Subpart A
Under 1978.104(a), the Assistant Secretary must notify the respondent that a complaint was filed and provide the respondent a copy of the complaint redacted as required by confidentiality laws, while also giving the unredacted complaint to the complainant (or counsel) and to the Federal Motor Carrier Safety Administration. See 1978.104(a) for the notification and distribution requirements.
Under 1978.104(a), the respondent must be informed of its rights under paragraphs (b) and (f) of 1978.104, which include the right to submit a written statement and request a meeting within 20 days and the process related to notice and response if preliminary reinstatement is considered. See 1978.104(a) and 1978.104(b) and 1978.104(f).
Under 1978.104(b), the respondent has 20 days from receipt of the notice of filing to submit a written statement and any supporting affidavits or documents, and to request a meeting with the Assistant Secretary to present its position. See 1978.104(b).
Under 1978.104(c), the agency will provide the complainant (or the complainant's counsel) a copy of all of the respondent's submissions that are responsive to the complaint, after redacting them as necessary under the Privacy Act and other confidentiality laws, and will give the complainant an opportunity to respond to those submissions. See 1978.104(c).
Under 1978.104(d), the agency will conduct investigations in a way that protects the confidentiality of anyone who provides information on a confidential basis (other than the complainant), in accordance with part 70 of this title. See 1978.104(d).
Under 1978.104(e)(1), a complaint will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the adverse action alleged. See 1978.104(e)(1).
Under 1978.104(e)(2), the complaint must allege facts and evidence showing: (i) the employee engaged in protected activity (actual or about to be undertaken), (ii) the respondent knew or suspected that the employee engaged in the protected activity (actual or constructive knowledge), (iii) the employee suffered an adverse action, and (iv) circumstances sufficient to raise the inference that the protected activity was a contributing factor in the adverse action. See 1978.104(e)(2)(i) through 1978.104(e)(2)(iv).
Under 1978.104(e)(3), the complainant meets the required burden to trigger an investigation if the complaint, possibly supplemented by interviews, alleges facts and either direct or circumstantial evidence that give rise to an inference the respondent knew or suspected the protected activity and that the activity was a contributing factor in the adverse action; for example, adverse action occurring shortly after protected activity can meet this showing. See 1978.104(e)(3).
Under 1978.104(e)(4), the agency will not investigate or will discontinue an investigation if the respondent proves by clear and convincing evidence that it would have taken the same adverse action even without the complainant's protected activity. See 1978.104(e)(4).
Under 1978.104(e)(5), if the respondent does not make a timely response or does not meet the burden of proving by clear and convincing evidence it would have taken the same adverse action, the Assistant Secretary will proceed with the investigation to confirm or verify information provided by the respondent. See 1978.104(e)(5).
Under 1978.104(f), before issuing findings and a preliminary order (including preliminary reinstatement), the Assistant Secretary must, if there is reasonable cause to believe a violation occurred and reinstatement is warranted, notify the respondent of the substance of the relevant evidence developed during the investigation and provide redacted witness statements or summaries where necessary to protect confidential informants, giving the respondent an opportunity to respond and present witnesses. See 1978.104(f) and 1978.105.
Under 1978.104(f), if witness statements cannot be redacted without revealing the identity of a confidential informant, the agency will provide the respondent with summaries of the statements' contents rather than the full statements. See 1978.104(f).
Under 1978.104(c) and (f), materials are redacted as necessary under the Privacy Act and other confidentiality laws before being shared; the agency provides redacted respondent submissions to the complainant and redacted investigative materials (or summaries) to the complainant and respondent as required by the procedures. See 1978.104(c) and 1978.104(f).
Under 1978.104(b), yes — within the same 20-day period the respondent may submit a written statement and supporting documents and may also request a meeting with the Assistant Secretary to present its position. See 1978.104(b).
Under 1978.104(e)(3), yes — the timing of an adverse action occurring shortly after protected activity can constitute circumstantial evidence sufficient to give rise to an inference that the protected activity was a contributing factor and thus help meet the prima facie showing. See 1978.104(e)(3).
Under 1978.104(e)(2)(ii), it means the complaint must allege facts showing the respondent either had actual knowledge or should reasonably have known (constructive knowledge) that the employee engaged in protected activity; this can be shown by direct information or circumstances indicating awareness. See 1978.104(e)(2)(ii).
Under 1978.104(c), yes — the agency will provide the complainant (or complainant's counsel) a copy of responsive respondent submissions (redacted if necessary) and will give the complainant an opportunity to respond to those materials. See 1978.104(c).
Under 1978.104(e)(4), the respondent must demonstrate by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity to prevent or stop the investigation. See 1978.104(e)(4).
Under 1978.104(f), after being notified of the relevant evidence the respondent will have the opportunity to submit a written response, meet with investigators, present statements from witnesses in support of its position, and present legal and factual arguments. See 1978.104(f).
Under 1978.104(a), the unredacted complaint is provided to the complainant (or the complainant's legal counsel, if represented) and to the Federal Motor Carrier Safety Administration. See 1978.104(a).
Under 1978.104(d), protection of persons who provide information confidentially is governed by part 70 of this title, and investigations will be conducted to protect their confidentiality accordingly. See 1978.104(d).
Under 1978.104(e)(5), the Assistant Secretary will proceed with the investigation whenever the respondent fails to make a timely response or fails to meet the burden described in (e)(4), and whenever it is necessary or appropriate to confirm or verify information provided by the respondent. See 1978.104(e)(5).
Under 1978.104(f) and 1978.105, if the Assistant Secretary has reasonable cause to believe a violation occurred and preliminary reinstatement is warranted, the agency will notify the respondent of the evidence supporting the allegation (redacting or summarizing confidential statements as needed), provide the complainant copies of materials (redacted as required), and give the respondent an opportunity to respond, meet with investigators, and present witnesses before issuing findings and a preliminary order. See 1978.104(f) and 1978.105.