Program Delivery Discrimination
Complaint Processing
"DISCRIMINATION COMPLAINTS OR THE LACK OF
MAY INDICATE EVIDENCE OF PROBLEMS
CONCERNING PROGRAM DELIVERY"
According to the USDA Public Notification Policy, DR 4300-3, November, 1999:
“ The nondiscrimination statement set out below shall be posted in all USDA offices and
included, in full, on all materials produced by USDA and its agencies for public information,
public education, or public distribution, except when the appropriate nondiscrimination
statement applicable to recipients is distributed by USDA agencies or posted by recipients.
The statement below specifically lists all the prohibited bases for discrimination contained in
the USDA Civil Rights Policy Statement. The statement shall be in English and in languages
appropriate to the local population, and in alternative means of communication (Braille, large
print, audiotape, etc.).
USDA's nondiscrimination statement:
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and
activities on the basis of race, color, national origin, sex, religion, age, disability, political
beliefs, sexual orientation, or marital or family status. (Not all prohibited bases apply to all
programs.) Persons with disabilities who require alternative means for communication of
program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET
Center at (202) 720-2600 (voice and TDD).
To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room
326-W, Whitten Building, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410
or call (202) 720-5964 (voice and TDD). USDA is an equal opportunity provider and
employer.
If the material is too small to permit the full statement to be included, the material
will at minimum include the statement, in print size no smaller than the text, that
"The USDA is an equal opportunity provider and employer."Anyone, who believes
they have been discriminated against by a FS “conducted” program, on the basis of
race, color, national origin, gender, religion, age, disability, political beliefs, sexual
orientation, and marital or family status, has the right to file a complaint.”
A complaint can be filed by a customer or beneficiary of an “assisted” program, who
believes they have been discriminated against on the basis of race, color, national
origin, sex, age, or disability.
(Note how assisted programs have a reduced number of bases. On webpage see
analysis of the difference.)
Definition:
Complaint against the FS –(Conducted programs) A verbal or written
allegation of discrimination which indicates that a Forest Service program is
being administered or operated in such a manner that it results in the disparate
treatment or services to persons or groups of persons because of their race,
color, national origin, gender, religion, age, disability, political beliefs,
sexual orientation, and marital or family status. (Not all prohibited bases
apply to all programs.)
Complaint against “Recipients”- (Assisted programs) A verbal or written
allegation of discrimination which indicates that an entity who is a recipient of
Federal financial assistance (grantee, special use permittee, etc.) has
administered or operated in such a manner that it results in the disparate
treatment or services to persons or groups of persons because of their race,
color, national origin, sex, age, or disability. (Not all prohibited bases apply
to all programs.) That entity through a signed FS assurance clause, agrees to
uphold the CR rules and regulations, not to disriminate. When they do so, it is
the FS who provided the funds, permits, agreements, who is accountable to the
public and must act to resolve.
Complainant - Any person or group of persons that allege discrimination in the
delivery of program benefits by a primary or secondary recipient.
Legal Authorities:
Executive Order 12250
Executive Order 12898
Executive Order 13166
7 CFR Part 1, Subpart A, Official Records
7 CFR 15.6; 15.52
7 CFR 15b.4, 15b.12, 15b.17
7 CFR 215.52
28 CFR 42.408
29 CFR 1614; 1614.203; 1691
45 CFR 90.43
Title VI of the Civil Rights Act of 1968
Title VIII of the Civil Rights Act of 1968
Title IX of the Education Amendments of 1972
Section 504 of the Rehabilitation Act of 1973
Age Discrimination Act of 1975
Freedom of Information Act
Americans With Disabilities Act of 1990
Departmental Regulations 4300-3, 4330-2, 4330-3
Bases For Filing Discrimination Complaints (conducted programs)- race, color,
national origin, gender, religion, age, disability, political beliefs, sexual orientation, and
marital or family status.
± Race - The Federal government has avoided the confusion surrounding the
use of the term "race" by resorting to the use of seven discreet "race and
national origin" identifiers. These identifiers are used to track minority
employees/program recipients/beneficiaries throughout the employment and
program delivery systems so that determinations of underrepresentation and
dispersion patterns can be made for purposes of (equal access, participation,
and representation) in program delivery; and (equal opportunity recruitment
planning, workforce planning, uniformed guidelines for employee selection
procedures affirmative action planning) for employment. As of January
1981, current categories are (1) American Indian or Alaska Native; (2)
Asian or Pacific Islander; (3) Black, not of Hispanic origin; (4) Hispanic;
and (5) White, not of Hispanic origin.
± Color - The term "color" is different from race in that persons of the same
race may be of differing color or vise versa. Color refers to skin
pigmentation. It is conceivable the individuals of a given skin color could
be preferred over individuals of another skin color.
± National Origin - "National Origin" is defined not only as the nation in
which the individual was born but also the nation in which the individuals
ancestor's were born. Therefore, an individual who was born in the USA of
Polish extraction, may be discriminated against based on national origin and
may file a discrimination complaint. EO 13166 makes agencies responsible
for providing pertinent materials and programs available in the language of
the customers. Failure to do so, by the agency and recipients of federal
assistance, is considered committing National Origin discrimination.
± Sex - "Sex" means biological gender, male or female.
± Religion - This basis is covered under DR 4330-3, only for USDA
conducted programs. The term "religion" includes all aspects of religious
observance and practice as well as belief. All forms and aspects of religion
however eccentric are protected. Agencies/program recipients have no
authority to determine what is or is not legitimate religion or religious
practice. Reasonable accommodation to the religious needs where such
accommodation does not result in an undue hardship on the
Agency/recipient's business.
± Age - A person must be over forty to have an age discrimination complaint
accepted.
± Disability - "Individual with a disability" is defined as one who has a
physical or mental impairment which substantially limits one or more of
their major life activities; has a record of such impairment or is regarded as
having such an impairment. If the person meets qualification requirements
and could overcome the disability with reasonable accommodation, such
accommodation shall be made unless Agency/recipient is able to show that
the accommodation imposes undue hardship. The term does not include
any individual who is an alcoholic or a drug abuser whose current use of
alcohol or drugs prevents performance of essential functions or essential
eligibility requirements for the receipt of such services.
Major Life Activities include functions such as caring for one's self,
performing manual tasks, walking, seeing. hearing, speaking, breathing,
learning, standing, reading, lifting, sitting, and working.
± Political Beliefs - This basis is covered under DR 4330-3, only for USDA
conducted programs. Prohibited discriminatory practices based on political
or non-partisan party (Democrat, Republican, Independent) status.
± Sexual Orientation – This basis is covered under DR 4330-3, only for
USDA conducted programs. Discrimination based on sexual orientation
has been designated as a prohibited personnel practice by the Office of
Personnel Management. Sexual orientation is covered under USDA Civil
Rights Policy as a basis for discrimination if sexual preference is the basis
for denial of service, participation, or benefit. Forest Service "No
Harassment Policy" addresses no harassment of any kind, including no
harassment based on sexual preference or orientation.
± Marital or Family Status - This basis is covered under DR 4330-3, only
for USDA conducted programs. "Family status" is the broader term which
prohibits discriminatory practices based on marital status, with the inclusion
of children under the age of 18 living with parents or legal custodians;
pregnant women and people securing custody of children under 18.
Filing a Complaint - Complaints are to be submitted in writing to or by calling the
Director of USDA OCR. Any FS employee who receives an oral complaint of
discrimination, should immediately advise the customer of the process to file a
complaint. All program complaints must be filed directly with the USDA Director,
Office of Civil Rights, Room 326 W, Whitten Building, 1400 Independence Avenue,
SW, Washington, DC 20250-9410 (202) 720-5964 (voice/TTY)
As outlined in DR 4300-3, USDA Public Notification Policy, information to file a
complaint is to be posted in the public reception areas of all agency and recipient
offices, by using the “And Justice For All” Poster. The information on how to file a
complaint is also to be included on all materials, brochures, produced for public
information, education, and distribution by either the Forest Service, or “recipients” of
FS Assistance.
Complaint Processing Timeframes - An individual/group/entity has 180 days from
the time of the incident to file a complaint. Once the complaint is received, the level of
the organization which is the initial contact (Region/Station/Area) has 5 days to notify
the Washington Office and USDA OCR. The OCR Program Investigations Division
processes the complaint and will contact agency heads when a complaint is verified to
be complete and valid. WO Civil Rights Staff is notified and requested to prepare an
Agency Postion Statement, which is the responsibility of the unit involved. The
Agency Position Statement is due to the OCR within 24 days. The unit involved will
complete the APS and forwarded through the Region/Station/Area office to the
Washington Office within 15 days. The WO CR Staff reviews and approves the APS
and transmits to USDA OCR to meet the 24 day timeframe to comply with
Departmental regulations 4330-3 and 4330-3.
FOREST SERVICE
Program Discrimination Complaints Process
Federally Conducted Programs
Program Discrimination Complaints (PDC’s) make their way into the Forest Service (FS) system
in two ways illustrated by Diagrams 1 and 2.
Diagram 1
USDA
FS WO
Receives Program
Complaints from beneficiary
Determines valid case and
requests APS from FS
Day 1
Regions/Stations/Area
(RSA’s)
Begin Preparation of
Agency Position
Statement (APS)
RSA sends APS into
FS WO CR
Day 15
FS WO CR Reviews APS, Reviews,
Ques, Final Edits.
Final APS Signed by
Director, CR
APS sent to
FS WO CR
Day 24
Diagram 2
FS Office/Reception or Employee in the Field
receives a Program Complaint from Beneficiary/Customer.
ADVISE CUSTOMER THAT COMPLAINTS GO DIRECTLY TO OCR.
Attempt resolution on the spot and/or
Refer to Responsible Official to resolve immediately.
Fax/transmit complaint form to FS WO CR Director
who immediately transmits to OCR.
USDA determination of valid PDC case
with transmittal letter to FS and request for an
Agency Position Statement (24 day timeframe).
Regions/Stations/Area (RSA’s)
Begin Preparation of
Agency Position
Statement (APS)
RSA sends APS into
FS WO CR
Day 15
FS WO CR Reviews APS, Reviews,Ques, Final Edits.
Final APS Signed by Director, CR
Day 1
APS sent to
USDA OCR to meet 24-day timeframe.
Information For Complaints – All complaints are to be filed by the complainant directly to
USDA OCR. Critical information needed:
a.
Name, address and telephone number, or other means of contacting the
complainant;
b.
The agency name and specific location of the entity delivering the
services or benefits;
c.
The basis of the discrimination, i.e., race, color, national origin, religion,
sex, age, disability, political beliefs, sexual orientation, marital status,
and familial status. (Not all prohibited bases apply to all programs.)
These bases apply to FS conducted programs.
d.
The date on which the alleged discriminating actions occurred
e.
A description of the incident or action which the complainant alleges to
be discriminatory, or an example of the method of administration which
is having a disparate effect on the public, potential beneficiaries,
eligibles, or beneficiaries;
f.
The names/titles of the persons alleged to be involved in the
discriminatory actions; and if possible;
g.
The names/titles of persons who may have witnessed the discriminatory
acts.
Complaint Investigations and Resolution – When a unit is aware of a potential
complaint, it is recommended they take action by starting a file and collecting all
pertinent information to record the incident. The Unit should take action to resolve the
program complaint at the lowest level, through a resolution agreement between the FS
and the complainant. If a resolution is accomplished, it should be forwarded to the WO
immediately. Units may be called upon to prepare a response (APS) to the USDA
OCR and this collected information is critical.
1.
Agency Position Statements are prepared by the unit, when requested by
the USDA OCR:
Review: (1) The complainant's case file and (2) other program
participant's case files.
Interviews may include: (1) Local Agency Officials, employees named
in the case, (2) Recipients who are involved in the complaint, (3) other
program applicants and participants, (4) Community leaders, if
applicable.
Upon completion of the fact finding, the unit Civil Rights Staff prepares an
Agency Position Statement which addresses the validity of the issues or
allegations of the complaint, summary of interviews, relief sought by
complainant, and management's proposed recommendations for resolution.
Refer to the detailed format for an APS report.
The fact finding is conducted by the level of the organization which is
administering the program/service where the complaint is received. The
findings are documented and are elevated to the next organizational level. The
Region/Station/Area submits the Agency Position Statement to the Washington
Office to submit to USDA OCR. NOTE: This responsibility is delegated to the
line officer with program administration authority and the Region/Station/Area
civil rights official. This responsibility cannot be redelegated.
2.
USDA On-site Investigations are conducted after complaint cases are
accepted by the OCR. On-site investigations may occur if additional
information is needed to adjudicate the case. Information is gathered that may
be similar to that gathered for an agency position statement. Differences
between the APS and an On-site Investigation are:
* On-site Investigations are conducted by the USDA Office of Civil
Rights;
* Signed statements are obtained during the investigations; and
* An On-site Investigation is more comprehensive.
A signed resolution agreement between the FS and the complainant must be forwarded
to the WO immediately, which will be transmitted to USDA, to be considered for
closing the case, and save pending investigation costs.
Upon completion of the investigation, the USDA Office of Civil Rights prepares a case
analysis and a Report of Investigation (ROI). The ROI is forwarded to the OCR
Adjudication Division so that a final Agency Decision can be prepared.
Complaint Processing and the Freedom of Information Act
The Freedom of Information Act (FOIA) is designed to make most information
maintained by the Executive Branch of the Federal Government available to the public.
USDA's FOIA requirements are set forth in 7 CFR Part 1, Subpart A, as amended in 40
F.R. 7341, February 19, 1975. The Office of Civil Right's guidelines for implementing
FOIA are contained in 40 F.R. 27503, June 30, 1975. In general, the Agency policy on
release of Program Delivery records is to make available, upon written request,
compliance review reports, survey reports, studies, reports resulting from complaint
inquiries and investigations, records of program participation data, etc.
Pursuant to FOIA requirements and as a standard program delivery policy, Agency
officials should advise complainants and interviewees that all information contained in
program delivery reports will be released, upon request, to the general public. Agency
officials are also required to inform complainants and interviewees of their right to
keep their identities anonymous in Program Delivery reports. Work closely with your
unit FOIA staff to address these requests.
(12/05/01)
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