Sec. 17.04.08.04. Procedures for Investigating Complaints of Discrimination

A. Definitions. In this regulation, the following terms have the meanings indicated:

(1) "Comparable individual" means an individual whose circumstances and those of the complainant are such that it is appropriate that their treatment be compared to determine if discrimination has occurred.

(2) "Relevant information" includes but is not limited to:

(a) Statistical and other data reflecting personnel actions taken by an alleged discriminating official;

(b) Nonprivileged information in personnel files of comparable employees; and

(c) Any other information considered relevant by the State EEO Coordinator, the unit's fair practices officer, or the unit's equal employment opportunity officer.

B. An equal employment opportunity officer or a fair practices officer assigned to investigate a complaint of discrimination may:

(1) Administer oaths;

(2) Obtain affidavits;

(3) Conduct interviews; and

(4) Obtain relevant nonprivileged information necessary to investigate and resolve the issues presented by the complainant.

C. Procedures.

(1) The complainant and each employee of the complainant's unit shall cooperate fully with an investigation of a discrimination complaint. Each individual shall produce documentary or testimonial evidence requested by the investigator.

(2) An employee who fails to cooperate during an investigation, provides false information, obstructs, or in any way impedes an investigation shall be subject to disciplinary action, up to and including termination.

(3) When the complainant, the complainant's unit, or one of the unit employees fails without good cause to respond fully and in a timely manner to requests for documents, records of comparative data, statistics, affidavits, or the attendance of witnesses, an individual authorized to investigate a complaint of discrimination shall make a note of the failure and the head of a principal unit, the State EEO Coordinator, or the Secretary, as appropriate, may:

(a) Draw an adverse inference that the requested information would have reflected unfavorably on the party failing to provide it;

(b) Consider the allegations relating to the requested information or testimony to be established in favor of the opposing party;

(c) Exclude other evidence offered by the party failing to produce the requested information or witness;

(d) Issue a decision fully or partially in favor of the opposing party; or

(e) Take any other action the decision maker considers appropriate under the circumstances.

D. Reports of Investigation.

(1) Upon completion of an investigation under this regulation, the unit's fair practices officer shall send a proposed decision to the head of the principal unit. The head of the unit shall issue to the parties a written decision and may grant any appropriate relief.

(2) The equal employment opportunity officer shall maintain all original documents in accordance with the unit's document and retention schedule.

(3) A written decision issued by the head of the principal unit in accordance with State Personnel and Pensions Article, §5-212(2), Annotated Code of Maryland, shall be based on the report of investigation and the proposed decision recommended by the equal employment opportunity officer.

(4) In accordance with State Personnel and Pensions Article, §5-213, Annotated Code of Maryland, a complainant who is dissatisfied with the decision of the head of the principal unit may appeal the decision in writing to the Secretary.

(5) The decision of the Secretary shall be based upon such facts as the Secretary deems appropriate.

(6) The Secretary shall grant appropriate relief and send a final decision to the parties.