necessary
or appropriate to confirm or verify the information provided by the
respondent.
