3 Colo. Code Regs. § 708-1-10.5
Current through Register Vol. 47, No. 11, June 10, 2024
Rule 3 CCR 708-1-10.5 - Mediation, Investigation, Dismissal and Conciliation(A) Voluntary Mediation. (1) The Division may invite the parties to meet in an attempt to mediate and informally resolve the charge at any stage of the administrative process prior to the issuance of a determination of probable cause or no probable cause.(2) Nothing said or done during endeavors at mediation shall be disclosed by any party or used as evidence in any subsequent proceeding, unless the parties agree otherwise.(3) Upon request, the parties shall provide copies of settlement agreements entered into pursuant to mediation or private settlement negotiations to the Division, regardless of confidentiality provisions contained in such agreements. Settlement agreements received by the Division shall be treated as confidential pursuant to § 24-34-306(3), C.R.S.(B) Requests for Information. The Division may request production from the parties; any witnesses, statements, testimony, information, documents, evidence, or the inspection of places or things, reasonably calculated to lead to the discovery of evidence relevant to the allegations or circumstances of the charge.
(1) If a Charging Party fails or refuses to cooperate with a request for information, or otherwise unduly obstructs or delays the investigation, the Director may find that the charge lacks probable cause and dismiss the same.(2) Notwithstanding the Division's presumption that the conduct of any Respondent is fair and not discriminatory pursuant to § 24-34-305(3), C.R.S., if a Respondent fails or refuses to cooperate with a request for information, a rebuttable presumption may be created that the particular piece of information requested is harmful to the Respondent's position.(C) Determinations of Probable Cause and Dismissal.(1) No Probable Cause Determinations. If it is determined, based upon the information gathered during the investigation, that probable cause for crediting the allegations of a charge does not exist, the Director shall dismiss the charge and notify the parties of such determination in writing by mail. The notice shall advise the Charging Party of the right to appeal the no probable cause determination to the Commission and that if the Charging Party wishes to file a suit in district court, such lawsuit must be filed within ninety (90) days of the date of mailing of the determination.
(2) Probable Cause Determinations. If it is determined based upon the information gathered during the investigation that probable cause for crediting the allegations of a charge exists, the Director shall notify the parties of such determination in writing by mail and order the parties to attempt to resolve the charge through conciliation (compulsory mediation).
(3) No Probable Cause Dismissal for Other Reasons. The Director may, without deciding on the merits of the alleged acts of discrimination, dismiss a charge for the following reasons: lack of jurisdiction; voluntary withdrawal of the charge; settlement of the charge; receipt of a request for issuance of a right to sue notice; referral of the charge to the Equal Employment Opportunity Commission (EEOC), U.S. Department of Housing and Urban Development (HUD), or the Colorado State Personnel Board; failure or refusal by the Charging Party/Complainant to cooperate in the investigation; and inability of the Division to locate the Charging Party.
(D) Conciliation. (1) If the Director determines that probable cause exists, the Division shall attempt to eliminate or remedy the discriminatory practice through an agreement reached through compulsory mediation (conciliation).(2) Conciliation entails the negotiation of a mutual agreement between the parties by a mediator, who may or may not be a staff member of the Division. The mediator shall contact the parties to initiate the conciliation.(3) Types of relief sought in conciliation may include, but are not limited to, the following: (a) Cease and Desist from a discriminatory practice;(c) Hiring of employee(s), with or without back pay;(d) Reinstatement of employee(s), with or without back pay;(e) Upgrading or promoting of employee(s), with or without back pay;(f) Referring of applicants for employment by an employment agency;(g) Restoring membership in a labor organization;(h) Admission to or continued enrollment in an apprentice or training program;(i) Admission to or continued enrollment in a vocational school;(j) Public and private apologies;(k) Posting of anti-discrimination notices;(l) Remedial affirmative activities to overcome a discriminatory practice;(m) Policy and procedure modifications;(n) Education and training of Respondent management and staff;(o) Reporting to and monitoring by the Division as to the manner of compliance;(p) Housing-specific remedies provided Part 5, Title 24, Article 34, C.R.S.; and(q) Public Accommodations-specific remedies provided in Parts 6 and 7, Title 24, Article 34, C.R.S.(4) The assigned mediator shall determine when conciliation efforts are unsuccessful and a voluntary agreement is not likely to result. The Division may terminate its efforts to conciliate if the parties fail or refuse to make a good faith effort to resolve the dispute. The Division will inform the parties of the failure of conciliation in writing.(5) If the Charging Party fails or refuses to accept conciliation terms that the Director believes are reasonable, the Director may nevertheless resolve the charge in the public interest by entering into a conciliation agreement with the Respondent and dismiss the charge. The Charging Party may appeal the Director's action to the Commission in the same manner as provided in these Rules for appeals of determinations of no probable cause. A written notice of the conciliation agreement shall be mailed to all parties.(6) The terms of any conciliation or settlement agreement, regardless of confidentiality provision, shall be made available to the Division by the parties.(E) Disclosure. Without the written consent of all the parties, the Commission and the Division shall not disclose the filing of a charge, the information gathered during the investigation, or the efforts to eliminate such discrimination or unfair practice by mediation or conciliation unless the disclosure is made in connection with the conduct of the investigation, the filing of a petition seeking injunctive relief or at a public hearing. In disclosing information gathered during the investigation to the parties, or for any other reason, the Division may exercise reasonable discretion to redact personally identifying information of individuals, proprietary information, or trade secrets otherwise protected by other provisions of state law.
(F) Evidence Examination. Any of the parties or their counsel may examine any evidence contained in the investigative file of the charge, excluding documents or information made confidential by law. Evidence does not include Commission or Division work product or documents protected by attorney-client privilege.
(G) Notice of Right to Sue. (1) Request for Issuance after 180 days. If the Charging Party makes a written request for issuance of a notice of right to sue after the expiration of 180 days following the filing of the charge, the request shall be granted provided that the Commission has been given the opportunity to determine if the charge shall be noticed for hearing, if a probable cause determination has been issued, and has not caused to be served a written Notice and Complaint pursuant to § 24-34-306(4), C.R.S.
(2) Effect of Issuance of a Right to Sue Notice. Issuance of a notice of right to sue at any time shall cause jurisdiction of the Division and Commission to cease, shall constitute final agency action and exhaustion of administrative remedies and proceedings pursuant to the Law and these Rules, and shall terminate further processing of the charge by the Division.
(3) Contents of Request. All requests for issuance of a notice of a right to sue shall be in writing and signed by the Charging Party or their attorney.
(4) Contents of Notice. The notice of right to sue shall authorize the Charging Party to bring a civil action in district court, advise as to the appropriate time period in which to sue as provided by the Law, and include the determination, decision, or dismissal, as appropriate.
37 CR 22, November 25, 2014, effective 12/15/201443 CR 12, June 25, 2020, effective 7/15/202045 CR 01, January 10, 2022, effective 1/30/202246 CR 04, February 25, 2023, effective 3/30/202346 CR 23, December 10, 2023, effective 12/30/2023