8 CSR 60-2.025 - Complaint, Investigation, and Conciliation Processes
(1) Who May
File. Any person claiming to be aggrieved by an unlawful discriminatory
practice may personally or by agent file with the commission a written and
verified complaint of the practice. A person filing a complaint as the agent of
a person claiming to be aggrieved, must file with the complaint a statement
signed by the person claiming to be aggrieved authorizing the agent to file the
complaint. Assistance in preparing and filing complaints shall be available to
any complainant at any office of the commission. The attorney general also may
file a complaint.
(2) Complaint
Form. Every complaint shall be in writing, signed, and verified by being sworn
to before a notary public, or other person duly authorized by law to administer
oaths and take acknowledgements, or by being supported by an affirmation or
declaration in writing under penalty of perjury. A facsimile or electronic
signature shall have the same effect as an original signature. "Electronic
signature" means any digital symbol, sound, or process attached to or logically
associated with a digital record and executed or adopted by a person with the
intent to sign the record. The commission will accept an array of digital
objects to serve as an electronic signature. These objects can range from
keyboarded characters (for example, "/s/Jane Doe"), a graphical image of a
handwritten signature, or an authenticated process that creates an electronic
signature. An electronic signature is considered attached to or logically
associated with a digital record if the electronic signature is linked to the
record during transmission and storage. The complaint shall state facts
supporting the allegations of unlawful discriminatory practice and the person
against whom the complaint is filed. The complaint shall be upon forms
furnished by the commission or Equal Employment Opportunity Commission (EEOC)
or other federal agencies which have work-sharing or deferral agreements with
the commission, or a local commission which has been certified as substantially
equivalent by the commission.
(3)
Time of Filing. Any complaint filed under Chapter 213, RSMo, shall be filed
within one hundred eighty (180) days of the alleged unlawful discriminatory
practice or its reasonable discovery.
(4) Place and Manner of Filing. A complaint
shall be deemed filed on the date actually received by the commission, a
commissioner or a member of the commission's staff when filed in person and on
the date postmarked when filed by mail, or in the case of a complaint
originally filed with the United States EEOC or other federal agencies, which
have worksharing or deferral agreements with the commission or a local
commission which has been certified as substantially equivalent by the
commission upon the date it is actually received by that commission. If the
alleged unlawful practice is of a continuing nature, the last date of this
practice shall be deemed to be the last date on which the practice continued,
or the date of the filing of the complaint, whichever is earlier. Copies of all
complaints filed with a local commission which has been certified as
substantially equivalent by the commission are to be forwarded to the
commission within seven (7) days of the filing of the complaint with the local
commission. If a local commission has jurisdiction to hear a complaint filed
with the commission, a complaint shall be deemed to have been filed with the
local commission on the date on which the complaint was filed with the
commission. Within seven (7) days of the receipt of a complaint which a local
commission has jurisdiction to hear, the commission shall forward a copy of the
complaint to the local commission.
(5) Amendment of the Complaint During
Investigation. The executive director, his/her designee or the complainant
shall have the power, reasonably and fairly to amend the complaint. The
original complaint and all amendments shall be treated together as a single
complaint. A complaint may be amended in any way provided the amended complaint
is filed within the time permitted under
8 CSR
60-2.025(3) for the filing of an
original complaint. After expiration of the time for filing an original
complaint, amendment of a complaint shall also be permitted to cure technical
defects or omissions and to clarify and amplify allegations made in the
complaint. Amendments alleging additional acts which constitute unlawful
discriminatory practices related to or growing out of the subject matter of the
original complaint shall relate back to the date the complaint was first
received. These amendments may join a person who was not named as a respondent
in the original complaint as an additional or substitute respondent. Notice of
this joinder shall be served upon the additional or substitute respondent
within thirty (30) days after the commission's receipt of a complaint amended
in this manner. The commission's notice also shall state the reason the person
has been joined as a party.
(6) Any
time prior to issuance of a notice of public hearing, a complaint may be
withdrawn upon written request and with the written consent of the executive
director.
(7) Dismissal of
Complaint.
(A) If the executive director or
his/her designee shall determine, either upon the face of the complaint or
after investigation, that the complaint shall be dismissed due to lack of
probable cause the same shall be dismissed.
(B) A complaint may be administratively
closed by the executive director or his/her designee at any stage prior to
setting the case for public hearing-
1. For
failure of the complainant to cooperate with the commission;
2. Upon the commission's inability to locate
the complainant;
3. For lack of
jurisdiction;
4. In the absence of
any remedy available to the complainant;
5. When the complainant files a suit in
federal court on the same issues against the respondent named in the commission
complaint;
6. When the commission
has not completed its administrative processing within one hundred eighty (180)
days from the filing of the complaint and the person aggrieved requests in
writing a notice of the right to bring a civil action in state court, the
executive director or his/her designee will administratively close the
complaint and issue the notice; or
7. In any other circumstance where the
executive director deems administrative closure to be appropriate.
(C) The parties shall be notified
by mail, digital transmission, facsimile, or personal service of the
commission's dismissal or administrative closure and of complainant's right of
appeal.
(D) The executive director
or his/her designee may vacate a dismissal or administrative closure of a
complaint within one hundred eighty (180) days of the date of the original
letter of notification when the dismissal or administrative closure was
inappropriate due to an administrative error.
(E) Any person aggrieved by dismissal of a
complaint may obtain judicial review by filing a petition in the circuit court
of the county of proper venue in the manner provided by section
536.150,
RSMo.
(8) Service of
Complaint upon Respondent. A copy of the complaint shall be served by the
commission upon the respondent by mail, digital transmission, facsimile, or
personal service, not more than thirty (30) calendar days after a verified
complaint has been received by the commission. This requirement shall not apply
to any complaint that has been dismissed prior to the time the service is
required. This requirement shall not apply to any complaint filed originally
with the EEOC or other federal agencies that have work-sharing or deferral
agreements with the commission or a local commission that has been certified as
substantially equivalent by the commission that will be deemed properly served
if service is effected according to the requirements of the agency with which
the complaint is originally filed. This requirement shall not apply to any
complaint that is under jurisdictional determination prior to docketing or in
which a housing or public accommodations test is being conducted; however, the
complaint shall be served within thirty (30) days of the conclusion of the
jurisdictional determination or of the test. In complaints alleging a violation
of sections 213.040,
213.045,
213.050, or
213.070, RSMo, to the extent
that the alleged violation of 213.070, RSMo, relates to or involves a violation
of one (1) or more of such other sections or relates to or involves the
encouraging, aiding, or abetting of a violation of such other sections, when
the complainant and respondent are served copies of the complaint, the
complainant shall be advised of the time limits and choice of forums provided
under the law and respondent shall be notified of respondent's procedural
rights and obligations under the law.
(9) Investigation. As part of the
investigation of any complaint not dismissed prior to service of the complaint
upon the respondent, the respondent shall be given an opportunity to present an
oral or written statement of its position. Investigations shall be accomplished
by methods including, but not limited to, fact-finding conferences, personal
interviews, written interrogatories, tests, requests for production of
documents, books or papers, or other materials and reviews of investigations of
other civil rights agencies. If a respondent refuses to cooperate with the
investigation, information needed may be subpoenaed. The secretary to the
commission shall issue subpoenas. Subpoenas shall be processed in accordance
with the provisions of Chapter 536, RSMo. For complaints alleging violation of
section 213.070, RSMo, as it relates to
or involves alleged violations of section
213.040,
213.045, or
213.050, RSMo, or as it relates
to or involves the alleged encouraging, aiding, or abetting the violation of
these sections and for complaints alleging violations of sections
213.040,
213.045, or
213.050, RSMo, the following
shall apply:
(A) The commission shall
commence proceedings with respect to the complaint before the end of the
thirtieth day after receipt of the complaint;
(B) The commission shall investigate the
allegations of the complaint and, unless it is impracticable, complete the
investigation in no more than one hundred (100) days after receipt of the
complaint. If the commission is unable to complete the investigation within one
hundred (100) days, it shall notify the complainant and respondent in writing
of the reasons for not doing so; and
(C) Unless it is impracticable to do so, the
commission shall make final administrative disposition of a complaint within
one (1) year of the date of receipt of a complaint. If the agency is unable to
do so, it shall notify the complainant and respondent in writing of the reasons
for not doing so.
(10)
Service of the Finding of Probable Cause. If, after investigation, the
executive director shall find probable cause to credit the allegations of the
complaint, that finding of probable cause shall be filed with the secretary to
the commission. Not more than fifteen (15) calendar days after the filing, the
commission shall serve, by certified mail, digital transmission, facsimile, or
personal service upon the complainant and the respondent, a copy of the
complaint and all amendments to the complaint, a copy of the finding of
probable cause, a copy of the commission's procedural regulations, and notice
that conciliation shall be attempted.
(11) Conciliation Attempts. Where the
executive director or his/her designee determines that there is probable cause
to credit the allegations of the complaint that an unlawful discriminatory
practice has occurred or is occurring, the executive director or his/her
designee shall endeavor to eliminate that practice by informal methods of
conference, conciliation, and persuasion. In conciliating a case, the executive
director or his/her designee shall attempt to achieve a resolution agreeable to
the parties of all violations found and to obtain an agreement that the
respondent will eliminate the unlawful discriminatory practice and provide
appropriate relief.
(12)
Conciliation Agreement. If, after a finding of probable cause, and as a result
of conference, conciliation, and persuasion, the executive director or his/her
designee shall determine that the alleged unlawful discriminatory practice of
which complaint is made will be remedied and eliminated by appropriate remedial
action to which the parties agree, the terms of the remedial action shall be
reduced to a written agreement and shall be signed by the respondent and the
complainant and by the executive director or his/her designee on behalf of the
commission. The written agreement shall constitute a final and enforceable
order of the commission.
(13)
Compliance Reports. The commission may require any party to submit to the
commission those compliance reports as it deems necessary to show the manner of
compliance with the terms of any conciliation agreement or settlement agreement
to which the parties and the commission may have agreed. The commission may
require the posting of fair employment, fair housing, or fair public
accommodations posters at the respondent's establishment.
(14) Failure of Conciliation.
(A) If the respondent does not respond within
fifteen (15) calendar days after the receipt of the proposed conciliation
remedy, the executive director or his/her designee may determine that
conciliation has failed as a result of inactivity on the part of the
respondent.
(B) If the executive
director is unable to eliminate the alleged unlawful discriminatory practice by
conference, conciliation, and persuasion, the executive director or his/her
designee shall make a determination that conciliation has failed. Conciliation
fails when either the respondent, the executive director or his/her designee,
or the complainant refuses to sign a conciliation agreement, or the respondent
or complainant otherwise indicates unwillingness to
conciliate.
(15)
Disclosure of Information in the Case Files.
(A) Nothing said or done in the course of
settlement or conciliation negotiations of employment or public accommodations
complaints shall be made public or used in evidence in any subsequent
proceeding under Chapter 213, RSMo, without the written consent of the
complainant and respondent. Any settlement or conciliation agreement of a
complaint alleging violation of section
213.070, RSMo, as it relates to
or involves alleged violations of section
213.040,
213.045, or
213.050, RSMo, or as it relates
to or involves the alleged encouraging, aiding or abetting the violation of
these sections or for a complaint alleging violation of section
213.040,
213.045, or
213.050, RSMo, shall be made
public unless the parties otherwise agree and the executive director determines
that disclosure is not required to further the purpose of Chapter 213,
RSMo.
(B) If a complaint has been
filed pursuant to Chapter 213, RSMo, alleging commission of an unlawful
discriminatory practice documents will remain confidential as provided in
section 213.077, RSMo. Additionally-
1. Sensitive or confidential records include
medical or personnel records of persons not party to the complaint;
2. After a notice of hearing has been issued,
the official records of the hearing shall be open; and
3. To achieve the purposes of Chapter 213,
RSMo, this rule shall not apply to disclosure of information to representatives
of interested federal, state, or local civil or human rights
agencies.
(C) No
information concerning intragovernmental advisory or deliberative functions
shall be disclosed.
Notes
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