138 Neb. Admin. Code, ch. 2, § 004

Current through September 17, 2024

Section 138-2-004 - Complaint; Notice of Public Hearing; Answer

2.004.01 Issuance and Service of Complaint and Notice of Public Hearing

In case of a determination by the Commission of failure to settle or adjust a charge by conciliation or in case of a determination by the Commission that the Respondent has violated or is violating the terms of settlement and adjustment reached in a conciliation conference and the Order entered pursuant thereto, the Commission shall promptly issue and serve upon the Respondent, by personal service or certified mail, a written complaint, under oath or affirmation, together with a notice of public hearing. A copy of such written complaint and notice of public hearing shall at the same time and in the same manner be served upon all other parties.

2.004.02 Contents of Complaint

The complaint shall be signed by any member of the Commission or by the Executive Director, and shall also be signed by the Complainant under oath or affirmation, and shall contain:

2.004.02A An allegation that the person on whose behalf the complaint is issued is a proper Complainant within the meaning of the Act.

2.004.02B An allegation that the Respondent is an employer, employment agency, or labor organization within the meaning of and subject to the provisions of the Act.

2.004.02C An allegation or allegations of the Commission of an unlawful employment practice or of unlawful employment practices, as alleged in the charge or charges heretofore filed with the Commission, and any other alleged discriminatory practice discovered during the investigation.

2.004.02D An allegation that the charge of an unlawful employment practice or practices was timely filed with the Commission and properly served on the Respondent.

2.004.02E A statement of the relief sought on behalf of the Complainant. The Commission may award attorney fees and costs consistent with the Act and applicable case law.

2.004.03 Contents of Notice of Public Hearing

The notice of public hearing shall contain:

2.004.03A The name of the Hearing Officer who shall conduct such hearing; or in lieu thereof, a statement that the public hearing will be conducted by a Hearing Officer to be designated subsequently by the Commission and that all parties to the proceeding will be notified in writing of the name of the Hearing Officer so designated at least ten (10) days prior to the date of the public hearing.

2.004.03B The date and hour of the public hearing shall be set by the Hearing Officer and shall not be less than twenty (20) nor more than sixty (60) days after issuance and service of the complaint.

2.004.03C The place of hearing shall be at a place reasonably convenient for the parties; but in any event shall be held in the county where the unlawful employment practice or practices were alleged to have occurred.

2.004.03D A statement advising both the Complainant and the Respondent of her or his right to appear and be represented in such hearing in person and/or by her or his attorney.

2.004.04 Answer

The following shall govern with respect to the answer to the complaint:

2.004.04ATime of Filing. The Respondent must file an answer to the complaint within twenty (20) days after the date of service of the complaint. Upon application in writing made to the Hearing Officer prior to the end of said twenty (20) day period, the Hearing Officer may, for good cause shown, extend the time in which the answer be filed.

2.004.04BPlace and Manner of Filing. The answer shall be filed at the office of the Commission in which the original charge was filed by personal delivery, certified mail, or facsimile; and at the same time the party filing the answer shall similarly serve a copy of such answer on all other parties and upon the Hearing Officer. Proof of service upon the other party or parties and the Hearing Officer shall accompany the copies of the answer filed with the Commission.

2.004.04CForm. The answer shall be in writing, with the original signed under the oath or affirmation of the Respondent or the Respondent's attorney, and shall contain:

(1) the correct name and address of the Respondent;

(2) the correct name, address and telephone number of the Respondent's attorney, if Respondent is represented by an attorney;

(3) a specific denial of each and every allegation of the complaint controverted by the Respondent or a denial of any knowledge or information sufficient to form a belief, or a statement of any matter constituting a defense against any allegation in the complaint.

2.004.04DFailure to Deny Allegation. Any allegation in the complaint which is not denied or admitted in the answer, unless the Respondent shall state in the answer that she or he is without knowledge or information sufficient to form a belief, shall be deemed admitted.

2.004.04ENew Matter in Answer. Any allegation of new matter contained in the answer shall be deemed denied by the Complainant without the necessity of a reply being filed, unless otherwise ordered by the Commission.

2.004.04FFailure to File Answer. Notwithstanding any failure of the Respondent to file an answer, the Hearing Officer may conduct the hearing at the time and place specified in the notice of hearing; or the Hearing Officer may enter a default judgement against the Respondent.

2.004.05 Amendment of Complaint and Answer

The following shall govern with respect to the amendment on the complaint and answer:

2.004.05AAmendment of Complaint. At any time prior to the public hearing, the Complainant may, by written request directed to the Commission, or any member thereof, or to the Hearing Officer, ask leave for amendment of the complaint, and shall at the same time specify the particular amendments to the complaint requested by the Complainant. Prior to the issuance of any amended complaint hereunder, the Hearing Officer granting leave to amend, as the case may be, shall give to all parties to the proceeding at least three (3) days (exclusive of Saturdays, Sundays, and official State holidays) advance written notice thereof. Copies of any amended complaint shall be filed with the Commission and served on all parties to the proceedings and upon the Hearing Officer. During a public hearing, with the consent of the Hearing Officer, a complaint may be amended to conform to the evidence presented at the hearing.

2.004.05BAmendment of the Answer. At any time prior to the public hearing, the Respondent shall have the right to amend the answer to the original or amended complaint, as the case may be, by giving at least three (3) days (exclusive of Saturdays, Sundays, and official State holidays) advance written notice to the Hearing Officer. Copies of such notice shall be served at the same time on all parties to the proceedings in the manner and form provided for in 2.004.04 of these Rules and Regulations. During a public hearing, with the consent of the Hearing Officer, an answer may be amended to conform to the evidence presented at the hearing.

2.004.05CForm of Amended Complaint and Answer. The original of all amended complaints and amended answers shall be in writing under oath or affirmation, and shall conform to and be served in accordance with the requirements of 2.004 of these Rules and Regulations, except as otherwise provided by this 2.004.05.

138 Neb. Admin. Code, ch. 2, § 004