CHAPTER 4 ‑ CIVIL RIGHTS DIVISION

 

SECTION .0100 - GENERAL

 

26 NCAC 04 .0101                INTRODUCTION

The Civil Rights Division shall process all deferred charges in accordance with the Federal regulations implementing Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act which are published in 29 C.F.R., Parts 900 through 1899 and are hereby incorporated by reference to include subsequent amendments.  Copies of 29 C.F.R., Parts 900 through 1899 are available at a cost of twenty-one dollars ($21.00) from the Government Printing Office, Superintendent of Documents, Attn. New Orders, PO Box 371954, Pittsburgh, PA 15250-7954.

 

History Note: Filed as a Temporary Rule Eff. October 15, 1986 for a period of 120 days to expire on

February 11, 1987;

Authority G.S. 7A-751; 7A‑759;

Eff. February 1, 1987;

Amended Eff. July 1, 1989;

Temporary Amendment Eff. January 1, 1998;

Amended Eff. August 1, 1998.

 

 

26 NCAC 04 .0102               CONTENT AND PROCEDURE

(a)  Any person wishing to file a complaint of alleged discrimination as defined in Rule .0101 of this Section with the EEOC shall address a petition to:

 

Director of Civil Rights Division

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

or

District Director

EEOC

129 West Trade Street

Charlotte, NC  28202

 

(b)  The petition shall include the following information:

(1) Full name, address and telephone number (work and home), of person making the charge;

(2) Full name and address of person or agency against whom the charge is made (the respondent);

(3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices;

(4) A statement of specific harm and dates the harm occurred;

(5) For each harm ‑ a statement specifying the act, policy or practice which is alleged to be unlawful;

(6) For each act, policy or practice alleged, a statement of the facts which lead the person to believe the act, policy or practice is discriminatory;

(7) The approximate number of employees of the respondent employer;

(8) A statement disclosing whether proceedings involving the alleged unlawful employment practices have been commenced before a state or local agency charged with the enforcement of fair employment practice laws and if so, the date of such commencement and the name of the agency.

(c)  Notwithstanding the provisions of this Paragraph (b), a charge is sufficient when the commission receives from the person making the charge a written statement sufficiently precise to identify the parties and to describe the action complained of.

(d)  The EEOC shall examine the petition and determine its appropriateness.  If appropriate, it shall be assigned an EEOC docket number and forwarded to the Office of Administrative Hearings, the designated 706 deferral agency.

(e)  The OAH shall assess the case to determine if it is within its authority.  If so, the case shall be assigned an OAH docket number. If the case is not within OAH's authority the case shall be returned to EEOC.

 

History Note: Filed as a Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on

February 11, 1987;

Authority G.S. 7A‑759;

Eff. February 1, 1987;

Amended Eff. December 1, 1999; April 1, 1991; April 1, 1989.

 

 

 

26 NCAC 04 .0103               NOTIFICATION OF INVESTIGATION

(a)  Upon a determination to investigate a case the OAH shall notify the complainant and the respondent that an investigation will be commenced.

(b)  Any person involved in a case wishing to submit information regarding the case must do so through written correspondence and sent to:

Director of Civil Rights Division

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

The correspondence must state the names of complainant and the respondent and the OAH docket number.

 

History Note: Filed as a Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on

February 11, 1987;

Authority G.S. 7A‑759;

Eff. February 1, 1987;

Amended Eff. December 1, 1999; April 1, 1991; April 1, 1989.

 

 

 

26 NCAC 04 .0104                ADDITIONAL INFORMATION

Persons desiring information in addition to that provided in a particular case may contact:

Civil Rights Division

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

 

History Note: Filed as a Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on

February 11, 1987;

Authority G.S. 7A‑759;

Eff. February 1, 1987;

Amended Eff. December 1, 1999; April 1, 1991; April 1, 1989.

 

 

 

26 NCAC 04 .0105                INVESTIGATION

(a)  All deferred cases received by the OAH will be assigned to an OAH Civil Rights Investigator.

(b)  The Civil Rights Investigator will conduct a comprehensive investigation of the charges, interviewing the charging party, appropriate agency personnel and any necessary witnesses.  The Civil Rights Investigator will obtain copies of all pertinent policies and documents from the agency and charging party.

(c)  The investigation will be conducted in a timely manner.

 

History Note: Filed as a Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on

February 11, 1987;

Authority G.S. 7A‑759; 150B‑11;

Eff. February 1, 1987;

Amended Eff. April 1, 1989.

 

 

 

26 NCAC 04 .0106                INVESTIGATION REPORT

(a)  An investigation report will be prepared examining the allegations in the deferral charge and applying the information produced during the investigation.

(b)  The Civil Rights Investigator will determine whether there is probable "Cause" or "No Cause" to believe the alleged discrimination has occurred.

(c)  If the investigation results in a "No cause" determination the report will be forwarded to the complainant, respondent and EEOC.

(d)  If the investigation results in a "Cause" determination the deferral will go to the conciliation and settlement stage.

 

History Note: Filed as a Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on

February 11, 1987;

Authority G.S. 7A‑759; 150B‑11;

Eff. February 1, 1987;

Amended Eff. April 1, 1989.

 

 

 

26 NCAC 04 .0107                CONCILIATION AND SETTLEMENT

(a)  The Civil Rights Investigator will contact the complainant and agency personnel to discuss the findings of the investigation and attempt a settlement of the deferral.

(b)  Upon reaching a settlement constituting full relief which is acceptable to both parties, the investigation report, the settlement documentation and the case file will be forwarded to the EEOC.

 

History Note: Filed as a Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on

February 11, 1987;

Authority G.S. 7A‑759; 150B‑11;

Eff. February 1, 1987;

Amended Eff. April 1, 1989.

 

 

 

26 NCAC 04 .0108               CONTESTED CASE HEARING

(a)  Any cause determination that has not resulted in settlement or conciliation will be heard by an Adminis­trative Law Judge in the Hearings Division.  The charging party shall commence the proceedings by filing a petition for a contested case hearing as provided in G.S. 7A‑759.   If the charging party has not filed a contested case petition within 60 days of Notice, the Civil Rights Division shall transfer the charging party's file to EEOC.  If the charging party files a timely petition, OAH shall conduct a hearing and issue a final decision which is binding upon the parties.

(b)  Pending the investigation, concilia­tion or settlement of a deferred charge, an Admin­istrative Law Judge shall enter a stay in any related or ancillary contested case proceedings involving the charging party.  If the charging party initiates a contested case as provided in Paragraph (a) of this Rule, the stay shall be lifted and the related proceedings shall be consolidated or joined when appropriate and tried before the presiding Administrative Law Judge.

(c)  The OAH investigative report shall be made available to all parties as provided in Section 83 of the EEOC Compliance Manual, Volume 1 (Octo­ber, 1987) incorporated herein by reference as well as subsequent amendments thereto.  Copies of Section 83 are available upon request from the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714 at no charge.

(d)  At the conclusion of the contested case hearing, the investigation report, the final decision in the contested case, and the case file will be forwarded to EEOC.

 

History Note: Filed as a Temporary Rule Eff. October 15, 1986 For a Period of 120 Days to Expire on

February 11, 1987;

Authority G.S. 7A‑759; 150B-21.6; 150B-26; 150B-33;

Eff. February 1, 1987;

Amended Eff. December 1, 1999; August 2, 1993; July 1, 1989.

 

 

 

26 NCAC 04 .0109                AUTHORITY TO ADMINISTER OATHS OR AFFIRMATIONS

When it is necessary to have the power to administer oaths or affirmations in investigating a specific charge, the Director or any employee of the Civil Rights Division may apply to the Chief Administrative Law Judge for such authority setting out the reasons therefore.

 

History Note: Authority G.S. 7A‑759; 150B‑11;

Eff. April 1, 1989.

 

 

 

26 NCAC 04 .0110               SUBPOENAS

If any subpoena, including a subpoena ducus tecum, is required for the proper investigation of a charge, the Director or any employee of the Civil Rights Division may apply to the Chief Administrative Law Judge for issuance of the subpoena under the authority of G.S. 7A‑756(2).  The subpoena shall issue in the discretion of the Chief Administrative Law Judge.

 

History Note: Authority G.S. 7A‑756; 150B‑11;

Eff. April 1, 1989.

 

 

 

SECTION .0200 - POLITICAL DISCRIMINATION COMPLAINTS

 

26 NCAC 04 .0201               DEFINITIONS

In addition to the definitions in G.S. 126-14.2, the following definitions apply to this Section:

(1) "Complainant" means a state employee or applicant for initial state employment who files a political discrimination complaint with the Civil Rights Division of the Office of Administrative Hearings according to G.S. 126-14.4.

(2) "Complaint" means a proceeding pursuant to this Section to resolve a dispute between an agency and another person that involves alleged political discrimination.

(3) "File or filing" a political discrimination complaint means to place the paper or document to be filed into the care, custody and acceptance of the Civil Rights Division.

(4) "No Probable Cause Determination" means the Civil Rights Division concludes that a violation of G.S. 126-14.2 has not occurred.

(5) "Probable Cause Determination" means the Civil Rights Division concludes that a violation of G.S. 126-14.2 has occurred.

(6) "Respondent" means a state, county, or local agency or department subject to G.S. 126 against whom a political discrimination complaint is filed.

(7) "Serve or Service" means personal delivery or delivery by first class United States Postal Service Mail or a licensed overnight express mail service, postage prepaid and addressed to the person to be served at his or her last known address. Service by mail or overnight express mail is complete upon placing the item to be served, enclosed in a wrapper addressed to the person to be served in an official depository of the United States Postal Service or upon delivery, postage prepaid and wrapped in a wrapper addressed to the person to be served to an agent of the overnight express mail service.

(8) "Third Party" means the person who has been allegedly hired or promoted in violation of G.S. 126-14.2.

 

History Note: Authority G.S. 7A-751; 126-14.4; 150B-2;

Temporary Adoption Eff. January 1, 1998;

Eff. August 1, 1998.

 

 

 

26 NCAC 04 .0202               CONTENT AND FILING PROCEDURES

(a)  Forms for filing political discrimination complaints may be obtained from the Civil Rights Division, 6714 Mail Service Center, Raleigh, NC 27699-6714  or 919-733-0431. Any person wishing to file a complaint of alleged political discrimination shall address the complaint to:

Director of Civil Rights Division

Office of Administrative Hearings

6714 Mail Service Center,

Raleigh, NC 27699-6714

(b)  The complainant may file a political discrimination complaint and related documents by facsimile (fax) transmission during regular office hours.  The faxed complaints and documents shall be deemed a "filing" within the meaning of 26 NCAC 4 .0201(3) provided the original complaint or documents are received by the Civil Rights Division within five business days following the faxed transmission.

(c)  The complaint shall include the following information:

(1) Full name, address and telephone number (work and home) of person making the complaint;

(2) Full name, address and telephone number of the agency against whom the complaint is made (the respondent);

(3) The basis of the complaint (hiring or promotion);

(4) The date the alleged discrimination occurred;

(5) The name(s) of the individual(s) hired or promoted;

(6) A statement disclosing the particulars of the employment decision;

(7) The signature of the person making the complaint; and

(8) The date the complainant signed the complaint.

 

History Note: Authority G.S. 7A-751; 126-14.4;

Temporary Adoption Eff. January 1, 1998;

Eff. August 1, 1998;

Amended Eff. December 1, 1999; August 1, 1998.

 

 

 

26 NCAC 04 .0203      TIME

Unless otherwise provided in the rules of the Office of Administrative Hearings or in a specific statute, time computations in political discrimination complaints before the Civil Rights Division shall be governed by G.S. 1A-1, Rule 6.

 

History Note: Authority G.S. 7A-751; 126-14.4;

Temporary Adoption Eff. January 1, 1998;

Eff. August 1, 1998.

 

 

 

26 NCAC 04 .0204      INITIAL DETERMINATION

The initial determination of probable cause or no probable cause shall be issued by the Director of the Civil Rights Division within 30 days of the filing of the complaint and forwarded to the complainant, respondent and the third party.

 

History Note: Authority G.S. 7A-751; 126-14.4;

Temporary Adoption Eff. January 1, 1998;

Eff. August 1, 1998.