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Civil Rights

Procedures Manual For Processing External Complaints of Discrimination

APPENDIX D
TITLE VI COMPLAINT
ACKNOWLEGEMENT LETTER TO COMPLAINANT
(if time is needed to review the complaint)

In Reply To: xxx-xx
DOT #xxxx-xxxx

Name of Complainant
Title, if applicable
Address
City, State, Zip Code

Dear Name of complainant:

This acknowledges receipt of your complaint of discrimination, dated _____________, against the Name of Respondent. Your complaint was received in the Federal Highway Administration (FHWA) Office of Civil Rights on _______________.

Your complaint has been assigned to me for review to determine whether this office will investigate the allegations you have raised under Title VI of the Civil Rights Act of 1964. You will be notified in writing at a later date regarding whether your complaint will be accepted for investigation.

Please be advised that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because they have either taken action or participated in an action to secure rights protected by the civil rights laws we enforce. Any individual alleging such harassment or intimidation may file a complaint with the FHWA. We would investigate such a complaint if the situation warrants. Any questions or concerns you have regarding the investigative process and your rights can be discussed with the investigator.

Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. Therefore, enclosed for your information are the "Complainant Consent/Release Form" and the "Notice of Investigatory Uses of Personal Information" fact sheet. Please sign and date the "Complainant Consent/Release Form" and return it to this office in the enclosed self-addressed envelope. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information, which if released, could constitute an unwarranted invasion of privacy.

If you have any questions regarding the FHWA's investigative process, please feel free to contact me at _______________.

Sincerely yours,

Name of Investigator
Title

2 Enclosures

COMPLAINANT CONSENT/RELEASE FORM
(Title VI Complaint)

Your Name:

Address:

Complaint number(s): (if known)

Please read the information below, check the appropriate box, and sign this form.

I have read the Notice of Investigatory Uses of Personal Information by the Federal Highway Administration (FHWA). As a complainant, I understand that in the course of an investigation it may become necessary for FHWA to reveal my identity to persons at the organization or institution under investigation. I am also aware of the obligations of FHWA to honor requests under the Freedom of Information Act. I understand that it may be necessary for FHWA to disclose information, including personally identifying details, which it has gathered as a part of its investigation of my complaint. In addition, I understand that as a complainant I am protected by FHWA's regulations from intimidation or retaliation for having taken action or participated in action to secure rights protected by nondiscrimination statutes enforced by FHWA.

CONSENT/RELEASE

/   / CONSENT – I have read and understand the above information and authorize FHWA to reveal my identity to persons at the organization or institution under investigation. I hereby authorize the FHWA to receive material and information about me pertinent to the investigation of my complaint. I understand that the material and information will be used for authorized civil rights compliance and enforcement activities. I further understand that I am not required to authorize this release, and do so voluntarily.

/   / CONSENT – The respondent named in this complaint may receive a copy of my complaint upon request.

/   / CONSENT DENIED – I have read and understand the above information and do not want FHWA to reveal my identity to the organization or institution under investigation, or to review, receive copies of, or discuss material and information about me, pertinent to the investigation of my complaint. I understand this is likely to impede the investigation of my complaint and may result in the closure of the investigation.

_____________________________________
SIGNATURE
_______________________
DATE
_____________________________________
Respondent
_______________________
Date

Enclosure 1

NOTICE ABOUT INVESTIGATORY
USES OF PERSONAL INFORMANTION
(Title VI Complaints)

NOTICE OF COMPLAINANT/INTERVIEWEE RIGHTS AND PRIVILEGES

Complainants and individuals who cooperate in an investigation, proceeding or hearing conducted by Federal Highway Administration (FHWA) are afforded certain rights and protections. This brief description will provide you with an overview of these rights and protections.

— A respondent may not force its employees to be represented by the respondent's counsel nor may it intimidate, threaten, coerce or discriminate against any employee who refuses to reveal to the respondent the content of an interview. An employee does, however, have the right to representation during an interview with FHWA. The representative may be the respondent's counsel, the employee's private counsel, or anyone else the interviewee authorizes to be present.

— The laws and regulations which govern FHWA's compliance and enforcement authority provide that no respondent or other person shall intimidate, threaten, coerce or discriminate against any individual because he/she has made a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted under FHWA's jurisdiction, or has asserted rights protected by statutes DOJ enforces.

— Information obtained from the complainant or other individuals which is maintained in FHWA's investigative files may be exempt from disclosure under the Privacy Act or under the Freedom of Information Act (FOIA) if release of such information would constitute an unwarranted invasion of personal privacy.

There are two laws governing personal information submitted to any Federal agency, including the FHWA: The Privacy Act of 1974 (5 U.S.C. 552a), and the FOIA (5 U.S.C. 552).

THE PRIVACY ACT protects individuals from misuse of personal information held by the Federal Government. The law applies to records that are kept and that can be located by the individual's name or social security number or other personal identification system. Persons who submit information to the government should know that:

— FHWA is required to investigate complaints of discrimination on the basis of race, color, national origin, sex, disability, age, and, in some instances, religion against respondents of Federal financial assistance. FHWA also is authorized to conduct reviews of federally funded respondents to assess their compliance with civil rights laws.

Enclosure 2

— Information that FHWA collects is analyzed by authorized personnel within the agency. This information may include personnel records or other personal information. FHWA staff may need to reveal certain information to persons outside the agency in the course of verifying facts or gathering new facts to develop a basis for making a civil rights compliance determination. Such details could include the physical condition or age of a complainant. FHWA also may be required to reveal certain information to any individual who requests it under the provisions of the FOIA. (See below)

— Personal information will be used only for the specific purpose for which it was submitted, that is, for authorized civil rights compliance and enforcement activities. Except in the instances defined in FHWA's regulation at 28 C.F.R. Part 16, FHWA will not release the information to any other agency or individual unless the person who supplied the information submits a written consent. One of these exceptions is when release is required under the FOIA. (See below)

— No law requires a complainant to give personal information to FHWA, and no sanctions will be imposed on complainants or other individuals who deny FHWA's request. However, if FHWA fails to obtain information needed to investigate allegations of discrimination, it may be necessary to close the investigation.

— The Privacy Act permits certain types of systems of records to be exempt from some of its requirements, including the access provisions. It is the policy of FHWA to exercise authority to exempt systems of records only in compelling cases. FHWA may deny a complainant access to the files compiled during the agency investigation of his or her civil rights complaint against a respondent of Federal financial assistance. Complaint files are exempt in order to aid negotiations between respondents and FHWA in resolving civil rights issues and to encourage respondents to furnish information essential to the investigation.

— FHWA does not reveal the names or other identifying information about an individual unless it is necessary for the completion of an investigation or for enforcement activities against a respondent that violates the laws, or unless such information is required to be disclosed under FOIA or the Privacy Act. FHWA will keep the identity of complainants confidential except to the extent necessary to carry out the purposes of the civil rights laws, or unless disclosure is required under FOIA, the Privacy Act, or otherwise required by law.

The FOIA gives the public access to certain files and records of the Federal Government. Individuals can obtain items from many categories of records of the Government–not just materials that apply to them personally. FHWA must honor requests under the FOIA, with some exceptions. FHWA generally is not required to release documents during an investigation or enforcement proceedings if the release could have an adverse effect on the ability of the agency to do its job.

Also, any Federal agency may refuse a request for records compiled for law enforcement purposes if their release could be an "unwarranted invasion of privacy" of an individual. Requests for other records, such as personnel and medical files, may be denied where the disclosure would be a "clearly unwarranted invasion of privacy."

Enclosure 2 (Cont.)

APPENDIX D-1

FOR HCR'S USE ONLY

TITLE VI COMPLAINT
NO JURISDICTION – REFERRAL TO FEDERAL AGENCY

In Reply Refer to: xxx-xx

Name of Agency Officia
Title
Agency
Address
City, State, Zip Code

Dear Name of Agency Official:

The Federal Highway Administration's (FHWA) Office of Civil Rights is in receipt of _____________________________________.

Name of Complainant's complaint dated ________________. The complaint was received by our office on ________________. After reviewing the complaint, we have determined that the issues are not within our jurisdiction. The issues raised involve _________________________. Therefore, we are forwarding the complaint to your office for appropriate action. The complainant has been advised of this referral (copy enclosed).

Sincerely yours,

Name of Office of Civil Rights Official
Title

2 Enclosures

APPENDIX D-2

FOR HCR'S USE ONLY

TITLE VI COMPLAINT NO JURISDICITON – REFERRAL TO COMPLAINANT

In Reply Refer to: xxx-xx

Name of Complainant
Address
City, State, Zip Code

Dear Name of Complainant:

The Federal Highway Administration (FHWA), Office of Civil Rights, is in receipt of your complaint dated _____________. The FHWA received your complaint on ____________.

After reviewing your complaint, we have determined that your issues are not within the jurisdiction of the FHWA. The U.S. Department of Justice is the Federal Agency with responsibility for processing complaints involving ______________________________. Therefore, we are forwarding your complaint to the U.S. Department of Justice for processing. Your complaint has been forwarded to the address listed below:

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W
Criminal Section, PHB
Washington, DC 20530

If this office can be of assistance to you in any matter over which we have jurisdiction, please do not hesitate to contact us.

Sincerely yours,

Name of Office of Civil Rights Official
Title

APPENDIX D-3

TITLE VI COMPLAINT
ACCEPTANCE LETTER AND RFI TO THE RESPONDENT

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of STA Official
Title
Name of STA
Address
City, State, Zip Code

Dear Name of STA Official:

A complaint of discrimination, dated ________________, has been filed by Name of Complainant against the Name of Respondent. The complaint was received by the Federal Highway Administration (FHWA) Office of Civil Rights on ________________.

The allegation raised by the complainant is covered under Title VI of the Civil Rights Act of 1964 (Title VI). The FHWA's investigation will focus on the following allegation:

Whether ________________________________________________________.

In accordance with Title 49, Code of Federal Regulations, Part 21.11 and the Department of Transportation's Procedures for Processing External Civil Rights Complaints, the FHWA is required to investigate complaints of discrimination to determine whether the recipient has failed to comply with Title VI requirements.

Name of Investigator, of my staff, has been assigned to investigate the complaint. As part of the investigative process, we will need you to provide the documents outlined on the enclosed Request for Information on or before _____________. You will be contacted at a later date if it is determined that an on-site investigation is necessary.

Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records. In the event that we receive such a request, we will seek to protect personal information which, if released, could constitute an unwarranted invasion of privacy.

If you have any questions regarding this matter, you may contact Name of Investigator at ____________.

Sincerely yours,

Name of Office of Civil Rights Official
Title

Enclosure

cc: Name, Title VI Program Coordinator, Name of STA

SAMPLE

Request For Information (RFI)
(Title VI Complaint)
Case Name

Issue #1

The State Highway Administration engages in and/or facilitates intentional adverse impact discrimination against Black and Hispanic-owned businesses by administering their Federal Highway Administration (FHWA) Federal-Aid Highway Construction program in such a manner that Black and Hispanic-owned businesses are excluded from participation based on their race and national origin, in violation of Title VI of the Civil Rights Act of 1964 and 49 CFR Parts 21 and 26.

Documents Needed

Information on hand indicates that the County may have enough DBE firms to provide the sampling needed to retrieve the necessary information for analysis of this issue. It appears that there are 100 or more firms in the County. All information will be for 1991 through fiscal year 1995.

1. A list of all DBE firms in the County. The listing should contain the following information.

  1. Name, address, and telephone number;
  2. Name of firm president;
  3. Ethnic code;
  4. Type of business;
  5. How long certified in the DBE program;
  6. List of all contracts received, including contract number, and the dollar value; and,
  7. Prime contractor involved in the contract award.

Issue #2

SHA's Disadvantaged Business Enterprise-Minority Business Enterprise (DBE-MBE) program, submitted to and approved by FHWA in 1989, was deficient and not in full compliance with the requirements of 49 CFR Part 26, which has adversely affected Black and Hispanic DBE program beneficiaries.

Documents Needed

  1. Copies of any procedures used by FHWA to approve DOT's DBE Manual.
  2. Copies of DOT's DBE Manual and any updates, including the 1993 Manual and documents showing approval.

Issue #3

Since 1989, SHA has not submitted its revised DBE program to FHWA for reevaluation and approval on a yearly basis, in violation of 49 CFR Part 26, which adversely affected Black and Hispanic DBE program beneficiaries.

Documents Needed

Copies of policies and procedures provided to respondents regarding annual DBE updates, if the procedures are separate and apart from the provisions outlined in 49 CFR Part 26.

Issue #4

SHA has engaged in unlawful employment discrimination against Blacks and other racial minority persons managing their DBE program which has caused an adverse effect on certain Black and Hispanic DBE program beneficiaries.

Documents Needed

  1. Policies and procedures regarding hiring for all positions related to managing and administering the DBE program.
  2. Organizational chart for the positions involved in managing the DBE program.
  3. Documents which show all positions involved in administering the DBE program. Include the following information for each position.
    1. Position description
    2. Name, race, date of hire of incumbent of the position,
    3. Indicate how the employee and his/her duties are involved in the DBE program.
  4. Documents which show the awards to DBE firms before and after the reorganization. Provide a detailed explanation for any significant changes in the awards before and after reorganization.

Issue #5

In 1990, when DOT became the sole MBE-DBE certification body, it accepted and grandfathered over 600 firms owned and operated by non-minority males into the Directory of Certified MBE-DBE firms without on-site visits and personal interviews, in violation of 49 CFR Part 26 and the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA).

Documents Needed

  1. Documents which show all of the firms that were grandfathered into the DBE program.
  2. Documents which show which of these firms received contracts. If contracts received, provide the following information:
    1. Name, address, and telephone number of firm,
    2. Name of firm president,
    3. Ethnic code,
    4. Type of business,
    5. How long certified in the DBE program,
    6. List of all contracts received, including contract number and date, and the dollar value,
    7. Prime involved in the contract award,
    8. Copy of on-site review report.

APPENDIX D-4

TITLE VI COMPLAINT ACCEPTANCE LETTER TO COMPLAINANT

Multiple Allegations (If an Acknowledgement of Receipt Letter was Provided)

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Complainant
Title, if applicable
Address
City, State, Zip Code

Dear Name of Complainant:

This acknowledges the Federal Highway Administration (FHWA) Office of Civil Rights' acceptance of your complaint of discrimination, dated , against the Name of Respondent. In your complaint, you allege various violations of Title VI of the Civil Rights Act of 1964 based on your identify and specify the bases. We have reviewed your complaint and determined that our investigation will focus on the following allegations:

1. Whether _____________________________________________________________.

2. Whether _____________________________________________________________.

3. Whether _____________________________________________________________.

4. Whether _____________________________________________________________.

The complaint has been assigned to Name of Investigator of my staff for investigation.

Name of Investigator will keep you informed regarding the investigation of your complaint. If you need to contact Name of Investigator, please call him/her at .

Sincerely yours,

Name of Office of Civil Rights Official
Title

APPENDIX D-5

TITLE VI COMPLAINT
ACKNOWLEDGMENT of RECEIPT and
ACCEPTANCE LETTER to the COMPLAINANT

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Complainant
Title, if applicable
Address
City, State, Zip Code

Dear Name of Complainant:

This acknowledges the Federal Highway Administration (FHWA) Office of Civil Rights' receipt and acceptance of your complaint of discrimination dated __________, against the Name of Respondent. Your complaint was received on _________________.

We have reviewed your complaint and determined that the investigation will focus on the following allegation:

Whether ______________________________________________________________.

The complaint has been assigned to Name of Investigator of my staff for investigation.

Name of Investigator will keep you informed regarding the investigation of your complaint. If you need to contact Name of Investigator, please call him/her at ________________.

Please be advised that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because they have has either taken action or participated in an action to secure rights protected by the civil rights laws we enforce. Any individual alleging such harassment or intimidation may file a complaint with the FHWA. We would investigate such a complaint if the situation warrants. Any questions or concerns you have regarding the investigative process and your rights can be discussed with the investigator.

Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. Therefore, enclosed for your information are the "Complainant Consent/Release Form " and the "Notice of Investigatory Uses of Personal Information" fact sheet. Please sign and date the "Complainant Consent/Release Form" and return it to this office in the enclosed self-addressed envelope.

In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information, which if released, could constitute an unwarranted invasion of privacy.

Sincerely yours,

Name of Office of Civil Rights Official

Title

3 Enclosures

APPENDIX D-6

TITLE VI COMPLAINT NOTIFICATION OF COMPLAINT MEMORANDUM

TO DIVISION OFFICE

Subject: INFORMATION: Notification of a Complaint of Discrimination Against the
Name of Respondent (DOT #xxxx-xxxx)
Date:
From Name of FHWA Office of Civil Rights Official
Title
In Reply Refer To: xxx-xx
To: Name
Division Administrator (HDA-__)
City and State

This memorandum serves as notification that a Title VI complaint of discrimination has been filed by Name of Complainant against the Name of Respondent. The complainant alleges that ____________________________________. (Insert appropriate textfrom below)This is a courtesy memorandum and no action is required by your office.

cc: Name, Civil Rights Program Manager, HDA-

TEXT
The investigation will be conducted by the Name of STA.

The Investigation and Adjudication Team in the Headquarters Office of Civil Rights will conduct the investigation.

APPENDIX D-7

TITLE VI COMPLAINT REFERRAL LETTER TO STA FOR INVESTIGATION

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Official
Title
Name of STA
Address
City, State, Zip Code

Dear Name of STA Official:

This office is in receipt of a complaint of discrimination filed by Name of Complainant (complainant) against the Name of Respondent. The complaint raises issues that may be covered by Title VI of the Civil Rights Act of 1964 (Title VI).

Since the respondent named in the complaint may be your sub-recipient, we are requesting that your office conduct an investigation of this complaint and provide us with your recommended findings along with the investigative file. The Federal Highway Administration's (FHWA) regulations at Title 23, Code of Federal Regulations, Part 200.9 requires assurances from States that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which the recipient receives Federal assistance from the Department of Transportation, including the FHWA.

Although the STA may conduct A Title VI investigations, the Department of Justice has determined that a dismissal of a Title VI complaint or a, finding of violation or no violation is a Federal decision that cannot be delegated. State recipients can conduct Title VI investigations of its sub-recipients or contractors and make a recommended finding to the Federal decision-making authority. All FHWA recipients must submit their proposed dispositions to FHWA for a final agency decision.

The complainant has been notified of this referral (copy enclosed). If you have any questions regarding this matter, you may contact Name of FHWA Investigator of my staff at ___________.

Sincerely yours,

Name of Office of Civil Rights Official
Title

2 Enclosures

cc: Name, Title VI Program Coordinator, Name of STA

APPENDIX D-8

TITLE VI COMPLAINT
ACKNOWLEDGEMENT LETTER TO COMPLAINANT
FOR STA INVESTIGATION REFERRAL

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Complainant
Title, if applicable
Address
City, State, Zip Code

Dear Name of Complainant:

This office is in receipt of your complaint against the ___________________.In your complaint, you allege _________________.

In accordance with FHWA complaint processing procedures, your complaint has been forwarded to the _______________ Department of Transportation for investigation.

If this office can be of further assistance to you or you wish to discuss this matter prior to being contacted by the State Department of Transportation, you may contact _______________ of my staff at ________________.

 

Sincerely yours,

Name of Office of Civil Rights Official
Title

APPENDIX D-9

FOR HCR'S USE ONLY

TITLE VI COMPLAINT
LETTER OF FINDING based on a STA INVESTIGATION
(NO VIOLATION)
(To the Complainant)

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Complainant

Title, if applicable
Name of Company, if applicable
Address
City, State, Zip Code

Dear Name of Complainant:

This is in reference to your complaint of discrimination, dated _____________, against the Name of Respondent alleging violations of Title VI of the Civil Rights Act of 1964 (Title VI). In your complaint, you alleged that the _______________________________________.

Since the Name of Respondent is a sub-recipient of Federal-aid funds through the Name of STA, your complaint was investigated by the Name of STA in accordance with the Federal Highway Administration's (FHWA) complaint processing procedures. State recipients can conduct Title VI investigations of its sub-recipients or contractors and make a recommended finding to the Federal decision-making authority. However, the Department of Justice has determined that a Title VI finding of violation or no violation is a Federal decision that cannot be delegated. All FHWA recipients must submit their proposed dispositions to FHWA for a final agency decision.

The Name of STA has completed its investigation and forwarded its investigative report to this office for review and issuance in accordance with FHWA's procedures. The evidence submitted by the Name of STA shows the following:

The evidence presented in the Name of STA's investigative report does not support a finding of identify basis(es) discrimination, as alleged in your complaint. The FHWA agrees with the Name of STA's finding.

This concludes processing of this matter and no further action will be taken.

 

Sincerely yours,

Name of Office of Civil Rights
Title

cc: Name, Title VI Program Coordinator, Name of STA

Name, Division Administrator, FHWA (HDA-___)

Name, Equal Opportunity Specialist, FHWA (HDA-___)

APPENDIX D-10

FOR HCR'S USE ONLY

TITLE VI COMPLAINT
LETTER OF FINDING based on a STA INVESTIGATION
(NO VIOLATION)
(To the Respondent)

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Respondent
Title
Name of Company, if applicable
Address
City, State, Zip Code

Dear Name of Respondent:

The Federal Highway Administration's (FHWA) Office of Civil Rights has reviewed the Name of STA's Investigative Report regarding the complaint dated _____________________, by Name of Complainant against the Name of Respondent alleging violations of Title VI of the Civil Rights Act of 1964 (Title VI). The complainant alleged that ______________________________________________________________.

The FHWA has concluded that the evidence obtained during the Name of STA's investigation does not support a finding of race discrimination, as alleged in the complaint. The evidence reviewed during the investigation shows the following:

This concludes processing of this matter and no further action will be taken.

Sincerely yours,

Name of Office of Civil Rights Official
Title

cc: Name of STA Official, Title, Name of STA
Name
, Title VI Program Coordinator, Name of STA
Name
, Division Administrator, FHWA (HDA-___)
Name, Equal Opportunity Specialist, FHWA (HDA-___)

APPENDIX D-11

FOR HCR'S USE ONLY

TITLE VI COMPLAINT
LETTER OF FINDING based on a STA INVESTIGATION
(NO VIOLATION w/RECOMMENDATION)
(To the Respondent)

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Respondent
Title
Address
City, State, Zip Code

Dear Name of Respondent:

The Federal Highway Administration's (FHWA) Office of Civil Rights has reviewed the Name of STA's Investigative Report regarding the complaint dated ________________, by Name of Complainant against the Name of Respondent(s) alleging violations of Title VI of the Civil Rights Act of 1964 (Title VI). Name of Complainant alleged that ______________________________________________.

The FHWA has concluded that the evidence obtained during the Name of STA's investigation does not support a finding of race discrimination, as alleged in the complaint. The evidence reviewed during the investigation shows the following:

_____________________________________________________________________.

_____________________________________________________________________.

Although a finding of no violation has been made regarding the allegations, the Name of STA

has recommended that _____________________________________________.

This concludes processing of this matter and no further action will be taken.

Sincerely yours,

Name of Office of Civil Rights Official
Title

cc: Name, Secretary of Transportation, xxDOT
Name
, Title VI Program Coordinator, xxDOT
Name
, Division Administrator, FHWA (HDA-xx)
Name
, Equal Opportunity Specialist, FHWA (HDA-xx)

APPENDIX D-12

FOR HCR'S USE ONLY

TITLE VI COMPLAINT FHWA INVESTIGATION – VIOLATION LOF
(Letter to the Complainant)

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Complainant
Title
Name of Company
Address
City, State, Zip Code

Dear Name of Complainant:

The Federal Highway Administration (FHWA) has completed the investigation of your complaint of discrimination, dated _________________, alleging violations of Title VI of the Civil Rights Act of 1964 (Title VI) against _________________________. The evidence reviewed during the investigation shows the following:

Issue: Whether the STA denied your award of your contract on project XXX, based on your race, African American.

______________________________________________________________.

______________________________________________________________.

______________________________________________________________.

______________________________________________________________.

Based on the above-referenced evidence, the FHWA's investigation supports a finding of race discrimination as alleged in your complaint. Having determined that a violation has occurred, the FHWA makes the following recommendations to bring the STA into compliance:

  1. ____________________________________________________________.
  2. ____________________________________________________________.
  3. ____________________________________________________________.
  4. ____________________________________________________________.

The STA has 90 days in which to submit an Action Plan for implementing the recommendations made in this Letter of Finding. You will be advised at a later date regarding the status of the implementation of the recommendations.

If you have any questions regarding this matter, please contact _________________, at ___________________.

Sincerely yours,

Name of Office of Civil Rights Official
Title

APPENDIX D-13

FOR HCR'S USE ONLY

TITLE VI COMPLAINT
FHWA INVESTIGATION – VIOLATION LOF
(Letter to the the Complainant)

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Responden
Title
Name of STA
Address
City, State, Zip Code

Dear Name of Respondent:

The Federal Highway Administration (FHWA) has completed the investigation of Name of Complainant's complaint of discrimination, dated______________, alleging violations of

Title VI of the Civil Rights Act of 1964 (Title VI) against the Name of STA. The evidence reviewed during the investigation shows the following:

Issue: Whether the STA denied the complainant's award of a contract on project XXX, based on race, African American.

______________________________________________________________.

______________________________________________________________.

______________________________________________________________.

______________________________________________________________.

Based on the above-referenced evidence, the FHWA's investigation supports a finding of race discrimination as alleged in the complaint. Having determined that a violation has occurred, the FHWA makes the following recommendations to bring the STA into compliance:

  1. ____________________________________________________________.
  2. ____________________________________________________________.
  3. ____________________________________________________________.
  4. ____________________________________________________________.

The STA will document how it plans to implement the recommendations outlined above. The STA may provide alternatives to the above recommendations if the alternatives provide the desired outcome.

The documents showing the implementation of the recommendations or the implementation of alternative measures are to be provided to the FHWA, Office of Civil Rights, 1200 New Jersey Avenue, SE., Room ____, Washington, DC 20590 within 90 days of receipt of the FHWA's Letter of Finding.

If you have any questions regarding this matter, please contact _________________, at ___________________.

Sincerely yours,

Name of Office of Civil Rights Official
Title

cc: Name, Title VI Program Coordinator, STA
Name
, Division Administrator, FHWA, HDA-xx
Name, Equal Opportunity Specialist, FHWA, HDA-xx

APPENDIX D-14

FOR HCR'S USE ONLY

TITLE VI COMPLAINT
FHWA INVESTIGATION – VIOLATION LOF/COMPLIANCE ACHIEVED
(Letter to the Respondent)

In Reply Refer To: HCR-40
DOT #xxxx-xxxx

Name of Respondent
Title
Name of STA
Address
City, State, Zip Code

Dear Name of Respondent:

This is in reference to the complaint of discrimination filed by Name of Complainant, dated _______________, alleging violations of Title VI of the Civil Rights Act of 1964 (Title VI) against ______________________________. In a letter dated________________, the Federal Highway Administration (FHWA) determined that Title VI had been violated regarding the allegation raised in the complaint. The FHWA made the following recommendations to the STA to bring it into compliance:

Issue: Whether the STA denied the complainant's award of a contract on project XXX, based on race, African American.

  1. ____________________________________________________________.
  2. ____________________________________________________________.
  3. ____________________________________________________________.
  4. ____________________________________________________________.

Please be advised that the FHWA is in receipt of and accepts the STA's implementation of the items outlined above.

Therefore, the FHWA will close this complaint.

 

Sincerely yours,

Name of Office of Civil Rights Official
Title

cc: Name, Division Administrator, FHWA, HDA-xxthe Complainant)
Name, Equal Opportunity Specialist, FHWA, HDA-xx

APPENDIX D-15

FOR HCR'S USE ONLY

TITLE VI COMPLAINT
FHWA INVESTIGATION – NO VIOLATION LOF
(Letter to the Respondent)

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Respondent
Title
STA
Address
City, State, Zip Code

Dear Name of Respondent:

This is in reference to Name of Complainant's complaint of discrimination against ____________________________ alleging violations of Title VI of the Civil Rights Act of 1964 (Title VI), based on his race, African American, while working on project XXX.

The FHWA has completed its investigation and concluded that the evidence obtained does not support the allegation raised in the complaint. The evidence reviewed during the investigation shows the following:

Issue: Whether the complainant's firm was removed as a subcontractor while working on project XXX.

_____________________________________________________________________.

_____________________________________________________________________.

_____________________________________________________________________.

Based on the foregoing evidence, the FHWA does not find that the STA violated Title VI as alleged in the complaint.

This concludes the FHWA's processing of this matter and no further action will be taken.

 

Sincerely yours,

Name of Office of Civil Rights Official
Title

cc: Name, Title VI Program Coordinator, STA

Name, Division Administrator, FHWA, HDA-xx

Name, Equal Opportunity Specialist, FHWA, HDA-xx

APPENDIX D-16

TITLE VI COMPLAINT FHWA INVESTIGATION – NO VIOLATION LOF
(Letter to the Complainant)

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Complainant
Title
Company, if applicable
Address
City, State, Zip Code

Dear Name of Complainant:

This is in reference to your complaint of discrimination against ___________________________ alleging violations of Title VI of the Civil Rights Act of 1964 (Title VI), based on your race, African American, while working on project XXX.

The FHWA has completed its investigation and concluded that the evidence obtained does not support the allegation raised in the complaint. The evidence reviewed during the investigation shows the following:

Issue: Whether your firm was removed as a subcontractor while working on project XXX.

_____________________________________________________________________.

_____________________________________________________________________.

_____________________________________________________________________.

Based on the foregoing evidence, the FHWA does not find that the STA violated Title VI as alleged in the complaint.

This concludes the FHWA's processing of this matter and no further action will be taken.

Sincerely yours,

Name of Office of Civil Rights Official

Title

cc: Name, Title VI Program Coordinator, STA

Name, Division Administrator, FHWA, HDA-xx

Name, Equal Opportunity Specialist, FHWA, HDA-xx

APPENDIDX D-17

TITLE VI COMPLAINT
LETTER CONFIRMING ON-SITE VISIT

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Title
Address
City, State, Zip Code

Dear Name:

This is in reference to the complaint of discrimination filed by Name of Complainant, against the Name of Respondent alleging violations of Title VI of the Civil Rights Act of 1964. Per our telephone conversation on ______________, I have been assigned as the investigator for this complaint. The issues accepted for investigation are listed on the enclosed Request for Information, along with the documents needed to initiate the investigation. I will be in Name ofState the week of _________. I plan to meet with you on day of week, month, date, year, at time and location of meeting. At that time, it is requested that you have the information listed on the Request for Information available for review. If you have any questions about the investigative process, please call me at _______. Your cooperation throughout this process is greatly appreciated.

Sincerely yours,

Name of Investigator
Title

Enclosure

APPENDIX D-18

FOR HCR'S USE ONLY

TITLE VI COMPLAINT CLOSURE LETTER to COMPLAINANT
(Withdrawal of Complaint and/or Issues Resolved)
HCR Only

In Reply Refer To: xxx-xx
DOT #xxxx-xxxx

Name of Complainant
Title, if applicable
Name of Company, if applicable
Address
City, State, Zip Code

Dear Name of Complainant:

{INSERT THE FOLLOWING IF INFORMATION RECEIVED FROM COMPLAINANT}:

This is in reference to your complaint of discrimination filed against ____________________ alleging a violation of Title VI of the Civil Rights Act of 1964. In your complaint, you alleged that ______________________________________________________.

The Federal Highway Administration (FHWA) is in receipt of your letter dated _____________. In your letter, you stated that ______________________________________________. Based on this information, the FHWA is closing this complaint and no further action will be taken.

{INSERT THE FOLLOWING IF INFORMATION RECEIVED FROM STA}:

The Federal Highway Administration's (FHWA) Office of Civil Rights is in receipt of information regarding your complaint of discrimination, dated _________, against the Name of STA. The information was forwarded to this office by the Name of STA on ___________. We received the information ___________.

After reviewing the information, we have concluded that the concerns you raised with the Name of STA were addressed. Specifically, you ______________________________________.

[Insert if applicable: We have made attempts to contact you to confirm this information but have been unable to do so. Since the matter has been addressed and we are unable to locate you,] please be advised that we are closing your complaint and no further action will be taken.

Sincerely yours,

Name of Office of Civil Rights Official
Title

cc: Name, Title VI Program Coordinator, STA

APPENDIX D-19
(Failure to Provide Documents)

In Reply Refer To: HCR-xx
DOT #xxxx-xxxx

Name of Respondent
Title
STA
Address
City, State, Zip Code

Dear Name of Respondent:

This is in reference to your letter dated ________________, responding to the Federal Highway Administration's (FHWA) request for information dated __________________, regarding the complaint of discrimination filed by Name of Complainant against the Name of STA and Sub-recipient.

In your response, you stated Name of STA Sub-recipient provided limited or no information relating to the issues raised in the complaint. The FHWA requests that the STA contacts Name of STA Sub-recipient to obtain the information on the enclosed "Request for Information."

Please be advised that the FHWA's Procedures Manual for Processing External Complaints of Discrimination requires State recipients to conduct Title VI investigations of its sub-recipients or contractors and make a recommended finding to the Federal decision-making authority. If the Name of STA had not been named in the complaint, the FHWA would have requested that the Name of STA conduct the investigation of the complaint in accordance with FHWA's Procedures Manual for Processing External Complaints of Discrimination.

Furthermore, pursuant to Title 49, Code of Federal Regulations, Part 21.12(a), which states in pertinent part that, "If there appears to be a failure or threatened failure to comply with the part, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with the part may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law. Such other means may include, but are not limited to: (1) A reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), . . . ."

Please provide the information outlined on the enclosed "Request for Information" on or before ____________, to Name of Investigator at the address below:

Federal Highway Administration
Office of Civil Rights
1200 New Jersey Avenue, S.E.
Room __________ (HCR-40)
Washington, DC 20590

If you have any questions regarding this matter, please contact me at ________________.

Sincerely yours,

Name of Office of Civil Rights Official
Title

Enclosure

APPENDIX D-20

SAMPLE

TITLE VI INVESTIGATIVE PLAN

INVESTIGATIVE PLAN

I. COMPLAINANT

Peoples Action Committee
123 South Street
Anywhere, USA 14456

Ms. Jane Doe, President

II. RESPONDENTS

State Department of Transportation
1409 ABE Boulevard
Anywhere, USA 14457

Mr. James Doe

Transportation Director

III. APPLICABLE LAW

Title VI of the Civil Rights Act of 1964
ISTEA, 1991
49 CFR, Part 26
ADA of 1990

IV. BASIS

Race -African American

V. ISSUES

  1. Complainants allege that the State Department of Transportation (DOT) has not always followed the requirements of 49 CFR Part 26, relative to the DBE program eligibility standards for certification.
  2. Complainants allege that DOT has not sufficiently publicized the third party challenge procedure.
  3. Complainants allege that the DOT has provided slow payments to minority contractors.
  4. Complainants allege that the DOT arbitrarily assigns DBE goals to contracts.
  5. Complainants allege the DOT has not adequately monitored the prime contractors to ensure DBEs are performing a commercially useful function.
  6. Complainants allege the DOT has not implemented Title VI in its DBE program.
  7. Complainants allege the DOT has systemically failed to review its certification list to remove ineligible DBE firms or firms which are no longer in existence.
  8. Complainants allege that there are only six African American contractors participating in the highway construction industry in the State of Anywhere and their contract awards are very small.
  9. Complainants allege that DOT has not recognized the steady decline of African American participation which could raise issues of Title VI violations.

VI. BACKGROUND

VII. INTERVIEWS

On-site interviews will be conducted with appropriate representatives for complainants, respondent, and the FHWA Division Office.

Questions for Complainant

The issues outlined in the complaint will be discussed with the complainants.

Questions for DOT Representatives

  1. Has DOT had problems with fraudulent firms entering the program?
  2. Have there been complaints about slow payment from DBE firms?
  3. How is the DBE certification list processed and maintained?
  4. The number of firms in the DBE program? Racial breakdown.
  5. The number of firms seeking certification each year?
  6. The number of third party challenges received during the course of a year?
  7. Procedure for handling third party challenges?
  8. Procedure for payments to DBE firms?
  9. Procedures for assigning DBE goals to contracts?
  10. Procedures for monitoring the DBE program?

Questions for FHWA Division Office Representatives

  1. Have you had problems with DOT certifying fraudulent firms?
  2. Have you had problems with DBE firms complaining about slow payment?
  3. Has there been a decline in African American participation in the DBE program? If so, has your office made any determinations regarding the decline?

VIII. EVIDENCE TO BE OBTAINED DURING THE INVESTIGATION

Issue #1

Complainants allege that the DOT has not always followed the requirements of 49 CFR Part 26 relative to the DBE program eligibility standards for certification.

Documents Needed

  1. Policies and procedures regarding the DBE certification process;
  2. Copies of all documents used in the certification process.
  3. Documents which show the number of certifications and certification denials processed anytime during the period January 1, 1996 to the present. Indicate the reason for any certification denial.

Issue #2

Complainants allege that DOT has not sufficiently publicized the third party challenge procedure.

Documents Needed

Provide a response to this allegation.

Issue #3

Complainants allege that the department has provided slow payments to minority contractors.

Documents Needed

  1. Policies and procedures regarding payment to DBE firms and other subcontracting firms;
  2. Documents which show any complaints that were received anytime during the period January 1, 1996 to the present regarding slow payment. Include the following information for each complaint.
    1. Name and race of complainant;
    2. Name of firm involved;
    3. Name and race of prime contractor involved; and,
    4. Indicate how the complaint was resolved. Include the date and type of action taken.

Issue #4

Complainants allege that the DOT arbitrarily assigns DBE goals to contracts.

Documents Needed

Policies and procedures regarding establishing DBE goals on all types of construction contracts.

Issue #5

Complainants allege the DOT has not adequately monitored the prime contractors to ensure DBEs are performing a commercially useful function.

Documents Needed

  1. Polices and procedures regarding monitoring the DBE program;
  2. Documents which show the contracts that were monitored anytime during the period January 1, 1996 to the present. Include the following information for each contract that was monitored.
    1. Name and race of prime contractor;
    2. Type of contract;
    3. Dollar value of contract;
    4. Name and race of DBEs working on the contract;
    5. Dollar value of each DBE contract;
    6. Type of work being performed by the DBE; and,
    7. Indicate whether any violations were found. If so, indicate how they were handled.

Issue #6

Complainants allege the DOT has not implemented Title VI in its DBE program.

Documents Needed

Provide a response to this allegation.

Issue #7

Complainants allege the DOT has systemically failed to review its certification list to remove ineligible DBE firms or firms which are no longer in existence.

Documents Needed

  1. Policies and procedures regarding management of the DBE certification list.
  2. Documents which show how firms are removed from the list.
  3. Copy of the current DBE list.
  4. Documents which show how often the DBE list is updated.

Issue #8

Complainants allege that there are only six African American contractors participating in the highway construction industry in the State and their contract awards are very small.

Documents Needed

1. Documents which show all DBE firms which currently have contracts. Include the following information for each.

  1. Name and race of DBE firm;
  2. Date of initial certification into the DBE program;
  3. Type of business;
  4. Contracts awarded anytime during the period January 1, 1995 to the present; and,
  5. Dollar value of contract.

Issue #9

Complainants allege that DOT has not recognized the steady decline of African American participation which could raise issues of Title VI violations.

Documents Needed

Provide a response to this allegation.

APPENDIX D-21

WRITING THE INVESTIGATIVE REPORT (IR)
(Title VI Complaint)

Writing the IR

  1. Complainant(s) Name and Address
  2. Respondent(s) Name and Address
  3. Applicable Law/Regulation
  4. Basis(es)
  5. Issues
  6. Findings for Each Issue
  7. Conclusion for Each Issue
  8. Recommended Decision
  9. Recommendations (If Applicable)

APPENDIX D-22

SAMPLE INVESTIGATIVE REPORT (IR)
(Title VI Complaint)

I. COMPLAINANT

Minority Contractors Group
2000 South Street
Anywhere, USA 00000
555-111-1234

II. CLASS MEMBERS

Mr. John Doe
Mr. Jim Doe
Mr. James Doe

III. RESPONDENT

State Department of Transportation
125 East Anywhere Street
Anywhere, USA

Mr. State DOT
Executive Director

IV. ATTORNEY FOR RESPONDENT

Ms. State's Attorney
Assistant Attorney General
Office of the Attorney
State of Anywhere
P.O. Box 11111
Anywhere, USA

555-123-4567

V. APPLICABLE LAW

Title VI of the Civil Rights Act of 1964

VI. BASIS

Race – African American

VII. FINDINGS

Issue # 1

The Minority Contractors Group (MCG) alleges that the State DOT discriminates against African American Disadvantaged Business Enterprise (DBE) firms with regard to the acquisition of contracts through the DBE program administered by DOT.

Issue #2

MCG further alleges that zero percent of federally funded contracts are being let to African American DBEs.

Analysis

In accordance with the policy of the U.S. Department of Transportation (DOT) as defined in 49 Code of Federal Regulations (CFR), Part 26, the State DOT administers a DBE Program which requires that minority business enterprises as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds. The DOT requires that not less than 10 percent of the funds authorized for Federal programs be expended with DBEs.

Record evidence shows that State DOT has consistently met its 10 percent DBE goal. The 10 percent goal can be met by using any certified DBE. There is no separate goal for individual minority or women owned firms. A review of State DOT's records shows that American white women owned firms are awarded a greater number of contracts than are African American owned firms, although African American firms represent a greater number of DBE firms in the State DOT DBE program.

The statistical data reviewed for this investigation focused on District 12 of the State DOT DBE Program. A review of the DBE firms in Area 00 shows the following information.

DBE FIRMS AND COMMITMENTS FOR 1994
for
AREA 00
  AFRICAN AMERICAN AMERICAN WHITE WOMEN HISPANICS TOTAL
# of FIRMS 314
4%
166
18%
439
48%
919
100%
# of Firms Used/
Dollar Value of contracts
6
$1,691,918
18
$22,111,793
17
$47,720,267
41
$71,523,978
% of Dollar value to total contract dollars 2% 31% 67% 100%
DBE FIRMS AND COMMITMENTS FOR 1995
for
AREA 00
  AFRICAN AMERICAN AMERICAN WHITE WOMEN HISPANICS TOTAL
# of FIRMS 314
34%
166
18%
439
48%
919
100%
# of Firms Used/
Dollar Value of Contracts
6
$924,555
20
$24,835,197
18
$65,903,997
44
$91,663,749
% of Dollar value to total contract dollars 1% 27% 72% 100%

DBE FIRMS AND COMMITMENTS FOR 1996
for
AREA 00

  AFRICAN AMERICAN AMERICAN WHITE WOMEN HISPANICS TOTAL
# of FIRMS 314
34%
166
18%
439
48%
919
100%
# of Firms Used/
Dollar Value of contracts
7
$1,600,844
23
$22,702,882
17
$30,388,868
44
$54,692,594
% of Dollar value to total contract dollars 3% 42% 55% 100%

DBE FIRMS AND COMMITMENTS FOR 1997
for
AREA 00

  AFRICAN AMERICAN AMERICAN WHITE WOMEN HISPANICS TOTAL
# of FIRMS 314
34%
166
18%
439
48%
919
100%
# of Firms Used/
Dollar Value of Contracts
2
$108,441
12
$26,289,033
9
$30,510,767
23
$56,908,241
% of Dollar value to total contract dollars .1% 46% 54% 100%

NOTE:

Respondent indicated that State DOT's submittal of all DBE firms in Area 00 (314) is accurate for all of the years cited.

Record evidence shows and the Complainants verified that State DOT provides the DBE firms with relevant contracting information regarding the availability of highway construction projects.

Record evidence shows that DBE firms are accepted or rejected for highway construction projects by the prime contractor.

The prime contractor is required to submit the name, work to be performed, and the amount of the subcontract for every DBE firm that will be used to meet the DBE goal assigned to the project.

The State DOT Business Opportunity Programs (BOP) Office is responsible for reviewing the DBE commitment information that is provided by the prime contractor. The BOP Office reviews the DBE commitment information to ensure that the DBE firm submitted is certified as a DBE; that the DBE firm is certified in the appropriate category of work; that the contract amount is consistent with the Engineer's estimate and the prime contractor's bid; and, that the DBE goal will be met.

There is no evidence available regarding the DBEs which may have submitted bids and were not selected. There is no requirement by State DOT that this information be maintained.

The record shows that State DOT is following the regulations as outlined in 49 CFR Part 26, regarding meeting the 10 percent DBE goal. The charts show that African Americans are not awarded DBE contracts in proportion to the number of African American DBE firms in the DBE Program.

Issue #3

Complainant James Doe alleges that he has submitted 30 bids to prime contractors in the State DOT for highway contracts during the past 2 years. Complainant James Doe alleges that he has not received a telephone call or any other communication from these contractors since he started filing complaints of race discrimination.

Analysis

The State DOT stated that it does not receive bids submitted to the prime contractors. The State DOT further stated it does not require prime contractors to document how they process bids that are received from DBE firms or identify all DBE bidders and provide reasons for how they chose the successful DBE bidder.

The record shows that Complainant James Doe was not awarded any contracts anytime during the period reviewed for this investigation.

There is no evidence available to determine whether Complainant James Doe's lack of contract awards was a form of retaliation.

However, since the record shows that African American DBEs are not awarded contracts in accordance with their representation in the DBE Program, then it is reasonable to infer that Complainant James Doe has been discriminated against with regard to the award of DBE contracts. However, the record is not clear regarding whether the exclusion is a form of retaliation.

The record further shows that State DOT does not have a procedure in place to monitor the selection practices of its prime contractors.

The regulations at 49 CFR Part 21.7 and the Federal-aid project agreements require that the respondent of Federal financial assistance provide assurances that all programs will be conducted in compliance with all the requirements of Title VI of the Civil Rights Act of 1964 and other related statutes. The record shows that State DOT is not carrying out this requirement with regard to the prime contractors selection of DBEs.

VII. DECISION

Based on the foregoing, it is reasonable to conclude that the Complainants have been discriminated against because of race with regard to the lack of contract participation in the DBE Program administered by State DOT.

Having determined that there is reasonable cause to believe that the allegations raised by the Complainants are true, the Federal Highway Administration requires State DOT, to take action sufficient to address and prevent a recurrence of the situation which led to the probable cause finding by taking the actions outlined in the following recommendations. The actions taken may be different from, but must be at least as effective as those outlined in the Recommendations section of this report. The State DOT is required to take the necessary action with 90 days of receipt of this report.

VIII. RECOMMENDATIONS

  1. Review the DBE Program to determine the causes for the imbalance between the number of African American DBE firms and the number of contracts awarded.
  2. Identify procedures to remedy the imbalance which will ultimately create an increase in the number of contract awards to African American DBEs.
  3. Develop a process to ensure that prime contractors are making DBE selections in accordance with the requirements of Title VI and related statutes.

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