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If you don't know what these terms mean try the glossary.
2.1(6) Except as provided in paragraph "b" the term "issuance" shall mean mailing by U.S. certified mail, a document or letter indicating a decision or other administrative action of the commission. The date of issuance of a decision or other administrative action of the commission shall be the date the commission mails by U.S. certified mail a document or letter indicating the decision or action.
a. Except as provided in paragraph "b" the verb "issue" shall mean to mail by certified mail a document or letter indicating a decision or other administrative action of the commission. The date an action or decision is "issued" shall be the date the commission mails by U.S. certified mail a document or letter indicating the decision or action.
b. When used to refer to a decision to administratively close a case the term "issuance" and the verb "issue" can mean either the mailing of the document indicating administrative closure by regular mail or the mailing of that document by certified mail. The date an administrative closure is issued is the date the administrative closure is mailed to the complainant. Where mailing is by regular mail the date of mailing is presumed to be the date on the cover letter accompanying the administrative closure unless this date is shown to be in error.
When used to refer to a subpoena the term "issuance" and the verb "issue" shall each mean the signing of the subpoena by the issuing authority. The date a subpoena becomes effective is the date service is completed.
2.1(9) The term "verified" shall mean (a) sworn to or affirmed before a notary public, or other person duly authorized by law to administer oaths and take acknowledgments, or (b) supported by an unsworn declaration which recites that the person certifies the matter to be true under penalty of perjury, states the date of the statement's execution and is subscribed by the person. Such an unsworn declaration may be in substantially the following form: "I certify under penalty of perjury and pursuant to the laws of the state of Iowa that the preceding is true and correct. Executed on (date). (Signature).
2.1(10) Final actions. The following procedures shall constitute final actions of the commission:
a. The term "administratively closed" shall mean that, in the opinion of the investigating official, no useful purpose would be served by further action by the commission respecting a complaint, such as where the commission staff has not been successful in locating a complainant after diligent efforts, where the respondent has gone out of business, where a right to sue letter has been issued, or where, after a probable cause decision has been made, it is determined that the record does not justify proceeding to public hearing.
b. The term "no jurisdiction" shall mean that the alleged discriminatory act or practice is not one that is prohibited by the Act or where the complaint does not conform to the requirements of the Act.
c. The term "no probable cause finding" shall mean the procedure by which a complainant and respondent are notified that the investigating official has found that there is no probable cause to believe that discrimination exists after reviewing an investigation of a complaint.
d. The term "satisfactorily adjusted" shall mean that the complainant has indicated in writing that the complaint has been resolved to the satisfaction of the complainant, and that no further action is desired from the commission. Whenever the offer of adjustment by a respondent is acceptable to the investigating official, but not to the complainant, the commission may close the case as satisfactorily adjusted. In a case which has been determined by the commission as having probable cause, the respondent's signature must be obtained before the case can be considered to be satisfactorily adjusted.
e. The term "successfully conciliated" shall mean that a written agreement has been executed on behalf of the respondent, on behalf of the complainant, and on behalf of the commission,the contents of which are designed to remedy that alleged discriminatory act or practice and any other unlawful discrimination which may have been uncovered during the course of the investigation.
f. The term "withdrawn" shall mean that a complainant has indicated in writing the desire that no further action be taken by the commission regarding the complaint.
161 3.2(216) Access to file information. The disclosure of information whether a charge has been filed or not, or revealing the contents of any file is prohibited except in the following circumstances:
3.2(1) If a final decision per subrule 2.1(10) has been reached, a party or a party's attorney may, upon showing that a petition appealing the commission action has been filed, have access to the commission's case file on that complaint.
3.2(2) If a case has been approved for public hearing and the letter informing parties of this fact has been mailed, any party or party's attorney may have access to file information through prehearing discovery measures provided in subrule 4.2(2).
3.2(3) If a decision rendered by the commission in a contested case has been appealed, any party or party's attorney may, upon showing that the decision has been appealed, have access to the commission's case file on that complaint.
The fact that copies of documents related to or gathered during an investigation of a complaint are introduced as evidence during the course of a contested case proceeding does not affect the confidential status of all other documents within the file which are not introduced as evidence.
3.2(4) If the commission has issued a right-to-sue letter per subrule 3.9(3), a party or party's attorney may have access to the commission's case file on that complaint.
3.2(5) Only upon written notification from an attorney or a party that the attorney represents may the attorney then obtain access to the commission case file on the same terms as that party.
161 3.3(216) Timely filing of the complaint.
3.3(1) Limitation. The complaint shall be filed within the 180 days after the occurrence of an alleged unlawful practice or act.
3.3(2) Continuing violation. If the alleged unlawful discriminatory practice or act is of a continuing nature, the date of the occurrence of the alleged unlawful practice shall be deemed to be any date subsequent to the commencement of the alleged unlawful practice up to and including the date upon which the unlawful practice has ceased.
3.3(3) Tolling of filing period. By law the filing period described in subrule 3.3(1) and in Iowa Code subsection 216.15(12) is subject to waiver, estoppel and equitable tolling. Whether the filing period shall be equitably tolled in favor of a complainant depends upon the facts and circumstances of the particular case. Equitable tolling suspends the running of the filing period during the period of time in which the grounds for equitable tolling exist.
161 3.4(216) Complaints.
3.4(1) Filing complaint. Any person claiming to be aggrieved by a discriminatory or unfair practice may, personally or by an attorney, make, sign, and file with the commission a verified, written complaint. The attorney general, the commission, or a commissioner may initiate the complaint process by filing a complaint with the commission in the same manner as an aggrieved person.
3.4(2) Contents of complaint. Each complaint of discrimination should contain the following:
a. The full name, address and telephone number, if any, of the person making the charge;
b. The full name and address of each respondent;
c. A clear and concise statement of the facts, including pertinent dates, if known, constituting each alleged unfair or discriminatory practice;
d. If known and if employment discrimination is alleged, the approximate number of em-ployees of a respondent employer.
3.4(3) Technical defects in complaint. Notwithstanding the provisions of subrule 3.4(2), a complaint is sufficient when the commission receives from the person making the complaint a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. A complaint may be amended to cure technical defects or omissions, including failure to verify the complaint. Such amendments will relate back to the date the complaint was filed.
161-3.5(216) Filing of documents with the Iowa civil rights commission. Any document,including a complaint of discrimination, may be "filed" with the commission by any one of the following methods:
3.5(1) In person. By delivery in person to the offices of the commission at the location set forth in 161-paragraph l.l(l) "b'' during the office hours set forth in said paragraph "b."
3.5(2) By mail. By depositing the document in the United States mail, postage prepaid, in an envelope addressed to the Iowa Civil Rights Commission at the address set forth in161-paragraph 1.1(l)"b." In the case of state agencies or other persons served by the state local (interoffice) mail, it is sufficient to deposit the document in Iowa state local (interoffice) mail in an envelope designated "Local" and addressed to the "Iowa Civil Rights Commission."
3.5(3) By facsimile transmission (FAX). By transmitting via facsimile transmission a copy of the document to the FAX number set forth in 161-paragraph 1.1(l)"b."
A document filed by FAX is presumed to be an accurate reproduction of the original. If a document filed by FAX is illegible, a legible copy may be substituted and the date of filing shall be the date the illegible copy was received.
3.5(4) By courier service. By delivering the document to an established courier service for immediate delivery to the Iowa civil rights commission at the address set forth in 161 paragraph1.1(1) ''b."
3.5(5) Suggested procedures for facsimile transmissions (FAX). In order to avoid an in-complete or illegible FAX, it is suggested that those desiring to "file" a document via that method follow these procedures:
a. Precede each transmission with a cover sheet setting forth the name of the sender, the specific individual (if any) to whom the transmission is directed, the date of the transmission, and the number of pages including the cover sheet to be transmitted.
b. On the same day as the transmission, speak by telephone to a member of the staff of the commission and confirm that the transmission was received and all pages were legible.
c. After the transmission, mail to the commission the original "hard copy" of the document along with the cover sheet which preceded transmission (or a copy of the transmission report).
d. After the transmission, mail to the commission a letter setting forth the date and time of the transmission and, if applicable, the specific individual to whom the sender spoke in order to confirm that the transmission was received and all pages were legible.
3.5(6) Charge for facsimile transmissions in excess of five pages. For facsimile transmissions in excess of five pages, the commission will bill the sender a reasonable fee per page for each page in excess of five pages.
3.5(7) Date a document is deemed to be "filed" with the commission. The date on which any document is deemed to be "filed" with the commission is determined according to the following:
a. Filing in person. If the document, including a complaint of discrimination, is filed in person as set forth in subrule 3.5(1), then the date of the filing is the date that the document is delivered to the commission offices and date-stamped received.
b. Filing by mail. If the document, except for a complaint of discrimination, is filed by mail as set forth in subrule 3.5(2), then the date of the filing is date of mailing.
c. Filing by facsimile transmission. If the document, including a complaint of discrimination, is filed by facsimile transmission as set forth in subrule 3.5(3), the date of the filing is the date the document is received by the commission as shown on the face of the facsimile. Provided, however, that if a transmission is received outside the office hours set forth in 161 paragraph 1.1(l)"b, " the date of filing is the next day that the commission offices are open for business. Transmissions received prior to office hours on a regular business day of the commission are filed on that day.
d. Filing by courier service. If the document, except for a complaint of discrimination, is filed by courier service as set forth in subrule 3.5(4), then the date of the filing is the date the document is delivered to the established courier service for immediate delivery to the Iowa civil rights commission at the address set forth in 161 paragraph 1.1(l)"b."
e. Presence of commission receipt stamp. Except where the date of the receipt stamp is demonstrated to be in error, the date of filing of a document, including a complaint of dis-crimination, shall in no event be deemed to be later than the date shown by the dated commission receipt stamp on the document.
3.5(8) Proof of mailing. Adequate proof of the date of mailing includes the following:
a. A legible United States Postal Service postmark on the envelope in which the document was enclosed.
b. A legible postage meter mark on the envelope in which the document was enclosed.
c. The date disclosed on a certificate of service.
d. The date disclosed on a notarized affidavit of mailing.
e. The date disclosed on a certification in substantially the following form: "The undersigned certifies under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing) I mailed copies of (describe document) addressed to the Iowa Civil Rights Commission, 211 E. Maple, 2nd Floor, Des Moines, Iowa 50319, and to the names and addresses of the persons listed below by depositing a copy thereof (in a United States post office mailbox with correct postage properly affixed) or (state interoffice mail) (Date) (Signature).
3.5(9) Conflict among proofs of mailing. The date of mailing is the date shown by the postmark and only in the absence of a legible postmark the date of mailing is the date shown by the postage meter mark and only in the absence of both a legible postmark and a legible postage meter mark the date of mailing is the date shown by the affidavit, certificate, or cer-tification of mailing.
3.5(10) Filing of complaint.
a. A complaint of discrimination is filed by any of the methods listed in this rule.
b. The date a complaint of discrimination is filed with the commission is the date the com-plaint is received by the commission. Provided, however, that if the complaint is filed by FAX which is received outside the office hours set forth in 161-paragraph 1.1(l)"b, " the date of filing is the next day that the commission offices are open for business. Transmissions received prior to office hours on a regular business day of the commission are filed on that day.
c. Except where the date of the receipt stamp is demonstrated to be in error, the date of filing of a complaint of discrimination shall in no event be deemed to be later than the date shown by the dated commission receipt stamp on the complaint.
161 3.6(216) Notice of the complaint. After jurisdictional review and within 20 days of receipt of the complaint, the executive director or designee shall serve respondent with a copy of the complaint by certified mail. A letter of acknowledgment shall advise the complainant of the right to withdraw the complaint and sue in the district court according to Iowa Code section 216.16.
161 3.7(216) Preservation of records.
3.7(1) Employment records. When a complaint or notice of investigation has been served on an employer, labor organization or employment agency under the Act, the respondent shall preserve all records relevant to the investigation until the complaint or investigation is finally adjudicated. The term "relevant to the investigation" shall include, but not be limited to, personnel, employment or membership records relating to the complainant and to all other employees, applicants or members holding or seeking positions similar to that held or sought by the complainant, and application forms or test papers completed by any unsuccessful applicant and by all other applicants or candidates for the same position or membership as that for which the complainant applied and was not accepted, and any records which are relevant to the scope of the investigation as defined in the notice or complaint.
3.7(2) Other records. Any books, papers, documents, or records of any form which are relevant to the scope of any investigation as defined in the notice or complaint shall be preserved during the pendency of any proceedings by all parties to the proceedings unless the commission specifically orders otherwise.
3.7(3) Adverse inference. If after a public hearing the administrative law judge determines:
a. That a party or agent, employee, or person acting for the party has destroyed evidence in violation of subrule 3.7(l) or 3.7(2), and
b. That the destruction was done at a time when the party knew or should have known that the evidence destroyed was relevant to the investigation, and
c. There is no satisfactory explanation for the destruction of the evidence, then the adminis-trative law judge may infer that the destroyed evidence was adverse to the party who destroyed the evidence or whose agent or employee destroyed the evidence or on behalf of whom any other person was acting when destroying the evidence.
161 3.8(216) The complaint.
3.8(1) Amendment of complaint.
a. A complaint or any part may be amended by the complainant or by the commission any time prior to the hearing thereon and, thereafter, at the discretion of the administrative law judge. The complaint may be amended to include additional material allegations the investigation may have disclosed.
To prevent unnecessary litigation or duplication, the commission may amend a complaint based upon information gained during the course of the investigation. The scope of the issues at public hearing shall include the facts as uncovered in the investigation and shall not be limited to the allegations as stated in the original complaint. Provided, however, that when an amendment is made, the respondent may be granted a continuance within the discretion of the administrative law judge if it is needed to allow the respondent to prepare to defend on the additional grounds.
b. Amendments alleging additional acts which constitute unfair or discriminatory practices related to or growing out of the subject matter of the original complaint will relate back to the date the original complaint was filed. If a reasonable investigation of the initial complaint would encompass an alleged unfair or discriminatory practice then that alleged unfair or dis-criminatory practice grows out of the subject matter of the original complaint.
c. Amendments alleging additional acts which constitute unfair or discriminatory practices which are not related to and which do not grow out of the subject matter of the original complaint will be permitted only where at the date of the amendment the allegation could have been filed as a separate complaint. The complaint as so amended shall then be processed by the commission as a single complaint of discrimination.
3.8(2) Amendments adding those allegedly liable as successors and relation back. Whenever the commission or complainant learns subsequent to the filing of the original complaint that an entity may be liable as a successor to the respondent named in the original complaint, the complainant or the commission may at any time amend the complaint to add the alleged successor as a respondent. Provided, however, that when such an amendment is made after issuance of the notice of hearing the alleged successor added by the amendment may be granted a continuance within the discretion of the administrative law judge, if it is needed to allow the alleged successor to prepare its defense. An amendment adding an alleged successor always relates back to the date of the filing of the original complaint.
161 3.10(216) Right to sue.
3.10(1) Request for right to sue. After the expiration of 60 days from the timely filing of a complaint with the commission, the complainant may request a letter granting the complainant the right to sue for relief in the state district court.
3.10(2) Conditions precedent to right to sue. Upon a request under subrule 3.10(1), the commission shall mail to the complainant a right-to-sue letter where the following conditions have been met.
a. The complaint was filed with the commission as provided in rule 3.5(216);
b. The complaint has been on file with the commission for at least 60 days.
3.10(3) Letter of right to sue. Where the above conditions have been met, a right-to-sue letter will be mailed stating that complainant has a right to commence an action in the state district court within 90 days of the date of mailing of the right-to-sue letter.
3.10(4) Exceptions to issuance of right to sue. Notwithstanding the provisions of any other rule a right-to-sue letter shall not be sent if on the date the request for a right to sue was filed any of the following is true:
a. A finding of "no probable cause" has been made on the complaint by the administrative law judge charged with that duty under Iowa Code subsection 216.15(3); or
b. A conciliation agreement has been executed under Iowa Code section 216.15; or
c. The commission has served notice of hearing upon the respondent pursuant to Iowa Code subsection 216.15(5); or
d. The complaint has been administratively closed and two years have elapsed since the is-suance date of the administrative closure; or
e. A finding that the complaint was not timely filed has been made by the commission pur-suant to rule 3.9(216) or by the administrative law judge charged with the duty of determining "probable cause" under Iowa Code subsection 216.15(3); or
f. A finding that the commission does not have jurisdiction of the complaint has been made pursuant to rule 3.9(216) or by the administrative law judge charged with the duty of determining "probable cause" under Iowa Code subsection 216.15(3).
3.10(5) Closure by commission. Where the commission has sent a right-to-sue letter, a commission staff member shall close the case by an administrative closure. Notice of the closure shall be mailed to both parties by certified mail.
161 3.12(216) Administrative review and closure.
3.12(1) Preliminary screening.
a. Questionnaire. As soon as practicable after receipt of a complaint, the commission may draft and mail to the parties written questionnaires. Complainant and respondent will receive different sets of questions as they typically have different items of information and different interpretations of the facts. The questionnaire will be as specific as practicable to the particular complaint.
b. Responses to the questionnaire.
(1) Respondent and complainant are required to respond in writing to their respective ques-tionnaires. The answers ordinarily should be responsive to the questions asked, though elaboration is encouraged. If a question does not apply, the responder can so indicate. In lieu of answers responsive to the particular questions, the commission will accept written position statements. The position statements should cover the same general subject areas covered by the questionnaire.
(2) Responses are due 30 days from the mailing of the questionnaire. Extensions will be granted on an informal basis. Requests for extensions may be oral and may be granted or denied orally. No notice of the request for an extension nor of the disposition of that request need be given the nonrequesting party. Since the legislature encourages preliminary screening to be completed within 120 days of filing of the complaint, requests for extensions are strongly discouraged. A request for an extension by a party shall constitute a waiver by that party of any objection to the commission taking longer than the 120-day period to screen the complaint.
c. Failure to respond.
(1) Complainant. A complaint may be administratively closed when a complainant fails to respond to the questionnaire.
(2) Respondent. A complaint may be screened in and assigned to investigation when a respon-dent fails to respond to the questionnaire. Also, information may be sought pursuant to the commission's subpoena procedures.
d. Suggested procedure in answering questionnaire. Answers should be as clear and as precise as possible. Answers too long to be placed on the questionnaire itself should be numbered by part and question number and placed on a separate sheet. The parties are encouraged to submit as much supporting documentation as possible including affidavits of witnesses and documentation of treatment of individuals comparable to the complainant. Where not readily apparent, the significance of the submitted supporting documentation should be explained. This may be done through an answer that refers the commission to a particular item of the submitted supporting documentation.
e. Preliminary screening committee. As soon as practicable after the receipt of all materials responsive to the questionnaires, a committee of commission staff members may meet and review the submitted answers and materials. This preliminary screening committee will then determine whether the case will be "screened in" for further processing or "screened out" as not warranting further investigation.
f. Standard for screening. A case will be screened in when further processing is warranted. Further processing is warranted when the collected information indicates a reasonable possibility of a probable cause determination or the legal issues in the complaint need development.
g. Effect of screen out. A complaint determined not to warrant further processing shall be administratively closed.
h. Effect of failure to follow screening procedure. Preliminary screening is a tool to remove from the commission's active complaints those cases which the collected preliminary information indicates do not warrant further processing. Irregularities in the preliminary screening of a complaint, failure to complete preliminary screening within 120 days of the filing of the complaint, or failure to follow the preliminary screening procedure altogether shall not, by itself, in any way prejudice the rights of either party.
3.12(2) Periodic review and administrative closure.
a. Periodic evaluation of evidence. The executive director or designee may periodically review the complaint to determine whether further processing is warranted. Where the periodic review occurs prior to the determination of whether there is probable cause, then processing is warranted when the collected information indicates a reasonable possibility of a probable cause determination or the legal issues in the complaint need development. A complaint determined not to warrant further processing shall be administratively closed.
b. Uncooperative complainant. A complaint may be administratively closed at any time if the complainant cannot be contacted after diligent efforts or is uncooperative, causing un-reasonable delay in the processing of the complaint.
c. Involuntary satisfactory adjustment. A complaint may be closed as satisfactorily adjusted when the respondent has made an offer of adjustment acceptable to the executive director or designee but not to the complainant. Notice of intended closure shall state reasons for closure and be served by certified mail upon the complainant. The complainant shall be allowed 30 days to respond. The response shall be in writing and state the reasons why the complaint should remain open. The executive director or designee shall review and consider the response before making a closure decision.
d. Litigation review. The complaint may be administratively closed after a probable cause determination has been made where it is determined that the record does not justify proceeding to public hearing.
3.12(3) Purpose and effect of administrative closures. An administrative closure need not be made as a result of the procedures governing a determination of whether there is probable cause. Unlike a "no probable cause determination" an administrative closure is not a final determination of the merits of the case. An administrative closure resulting from preliminary screening is merely an estimation of the probable merits of the case based on the experience and expertise of the commission. An administrative closure does not have the same effect as a determination of "no probable cause."
3.13(2) Rejection of investigator's recommendation. Where the administrative law judge rejects the recommendation of the staff, the reasons shall be stated in writing and placed in the case file.
3.13(3) Notice of decision. Both the complainant and respondent shall be notified of the decision in writing by certified mail within 15 days of the administrative law judge's decision.
3.13(4) Conflicts prohibited. The administrative law judge designated to issue a finding shall not be permitted to serve as administrative law judge in a contested case where that ad-ministrative law judge has issued a finding in the same case.
161 3.16(216) Procedure to reopen. 3.16(1) Application of rule. The provisions of this rule apply only to commission deci sions and actions taken prior to the issuance of the notice of hearing described in rule 161 4.1(216).
3.16(2) Reopening by commission general rule.
a. At any time during which the commission would be required to issue a right-to-sue letter if the complainant were to request one, the commission may, in its discretion, reopen and reconsider any administrative closure of the commission.
b. The parties shall be notified whenever the commission is considering the reopening of a matter closed by an "administrative closure" which notification shall include the reasons therefor. The parties shall be afforded no less than 14 and no more than 30 days to submit their positions on reopening in writing.
c. The commission may reopen and reconsider an administrative closure where the com mission finds that the administrative closure was substantially influenced by any of the fol lowing grounds:
(1) Willfully false information provided to the commission concerning a material issue in the case;
(2) Fraud perpetrated upon the commission by a witness, the respondent, or some person not the complainant;
(3) Material misrepresentations made by the respondent to the commission or complainant; or
(4) Gross and material error by the commission staff.
3.16(3) Applications for reopening.
a. Except where specifically otherwise provided, a complainant or respondent may apply for reopening of a previously closed proceeding.
b. The commission shall grant reopening upon good cause shown by the applicant.
c. An application for reopening under this subrule must be in writing alleging the grounds and must be filed within 30 days after the issuance of the decision or action to be reconsidered.
d. Written objections to a commission closure shall be liberally construed, where appropriate, as an application for reopening.
e. Unless the application for reopening is disposed of by summary denial, all parties shall be notified whenever an application for reopening is made. A copy of the request for reopening along with the grounds asserted in the request for reopening shall be provided to all respondents. The parties shall be afforded no less than 14 and no more than 30 days to submit their position on the motion for reopening in writing.
The commission may summarily deny an application for reopening without seeking additional information and without following any of the procedures set forth in subparagraph 3.16(3)"e". Summary denial is appropriate where the application for reopening either fails to assert any grounds for reopening or asserts grounds which are inadequate on its face to justify reopening.
f. The commission, a commissioner, the executive director or designee may grant or deny the application for reopening. If the application is granted, the matter shall be referred back to the investigating staff, if further investigation is required. If no further investigation is required, the commission shall decide the matter on the accumulated record of the case. Each of the parties shall be informed of the action taken on the application to reopen in writing. Except in the case of denials of applications to reopen an administrative closure, this written notification shall be sent by certified mail to the last known mailing address of the parties.
g. When the commission denies an application for reopening of an administrative closure the notice of the denial may be made by regular mail rather than by certified mail. The date of the denial is the date the denial decision is mailed. Where mailing is by regular mail, the date of mailing is presumed to be the date on the cover letter accompanying the denial unless this date is shown to be in error.
3.16(4) No probable cause determination reopening. In addition to the reopening provi sions of subrule 3.16(3), within one year after issuance of a no probable cause, the commis sion may, in its discretion, reopen and reconsider that no probable cause order where either:
a. The commission finds that the no probable cause order was influenced in substantial part by any of the following:
(1) Fraud perpetrated upon the commission by some person who is not the complainant; or
(2) Material misrepresentations made by the respondent to the commission or complainant.
b. Less than 30 days have elapsed since the issuance of the no probable cause order and the commission determines, in its discretion, that the interests of justice require the matter to be reopened and reconsidered.
3.16(5) Successful conciliation, mediation, satisfactorily adjusted and withdrawal reopening.
a. Breach.
(1) Application. A party to a settlement agreement may within 90 days of the date respon dent's performance under the agreement was to be completed apply for reopening of a case which has been closed as satisfactorily adjusted on the grounds that the other party has materially breached the agreement. The commission shall not consider such an application for reopen ing if the commission is a party to the agreement alleged to have been breached. Also, the commission shall not consider such an application for reopening unless, as a part thereof, the party seeking the reopening agrees in writing that if the reopening is granted the agreements allegedly breached shall be null and void, and that such party waives and releases any rights to seek specific performance or damages for the alleged breach in court. If the commission finds that the agreement has been materially breached and that the respondent did not negoti ate the agreement in good faith, the case shall be reopened.
(2) Notification of parties. All parties shall be notified that an application for reopening has been made. A copy of the request for reopening along with the grounds asserted in the request for reopening shall be provided to all respondents. The parties shall be afforded no less than 14 and no more than 30 days to submit their position on the motion for reopening in writing.
(3) Court action upon breach. The right to seek reopening under the provisions of para graph "a" shall not affect a party's right to proceed in district court on an action for breach of contract based on the settlement agreement. Upon confirmation that a party has filed such an action for breach of contract, however, the commission shall close the case as that party's remedy shall lie in the district court. If so ordered by the court in such an action, the commis sion shall reopen a matter that had been closed as a result of the satisfactory adjustment.
b. Coercion or duress.
(1) Application. A party to an agreement may within 90 days after the closure apply for reopening of a case which has been closed as conciliated, mediated or satisfactorily adjusted on the grounds that the agreement was not entered into voluntarily.
(2) Notice to parties. All parties shall be notified that an application for reopening has been made. A copy of the request for reopening along with the grounds asserted in the re quest for reopening shall be provided to all respondents. The parties shall be afforded no less than 14 and no more than 30 days to submit their position on the motion for reopening in writing.
(3) Standard. An application for reopening under this paragraph must be supported by affidavit. There is a presumption that a person signing a settlement agreement has done so voluntarily. If the commission finds that the agreement was not entered into voluntarily, then the case shall be reopened.
(4) Ratification. Where a party has voluntarily accepted all the benefits of an agreement, that party is barred from applying for reopening of the case on the ground that the agreement was not voluntary.
c. Withdrawal.
(1) In general. A person whose case has been closed as "withdrawn" may within 90 days after the closure apply for reopening of that case.
(2) Standard. An application for reopening under this paragraph must be supported by affidavit. There is a presumption that a person filing a withdrawal has done so voluntarily and with the intent that the charge be withdrawn. If the commission finds that the request for withdrawal either was not filed voluntarily or was filed as a result of a mistake concerning the effect of the request for withdrawal, the case shall be reopened.
(3) Ratification. Where the withdrawal is filed pursuant to a conciliation, mediation or other settlement agreement and the complainant has ratified that agreement, the complainant is barred from applying for reopening of the case on the ground that the agreement was not voluntary.
3.16(6) Probable cause determination. The provisions of subrule 3.16(3) notwithstand ing, a respondent may not apply for reconsideration of a finding of probable cause.
3.16(7) Decision to proceed to hearing. The provisions of subrule 3.16(3) notwithstand ing, a complainant may not apply for reopening of a case which has had a finding of probable cause but which is administratively closed because it is determined that the record does not justify proceeding to hearing.
3.16(8) Request for right-to-sue reopening. The commission may reopen any case which has been administratively closed whenever: a request for an administrative release is received, all the conditions for issuance of the administrative release are satisfied, and none of the ex ceptions set forth in subrule 3.10(4) apply. This type of reopening is made in order to effect the complainant's statutory right to receive an administrative release. A reopening under this subrule need not be separately made and issued, but instead is inherent in the issuance of the right to sue.
3.16(9) Issuance of right to sue.
a. The issuance of a right-to-sue letter may not be reconsidered and a case closed after such an issuance may not be reopened.
b. Where the right-to-sue letter was issued to a complainant who had not requested it and the commission notifies the parties of this error within 90 days of the erroneous issuance then the closure after the erroneous issuance of the right-to-sue letter will be deemed void and the case reopened.
3.16(10) Notice of reopening. Whenever the commission reopens or reconsiders a deci sion, case closure, or other action of the commission under any provision of this rule, the commission shall inform each of the parties of the reopening in writing sent by certified mail to the last known mailing address.
3.16(11) Effect of reopening. Whenever a case is reopened by the commission, whether upon application or otherwise, the previous closure of the case is made void. The previous closure of a reopened case has no effect whatsoever on the case after the reopening. A re opening constitutes a reversal of the prior determination to close the case.
DISABILITY DISCRIMINATION IN EMPLOYMENT
161 8.26(216) Disability discrimination in employment.
8.26(1) The term "substantially handicapped person" shall mean any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
8.26(2) The term "physical or mental impairment" means:
a. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or
b. Any mental or psychological disorder, such as mental retardation, organic brain syn drome, emotional or mental illness, and specific learning disabilities.
8.26(3) The term "major life activities" means functions such as caring for one's self, per forming manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
8.26(4) The term "has a record of such an impairment" means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
8.26(5) The term "is regarded as having an impairment" means:
a. Has a physical or mental impairment that does not substantially limit major life activi ties but that is perceived as constituting such a limitation;
b. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
c. Has none of the impairments defined to be "physical or mental impairments," but is perceived as having such an impairment.
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8.27(6) Reasonable accommodation. An employer shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its program.
a. Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and usable by handicapped persons, and
(2)Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.
b. In determining pursuant to the first paragraph of this subrule whether an accommoda tion would impose an undue hardship on the operation of an employer's program, factors to be considered include:
(1) The overall size of the employer's program with respect to number of employees, num ber and type of facilities, and size of budget;
(2) The type of the employer's operation, including the composition and structure of the employer's workforce; and
(3) The nature and cost of the accommodation needed.
c. An employer may not deny any employment opportunity to a qualified handicapped employee or applicant if the basis for the denial is the need to make reasonable accommoda tion to the physical or mental limitations of the employee or applicant.
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