Interim Case Resolution Manual: Executive Summary
December 1, 2015
Background
The U.S. Environmental Protection Agency’s (EPA’s) Office of Civil Rights (OCR) is responsible
for carrying out four critical programs. Three of these are internal programs and concern EPA’s
processing and resolution of discrimination complaints filed by EPA employees and employment
applicants; overseeing and coordinating EPA’s Reasonable Accommodations Program for
employees with disabilities; and EPA’s identifying and eliminating barriers to equal employment
opportunity.
In addition, OCR’s External Compliance and Complaints Program is responsible for enforcing
several federal civil rights laws that together prohibit discrimination on the bases of race, color,
national origin (including limited English proficiency), disability, sex and age, in programs or
activities that receive financial assistance from EPA. (Title VI of the Civil Rights Act of 1964,
Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the
Age Discrimination Act of 1975, and Section 13 of the Federal Water Pollution Control Act
Amendments of 1972, see Section 2.4(2))
OCR is responsible for carrying out compliance with these federal nondiscrimination statutes
through a variety of means, including complaint investigation; agency-initiated compliance
reviews; pre-grant award assurances and audits; and technical assistance and outreach activities.
In undertaking a holistic approach to strengthening OCR’s external compliance program, OCR has
developed a draft External Compliance and Complaints Program Strategic Plan for FY 2015-2020.
The External Compliance Strategic Plan, issued in draft for informal public comment 1 on
September 10, 2015, promotes mission-critical program accountability through measurable goals
that will: (1) ensure prompt, effective, and efficient complaint docket management; (2) enhance
OCR’s external compliance program through proactive compliance reviews, strategic policy
development, and engagement of critical EPA, federal and external partners and stakeholders (e.g.,
recipients and communities); and, (3) strengthen OCR’s workforce through strategic human capital
planning, organizational development and technology and training to promote a high-performing
organization.2 As identified in the Strategic Plan (Goal 1, Benchmark 1), one critical accountability
measure to ensure prompt, effective, and efficient docket management and carry out compliance
reviews as part of its proactive compliance program, is to have in place a CRM.
On December 1, 2015, OCR posted, along with this interim draft CRM, a Notice of Proposed
Rulemaking (NPRM) to amend EPA’s Nondiscrimination regulation. The NPRM is also one of
several accountability measures to ensure prompt, effective, and efficient docket management.

Neither the Strategic Plan nor this CRM is considered “rulemaking” such that formal notice and comment would be
required. However, the agency has elected to seek informal comments from the public consistent with its commitment
to transparency and public engagement.
2
http://www2.epa.gov/sites/production/files/2015-10/documents/strategic_plan.pdf.
1

i

 This document, which incorporates the modifications proposed in the NPRM, is being issued for
public comment as an “interim” CRM pending the final issuance of the proposed modifications to
EPA’s nondiscrimination regulations. OCR will revise the CRM as necessary to ensure congruence
with any rulemaking finalizing modifications to EPA’s Nondiscrimination regulation.

Interim Case Resolution Manual
This Interim Case Resolution Manual (CRM) is intended to provide procedural guidance to OCR
case managers to ensure EPA’s prompt, effective, and efficient resolution of civil rights cases
consistent with science and the civil rights laws. The CRM is not intended to address substantive
civil rights policy or legal standards or processes outside of OCR’s jurisdiction and responsibility
to enforce the federal civil rights laws described above.
EPA Orders 47003 and 47014 establish a protocol for processing complaints of discrimination that
brings program and regional offices throughout the agency into a collaborative process for
coordinating and committing the analytical resources, expertise, and technical support needed to
address civil rights compliance. Although the OCR retains the primary authority and responsibility
for carrying out the civil rights program, the orders clearly emphasize a “One-EPA” commitment
with the support of a network of Deputy Civil Rights Officials (DCROs) established under Order
4700, to support the civil rights mission and ensure its success throughout EPA. The 2013 protocol
(Order 4701) anticipated that OCR would develop specific procedures to improve implementation
of the protocol and ensure the prompt, effective, and efficient resolution of civil rights cases.5
This CRM is designed to allow OCR, in consultation with DCROs, to determine and tailor the
appropriate resolution path for each case based on the nature, scope and complexity of the issues
presented in each complaint. This CRM is consistent with federal best practices, and, through the
expert assistance of the DCROs, provides OCR with procedures, strategies and resources to most
promptly, effectively and efficiently evaluate, investigate, and resolve complaints and conduct
compliance reviews.
The CRM includes:


Procedures for addressing all phases of the case resolution process for external civil
rights cases, in furtherance of EPA Orders 4700 and 4701; and



Reference and management tools such as a model Strategic Case Management Plan that
includes specific goals or target dates for ensuring timely and effective processing of
cases, particularly within the first 90-calendar days after receipt of complaints.

To heighten transparency and accountability, OCR is posting this interim CRM on EPA’s internet
website for informal comment and will post all subsequent versions. Moreover, OCR will work to

3

See Section 8.2(1); Deputy Civil Rights Officials, EPA Order No. 4700 (May 1, 2013).
See Section 8.2(2); Title VI Case Management Protocol, EPA Order No. 4701 (May 1, 2013).
5
See also Chapter 1
4

ii

 distribute this resource to the public through its network of DCROs, which will also assist the EPA
in its efforts to increase engagement with critical external partners and stakeholders, such as
recipients and communities. This engagement effort will allow the public and our recipients to
understand better OCR’s case management process. The CRM will be evaluated, updated, and
revised periodically to ensure that it remains a dynamic, interactive and effective tool.

iii

 Table of Contents
CHAPTER 1 .. DEPUTY CIVIL RIGHTS OFFICIALS and TITLE VI CASE MANAGEMENT
PROTOCOL ORDERS

3

CHAPTER 2 .. EVALUATION OF COMPLAINTS

5

CHAPTER 3 .. ACCEPTED CASES: PRELIMINARY INVESTIGATION AND RESOLUTION

14

CHAPTER 4 .. INVESTIGATION AND VOLUNTARY COMPLIANCE

24

CHAPTER 5 .. COMPLIANCE REVIEWS

30

CHAPTER 6 .. MONITORING OF INFORMAL RESOLUTION AGREEMENTS AND
VOLUNTARY COMPLIANCE AGREEMENTS

32

CHAPTER 7 .. INITIATION OF ENFORCEMENT ACTION

34

 Section 7.4

Enforcement for Failure to Comply with OCR Compliance Agreement ………………………….. 35

CHAPTER 8 .. APPENDICES

36

 CHAPTER 1 DEPUTY CIVIL RIGHTS OFFICIALS and TITLE
VI CASE MANAGEMENT PROTOCOL ORDERS
In a 2012 report entitled, “Developing a Model Civil Rights Program for the Environmental
Protection Agency,” the EPA Civil Rights Executive Committee outlined recommendations for
strengthening civil rights, equal employment opportunities, and diversity in the workplace. To that
end, the Committee also recommended the creation of the Deputy Civil Rights Officials (DCROs) –
a cadre of senior level officials in EPA’s regional offices and national programs who would assure
accountability for civil rights compliance across the agency. As a result, the EPA issued EPA
Orders 4700 (“Deputy Civil Rights Officials”) and 4701 (“Title VI Case Management Protocol”) in
2013. Together, these orders formally established a protocol for processing, investigating, and
resolving complaints under Title VI of the Civil Rights Act of 1964 and other non-discrimination
laws enforced by OCR (“Title VI Protocol”). The Title VI Protocol brings headquarters and
regional program offices into a collaborative process for coordinating and committing analytical
resources, expertise and technical support needed to investigate and resolve complaints, where
necessary.
The DCROs are a critical resource in support of EPA’s civil rights program. This CRM
contemplates OCR going beyond to establish a new standard of excellence. This new standard
includes the DCROs who serve as civil rights champions throughout the EPA, and who provide
prompt programmatic, regulatory, analytical, scientific, and technical expertise and support in
addition to their vast network of critical stakeholder contacts at a regional level and in specific
program areas. By maximizing the use of the EPA’s preexisting, in-house expertise, the EPA relies
less on developing redundant competencies in OCR or using costly contracts to fill gaps in OCR’s
technical and scientific expertise to effectively investigate and resolve environmental civil rights
cases consistent with the agency’s commitment to sound science and civil rights law.
Robust internal collaboration will ensure a constructive feedback loop between OCR and the
DCRO network — where knowledge and expertise is shared, and grows along institutional
pathways, and where civil rights is championed throughout the agency. The active feedback loop
between OCR and the DCROs at key stages of the case investigation and resolution process
furthers the promptness, efficiency, and effectiveness of case resolution.
EPA Order 4700
This order establishes the position of DCROs within each EPA regional and program office to
serve as that office’s primary point of accountability for assisting OCR with promptly, effectively,
and efficiently meeting the EPA’s civil rights responsibilities and goals. DCROs will, consistent
with applicable laws, provide executive support in furthering the EPA’s commitment to creating a
model civil rights program. It does not relieve other agency officials, including career and
appointed officials, line managers and other staff, of their responsibilities with respect to civil
rights. See Section 8.2(1)

3

 EPA Order 4701
The purpose of the EPA Order 4701 is to provide cross-agency support for resolving complaints
filed under Title VI of the Civil Rights Act of 1964 and other nondiscrimination statutes applicable
to recipients of EPA’s financial assistance, and to ensure that EPA resources are supportive of the
civil rights mission. It provides that the OCR director will oversee and manage the Title VI
Protocol to bring together the necessary parties to promptly investigate, adjudicate, or resolve civil
rights complaints through a case management team made up of the necessary technical, legal, and
policy experts from appropriate offices based on the facts of the civil rights issue, as determined by
the OCR director. See Section 8.2(2).
DCRO Roles and Responsibilities
This active feedback loop between OCR and DCROs includes:

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







Immediate notification to appropriate DCRO(s) by OCR regarding receipt of complaints;
Immediate identification by DCROs of a point-of-contact to whom and from whom OCR
can provide and obtain any information relevant to specific cases;
Inclusion of DCROs by OCR at key stages of case processing to seek input, as well as
specific case briefings, and general or issue-specific civil rights trainings;
Timely inclusion of DCROs and/or their identified point of contact in OCR’s monthly
External Compliance and Complaints Activities meeting;
Immediate notification to OCR by DCROs regarding specific programmatic, policy,
regulatory, technical or scientific information relevant to specific cases;
Timely sharing of information gathered by DCROs through engagement with external
stakeholders, for example, pertinent/material information suggesting that a civil rights
complaint may be filed;
Timely sharing of information by DCROs regarding local context or facts that could affect
a pending case, such as, for example, relevant information gathered by the Office of
Environmental Justice that could facilitate comprehensive EPA action in line with the “One
EPA” commitment; and
Similarly, OCR recognizes that as part of their general engagement responsibilities,
DCROs may be reviewing and, where appropriate, addressing the concerns of the affected
communities outside of the OCR civil rights enforcement process as an important
complement to further the agency’s efforts to make a prompt and visible difference in
communities.

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 CHAPTER 2

EVALUATION OF COMPLAINTS

This Chapter sets out OCR’s procedures when it receives a correspondence from an external
source, or has such correspondence referred to it from another EPA office or an external agency.
Acknowledge the Receipt of Correspondence Which Could Constitute a
Complaint
OCR will promptly issue a standardized letter to the individual (or group) issuing the
correspondence as well as to any named entity (potential/alleged recipient) to acknowledge receipt
of the correspondence. A copy of the acknowledgement letter and the correspondence received
will be sent immediately to the appropriate DCRO(s) and the Office of General Counsel (OGC) by
both email and US postal service. The DCRO(s) and OGC will promptly inform OCR of any
information that should be considered in its evaluation of the correspondence pursuant to Section
2.4. Additionally, the DCRO(s) will identify a point of contact with whom OCR can coordinate,
consult, and confer about the specific case pursuant to Section 1.3.
Assign a Case Number and Establish a File
Immediately upon receipt of the correspondence, OCR will assign a case number and establish a
case file. OCR’s case “opening” date for a complaint investigation is the date OCR receives the
correspondence. Correspondence received over a weekend, or on a holiday, will be considered
received on the next business day. OCR’s case “opening” date for a compliance review is the date
when the recipient is notified by letter that OCR will initiate a compliance review.6
OCR will enter all appropriate case management information into OCR’s External Compliance
Activity Tracking System (EXCATS) including all required documents.7 OCR will establish a case
file for each complaint. In cases involving multiple separate complaints or allegations pertaining to
multiple recipients, the following guidelines will apply in determining how many case numbers
should be assigned:


OCR will assign a separate case number to each named entity (potential alleged recipient)
named in the correspondence. If, during the course of the investigation, OCR determines
that other entities are involved in the alleged acts of discrimination, OCR will open
separate complaints and assign a separate case number for each such entity. The case
opening date for those entities is the date on which OCR notifies those additional entities
that they are involved.



Correspondence from more than one person or organization against the same entity that
contain different allegations are treated as separate cases.

A compliance review is an OCR-initiated investigation of a particular aspect of an EPA recipient’s programs or
activities to determine compliance with the civil rights laws enforced by OCR. See Chapter 5.
7
EXCATS is an automated case, activity, and document management system used by OCR to track and manage all
OCR discrimination cases. DCROs will have viewing rights to EXCATS data so that they can stay well informed
about cases of interest.
6

5

 

Multiple correspondences sent by one or more than one person that raise substantially
identical allegations against the same entity may be treated as one case and assigned one
case number. When OCR investigates a correspondence, a subsequent correspondence that
raises substantially identical allegations against the same entity will be reviewed to
determine whether to incorporate it into the existing case(s). If the subsequent
correspondence raises distinct allegations, OCR should assign separate case numbers.



New allegations filed by the same person against the same entity after OCR has begun to
investigate the original correspondence are reviewed on a case-by-case basis to determine
whether the allegations should be added to the open case or treated as a new case.

Staff should follow OCR’s file management protocol to maintain physical and electronic case files
once a case file is created.
Strategic Case Management Plan
OCR will create a Strategic Case Management Plan (see Section 8.1) for all complaints
acknowledged pursuant to Section 2.1. The Strategic Case Management Plan (SCMP) outlines
processing goals or targets for ensuring prompt, effective, and efficient processing of cases,
particularly within the first 90-calendar days after receipt of complaints.
Evaluation of Correspondence
OCR conducts a preliminary review of correspondence to determine whether it constitutes a
complaint. A complaint is a written statement to the agency alleging that the federal civil rights of
one or more persons have been violated by a recipient of financial assistance from EPA and
requesting that the agency take action. Complainants must also sign or electronically sign the
complaint and provide their contact information. Complaints may be filed by electronic mail,
regular mail, fax, or in person.8 Anonymous correspondence may be considered as one factor in a
decision to initiate a compliance review, but will not be sufficient to constitute a complaint.
When evaluating the correspondence to determine if it constitutes a complaint, the regulation
requires OCR to consider:
(1) Whether it is in writing;
(2) Whether it alleges a discriminatory act(s) that, if true, may violate EPA’s
nondiscrimination regulations, such as an act or policy that subjects a person or class of
persons to discriminatory treatment or an act or policy that results in discriminatory impact
on a person or class of persons on the basis of their race, color, national origin (including
limited English proficiency), disability, sex, or age;
(3) Whether it identifies an applicant for, or a recipient of, EPA financial assistance as the
entity that committed the alleged discriminatory act; and

8

U.S. EPA, Office of Civil Rights (Mail Code 1201A), 1200 Pennsylvania Avenue, N.W., Washington, D.C., 20460.
Complaints may be faxed to (202) 5601-1836.

6

 (4) Whether it was received by OCR within 180 calendar days of the alleged discriminatory
act.9
If a correspondence does not meet these jurisdictional requirements, it will be rejected or may be
referred to other agencies or offices that may have jurisdiction over the issues and/or entity
described in the correspondence, in accordance with Section 2.5.
OCR will provide to individuals wishing to file a complaint information to assist in understanding
the jurisdictional requirements under the regulation. This includes explaining the
nondiscrimination rights covered by the statutes and regulations enforced by OCR. OCR will
provide assistance to help complainants and recipients understand the administrative procedures
and processes associated with the External Compliance Program’s complaint processing. However,
OCR is a neutral decision-maker and is not an advocate on behalf of complainants or recipients.
The following will not be considered a complaint:
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

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

Oral allegations that are not reduced to writing;
Anonymous correspondence;
Courtesy copies of correspondence or a complaint filed with or otherwise submitted to
another person or other entity;
Inquiries that seek advice or information but do not seek action or intervention from the
agency; or
Correspondence expressing general concerns regarding general issues of discrimination.

(1) Determine that the correspondence is in “writing”
A complaint need not be written in English. OCR will take all necessary steps to ensure that
persons who have limited English proficiency can participate meaningfully in its complaint
process. Similarly, OCR will take all necessary steps to ensure that persons with disabilities can
effectively participate in the complaint process.
(2) Determine subject matter jurisdiction
OCR must have jurisdiction over the subject matter of the complaint. For OCR to establish subject
matter jurisdiction, the complaint must allege, or OCR must be able to infer from the facts given,
an allegation of (1) discrimination based on race, color, national origin (including limited English
proficiency), sex, disability or age, or (2) retaliation for the purpose of interfering with any right or
privilege secured by the civil rights laws enforced by OCR, or as a result of making a complaint,
testifying, or participating in any manner in an OCR proceeding. See 40 C.F.R. §§ 5.400 – 5.550,
40 C.F.R. §§ 7.30-7.75, 40 C.F.R. §§ 7.100 – 7.180; and 28 C.F.R. § 35.134. If OCR lacks subject
matter jurisdiction over any of the issues raised in the correspondence, it will not proceed further
regarding those issues and will reject the issues and/or complaint in accordance with Section 2.5.

9

See 40 C.F.R. § 7.120.

7

 OCR has jurisdiction pursuant to the following statutory and regulatory authorities:


Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., 40 C.F.R. Part 7.

Under Title VI, OCR has jurisdiction to investigate complaints alleging discrimination by
applicants and recipients based on race, color, or national origin, including limited English
proficiency. For employment complaints, OCR follows procedures consistent with the
employment coordinating regulations at 28 C.F.R. Part 42 and 29 C.F.R. Part 1691. 10


Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. §§ 1681 et seq.,
40 C.F.R. Part 5.

Under Title IX, OCR has jurisdiction to investigate complaints alleging discrimination on the basis
of sex in any education program or activity receiving financial assistance from EPA. For
employment complaints in general, OCR follows procedures consistent with the employment
coordinating regulations at 28 C.F.R. Part 42 and 29 C.F.R. Part 1691.


Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, 40 C.F.R.
Part 7.

Under Section 504, OCR has jurisdiction to investigate complaints alleging discrimination on the
basis of disability in a program or activity receiving financial assistance from EPA. For
employment complaints, OCR follows procedures consistent with the employment coordination
regulations at 28 C.F.R. Part 37 and 29 C.F.R. Part 1640.


Age Discrimination Act of 1975, 42 U.S.C. §§ 6101 et seq., 40 C.F.R. Part 7, Subpart F.

Under the Age Discrimination Act, OCR has jurisdiction to investigate complaints alleging
discrimination on the basis of age in a program or activity receiving financial assistance from EPA.
Accepted complaints of this nature are subject to mandatory referral for mediation to the Federal
Mediation and Conciliation Service (FMCS) before investigation. However, complaints of
employment discrimination based on age against an individual by recipients of Federal financial
assistance are subject to the Age Discrimination in Employment Act of 1967 and should be filed
administratively with the Equal Employment Opportunity Commission. For age complaints, OCR
follows procedures consistent with the age coordination regulations at 28 C.F.R. Part 42 and 29
C.F.R. Part 1626.


Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500 § 13, 86
Stat. 903 (codified as amended at 33 U.S.C. § 1251 (1972)), 40 C.F.R. Part 7.

10

With respect to alleged discrimination in employment. OCR’s jurisdiction is limited to alleged discrimination in employment on the basis of sex
in any program or activity subject to section 13, or on the basis of race, color, or national origin in any program or activity whose purpose is to
create employment; or, by means of employment discrimination,,deny intended beneficiaries the benefits of EPA assistance, or subject the
beneficiaries to prohibited discrimination. 40 C.F.R. § 7.35(6)

8

 Under Section 13 of the Federal Water Pollution Control Act Amendments, OCR has jurisdiction
to investigate complaints alleging discrimination on the basis of sex involving a program or
activity receiving financial assistance under the Clean Water Act.
(3) Determine personal jurisdiction
OCR must also have jurisdiction over the entity or potential recipient, including sub-recipients,
alleged to have committed the discriminatory act. Under the statutes listed above, OCR has
jurisdiction over entities that receive financial assistance from EPA. Determining whether an entity
classifies as a recipient of EPA financial assistance may require more complex analysis including,
for example, examining the flow-through of federal funds. Under these circumstances, OCR will
work with OGC and the DCRO(s) to make an informed determination about whether a particular
entity satisfies the criteria. (See DOJ Legal Manual and Investigation Procedures Manual. See
DOJ, Title VI Legal Manual, 20-40 (Jan 1, 2001), available at
http://www.justice.gov/sites/default/files/crt/ legacy/2011/06/23/vimanual.pdf; DOJ, Investigation
Procedures Manual for the Investigation of Complaints Alleging Violations of Title VI and Other
Nondiscrimination Statutes, 29-31 (Sept. 1998), available at
http://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/complain.pdf).
When a complaint is filed against an entity that does not receive financial assistance from EPA,
OCR will not proceed further and will reject the complaint in accordance with Section 2.5.
(4) Determine whether the allegations are timely
OCR will accept as timely only those allegations that have been filed within 180 calendar days of
the date of the last act of alleged discrimination, unless the complainant is granted a waiver under
this Section. If a case does not satisfy this condition, is not a continuing policy or practice as
defined below, and/or is not granted a waiver, it will be rejected under Section 2.5.
The filing date of a complaint is the date the complaint is received by OCR on a business day or
non-federal holiday between 8:00AM EST and 5:00PM EST.11
(a) Continuing Policy or Practice
Timely allegations may include those where the complainant alleges a continuing discriminatory
policy or practice. When determining whether an alleged timely continuing violation claim exists,
the emphasis should not be placed on mere continuity.12 The critical question is whether any

11

The filing date of complaints sent by electronic mail or by fax will be the date the complaint was received by OCR.
United Air Lines, Inc. v Evans, 431 U.S. 553, 557 (1977). See also Del. State College v. Ricks, 449 U.S. 250, 258
(1980) (holding that the proper focus for statute of limitations periods is upon the time of the discriminatory act, not
upon the time that the consequences of the act became most painful, that is, the denial of tenure was the discriminatory
act and not the termination of employment which was the natural consequence of that act); Franks v. Ross, 313 F.3d
184, 195 (4th Cir 2002) (finding that the statute of limitations did not begin to run until the landfill permit was issued
because there was no “obvious factual contingency that put construction seriously in doubt.”); Rozar v. Mullis, 85 F.3d
556, 561-562 (11th Cir. 1996) (determining in the environmental permitting context that the statute of limitations does
not begin to run until the facts which would support a cause of action are apparent or should be apparent, so the time
12

9

 present violation exists. In other words, correspondence claiming continuing violations must do
more than allege that an individual or a group is subjected to a continuing violation. The
complainant must allege facts that are sufficient to indicate either a series of related, discrete acts
of which one occurred within the 180-day filing period or a systematic policy or practice that
operated within the 180-day period.13
In evaluating the correspondence’s allegations, OCR will determine whether there is a continuing
discriminatory policy or practice. In order to accept allegations of a continuing policy or practice
as timely, OCR must be able to identify, generally through clarification from the complainant, a
discrete act that occurred within 180 calendar days of filing the correspondence. OCR also must be
able to determine whether the continuing violation reflects a discriminatory act occurring within
the 180-day period or is merely the consequences of a decision made earlier, because the latter
would not constitute a continuing violation. Finally, OCR may also determine the existence of a
continuing violation if the complainant shows a systematic policy or practice of discrimination that
operated within the limitations period, i.e., a systemic violation.
(b) Determine whether a waiver should be granted
If an allegation14 is not filed in a timely manner, OCR will independently assess the record to
determine whether a waiver is appropriate while simultaneously notifying the complainant of the
opportunity to request a waiver. OCR may grant a waiver of the 180-day filing requirement for
various reasons, such as:


The complainant could not reasonably be expected to know the act was discriminatory
within the 180-day period, and the correspondence was filed within 60 calendar days after
the complainant became aware of the alleged discrimination. (Note that lack of previous
awareness of OCR or the civil rights laws enforced by OCR is not a basis for a waiver).



The complainant was unable to file a correspondence because of an incapacitating illness or
other incapacitating circumstances during the 180-day period, and the allegation was filed
within 60 calendar days after the period of incapacitation ended.



The complainant filed a correspondence alleging the same discriminatory act within the
180-day period with a federal, state, or local civil rights enforcement agency, and then the
complainant filed a correspondence with OCR within 60 calendar days from the date on
which the other agency issued a decision reflecting completion of its investigation.
Additionally, if the complainant files a correspondence within 60 calendar days from the
date of issuance of the decision by a state or federal court about the complainant’s

period was triggered when the county vote selecting a landfill site occurred and was known as evidenced by one
plaintiff voicing protest prior to that vote).
13
See generally National Railroad Passenger Corp. v. Morgan, 536 U.S. 100, 107 (2002)
14
Although the manual refers to “complaints” and “complaint allegations,” OCR makes a determination as to each
individual allegation separately in a complaint. For example, in a single complaint, OCR may decide that it is
appropriate to proceed to complaint investigation on one or more allegations while dismissing or closing another
allegation. The complainant will be informed of OCR’s decision with respect to each allegation.

10

 allegations that was not a decision on the merits or settlement of the discrimination
allegations. (Dismissal with prejudice is considered a decision on the merits.)


The complainant filed, within the 180-day period, an internal grievance with the recipient
of financial assistance, or a due process hearing, alleging the same discriminatory conduct
that is the subject of the OCR complaint, and the complaint is filed no later than 60
calendar days after the internal grievance is concluded.

When a waiver is not requested and not independently granted by OCR based on the record, or
when a waiver is requested but not granted, the allegation and/or complaint will be rejected in
accordance with Section 2.5.
(5) Additional considerations for evaluating correspondence
If OCR receives a correspondence that articulates allegations or concerns about low-income
communities, OCR will communicate to the complainant that, even if the allegation were true, it
would not violate one of the federal nondiscrimination laws enforced by OCR because income
level is not a protected class under these laws. OCR will also engage the Office of Environmental
Justice and the appropriate DCROs. Further, OCR does not investigate alleged noncompliance
with Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, 59 Fed. Reg. 7629 (Feb. 16, 1994), which is generally
applicable only to Federal agencies and is intended only to improve the internal management of the
executive branch. This Executive Order is not intended to, nor does it, create any right, benefit, or
trust responsibility, substantive or procedural, enforceable at law or equity by a party against the
United States, its agencies, its officers, or any person. More information about EO 12898, may be
found at EPA’s Office of Environmental Justice’s internet website at
http://www.epa.gov/environmental justice.
OCR may contact the complainant to remedy specific problems with their correspondence and
provide appropriate assistance by explaining in writing (by letter or via electronic mail) the
information necessary for OCR to open an investigation of the complaint allegation. In doing so,
OCR will ask the complainant to provide this information to OCR within 30 calendar days from
receipt of the written request and advise the complainant that the complaint allegation will be
rejected if the information is not received by that date. When a complainant fails to provide the
requested information within 30 calendar days of the OCR’s written request and there is
insufficient information in the record to evaluate jurisdiction, OCR will reject the complaint.
Determine Whether to Reject the Allegation/Complaint
If a correspondence lacks the necessary elements described in Section 2.4 and/or the regulations
(40 C.F.R. § 7.120), OCR will prepare a draft rejection letter. The draft rejection letter will be
shared with the appropriate DCRO(s) for prompt input or information that could inform OCR’s
decision regarding the disposition of the correspondence.
When a complaint allegation is rejected, OCR will issue a closure letter to the complainant and
potential recipient explaining the reason for the decision.
11

 Other Factors That May Be Considered Before Accepting a Case for
Investigation
In general, OCR will accept, reject, or refer a complaint after considering the four fundamental
jurisdictional factors as described in the regulation. See Section 2.4, 40 C.F.R. § 7.120. However,
if OCR obtains information from DCROs, the complainant, the potential recipient, or other
credible sources leading OCR to conclude that an investigation is unjustified for prudential
reasons, OCR may reject a complaint allegation in accordance with Section 2.5.
Such prudential factors include but are not limited to:


The allegation is not ripe for review because it is speculative in nature and anticipates
future events that may or may not unfold as outlined in the complaint, so a meaningful
review of the allegation cannot be conducted at the time OCR receives the complaint.15



The allegations are moot because OCR obtains credible information indicating that the
allegations raised by the complaint have been resolved and there are no systemic
allegations. In such a case, OCR will attempt to ascertain the apparent resolution. When
OCR determines that there are no current allegations appropriate for further resolution, the
complaint will be rejected.



The same complaint allegations have been filed, are currently pending, and/or are already
resolved with another Federal, State, or local agency, or through a recipient's internal
grievance procedures, including due process proceedings, and you anticipate that the
agency will provide the complainant with a comparable resolution process. The
complainant should be advised that she or he may re-file within 30 days of the completion
of the other agency's action.



The same civil rights allegations have been filed by the complainant against the same
recipient with state or federal court individually or through a class action. A complaint may
be re-filed with OCR within 30 calendar days following termination of the court
proceeding if there has been no decision on the merits or settlement of the complaint civil
rights allegations. (Dismissal with prejudice is considered a decision on the merits.)

If OCR determines that these or other prudential factors argue to reject a complaint, it will draft a
rejection letter in accordance with Section 2.5. The draft rejection letter will be shared with the
appropriate DCRO(s) for prompt input or information that could inform OCR’s decision. In certain
circumstances, OCR may refer the correspondence to other state or federal agencies for their
review, if OCR determines those agencies may have jurisdiction related to the concerns raised in
the correspondence.

15

This type of allegation is considered to be rejected without prejudice. The complainant may re-file within 60 days of
a subsequent act or event that raises an allegation of discrimination.

12

 Opening an Investigation
Before issuing a letter accepting an allegation or a complaint for investigation, OCR will share a
draft acceptance letter with the appropriate DCRO(s) for input. OCR will evaluate the scope of the
investigation in light of any relevant information received, articulated in Section 2.6 and/or Section
3.4. OCR will open a case for investigation by issuing letters of acceptance to the complainant and
the recipient that contain, at a minimum, the following information:
(1)
(2)
(3)
(4)

OCR’s jurisdiction with applicable regulatory citations;
A clear statement of the issue(s) to be investigated;
A statement that OCR is a neutral fact-finder;
Information about OCR’s Early Complaint Resolution process, if appropriate. (See Section
3.5);
(5) Information about OCR’s Alternative Dispute Resolution process. (See Section 3.11);
(6) Information about the Informal Complaint Resolution Process. (See Section 3.12); and
(7) Contact information for the OCR staff person who will serve as the complainant’s and the
recipient’s primary contact during the investigation and resolution of the complaint.

13

 CHAPTER 3 ACCEPTED CASES: PRELIMINARY
INVESTIGATION AND RESOLUTION
The investigation and resolution of open complaints, is primarily the responsibility of OCR.
However, collaboration and consultation with the DCRO network will ensure the prompt,
effective, and efficient resolution of cases.
This Chapter discusses the importance of case planning and the full consideration and utilization of
the various resolution approaches. The resolution options included in the nondiscrimination
regulation emphasize informal resolution and voluntary compliance.
Role of Complainants and Recipients
The EPA’s regulations do not prescribe a role for the complainant once s/he has filed a complaint.
Nevertheless, one of the EPA’s goals is to promote appropriate involvement by complainants and
recipients in the External Compliance complaint process.
The EPA’s policy paper on the Role of Complainants and Recipients in the Title VI Complaints
and Resolution Process, published May 4, 2015, clarifies EPA’s approaches to providing
appropriate involvement of both complainants and recipients in the complaint process.16
An OCR complainant is not like a plaintiff in court. Rather a complainant’s role is to report what
s/he believes is an act violating nondiscrimination statutes by an entity receiving federal financial
assistance to the associated agency. The EPA is not in an adjudicatory role, evaluating evidence
produced by opposing sides, but instead investigates allegations about its recipient, and reaches a
conclusion regarding whether that recipient is in compliance with its civil rights obligations to the
EPA.
Early Case Planning
Case planning should begin as early as possible and will be conducted throughout the duration of
every case to ensure high quality decisions, prompt investigations and efficient use of OCR’s
resources. Case Managers should begin to draft an Investigative Plan, see Section 4.2, as early as
possible and soon after a decision to accept the case for investigation has been made. OCR will
share with appropriate DCROs a draft Investigative Plan, draft requests for information pursuant to
Section 4.3, or requests for internal analytical or technical review (e.g. of air modelling data) as
early as possible to solicit relevant input and ensure prompt, effective, and efficient case
processing. Additionally, Case Managers will determine whether a “Communication and Outreach
Plan” beyond a “desk statement” is warranted in order to assist in handling public or media
inquiries.

16

See EPA, Roles of Complainants and Recipients in the Title VI Complaints and Resolution Process (May 4, 2015),
http://www2.epa.gov/ocr/epas-title-vi-policies-guidance-settlements-laws-and-regulations.

14

 Identification of the Applicable Legal Theories
Part of effective case planning includes the identification of all legal theories that would be
applicable to the issues identified for investigation. The Investigative Plan should establish a
factual record sufficient to prove or disprove the applicable legal theory. In general, these fall into
three categories of legal claims: (a) Disparate/Different Treatment, (b) Disparate Impact/Effects,
and (c) Retaliation.
(1) Disparate/Different Treatment
Intentional discrimination may take many forms. One of the most common forms of intentional
discrimination is disparate treatment. Simply put, disparate treatment means that similarly situated
persons are treated differently (i.e. less favorably) than others because of their race, color, national
origin, sex, disability, or age. Disparate treatment cases can involve either “individual” or “class”
discrimination (or both). See Department of Justice Investigation Procedures Manual for the
Investigation and Resolution of Complaints Alleging Violations of Title VI and Other
Nondiscrimination Statutes at Section (B)(3), http://www.justice.gov/crt/investigation-proceduresmanual-civil-rights-division#theories (last visited Oct. 27, 2015).
(2) Disparate Impact/Effects
The second primary theory for proving a violation is based on nondiscrimination regulations and is
known as the discriminatory “effects” or disparate impact theory. Simply put, disparate impact
means that an entity’s otherwise neutral policy had the unintended effect of treating similarly
situated persons differently (i.e., less favorably) than those who differ on the basis of their race,
color, national origin, sex, disability, or age. See Department of Justice Investigation Procedures
Manual for the Investigation and Resolution of Complaints Alleging Violations of Title VI and
Other Nondiscrimination Statutes at Section (B)(3), http://www.justice.gov/crt/investigationprocedures-manual-civil-rights-division#theories (last visited Oct. 27, 2015).
(3) Retaliation
A complainant may bring a retaliation claim under nondiscrimination statutes or under EPA’s
regulations that prohibit retaliation. For example, EPA’s Title VI regulations provide that “[n]o
recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual
or group for the purpose of interfering with any right or privilege guaranteed by [this regulation,]
or because the individual has made a complaint, testified, assisted, or participated in any manner in
an investigation, proceeding or hearing under this subpart, or has opposed any practice made
unlawful by this regulation” See 40 C.F.R. § 7.100; see also, Department of Justice Investigation
Procedures Manual for the Investigation and Resolution of Complaints Alleging Violations of Title
VI and Other Nondiscrimination Statutes at Section (B)(3),
http://www.justice.gov/crt/investigation-procedures-manual-civil-rights-division#theories (last
visited Oct. 27, 2015).

15

 Other Factors to Consider After Opening an Investigation
If, after opening a complaint for investigation, OCR determines in consultation with the DCROs
that any of the criteria below has been met, a complaint may be “administratively closed.” OCR
retains its discretion to continue or close any investigation to ensure that the EPA complies with its
obligations under the nondiscrimination statutes. Factors that may support the administrative
closure of a complaint after opening an investigation include:


The allegation is not ripe for review because it is speculative in nature and anticipates
future events that may or may not unfold as outlined in the complaint, so a meaningful
review of the allegation cannot be conducted at the time OCR receives the complaint.17



The allegations are moot because OCR obtains credible information indicating that the
allegations raised by the complaint have been resolved and there are no systemic
allegations. In such a case, OCR will attempt to ascertain the apparent resolution. When
OCR determines that there are no current allegations appropriate for further resolution, the
complaint will be administratively closed.



The same complaint allegations have been filed with another Federal, State, or local
agency, or through a recipient's internal grievance procedures, including due process
proceedings, and you anticipate that the agency will provide the complainant with a
comparable resolution process. The complainant should be advised that she or he may refile within 30 days of the completion of the other agency's action.



The same civil rights allegations have been filed by the complainant against the same
recipient with state or federal court individually or through a class action. A complaint may
be re-filed with OCR within 30 calendar days following termination of the court
proceeding if there has been no decision on the merits or settlement of the complaint civil
rights allegations. (Dismissal with prejudice is considered a decision on the merits.) Where
OCR has obtained sufficient evidence to support a finding under Section 4.6(1)
(insufficient evidence) or Section 4.6(2) (non-compliance) with regard to any civil rights
allegation(s) being investigated by OCR which are not before the court, OCR may not close
the civil rights allegation(s), but may proceed in accordance with the appropriate provisions
set forth in Section 4.6.



The complaint allegations are foreclosed by legally binding decisions of state or federal
courts, adjudication decisions of the EPA, or by Department of Justice’s or EPA’s policy
determinations regarding agency enforcement of nondiscrimination statutes.



A complaint’s allegations would be better resolved through a compliance review (see
Chapter 5) or OCR has recently addressed or is currently addressing the same issues
involving the same recipient in a compliance review or an OCR complaint.

17

This type of allegation is considered to be administratively closed without prejudice. The complainant may re-file
within 60 days of a subsequent act or event that raises an allegation of discrimination.

16

 

The complainant withdraws the complaint after OCR has opened it for investigation;
however where the complainant has alleged systemic violations, OCR may determine that
it will continue the investigation notwithstanding the complainant’s withdrawal of the
complaint. Moreover, where OCR has obtained sufficient evidence to support a finding of a
violation with regard to any allegation(s), OCR will not close the allegation(s), but will
proceed in accordance with the appropriate provisions set forth in Section 4.6.



OCR determines that its ability to complete the investigation is substantially impaired by
the complainant’s loss of contact, death, or refusal to provide information that is reasonably
accessible to the complainant and is necessary for investigation of the complaint.
Generally, this factor does not apply where the investigation raises systemic issues that
warrant continuing the investigation. OCR will include documentation in the case file of its
efforts to contact the complainant by phone, in writing, or via electronic mail to request the
necessary information and of the complainant’s refusal to provide information.



OCR determines that another office or agency for investigation is a more appropriate forum
for the allegations’ review.
Early Complaint Resolution (ECR)

The Early Complaint Resolution (ECR) process facilitates the resolution of accepted complaints by
providing an early opportunity for the complainant(s) and recipient(s) involved to resolve the
complaint allegations informally.18 ECR involves informal facilitation by OCR so that the
complainant(s) and recipient(s) can come to a mutually acceptable agreement. ECR does not
involve formal mediation. In general, ECR is only appropriate for use in addressing specific and
discrete issues that involve individual remedies. OCR will consider whether an accepted complaint
is appropriate for ECR, as early as possible. When OCR determines that an accepted complaint is
appropriate (see criteria below) for ECR, it shall contact the complainant(s) and recipient(s) to
offer this resolution option.
(1) Questions to ask in considering whether ECR is appropriate




Are there specific/discrete issues that involve individual remedies (i.e. not affecting a class
of persons)?
Can those individual specific/discrete issues be addressed in full through ECR without
affecting OCR’s ability to investigate or resolve the other issues raised in the complaint?
If yes to both of these questions, ECR may be appropriate.

18

While ECR occurs between the complainant and recipient soon after a complaint is accepted for investigation,
Informal Resolution occurs between the EPA and the Recipient at any point in time. (see Section 3.12)

17

 (2) OCR's role:






To serve as an impartial, confidential facilitator between the complainant(s) and
recipient(s).
To inform the complainant(s) and recipient(s) of ECR procedures, establish a constructive
tone, and encourage the complainant(s) and recipient(s) to work expeditiously and in good
faith toward a mutually acceptable resolution.
To review the allegations that OCR has accepted for investigation with the complainant(s)
and recipient(s) and assist both in understanding the pertinent legal standards and possible
remedies.
To facilitate a discussion between the complainant(s) and recipient(s) regarding possible
actions that they may consider in working toward a resolution.
To offer assistance, as appropriate, with regard to reducing any resolution to writing. When
an agreement is reached, the complainant(s) and recipient(s) are informed that OCR will
issue a closure letter reflecting the resolution of the complaint by agreement of the
complainant(s) and recipient(s).

(3) Role of the participants:




To participate in the discussions in good faith.
To consider offers or suggestions with an open mind and to work constructively toward a
mutually acceptable resolution.
To implement any agreement in good faith.

(4) DCRO’s role



The DCRO’s may be requested by OCR to assist in facilitating conversations between the
recipient(s) and complainant(s).
If OCR believes ECR may be appropriate for resolving one or more issues, OCR will
consult the appropriate DCRO (s) for input.

Note that OCR does not sign, approve, endorse or monitor any agreement reached between the
complainant(s) and recipient(s).
Initiation and Termination of the ECR Process
When OCR determines that ECR is appropriate and the complainant(s) and the recipient(s) are
willing to proceed with this resolution option, OCR will designate staff to facilitate an agreement
between the recipient and the complainant. To the extent possible, staff assigned to conduct ECR
of a complaint shall not be staff assigned to the investigation of that complaint.
An Agreement to Participate in ECR must be reviewed and either signed or verbally agreed to by
the complainant and recipient. In circumstances where verbal agreement is obtained, the ECR
facilitator shall send a letter or electronic mail to the complainant(s) and recipient(s) confirming
the Agreement. This agreement will include a confidentiality agreement pursuant to Section 3.7.
18

 In general, OCR may suspend its investigation for up to 30 calendar days to facilitate an agreement
between the complainant(s) and recipient(s). If an agreement has not been reached, OCR will
resume its investigation if it had been suspended. See Section 3.10. If an agreement is reached,
OCR will close the case file in accordance with Section 3.8.
Confidentiality of the ECR Process19
A Confidentiality Agreement must be reviewed and signed or verbally agreed to by the ECR
facilitator and the complainant(s) and recipient(s) to the ECR, (i.e. by the complainant or
complainant’s representative and the recipient or recipient’s representative). In circumstances
where verbal agreement is obtained, the ECR facilitator shall send a letter or electronic mail to the
complainant(s) and recipient(s) confirming this Agreement.
In order to maintain confidentiality of the ECR process, any notes taken during ECR by the
facilitator and/or any records or other documents offered by either party to the facilitator during
ECR will be kept in a separate file and will not be shared with the staff member(s) assigned to
investigate the complaint.
Successful Conclusion of ECR
At the conclusion of ECR, OCR will obtain a copy of the agreement that has been signed by the
complainant(s) and recipient(s). Once resolution of any allegation has been obtained, OCR will
notify the complainant(s) and recipient(s) in writing that the allegation(s) has been resolved and
that OCR will close the case. See Section 3.16. Other outstanding issues, if any, are to be resolved
through the investigation and resolution process. See Chapter 4. A copy of the ECR agreement
between the complainant(s) and recipient(s) will be attached to the closure letter.
Breach of ECR Agreements
OCR will not monitor the agreement between the parties reached though the ECR process, but will
inform the complainant(s) and recipient(s) that if a breach occurs, the complainant has the right to
file another complaint. If a new complaint is filed, OCR will not address the alleged breach of the
agreement. Instead, OCR will determine whether to investigate the original allegation. See Chapter
2. When making this determination, OCR will consider the nature of the alleged breach, its relation
to any alleged discrimination and any other factors as appropriate. To be considered timely, the
new complaint must be filed either within 180 calendar days of the date of the last act of alleged
discrimination or within 60 calendar days of the date the complainant obtains information that a
breach occurred, whichever date is later.
Investigative Determination When ECR Is Not Achieved
OCR will monitor the amount of time in the ECR process to ensure adequate time for completion
of the investigation in the event that ECR is unsuccessful. In general, OCR may suspend its

19

Subject to the applicable federal laws such as the Freedom of Information Act, 5 U.S.C. § 552, or the Privacy Act of
1974, 5 U.S.C. § 552a.

19

 investigation for up to 30 calendar days to facilitate an agreement between the complainant(s) and
recipient(s). If an agreement has not been reached, OCR will resume its investigation if it had been
suspended. Where ECR is unsuccessful, an investigation must proceed to ensure completion in
accordance with case processing procedures in this manual. See Chapter 4.
Alternative Dispute Resolution
EPA OCR’s Alternative Dispute Resolution (ADR) process involves the formal mediation of a
complaint or complaint allegations between the complainant and recipient, through the use of a
professionally trained mediator. The EPA considers the ADR process to be a viable option for
complainants and recipients to address some, if not all, of the issues raised in nondiscrimination
complaints.20 As appropriate, the EPA may offer the complainant and the recipient an opportunity
to engage in the ADR process at any stage in the complaint process, even if an investigation has
started. OCR will seek the appropriate DCROs’ engagement and assistance in the ADR process to
ensure prompt, effective, and efficient case resolution.
The decision to attempt to resolve a discrimination complaint through ADR is completely
voluntary for complainants and recipients. ADR participants can withdraw from the process at any
time without penalty if they determine that they cannot meet their interests and achieve a
satisfactory outcome. If this happens, complaint investigation and resolution will resume.
If the recipient and complainant agree to engage in ADR (that is, they advise the neutral third party
that they are willing to participate in ADR), the EPA will suspend its investigation of the
complaint. A letter will be issued to the parties reflecting the suspension of the investigation once
the complainant and recipient agree upon a mediator.
If, after an offer of ADR, the complaint(s) and recipient(s) have not agreed to engage in ADR
within 90 calendar days of the offer, OCR may withdraw its offer of ADR.
If the ADR participants reach a mutually acceptable agreement to resolve the complaint, the
proposed terms of the agreement will be shared with OCR by the mediator. Once OCR determines
the terms are reasonable, OCR will communicate its determination to the mediator who will
facilitate the recipients and complainants’ signing and finalization of the ADR Resolution
Agreement.21
Once notified by the mediator that the ADR Resolution Agreement has been finalized, OCR will
promptly issue a letter notifying the complainant and recipient that the ADR Resolution
Agreement serves to resolve the complaint fully and that OCR will issue a letter closing the case as
of the date of that letter. OCR will not monitor the implementation of the ADR Resolution
Agreement, but will respond to complaints by the parties of Resolution Agreement breaches
pursuant to Section 3.9.

20

See http://www.epa.gov/ocr/faq-adrt6.htm (soon to be under revision.)
OCR will ensure that one of the terms articulated by the mediator is that the complainant and recipient acknowledge
that the finalization of the ADR Resolution Agreement will result in the full resolution of the complaint and that OCR
will issue a letter closing the complaint.
21

20

 Informal Resolution Process in General
After acceptance of a complaint, and at any point during the investigation, OCR or the recipient
may seek to informally resolve complaints of discrimination. Informal Resolution occurs between
OCR and the recipient.22 OCR will seek the appropriate DCROs’ engagement and assistance in the
Informal Resolution process to ensure prompt, effective, and efficient case resolution. See also
Section 3.13. The EPA’s nondiscrimination regulations allow OCR to pursue informal resolution
wherever practicable. 40 C.F.R. 7.120(d)(2). The term ‘‘informal resolution’’ refers to any
resolution of complaint allegations prior to the issuance of a finding of compliance or
noncompliance. Informal Resolution agreements must be in writing, set forth the specific steps the
recipient has agreed to take and any specific monitoring requirements and be signed by the
Director of OCR or designee and an official with legal authority to bind the recipient.23
Engagement with Complainants and Recipients during Informal
Resolution
OCR will seek the appropriate DCROs’ assistance in the Informal Resolution process to ensure
prompt, effective, and efficient case resolution. If resolution discussions are occurring between
OCR and the recipient, OCR will use its discretion, when appropriate, to engage complainants who
want to provide input on potential resolution issues. OCR will determine, based on its enforcement
discretion, when such engagement may occur during the process. For instance, in appropriate
cases, OCR may request and consider the complainant’s input on potential resolution issues and
may forward the suggested resolution issues to the recipient for further discussion with OCR.24
OCR may undertake the gathering of such additional information, in appropriate cases, because the
information could help it evaluate whether informal resolution is in the agency’s best interest.25
In addition, depending on the complaint, OCR may use its enforcement discretion to seek and
consider the complainant’s input on potential terms of a resolution agreement between OCR and
the recipient.26

22

Unlike ECR, which occurs between the complainant and the recipient. See Section 3.5.
Settlement after a finding of non-compliance is referred to as a “voluntary compliance agreement.” The required
elements of voluntary compliance agreements are in Section 4.9.
24
See generally EPA, Roles of Complainants and Recipients in the Title VI Complaints and Resolution Process (May
4, 2015), http://www2.epa.gov/ocr/epas-title-vi-policies-guidance-settlements-laws-and-regulations.
25
Id.
26
Id.
23

21

 Informal Resolution Agreement Reached During an Investigation
Allegations and issues under investigation may be resolved at any time during the investigation
prior to the issuance of findings if the recipient expresses an interest in resolving the allegations
and issues informally independently and OCR determines that it is appropriate to resolve them
with an informal resolution agreement, or at OCR’s offering of informal resolution. OCR will seek
the appropriate DCROs’ engagement and assistance in the Informal Resolution process to ensure
prompt, effective, and efficient case resolution.
In consultation with the appropriate DCRO(s), OCR will prepare a proposed informal resolution
agreement. The proposed resolution agreement will be shared with the recipient for consideration.
From the date that the proposed informal resolution agreement is shared with the recipient, OCR
and the recipient will have a period of 60 calendar days within which to reach final agreement.
During the negotiations period (which may be less than 60 calendar days, at the discretion of
OCR), OCR may suspend its investigation of the case. This 60-day period for suspension of the
investigation in order to conduct negotiations cannot be restarted but may be extended at any time
by OCR if a recipient(s) negotiates in good faith and an agreement is likely to be reached. If
negotiations are successful, OCR will close the case in accordance with Section 3.16. If
negotiations are unsuccessful, OCR will re-open the case in accordance with Section 3.17.
OCR will monitor the implementation of the agreement until the recipient has fulfilled the terms of
the agreement. See 0. If a recipient fulfills the terms of the agreement, OCR will close its
monitoring of the case and close the case file in accordance with Section 6.4. If a recipient fails to
fulfill the terms of the agreement, OCR will reopen the investigation pursuant to Section 3.17.
Informal Resolution Agreement Reached After the Completion of an
Investigation but Prior to the Issuance of Findings
Allegations and issues under investigation may be resolved after the completion of an investigation
but prior to the issuance of findings if the recipient expresses an interest in resolving the
allegations and issues informally and OCR determines that it is appropriate to resolve them with an
informal resolution agreement. OCR will seek the appropriate DCROs’ collaboration, input, and
assistance in the Informal Resolution process to ensure prompt, effective, and efficient case
resolution.
For cases with allegations and issues that have been investigated but a finding has not been issued,
OCR will prepare a Statement of the Case (including a proposed resolution agreement). The
Statement of the Case must set forth:




A statement of OCR’s jurisdictional authority, including recipient status and the statutory
basis for the investigation.
An explanation of the pertinent legal standard(s).
A statement of each allegation(s) and issue(s) investigated to date supported by any
necessary explanation or analysis of the evidence.

22

 




The outstanding areas that OCR would have to investigate in order to reach a determination
regarding compliance.
The date of the recipient’s expression of interest in resolving the complaint.
OCR’s basis for entering into the resolution agreement.
An explanation of how the terms of the agreement are aligned with the allegations and
issues investigated and are consistent with applicable law and regulation(s).

The Statement of the Case must address all of the allegations and issues proposed for resolution, as
well as any other allegation(s) or issue(s) that will be resolved by other means. A copy of the
resolution agreement will be included with the resolution letter.
From the date that the proposed terms of the resolution agreement are shared with the recipient,
OCR and the recipient will have a period of 60 calendar days within which to reach final
agreement. If after 60 days OCR and the recipient cannot reach a mutually acceptable informal
resolution agreement, OCR will prepare to issue a letter of findings. See Section 4.7.
OCR will monitor the implementation of the agreement until the recipient has fulfilled the terms of
the agreement. If a recipient fulfills the terms of the agreement, OCR will close its monitoring of
the agreement and close the case file in accordance with 0. If a recipient fails to fulfill the terms of
the agreement, OCR will prepare a letter of findings and prepare for possible enforcement. See
Section 4.7.
When ECR, ADR or Informal Resolution is Achieved
When a recipient(s) enters into an agreement through any informal resolution avenue (e.g. ECR,
ADR or Informal Resolution) OCR will address the final agreement in a resolution letter to both
the complainant(s) and the recipient(s). OCR will also seek the appropriate DCROs’ engagement
and assistance in the process to ensure prompt, effective, and efficient case resolution. This letter
may or may not set out any major aspects of the agreement as appropriate. For Informal Resolution
reached between OCR and the Recipient, the Informal Resolution Agreement will always
accompany the Resolution letter. After a Resolution Agreement is in place, OCR will monitor the
recipient pursuant to 0.
When Informal Resolution or ADR is not Achieved
OCR will monitor the Informal Resolution and ADR process to ensure the investigation resumes in
a prompt manner in the event that the Informal Resolution or ADR is unsuccessful. See Chapter 4.
If OCR has sufficient evidence to support a letter of findings on some or all of the allegation(s) it
may issue the letter of finding(s) when Informal Resolution or ADR is determined to be
unsuccessful. See Section 4.7. If an agreement has not been reached, OCR will resume its
investigation if it had been suspended. See Section 3.10.

23

 CHAPTER 4 INVESTIGATION AND VOLUNTARY
COMPLIANCE
This Chapter discusses the steps involved in completing an investigation of a complaint of
discrimination, the issuance of a letter of findings, and the process of seeking voluntary
compliance. OCR will ensure that investigations are legally sufficient and that they are dispositive
of the issues accepted for investigation.
Case Planning
As discussed in Chapter 2, OCR will create a Strategic Case Management Plan for all complaints
acknowledged pursuant to Section 2.1 and outline processing goals or expectations for ensuring
timely and effective processing of cases, particularly within the first 90-calendar days after receipt
of complaints. See Section 2.3; see also Section 8.1.
Case planning will begin as early as possible, will involve the DCROs, and continue throughout
the duration of every case with adjustments made as necessary to ensure high quality decisions,
prompt investigations and efficient use of OCR resources. The scope of OCR’s investigation and
resolution activities will depend upon the particular issues(s) accepted for investigation and
applicable legal standards.
Planning documentation should be organized so that it can be readily located in the case file. All
investigative planning activities will address:






Required action(s) to achieve compliance, including determining whether it is appropriate
to obtain interim relief for the complainant. If interim relief is appropriate, as soon as OCR
identifies the need for such relief, OCR will contact the recipient as early as possible to
secure it.
Dates for completion of specific actions.
Verification/reporting requirements (e.g. a description of specific data, documentation and
other needed information).
Efficient resource use, including investigation methods used by recipients to track and
evaluate their compliance with their legal responsibilities (e.g., climate surveys and other
self-assessment tools), individual interviews, onsite visits, use of surveys, where
appropriate, to obtain information from a large number of witnesses.

OCR will document its efforts to obtain data from the complainants and the recipient. See Sections
1.4 and 6.3.
When during the course of the investigation of a complaint, OCR identifies new compliance
concerns involving unrelated issues that were not raised in the complaint or issues under
investigation, OCR may follow up on those issues and address them within the resolution of the
original complaint and through the resolution letter and voluntary compliance agreement, inform
the parties of the concerns and provide technical assistance, consider the compliance concerns for a
possible compliance review, or any other action in its enforcement discretion. In consultation with
the appropriate DCRO(s), OCR will inform the recipient of any “new compliance concerns” and
24

 OCR’s intent to pursue those issues. Additionally, if OCR identifies non civil rights issues relating
to compliance with environmental law (s), OCR will inform the relevant DCRO(s) and EPA office.
Investigation Plan
Complaint investigations and resolutions should be preceded by planning, and the approach should
be developed based on the nature and complexity of the issues involved. All Investigation Plans
(IP) should set out the specific allegations to be resolved and, if appropriate, the expected internal
time frames to guide the investigator or investigative team. The extensiveness of an IP depends on
the complexity of the issues involved. The basic IP will help the investigator focus on the principle
issues to be explored in the course of the investigation, as well as the sources of evidence available
to resolve them.
At a minimum, the IP should include the following:
(1)
(2)
(3)
(4)
(5)

(6)
(7)
(8)
(9)

Jurisdictional information;
Identification of discrimination bases and issues;
Identification of the applicable legal theories;
Conclusions drawn from the analysis of the data or other evidence already gathered;
Description of the documentary, testimonial, and statistical evidence required to complete
the investigation, including interviews, and the best sources and means of obtaining each
type of evidence;
Anticipated sequence of case activities, including onsite visits if needed;
Anticipated timeframes for obtaining and analyzing evidence (if appropriate);
Statement of likely or enunciated recipient responses and a description of the evidence
required to test their validity; and,
A determination whether additional information is needed from a recipient and whether
OCR will issue Request(s) for Information pursuant to Section 4.3 in consultation with the
appropriate DCRO(s).

OCR will also seek the appropriate DCROs’ input, engagement and assistance in the process to
ensure prompt, effective, and efficient case resolution.
Generally, if an IP has been developed, OCR will not release the IP to the complainant or the
recipient during the pendency of the investigation.
Request for Information
If additional information is needed from a recipient or complainant, OCR will prepare and issue a
Request(s) for Information (RFI). The RFI will include, at a minimum, (1) a clear description of
the additional information being requested of the recipient(s)/complainant(s) in light of the issues
under investigation, and (2) specific timeframes for recipient’s/complainant’s response to the RFI.
Investigation Report

25

 An Investigation Report (IR) may be developed when a case(s) undergoes a full investigation and
findings are made. The IR is a detailed and logical document that (1) sets forth all facts pertinent to
the case, (2) analyzes those facts in light of the complainant’s allegation(s) and applicable legal
theories, and (3) recommends a determination as to the validity of the allegation(s) based on that
analysis. OCR will also seek the appropriate DCROs’ engagement and assistance in developing an
IR, to ensure prompt, effective, and efficient case resolution.
Generally, if an IR has been developed, OCR will not release the IR to the complainant or the
recipient during the pendency of the investigation.
Resolution after an Investigation Is Completed
Generally, allegations under investigation may be resolved informally in several ways, as also
discussed in Chapter 3. Where OCR has completed the investigation and if, in consultation with
the appropriate DCRO it determines that a post-investigation informal resolution agreement is not
appropriate, OCR will prepare to issue a letter of findings.
Note that a “mixed resolution” may be appropriate for complaints with multiple allegations and
issues. A “mixed resolution” occurs where the investigation thus far has found any or all of the
following: (1) sufficient evidence to find a violation with regard to some allegations and issues, (2)
insufficient evidence to find a violation with regard to some allegations and issues, and/or (3) some
allegations and issues that are appropriate to resolve prior to the conclusion of the investigation.
The letter that OCR issues in such a “mixed resolution” case must state the allegations and issues
for which OCR has made a finding(s) (either violation or insufficient evidence), state OCR’s
finding(s) and the basis therefor, and must state the allegations and issues that are being resolved
prior to the conclusion of the investigation.
Investigative Determination
At the conclusion of the investigation of all allegations and issues, OCR will determine, using a
preponderance of the evidence standard, whether:



There is insufficient evidence to support a conclusion of noncompliance.
The preponderance of evidence supports a conclusion of noncompliance.27

OCR will issue a letter of finding(s) to the complainant(s) and recipient(s) explaining the reason(s)
for its decision.
(1) Insufficient Evidence Determination
When OCR determines that the preponderance of the evidence does not support a conclusion that
the recipient failed to comply with applicable regulations, OCR may issue a letter of insufficient
evidence to the complainant(s) and recipient(s) explaining the reasons for its decision. See Section
4.7
27

A preponderance of evidence means that the version of facts alleged is more likely than not the correct version.

26

 (2) Non-Compliance Determination
When OCR determines that the preponderance of the evidence supports a conclusion that the
recipient failed to comply with applicable regulation(s), in addition to the Statement of the Case,
OCR may prepare a letter of finding(s), and a proposed voluntary compliance agreement. The
Statement of the Case must set forth:







A statement of OCR’s jurisdictional authority, including recipient status and the statutory
basis for the investigation;
An explanation of the pertinent legal standard(s);
A statement of each allegation and issue investigated and the findings of fact for each,
supported by any necessary explanation or analysis of the evidence on which the findings
are based;
Conclusions for each allegation and issue that reference the relevant facts, the applicable
regulation(s), and the appropriate legal standards;
OCR’s basis for entering into the voluntary compliance agreement; and
An explanation of how the terms of the agreement are aligned with the allegations and
issues investigated and are consistent with applicable law and regulation(s).
Insufficient Evidence or Non-Compliance Letters of Finding(s)

In general, a letter of finding(s) is developed after an investigation is conducted and may set forth
conclusions of law and facts per OCR’s investigation. OCR will also seek the appropriate DCROs’
engagement and assistance in the process to ensure prompt, effective, and efficient case resolution.
The letter may include, as appropriate for the type of closure:











A statement of allegation(s) and issue(s) in the case;
A statement of OCR’s jurisdictional authority, including recipient status and the statutory
basis for the investigation;
A statement of the findings of fact for each, allegation(s) and issue(s) supported by any
necessary explanation or analysis of the evidence on which the findings are based;
When negotiations have resulted in an agreement pursuant to Section 3.12 (Informal
Resolution), a statement that, when fully implemented, the voluntary compliance
agreement will address all of OCR’s compliance concerns and that OCR will monitor the
implementation of the agreement until the recipient complies with terms of the agreement
pursuant to 0. The letter will include a copy of the agreement;
When negotiations have not resulted in an agreement, a description of OCR’s unsuccessful
attempts to resolve the complaint;
Conclusions for each allegation and issue that reference the relevant facts, the applicable
regulation(s), and the appropriate legal standards;
Notice that the letter of findings is not intended and should not be construed to cover any
other issue regarding the recipient’s compliance;
Notice of the time limit on OCR’s resolution process and the consequence of failure to
reach agreement;
A description of OCR’s unsuccessful attempts to resolve the case;
27

 


A statement of the Recipient’s right to request a hearing within 30 calendar days by an
Administrative Law Judge, pursuant to 40 C.F.R. § 7.130(b);
A statement that limits the scope of the decision to (1) the particular applicant or recipient
and (2) the particular program, activity, or part of the applicant/recipient, in which the
discrimination was found.
Voluntary Compliance Agreements

A voluntary compliance agreement to address a finding of discrimination must include action steps
that, when implemented, will remedy both the individual discrimination at issue as well as any
systemic discrimination. OCR will develop a draft voluntary compliance agreement to share with
the appropriate DCRO(s) for prompt comment and input. In consultation with the appropriate
DCRO(s), OCR will contact the recipient and attempt to secure the recipient’s willingness to
negotiate a voluntary compliance agreement. In addition, OCR will notify the complainant that it
intends to negotiate a voluntary compliance agreement.
(1) Timeframes and Procedures for Negotiations
After receiving a finding of noncompliance, the recipient will have 50 calendar days to agree to a
voluntary compliance agreement or submit a written response sufficient to demonstrate that the
preliminary findings are incorrect, or that compliance may be achieved through steps other than
those recommended by OCR.28
If the recipient does not take one of these actions within 50 calendar days after receiving the
preliminary findings, OCR shall send in 14 calendar days a formal written determination of
noncompliance to the recipient and copies to the DCRO, the Award Official, and Department of
Justice’s Assistant Attorney General.29
The recipient will have 10 calendar days from receipt of the formal determination of
noncompliance in which to come into voluntary compliance. If the recipient fails to meet this
deadline, OCR will issue a Notice of Impending Enforcement Action that states the recipient’s
refusal to enter into a voluntary compliance agreement and provides notice that EPA will
commence enforcement action immediately to terminate or refuse to award or to continue financial
assistance or to refer the matter to the Department of Justice for judicial enforcement.30
Guidelines for Voluntary Compliance Agreements
The complaint will be considered resolved, under monitoring pursuant to 0, and the recipient
deemed “compliant” when the recipient enters into an agreement after negotiating with OCR on
terms that, when fully and effectively implemented, will address all of OCR’s compliance
concerns and/or the identified violations. A copy of the agreement will be included with the
resolution letter or letter of finding(s).

28

See 40 CFR § 7.115(d).
See id.
30
See 40 CFR § 7.130 (a).
29

28

 Where the settlement is memorialized through an exchange of letters or other written
communications, each of the below elements must be satisfied.
Voluntary Compliance Agreements:



Must be signed by a person with authority to bind the recipient; and
Must include:
o Specific acts or steps the recipient will take to resolve compliance issues;
o Dates for implementing each act or step;
o Dates for submission of reports and documentation;
o Where appropriate, language requiring submission of documents and/or other
information or actions for OCR’s review and approval, and timeframes for their
submission;
o Timeframes requiring the recipient to implement what OCR has approved, and
language requiring documentation verifying implementation; and
o The following statements of principles:
 The recipient understands that by signing the Agreement, it agrees to
provide data and other information in a timely manner. Further, the recipient
understands that, during the monitoring of the Agreement, OCR may visit
the recipient, interview staff, community members, and knowledgeable
persons, and request such additional reports or data as are necessary for
OCR to determine whether the recipient has fulfilled the terms of the
Agreement and complies with the statute(s) and regulations that were at
issue in this case;
 The recipient understands that OCR will not close the monitoring of the
Agreement until such time that OCR determines that the recipient has
fulfilled the terms of the Agreement; and
 The recipient understands and acknowledges that OCR may initiate
administrative enforcement or judicial proceedings to enforce the specific
terms and obligations of the Agreement. Before initiating administrative
enforcement or judicial proceedings to enforce the Agreement, OCR shall
give the recipient written notice of the alleged breach and sixty (60)
calendar days to cure the alleged breach.

29

 CHAPTER 5

COMPLIANCE REVIEWS

All federal agencies are required to maintain an effective program of post-award compliance
reviews. See 28 C.F.R. § 42.407(c). A compliance review is an OCR-initiated investigation of a
particular aspect of an EPA recipient’s programs or activities to determine compliance with the
civil rights laws enforced by OCR. OCR’s External Compliance Strategic Plan has prioritized the
enhancement of an external compliance program through proactive compliance reviews.
In addition to the regulations implementing Title VI that require OCR to investigate complaints
that are filed with the agency, the regulations specify that OCR may initiate “periodic compliance
reviews” to assess the practices of recipients to determine whether they comply with the Title VI
regulations. See 40 C.F.R. §§ 7.110, 7.115. This regulatory provision is incorporated by reference
in the regulations implementing other statutes enforced by OCR. See 40 C.F.R. § 5.605.
The compliance review regulations afford OCR discretion to determine the substantive issues for
investigation and the number and frequency of the investigations.31 To address issues of strategic
significance in civil rights areas, OCR will identify, plan, and implement a docket of compliance
reviews in consultation with the appropriate DCROs. In selecting specifics recipients for
compliance reviews, OCR will consider a number of factors, including statistical data, prior
complaints, reports by other EPA offices, information shared by other federal agencies, and other
specific and reliable information from communities and/or sources, which further our strategic
goals. OCR’s objective will be to engage early and often with recipients of federal assistance to
collaboratively identify resolution approaches.
Post-Award Compliance Reviews
The agency may periodically conduct reviews of any recipient’s programs or activities to ensure
compliance with the nondiscrimination laws enforced by OCR. After selecting a recipient for
review, OCR will inform the recipient of the nature of and schedule for review and its opportunity
to make a written submission responding to, rebutting, or denying the issues raised in the review.32
These compliance reviews may include information and data requests. They may also include onsite reviews when the EPA has reason to believe that discrimination may be occurring in those
programs or activities. See 40 C.F.R. § 7.115.
The investigation and resolution options and procedures identified throughout the CRM will be
utilized for compliance reviews, as appropriate. See Chapter 2, Chapter 3, Chapter 4, and 0. The
“Federal agencies have broad discretion in determining which recipients and subrecipients to target for compliance
reviews. However, this discretion is not unfettered. In United States v. Harris Methodist Fort Worth, 970 F.2d 94 (5th
Cir. 1992), the Fifth Circuit found that a Title VI compliance review involves an administrative search and, therefore,
Fourth Amendment requirements for "reasonableness" of a search are applicable. The Court considered three factors:
(1) whether the proposed search is authorized by statute; (2) whether the proposed search is properly limited in scope;
and (3) how the administrative agency designated the target of the search. Id. at 101.” See DOJ, Title VI Legal
Manual, 78-79 (Jan 1, 2001), available at http://www.justice.gov/sites/default/files/crt/legacy/2011/06/23/
vimanual.pdf.
32
See 40 CFR § 7.115(b).
31

30

 “initiation date” for the purposes of post-award compliance reviews is the date of the letter
notifying the recipient of the compliance review.
Pre-Award Compliance Reviews
Additionally, the EPA may conduct pre-award compliance reviews if it deems the review to be
appropriate. Within EPA’s application processing period, it will determine whether the applicant
complies with non-discrimination regulations pertaining to recipients of financial assistance. See
40 C.F.R. § 7.110. To obtain the information necessary to make that determination, the EPA
requires applicants to submit notice of any pending lawsuits alleging discrimination, any civil
rights compliance reviews regarding the applicant conducted during the two-year period before the
application, the name and title of its compliance coordinator, and a copy of the applicant’s
grievance procedures, if any. See 40 C.F.R § 7.110(a). In addition, applicants may be required to
submit any other information that the EPA determines is necessary to make the pre-award
compliance determination. See EPA Form 4700-4.

31

 CHAPTER 6 MONITORING OF INFORMAL RESOLUTION
AGREEMENTS AND VOLUNTARY COMPLIANCE
AGREEMENTS
Effective, and vigorous case resolution monitoring is essential to ensuring compliance with civil
rights laws. OCR will promptly conduct its monitoring activities. OCR will closely monitor the
recipient’s implementation of the informal resolution agreement or voluntary compliance
agreement to ensure that the commitments made are implemented. OCR may conduct onsite visits
as part of its monitoring. OCR may publicize these visits in order to obtain information from the
public concerning the recipient’s implementation of the voluntary compliance agreement. OCR
may also conduct individual interviews and focus groups as part of the onsite monitoring activities.
See CHAPTER 6. OCR will plan all monitoring activities to ensure that it results in compliance
with the resolution agreement. OCR will not cease monitoring an informal resolution agreement or
voluntary compliance agreement (or associated cases) until such time that OCR determines that the
recipient has fulfilled the terms of the informal resolution agreement or voluntary compliance
agreement.
Respond to Monitoring Reports and Verify Recipient’s Implementation
OCR will promptly acknowledge receipt of interim and final monitoring reports. OCR will
evaluate the report and issue an appropriate response (e.g. that OCR determines actions taken are
sufficient or insufficient under the agreement). OCR must obtain sufficient information to
determine whether the commitments made by the recipient have been implemented consistent with
the terms of the voluntary compliance agreement. Depending on the nature of the agreement, OCR
may verify implementation and/or remedial actions by reviewing reports, required documentation,
and/or other information submitted by recipients; interviewing the recipients and/or knowledgeable
persons; and/or conducting site visit(s). OCR will also seek the appropriate DCROs’ engagement
and assistance in the process to ensure prompt, effective, and efficient verification of recipient
implementation.
Implementation Problems
OCR will promptly provide written notice to the recipient of any deficiencies with respect to
implementation of terms of the agreement, and will promptly request appropriate action to address
such deficiencies. When OCR has determined that a recipient has failed to comply with the
agreement or any of the terms thereof for reasons that do not justify modification of the agreement,
OCR will take prompt action, enforce the agreement, and ensure that the recipient complies.33
Modifications of Agreements
(1) Changed Circumstances Affecting Agreements

Note that failure or refusal to implement an Informal Resolution Agreement will result in OCR’s re-opening the case
investigation and issuing a finding when appropriate. The failure or refusal to implement a Voluntary Compliance
Agreement may result in enforcement action against the recipient. See Chapter 7.
33

32

 OCR may agree to modify or terminate an informal resolution or voluntary compliance agreement
when it learns that circumstances have arisen that substantially change, fully resolve, or render
moot some or all of the compliance concerns that were addressed by the voluntary compliance
agreement. OCR may also modify the agreement in response to changes in controlling case law,
statutes, regulations, or agency policy. OCR will also consult appropriate DCROs in the process to
ensure prompt, effective, and efficient verification of changed circumstance.
(2) New Compliance Issues
OCR may address a new compliance issue(s) identified for the first time during monitoring by
providing technical assistance or considering the issue(s) as factors to initiate a compliance review.
See Chapter 5.
(3) Approval of Modifications
OCR must approve modifications to the agreement (e.g., requests to change the substance of any
provision in the agreement, requests for extension of time to submit a report or to complete a
required action). Approved modifications must be set forth in writing and appended to the original
agreement. Requests for modification must be documented in the case file. The complainant will
be notified in writing of approved modification(s) to the substance of the agreement and
extension(s) of the timeframe within which to complete a required act(s).
Conclusion of Monitoring
OCR will conclude the monitoring of a case when it determines that the recipient has implemented
the terms of the informal resolution agreement or voluntary compliance agreement, including any
subsequent approved modifications to the agreement, and complies with the statute(s) and
regulation(s) at issue. OCR will also seek the appropriate DCROs’ engagement and assistance in
the process to ensure prompt, effective, and efficient verification of effective implementation. The
recipient and the complainant will be promptly notified in writing of this determination.

33

 CHAPTER 7

INITIATION OF ENFORCEMENT ACTION

If a recipient continues to refuse to enter voluntary compliance, OCR may either: (1) initiate
administrative proceedings to suspend, terminate, or refuse to grant or continue and defer financial
assistance from the recipient; (2) refer the case to DOJ for judicial proceedings to enforce any
rights of the United States under any of its laws; or (3) use any other means authorized by law.
Both of these options are available under 40 C.F.R. § 7.130.
Initiate Administrative Proceedings Where Appropriate
When negotiations do not result in a voluntary compliance agreement after the Notice of
Impending Enforcement Action, where appropriate, OCR will initiate an administrative
enforcement proceeding. OCR will also seek the appropriate DCROs’ engagement and assistance
in the process to ensure prompt, effective, and efficient administrative enforcement. OCR will
notify the applicant or recipient of a finding of noncompliance, the action proposed to be taken,
and the opportunity for an evidentiary hearing by registered mail, return receipt requested. See 40
C.F.R. § 7.130.
Refer To DOJ Where Appropriate or Use Any Other Means
Authorized By Law
When negotiations do not result in a voluntary compliance agreement after the Letter of Impending
Enforcement Action, where appropriate, OCR will issue a letter to the recipient stating that the
case will be referred to DOJ. Alternatively, the EPA may also use any other means authorized by
law to obtain compliance. See 40 C.F.R. § 7.130. OCR will also seek the appropriate DCROs’
engagement and assistance in this process.
Enforcement for Denial of Access34
It is a denial of access when a public entity either explicitly or implicitly:





34

refuses to permit the investigator access to written or unwritten information, such as
electronic storage media, microfilm, retrieval systems, photocopies, etc., and its facilities
during its regular business hours;
refuses access to the investigator during its normal business hours; or,
fails to provide accessible information if one or more of its employees refuses to do so or to
provide access to information maintained exclusively by an employee in his/her official
capacity.

See 40 C.F.R. § 7.85(f).

34

 Where the recipient has refused to provide OCR access orally, in writing, in person, over the
telephone, or through use of other media, OCR will attempt to ascertain the exact basis for the
recipient’s refusal and explain OCR’s authority to obtain the information.. Where attempts to
persuade the recipient to provide access have failed, OCR will collaborate with the appropriate
DCRO(s) to develop a letter to the recipient that sets forth in detail the evidence (e.g., documents,
data, witnesses, and other information) to which the recipient denied OCR access and specifies the
efforts that OCR has made to obtain the evidence. If the recipient does not voluntarily provide
OCR with access to the requested evidence within 30 calendar days of OCR’s issuance of the letter
to recipient, OCR will issue a Non-Compliance Letter of Finding(s). See Section 4.7. If the
recipient continues to deny OCR access to the requested evidence, OCR will issue a letter to the
recipient stating OCR’s intention to use any other means authorized by law to achieve compliance,
including initiating administrative proceedings or referral to DOJ for judicial enforcement. OCR
will consult the appropriate DCROs to ensure prompt, effective, and efficient resolution of denial
of access enforcement actions.
Enforcement for Failure to Comply with OCR Compliance Agreement
Where the recipient has failed to comply with the terms of a voluntary compliance agreement,
OCR will issue a formal Non-Compliance Letter of Findings. If the recipient does not come into
compliance after issuance of the Letter of Findings, OCR will initiate enforcement action. OCR
will also seek the appropriate DCROs’ engagement and assistance in the process to ensure prompt,
effective, and efficient verification that a recipient failed to comply with the terms of a voluntary
compliance agreement.

35

 Interim Case Resolution Manual

CHAPTER 8

December 1, 2015

APPENDICES
Strategic Case Management Plan

Action Item

Questions/Considerations
I.

Offices Involved

Date
Completed /
Confirmed

Target
Timeframes1

CASE MANAGEMENT STEPS

Acknowledge Receipt of
Correspondence and Proceed to
Evaluation of Correspondence. (See
Section 2.1)

Refer to case management requirements in CRM.

OCR

1-5 Business
Days after
receipt

Initiate Case Management/Tracking
Procedures

Enter all appropriate case management information
into EXCATS including all required documents
(use established G Drive for certain investigative
documents if EXCATS document management
component has not been completed.)2 Follow OCR
hard copy case file management process in
accordance with Section 2.2.

OCR

1-5 Business
Days after
receipt

OCR, DCRO(s),
Region/ Program
Office

1-10 Business
Days after
receipt

Immediately Notify Appropriate
Request appropriate regional and program office
DCROs of Incoming Correspondence
points of contact.
and Evaluation of Correspondence.

1

All target timeframes in this document are aspirational. They represent goals OCR will aim to achieve in the majority of cases. However, in setting these targets
or goals, OCR recognizes that unexpected complexities and exigencies may arise and lengthen the time needed for effective case processing. It should be noted
that the goals or targets are written in light of the notice of proposed rulemaking published to be published in the Federal Register and posted informally on
OCR’s Internet Website on December 1, 2015. However, in the interim this document may still assist case managers in promptly, efficiently and effectively
taking steps to resolve complaints in the early days, although it is recognized that until the NPRM becomes final, case managers will adjust the target timeframes
to be consistent with the current regulations.
2
The External Compliance Activity Tracking System (EXCATS) is an automated case, activity and document management system which is used to track and
manage all OCR discrimination cases. DCROs will have viewer rights and can access the EXCATS in order to obtain status, monitor progress of cases, etc.

36

 Interim Case Resolution Manual

December 1, 2015
II.

Action Item
Conduct Jurisdictional Review to
Determine Whether 40 CFR § 7.120
Requirements are Met3 (See Section
2.4)

3

JURISDICTIONAL REVIEW STEPS
Questions/Considerations

Offices Involved

Is the complaint in writing?

OCR, OGC

Does the complaint allege a violation of 40 CFR
Parts 5 or 7?

OCR, OGC

Does the complaint allege a violation by a
recipient of or applicant for EPA financial
assistance?

OCR, OGC

OCR will seek input from appropriate DCROs in making a decision on whether to refer, reject, or accept a complaint. (See Chapter 2).

37

Date
Completed /
Confirmed

Target
Timeframes
1-45 Business
Days after
receipt
1-45 Business
Days after
notification of
receipt
1-45 Business
Days after
receipt

 Interim Case Resolution Manual

December 1, 2015
Was the complaint filed within 180 days of alleged
discriminatory act?
Is there evidence to support waiver of the 180-day
period for filing timely complaint on any of the
grounds listed below?4

Action Item

Questions/Considerations

OCR, OGC

Offices Involved

In general, OCR will accept, reject, or Such prudential factors include:
refer a complaint after considering the
four jurisdictional criteria as described
 The allegation is not ripe for review
in the regulation (see 40 C.F.R. §
because it is speculative in nature and
DCRO, OCR,
7.120). However, if OCR obtains
anticipates future events that may or may
OGC
certain information from DCROs, the
not unfold as outlined in the complaint, so a
complainant, the potential recipient, or
meaningful review of the allegation cannot
other credible source suggesting that
be conducted at the time OCR receives the
investigating the complaint is
complaint.

4

1-45 Business
Days after
notification of
receipt
Date
Completed /
Confirmed

Target
Timeframes

1-45 Business
Days after
receipt

The following may be grounds for waiver:
 The complainant could not reasonably be expected to know the act was discriminatory within the 180-day period, and the correspondence was filed
within 60 calendar days after the complainant became aware of the alleged discrimination (Note that lack of previous awareness of OCR or the civil
rights laws enforced by OCR is not a basis for a waiver).
 The complainant was unable to file a correspondence because of an incapacitating illness or other incapacitating circumstances during the 180-day
period, and the allegation was filed within 60 calendar days after the period of incapacitation ended.
 The complainant filed a correspondence alleging the same discriminatory act within the 180-day period with a federal, state, or local civil rights
enforcement agency, and then the complainant filed a correspondence with OCR within 60 calendar days from the date on which the other agency issued
a decision reflecting completion of its investigation. Additionally, if the complainant files a correspondence within 60 calendar days from the date of
issuance of the decision by a state or federal court about the complainant’s allegations that was not a decision on the merits or settlement of the
discrimination allegations. (Dismissal with prejudice is considered a decision on the merits.)
 The complainant filed, within the 180-day period, an internal grievance with the recipient of financial assistance, or a due process hearing, alleging the
same discriminatory conduct that is the subject of the OCR complaint, and the complaint is filed no later than 60 calendar days after the internal
grievance is concluded.

38

 Interim Case Resolution Manual
unjustified for prudential reasons,
OCR may, after verifying the
information, reject a complaint as a
result of the following prudential
factors.

December 1, 2015


(See Section 2.6)



Action Item

The allegations are moot because OCR
obtains credible information indicating that
the allegations raised by the complaint have
been resolved and there are no systemic
allegations. In such a case, OCR will
attempt to ascertain the apparent resolution.
When OCR determines that there are no
current allegations appropriate for further
resolution, the complaint will be rejected.
The same complaint allegations have been
filed, are currently pending, and/or are
already resolved with another Federal,
State, or local agency, or through a
recipient's internal grievance procedures,
including due process proceedings, and you
anticipate that the agency will provide the
complainant with a comparable resolution
process. The complainant should be
advised that she or he may re-file within 30
days of the completion of the other
agency's action.

Questions/Considerations


The same civil rights allegations have been
filed by the complainant against the same
recipient with state or federal court
individually or through a class action. A
complaint may be re-filed with OCR within
30 calendar days following termination of
the court proceeding if there has been no
decision on the merits or settlement of the
39

DCRO, OCR,
OGC

1-45 Business
Days after
receipt

DCRO, OCR,
OGC

1-45 Business
Days after
receipt

Offices Involved

DCRO, OCR,
OGC

Date
Completed /
Confirmed

Target
Timeframes

1-45 Business
Days after
receipt

 Interim Case Resolution Manual

December 1, 2015
complaint civil rights allegations.
(Dismissal with prejudice is considered a
decision on the merits.)

DECISION: REJECT (Section 2.5), AND/OR REFER (Section 2.6) COMPLAINT ALLEGATIONS IF WARRANTED –NOTIFY
REGION, AWARD OFFICIAL, AND APPROPRIATE OFFICES
III.

FOR ISSUES ACCEPTED FOR INVESTIGATION, ADDITIONAL STEPS PRIOR TO ISSUING ACCEPTANCE
LETTER

Draft Brief Desk Statement

Clearly set forth the issues OCR will investigate
and draft an appropriate public statement.

OCR, DCRO,
OPA

DECISION: ISSUE LETTER OF ACCEPTANCE (See Section 2.7)

40

1-45 Business
Days after
notification of
receipt

 Interim Case Resolution Manual

Action Item

December 1, 2015

Questions/Considerations

Issue Letter of Acceptance

Have the confidentiality requirements of 40 CFR §
7.120(e) been met generally and with respect to all
materials for public distribution (e.g. Desk
Statement)?

OCR, DCRO(s)

OCR, OGC

Target
Timeframes

1-45 Business
Days after
notification of
receipt

1-45 Business
Days after
notification of
receipt
1-45 Business
Days after
notification of
receipt
1-45 Business
Days after
notification of
receipt

PRELIMINARY EVALUATION STEPS FOR ISSUES ACCEPTED FOR INVESTIGATION

Conduct Early Case Planning (See
Section 3.2).

5

Date
Completed /
Confirmed

With respect to letters of acceptance, the letter will
notify5 the recipient and complainants of issues
accepted for investigation and give the recipient
the opportunity, per the regulations, to make a
OCR, DCROs,
written submission responding to, rebutting, or
OGC
denying the allegations accepted from the
complaint within 30 days from receipt of the
notification letter.
Include ADR information as well as information
about OCR’s willingness to consider informal
OCR, DCRO(s)
resolution at any time during the investigation in
the Acceptance Letter.
Begin to Draft Investigation Plan (IP) to outline
approach to complaint.

IV.

Offices Involved

Identify point(s) of contacts in the
Regional/Program offices.
OCR
Set regular schedule for case management team
review and update IP every 30 days.

Notice to recipient of allegations, as well as offer to submit written rebuttal, should be included in the Acceptance Letter.

41

45-90
Business Days
after receipt

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Action Item

December 1, 2015
Questions/Considerations

Offices Involved

Date
Completed /
Confirmed

Target
Timeframes

These determinations may be applicable at any
point during the investigation


Other Factors to Consider After
Opening an Investigation (See Section
3.4). If any of these factors apply,
OCR may decide to close an
allegation administratively.





The allegation is not ripe for review
because it is speculative in nature and
anticipates future events that may or may
not unfold as outlined in the complaint, so a
meaningful review of the allegation cannot
be conducted at the time OCR receives the
complaint.6
The allegations are moot because OCR
obtains credible information indicating that
the allegations raised by the complaint have
been resolved and there are no systemic
allegations. In such a case, OCR will
attempt to ascertain the apparent resolution.
When OCR determines that there are no
current allegations appropriate for further
resolution, the complaint will be closed
administratively.
The same complaint allegations have been
filed with another Federal, State, or local
agency, or through a recipient's internal
grievance procedures, including due
process proceedings, and you anticipate
that the agency will provide the
complainant with a comparable resolution

6

OCR, OGC

45-90
Business Days
after receipt

OCR, OGC

45-90
Business Days
after receipt

OCR, OGC

45-90
Business Days
after receipt

This type of allegation is considered to be rejected without prejudice. The complainant may re-file within 60 days of a subsequent act or event that raises an
allegation of discrimination.

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December 1, 2015
process. The complainant should be
advised that she or he may re-file within 30
days of the completion of the other
agency's action.




The same civil rights allegations have been
filed by the complainant against the same
recipient with state or federal court
individually or through a class action. A
complaint may be re-filed with OCR within
30 calendar days following termination of
the court proceeding if there has been no
decision on the merits or settlement of the
complaint civil rights allegations.
(Dismissal with prejudice is considered a
decision on the merits.) Where OCR has
obtained sufficient evidence to support a
finding under Section 4.6(1) (insufficient
evidence) or Section 4.6(2) (noncompliance) with regard to any civil rights
allegation(s) being investigated by OCR
which are not before the court, OCR may
not close the civil rights allegation(s), but
may proceed in accordance with the
appropriate provisions set forth in Section
4.6.
The complaint allegations are foreclosed by
legally binding decisions of state or federal
courts, adjudication decisions of the EPA,
or by Department of Justice’s or EPA’s
policy determinations regarding agency
enforcement of nondiscrimination statutes.

43

OCR, OGC

45-90
Business Days
after receipt

OCR, OGC

45-90
Business Days
after receipt

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December 1, 2015


A complaint’s allegations would be better
resolved through a compliance review (see
Chapter 5) or OCR has recently addressed
or is currently addressing the same issues
involving the same recipient in a
compliance review or an OCR complaint.

44

OCR, OGC

45-90
Business Days
after receipt

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December 1, 2015

Action Item

Questions/Considerations






The complainant withdraws the complaint
after OCR has opened it for investigation,
however where the complainant has alleged
systemic violations, OCR may determine
that it will continue the investigation
notwithstanding the complainants
withdrawal of the complaint. Moreover,
where OCR has obtained sufficient
evidence to support a finding of a violation
with regard to any allegation(s), OCR will
not close the allegation(s), but will proceed
in accordance with the appropriate
provisions set forth in Section 4.6.
OCR determines that its ability to complete
the investigation is substantially impaired
by the complainant’s loss of contact, death,
or refusal to provide information that is
reasonably accessible to the complainant
and is necessary for investigation of the
complaint. Generally, this subsection does
not apply where the investigation raises
systemic issues that warrant continuing the
investigation.7
OCR determines that another office or
agency for investigation is a more
appropriate forum for the allegations’
review.

Offices Involved

Date
Completed /
Confirmed

OCR

45-90
Business Days
after receipt

OCR

45-90
Business Days
after receipt

OCR

45-90
Business Days
after receipt

Include documentation in the case file of OCR’s efforts to contact the complainant by phone, in writing, or via electronic mail to request the necessary
information and of the complainant’s refusal to provide information.
7

45

Target
Timeframes

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December 1, 2015

Action Item

Questions/Considerations

Offices Involved

Date
Completed /
Confirmed

Target
Timeframes

If yes to both of these questions, ECR may be
appropriate.

Determine whether ECR is
appropriate. (See Section 3.5).



Are there specific/discrete issues that
involve individual remedies (i.e. not
affecting a class of persons)?
Can those individual specific/discrete
issues be addressed in full through ECR
without affecting OCR’s ability to
investigate or resolve the other issues
raised in the complaint?

OCR, DCRO(s)

45-90
Business Days
after receipt

If so, see Section 3.6
Identify any existing information outside of the
45-90
OCR, OGC,
civil rights arena that might encourage recipient
Business Days
DCRO(s)
and complainant to explore ADR
after receipt
Approach recipient and complainant to assess level
45-90
OCR, OGC,
of interest by each of the parties in engaging in
Business Days
Determine whether to offer ADR to
DCRO(s)
ADR.
after receipt
Complainant and Recipient. (See
If Recipient and Complainant express interest in
Section 3.11).
ADR, ask Alternative Dispute Resolution Law
45-90
Office (ADRLO) to discuss ADR with recipient
OCR, OGC,
Business Days
and complainant, provide additional information
ADRLO
after receipt
about the process, answer questions, etc., if
appropriate.
If Recipient and Complainant agree to engage in ADR, issue a letter to notify the parties that OCR is suspending the investigation. (See
Section 3.11). If after the offer of ADR the recipient and complainant have not agreed to engage in ADR, revoke ADR offer and
continue preliminary investigation. (OCR, OGC, DCRO(s))

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Action Item

December 1, 2015

Questions/Considerations

If additional information is needed from a
recipient, or complainant, OCR will prepare and
issue a Request(s) for Information (RFI). The RFI
Determine whether any information will include, at a minimum, (1) a clear description
from either the recipient/complainant of the additional information being requested of
is needed to continue (See Section 4.3). the recipient(s) or complainant(s) in light of the
issues under investigation, and (2) specific
timeframes for recipient’s/complainant’s response
to the RFI.
Consider engaging complainants for input
regarding potential issues to address in Informal
Resolution. See Section 3.13
Contact point of contact(s) in the
Regional/Program office to discuss available
information and voluntary agreement terms that
could contribute to informal resolution
Consider whether to attempt Informal
Resolution between Recipient and the Draft Informal Resolution Agreement. See Section
3.12.
EPA (See Section 3.12)
Contact Recipient to discuss Informal Resolution
and if appropriate, share draft Informal Resolution
Agreement.
If the recipient agrees to enter into an Informal
Agreement, draft an appropriate resolution letter.
See, Section 3.14.

47

Offices Involved

Date
Completed /
Confirmed

Target
Timeframes

OCR, OGC,
DCROs

45-90
Business Days
after receipt

OCR, OGC,
DCROs

45-90
Business Days
after receipt

OCR

45-90
Business Days
after receipt

OCR, OGC,
DCROs
OCR, OGC,
DCROs
OCR, OGC,
DCROs

45-90
Business Days
after receipt
45-90
Business Days
after receipt
45-90
Business Days
after receipt

 Interim Case Resolution Manual

Action Item

December 1, 2015

Questions/Considerations
Notify Complainants informally prior to issuing
Resolution Letter.

Offices Involved
OCR, OGC,
DCROs

Date
Completed /
Confirmed

Target
Timeframes
45-90
Business Days
after receipt

Issue Resolution Letter with signed, attached
Resolution Agreement and close the investigation
in light of the agreement. See, Section 3.16.
90 BUSINESS DAYS AFTER RECEIPT –
COMPLETE JURISDICTIONAL REVIEW, PRELIMINARY RESOLUTION ATTEMPTS and PRELIMINARY INVESTIGATION
See Chapter 2 & Chapter 3
CONTINUE INVESTIGATION OF ISSUES ACCEPTED FOR INVESTIGATION IN LIGHT OF EPA ORDERS 4700 AND 4701.
See Chapter 1.
As necessary, identify and convene a panel of
DCROs and any relevant senior officials to inform
Identify and Convene, as appropriate,
of OCR’s investigation plan and proposed action;
DCROs to investigate unresolved issues
OCR, DCROs
to provide background information; and keep panel
accepted for investigation.
apprised in the event the panel will be asked to
participate in full investigation at later date.
In consultation with DCROs/the panel, consider
Consider whether there are any necessary whether additional technical Expert resources and
OCR, DCROs
point(s) of contacts for expert review
support, including staff for data analysis from EPA
regional and/or program offices.
Update and circulate the IP every 30 days for
Continue to circulate the Investigation
DCRO input (IP updates should be at a minimum
OCR
Plan (IP)
of every 30 days). See Section 4.2
Determine whether any additional
information from either the
recipient/complainant is needed to
continue

In consultation with DCROs, if additional
information is needed from recipients and/or
complainant, consider additional request for
information letter. See Section 4.3
48

OCR, OGC,
DCROs

Post 90
Business Days
after receipt

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Action Item

Identify additional materials, information,
data, or other sources to gather

December 1, 2015

Questions/Considerations

Offices Involved

If there is reasonable basis, schedule and conduct
on-site visit if needed.

OCR, DCRO,
OGC

Schedule and conduct interviews of witnesses,
experts, and others if needed.

OCR, DCRO,
OGC

Date
Completed /
Confirmed

Target
Timeframes

AT ANY TIME DURING THE INVESTIGATION OCR SHALL SEEK INFORMAL RESOLUTION.
WHERE INFORMAL RESOLUTION IS NOT VIABLE, CONTINUE THROUGH POST-ACCEPTANCE ACTIONS
See CHAPTER 4, 0, AND WHERE APPROPRIATE, CHAPTER 7.

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EPA Orders 4700 (DCRO) And 4701 (Title VI Case Management
Protocol)

EPA Order 4700,
DCROs

EPA Order 4701
Title VI Case Management Protocol

(1) EPA Order 4700 (Deputy Civil Rights Officials)

Identification Number:4700
Approval Date:
05/01/2013

Deputy Civil Rights Officials
I.

Purpose
This order establishes the position of deputy civil rights official within each regional office
and assistant administrator’s office to serve as that office’s primary point of accountability
for assisting the Office of Civil Rights with effectively meeting the U. S. Environmental
Protection Agency’s civil rights responsibilities and goals. DCROs will, consistent with
applicable laws, provide executive support in furthering the EPA’s commitment to creating
a workplace free of unlawful discrimination and implementing measures to prevent or
remedy discrimination by recipients of agency financial assistance. This order establishes
the procedures for designating DCROs and outlines the role of DCROs. No statement in
this order relieves other agency officials, including career and appointed officials, line
managers and other staff, of their responsibilities with respect to civil rights.

II.

Authority
The authority to establish the position of the DCRO derives from the Administrator’s
authority to organize the work of the agency under 40 C.F.R. §§1.5(a), 1.23, Section 3 of
Reorganization Plan No. 3, and Order 1110.2. The Administrator specifically authorized
the establishment of DCROs in a decision memorandum produced by the EPA Executive
Committee on Civil Rights and signed by the Administrator on April 13, 2012.

III.

Background
In March 2011, Administrator Lisa P. Jackson appointed the Civil Rights Executive
Committee, chaired by Deputy Administrator Bob Perciasepe, to recommend actions
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December 1, 2015

necessary for building a model civil rights program at the agency. After extensive review of
the program, the Civil Rights Executive Committee submitted a final report, Developing a
Model Civil Rights Program for the Environmental Protection Agency, to the
Administrator outlining the agency’s commitment to strengthening civil rights, equal
employment opportunities, diversity in the workplace and revitalizing the agency’s
implementation of external civil rights laws. The Administrator approved the report and
recommendations on April 13, 2012. The Executive Committee highlighted the importance
of engaging management from across the agency to successfully implement a model civil
rights program, recognizing that the agency’s civil rights program cannot solely be the
responsibility of one office or program, but instead must reflect “One EPA” principles. To
that end, the Executive Committee identified two recommendations for which formal
orders were appropriate: to establish DCROs and to establish a Title VI Case Management
Protocol. The Title VI Case Management Protocol is the subject of Order 4701.
The establishment of DCROs through this order advances the agency towards a model civil
rights program wherein senior managers across the agency have an explicit role in, and
share responsibility for, implementation of the agency’s civil rights program and policies.
This order does not, however, delegate any authorities that are formally delegated or
assigned to the director of the Office of Civil Rights. The director serves as the principal
advisor to the Administrator with respect to the agencywide equal employment opportunity
program, affirmative employment programs, and external nondiscrimination program. As
such, the director is tasked with providing sound and timely policy advice to the
Administrator and other senior management officials on a wide range of issues including
but not limited to Titles VI and VII of the Civil Rights Act of 1964, as amended; Title IX
of the Education Act Amendments of 1973; Sections 501-504 of the Rehabilitation Act of
1973, as amended; Executive Order 11478; and a number of U.S. Equal Employment
Opportunity Commission management directives. Nothing contained in this order changes
or supersedes the director’s authorities.
IV.

Mission
DCROs in each program office and region will be accountable for implementing civil
rights programs within their respective organizations, and will provide senior level
involvement in the development of national strategies and policies pertaining to civil rights.
As part of their ongoing responsibilities, DCROs will assure the participation of their
organization in agency civil rights programs and initiatives including implementation of the
Title VI Case Management Protocol established under Order 4701.

V.

Meeting Requirements and Calendar
The OCR director may call meetings of the DCROs as appropriate, to be determined in
consultation with DCROs. DCRO meetings should be held in conjunction with other senior
management meetings, such as executive management council meetings. A subset of
DCROs or their designees may be called upon by the director to participate in meetings
called pursuant to order 4701. Based on their role in ensuring senior leadership
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accountability in civil rights, DCROs also may be called upon to participate in other agency
meetings involving issues or initiatives related to civil rights.
VI.

Appointment
Within 30 calendar days of the issuance of this order each assistant administrator and
regional administrator, the General Counsel, the chief financial officer and the chief of staff
shall notify the OCR director of the selection of a DCRO for his/her respective
organization. Within 60 calendar days of the issuance of this order, the AA or RA shall by
memorandum to the director confirm the appointment of a DCRO for their organization,
and shall confirm that the role of the DCRO as outlined in section IX of this order has been
incorporated into the incumbent’s position description. The role of the DCRO shall remain
in the position description permanently; however, the AA/RA may, in consultation with the
director, change the designation to another official within the organization and make
necessary adjustments to position descriptions. Model language for DCRO performance
agreements will be developed by the OCR director and brought before the agency’s
Executive Resources Board by the fourth quarter of FY 2013. The DCRO must have broad
management authority to carry out civil rights programs and activities consistent with
agency policy and directives within their organization, and must be a member of the career
senior executive service.

VII.

Alternate Deputy Civil Rights Official
When necessary, an alternate DCRO, who also must be a member of the career SES, may
be appointed by the AA or RA to perform the DCRO role when, for example, the DCRO is
recused from a matter or absent. If an ADCRO performs DCRO duties for an on-going or
extended period of time, the official’s position description should be amended to include
the DCRO role as outlined in Section IX.

VIII. Persons Acting in a DCRO Position
Whenever a person is acting in a position that is designated as a DCRO whether by
position, re-delegation or appointment, that person assumes the DCRO role. The DCRO
designation resides in the position and therefore the role of DCRO is assumed by the
incumbent of that position, even on an acting basis.
IX.

Role of the Deputy Civil Rights Officials
DCROs have broad oversight authority within their respective office or region for
implementation of the civil rights program consistent with agency policy and directives,
recognizing that offices or regions may need different staffing profiles for some functions.
For example, Equal Employment Opportunity counselors are needed in every region, but at
headquarters EEO counselors report to OCR rather than individual program offices.
DCROs will identify and/or request adequate funding and resources for civil rights work
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and ensure their organizations have well-functioning policies, processes and management
controls for:
1. Assuring that appropriate staff and expertise are available for their organizations to
carry out an effective civil rights program including EEO counselors, alternate dispute
resolution staff, special emphasis program managers and EEO officers.
2. Developing and implementing the Equal Employment Opportunity Commission’s
Management Directive 715 Action Plans for their offices and regions that promote
equal employment opportunity in a manner consistent with the agency’s MD 715
Report, promote diversity and inclusion, and address other issues as required. Ensuring
that the goals and objectives are communicated to subordinate management officials.
3. Timely reporting of information for various civil rights and diversity related reports and
data-calls including the Equal Employment Opportunity Commission’s Management
Directive 715.
4. Training civil rights staff consistent with EEOC or OCR policy, and meeting
agencywide mandatory requirements for training managers and employees within their
office or region e.g. Civil Rights EEO Training and the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002.
5. Promoting equal employment opportunity and assuring their organization carries out
other responsibilities under the agency’s civil rights program.
6. Incorporating appropriate EEO and civil rights language into performance agreements
as required for managers and as necessary for certain other positions.
7. Facilitating informal EEO complaint resolution in conformance with Delegation 1-39,
assuring the broad integration of well-functioning alternate dispute resolution
approaches across the agency civil rights and employee relations activities and
promoting the use of pre-complaint processes as a means of resolving EEO matters.
8. Effectively participating in and or leading activities including investigations for the
purposes of implementing Order 4701, Title VI Case Management Protocol.
9. Effectively participating in the agency’s implementation of external civil rights policies
for financial assistance monitoring, compliance, grant reviews and other external civil
rights laws activities consistent with the Order 4701.
X.

Coordination of EPA Civil Rights and Diversity Policies and Strategies

DCROs will constitute a network of senior officials to provide advice and guidance to the director
and other agency senior managers on the development of agencywide civil rights policies and
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strategies. In addition, while DCROs have formal responsibilities associated with the agency’s
civil rights programs, the network also may provide informal advice and guidance to the agency’s
diversity and inclusion activities/initiatives. OCR and the Office of Diversity, Outreach, and
Collaboration, are expected to work in close cooperation to advance their respective missions, and
to assure efficient use of resources.
XI.

References
1. Developing a Model Civil Rights Program for the Environmental Protection Agency
2. Administrator’s Approval of Final Report Memorandum
3. Deputy Administrator’s Implementation Memorandum

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(2) EPA Order 4701 (Title VI Case Management Protocol)

Identification Number:
Approval Date:

4701
05/01/2013

Title VI Case Management Protocol
I.

Purpose
This order formally establishes the Title VI Case Management Protocol for processing,
investigating and resolving complaints under Title VI of the Civil Rights Act of 1964 and
other nondiscrimination statutes applicable to recipients of the U. S. Environmental
Protection Agency assistance42. The EPA expects this protocol will improve the agency’s
ability to review and act on Title VI complaints in a timely way. The Title VI Protocol will
bring offices and regions throughout the agency into a consensus-oriented process for
coordinating and committing analytical resources, expertise and technical support needed
to investigate and reach decisions on Title VI complaints. The Title VI Protocol creates a
system to assure clear accountability among agency program offices and regions for
conducting investigations and, producing analyses, and it establishes a framework for
sustaining high-level attention necessary for timely decision-making. The Office of Civil
Rights is expected to establish procedures to improve implementation of this protocol in
consultation with Deputy Civil Rights Officials and offices and regions.

II.

Authority
The authority to establish the Title VI Protocol derives from the Administrator’s authority
to organize the work of the agency under 40 C.F.R. §§ 1.5(a), 1.23, and 7.25, Section 3 of
Reorganization Plan No. 3 and EPA Order 1110.2. The Administrator authorized the
establishment of the Title VI Protocol in a decision memorandum produced by the agency’s
Civil Rights Executive Committee and signed by the Administrator on April 13, 2012.

While this Order refers to “Title VI,” it includes all recipient nondiscrimination requirements found in 40 C.F.R.
Parts 5 and 7.
42

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 Interim Case Resolution Manual
III.

December 1, 2015

Background
In March 2011, Administrator Lisa P. Jackson appointed the Civil Rights Executive
Committee, chaired by Deputy Administrator Bob Perciasepe, to recommend actions
necessary for building a model civil rights program at the agency. After extensive review of
the program, the Civil Rights Executive Committee submitted the final report, Developing
a Model Civil Rights Program for the Environmental Protection Agency, to the
Administrator outlining the agency’s commitment to strengthening civil rights, equal
employment opportunities, diversity in the workplace and revitalizing the agency’s
implementation of Title VI. The Administrator approved the report and recommendations
on April 13, 2012. The Executive Committee highlighted the importance of engaging
management from across the agency to successfully implement a model civil rights
program, recognizing that the agency’s civil rights program cannot solely be the
responsibility of one office or program, but instead must reflect “One EPA” principles. To
that end, the Executive Committee identified two recommendations for which formal
orders were appropriate: to establish the Title VI Protocol and to establish Deputy Civil
Rights Officials. The establishment of DCROs is the subject of Order 4700.
The establishment of the Title VI Protocol order advances the agency towards a model civil
rights program wherein senior managers across the agency have an explicit role in, and
share responsibility for implementation of the agency’s civil rights program and policies.
This order does not however, delegate any authorities that are formally delegated or
assigned to the OCR director. The OCR director serves as the principal advisor to the
Administrator with respect to the agency wide equal employment opportunity programs
and affirmative employment programs and external nondiscrimination program. As such,
the director is tasked with providing sound and timely policy advice to the Administrator
and other senior management officials on a wide range of issues including but not limited
to Titles VI and VII of the Civil Rights Act of 1964, as amended; Title IX of the Education
Act Amendments of 1973; Sections 501504 of the Rehabilitation Act of 1973, as amended;
Executive Order 11478; and a number of U.S. Equal Employment Opportunity
Commission Management Directives. Nothing contained in this order changes or
supersedes the director’s authorities.

IV.

Title VI Network
The OCR director will coordinate a network of technical, legal, and policy experts and
practitioners from appropriate offices and regions throughout the agency that can serve to
answer questions, provide advice and review draft policies and decisions for Title VI
issues. The network will meet as appropriate, as determined by the director.

V.

Title VI Case Management Protocol
The OCR director will oversee and manage the Title VI Protocol to bring together the
necessary parties to investigate, adjudicate or resolve Title VI complaints. All agency
participants engaged in the Title VI Protocol will strive for consensus, seek agreement on
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draft decisions and consult with the case management team on recommended final actions.
The director will develop standard operating procedures in consultation with offices and
regions that include recommended timeframes, goals, milestones and informal resolution
processes for the elements listed below. Additionally, OCR will develop as needed
appropriate guidance, templates and training to facilitate the effective, and efficient
implementation of the provisions of this order. The Title VI Protocol consists of the
following elements, at a minimum:
1. OCR will process complaints that are filed with or referred to the agency including:
entering the complaint into OCR’s Title VI tracking system; creating all necessary
official files; preparing and sending appropriate external notification letters pursuant to
40 C.F.R. § 7.120(c) and providing copies of the complaint to the appropriate offices
and regions.
2. For filed or referred complaints, OCR will conduct jurisdictional reviews pursuant to 40
C.F.R. § 7.120 after soliciting input and views from other agency offices and regions
on whether to refer, reject, or accept a complaint. If OCR does not accept the
complaint, the remaining elements of this protocol do not apply.
3. If OCR accepts the complaint, OCR will lead the development of a Preliminary Case
Management Plan in partnership with offices and regions. This plan will propose
specific responsibilities for appropriate agency offices and regions, as well as specific
time frames for completion of tasks. The Preliminary Case Management Plan will be
reviewed by a panel convened as specified at element 4 below.
4. The OCR director will designate a panel to review the Preliminary Case Management
Plan and, to the extent possible, reach agreement on organizational roles in case
management, investigation, and proposed action. The panel typically will include
DCROs or, on a case-by-case basis, other senior officials from organizations with
relevant expertise for a particular case or specialized legal, policy or technical expertise
in Title VI. In considering the roles of offices and regions in the investigation and
decision-making process, the panel will take into account existing expertise and
experience, as well as any previous involvement in the case that may adversely affect
an appearance of neutrality.
5. Informed by the panel discussion, the OCR director will identify a lead office or region
for case management and investigation. The director can assume the lead role in case
management and investigation when necessary, for example, to assure the neutrality of
an investigation. OCR will remain actively engaged in case management, investigation,
and decision-making whether or not the lead office.
6. The lead office or region and OCR will finalize the Case Management Plan and obtain
final concurrence from other offices or regions represented on the panel.

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7. If at any point the panel cannot reach consensus on roles and responsibilities, or on a
final Case Management Plan and the milestones included therein, the OCR director will
propose resolution of disputed issues. The OCR director will then notify all members of
the panel of the proposed resolution and shall provide an opportunity for any member
of the panel to request a meeting with the Deputy Administrator to address disputed
issues. All members of the panel must be provided an opportunity to attend a meeting
with the Deputy Administrator scheduled for the purposes of addressing disputed issues
in accordance with this paragraph. The director’s proposed resolution becomes final if
the Deputy Administrator declines to consider the disputed issues, or declines to direct
changes to the director’s proposed resolution.
8. As specified in the final Case Management Plan, case teams are led by the office or
region, or by OCR, with established governing rules and formal work role definitions.
Prior to the start of any investigation, team members will receive briefings on decision
criteria, current legal, and policy matters in the Title VI context from OCR and other
experts. The briefings will include up-to-date information on decision criteria,
guidance, policies, rules and relevant legal and policy precedents.
9. The lead office or region in consultation with OCR (and vice versa, if OCR leads the
case management team) will lead the investigation and informal resolution efforts,
including consulting with an agency dispute resolution specialist in the use of
alternative dispute resolution, and complete the investigation(s). The OCR director
must approve any informal resolution before it becomes final.
10. The lead office or region in consultation with an EPA dispute resolution specialist will
support the use of alternative dispute resolution by complaints and recipients to address
issues raised in the complaint.
11. An office or region, when selected to lead the case team, will in writing recommend to
OCR final action on a case. OCR, when selected to lead the case team, will in writing
provide to offices/regions an opportunity to review and comment on proposed final
action on a case.
12. The OCR director is authorized to issue final agency decisions on Title VI cases, but
may allow another official to represent the agency on decisions or agreements other
than a decision to dismiss a complaint.
VI.

References
1. Developing a Model Civil Rights Program for the U.S. Environmental Protection
Agency
2. Administrator’s Approval of Final Report Memorandum
3. Deputy Administrator’s Implementation Memorandum

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