FHWA Office of Civil Rights

Procedures Manual For Processing External Complaints of Discrimination

Cover of Procedures Manual For Procesing External Complaints of Discrimination

1-1 Purpose and Applicability
1-2 Selected Authorities

2-1 Complaint Intake
2-2 Processing Complaints

3-1 Scope of the Investigation
3-2 Developing an Investigative Plan
3-3 Investigative Log
3-4 Request for Information and Cover Letter
3-5 Interviews
3-6 Failure by the Respondent to Provide Access to Information
3-7 On-Site Visits
3-8 Analyzing Evidence
3-9 Exit Interview
3-10 Preparing the Investigative Report (IR)/Report of Investigation (ROI)

Chapter 4: Investigative Case File

4-1 Creating the Investigative Case File
4-2 Distribution of the Investigative Case File

Appendices: List of Appendices

ACRONYMS

ADA: Americans with Disabilities Act of 1990
ADAAG: Americans with Disabilities Act Accessibility Guidelines
ADR: Alternative Dispute Resolution
CFR: Code of Federal Regulations
DOCR: Departmental Office of Civil Rights
FHWA: Federal Highway Administration
FOIA: Freedom of Information Act
HCR: Headquarters Office of Civil Rights
IP: Investigative Plan
IR: Investigative Report
LOF: Letter of Finding
LEP: Limited English Proficiency
OA: Operating Administration
ROI: Report of Investigation
ROW: Right-of-Way
STA: State Transportation Agency
U.S.C.: United States Code
USDOJ: U.S. Department of Justice
USDOT: U.S. Department of Transportation

CHAPTER 1: INTRODUCTION

1-1 Purpose and Applicability

This manual outlines the Federal Highway Administration's (FHWA) procedures for processing external complaints of discrimination filed under Title VI of the Civil Rights Act of 1964 (and related statutes as identified in Section 1-2) and Title II of the Americans with Disabilities Act of 1990 and/or Section 504 of the Rehabilitation Act of 1973. The procedures are designed to provide due process for complainants and respondents.

The procedures apply to the FHWA, and may be used by the, State Transportation Agencies (STA) and other primary recipients and sub-recipients for the investigation of external complaints of discrimination. The procedures do not preclude the responsible staff of any agency from attempting to informally and independently resolve complaints.

1-2 Selected Authorities

A. Nondiscrimination Statutes

Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, provides: 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 subjected to discrimination under any program or activity receiving Federal financial assistance.
Section 504 of the Rehabilitation Act of 1973, 42 U.S.C. 794, et seq., provides: No qualified handicapped person shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, be subjected to discrimination under any program or activity that receives or benefits from Federal financial assistance.
Age Discrimination Act of 1975, 42 U.S.C. 6101, provides: No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Federal Aid Highway Act of 1973, 23 U.S.C. 324, provides: No person shall, on the ground of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance under this Title or carried on under this Title.
The Civil Rights Restoration Act of 1987, P.L. 100-209, provides: Clarification of the original intent of Congress in Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973. The Act restores the broad, institution-wide scope and coverage of the nondiscrimination statutes to include all programs and activities of Federal-aid recipients, sub-recipients, and contractors, whether such programs and activities are federally assisted or not.
Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131, et seq., provides: No qualified individual with a disability shall, by reason of such disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination by a department, agency, special purpose district, or other instrumentality of a State or local government.

B. Regulations

23 Code of Federal Regulations (CFR) 1.36, Compliance with Federal Laws and Regulations
23 CFR 200, Title VI Program and Related Statutes-Implementation and Review Procedures
28 CFR 35, Nondiscrimination on the Basis of Disability in State and Local Government Services
28 CFR 36, Nondiscrimination on the Basis of Disability in Public Accommodations and in Commercial Facilities
28 CFR 42, Subpart C, Implementing Title VI of the Civil Rights Act of 1964
28 CFR 50.3, USDOJ's Guidelines Enforcement of Title VI of the Civil Rights Act of 1964
49 CFR 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964
49 CFR 27, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance
49 CFR 28, Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Department of Transportation (DOT)

C. Executive Orders (E.O.)

E.O. 12250,Leadership and Coordination of Nondiscrimination Laws
E.O. 12898,Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations
E.O. 13166, Improving Access to Services for Persons with Limited English Proficiency

D. Directives

DOT Order 1000.18,Implementation of the DOT Title VI Program
DOT Order 1050.2,Standard Title VI Assurances
FHWA Notice 4720.6, Impacts of the Civil Rights Restoration Act (CRRA) on FHWA Programs

E. Other References

USDOJ's Title VI Legal Manual
USDOJ's Investigation Procedures Manual for the Investigation and Resolution of Complaints Alleging Violations of Title VI and Other Nondiscrimination Statutes
Americans with Disabilities Act Accessibility Guidelines (ADA Handbook Appendix B)
Revised Draft Public Rights-of-Way Accessibility Guidelines (PROWAG) (2005)
FHWA's Memorandum Clarification of FHWA's Oversight Role in Accessibility, Dated September 12, 2006

CHAPTER 2: PROCESSING COMPLAINTS

2-1 Complaint Intake

A. Agencies Authorized to Receive Complaints

Complaints may be submitted to the Federal Highway Administration (FHWA), the State Transportation Agency (STA), the United States Department of Transportation (USDOT), and the United States Department of Justice (USDOJ).

B. Persons Eligible to File

Any person or any specific class of persons, by themselves or by a representative, that believe they have been subjected to discrimination or retaliation prohibited by Title VI of the Civil Rights Act of 1964 (Title VI) and related statutes, Section 504 of the Rehabilitation Act of 1973 (Section 504), or Title II of the Americans with Disabilities Act of 1990 (ADA) may file a complaint.

C. What is a Complaint?

A complaint is a written or electronic statement concerning an allegation of discrimination that contains a request for the receiving office to take action. Complaints should be in writing and signed and may be filed by mail, fax, in person, or e-mail. A complaint should contain at least the following information:
1. A written explanation of what has happened;
2. A way to contact the complainant;
3. The basis of the complaint, e.g., age, sex, race, color, national origin, or disability;
4. The identification of the respondent, e.g., agency/organization alleged to have discriminated;
5. Sufficient information to understand the facts that led the complainant to believe that discrimination occurred; and,
6. The date(s) of the alleged discriminatory act(s).
While the above indicates a complaint should be in writing and signed, the receiving agency must accept complaints in alternate formats from persons with disabilities, upon request.
1. The complaint may be filed on a computer disk, by audio tape, or in Braille.
2. The complainant may call the agency and provide the allegations by telephone. The agency will transcribe the allegations of the complaint as provided over the telephone and send a written complaint to the complainant for signature.

D. Timeframe for Filing Complaints

Complaints must be filed within 180 days of the last date of the alleged discrimination, unless the time for filing is extended (49 CFR 21.11 and 27.123). The filing date of the complaint is the earlier of: (1) the postmark of the complaint, or (2) the date the complaint is received by any office authorized to receive complaints. An extension may be granted under any of the following circumstances:

The complainant could not reasonably be expected to know the act was discriminatory within the 180-day period, and the complaint was filed within 60 days after the complainant became aware of the alleged discrimination;
The complainant was unable to file a complaint because of incapacitating illness or other incapacitating circumstances during the 180-day period, and the complaint was filed within 60 days after the period of incapacitation ended;
The complainant filed a complaint alleging the same discriminatory conduct within the 180-day period with another Federal, State or local civil rights enforcement agency, and filed a complaint with DOT within 60 days after the other agency had completed its investigation or notified the complainant that it would take no further action;
The complainant filed, within the 180-day period, an internal grievance alleging the same discriminatory conduct that is the subject of the DOT complaint, and the complaint is filed no later than 60 days after the internal grievance is concluded;
Unique circumstances generated by DOT action have adversely affected the complainant;
The discriminatory act is of a continuing nature; or
Some complaints will be referred to DOT by other agencies. In the event the referring agency has possessed the complaint for an inordinately long period of time and the complainant filed his or her complaint with that agency within the 180-day timeframe DOT will automatically grant an informal extension. In these cases, staff does not need to notify the complainant of the extension.

E. Agency Responsibilities

A. Federal Highway Administration

All complaints received by the Resource Center or Division Offices will be forwarded to the Director, Investigations and Adjudications in the Headquarters Office of Civil Rights (HCR).
The HCR will acknowledge receipt of all complaints filed. The HCR will analyze the allegation(s) and notify the complainant and respondent of the issues accepted for investigation. (SEE APPENDICES: D-3, D-4, D-5 and E)
Complaints filed under Title VI against an STA will be investigated by HCR or a team comprised of Division Office and Resource Center personnel.
1. The Division Office personnel will not investigate Title VI complaints filed against the State for which they are responsible. The Division Office personnel may be assigned as a team member or team leader for the investigation of complaints in other States.
2. The HCR will provide the appropriate Division Office with a memorandum advising that a complaint has been filed and accepted for investigation. (SEE APPENDIX D-6)
3. The HCR will also provide the appropriate Division Office with a copy of the Letter of Finding (LOF) after completion of the investigation.
Complaints filed under Section 504/ADA with the US DOT/FHWA will be referred to the Division Office for investigation. Upon completion of the investigation, the Division Office will forward the complaint and investigative report to HCR-40 for issuance of the LOF.
HCR will consult the Office of Chief Counsel (HCC), the Departmental Office of Civil Rights (S-33), and the Department's Office of the General Counsel whenever (1) a complaint or investigation presents a novel issue, (2) a complaint or investigation presents a issue with which the investigating office is unfamiliar, (3) there is media interest in the case or political sensitivity, or (4) there is a recommendation to terminate or refuse financial assistance. Novel issues are those which raise substantive legal or policy questions that are not addressed in Departmental or FHWA regulations or guidelines.

B. State Transportation Agencies

Complaints filed under Title VI with STAs in which the STA is named as the respondent should be forwarded to HCR for investigation.
Title VI complaints filed directly with the STAs against its sub-recipients should be processed by the STA in accordance with the FHWA approved complaint procedures as required under 23 CFR 200.9(b)(3). However, the HCR has delegated authority for making all final decisions which include dismissing complaints and issuing LOFs.
Complaints filed under the Section 504/ADA with the STA can be investigated by the STA in accordance with 49 CFR 27.13(b).
The STAs may use contract investigators to conduct investigations of complaints of discrimination, if the use of contract investigators will assist in preventing or eliminating a backlog of complaints. All complaints are to be investigated in accordance with approved complaint processing procedures.

2-2 Processing Complaints

A. Recording Complaints

Upon initial receipt, a complaint should always be date stamped by the receiving office. The date of receipt by the receiving office is crucial for determining jurisdiction and timeliness.

B. Items Not Considered a Complaint

The following are examples of items that should not be considered a complaint, unless the item contains a signed cover letter specifically asking that the agency take action concerning the allegations:

An anonymous complaint;
Inquiries seeking advice or information;
Courtesy copies of court pleadings;
Courtesy copies of complaints addressed to other local, State, or Federal agencies;
Newspaper articles; and,
Courtesy copies of internal grievances.

C. Accepting Complaints in Alternative Formats and Languages

Recipients must ensure that persons with Limited English Proficiency (LEP) have meaningful access to their programs and activities, including their complaint procedures in accordance with E.O. 13166, "Improving Access to Services for Persons with Limited English Proficiency."
Complaints in languages other than English should be translated and a responded to in the language in which they were sent.
It is important to recognize the need to modify practices to serve LEP complainants and those with disabilities may extend beyond the complaint intake stage. Throughout the complaint resolution process, staff should ensure these individuals understand their rights and responsibilities, as well as the status of their complaint.

D. Reviewing Complaints

The complaint will be reviewed within 10 calendars days of receipt to determine whether it contains all the necessary information required for acceptance.
If the complaint is complete and no additional information is needed, the complainant will be sent a letter of acceptance along with the Complainant Consent/Release form and the Notice About Investigatory Uses of Personal Information form. (SEE APPENDIX D)
If the complaint is incomplete, the complainant will be contacted in writing or by telephone to obtain the additional information. The complainant will be given 15 calendars days to respond to the request for additional information.

E. FHWA Complaint Jurisdiction

The HCR has delegated authority for referring complaints to other agencies for lack of jurisdiction.
If it becomes clear that FHWA lacks jurisdiction over a complaint, the complaint should be referred to the appropriate agency. A referral letter will be sent to the agency along with the complaint and other documents. A letter will also be sent to the complainant stating that the complaint has been referred to another agency and that FHWA has closed the complaint.(SEE APPENDICES: D-1, D-2, E-2, E-3, E-4 and E-5)

F. Notification of Acceptance of Complaints

After determining the complaint will be accepted for investigation, a notification letter will be sent to the complainant and the respondent. (SEE APPENDICES: D, D-3, D-4, D-5 and E)

G. If the Complainant is Represented by an Attorney

Complainants represented by an attorney should provide a letter of representation.

H. Timeframes for Investigations

Although the regulations do not specify a timeframe for the investigation of Title VI complaints the HCR attempts to complete investigations within 180 days.
Title VI complaints received directly by the STA are bound by the timeframes outlined in 23 CFR 200.9(b)(3).
Although the regulations do not specify a timeframe for the investigation of Section 504/ADA complaints the HCR requests that the Division Office and STA investigate complaints within 90 days of receipts of the complaint from HCR.

I. Dismissals

The HCR has delegated authority for dismissing Title VI complaints. The HCR has delegated authority for dismissing Section 504/ADA complaints processed by the FHWA. A complaint may be dismissed for the following reasons:

The complaint is untimely filed;
The complainant fails to respond to repeated requests for additional information needed to process the complaint;
The complainant cannot be located after reasonable attempts;
There is no statutory or alleged basis for the complaint, FHWA lacks jurisdiction in the matter, or the complainant does not allege any harm with regard to current programs or statutes;
The complaint has been investigated by another agency and the resolution of the complaint meets USDOT/FHWA regulatory standards; e.g., all allegations were investigated, appropriate legal standards were applied, and any remedies secured meet USDOT's standards;
The FHWA obtains credible information at any time indicating that the allegations raised by the complainant have been resolved, or are moot and there are no class-wide allegations or implications. In such a case, FHWA will attempt to ascertain the apparent resolution. If FHWA determines that there are no current allegations appropriate for further complaint resolution, the complaint will be closed;
The complainant decides to withdraw the complaint. If the complaint included class allegations, the FHWA may close out the entire complaint, pursue resolution of the class allegations, or use the information to target future compliance review activity;
The same complaint allegations have been filed with another Federal, State, or local agency, or through a respondent's internal grievance procedures, including due process proceedings, and FHWA anticipates that the respondent will provide the complainant with a comparable resolution process under comparable legal standards; e.g., all allegations were investigated, appropriate legal standards were applied, and any remedies secured meet USDOT's standards;
The FHWA refers a complaint over which USDOT has jurisdiction to another agency that also has jurisdiction but may be better suited to conduct the investigation;
A complaint, because of its scope, may require extraordinary resources. In such instances, FHWA may consider treating such a complaint as a compliance review. Similarly, a compliance review may be the most effective means of addressing multiple individual complaints against the same respondent; or,
If FHWA selects this option, it should discuss the decision with the complainant(s), close the complaint, and initiate the review as soon as possible. The FHWA should provide the complainant(s) with a copy of the resolution documents upon completion of the compliance review.

J. Letters of Finding (LOFs)

The HCR has delegated authority for issuing LOFs for all complaints processed by the FHWA.
A Title VI finding of violation, no violation, or dismissal is a Federal decision that cannot be delegated. Although an STA can conduct a Title VI investigation of its sub-recipients or contractors and make a recommended finding to the Federal decision-making authority, the FHWA has delegated authority for all final decisions, dismissals, and LOFs.

K. Appeals

LOFs issued by the FHWA are administratively final.

CHAPTER 3: INVESTIGATIVE PROCESS

3-1 Scope of the Investigation

An investigation should be confined to the issues and facts relevant to the allegations in the complaint, unless evidence shows the need to extend the issues. A future compliance review of the respondent may be appropriate when issues identified during the investigation cannot be covered within the scope of the investigation.

3-2 Developing an Investigative Plan

The investigator shall prepare an Investigative Plan (IP) which is a working document intended to define the issues and lay out the blueprint to complete the investigation. The IP is an internal document for use by the investigator to keep the investigation on track and focused on the issues and likely sources of evidence or corroboration. The IP should follow the outline below.

COMPLAINANT(S) NAME AND ADDRESS
ATTORNEY FOR THE COMPLAINANT(S)–(NAME AND ADDRESS), if applicable
RESPONDENT(S) NAME AND ADDRESS
ATTORNEY FOR THE RESPONDENT(S)–(NAME AND ADDRESS), if applicable
APPLICABLE LAW(S)
BASIS/(ES)
ALLEGATION(S)/ISSUE(S)
THEORY(IES) OF DISCRIMINATION (for Title VI only)
BACKGROUND
NAME OF PERSONS TO BE INTERVIEWED
1. QUESTIONS FOR THE COMPLAINANT(S)
2. QUESTIONS FOR THE RESPONDENT(S)
3. QUESTIONS FOR WITNESS(ES)
EVIDENCE TO BE OBTAINED DURING THE INVESTIGATION

3-3 Investigative Log

An investigative log should be maintained which documents all activity related to the complaint. (SEE APPENDIX: C-1)

3-4 Request for Information and Cover Letter

The investigator should prepare a Request for Information (RFI) and cover letter for the respondent. The RFI is taken directly from the evidence section of the IP.

The investigator should make contact with the respondent to advise of the complaint and to determine the appropriate official(s) to interview and receive the RFI. A cover letter should be sent with the RFI explaining the complaint under investigation, and including the investigator's name and information regarding any scheduled meetings. (SEE APPENDICIES: D-3 and E-6)

The respondent should be given 30 calendar days from the date of the agency's request to submit the required information. The agency may modify the timeframe depending on the extent of the data requested or other special circumstances.

3-5 Interviews

Interviews should be conducted with the complainant, respondent, and appropriate witnesses during the investigative process.

A. Conducting the Interviews

The main objective during the interview is to obtain information from witnesses who can provide information that will either support or refute the allegations. A list of major questions should be prepared to address the issues involved in the complaint. During the interview, the investigator will generally do the following:

Introduce themselves, provide identification, state the purpose of the interview, and outline the interview process. Indicate that notes will be taken. Make it clear that the investigator will not use a tape recorder. Take clear and precise notes.
Put the individual being interviewed at ease;
Ask open ended questions that will get the witness's perception – who, what, where, when, and how;
Listen actively and effectively during the interview;
Distinguish factual information from opinions; and,
Review the statement with the interviewee and allow time for changes or corrections.

B. Persons to be Interviewed

1. Complainant(s)

Complainants are interviewed to gain a better understanding of the situation outlined in the compliant of discrimination. Usually, complaints are received through the mail from complainants. The investigator should contact the complainant to ensure they understand the complainant's concerns. Sometimes the complainant's concerns may be totally different from what was written in the complaint.

It is best to interview the complainant before completing the IP. However, if this cannot be done, the investigator must be ready to make any changes as appropriate to the IP based on any new information provided by the complainant.

The investigator should also question the complainant regarding resolution opportunities.

2. Respondent(s)

Respondents have the right to know the allegations raised in the complaint. Respondents are interviewed to provide an opportunity to respond to the issues raised by the complainant. The interview should include obtaining an understanding of the respondent's operation and policies relative to the allegations cited in the complaint.

Respondents should always be advised that they will be asked to submit a formal position statement addressing the complainant's allegations.

The investigator should also question the respondent regarding resolution opportunities.

3. Witness(es)

The complainant or respondent may have persons they wish the investigator to contact. Individuals who have information relevant to the allegations raised in the complaint of discrimination should be interviewed. The investigator will determine whether the testimony provided by a witness is relevant.

The investigator will also determine when enough interviews have been conducted.

C. Right to Representation

The complainant, respondent, and witnesses have the right to a representative present during interviews.

D. Record of Interview

A written record of both telephone and in-person interviews must be created and kept in the investigative case file.

3-6 Failure by the Respondent to Provide Access to Information

Respondents should provide investigative access to all books, records, accounts, electronic media, audiotapes, and other sources of information or facilities necessary to determine compliance. Failure by a respondent to cooperate fully can be grounds for a determination of noncompliance on the part of the respondent.

A. A Respondent Denies Access When It:

Refuses to permit access to its employees and facilities during normal business hours to conduct interviews or obtain written or unwritten information, such as electronic storage media, microfilm, retrieval systems, and photocopies; or
Fails to provide information by virtue of the refusal of one of its employees to do so or to provide access to information maintained exclusively by an employee in his or her official capacity.

B. If Access is Denied, the Investigator Should do the Following:

If the refusal is stated verbally, either in person or over the telephone, the investigator should ascertain the basis for the respondent's refusal and explain DOT's authority under 49 CFR 21.13, 49 CFR 27.11, and 23 CFR 1.36.
Where attempts to persuade a respondent to provide information have failed, a letter should be prepared setting forth DOT's authority to obtain access to the information and addressing any particular concerns expressed by the respondent.
Whenever HCR determines that compliance cannot be achieved, it will initiate compliance actions under 49 CFR 21.13, 49 CFR 27.11, or 23 CFR 1.36.

The investigator should indicate in the IR that the respondent refused to provide pertinent information and describe efforts made to obtain the information, including the identity of persons not cooperating in the investigation.

There may be instances where another agency, institution, or person, has exclusive possession of information and refuses to furnish this information to the respondent.

The respondent should certify that this has occurred in its response or report to FHWA and describe what efforts it has made to obtain the information.

3-7 On-Site Visits

A. Determining if an On-Site Visit is Needed for Title VI Investigations

NOTE: All ADA complaints involving the public right-of-way will require an on-site review.

A thorough investigation can often be conducted without an on-site visit to the respondent's facility. If all the following conditions are present, an on-site visit is usually unnecessary:

Individuals are not the primary source of information needed (e.g., interviews are unnecessary or can be done by telephone);
All needed information can be specified precisely in the RFI and can be easily provided by the respondent;
The respondent can provide written documentation to verify its position in its response to the RFI; and,
There is good reason to conclude that the complainant is the only person affected by the alleged discrimination.

After analyzing the respondent's response to the RFI, the investigator may decide that a visit to the respondent's facility is necessary. The investigator should consider the possibility of conducting a portion of the investigation on-site if any of the following apply:

Personal contact with the complainant and the respondent may yield information and clarification that might not otherwise be discovered by just reviewing written documents or speaking over the telephone;
A more accurate impression of the physical environment and general atmosphere of the respondent and the surrounding community can be obtained, which may help in making a determination on the complaint;
Some documentation can only be examined on-site for reasons of convenience, cost, format, or bulk.

B. Notifying the Respondent of an On-Site Visit

After the investigator has received and reviewed the documents contained in the RFI from the respondent, a determination should be made as to whether an on-site visit is needed. An on-site notification letter should be sent to the respondent advising it of the planned visit.

At this point of the investigative process, the respondent is already aware of the existence of the complaint, FHWA's jurisdiction, and the basis of the complaint. However, the letter notifying the respondent of the scheduled on-site visit may:

Restate the allegations made by the complainant, the basis, and the legal authority under which the complaint is being investigated;
State the section of the appropriate regulation that prohibits the discrimination;
Request additional information or data needed before the on-site visit, including a deadline for submission;
Identify any additional data that should be made available during the on-site visit; and,
Request that the respondent's staff to be interviewed and those responsible for the release of additional records be available during the on-site visit.

C. Impartiality of the Investigator

The investigator should conduct an unbiased investigation. In addition, the investigator should not express opinions or conclusions to the public/complainant/respondent concerning matters under investigation unless specifically authorized to do so.

D. Exit Conference During On-Site Visit

Upon completion of the on-site visit, but before returning to the home office, the investigator should review the information and cross-check it with the IP and RFI to ensure that all needed information has been collected. Missing information should be gathered during an exit conference, which provides an opportunity for the investigator to clarify any questions that may have arisen and request any additional information.

3-8 Analyzing Evidence – Title VI Only

A. Standard of Proof

"The standard of proof applied in making a determination of noncompliance should be one of preponderance of evidence. The preponderance of evidence as a standard of proof in civil cases is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it . . . ."(Black's Law Dictionary)

A formal noncompliance finding may be challenged at an administrative hearing. The evidentiary standard that will be applied by the hearing examiner will be a preponderance of the evidence. Thus, formal findings of noncompliance should not be issued unless the preponderance standard is met.

B. Evidence Collected

The information and data collected depend upon the issues involved in the case. Properly collected and analyzed information is central to compliance investigations. The importance of developing a thorough and complete IP of the information you need in order to determine compliance cannot be overemphasized.

Evidence standing alone does not prove a violation. It must be related to the policies and procedures of the respondent and issues under investigation. To ensure the value of the collected and analyzed evidence, the investigator should:

Note when the document was received and from whom;
Keep the original copy of the document clean and free from marks, tears, etc;
Photocopies of the documents should be made for work sheets;
Keep the documents filed in a safe place so that they will not get lost or inadvertently removed by co-workers; and,
Document the circumstances under which the evidence was collected. Remember why the evidence was collected; what questions elicited the evidence; whether any statistical techniques were applied to the evidence, and if so, what they were.

C. Reviewing Evidence

Determining compliance can be done by the analysis of non-numerical evidence as well as numerical evidence, or both. When reviewing non-numerical data the investigator should remember to do the following:

1. Read and Interpret

Be sure to have a clear and thorough understanding of what the document says.
Seek clarification where needed to understand the written language, e.g., obtain definitions for abbreviations; identify words and phrases that are key to proper interpretation of the message; where words used within a given context do not take on an obvious meaning, ask interpretive questions; do not make assumptions about the author's thinking.
Never read meanings into the evidence. Accept the evidence at face value.

2. Determine Relevance

Read with a purpose.
Know what information or answers you are looking for.
Recognize the presence or absence of needed information.
Where the evidence: (1) does not provide the answers needed, (2) does not provide any direction to a source for the answers needed, or (3) does not raise additional questions (issue-related), the evidence, at least for the moment, is not relevant. However, the fact that evidence is not relevant at this time does not mean that it could not become relevant at a later stage of the investigation.
Categorize the evidence by issue allegation. This is another test of the relevance of evidence.

3. Verify the Evidence

Develop a system for cross-checking.
Identify conflicting information and resolve the conflict to the extent possible. Conflicts should be resolved in order to establish validity of the evidence.

4. Assemble the Evidence

Develop an information flow pattern. Put the evidence together so that it illustrates a logical continuity of dependent or related independent occurrences leading to a conclusion.
Be sure to "plug up the gaps" in any information you have gathered.

5. Draw Conclusions

Allow the evidence to speak for itself.
Test conclusions by considering all possible rebuttal arguments from the respondent and the complainant.
Both the respondent and the complainant should be given an opportunity to confirm or rebut the assertions of the other party.

3-9 Exit Interview

The exit interview is conducted separately for the complainant and the respondent. The exit interview provides an opportunity for the investigator, as well as the respondent and the complainant, to clarify any questions that may have arisen and to provide any additional information. The investigator should explain that this exit interview may not be an end to the investigation. The investigator should also explain the process HCR will follow, if a violation is found.

The investigator may have already reached a conclusion as to whether the respondent is in compliance or noncompliance with the FHWA's requirements. Should this happen, it is important that the investigator do not communicate that opinion during the exit interview.

3-10 Preparing the Investigative Report (IR)/Report of Investigation (ROI)

The investigator should prepare an IR/ROI setting forth all the relevant facts obtained during the investigation. The IR/ROI should include a finding for each issue and recommendations where necessary. A copy of the IR/ROI should never be given to the respondent or complainant. (SEE APPENDICES: D-21, D-22, E-22 and E-23)

References should be used throughout the IR/ROI to direct the reader to the appropriate supporting documentation in the investigative case file. For large case files, it is suggested that the IR/ROI include an index of documents and a key referencing by tab the evidence in the file relied upon in making any determination.

Upon HCR's review of the IR/ROI, a determination may be made that additional evidence is necessary prior to issuing the LOF.

CHAPTER 4: INVESTIGATIVE CASE FILE

4-1 Creating the Investigative Case File

The investigative case file is a structured compilation of all documents and information, within your agency's possession, pertaining to the case. An investigative case file should be established for each complaint which your agency accepts for investigation.

Complaints that are administratively closed for lack of jurisdiction, because they are untimely filed or, for failure to exhaust local remedies, or for failure to state a claim over which the agency has jurisdiction do not require an investigative case file.

The purpose of the investigative case file is to establish a methodology for the systematic compilation and structured storage of all documents, records, and information associated with the case. This is done in such a manner that the investigative case file: (a) provides the basis and supporting documentation for the IR/ROI, and (b) allows a reader of the IR/ROI to easily verify the facts upon which they are based. (SEE APPENDIX: C)

4-2 Distribution of the Investigative Case Files

HCR is responsible for all investigative case files regardless of the agency possessing the physical documents. HCR will provide copies of investigative case files in accordance with the FOIA. Closed investigative case files will be maintained for 4 years, after which they will be archived or destroyed in accordance with the FHWA document retention policy.

LIST OF APPENDICES

Appendix

A	HCR's Memorandum Processing Complaints Filed Under Title VI of the Civil Rights Act of 1964 (Title VI) and the Americans with Disabilities Act of 1990 (ADA) Dated January 18, 2008 to Division Administrators/Assistant Division Administrators with Attached Letter Dated March 22, 2006 Processing Complaints Filed Under Title VI and ADA
B	Complaint Form
Appendix C – Samples for Title VI and Section 504/ADA Complaints
C	Investigative Case File
C-1	Sample Investigator's Log
C-2	Informal Settlement Agreement
Appendix D – Sample Letters for Title VI Complaints
D	Acknowledgement Letter to Complainant with Attachments
D-1	No Jurisdiction – Referral to Federal Agency
D-2	No Jurisdiction - Referral to Complainant
D-3	Acceptance Letter and RFI to the Respondent
D-4	Acceptance Letter to Complainant/Multiple Allegations (If an Acknowledgement of Receipt Letter was Provided)
D-5	Acknowledgement of Receipt and Acceptance Letter to the Complainant
D-6	Notification of Complaint Memorandum to Division Office
D-7	Referral Letter to STA for Investigation
D-8	Acknowledgement Letter to Complainant For STA Investigation Referral
D-9	Letter of Finding (LOF) based on STA Investigation - No Violation (Letter to the Complainant)
D-10	LOF based on a STA Investigation - No Violation (Letter to the Respondent)
D-11	LOF based on a STA Investigation - No Violation w/Recommendation (Letter to the Respondent)
D-12	FHWA Investigation - Violation LOF (Letter to the Complainant)
D-13	FHWA Investigation - Violation LOF (Letter to the Respondent)
D-14	FHWA Investigation - Violation LOF/Compliance Achieved (Letter to the Respondent)
D-15	FHWA Investigation - No Violation LOF (Letter to the Respondent)
D-16	FHWA Investigation - No Violation LOF (Letter to the Complainant)
D-17	Letter Confirming On-Site Visit
D-18	Closure Letter to Complainant (Withdrawal of Complaint and/or Issues Resolved)
D-19	FHWA Investigation (Failure to Provide Documents)
D-20	Sample Investigative Plan
D-21	Writing the Investigative Report (IR)
D-22	Sample IR
Appendix E – Sample Letters for Section 504/ADA Complaints
E	Acknowledgment Letter to Complainant
E-1	Transmittal Memorandum to Division Office – Forwarding ADA Complaint For Investigation
E-2	No Jurisdiction – Referral to USDOJ (Letter to Complainant)
E-3	No Jurisdiction – Referral to USDOJ (Letter to USDOJ)
E-4	No Jurisdiction – Referral to Federal Agency (Letter to Complainant)
E-5	No Jurisdiction – Referral to Federal Agency (Memorandum to the Federal Agency)
E-6	Request For Information (RFI) to Respondent and On-Site Visit Schedule (Sample RFI)
E-7	Transmittal Memorandum to Division Office LOF Violations
E-8	LOF to Complainant – Violations
E-9	LOF to Respondent – Violations
E-10	Transmittal Memorandum to Division Office – No Violations
E-11	LOF to Complainant – No Violations
E-12	LOF to Respondent – No Violations
E-13	Transmittal Memorandum to Division Office – Violations/Compliance Achieved
E-14	Updated Letter to Complainant Violations/Compliance Achieved
E-15	Updated Letter to Respondent Violations/Compliance Achieved
E-16	Transmittal Memorandum to Division Office – Closure Letter to Complainant Attached (Withdrawal of Complaint and/or Allegations Resolved)
E-17	Closure Letter to Complainant (Withdrawal of Complaint and/or Allegations Resolved)
E-18	Transmittal Memorandum to Division Office – Respondent's Failure to Cooperate and Provide Requested Information (Complaint Referred to USDOJ for Enforcement)
E-19	Letter to Complainant – Respondent's Failure to Cooperate and Provide Requested Information (Complaint Referred to USDOJ for Enforcement)
E-20	Letter to DOJ – Respondent's Failure to Cooperate and Provide Requested Information (Complaint Referred to USDOJ for Enforcement)
E-21	Sample Investigative Plan
E-22	Writing the Report of Investigation (ROI)
E-23	Sample ROI

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Page last modified on October 25, 2018