| 45 CFR 1225
TITLE 45--PUBLIC WELFARE
CHAPTER XII--CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
PART 1225--VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE
Subpart A--General Provisions
Sec.
1225.1 Purpose.
1225.2 Policy.
1225.3 Definitions.
1225.4 Coverage.
1225.5 Representation.
1225.6 Freedom from reprisal.
1225.7 Review of allegations of reprisal.
Subpart B--Processing Individual Complaints of Discrimination
1225.8 Precomplaint procedure.
1225.9 Complaint procedure.
1225.10 Corrective action.
1225.11 Amount of attorney fees.
Subpart C--Processing Class Complaints of Discrimination
1225.12 Precomplaint procedure.
1225.13 Acceptance, rejection, or cancellation of complaint.
1225.14 Consolidation of complaints.
1225.15 Notification and opting out.
1225.16 Investigation and adjustment of complaint.
1225.17 Agency decision.
1225.18 Notification of class members of decision.
1225.19 Corrective action.
1225.20 Claim appeals.
1225.21 Statutory rights.
Authority: Secs. 417, 402(14), 420, Pub. L. 93-113, 87 Stat. 398,
407, and 414; Sec. 5(a), Pub. L. 87-293, 75 Stat. 613; Executive Order
12137, issued May 16, 1979.
Source: 46 FR 1609, Jan. 6, 1981, unless otherwise noted.
Subpart A--General Provisions
Sec. 1225.1 Purpose.
The purpose of this part is to establish a procedure for the filing,
investigation, and administrative determination of allegations of
discrimination based on race, color, national origin, religion, age,
sex, handicap or political affiliation, which arise in connection with
the recruitment, selection, placement, service, or termination of Peace
Corps and ACTION applicants, trainees, and Volunteers for full-time
service.
Sec. 1225.2 Policy.
It is the policy of Peace Corps and ACTION to provide equal
opportunity in all its programs for all persons and to prohibit
discrimination based on race, color, national origin, religion, age,
sex, handicap or political affiliation, in the recruitment, selection,
placement, service, and termination of Peace Corps and ACTION
Volunteers. It is the policy of Peace Corps and ACTION upon determining
that such prohibited discrimination has occurred, to take all necessary
corrective action to remedy the discrimination, and to prevent its
recurrence.
Sec. 1225.3 Definitions.
Unless the context requires otherwise, in this Part:
(a) Director means the Director of Peace Corps for all Peace Corps
applicant, trainee, or Volunteer complaints processed under this part,
or the Director of ACTION for all domestic applicant, trainee, or
Volunteer complaints processed under this part. The term shall also
refer to any designee of the respective Director.
(b) EO Director means the Director of the Equal Opportunity Division
of the Office of Compliance, ACTION. The term shall also refer to any
designee of the EO Director.
(c) Illegal discrimination means discrimination on the basis of
race, color,
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national origin, religion, age, sex, handicap or political affiliation
as defined in section 5(a) of the Peace Corps Act (22 U.S.C. 2504);
section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000-16); Title V
of the Rehabilitation Act of 1973 (29 U.S.C. 791, et seq.); and the Age
Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). Further
clarification of the scope of matters covered by this definition may be
obtained by referring to the following regulations: Sex Discrimination:
29 CFR part 1604; Religious Discrimination: 29 CFR part 1605; National
Origin Discrimination: 29 CFR part 1606; Age Discrimination: 45 CFR part
90; Handicap Discrimination: 29 CFR 1613.701 through 1613.707.
(d) Applicant means a person who has submitted to the appropriate
agency personnel a completed application required for consideration of
eligibility for Peace Corps or ACTION volunteer service. ``Applicant''
may also mean a person who alleges that the actions of agency personnel
precluded him or her from submitting such an application or any other
information reasonably required by the appropriate personnel as
necessary for a determination of the individual's eligibility for
volunteer service.
(e) Trainee means a person who has accepted an invitation issued by
Peace Corps or ACTION and has registered for Peace Corps or ACTION
training.
(f) Volunteer means a person who has completed successfully all
necessary training; met all clearance standards; has taken, if required,
the oath prescribed in either section 5(j) of the Peace Corps Act (22
U.S.C. 2504), or section 104(c) of the Volunteer Service Act of 1973, as
amended (42 U.S.C. 104(c)) and has been enrolled as a full-time
Volunteer by the appropriate agency.
(g) Complaint means a written statement signed by the complainant
and submitted to the EO Director. A complaint shall set forth
specifically and in detail:
(1) A description of the Peace Corps or ACTION management policy or
practice, if any, giving rise to the complaint;
(2) A detailed description including names and dates, if possible,
of the actions of the Peace Corps or ACTION officials which resulted in
the alleged illegal discrimination;
(3) The manner in which the Peace Corps or ACTION action directly
affected the complainant; and
(4) The relief sought.
A complaint shall be deemed filed on the date it is received by the
appropriate agency official. When a complaint does not conform with the
above definition, it shall nevertheless be accepted. The complainant
shall be notified of the steps necessary to correct the deficiencies of
the complaint. The complainant shall have 30 days from his or her
receipt of notification of the complaint defects to resubmit an amended
complaint.
(h) Counselor means an official designated by the EO Director to
perform the functions of conciliation as detailed in this part.
(i) Agent means a class member who acts for the class during the
processing of a class complaint. In order to be accepted as the agent
for a class complaint, in addition to those requirements of a complaint
found in Sec. 1225.3(g) of this part, the complaint must meet the
requirements for a class complaint as found in subpart C of these
regulations.
Sec. 1225.4 Coverage.
(a) These procedures apply to all Peace Corps or ACTION applicants,
trainees, and Volunteers throughout their term of service with the Peace
Corps or ACTION. When an applicant, trainee, or Volunteer makes a
complaint which contains an allegation of illegal discrimination in
connection with an action that would otherwise be processed under a
grievance, early termination, or other administrative system of the
agency, the allegation of illegal discrimination shall be processed
under this part. At the discretion of the appropriate Director, any
other issues raised may be consolidated with the discrimination
complaint for processing under these regulations. Any issues which are
not so consolidated shall continue to be processed under those
procedures in which they were originally raised.
(b) The submission of class complaints alleging illegal
discrimination
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as defined above will be handled in accordance with the procedure
outlined in subpart C.
Sec. 1225.5 Representation.
Any aggrieved party may be represented and assisted in all stages of
these procedures by an attorney or representative of his or her own
choosing. An aggrieved party must immediately inform the agency if
counsel is retained. Attorney fees or other appropriate relief may be
awarded in the following circumstances:
(a) Informal adjustment of a complaint. An informal adjustment of a
complaint may include an award of attorney fees or other relief deemed
appropriate by the EO Director. Where the parties agree on an adjustment
of the complaint, but cannot agree on whether attorney fees or costs
should be awarded, or on their amount, this issue may be appealed to the
appropriate Director to be determined in the manner detailed in
Sec. 1225.11 of this part.
(b) Final Agency Decision. When discrimination is found, the
appropriate Director shall advise the complainant that any request for
attorney fees or costs must be documented and submitted for review
within 20 calendar days after his or her receipt of the final agency
decision. The amount of such awards shall be determined under
Sec. 1225.11. In the unusual situation in which it is determined not to
award attorney fees or other costs to a prevailing complainant, the
appropriate Director in his or her final decision shall set forth the
specific reasons thereof.
Sec. 1225.6 Freedom from reprisal.
Aggrieved parties, their representatives, and witnesses will be free
from restraint, interference, coercion, discrimination, or reprisal at
any stage in the presentation and processing of a complaint, including
the counseling stage described in Sec. 1225.8 of this part, or any time
thereafter.
Sec. 1225.7 Review of allegations of reprisal.
An aggrieved party, his or her representative, or a witness who
alleges restraint, interference, coercion, discrimination, or reprisal
in connection with the presentation of a complaint under this part, may,
if covered by this part, request in writing that the allegation be
reviewed as an individual complaint of discrimination subject to the
procedures described in Subpart B or that the allegation be considered
as an issue in the complaint at hand.
Subpart B--Processing Individual Complaints of Discrimination
Sec. 1225.8 Precomplaint procedure.
(a) An aggrieved person who believes that he or she has been subject
to illegal dicrimination shall bring such allegations to the attention
of the appropriate Counselor within 30 days of the alleged
discrimination to attempt to resolve them. The process for notifying the
appropriate Counselor is the following:
(1) Aggrieved applicants, trainees or Volunteers who have not
departed for overseas assignments, or who have returned to Washington
for any administrative reason shall direct their allegations to the EO
Director for assignment to an appropriate Counselor.
(2) Aggrieved trainees or Volunteers overseas shall direct their
allegations to the designated Counselor for that post.
(3) Aggrieved applicants, trainees, and Volunteers applying for, or
enrolled in ACTION domestic programs shall direct their allegations to
the designated Counselor for that Region.
(b) Upon receipt of the allegation, the Counselor or designee shall
make whatever inquiry is deemed necessary into the facts alleged by the
aggrieved party and shall counsel the aggrieved party for the purpose of
attempting an informal resolution agreeable to all parties. The
Counselor will keep a written record of his or her activities which will
be submitted to the EO Director if a formal complaint concerning the
matter is filed.
(c) If after such inquiry and counseling an informal resolution to
the allegation is not reached, the Counselor shall notify the aggrieved
party in writing of the right to file a complaint of discrimination with
the EO Director within 15 calendar days of the aggrieved party's receipt
of the notice.
(d) The Counselor shall not reveal the identity of the aggrieved
party who has
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come to him or her for consultation, except when authorized to do so by
the aggrieved party. However, the identity of the aggrieved party may be
revealed once the agency has accepted a complaint of discrimination from
the aggrieved party.
Sec. 1225.9 Complaint procedure.
(a) EO Director. (1) The EO Director must accept a complaint if the
process set forth above has followed, and the complaint states a charge
of illegal discrimination. The agency will extend the time limits set
herein (a) when the complainant shows that he or she was not notified of
the time limits and was not otherwise aware of them, or (b) the
complainant shows that he or she was prevented by circumstances beyond
his or her control from submitting the matter in a timely fashion, or
(c) for other reasons considered sufficiently by the agency. At any time
during the complaint procedure, the EO Director may cancel a complaint
because of failure of the aggrieved party to prosecute the complaint. If
the complaint is rejected for failure to meet one or more of the
requirements set out in the procedure outlined in Sec. 1225.8 or is
cancelled, the EO Director shall inform the aggrieved party in writing
of this Final Agency Decision; that the Peace Corps or ACTION will take
no further action; and of the right, to file a civil action as described
in Sec. 1225.21 of this part.
(2) Upon acceptance of the complaint and receipt of the Counselor's
report, the EO Director shall provide for the prompt investigation of
the complaint. Whenever possible, the person assigned to investigate the
complaint shall occupy a position in the agency which is not, directly
or indirectly, under the jurisdiction of the head of that part of the
agency in which the complaint arose. The investigation shall include a
thorough review of the circumstances under which the alleged
discrimination occurred, and any other circumstances which may
constitute, or appear to constitute discrimination against the
complainant. The investigator shall compile an investigative file, which
includes a summary of the investigation, recommended findings of fact
and a recommended resolution of the complaint. The investigator shall
forward the investigative file to the EO Director and shall provide the
complainant with a copy.
(3) The EO Director shall review the complaint file including any
additional statements provided by the complainant, make findings of
fact, and shall offer an adjustment of the complaint if the facts
support the complaint. If the proposed adjustment is agreeable to all
parties, the terms of the adjustment shall be reduced to writing, signed
by both parties, and made part of the complaint file. A copy of the
terms of the adjustment shall be provided the complainant. If the
proposed adjustment of the complaint is not acceptable to the
complainant, or the EO Director determines that such an offer is
inappropriate, the EO Director shall forward the complaint file with a
written notification of the findings of facts, and his or her
recommendation of the proposed disposition of the complaint to the
appropriate Director. The aggrieved party shall receive a copy of the
notification and recommendation and shall be advised of the right to
appeal the recommended disposition to the appropriate Director. Within
ten (10) calendar days of receipt of such notice, the complainant may
submit his or her appeal of the recommended disposition to the
appropriate Director.
(b) Appeal to Director. If no timely notice of appeal is received
from the aggrieved party, the appropriate Director or designee may adopt
the proposed disposition as the Final Agency Decision. If the aggrieved
party appeals, the appropriate Director or designee, after review of the
total complaint file, shall issue a decision to the aggrieved party. The
decision of the appropriate Director shall be in writing, state the
reasons underlying the decision, shall be the Final Agency Decision,
shall inform the aggrieved party of the right to file a civil action as
described in Sec. 1225.21 of this part, and, if appropriate, designate
the procedure to be followed for the award of attorney fees or costs.
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Sec. 1225.10 Corrective action.
When it has been determined by Final Agency Decision that the
aggrieved party has been subjected to illegal discrimination, the
following corrective actions may be taken:
(a) Selection as a Trainee for aggrieved parties found to have been
denied selection based on prohibited discrimination.
(b) Reappointment to Volunteer service for aggrieved parties found
to have been early-terminated as a result of prohibited discrimination.
To the extent possible, a Volunteer will be placed in the same position
previously held. However, reassignment to the specific country of prior
service, or to the specific position previously held, is contingent on
several programmatic considerations such as the continued availability
of the position, or program in that country, and acceptance by the host
country of such placement. If the same position is deemed to be no
longer available, the aggrieved party will be offered a reassignment to
a position in as similar circumstances to the position previously held,
or to resign from service for reasons beyond his or her control. Such a
reassignment may require both additional training and an additional two
year commitment to volunteer service.
(c) Provision for reasonable attorney fees and other costs incurred
by the aggrieved party.
(d) Such other relief as may be deemed appropriate by the Director
of Peace Corps or ACTION.
Sec. 1225.11 Amount of attorney fees.
(a) When a decision of the agency provides for an award of
attorney's fees or costs, the complainant's attorney shall submit a
verified statement of costs and attorney's fees as appropriate, to the
agency within 20 days of receipt of the decision. A statement of
attorney's fees shall be accompanied by an affidavit executed by the
attorney of record itemizing the attorney's charges for legal services.
Both the verified statement and the accompanying affidavit shall be made
a part of the complaint file. The amount of attorney's fees or costs to
be awarded the complainant shall be determined by agreement between the
complainant, the complainant's representative and the appropriate
Director. Such agreement shall immediately be reduced to writing. If the
complainant, the representative and the agency cannot reach an agreement
on the amount of attorney's fees or costs within 20 calendar days of
receipt of the verified statement and accompanying affidavit, the
appropriate Director shall issue a decision determining the amount of
attorney fees or costs within 30 calendar days of receipt of the
statement and affidavit. Such decision shall include the specific
reasons for determining the amount of the award.
(b) The amount of attorney's fees shall be made in accordance with
the following standards: The time and labor required, the novelty and
difficulty of the questions, the skills requisite to perform the legal
service properly, the preclusion of other employment by the attorney due
to acceptance of the case, the customary fee, whether the fee is fixed
or contingent, time limitation imposed by the client or the
circumstances, the amount involved and the results obtained, the
experience, reputation, and ability of the attorney, the undesirability
of the case, the nature and length of the professional relationship with
the client, and the awards in similar cases.
Subpart C--Processing Class Complaints of Discrimination
Sec. 1225.12 Precomplaint procedure.
An applicant, trainee or Volunteer who believes that he or she is
among a group of present or former Peace Corps or ACTION Volunteers,
trainees, or applicants for volunteer service who have been illegally
discriminated against and who wants to be an agent for the class shall
follow those precomplaint procedures outlined in Sec. 1225.8 of this
part.
Sec. 1225.13 Acceptance, rejection or cancellation of complaint.
(a) Upon receipt of a class complaint, the Counselor's report, and
any other information pertaining to timeliness or other relevant
circumstances related to the complaint, the EO Director shall review the
file to determine whether to
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accept or reject the complaint, or a portion thereof, for any of the
following reasons:
(1) It was not timely filed;
(2) It consists of an allegation which is identical to an allegation
contained in a previous complaint filed on behalf of the same class
which is pending in the agency or which has been resolved or decided by
the agency;
(3) It is not within the purview of this subpart;
(4) The agent failed to consult a Counselor in a timely manner;
(5) It lacks specificity and detail;
(6) It was not submitted in writing or was not signed by the agent;
(7) It does not meet the following prerequisites.
(i) The class is so numerous that a consolidated complaint of the
members of the class is impractical;
(ii) There are questions of fact common to the class;
(iii) The claims of the agent of the class are representative of the
claims of the class;
(iv) The agent of the class, or his or her representative will
fairly and adequately protect the interest of the class.
(b) If an allegation is not included in the Counselor's report, the
EO Director shall afford the agent 15 calendar days to explain whether
the matter was discussed and if not, why he or she did not discuss the
allegation with the Counselor. If the explanation is not satisfactory,
the EO Director may decide to reject the allegation. If the explanation
is satisfactory, the EO Director may require further counseling of the
agent.
(c) If an allegation lacks specificity and detail, or if it was not
submitted in writing or not signed by the agent, the EO Director shall
afford the agent 30 days from his or her receipt of notification of the
complaint defects to resubmit an amended complaint. The EO Director may
decide that the agency reject the complaint if the agent fails to
provide such information within the specified time period. If the
information provided contains new allegations outside the scope of the
complaint, the EO Director must advise the agent how to proceed on an
individual or class basis concerning these allegations.
(d) The EO Director may extend the time limits for filing a
complaint and for consulting with a Counselor when the agent, or his or
her representative, shows that he or she was not notified of the
prescribed time limits and was not otherwise aware of them or that he or
she was prevented by circumstances beyond his or her control from acting
within the time limit.
(e) When appropriate, the EO Director may determine that a class be
divided into subclasses and that each subclass be treated as a class,
and the provisions of this section then shall be construed and applied
accordingly.
(f) The EO Director may cancel a complaint after it has been
accepted because of failure of the agent to prosecute the complaint.
This action may be taken only after:
(1) The EO Director has provided the agent a written request,
including notice of proposed cancellation, that he or she provide
certain information or otherwise proceed with the complaint; and
(2) Within 30 days of his or her receipt of the request.
(g) An agent must be informed by the EO Director in a request under
paragraph (b) or (c) of this section that his or her complaint may be
rejected if the information is not provided.
Sec. 1225.14 Consolidation of complaints.
The EO Director may consolidate the complaint if it involves the
same or sufficiently similar allegations as those contained in a
previous complaint filed on behalf of the same class which is pending in
the agency or which has been resolved or decided by the agency.
Sec. 1225.15 Notification and opting out.
(a) Upon acceptance of a class complaint, the agency, within 30
calendar days, shall use reasonable means, such as delivery, mailing,
distribution, or posting, to notify all class members of the existence
of the class complaint.
(b) A notice shall contain:
(1) The name of the agency or organizational segment thereof, its
location and the date of acceptance of the complaint;
(2) A description of the issues accepted as part of the class
complaint;
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(3) An explanation that class members may remove themselves from the
class by notifying the agency within 30 calendar days after issuance of
the notice; and
(4) An explanation of the binding nature of the final decision or
resolution of the complaint.
Sec. 1225.16 Investigation and adjustment of complaint.
The complaint shall be processed promptly after it has been
accepted. Once a class complaint has been accepted, the procedure
outlined in Sec. 1225.9 of this part shall apply.
Sec. 1225.17 Agency decision.
(a) If an adjustment of the complaint cannot be made the procedures
outlined in Sec. 1225.9 shall be followed by the EO Director except that
any notice required to be sent to the aggrieved party shall be sent to
the agent of the class or his or her representative.
(b) The Final Agency Decision on a class complaint shall be binding
on all members of the class.
Sec. 1225.18 Notification of class members of decision.
Class members shall be notified by the agency of the final agency
decision and corrective action, if any, using at the minimum, the same
media employed to give notice of the existence of the class complaint.
The notice, where appropriate, shall include information concerning the
rights of class members to seek individual relief and of the procedures
to be followed. Notice shall be given by the agency within ten (10)
calendar days of the transmittal of its decision to the agent.
Sec. 1225.19 Corrective action.
(a) When discrimination is found, Peace Corps or ACTION must take
appropriate action to eliminate or modify the policy or practice out of
which such discrimination arose, and provide individual corrective
action to the agent and other class members in accordance with
Sec. 1225.10 of this part.
(b) When discrimination is found and a class member believes that
but for that discrimination he or she would have been accepted as a
Volunteer or received some other volunteer service benefit, the class
member may file a written claim with the EO Director within thirty (30)
calendar days of notification by the agency of its decision.
(c) The claim must include a specific, detailed statement showing
that the claimant is a class member who was affected by an action or
matter resulting from the discriminatory policy or practice which arose
not more than 30 days preceding the filing of the class complaint.
(d) The agency shall attempt to resolve the claim within sixty (60)
calendar days after the date the claim was postmarked, or, in the
absence of a postmark, within sixty (60) calendar days after the date it
was received by the EO Director.
Sec. 1225.20 Claim appeals.
(a) If the EO Director and claimant do not agree that the claimant
is a member of the class, or upon the relief to which the claimant is
entitled, the EO Director shall refer the claim, with recommendations
concerning it to the appropriate Director for Final Agency Decision and
shall so notify the claimant. The class member may submit written
evidence to the appropriate Director concerning his or her status as a
member of the class. Such evidence must be submitted no later than ten
(10) calendar days after receipt of referral.
(b) The appropriate Director shall decide the issue within thirty
(30) days of the date of referral by the EO Director. The claimant shall
be informed in writing of the decision and its basis and that it will be
the Final Agency Decision on the issue.
Sec. 1225.21 Statutory rights.
(a) A Volunteer, trainee, or applicant is authorized to file a civil
action in an appropriate U.S. District Court:
(1) Within thirty (30) calendar days of his or her receipt of notice
of final action taken by the agency.
(2) After one hundred eighty (180) calendar days from the date of
filing a complaint with the agency if there has been no final agency
action.
(b) For those complaints alleging discrimination that occur outside
the United States, the U.S. District Court
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for the District of Columbia shall be deemed the appropriate forum.
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