Investigation Investigation ProceduresProcedures

for Ensuring for Ensuring Nondiscrimination in Nondiscrimination in Federally Assisted Federally Assisted ProgramsPrograms

A complaint asks a Federal agency to take action concerning an allegation of discrimination.

A complaint is NOT:

anonymous correspondence;

a courtesy copy of court pleadings or internal grievances;

newspaper articles;

inquiries seeking advice.

So just what is a So just what is a COMPLAINTCOMPLAINT??????

We must always……

Remember to DATE STAMP each piece of correspondence immediately upon receipt to protect Title VII and other rights

Refer a complaint to the correct Federal agency if you don’t have jurisdiction to investigate it

If you’ll keep it for investigation, determine whether it’s COMPLETE

What is a COMPLETE complaint?A complete complaint is: Signed Contains a way to contact the complainant Identifies the respondent Includes the basis for the alleged discrimination Contains sufficient information to let you understand

the alleged facts and actions that led the complainant to believe discrimination occurred and when they occurred.

Federal agencies are required to…Federal agencies are required to…

ProvideProvide appropriate appropriate assistanceassistance to to complainantscomplainants in in completing their completing their complaints, complaints, including persons including persons who are Limited who are Limited English Proficient English Proficient (LEP) and those (LEP) and those with disabilities.with disabilities.

You want to know what? So what’s a basis???

If the complainant:If the complainant:Is a Is a minorminor……

Is represented by Is represented by an an attorneyattorney……

Won’t signWon’t sign the the required required Consent Form, Consent Form, doesn’t provide doesn’t provide the information the information you requested, you requested, or won’t or won’t cooperate….cooperate….

You’ll need approval of the You’ll need approval of the parentparent or guardian or guardian

You’ll need to work with the You’ll need to work with the attorneyattorney

You may You may closeclose those those allegations that are allegations that are incomplete and for which incomplete and for which you must have a signed you must have a signed Consent Form to proceed Consent Form to proceed with an investigation. If with an investigation. If there are class allegations there are class allegations raised you can proceed on, raised you can proceed on, you should perhaps do so.you should perhaps do so.

Determine Jurisdiction and Identify Determine Jurisdiction and Identify IssuesIssues

► Does your agency have jurisdiction over Does your agency have jurisdiction over the the organizationorganization alleged to have alleged to have discriminated? discriminated?

If not, If not, referrefer the complaint to the the complaint to the appropriate agency. appropriate agency.

► Does your agency have jurisdiction over Does your agency have jurisdiction over the the issuesissues, or subject matter, raised by , or subject matter, raised by the complaint?the complaint? The issue is the practice or The issue is the practice or

service involved in the service involved in the alleged harm. For example: alleged harm. For example: denial of services, unequal denial of services, unequal services, retaliation for filing services, retaliation for filing a complaint.a complaint.

Confirm that you have JurisdictionConfirm that you have Jurisdiction

Does your agency provide Does your agency provide Federal financial assistance to Federal financial assistance to the respondent?the respondent?

Does your agency enforce a Does your agency enforce a statute that covers each basis?statute that covers each basis?

Does your agency cover the Does your agency cover the issues raised, issues raised, e.g.e.g., acceptance to , acceptance to or participation in a soccer class?or participation in a soccer class?

Is the complaint timely filed? If Is the complaint timely filed? If not, is a waiver appropriate?not, is a waiver appropriate?

This is This is George…..George…..

He sent you a letter that said:He sent you a letter that said:1)1) His wife was denied services His wife was denied services

at the local hospital because at the local hospital because of her national origin.of her national origin.

2)2) He called the local police for He called the local police for help but nobody could help but nobody could understand him – he speaks understand him – he speaks very little English.very little English.

3)3) His sister was fired because His sister was fired because of her sex and national of her sex and national origin by the state’s forest origin by the state’s forest service – she was a teacher service – she was a teacher in the training program for in the training program for student rangers.student rangers.

Determining TimelinessDetermining Timeliness Title VI complaints must Title VI complaints must

generally be filed within generally be filed within 180 180 daysdays of the last date of alleged of the last date of alleged discrimination.discrimination.

Use: the postmark date or the Use: the postmark date or the date it was received by a date it was received by a Federal, State or local agency.Federal, State or local agency.

If it alleges a If it alleges a continuing patterncontinuing pattern, , use the most recent date. use the most recent date.

If it alleges a discriminatory If it alleges a discriminatory policypolicy, it need not identify , it need not identify specific victims with dates of specific victims with dates of discrimination; also, a Consent discrimination; also, a Consent Form can not be required.Form can not be required.

Decision PointDecision Point: Is this complaint : Is this complaint appropriate for appropriate for

investigation/resolution, or should it investigation/resolution, or should it be closed?be closed?You You need not proceedneed not proceed

with an investigation with an investigation if:if:

The complaint, on its The complaint, on its face, has face, has no meritno merit..

The complaint is The complaint is mootmoot.. The same The same allegationsallegations

and issues have and issues have already beenalready been addressedaddressed in a recent in a recent investigation or by a investigation or by a previous Federal court previous Federal court decision.decision.

Approaches to Complaint Resolution: What to Consider

How complicated is this case? Who is alleged to have been harmed? Does it allege that the recipient maintains

a policy that has a discriminatory effect on a protected class?

Is this case a good candidate for early settlement negotiations (ADR) or is a thorough investigation, with an onsite visit, necessary to identify violations, victims, and appropriate relief?

Remember!!!Remember!!!

1)1) A Federal agency’s ultimate responsibility is to A Federal agency’s ultimate responsibility is to ensure nondiscriminationensure nondiscrimination in the programs to in the programs to which it provides Federal financial assistance.which it provides Federal financial assistance.

2)2) Even if an individual complaint is resolved, Even if an individual complaint is resolved, information concerning information concerning potential classpotential class discriminationdiscrimination ( (e.g.e.g., policies) should not be , policies) should not be overlooked. This can be addressed as part of overlooked. This can be addressed as part of the complaint or as a separate compliance the complaint or as a separate compliance review.review.

3)3) You should never enter into Alternative Dispute You should never enter into Alternative Dispute Resolution (ADR) before you are actually ready Resolution (ADR) before you are actually ready to do so or ignore relief that would be to do so or ignore relief that would be appropriate if you conducted a full investigation.appropriate if you conducted a full investigation.

Maria’s ComplaintMaria’s Complaint

You have just received a complaint from Maria, who You have just received a complaint from Maria, who is Hispanic. She alleges that she has been trying for is Hispanic. She alleges that she has been trying for the past three years to have a birthday party in the the past three years to have a birthday party in the picnic area of the OhSoLovely Park. She states that, picnic area of the OhSoLovely Park. She states that, when she called the City eight months ago to when she called the City eight months ago to reserve a spot for this past weekend, they asked reserve a spot for this past weekend, they asked where she lived. When she told them her address, where she lived. When she told them her address, she was told that the spots were all taken, just as in she was told that the spots were all taken, just as in the two previous years. Is Maria’s complaint the two previous years. Is Maria’s complaint timely? timely?

What if…?What if…?

Maria went to the park last weekend and found spaces Maria went to the park last weekend and found spaces available. She asked a white woman, who was having a available. She asked a white woman, who was having a party, how long ago she reserved the picnic space – the party, how long ago she reserved the picnic space – the woman said she called and reserved it two weeks ago. woman said she called and reserved it two weeks ago. Does this affect timeliness?Does this affect timeliness?

Planning for a Complaint Planning for a Complaint InvestigationInvestigation

Alas, good legally Alas, good legally sufficient sufficient complaint complaint investigations investigations (and compliance (and compliance reviews) don’t just reviews) don’t just happen by magic happen by magic – they require – they require serious thought serious thought and planning!!and planning!!

Standard of ProofStandard of Proof

The standard of proof in The standard of proof in administrative investigations under administrative investigations under Title VI and similar nondiscrimination Title VI and similar nondiscrimination statutes is: statutes is:

preponderance of the preponderance of the evidenceevidence..

Investigative PlanInvestigative Plan

1)1) Jurisdictional informationJurisdictional information2)2) IssuesIssues and and basesbases3)3) Applicable Applicable legal theorieslegal theories (intent, effects); (intent, effects);

note that retaliation is always intentnote that retaliation is always intent4)4) ConclusionsConclusions drawn from evidence already drawn from evidence already

gatheredgathered5)5) Evidence neededEvidence needed and where/from whom and where/from whom

to get itto get it6)6) Likely or enunciated Likely or enunciated recipient defensesrecipient defenses

and the evidence needed to test their and the evidence needed to test their validityvalidity

7)7) SequenceSequence of investigation activities and of investigation activities and timeframes, including onsite visits, etc.timeframes, including onsite visits, etc.

Legal TheoriesLegal Theories

Intent/disparate treatmentIntent/disparate treatment

Similarly situated persons are treated differently Similarly situated persons are treated differently that others based, that others based, at least in partat least in part, on their race, , on their race, sex, etc.sex, etc.

Can involve an Can involve an individualindividual victim victim oror a a classclass of of victims (or both), one instance or pattern of victims (or both), one instance or pattern of discriminatory treatment.discriminatory treatment.

Intent can be based upon direct evidence or can Intent can be based upon direct evidence or can be inferred based on circumstantial evidence.be inferred based on circumstantial evidence.

RetaliationRetaliation is always investigated using the intent is always investigated using the intent theory.theory.

Legal Legal TheoriesTheories, cont’d., cont’d.• Effects/disparate impactEffects/disparate impact

Focuses on the Focuses on the consequencesconsequences of the recipient’s of the recipient’s practices and does not require proof of practices and does not require proof of discriminatory intent.discriminatory intent.The recipient uses a The recipient uses a neutral policyneutral policy or practice that or practice that has the has the effecteffect of disproportionately excluding or of disproportionately excluding or adversely affecting protected individuals adversely affecting protected individuals andand the the recipient does not have a “substantial legitimate recipient does not have a “substantial legitimate justification” for its practice. LEP complaints are justification” for its practice. LEP complaints are generally investigated using this legal theory. generally investigated using this legal theory. The Title VI statute prohibits intentional The Title VI statute prohibits intentional discrimination, while the implementing discrimination, while the implementing regulations issued by federal agencies also regulations issued by federal agencies also include “effects.”include “effects.”

Direct EvidenceDirect Evidence Evidence of the actual, Evidence of the actual,

subjective intentsubjective intent of the of the persons charged with persons charged with discrimination.discrimination.

Comes from:Comes from: Statements during Statements during

interviews or reported by interviews or reported by witnesses (“women don’t witnesses (“women don’t really like those kinds of really like those kinds of jobs”) jobs”)

Board or hearing minutes, Board or hearing minutes, administrative records, administrative records, complaint files, speechescomplaint files, speeches

Circumstantial Evidence

Constitutes the bulk of findings in intent cases

Includes facts from which one may infer intent/discriminatory motive Comparative evidence, identifies

different treatment of similarly situated individuals or groups

Statistical evidence generalizes about the experience of a class of people, but can’t be used alone to prove an individual case

Recipient DefensesRecipient Defenses

The Burden of Proof is on YOU (not The Burden of Proof is on YOU (not the complainant) to establish a the complainant) to establish a prima facieprima facie (“on its face”) case (“on its face”) case through the preponderance of the through the preponderance of the evidence. evidence.

Once you have done so, the burden Once you have done so, the burden shifts to the recipient to provide a shifts to the recipient to provide a reasonable, nondiscriminatory reasonable, nondiscriminatory justificationjustification for its actions. for its actions.

The burden then shifts back to YOU to The burden then shifts back to YOU to show that the justification is a show that the justification is a pretextpretext, or excuse, to disguise , or excuse, to disguise discrimination.discrimination.

Requesting Data from the Recipient Requesting Data from the Recipient You can considerYou can consider::

Sending a comprehensive Sending a comprehensive data requestdata request;;Requesting a Requesting a position statementposition statement with with

supporting documentation;supporting documentation;Offering settlement discussions (Offering settlement discussions (ADRADR) and/or ) and/or

technical assistance to bring the recipient into technical assistance to bring the recipient into compliance and to resolve the complaint; orcompliance and to resolve the complaint; or

A combination of the above.A combination of the above. ButBut ……

Don’t resolve a complaint if you don’t have Don’t resolve a complaint if you don’t have enough information to know what enough information to know what reliefrelief is is appropriate, andappropriate, and

Don’t resolve an individual complaint and Don’t resolve an individual complaint and overlook existing overlook existing discriminatory policiesdiscriminatory policies and and otherother victimsvictims..

Remember our complaint from Maria?Remember our complaint from Maria?

What do you expect the Recipient What do you expect the Recipient will say in its defense?will say in its defense?

What legal theory or theories What legal theory or theories would you use to investigate this would you use to investigate this complaint?complaint?

What information would you want What information would you want to request from the Recipient?to request from the Recipient?

Does this information test the Does this information test the Recipient’s anticipated defenses?Recipient’s anticipated defenses?

Why Go Onsite????Why Go Onsite????

Personal contact with complainant(s) and recipient

Examine documents Interview witnesses More accurate

impression of setting and recipient “in action”

Should you go onsite to investigate Maria’s complaint? Why or why not? Interview Recipient staff to

determine credibility. Review records, rather than letting

the Recipient “select” them for you.

Interview other people who tried to use the picnic areas at the OhSoLovely Park to find out what they were asked/told.

Interview people who were allowed to reserve spaces at the park to see what they were asked.

Before going Onsite Request a liaison be designated by the recipient. Be sure you have reviewed as many of the written

policies/procedures/documents as possible Schedule interviews in advance and in a sequence

that will let you “test” information provided earlier Interview people first who have first-hand

knowledge (who were directly involved) Interview people with second-hand knowledge

later, if you determine you need to Know what you want to accomplish in each

interview prior to conducting it

During the Onsite… Properly document all interviews Properly label all documents

obtained Update IP to identify additional

evidence/testimony needed Recipient’s attorney may be

present during interviews of management employees only

Advise recipient during exit interview that investigation is not complete

Provide technical assistance and/or discuss settlement with the recipient, but only if you are authorized to do so

Investigative ReportInvestigative Report An investigative report (IR):An investigative report (IR):

Sets forth all pertinent factsSets forth all pertinent facts Analyzes those facts in light of the Analyzes those facts in light of the

complainant’s allegationscomplainant’s allegations Recommends a determination of the validity of Recommends a determination of the validity of

the allegations based on that analysisthe allegations based on that analysis An IR should be prepared for all cases in which:An IR should be prepared for all cases in which:

a letter of findings (LOF) will not stand on its a letter of findings (LOF) will not stand on its own;own;

complex or class issues/relief are involved;complex or class issues/relief are involved; rebuttal evidence from either party must be rebuttal evidence from either party must be

thoroughly addressed to support the findings; thoroughly addressed to support the findings; and/orand/or

a violation LOF will be issued.a violation LOF will be issued.

Letters of Findings and Letters of Findings and ResolutionsResolutions

To complete a complaint To complete a complaint investigation or compliance investigation or compliance review, you may use one of the review, you may use one of the following:following:

1)1) Letter of ResolutionLetter of Resolution, , which can include a formal which can include a formal settlement agreement or set settlement agreement or set out corrective action the out corrective action the recipient has taken;recipient has taken;

2) 2) No Violation LOFNo Violation LOF;;

3) 3) Letter of ConcernsLetter of Concerns; or; or

4) 4) Violation LOFViolation LOF, which should , which should include a settlement proposal.include a settlement proposal.

Settlement /Compliance Agreements Settlement /Compliance Agreements Should…Should…

Address each potential violation (pre-LOF) or each Address each potential violation (pre-LOF) or each identified violation (post-violation LOF)identified violation (post-violation LOF)

Specify Specify remedial reliefremedial relief and and corrective actioncorrective action to be to be taken to bring the recipient into compliance:taken to bring the recipient into compliance: specific specific stepssteps to be taken, to be taken, e.ge.g., new policies, LEP ., new policies, LEP

Plan, complaint procedures, training of management Plan, complaint procedures, training of management and staff, notification to the public of the changesand staff, notification to the public of the changes

timetabletimetable for implementing each step of the for implementing each step of the agreementagreement

description and timetable for submission of description and timetable for submission of monitoringmonitoring documentation to show that the steps documentation to show that the steps have been takenhave been taken

Provide an Provide an assuranceassurance that discrimination will not that discrimination will not reoccurreoccur

Provide for Provide for enforcementenforcement by the Federal agency in by the Federal agency in Federal court and/or for conditioning the drawdown of Federal court and/or for conditioning the drawdown of future funds for failure to comply with the agreementfuture funds for failure to comply with the agreement

Oh thank heavens…..

It’s the END!!!