Page images
[ocr errors]

(g) If within 50 days of CSA's rec- the complainant, assist in discussions ommendations for achieving voluntary with any party to the complaint and compliance the recommendations have may take other steps which may assist not been agreed to, or voluntary com- in the resolution of the complaint. pliance has not been secured, or the (ii) The aggrieved person has the preliminary findings have not been right to be accompanied, represented shown to be false the Associate Direc- and advised by a representative or attor for Human Rights shall make a for- torney of his/her choice. If the agmal written determination of non grieved person or the representative is compliance. At the same time the an employee of the agency, he/she shall grantee is notified of this determina be given a reasonable amount of worktion, it shall be forwarded to the As- ing time to prepare and present his/her sistant Attorney General for Civil request for a resolution of the comRights. This determination shall be plaint. These procedures shall be inmade no later than 14 days after the cluded in the grantee's personnel policonclusion of the 50-day negotiation cies and must be approved by the CSA period.

Office of Human Rights. (h) Where the Associate Director for (iii) The EOO shall have 21 days to Human Rights makes a formal deter- attempt to resolve the complaint bemination of noncompliance, the grant- fore CSA will begin processing the ee and the Assistant Attorney General complaint, if it has been filed with CSA shall be immediately advised in writ- or CSA otherwise assumes jurisdiction. ing of the determination and of the (iv) The EOO shall be given access fact that the grantee has an additional within the agency to any information 10 days in which to come into vol- necessary for resolving the complaint. untary compliance. If voluntary com (v) The EOO shall inform the compliance has not been achieved within plainant of the right to file a formal the 10 days, the Associate Director complaint with CSA and any other ap shall institute proceedings under sub- propriate Federal, state and local civil part E.

rights agencies. (1) All agreements to come into vol (vi) Nothing in this subpart should be untary compliance shall be in writing, construed to mean that a complainant shall set forth the specific steps the cannot file a complaint directly with grantee has agreed to take, and shall CSA at any time. be signed by the Associate Director for (3) Reports on Grantee Efforts at ResoHuman Rights or his/her designee and lution. (i) When the EOO has completed an official of the grantee with author attempts to resolve the complaint, a ity to legally bind the grantee.

report shall be prepared, setting out a

summary of the complaint, the pre$ 1010-30-3 Complaint investigations.

liminary inquiry and the disposition of (a) Local Complaint Procedures. (1) the complaint, indicating the basis for Submission of an Equal Opportunity Com- that disposition. plaint. Any person who believes he/she (ii) Copies of the report shall be given has encountered discrimination be- to the grantee's board, the complaincause of race, color, creed, sex, na- ant and to the Office of Human Rights. tional origin, age, political affiliation, A report shall be forwarded within 21 beliefs or handicap may first file a days of the filing of a complaint, recomplaint with the Equal Opportunity gardless of the disposition of the comOfficer (EOO) of the grantee not more plaint. than 180 calendar days after the act (b) CSA Complaint Procedures. (1) Filcomplained of occurred. A copy of the ing of Complaint with CSA. (i) If the recomplaint shall be immediately mailed sult of the procedures outlined in to the Associate Director for Human $1010.30-3(a) is unsatisfactory to the Rights or his/her designee by the Equal complainant, a formal complaint may Opportunity Officer

be filed within 10 calendar days of re(2) Resolution and Decision by the ceipt of the report of the EOO. Grantee. (1) The EOO shall make every (ii) A complainant may file a comeffort to resolve the complaint infor- plaint directly with CSA. However no mally. The EOO shall, if requested by complaint will be investigated if not received by CSA or the local EOO with be forwarded to the Assistant Attorney in 180 days of the date of the alleged General for Civil Rights. This deterdiscrimination unless the time for fil- mination shall be made no later than ing is extended, for good cause, by the 14 days after the conclusion of the 50 Associate Director for Human Rights day negotiation period. or his/her designee. If a complaint is (6) If the Associate Director for filed with the local ECO and CSA, CSA Human Rights makes a formal detershall not begin processing the com mination of noncompliance, the grantplaint until the 21 days set forth in ee and the Assistant Attorney General 81010.30-3(a)(2)(iii) have expired.

for Civil Rights shall be advised in (2) Within 25 days of receipt of a com writing that the determination has plaint, the Associate Director for been made and the grantee has an addiHuman Rights or his/her designee tional 10 days in which to come into shall:

voluntary compliance. If voluntary (i) Ascertain whether CSA has juris compliance has not been secured withdiction over the complaint;

in the 10-day period, the Director shall (ii) If it is determined that CSA has institute proceedings under subpart E. jurisdiction, notify the grantee in (7) All agreements to come into volvolved of the complaint and initiate untary compliance shall be in writing, the investigation; and

shall set forth the specific steps the (iii) If it is determined that CSA does grantee has agreed to take, and shall not have jurisdiction, notify the com be signed by the Associate Director for plainant of that fact in writing.

Human Rights and an official of the (3) The grantee shall be notified that grantee with authority to legally bind it may at any time prior to CSA's find

the grantee. ings make a documentary submission responding to, rebutting, or denying al 8 1010.30-4 Back-pay award. legations raised in the course of the

CSA grant funds may lawfully be complaint investigation.

used to cover back-pay awards result(4) Within 180 days of the initiation

ing from judgments or settlements of a complaint investigation, the Asso

arising from complaints of discriminaciate Director for Human Rights or his/

tion. However, CSA reserves the right her designee shall notify the grantee in

to determine whether to allow the prowriting of:

gram cost on a case-by-case basis after (i) the preliminary findings;

the expenditure of grant funds so as (ii) recommendations for achieving

not to influence the decision of the voluntary compliance, where appro

grantee to settle. Consideration will be priate; and

given to such factors as the grantee's (iii) the opportunity to engage in vol

conduct subject to the claim of disuntary compliance negotiations, where

crimination, and whether the comappropriate.

plainant's salary is funded by CSA. The Associate Director for Human Rights or his/her designee shall notify 8 1010.30-5 Complaints filed with State the Assistant Attorney General for and local commissions or the Equal Civil Rights at the same time he/she

Employment Opportunity Commisnotifies the grantee of any matter

sion. where recommendations for achieving When a complaint is filed with CSA voluntary compliance are made.

and with the Equal Employment Op(5) If within 50 days of CSA's rec- portunity Commission or another Fedommendation for achieving voluntary eral, state or local agency, the Associcompliance, the recommendations have ate Director for Human Rights or his/ not been agreed to, voluntary compli- her designee shall communicate with ance has not been secured, or the pre- the other agency and shall arrange to liminary findings have not been shown handle the complaint so as to avoid duto be false the Associate Director for plication and to secure an effective resHuman Rights shall make a formal olution of the complaint. It shall be written determination of noncompli- the general practice of CSA to invesance. At the same time the grantee is tigate a title VI complaint, unless notified of this determination, it shall there appears to be a compelling reason

to do otherwise. In cases where title VI States or any assurance or other concomplaints are not investigated, the tractual undertaking. compelling reason shall be set forth in (b) Noncompliance with subpart C. If writing to the complainant and Assist- an applicant fails or refuses to furnish ant Attorney General for Civil Rights. an assurance required under subpart C

or otherwise fails or refuses to comply 8 1010.30-6 Intimidation.

with a requirement imposed by or purNo grantee shall intimidate, retali- suant to that subpart, Federal finanate, threaten, coerce, or discriminate cial assistance may be refused in acagainst any individual for the purpose cordance with the procedures of this of interfering with any right or privi- subpart. lege secured by section 624 of the Eco- (c) The Agency may defer action on nomic Opportunity Act of 1964, as applications for assistance to the amended, 42 U.S.C. 2971c; title VI of the grantee or applicant during the pendCivil Rights Act of 1964, as amended, or ency of enforcement proceedings under this part, or because he/she has made a this part. complaint, testified, assisted, or participated in any manner in any inves 8 1010.40-2 Termination of or refusal tigation, proceeding or hearing under

to grant or to continue financial asthis part. The identity of complainants

sistance. shall be kept confidential except to the (a) No order suspending, terminating extent necessary to carry out the pur or refusing to grant or continue Fedposes of this part, including the con eral financial assistance for failure to duct of any preliminary inquiries comply with this part shall become efthereunder.

fective until:

(1) The Associate Director for Human 8 1010.30–7 Adjustment of time limits.

Rights or his/her designee has advised The time limits listed in $1010.30-3 the applicant or grantee of its failure (b)(2) through (b)(4) of this section to comply and has determined that shall be appropriately adjusted where compliance cannot be secured by volCSA requests another Federal agency untary means; to act on the complaint. CSA will mon- (2) There has been an express finding itor the progress of the matter through on the record, after opportunity for liaison with the other agency, Where hearing, of a failure by the applicant or the request to act does not result in grantee to comply with a requirement timely resolution of the matter, CSA imposed by or pursuant to this subpart; shall institute appropriate actions as (3) The action has been reviewed by required by this subpart.

the Director of CSA pursuant to

$1010.40-4 or he/she has had the opporSubpart E-Procedure for Effecting tunity to review and did not do so; and Compliance

(4) The expiration of 30 days after the

Director of CSA has filed with the com$ 1010.40-1 General.

mittee of the House and the committee (a) If there appears to be a failure or of the Senate having legislative juristhreatened failure to comply with this diction over the program involved a part, and if the noncompliance or full written report of the cirthreatened noncompliance cannot be cumstances and the grounds for such corrected by informal means, compli action. Any action to suspend or termianc e with this part may be effected by nate or to refuse to grant or to conthe suspension or termination of or re- tinue Federal financial assistance shall fusal to grant or to continue Federal fi be limited to the particular political nancial assistance or by any other entity, or part thereof, or other applimeans authorized by law. Such other cant or grantee as to whom such findmeans may include, but are not limited ing has been made and shall be limited to, a referral to the Department of Jus- in its effect to the particular program, tice with a recommendation that ap or part thereof, in which such nonpropriate proceedings be brought to en- compliance has been found. force any rights of the United States (b) Voluntary compliance will be deunder any applicable law of the United termined as not being available, if a

voluntary compliance agreement is not arrived at during the period for voluntary compliance negotiations set forth by this part.

(c) Section 1010.40-2(a)(4) does not apply to actions concerning discrimination on the basis of creed, political affiliation or belief or to employment discrimination on the basis of race or national origin not covered by title VI, $ 1010.10-3(a), and $ 1010.10-3(b).

8 1010.40-3 Hearings.

(a) Opportunity for Hearing. Whenever an opportunity for a hearing is required by this part, reasonable notice of such hearing shall be given by registered or certified mail, return receipt requested. This notice shall advise the applicant or grantee of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and either (1) fix a date less than 20 days after the date of such notice within which the applicant or grantee may request of the responsible CSA official that the matter be scheduled for hearing, or (2) advise the applicant or grantee that the matter in question has been set for hearing at a stated place and time. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or grantee may waive a hearing and submit written information and argument for the record. The failure of an applicant or grantee to request a hearing under this section or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of title VI and this subpart and consent to the making of a decision on the basis of such information as is available.

(b) Time and Place of Hearing. Hearings shall be at a time and place in Washington, DC fixed by the responsible CSA official or his/her designee unless he/she determines for cause that another location should be selected Hearings shall be held before a hearing officer who shall be referred to hereinafter as the hearing examiner.

(c) Right to Counsel. In all proceedings under this section, the applicant or grantee and CSA shall have the right to be represented by counsel.

(d) Procedures, Evidence and Record. (1The hearing, decision, and any review thereof shall be conducted in conformity with 5 U.S.C. 554 through 557 (sections 5-8 of the Administrative Procedure Act) and in accordance with such rules of procedure as are proper, relating to the relating to the conduct of the hearing, giving of notices subsequent to those provided for in $ 1010.40-2 of this part, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both CSA and the applicant or grantee shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the hearing examiner.

(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this section, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the hearing examiner. The hearing examiner may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence unless dispensed with by stipulation. All decisions shall be based upon the hearing record and written findings shall be


(e) Consolidated or Joint Hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under title VI, the Director may, by agreement with such other departments or agencies, provide for consolidated or joint hearings, and for the application to such hearings of rules of procedure consistent with this part. Final decisions in such cases, insofar as this subpart is concerned, shall be made in accordance with $ 1010.40 4.

§ 1010.40-4 Decisions and notices.

(a) Initial Decision. The hearing examiner shall make an initial decision. A

copy of such initial decision shall be mailed to the applicant or grantee. The applicant or grantee may within 30 days of the mailing of the initial decision file with the Director of CSA its exceptions to the initial decision. In the absence of exceptions, the Director of CSA may, on his/her own motion, within 45 days after the initial decision, serve on the applicant or grantee a notice that he/she will review the decision. Upon the filing of such exceptions or of such notice of review, the Director of CSA shall review the initial decision and issue his/her own decision thereon. In the absence of either exceptions or a notice of review, the initial decision shall constitute the final decision of CSA.

(b) Final Decision. Whenever the Director of CSA makes the initial decision pursuant to paragraph (c) of this section, or whenever the hearing examiner issues an initial decision, the ap plicant or grantee and complainant shall be given a copy of the decision. A copy of the final decision of the Director of CSA shall be given to the applicant or grantee and the complainant.

(c) Waived Hearings. Whenever a hearing is waived pursuant to 8 1010.40-3(a), a decision shall be made by the Director of CSA on the record and a copy of such decision shall be given to the ap plicant or grantee and to the complainant.

(d) Rulings Required. The decision of a hearing examiner shall set forth each of his/her findings, conclusions, or exceptions presented, and shall identify the requirement or requirements imposed by or pursuant to this part, title VI, or section 624 of the Economic Op portunity Act of 1964, as amended, that the applicant or grantee has failed to comply with.

(e) Content of Orders. The final decision may provide for suspension or termination or, or refusal to grant or continue Federal financial assistance, in whole or in part, under the program involved, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purpose of title VI and this part, including provisions designed to assure that no Federal financial assistance will thereafter be extended under such program to the applicant or grantee de

termined to have failed to comply with this part, unless and until it corrects its noncompliance and satisfies the Associate Director for Human Rights that it will fully comply with this part.

(f) Post-Termination Proceedings. (1) An applicant or grantee adversely affected by an order issued under paragraph (e) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and provides reasonable assurance that it will fully comply with this part.

(2) Any applicant or grantee adversely affected by an order issued pursuant to paragraph (e) of this section may at any time request the Associate Director for Human Rights to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or grantee has met the requirements of paragraph (1)(1) of this section. If the Associate Director for Human Rights determines that those requirements have been satisfied, he/she shall restore such eligibility.

(3) If the Associate Director for Human Rights denies any such request, the applicant or grantee may submit a written request for a hearing to the Director of CSA specifying why it believes such denial to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with such rules of procedure as are issued by the Director of CSA. The applicant or grantee will be restored to eligibility if it proves at a hearing that it satisfied the requirements of paragraph (f)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (e) of this section shall remain in effect.

81010.40-5 Judicial review.

Any action taken pursuant to title VI of the Civil Rights Act of 1964 is subject to judicial review as provided in section 603 of title VI.

« PreviousContinue »