138 Neb. Admin. Code, ch. 2, § 002

Current through September 17, 2024

Section 138-2-002 - Action Upon Charge

2.002.01 Duties of Commission Staff

Each charge shall be docketed and given a case number. The Commission shall serve a copy of said charge on the Respondent in person or by certified mail within ten (10) days of the filing of such charge by the Complainant. Said notification shall include a letter advising the Respondent that at the Respondent's request, the Commission will engage in discussions of early charge resolution alternatives. Said notification shall advise the Respondent that a written response must be filed with the Commission within thirty (30) days or a mandatory reasonable cause finding shall be made against the Respondent. After service, the Commission shall review the charge. If it appears that the charge does not set forth a complaint cognizable under the Act, the charge shall be forwarded to the Executive Director for a determination. If it is determined that the charge does not contain allegations cognizable under the Act, the Executive Director shall administratively dismiss the charge and the Commission shall take no further action upon it.

2.002.02 Investigation

Except for those charges administratively dismissed as provided for in 2.002.01, the Commission shall institute an investigation by its employees to ascertain all of the facts relating to the alleged unlawful employment practice or practices set forth in the charge. The staff shall initially solicit information from all parties and utilize requests for production of documents, interrogatories, depositions, subpoenas or any legal discovery process recognized by the district courts for the State of Nebraska to facilitate a prompt investigation. The legal process shall conform to the rules of the district courts for the State of Nebraska. If a Respondent knowingly destroys records, knowingly fails to maintain records, refuses to provide records, or otherwise takes action with the intent to defeat the purpose of the statute, the Commission may draw an adverse inference to establish facts relevant to a determination on the merits. At its discretion, the Commission may conduct individual interviews and/or a Fact Finding Conference to assist in its investigation and its attempts at mediation.

Any member of the Commission staff may contact non-management persons employed by the Respondent or former management persons without notifying the Respondent or Respondent's attorney. The Respondent is entitled to have a representative present only during the interview of current management level employees. If a question exists as to whether an employee is a management level employee, the Executive Director shall make a determination as to the matter. In making that determination, the Executive Director shall consider a variety of factors, including, but not limited to, the employee's authority to hire, fire, discipline, assign tasks, and make and implement policies.

All interviews will be recorded by the investigator unless a written and/or verbal objection is made by one of the parties. No recording shall be done after a written and/or verbal objection is received by the Commission. The recordings will be erased nine (9) months after the case is dismissed by the Commission.

2.002.02AFact Finding Conference. A Fact Finding Conference is a method in which the Commission brings together the parties of a charge, with or without witness(es) to give testimony.

2.002.02BSettlement During Investigation. During the investigative process, the Commission staff may attempt to reach a settlement of the charge through mediation, arbitration, conference and persuasion. A Commission staff member may prepare a proposed settlement and forward it to the parties. If it appears to a staff member that a settlement conference would be beneficial and the parties agree to participate, a conference will be scheduled. If a representative appears on behalf of a party, that representative shall have full authority to settle the charge.

2.002.03 Dismissal

The Executive Director shall dismiss the charge if:

(1) it is determined that the Commission does not have jurisdiction over the matter;

(2) it is determined that there is no reasonable cause to believe that the alleged unlawful employment practice or practices have been committed;

(3) the matter is adjusted and settled during the investigation;

(4) the Complainant has voluntarily withdrawn the charge;

(5) the Complainant has failed to cooperate fully in the investigation of the charge;

(6) the Complainant could not be located after reasonable efforts;

(7) the Complainant has filed an action in any court of competent jurisdiction alleging the same causes of action;

(8) the same issues have been resolved by the Office of Dispute Resolution and/or any of the mediation centers within the State of Nebraska; or

(9) the Complainant has obtained a Right to Sue letter from the Equal Employment Opportunity Commission.

The Commission shall notify all parties of any dismissal of a charge by regular mail; such notification shall specify the reason or reasons for dismissal.

2.002.03ADismissal/Full Relief. If the terms of settlement and adjustment proposed are signed by the Respondent, but not signed by the Complainant, the Executive Director may dismiss and close the case if, in the Executive Director's judgment, the terms of settlement and adjustment are satisfactory to remedy the effects of the charged employment practice with respect to the complaint.

2.002.04 Charges filed with other Civil Rights Agencies

When a charge is dually filed with any other civil rights investigative agency and the NEOC, where that agency has investigated and made a determination based upon a factual investigation, the Nebraska Equal Opportunity Commission may take the following action(s):

1. Refrain from processing the charge until such time the agency notifies the Commission that it is no longer investigating said charge;

2. The Commission shall accord substantial weight to the final findings and the orders of the agency;

3. If the Commission determines reasonable cause exists and the matter has not been settled and agreed to in writing by both parties, the Commission shall endeavor to eliminate any such alleged "unlawful employment practice or practices by means of conference, conciliation, and persuasion;"

4. If any findings of reasonable cause have been made by the agency and the matter has been successfully conciliated, the Commission may adopt such order and so cause a decision by the Executive Director to be issued; and

5. If an agency's Final Order is one of no reasonable cause the Executive Director may adopt such Order and cause a Commission decision to be issued. But if such Order is not adopted, the Commission may commence an investigation.

138 Neb. Admin. Code, ch. 2, § 002