ML20215K504
| ML20215K504 | |
| Person / Time | |
|---|---|
| Issue date: | 11/08/1978 |
| From: | Tucker E NRC |
| To: | NRC |
| Shared Package | |
| ML20215K297 | List:
|
| References | |
| FOIA-86-85, FOIA-86-A-29 NUDOCS 8610280195 | |
| Download: ML20215K504 (8) | |
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MOV 8 1978 MEMORANDUM FOR:
EE0 COUNSELORS EE0 INVESTIGATORS FROM:
ucker, Director Office of EE0
SUBJECT:
RIGHTS OF THE ADO IN COMPLAINTS OF DISCRIMINATION It has come to the attention of the Office of EE0 that persons named as alleged discriminating officials in EE0 complaints of discrimination have not been advised of their rights in the administration of the complaint process.
Until earlier this year, there was no clear guidance from the CSC as to the rights of the ADO.
In March of 1978, the CSC issued FPM Letter 713-42, Participation in the Discrimination Complaint Process of Persons Named as " Alleged Discriminating Officials," out-ling the rights of the ADO.
For your infonnation, following is a sunnary of those rights as they pertain to your involvement in the complaint process:
1.
Counseling Stage The ADO must be advised that he or she has been named or identified as an AD% and has a right to have a representative present_during the interview to provice aavice on now to respond to any questions une counselor may ask. Therefore, in your initial contact, you must (a) advise the ADO that he or she has been named; and (2) inform him or her of the nature of any accusations made.
In doing so, you should be careful not to reveal the identity of the aggrieved individual when the individual has not authorized you to do so.
2.
Investigative Sta,ge, An A00 must be given the opportunity to see the complainant's -
affidavit, the counselor's report, the complaint and any other affidavits in which the ADO is named for the purpose of responding to any and all allegations made against him.
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He must be given the opportunity to state the facts as he or she sees them, in affidaytt form.
Should the ADO want to suggest witnesses, he or she should be given that opportunity; however, he must be infomed that only those witnesses whose testimony is considered necessary to the investigation will be interviewed, and that only the testimony detemined to be relevant and necessary will be obtained in afftdavit fom.
He should be infomed of the progress of the investigation in approximately the same manner as the complainant.
The ADO may be told the tems under which the agency will attempt to resolve the complatnt informally; however, he or she must be informed of the tems of an agreement if an informal adjustment is agreed upon.
We have enclosed a copy of FPM Lettar 713-42 for your information and distribution to A00s.
Should you have any questions concerning this information, please contact me.
Edward E. Tucker, Director Office of Equal Employment Opportunity
Enclosure:
As stated cc w/ enclosure:
L. V. Gossick, EDO EE0 Officers G. Abston, OIA l
R. Fortuna, OIA
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Advsnce sdition 2/27/78
0 FPM Letter 713-42 mted Stain Civil Servue Commwon 7
ederal Personnel Manual System Pubir6hed in advance
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d ampo'aica * **
FPM Letter 713 42 chapter 713 p
SUS lECT: Participation in the Discri.mination complaint Process '
am m massono of Persons Named As " Alleged Discriminating Officials" Washington, D. C. 20415 r,
March 13, 1978 l'ieads of Departments and lodependent Estabhshments:
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Introduction 1
1.
De purpose of this letter is to set forth general guidsnce concerning the i
I participation, in the discrimination casoplaint process outlined in part 713 of the Cocumission's regulations, of persons named by complainants as " alleged dis-criminatics officials." h is latter supersedes all.uritten and. oral instructions dich in the past have served as guidance sa this matter.
2.
De primary focus of previous discussions and guidance related to this matter has been on creating and maintaining a positive environment for the use of the complaint from the process by aggrieved individuals, and on insulating complainants (and witnesses) possibility of reprisal or harassment based on their participation in the complaint ne participation of supervisors and others who may have been named by
- process, l
complainants as " alleged discriminating of ficials" has been essentially limited to l
their serving as witnesses who provide sworn testimony regarding complaints and the situations from which they arise. In practice, agencies have on some occasions so imited this participation that alleged discri.minating officials have sometimes
'en required to furnish testimony without having even been informed that cornplainants ve implicated them personally in allegedly discriminatory acts, or without knowing e exact nature of charges which have been made against them.
It la vital, of course, that aggrieved employees and applicants continue to feel r
3.free to avail themselves of the full due process afforded by the discrimination complaint procedures without fear of reprisal for having done so. However, the assurance of full due process to complainants should not and need not be accomplished at the expense of the rights of those individuals against whom accusations of discrimination have been sade. It has become clear that, fa, the, interest of fair _negs, persons named as alleged diacriminating officials should have more clearly defined rights and.a more significant rnia in the complaint process and that this can be accomplished without, undermining the integrity of the complaint process.
Dere is in fact,no regulatory requirement that a complaint of discrimination include 4.identification of an " alleged discriminating official." Moreover, a complainant cannot always reasonably be expected to know which individual, if any, might have been re-aponsible for the occurrence.of a specific action or the preesutgation of a particular policy. Complainants should not, therefore, be given the impression that they are required to identify 'l alleged discriminating officials" in complaints of discrimination.
l It is suggested that spaces included for this purpose on complaint forms (including forms reproduced fro'n CSC Torm 894) be obliterated on existing forms and omitted free future printings. Complainants who believe particular individuals have dis-I cris:inated against ther: may, of course, identify those individuals in their complaints if they wish to do so; and this aspect will in any case be explored by investigators g
in these complaints which are accepted for processing.
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I quiries:
Of fice of Federal Equal Employment Opportunity, Discrimination'Com;laints and Enforcement Section, (202) 632-7642 SC Code:
713, Equal Employment Opportunity g c / S d./.'rw 7,
Distribution:
FIM (advance edition limited)
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v FPM Lotter 713 42 (2)
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- 5.
1he principal purpose of the discrirsination complaint procedure is to determine
- whether in fact discrimination has occurred, so that remedial action can be taken
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as appropriate. Investigations and hearings in discrimination complaint cases are essentially fact-finding processes which have as their purpose the development a
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and recording of evidence on which an informed and impartial decision can be based.
It is not the purpose of the complaint procedure to indict or try individual
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officials; complaints are lodged "against" agencies, and not "againat" individuals.
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6.
Nevertheless, agencies may properly decide to take disciplinary action against officials who are shown by the evidence compiled in connection with a discrimination e
complaint to have in fact been culpable of discrimination or other in. proper actions.
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Crievance or appeal channels are, of course, available to officials who wish to contest st.ch action.
7.
There are many cases, however, in which disciplinary action is determined to'be unwarranted because the evidence does not support the allegations made against individuals, or in which the evidence clearly establishes that a person alleged to have discriminated against a. complainant has in fact not been culpable. In either of these situations, unless the " alleged discriminating official" has had an j
opportunity to know precisely what has been alleged, and has been afforded a full and fair opportunity to present evidence, the official may justifiably feel unfairly burdened with the stigma often associated with having been named as an alleged discriminator. Under these circumstances, moreover, an alleged discriminating official might understandably be. concerned about possible adverse effects on his or her career.
t 8.
In the interest of fairness to all persons involved in the processing of dis-J mrimination comp 1aints, anToF assuring hat theVid_ence c.oam,Lig[ at various stages
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_in the complaint process is complete In terms of presenting all relevant piews on.,'
contentious mattars, agencTes should assure that persons named as " alleged dis- -
.criminating officials" are adequately Talormed,of any charges _esde_.againJ1JAeg, and t
5 are afforded a. full and fair"foppoi6ini{to, respond to much ^="=*-
I counseling i
9.
When, at the informal counseling stage, an aggrieved employee or applicant has 5
named or otharvise identified an individual as being responsible for an alleged act 7
of discrimination,' the EEO counselor must solicit the views of that " alleged dia-k criminating official" unless the counselor otherwise obtains and provides information which exonerates the official to the clear satisfaction of the aggrieved person.
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preliminary to the counselor's interview with the official, the latter must be F
, advised that he or she has been named or identified by a potential complainant, must be informed of the nature of any accusations made, and must be advised of the h
right to have a representative present during the interview to provide advice on how to respond to any questions the counselor may ask. The EE0 counselor must be careful, however, not to reveal the identity of the aggrieved individual when the individual has not authorized the EE0 counselor to do so.
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Investination An alleged di,scriminating officiaf, whether identified _,ht the time a formal, l
10.
spaplaint is filed or.during the course of the investigation, must be given an opportunity to respo,nd to aqy and all allegations made against him or her.
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FPM Letter 713-42 (3) this respect, the investigator should interview and receive information from the alleged discriminating official as many times as may be t.ecessary to assure that the official has an opportunity to respond to all of the allegations.
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- 11. De -
"i ostisial uset be given fell ppportunity to state facts as he imir 1sTe sWthem?te'ht, form, for*. inclusion in. the invas'ti-tive111%
4ffisial gheeld.also be given an opportunity.to,sesseet vita 34ees p might be
.tedfor1.cerroboratlagtas
'M ogid.)e Sa $ ed (as should complainants under slmilar ciretsnstances) t oaly.those witnesses wtuee testiassey is considered necessary to the favestig will be interviewed,%nd t the only testimony that will be obtained in affidavit for.s and included in the tigative file is that detensined to.be relevant and necessary.
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- 12. De egancy, off4" int who is overseeina the roce the equal employment opportunity officer)
.=== ma a g d di=cei-i== riae gal informed of the spagges,s of the investigation in approximately the age magper in wEich thT cpan1=i==at is kept informed. When the investigation is com-pIeted, the EE0 of ficer should review the investigative file to determine whether or not it contains information relevant to all of the allegations. If the EE0 officer finds that there are allegations against the alleged discriminating official in the investigative report on which no opportunity was given the official to provide his or her version of the.' acts, then the EE0 officer should require such additional investigation as may be needed for that purpose.
Informal Adjustment and Proposed Disposition
- 13. na EE0 officer or other agency official responsible for attempting informal adjustment of a complaint may, at his or her discretion, consult with the alleged discriminating official regarding the terms under which the agency will attempt to resolve the cociplaint informally. If an informal adjustment is agreed upon, the agency must inform the alleged discriminating official of the terms of the agreemen t.
If no agreement is ranched, a copy of the agency's proposed dis-position of the complaint must be provided to the alleged discriminating official.
Hearing 14 ne clieged discriminating official would normally be expected to have personal knowledge of facts bearing on the complaint, and his or her testimony at a hearing, if one is conducted, would ordinarily be considered necessery by the parties to the complaint. However, if the official is not called to testify by either the complainant or the agency, the complaints examiner assigned to conduct the hearing in the case must assure that the alleged discriminating official is informed of the hearing and given an opportunity to testify if he or she wishes to do so.
ne examiner must make sure that the alleged discriminating official has an opportunity to coevnent for the record regarding any new allegations of wrongdoing on the of f teial's part which are brought by other witnesses during the course of the hearing.
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- 15. ne alleged discriminating of ficial has a right to have a represent;ative present to provide advice at any time the of ficial is asked for testimony during 4
the complaint process, including the investigative and hearing stages. However, e ';
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the representative's role at a hearing is limited to advising the alleged dis-(
criminating official on how to respond to questions, ne presence of the alleged discriminating of ficial and his or her representative at a hearing will be limited t
to the time the official appears as a witness. D e representative does not have l
the right to examine and cross-examine witnesses. 'Only the complaints examiner
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and the representatives of the complainant and the agency may examine and cross-d, examine witnesses.
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Final Decision De Lency must provide the alleged discriminatina of ficist a coor of the maancy's p
16.
s, fi==1 d=eision on the camp 1aint.
l a,,M,,the clear effect of the agency decentoo is to dent or reieet the 6
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complainant's alleastions saatnet the all==ad d'=re4=*=ae4== af f te t =1.
the latter should not be given access en thm
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- b. g the agency decision, either directly throuah a findina of r
discristastion or ametractAy tarM a findt=a of arror. concludes tenlies Amoropriety on the nan. af the a11 mend dieretminnefne ne y
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.a1Licial, the entire -
.-laint fCo--with===as and identierias iafarmation deleted where appropriate as in paragraph 10 above--
==e be made available for his or hae -.h If the. agency takes or proposes adverse action SE.,other dinein?inary
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action aastnat Ene alleged discriminettne offietal based on evidence c.
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developed in connection with the processina of the coenlaint. the -
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entire compIsint rite--witnout deletions--must be made available 6
for his or her review. For this purpose, " disciplinary action" l
includes any action (e.g., a requirement that the official undergo equal employment opportunity training) which would constitute censure of the alleged discriminating official's conduct or competence.
Appeals to the Cocm:ission i
- 17. If a complainant appeals an agency decision to the Civil Service Cocmission's l'
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Appeals Review Board, the agency must provide a copy of the Board's decision to the alleged discriminating official. If the decision of the Board reverses or modifies t
I that of the agency in such a manner as to af fect the alleged discriminating of ficial, the agency should apply the instructions outlined in paragraph 16 above as appropriate, r
General Guidance I
18 nese instructions contemplate increased access for alleged discrisinating officials to information contained in complaint files, which are subject to the l
provisions of the Privacy Act (5 U.S.C. I 552a).
Disclosures to alleged dis-criminating officials will be made consistent with the foregoing instructions as a routine use. If alleged discriminating officials make requests pursuant to the t
Freedom of Information Act (5 U.S.C. 8 552) for information contained in complaint files, disclosures also will be made, consistent with the foregoing instructions.
r To the extent that disclosures of information contained in complaint files would L
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FPM Letter 713-42 (5) j act be consistent with the foregoint Onstructions, disclosures should be refused under exemptions (b)(5), (b)(6) and (b)(7)(A) and (C) of the Freedom of Information Act. 5 U.S.C. 8 552 (b)(5), (b)(6), (b)(7)(A), (C).
4
- 19. Complainants, of course, receive copies of the investigative file, tho' hearing transcript, etc. While statements included in complaint files are obtained without a pledge of confidence (5 CTR 713.216(a)), those statements, as well as other 4
documents in the files, frequently include information of a personal and sensitive nature. All persons given access to this information, including complainants and alleged discriminating officials, should be advised of the need to exercise dis-cretton with regard to its use. In this regard, the regulatory prohibition (at 5 CFR 735.206) against use of certain official information for private purposes would have general applicability. In addition, privacy Act restrictions assinet 1mproper disclosure are binding on agency employees.
20.
It is essential to the integrity of the complaint system that complainants, their representatives, and witnesses be free from restraint, interference, coercion, discrimination or reprisal at any stage of the complaint process. In view of t ae broadened role for alleged discriminating officials provided for in these instructions, it is Luperative that agencies ensure, through training and other means of communi-cation, that supervisory and management personnel are knowledgeable about the regulatory provisions in this regard (at 5 CFR 713.261), and understand the need to i
observe the spirit as well as the letter of the regulations.
21.
The procedures outlined above relate specifically to the processing of individual complaints of discrimination under Sections 713.211 through 713.222 of the Commission's regulations. The principles reflected in these procedures, however, i.e., assuring that persons named as alleged discriminating officials are informed regarding any allegations made against them, are given a full and fair opportunity to respond for the record and are kept informed as to the progress and outcome of cases, should j
also be guiding in connection with the processing of class complaints of discrimination under Sections 713.601 through 713.614 of the regulations.
Raymond Jacobson Executive Director E
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