(A) Filing of complaints.
(1) Any individual who believes he or she has been aggrieved by a violation of any of the provisions of this chapter may file a complaint with the Division.
(2) The complaint shall be written and given under oath or affirmation that an unlawful practice has occurred. It shall contain:
(a) The name and address of the complainant;
(b) The name and address of the aggrieved party if the complaint is filed by the Director;
(c) The facts on which the complaint is based in such detail as to apprise any party properly concerned as to the time, place and facts surrounding the alleged violation;
(d) The names and addresses of any witnesses to the alleged prohibited act(s); and
(e) The identity of the respondent.
(B) Notice and response to complaint.
(1) The Division shall, within 10 days of the date on which the complaint was filed, serve a copy, by first class mail, on the respondent and shall require a response to the allegations contained in the complaint within 30 days from the date of service. If the respondent is a person, the complaint shall be served at the respondent’s last known address. If the respondent is a corporation, limited liability company, partnership or similar entity, the complaint shall be served upon the person designated as agent for service of process as well as the appropriate local office of respondent. The respondent shall serve a copy of its response, by first class mail, on the complainant or his representative and the Division. All allegations in the complaint not timely denied by the respondent shall be deemed admitted, unless the respondent states that it is without sufficient information to form a belief with respect to such allegation.
(2) The Division shall issue a notice of default to any respondent who fails to file a response to a complaint within 30 days from the date on which the complaint was served. Such notice shall also notify the respondent of his right to review of the notice of default pursuant to § 95.71. The Director may grant reasonable extensions of time if the respondent can demonstrate good cause why such notice of default should not issue.
(3) Within 30 days of receipt of the respondent’s response, the complainant may file a reply to such response. If the complainant chooses to file a reply, he shall serve a copy, by first class mail, on the respondent or his representative and the Division.
(4) A party shall have the right to supplement his response or reply at any time that the investigation of the complaint is pending.
(5) For purposes of determining the date of service, a document shall be considered served three days after placing such document in the mail.
(C) Investigation.
(1) After the respondent has been notified, the Director shall promptly conduct a full investigation of the allegations set forth in the complaint.
(2) The Director, or his or her representative, shall have authority to request any member of the Commission to issue subpoenas to compel the attendance of a witness or the production for examination of any books, records, or other documents.
(3) At the end of the investigation the Director shall prepare a final investigative report which shall contain:
(a) The names and dates of contacts with witnesses;
(b) A summary and the dates of correspondence and other contacts with the aggrieved party and the respondent;
(c) A summary description of other pertinent records and information;
(d) A summary of witness statements; and
(e) Answers to questionnaires or interrogatories.
A final investigative report may be amended if additional evidence is later discovered. The final investigative report shall be a confidential document subject to review by the Director, the city’s Corporation Counsel, the parties, and where indicated by this chapter, members of the Commission.
(4) The final investigative report shall state whether there is reasonable cause to believe that a violation of this chapter has occurred, and on what facts such determination is based.
(5) If the final investigative report states that there is no reasonable cause to believe that a violation of this chapter has occurred, the Director shall dismiss the complaint. In such cases, within 15 days after completion of the final investigative report, the Director shall serve, by first class mail, a copy of the notice of dismissal and the reasons therefore on all parties. The complainant shall also receive notification of his or her right to appeal, in writing, within 14 days of the date of service of said notice, to the Commission for review of the dismissal order. Such review shall be conducted pursuant to § 95.71.
(6) If the final investigative report states that there is reasonable cause to believe that a violation of this chapter has occurred, the Director shall submit the final investigative report to the city’s Legal Division. If the Corporation Counsel determines there is legal sufficiency, he shall coordinate with the Director to file a complaint for hearing with the Commission.
(D) Conciliation.
(1) During the period beginning with the filing of the initial complaint and ending with the filing of a complaint for hearing or a dismissal, the Division shall attempt to resolve the complaint by informal conciliation.
(2) The complainant and respondent shall be notified of the time and place of any conciliation conference and the parties shall appear at the conference in person or by attorney.
(3) If the respondent and complainant agree to a conciliation agreement, the Division shall issue an order in the name of the Commission stating the terms of the agreement and furnish a copy of the order to the complainant and respondent.
(4) If the parties fail to reach an agreement, nothing said or done in the course of conciliation may be made public or used as evidence in a subsequent proceeding without the written consent of both parties.
(E) Timing.
(1) When an initial complaint has been properly filed with the Division, within 90 days of such filing, shall:
(a) Submit a final investigative report with the Legal Division;
(b) Issue an order finding no reasonable cause and dismissing the complaint; or,
(c) Issue an order of conciliation pursuant to an agreement between the complainant and respondent.
(2) If none of the above have occurred within said 90 day period, and no complaint for hearing has been filed with the Commission pursuant to division (E)(3), the Department shall continue the investigation of the initial complaint after said 90 day period and conclude it as promptly as is feasible.
(3) If no action has been taken by the expiration of the 90-day period, the aggrieved party may request that a complaint for hearing be filed with the Commission. Upon filing such complaint for hearing, the Department shall cease processing the original complaint.
(F) Complaint for hearing.
(1) A complaint for hearing shall be based on the final investigation report and need not be limited to the facts or grounds alleged in the initial complaint. The complaint for hearing shall be filed with the Commission, which shall order a public hearing to make a determination concerning the complaint.
(2) Within ten days after the complaint is filed, the Commission shall cause it to be served, by first class mail, on the respondent. If the Respondent is a person, the complaint for hearing shall be served at his or her last known address. If the Respondent is a corporation, limited liability company, partnership or similar entity, the complaint for hearing shall be served upon the person designated as agent for service of process as well as the appropriate local office of Respondent. A copy of the complaint for hearing shall be mailed to the complainant by first class mail. For purposes of determining the date of service, a document shall be considered served three days after placing such document in the mail.
(G) Time of hearing. The public hearing shall be held not less than 30 nor more than 90 days after the service of the complaint for hearing on the respondent, unless such time is tolled pursuant to division (H) or on agreement of the parties.
(H) Answer.
(1) The respondent shall file an answer, under oath or affirmation, to the complaint for hearing within 30 days of the date of service of the complaint.
(2) If the respondent files a motion to dismiss within the 30 days, the time for filing an answer shall be tolled pending a decision on the motion. If the motion to dismiss is denied, the respondent shall have 15 days from the date of such denial to file an answer to the complaint for hearing.
(3) Any allegation in the complaint for hearing which is not denied or admitted in the answer is deemed admitted unless the respondent states in the answer that he is without sufficient knowledge or information to form a belief with respect to such allegation.
(4) When a respondent fails to file an answer, the respondent shall be found in default, the allegations in the complaint shall be deemed admitted and a hearing on damages shall be set. Notice of such hearing on damages shall be sent the respondent and complainant by certified mail, return receipt requested.
(I) Administrative hearings.
(1) Upon a complaint for hearing being filed, the Commission shall schedule the matter for a hearing before the Commission itself and the Hearing Officer selected to preside over the hearing. The Hearing Officer shall preside over and the Commission shall attend any and all hearings which may be necessary to reach a determination on the complaint for hearing. All hearings conducted pursuant to this division shall be public.
(2) Notice of hearings shall be sent to the respondent and complainant by certified mail, return receipt requested. The notice shall include the following:
(a) A statement of the time, place and nature of the hearing;
(b) The official file or other reference number;
(c) The consequences of a failure to appear or respond; and,
(d) The names and mailing addresses of the parties and all other persons who are to receive notices.
(3) Pre-hearing conferences shall be conducted to determine any possible stipulations, consent orders, agreed settlements, scheduling of hearings or other such matters. The Hearing Officer shall conduct such pre-hearing conference. Notice of any pre-hearing conference shall be in accordance with division (I)(2) above.
(4) Both the complainant and respondent shall appear, and may be represented by counsel, at any hearing, examine and cross-examine witnesses and present evidence and testimony.
(5) The testimony taken at a hearing shall be under oath or affirmation and shall be recorded in order to adequately insure preservation of testimony or oral proceedings. A transcript shall be prepared at the conclusion of any such hearing and made available to the Commission and the Hearing Officer, and filed in the office of the Commission.
(6) (a) The rules of evidence and privilege as applied in civil cases in the circuit courts of this state shall be followed. Evidence not admissible under those rules may be admitted (except where precluded by statute) if it is of type commonly relied upon by reasonably prudent men in the conduct of their affairs. Irrelevant, immaterial or unduly repetitious evidence shall be excluded. Objections to evidentiary offers may be made and shall be noted in the record. Subject to those requirements, when a hearing may be expedited and the interests of the parties will not be prejudiced, any part of the evidence may be received in written form. The final investigative report prepared by the Director may be reviewed and considered evidence in the hearing.
(b) Notice may be taken of matters of which the circuit courts of this state may take judicial notice. The Commission or Hearing Officer’s experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence.
(7) Any proceedings or information with respect to conciliation or settlement shall not be received in evidence.
(8) If either party fails to appear at a hearing, such party shall be deemed to have waived their right to the hearing and the hearing shall be conducted in their absence.
(9) The record shall consist of the following:
(a) All pleadings, including notices and responses, motions and rulings;
(b) All evidence received;
(c) A statement of matters officially noticed;
(d) Any offers of proof, objections and rulings thereon;
(e) Any proposed findings and exceptions.
(10) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
(11) Ex Parte Communications
(a) The Commission and Hearing Officer are authorized by law to entertain or dispose of on an ex parte basis, the Commission or Hearing Officer shall not communicate, directly or indirectly, in connection with any issue of fact with any party or the representative of any party, except upon notice and opportunity for all parties to participate.
(b) An ex parte communication received by any member of the Commission shall be made a part of the record of the pending matter, including all written communications, all written responses to the communications, and a memorandum stating the substance of all oral communications and all responses made and the identity of each person from whom the ex parte communication was received.
(c) Communications regarding matters of procedure and practice are not considered ex parte communications under this section.
(J) Decisions and orders.
(1) Hearing Officer.
(a) The Hearing Officer shall, within 30 days after the transcript is made available, unless such time is extended by leave of the Commission, make a written report containing findings of fact, conclusions of law and a recommendation concerning whether discrimination occurred and any penalties, if applicable. Any recommended penalties shall be in accordance with division (L). A recommendation sustaining the complaint shall be based on a preponderance of the evidence.
(b) The report shall be served upon the parties and the Commission by first class mail. The third day after the date of mailing shall be deemed the date of service. Within 15 days from the date of service, each party may file exceptions and present a brief to the Commission concerning the Hearing Officer’s report and recommendation. Any party desiring oral argument on the proposed decision shall make a request for such oral argument within the above- mentioned 15 day period. If oral argument is requested, notice of the date, time and location of such oral argument shall be sent to the respondent and complainant by first class mail, postage prepaid.
(c) The Commission shall, at its next meeting after submission of the briefs and any oral argument, adopt, modify or reject in whole or in part and in writing, the findings, conclusions, determinations and recommendation of the Hearing Officer, which upon being signed by all members of the Commission in attendance at such meeting shall constitute a final order of the Commission.
(K) The final order of the Commission shall state whether the respondent has engaged in an unlawful practice or has otherwise violated this chapter.
(1) If it is determined that the respondent has not engaged in an unlawful practice, the Commission shall issue, and cause to be served on the respondent and the complainant, by certified mail, a decision and order dismissing the case.
(2) If it is determined that the respondent has engaged in an unlawful practice, the Commission shall issue, and cause to be served on the respondent by certified mail, a decision and order containing the Commission’s written findings of fact, conclusions of law and penalties to be imposed. Any penalties to be imposed shall be in accordance with division (L).
(L) The penalties contained in any recommendation or order may include, but not be limited to, any of the following, directing respondent:
(1) To cease and desist from any violation of this chapter;
(2) To pay actual damages, as reasonably determined, for any injury or loss suffered by the complainant or aggrieved party;
(3) To pay to the city a civil penalty to vindicate the public interest, as follows: in an amount not to exceed $2,000 for each violation of §§ 95.10, 95.30 or 95.40; in an amount not to exceed $10,000 for a first violation of § 95.20; in an amount not to exceed $25,000 for a second violation of § 95.20 in the previous five year period; in an amount not to exceed $50,000 for a third or subsequent violation of § 95.20 in the previous seven year period;
(4) To hire, reinstate, or upgrade the complainant or aggrieved party with or without back pay or provide such fringe benefits as the complainant or aggrieved party may have been denied;
(5) To admit or restore the complainant or aggrieved party to labor organization membership, to a guidance program, apprenticeship training program, on the job training program, or other occupational training or retraining program;
(6) To admit the complainant or aggrieved party to a place of public accommodation;
(7) To extend to the complainant or aggrieved party the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the respondent;
(8) To pay to the complainant or aggrieved party all or a portion of the costs of maintaining the action before the Department, the Commission and in any judicial proceedings, including without limitation reasonable attorney’s fees; or,
(9) To take such action as in the judgment of the Commission will carry out the purposes of this chapter.
(M) In the event the final order of the Commission contains penalties imposed upon the respondent, the respondent shall also be required to file with the Division and the Commission, a report as to the manner of compliance with the final order of the Commission.
(Ord. 7793, passed 11-7-95; amend. Ord. 7960, passed 5-5-98; amend. Ord. 8168, passed 3-6-01; Am. Ord. 9146, passed 5-1-18)