4-4 Equal Employment Opportunity Policy & Complaint Procedure -Section VI: Complaint Procedure
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Approved: Board of Supervisors
Authority: Human Resources
Resolution: 16-0333
Revised Date: September 2016
Read next: Section VII: Administration
VI: Complaint Procedure
The process described in this policy is intended to provide the means by which employees may make complaints, raise concerns, or provide information regarding conduct in the workplace that an employee believes, in good faith, constitutes unlawful discrimination, harassment, and/or retaliation in violation of the County’s EEO Policy.
Employees are encouraged to first discuss any complaints or concerns of discrimination, harassment, or retaliation with their immediate supervisor or their appointing authority. If an employee feels uncomfortable addressing his or her complaint or concern with his or her immediate supervisor or appointing authority, or such discussion produces no satisfactory result, the employee shall raise his or her complaint or concern through the following procedure:
Initial Informal Pre-Complaint Counseling
Any applicant or employee who feels uncomfortable addressing his or her complaint or concern with his or her Department or such discussion produces no satisfactory result, is encouraged to discuss his/her complaints or concerns regarding unlawful discrimination, harassment, or retaliation informally with the County EEO Manager as soon as possible after the occurrence of the alleged incident. At the initial meeting, the EEO Manager shall inform the complainant of the opportunity to file a formal complaint with the County or with the DFEH and EEOC and shall attempt to resolve the complaint. Such informal discussion shall remain confidential to the extent legally possible, except for statistical purposes, unless the complainant takes some further County, State or Federal action.
Where resolution is not immediately obtainable and the complainant requests further investigation, the EEO Manager shall conduct an informal inquiry of all relevant parties, including the department head, in order to resolve the claim to the reasonable satisfaction of the complainant and the County. The EEO Manager shall ensure this process is completed in a prompt and timely matter from the date of the initial contact with the employee. The EEO Manager will maintain communication with all relevant parties throughout the process. At the conclusion of the informal process, the complainant shall be given a closeout letter summarizing the outcome.
Formal Complaint of Employment Discrimination, Harassment, and/or Retaliation
As soon as possible, and in no case more than two hundred sixty (260) County business days after an alleged incident of discrimination, harassment, or retaliation, an applicant or employee shall file a written complaint with the EEO Manager by completing a copy of the County of Sonoma Discrimination Complaint Form available from the Human Resources Department. The complainant shall state the facts upon which the allegation of discrimination is based, any resulting adverse employment action, and any remedy sought. The EEO Manager shall discuss the complaint and all applicable procedures with the complainant.
Upon receipt of a formal complaint of discrimination, harassment, or retaliation, and it has been determined an investigation is warranted, the EEO Manager shall promptly do all of the following:
Notify all relevant parties, including the appropriate department head, of the complaint.
Investigate, or direct a fair, timely, thorough and impartial investigation of the allegations by a qualified investigator and document and track the investigation’s progress so as to ensure reasonable and timely progress and closure.
Complete a written report setting forth a statement of the allegations, factual findings and conclusions based on the evidence collected, and recommended remedial or corrective actions, if any.
Discuss the findings of the investigation with appropriate individuals. In cases where a finding of misconduct in violation of this Policy is sustained, appropriate remedial measures will be discussed and taken, as fashioned by the EEO Manager. At the conclusion of the investigation, the complainant shall be given a closeout letter, summarizing the investigation outcome, findings and appropriate remedial measures if any.
All parties shall cooperate fully with the EEO Manager, who shall have access to any and all records necessary for completion of the investigation. All employees involved as a party or witness in an investigation pursuant to this Policy are required to answer all questions truthfully and fully. The investigation process will be completed in a prompt and timely matter. The amount of time necessary to complete the investigation will depend in each circumstance on the availability of all relevant parties, access to relevant documentation, and other circumstances that may extend the time period involved to allow completion of the investigation and recommendation. The EEO Manager will maintain communication with all relevant parties throughout the investigation process. Should the investigation take longer than one hundred eighty (180) County business days, the EEO Manager will notify all relevant parties with the estimated time-frame of completion. The investigation shall provide all parties with appropriate due process.
Right of Representation
In general, employees have a right to union representation on matters related to the employee’s terms and conditions of employment. More specifically, employees and applicants who file a complaint of unlawful discrimination, harassment, or retaliation have the right to be represented by a person of their choosing.
In those instances in which an interview of an employee conducted as part of an investigation commenced pursuant to this policy may reasonably lead to information that could form the basis for disciplinary action against that employee or relates to the terms and conditions of that employee’s employment, the employee shall be entitled to representation at the interview by a representative of the recognized employee organization of which the affected employee is a member.
Appeal of Recommended Corrective Actions
In the event the complainant suffered an adverse employment action (e.g. a demotion, reduction in pay, failure to receive a promotion, and the like), and the EEO Investigation Report has a sustained finding that the adverse employment action suffered by the complainant was due to actionable harassment, discrimination or retaliation towards the complainant, to the extent the complainant is a permanent classified employee who is entitled to a hearing before the Civil Service Commission under the County of Sonoma Civil Service Ordinance, the complainant may appeal to the Civil Service Commission any remedial or corrective actions recommended by the EEO Manager in the Report that are intended to redress the adverse employment action that was suffered by the complainant, to the extent such recommended corrective action(s) are not satisfactory to the complainant, or the Department fails to implement the recommended corrective action(s). To do so, the complainant must submit a written request for an appeal hearing before the Civil Service Commission to the Human Resources Director within twenty (20) County businesses days from the date of receipt of the notification of the recommended remedial action(s).
Note that the complainant’s appeal rights are limited to the above-described situation involving the adverse employment action experienced by the complainant; the complainant may not appeal any other associated issues, including, but not limited to: a) whether the complainant agrees with the scope of or completeness of the Report, the identification of which witnesses to interview, the facts and findings of the Report – or any other aspect of the Report or perceived deficiencies of the Report by the complainant; and b) whether the complainant agrees with the form or level of discipline or corrective action taken by the appointing authority – or not taken by the appointing authority - against the individual who is the subject of the complainant’s complaint (the accused). The complainant has no Civil Service Commission appeal rights in instances where the allegations of harassment, discrimination and/or retaliation are not sustained. In such instances, the complainant may have other appropriate external venues, such as with the DFEH/EEOC.
During the appeal hearing, the Commission shall consider the EEO Manager’s recommendations and the complainant’s concerns and, after deliberation, will issue a decision upholding the status quo and affording the complainant no additional rights or remedies, or alternatively, the Commission may grant, deny or recommend other actions that are within their purview. Examples of the range of possible decisions the Commission may make beyond upholding the status quo include, but are not limited to, issuing cease and desist orders, ordering placement on an employment list, ordering reinstatement, or ordering appointment or promotion to the next available position for which the complainant is qualified. The decision of the Commission is final.
Consolidation of Disciplinary Appeals to the CSC and Discrimination, Harassment, Retaliation Complaints
Permanent classified employees who are entitled to a hearing before the Civil Service Commission (“CSC”) for dismissal, suspension, or reduction in rank or compensation under County of Sonoma Civil Service Ordinance, Section 12A, and Civil Service Rule 10.5, and who file such an appeal, may raise any unlawful discrimination, harassment, or retaliation claims they believe they may have at the CSC hearing as a defense to the disciplinary action. An employee raising a claim of unlawful discrimination, harassment, or retaliation as a defense to an adverse employment action being taken against them shall bear the burden of proving by a preponderance of the evidence that the adverse employment action was substantially motivated by unlawful discriminatory or retaliatory animus.
With regard to such claims of unlawful discrimination, harassment, or retaliation, attempted resolution with the EEO Manager is a prerequisite to raising such an issue as a defense before the CSC. The disciplined employee alleging unlawful discrimination, harassment, or retaliation, who has not done so prior to the disciplinary action, shall file a written complaint with the EEO Manager before the Civil Service hearing. If it is determined an EEO investigation is necessary, the CSC hearing will be placed on hold until the investigation process has been completed.
If the affected employee does not file a written complaint prior to the Civil Service hearing date, the disciplinary hearing will proceed as scheduled.