6L Resolution of the Complaint

a. Initiating Settlement. The CO should be prepared to discuss settlement at any stage of the investigation, with the intent for the settlement to provide a just resolution of the violations. Before engaging in settlement discussions, the CO should advise the contractor that there is no prejudice to the position of the contractor for participating in settlement sessions prior to completion of the investigation, or for not participating in the discussions; and the contractor should not construe the government’s participation in settlement sessions as a waiver of the government’s right to proceed to a formal NORI if the settlement discussions are unsuccessful. The CO should provide his or her supervisor with all relevant information to assist in determining whether it is appropriate to enter settlement discussions.

b. Complainant Notification of Resolution. If, at any time prior to the completion of an investigation, the CO receives notification that the contractor and complainant have resolved the complaint to the complainant’s satisfaction, and the CO has not received any data or information indicating unresolved compliance concerns, the OFCCP may close the case. The CO should confirm that the contractor and complainant have resolved all of the complaint allegations, and that no one has forced or coerced the complainant into stating that the complaint is resolved.350

a. Contact with the Complainant. If the complaint investigation results in a proposed finding of “no violation,” the CO must contact the complainant prior to the issuance of a NORI. The CO will inform the complainant of the no violation finding, the factual findings, the types of records reviewed, and whether all of the witnesses the complainant and OFCCP identified were interviewed. The discussion regarding witnesses and witness statements should be in general terms without identifying specific witnesses or their statements. This contact will give the complainant an opportunity, prior to the completion of the investigation, to introduce new or previously unconsidered evidence. If new evidence is introduced, the contractor must be given the opportunity to respond. Such contact with the complainant or contractor may be in person or by telephone, but the CO must document when and how he or she made the contact. The documentation must also identify the issues discussed, the complainant’s response and any additional investigation the CO conducted as a result of this contact. If needed, the compliance officer may give the complainant 10 business days to provide additional material before issuing the NORI.

b. Request for Release of Documents. The CO must not release to any party any documents provided by any other party, the internal Investigative Report or interview transcripts. Based on Exemption 7(A) of the FOIA (5 U.S.C. 552(b)(7)(a)), OFCCP does not release records from an open investigation other than those provided by the requesting party itself.

a. Complaint Not Dual Filed under ADA and/or Title VII. If a complaint involves only Executive Order 11246, Section 503 and/or VEVRAA allegations that are not dual filed under the ADA and/or Title VII, and there is a no violation finding, the CO will issue the NORI to the complainant and contractor upon completion of the investigation.351

b. Complaints Dual Filed Under Section 503/ADA and Executive Order 11246/Title VII. If a complaint is dual filed under Section 503 and the ADA or under Executive Order 11246 and Title VII, and there is a no violation finding, the CO will issue a no violation NORI to the complainant and contractor upon completion of the investigation, along with a Notice of Right-to-Sue.352 Each NORI for dual filed complaints will also include the document entitled, Information Related to Filing Suit under Title VII and the ADA.353

If a complainant requests a Notice of Right-to-Sue in writing before 180 calendar days have passed since the filing of the complaint, and the Regional Director, or designee, can foresee that the investigation will extend beyond the 180th day, the Regional Director, or designee, will issue the Notice within 10 calendar days to the complainant. The Regional Director, or designee, should send copies to the complainant’s attorney (if any), the contractor and the appropriate EEOC field office. If a complaint investigation remains open after 180 calendar days from the complaint filing date, and the complainant requests a Notice of Right-to-Sue in writing, the Regional Director will issue the Notice within 10 calendar days to the complainant. The Regional Director, or designee, should send copies to the complainant’s attorney (if any), the contractor and the appropriate EEOC field office.354

Consistent with the Title VII and ADA procedures set forth at 29 CFR 1601.28, issuance of a Notice of Right-to-Sue upon request immediately terminates further OFCCP processing of the Title VII/ADA component of the complaint, unless it is determined at that time or at a later time that it would effectuate the purposes of Title VII/ADA to further process the Title VII/ADA component of the complaint. Upon issuance of the Notice, the Regional Director, or designee, can continue the complaint investigation or close the complaint without issuing a finding, noting his or her decision on the Notice of Right-to-Sue in the appropriate check box.

Any time that OFCCP administratively closes a dual filed complaint, a Notice of Right-to-Sue must be issued.355 Administrative closures may occur at the conclusion of complaint perfection or during the complaint investigation. With dual filed complaints that are administratively closed, the Regional Director, or designee, will issue the Notice of Right-to-Sue to the complainant and send copies of the Notice to the contractor and the appropriate EEOC field office.

OFCCP administratively closes complaint investigations for several reasons, including:

• Even if proven to be true, the allegations raised in the complaint would not be a violation of the laws enforced by OFCCP;
• Complainant did not file within the applicable timeframes and good cause was not shown for an extension of the filing period;
• Complainant failed to provide requested necessary information, failed to appear or refused to be available for necessary interviews or conferences, or otherwise refused to cooperate to the extent that OFCCP is unable to complete its investigation of the complaint; or
• The CO cannot locate or complainant failed to respond to a notification sent to last known address within reasonable timeframe.

If the CO’s investigation results in a finding of discrimination, a violation NORI must be issued.356 In dual filed cases under Section 503/ADA or Executive Order 11246/Title VII, if OFCCP issues a violation NORI, it will not issue a Notice of Right-to-Sue. A violation NORI invites the contractor to resolve the violations found through conciliation by informal means. The CO should telephone the contractor within five business days of its receipt of the NORI to arrange the conciliation meeting.

a. Conciliation Meeting. The conciliation meeting is the method by which OFCCP attempts to obtain voluntary compliance. The complainant is not a party to the conciliation. However, the CO should keep the complainant informed of the progress of any discussions and meetings, in order to gather further input and to discuss proposed settlements.

b. Reasonable Conciliation Agreement. If the field office believes it has arrived at a reasonable CA, which the complainant accepts, the contractor will acknowledge its responsibility by signing a CA.357

If the complainant will not accept what the field office considers to be a reasonable conciliation, the field office may cease its efforts on behalf of the complainant, but must nevertheless obtain from the contractor correction of any policies or practices which caused the discrimination. The steps in accomplishing this are as follows:

1. Request that the contractor submit, in writing, a full statement of its terms for conciliation to be maintained in the case file;

2. Notify the complainant, in writing, of the full details of the CA and request a written reply accepting or rejecting the conciliation terms;

3. If the complainant rejects the terms of conciliation and the field office considers the terms to be reasonable, the office will provide the complainant an opportunity to reconsider the conciliation terms; and

4. If the field office considers the offered conciliation terms to be reasonable and the complainant persists in refusing to accept them, the office will cease its efforts on behalf of the complainant and close the case file, providing the complainant with a Notice of Right-to-Sue.358 The office will obtain from the contractor a CA resolving all discriminatory policies and practices.359

c. Seeking Compensatory and Punitive Damages as EEOC’s Agent. In accordance with 41 CFR Part 60-742 and the MOU with the EEOC, OFCCP will act as EEOC’s agent for obtaining relief for all aggrieved people covered by a dual filed Section 503/ADA complaint or an Executive Order 11246/Title VII complaint, respectively. The field office will attempt conciliation to obtain relief for victims who have suffered pecuniary losses and intangible injuries. The Regional Director shall be involved in the conciliation process for cases involving potential compensatory and punitive damages. When potential punitive damages are involved, the Regional Director must consult with the RSOL and the Director of Program Operations. OFCCP may seek compensatory and punitive damages as EEOC’s agent during conciliation, but OFCCP may not seek such damages when it files a complaint.