Mo. Code Regs. tit. 8 § 60-2.025

Current through Register Vol. 49, No.12, June 17, 2024

Section 8 CSR 60-2.025 - Complaint, Investigation, and Conciliation Processes

PURPOSE: This proposed amendment is to modernize this rule by allowing the commission to communicate with parties by digital transmission or fax.

(1) Who May File. Any person claiming to be aggrieved by an unlawful discriminatory practice may personally or by agent file with the commission a written and verified complaint of the practice. A person filing a complaint as the agent of a person claiming to be aggrieved, must file with the complaint a statement signed by the person claiming to be aggrieved authorizing the agent to file the complaint. Assistance in preparing and filing complaints shall be available to any complainant at any office of the commission. The attorney general also may file a complaint.

(2) Complaint Form. Every complaint shall be in writing, signed, and verified by being sworn to before a notary public, or other person duly authorized by law to administer oaths and take acknowledgements, or by being supported by an affirmation or declaration in writing under penalty of perjury. A facsimile or electronic signature shall have the same effect as an original signature. "Electronic signature" means any digital symbol, sound, or process attached to or logically associated with a digital record and executed or adopted by a person with the intent to sign the record. The commission will accept an array of digital objects to serve as an electronic signature. These objects can range from keyboarded characters (for example, /s/ Jane Doe"), a graphical image of a handwritten signature, or an authenticated process that creates an electronic signature. An electronic signature is considered attached to or logically associated with a digital record if the electronic signature is linked to the record during transmission and storage. The complaint shall state facts supporting the allegations of unlawful discriminatory practice and the person against whom the complaint is filed. The complaint shall be upon forms furnished by the commission or Equal Employment Opportunity Commission (EEOC) or other federal agencies which have work-sharing or deferral agreements with the commission, or a local commission which has been certified as substantially equivalent by the commission.

(3) Time of Filing. Any complaint filed under Chapter 213, RSMo shall be filed within one hundred eighty (180) days of the alleged unlawful discriminatory practice or its reasonable discovery.

(4) Place and Manner of Filing. A complaint shall be deemed filed on the date actually received by the commission, a commissioner or a member of the commission's staff when filed in person and on the date postmarked when filed by mail, or in the case of a complaint originally filed with the United States EEOC or other federal agencies, which have worksharing or deferral agreements with the commission or a local commission which has been certified as substantially equivalent by the commission upon the date it is actually received by that commission. If the alleged unlawful practice is of a continuing nature, the last date of this practice shall be deemed to be the last date on which the practice continued, or the date of the filing of the complaint, whichever is earlier. Copies of all complaints filed with a local commission which has been certified as substantially equivalent by the commission are to be forwarded to the commission within seven (7) days of the filing of the complaint with the local commission. If a local commission has jurisdiction to hear a complaint filed with the commission, a complaint shall be deemed to have been filed with the local commission on the date on which the complaint was filed with the commission. Within seven (7) days of the receipt of a complaint which a local commission has jurisdiction to hear, the commission shall forward a copy of the complaint to the local commission.

(5) Amendment of the Complaint During Investigation. The executive director, his/her designee or the complainant shall have the power, reasonably and fairly to amend the complaint. The original complaint and all amendments shall be treated together as a single complaint. A complaint may be amended in any way provided the amended complaint is filed within the time permitted under 8 CSR 60-2.025(3) for the filing of an original complaint. After expiration of the time for filing an original complaint, amendment of a complaint shall also be permitted to cure technical defects or omissions and to clarify and amplify allegations made in the complaint. Amendments alleging additional acts which constitute unlawful discriminatory practices related to or growing out of the subject matter of the original complaint shall relate back to the date the complaint was first received. These amendments may join a person who was not named as a respondent in the original complaint as an additional or substitute respondent. Notice of this joinder shall be served upon the additional or substitute respondent within thirty (30) days after the commission's receipt of a complaint amended in this manner. The commission's notice also shall state the reason the person has been joined as a party.

(6) Any time prior to issuance of a notice of public hearing, a complaint may be withdrawn upon written request and with the written consent of the executive director.

(7) Dismissal of Complaint.

(A) If the executive director or his/her designee shall determine, either upon the face of the complaint or after investigation, that the complaint shall be dismissed due to lack of probable cause the same shall be dismissed.

(B) A complaint may be administratively closed by the executive director or his/her designee at any stage prior to setting the case for public hearing-

1. For failure of the complainant to cooperate with the commission;

2. Upon the commission's inability to locate the complainant;

3. For lack of jurisdiction;

4. In the absence of any remedy available to the complainant;

5. When the complainant files a suit in federal court on the same issues against the respondent named in the commission complaint;

6. When the commission has not completed its administrative processing within one hundred eighty (180) days from the filing of the complaint and the person aggrieved requests in writing a notice of the right to bring a civil action in state court, the executive director or his/her designee will administratively close the complaint and issue the notice; or

7. In any other circumstance where the executive director deems administrative closure to be appropriate.

(C) The parties shall be notified by mail, digital transmission, facsimile, or personal service of the commission's dismissal or administrative closure and of complainant's right of appeal.

(D) The executive director or his/her designee may vacate a dismissal or administrative closure of a complaint within one hundred eighty (180) days of the date of the original letter of notification when the dismissal or administrative closure was inappropriate due to an administrative error.

(E) Any person aggrieved by dismissal of a complaint may obtain judicial review by filing a petition in the circuit court of the county of proper venue in the manner provided by section 536.150, RSMo.

(8) Service of Complaint upon Respondent. A copy of the complaint shall be served by the commission upon the respondent by mail, digital transmission, facsimile, or personal service, not more than thirty (30) calendar days after a verified complaint has been received by the commission. This requirement shall not apply to any complaint that has been dismissed prior to the time the service is required. This requirement shall not apply to any complaint filed originally with the EEOC or other federal agencies that have work-sharing or deferral agreements with the commission or a local commission that has been certified as substantially equivalent by the commission that will be deemed properly served if service is effected according to the requirements of the agency with which the complaint is originally filed. This requirement shall not apply to any complaint that is under jurisdictional determination prior to docketing or in which a housing or public accommodations test is being conducted; however, the complaint shall be served within thirty (30) days of the conclusion of the jurisdictional determination or of the test. In complaints alleging a violation of sections 213.040, 213.045, 213.050, or 213.070, RSMo, to the extent that the alleged violation of 213.070, RSMo, relates to or involves a violation of one (1) or more of such other sections or relates to or involves the encouraging, aiding, or abetting of a violation of such other sections, when the complainant and respondent are served copies of the complaint, the complainant shall be advised of the time limits and choice of forums provided under the law and respondent shall be notified of respondent's procedural rights and obligations under the law.

(9) Investigation. As part of the investigation of any complaint not dismissed prior to service of the complaint upon the respondent, the respondent shall be given an opportunity to present an oral or written statement of its position. Investigations shall be accomplished by methods including, but not limited to, fact-finding conferences, personal interviews, written interrogatories, tests, requests for production of documents, books or papers, or other materials and reviews of investigations of other civil rights agencies. If a respondent refuses to cooperate with the investigation, information needed may be subpoenaed. The secretary to the commission shall issue subpoenas. Subpoenas shall be processed in accordance with the provisions of Chapter 536, RSMo. For complaints alleging violation of section 213.070, RSMo, as it relates to or involves alleged violations of section 213.040, 213.045 or 213.050, RSMo, or as it relates to or involves the alleged encouraging, aiding or abetting the violation of these sections and for complaints alleging violations of sections 213.040, 213.045 or 213.050, RSMo, the following shall apply:

(A) The commission shall commence proceedings with respect to the complaint before the end of the thirtieth day after receipt of the complaint;

(B) The commission shall investigate the allegations of the complaint and, unless it is impracticable, complete the investigation in no more than one hundred (100) days after receipt of the complaint. If the commission is unable to complete the investigation within one hundred (100) days, it shall notify the complainant and respondent in writing of the reasons for not doing so; and

(C) Unless it is impracticable to do so, the commission shall make final administrative disposition of a complaint within one (1) year of the date of receipt of a complaint. If the agency is unable to do so, it shall notify the complainant and respondent in writing of the reasons for not doing so.

(10) Service of the Finding of Probable Cause. If, after investigation, the executive director shall find probable cause to credit the allegations of the complaint, that finding of probable cause shall be filed with the secretary to the commission. Not more than fifteen (15) calendar days after the filing, the commission shall serve, by certified mail, digital transmission, facsimile, or personal service upon the complainant and the respondent, a copy of the complaint and all amendments to the complaint, a copy of the finding of probable cause, a copy of the commission's procedural regulations, and notice that conciliation shall be attempted.

(11) Conciliation Attempts. Where the executive director or his/her designee determines that there is probable cause to credit the allegations of the complaint that an unlawful discriminatory practice has occurred or is occurring, the executive director or his/her designee shall endeavor to eliminate that practice by informal methods of conference, conciliation and persuasion. In conciliating a case, the executive director or his/her designee shall attempt to achieve a resolution agreeable to the parties of all violations found and to obtain an agreement that the respondent will eliminate the unlawful discriminatory practice and provide appropriate relief.

(12) Conciliation Agreement. If, after a finding of probable cause, and as a result of conference, conciliation and persuasion, the executive director or his/her designee shall determine that the alleged unlawful discriminatory practice of which complaint is made will be remedied and eliminated by appropriate remedial action to which the parties agree, the terms of the remedial action shall be reduced to a written agreement and shall be signed by the respondent and the complainant and by the executive director or his/her designee on behalf of the commission. The written agreement shall constitute a final and enforceable order of the commission.

(13) Compliance Reports. The commission may require any party to submit to the commission those compliance reports as it deems necessary to show the manner of compliance with the terms of any conciliation agreement or settlement agreement to which the parties and the commission may have agreed. The commission may require the posting of fair employment, fair housing or fair public accommodations posters at the respondent's establishment.

(14) Failure of Conciliation.

(A) If the respondent does not respond within fifteen (15) calendar days after the receipt of the proposed conciliation remedy, the executive director or his/her designee may determine that conciliation has failed as a result of inactivity on the part of the respondent.

(B) If the executive director is unable to eliminate the alleged unlawful discriminatory practice by conference, conciliation and persuasion, the executive director or his/her designee shall make a determination that conciliation has failed. Conciliation fails when either the respondent, the executive director or his/her designee, or the complainant refuses to sign a conciliation agreement, or the respondent or complainant otherwise indicates unwillingness to conciliate.

(15) Disclosure of Information in the Case Files.

(A) Nothing said or done in the course of settlement or conciliation negotiations of employment or public accommodations complaints shall be made public or used in evidence in any subsequent proceeding under Chapter 213, RSMo without the written consent of the complainant and respondent. Any settlement or conciliation agreement of a complaint alleging violation of section 213.070, RSMo, as it relates to or involves alleged violations of section 213.040, 213.045 or 213.050, RSMo, or as it relates to or involves the alleged encouraging, aiding or abetting the violation of these sections or for a complaint alleging violation of section 213.040, 213.045 or 213.050, RSMo shall be made public unless the parties otherwise agree and the executive director determines that disclosure is not required to further the purpose of Chapter 213, RSMo.

(B) If a complaint has been filed pursuant to Chapter 213, RSMo alleging commission of an unlawful discriminatory practice documents will remain confidential as provided in section 213.077, RSMo. Additionally-

1. Sensitive or confidential records include medical or personnel records of persons not party to the complaint;

2. After a notice of hearing has been issued, the official records of the hearing shall be open; and

3. To achieve the purposes of Chapter 213, RSMo, this rule shall not apply to disclosure of information to representatives of interested federal, state, or local civil or human rights agencies.

(C) No information concerning intragovernmental advisory or deliberative functions shall be disclosed.

8 CSR 60-2.025

AUTHORITY: sections 213.030, RSMo (Supp. 1995) and 213.075, 213.077, 213.085 and 213.111 , RSMo (1994).* Original rule filed April 15, 1988, effective July 11 , 1988. Amended: Filed Dec. 2, 1992, effective June 7, 1993. Amended: Filed July 1, 1996, effective Dec. 30, 1996.

Amended by Missouri Register October 15, 2018/Volume 43, Number 20, effective 11/30/2018

Amended by Missouri Register June 15, 2020/Volume 45, Number 12, effective 7/31/2020

Amended by Missouri Register March 1, 2022/Volume 47, Number 5, effective 4/30/2022

*Original authority: 213.030, RSMo 1959, amended 1978, 1986, 1992, 1993, 1995; 213.075, RSMo 1986, amended 1992; 213.085, RSMo 1986, amended 1992; 213.077, RSMo 1992; and 213.111 , RSMo 1986, amended 1992.