Procedures Manual For Processing External Complaints of Discrimination
TABLE OF CONTENTS
Chapter 1: Introduction
1-1 Purpose and Applicability
1-2 Selected Authorities
Chapter 2: Processing Complaints
2-1 Complaint Intake
Chapter 3: Investigative Process
of the Investigation
an Investigative Plan
for Information and Cover
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
4-1 Creating the
Investigative Case File
4-2 Distribution of the
Investigative Case File
Appendices: List of
- Americans with Disabilities Act of 1990
- Americans with Disabilities Act Accessibility Guidelines
- Alternative Dispute Resolution
- Code of Federal Regulations
- Departmental Office of Civil Rights
- Federal Highway Administration
- Freedom of Information Act
- Headquarters Office of Civil Rights
- Investigative Plan
- Investigative Report
- Letter of Finding
- Limited English
- Operating Administration
- Report of Investigation
- State Transportation Agency
- United States Code
- U.S. Department of Justice
- U.S. Department of Transportation
CHAPTER 1: INTRODUCTION
1-1 Purpose and
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
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
participation in, be denied the benefits of, be subjected to discrimination
under any program or activity that receives or benefits from Federal financial
- 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
- 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.
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
C. Executive Orders (E.O.)
E.O. 12250,Leadership and Coordination of
E.O. 12898,Federal Actions to Address Environmental
Justice in Minority Populations and
E.O. 13166, Improving Access to Services for Persons with Limited
DOT Order 1000.18,Implementation of the DOT Title VI
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
Americans with Disabilities Act Accessibility Guidelines (ADA
Handbook Appendix B)
Revised Draft Public Rights-of-Way Accessibility Guidelines (PROWAG)
- FHWA's Memorandum Clarification of FHWA's Oversight Role in Accessibility, Dated September 12, 2006
CHAPTER 2: PROCESSING
2-1 Complaint Intake
A. Agencies Authorized to
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
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:
- A written explanation of what has
way to contact the complainant;
- The basis of the complaint, e.g.,
age, sex, race, color, national origin, or disability;
- The identification of the
respondent, e.g., agency/organization alleged to have discriminated;
- Sufficient information to
understand the facts that led the complainant to believe that discrimination
- The date(s) of the alleged
- 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.
- The complaint may be filed on a
computer disk, by audio tape, or in Braille.
- 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
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
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;
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;
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;
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
circumstances generated by DOT action have adversely affected the complainant;
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
- 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.
- 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
- 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)
- 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
- 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
- Complaints filed under Title VI with
STAs in which the STA is named as the respondent should be forwarded to HCR for
- 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
- 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.
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
- An anonymous complaint;
- Inquiries seeking advice or
- Courtesy copies of court
- Courtesy copies of complaints
addressed to other local, State, or Federal agencies;
- Newspaper articles; and,
- Courtesy copies of internal
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.
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)
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
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.
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
- 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;
- 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.
issued by the FHWA are administratively final.
CHAPTER 3: INVESTIGATIVE PROCESS
3-1 Scope of the Investigation
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
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
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)
- THEORY(IES) OF DISCRIMINATION (for Title VI only)
- NAME OF PERSONS TO BE INTERVIEWED
- QUESTIONS FOR THE COMPLAINANT(S)
- QUESTIONS FOR THE RESPONDENT(S)
- QUESTIONS FOR WITNESS(ES)
- EVIDENCE TO BE OBTAINED DURING THE INVESTIGATION
3-3 Investigative Log
investigative log should be maintained which documents all activity related to
the complaint. (SEE APPENDIX: C-1)
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)
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.
should be conducted with the complainant, respondent, and appropriate witnesses
during the investigative process.
A. Conducting the Interviews
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.
individual being interviewed at ease;
ended questions that will get the witness's perception – who, what, where,
when, and how;
actively and effectively during the interview;
factual information from opinions; and,
statement with the interviewee and allow time for changes or corrections.
to be Interviewed
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.
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
investigator should also question the complainant regarding resolution
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
should always be advised that they will be asked to submit a formal position
statement addressing the complainant's allegations.
investigator should also question the respondent regarding resolution
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.
investigator will also determine when enough interviews have been conducted.
complainant, respondent, and witnesses have the right to a representative
present during interviews.
D. Record of
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
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
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:
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.
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.
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.
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.
may be instances where another agency, institution, or person, has exclusive
possession of information and refuses to furnish this information to the respondent.
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.
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
are not the primary source of information needed (e.g., interviews are
unnecessary or can be done by telephone);
information can be specified precisely in the RFI and can be easily provided by
can provide written documentation to verify its position in its response to the
There is good
reason to conclude that the complainant is the only person affected by the
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:
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;
documentation can only be examined on-site for reasons of convenience, cost,
format, or bulk.
B. Notifying the
Respondent of an On-Site Visit
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.
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
- 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;
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
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
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.
Evidence – Title VI Only
A. Standard of Proof
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
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
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.
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
- 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;
- 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
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:
- 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.
- Read with a purpose.
- Know what information or answers you
are looking for.
- Recognize the presence or absence of
- 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.
- 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.
- Allow the evidence to speak for itself.
- Test conclusions by considering all
possible rebuttal arguments from the respondent and the complainant.
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
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)
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
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
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|
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|
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
Letter and RFI to the Respondent|
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|
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
- Violation LOF (Letter to
- Violation LOF (Letter to
- Violation LOF/Compliance
Achieved (Letter to the Respondent)|
- No Violation LOF (Letter to the Respondent)|
- No Violation LOF (Letter to the Complainant)|
to Complainant (Withdrawal of
Complaint and/or Issues Resolved)|
(Failure to Provide Documents) |
Investigative Report (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
|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)|
Memorandum to Division Office
to Complainant – Violations|
|E-9||LOF to Respondent
– Violations |
Memorandum to Division
Office – No Violations |
|E-11||LOF to Complainant
– No Violations |
|E-12||LOF to Respondent
– No Violations|
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|
Memorandum to Division
Office – Closure Letter to Complainant Attached
(Withdrawal of Complaint and/or Allegations
|E-17||Closure Letter to
Complainant (Withdrawal of Complaint and/or Allegations Resolved)|
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)|
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