Investigation procedures for complaints

Under 1981.104(a), the named person must be told that a complaint was filed, the allegations in the complaint, the substance of supporting evidence (with confidential informants redacted), and their rights under paragraphs (b) and (c) of the section and paragraph (e) of 1981.110. See 1981.104(a) and the overall 1981 part.

Yes. A copy of the notice to the named person will also be provided to the Department of Transportation. This requirement is stated within the procedures of 1981.104 and the broader 1981 part.

Under 1981.104(b), the complainant must make a prima facie showing that protected behavior or conduct was a contributing factor in the unfavorable personnel action; otherwise the complaint will be dismissed. The prima facie showing is explained further in the regulation.

Under 1981.104(b)(1), the complaint must allege facts and evidence showing that:

• the employee engaged in a protected activity or conduct (1981.104(b)(1)(i));
• the named person knew or suspected, actually or constructively, that the employee engaged in the protected activity (1981.104(b)(1)(ii));
• the employee suffered an unfavorable personnel action (1981.104(b)(1)(iii)); and
• the circumstances raise an inference that the protected activity was a contributing factor in the unfavorable action (1981.104(b)(1)(iv)).

Under 1981.104(b)(2), the complaint must on its face (supplemented by interviews if needed) allege facts and either direct or circumstantial evidence that give rise to an inference the named person knew of the protected activity and that the protected activity contributed to the adverse action. Close timing between the protected activity and the adverse action is an example that normally satisfies the burden.

Under 1981.104(c), yes—the named person can avoid an investigation by demonstrating, through clear and convincing evidence, that they would have taken the same unfavorable personnel action even without the employee's protected conduct. If that clear and convincing showing is made, an investigation will not be conducted.

Under 1981.104(d), the named person has 20 days from receipt of the notice of filing to submit a written statement and any affidavits or documents supporting their position, and may also request a meeting with the Assistant Secretary within the same 20-day period.

Under 1981.104(e), if the Assistant Secretary develops reasonable cause to believe the Act was violated and preliminary reinstatement may be warranted, the named person will be told the substance of the relevant evidence obtained during the investigation before findings or a preliminary order are issued.

Under 1981.104, witness statements will be redacted to protect the identity of confidential informants; if redaction would reveal their identity, summaries of the statements’ contents will be provided instead. These protections are applied prior to sharing evidence with the named person.

Under 1981.104(e), the named person has the opportunity to submit a written response, meet with investigators to present witness statements in support of their position, and present legal and factual arguments. They must present this evidence within 10 business days of the Assistant Secretary's notification or at a later time if both parties agree for the interests of justice.

Under 1981.104(b)(2), close timing—where the adverse personnel action occurred shortly after the protected activity—normally gives rise to the inference required for a prima facie showing and therefore often satisfies the burden to trigger an investigation.

Under 1981.104(d), the named person may submit a written statement and any affidavits or documents that substantiate their position. These materials are used to show by clear and convincing evidence whether the same action would have been taken absent the protected conduct.

Under 1981.104(d), the named person has 20 days from notice of the complaint filing to submit a written statement and request a meeting. If, during the investigation, the Assistant Secretary later provides additional evidence indicating possible violation and preliminary reinstatement, the named person must present responses and supporting evidence within 10 business days of that later notification, unless both parties agree on a different timing under 1981.104(e).

Under 1981.104(d), investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis (other than the complainant) consistent with part 70 of title 29 of the Code of Federal Regulations. This includes redacting identifying details from witness statements when necessary.

Under 1981.104(b) and (b)(2), if the complaint fails to allege facts and evidence sufficient to make a prima facie showing—after any needed interviews of the complainant—the complainant will be advised that the required showing has not been made and the investigation will not commence.

Under 1981.104(e), summaries of witness statements will be provided instead of full statements when redacting the statements would still reveal the identity of confidential informants; this preserves confidentiality while giving the named person the substance of the evidence developed.