+------------+---------------------------------------------------------+
| !          | DEPARTMENT OF HOMELAND SECURITY                         |
| [](media/i |                                                         |
| mage1.png) | # EMERGENCY PREPAREDNESS AND RESPONSE DIRECTORATE       |
|            |                                                         |
|            | ## Federal Emergency Management Agency                  |
+------------+---------------------------------------------------------+

**Date** **Number**

**INSTRUCTION September 18, 2003 1440.3 ER**

**Equal Opportunity in Federally Conducted Education**

**and Training Programs**

 **1. [Purpose]{.underline}**. This instruction implements Executive
Order (EO) 13160, \"Nondiscrimination on the Basis of Race, Sex, Color,
National Origin, Disability, Religion, Age, Sexual Orientation, and
Status as a Parent in Federally Conducted Education and Training
Programs,\" issued on June 23, 2000.

 

**2. [Applicability and Scope]{.underline}**. The provisions of this
instruction apply to all education and training programs conducted by
the Department of Homeland Security (DHS), Emergency Preparedness and
Response (EP&R), Federal Emergency Management Agency (FEMA), field
installations, regional offices, and Disaster Field Offices.

 

**3. [Authorities]{.underline}**.

 

**a.** Rehabilitation Act of 1973, as amended, Sections 501, 504 and
508;

 

**b.** Age Discrimination in Employment Act of 1967;

 

**c.** Civil Rights Act of 1964, Titles VI and VII;

 

**d.** Education Amendments of 1972, Title IX;

 

**e.** Robert T. Stafford Disaster Relief and Emergency Assistance Act,
as amended, Section 308.

**4. [References]{.underline}.**

 

**a.** EO 13160, \"Nondiscrimination on the Basis of Race, Sex, Color,
National Origin, Disability, Religion, Age, Sexual Orientation, and
Status as a Parent in Federally Conducted Education and Training
Programs,\" June 23, 2000;

**b.** Department of Justice, EO 13160 Guidance Document: Ensuring Equal
Opportunity in Federally Conducted Education and Training Programs,
Federal Register: January 18, 2001 (Volume 66, Number 12), pp.
5397-5410;

**c.** EO 11478, as amended, Equal Employment Opportunity in the Federal
Government;

 

**d.** FEMA Instruction 1420.1, Access to Agency Programs and Activities
by Persons with Disabilities, dated August 11, 1994;

 

**e.** FEMA Manual 1430.1, Reasonable Accommodations for the Federal
Emergency Management Agency, dated August 22, 2001;

 

**f.** FEMA Manual 1440.2, Civil Rights Monitoring and Enforcement
Program, dated

February 26, 2003.

**5. [Policy]{.underline}**. All individuals involved in federally
conducted education or training programs or activities must be treated
equally and not be subjected to discrimination on the basis of race,
sex, color, national origin, disability, religion, age, sexual
orientation, or status as a parent. Such groups have a protected status
under the EO. EP&R/FEMA will maintain a learning environment that is
free of discrimination on the basis of any or all of these protected
factors. Education and training programs include: courses taught by
EP&R/FEMA staff or contractors from the Emergency Management Institute
or National Fire Academy, extracurricular activities, occupational
training, web based training, scholarships, internships and fellowships,
and teacher training programs.

 

EP&R/FEMA education and training programs may not retaliate against any
individual because he or she has raised concerns, reported claims, or
filed complaints alleging discrimination. EP&R/FEMA is similarly
prohibited from retaliating against any individual who has testified,
assisted, or participated in any manner in an investigation or other
proceeding raising claims of discrimination.

 

The EO does not apply to, affect, interfere with, or modify the
operation of any otherwise lawful affirmative action plan or program. An
individual shall not be deemed subject to discrimination by virtue of
his or her exclusion from the benefits of a program established
consistent with federal law or limited by federal law to individuals of
a particular protected group. For example, courses delivered by
EP&R/FEMA for tribal governments would be exempt from the provisions of
the EO insofar as the makeup of the student body is concerned.

**6. [Responsibilities]{.underline}**.

 

**a.** The Undersecretary, EP&R/FEMA, is responsible for ensuring that
Agency educational and training programs are in compliance with the
provisions of the EO.

**b.** Assistant Directors, Administrators, Regional Directors, and
Office Directors are responsible for ensuring all relevant aspects of
their respective programs and activities are in compliance with the
provisions of this instruction.

**c.** The Director, Office of Equal Rights (OER), is responsible for
the following:

**(1)** Providing organizational elements advice, guidance, and
technical assistance concerning requirements of the EO;

 

**(2)** Reviewing for concurrence all proposed Agency directives and
similar issuances applicable to EP&R/FEMA education and training
programs to ensure their consistency with the objectives of this
instruction;

 

**(3)** Establishing procedures for enforcement of the EO, including the
processing of complaints, the conduct of investigations, and
recommendation of corrective action should discrimination be found;

 

**(4)** Providing reports to the Assistant Attorney General for Civil
Rights as required by Section 6 of the EO;

 

**(5)** Providing training to headquarters, field establishments and
regional staffs on the provisions of the EO; and

 

**(6)** Providing appropriate posters, pamphlets, and other information
to staff in meeting the provisions of the EO.

**7. [Administrative Enforcement]{.underline}**.

 

**a.** Consolidation of Complaints by EP&R/FEMA Employees. To promote
the consistent and effective enforcement of equal employment opportunity
mandates for all federal employees, and to preserve the integrity of
statutorily protected equal employment opportunity rights, complaints
filed by EP&R/FEMA employees under both this EO and existing equal
employment opportunity laws should be consolidated and processed under
the relevant equal employment opportunity statutes (i.e., Title VII,
sections 501,504 and 508, and/or the ADEA). This approach will not only
provide a streamlined procedure for resolving complaints, but will also
protect an aggrieved employee\'s opportunity to recover any monetary
damages that are available under the EEO statutes but not under the EO.

 

A EP&R/FEMA employee seeking to file a complaint under this EO must
indicate whether the complaint is related to his or her employment and,
if so, whether he or she has filed any other EEO claims arising out of
the same circumstances. If so, the complaint filed under this EO shall
be treated as an EEO matter to be handled by OER. If a federal employee
chooses to proceed solely under the EO, the enforcement procedures set
forth below will govern the disposition of his or her complaint.

 

**b.** Claims filed by other Federal employees. Federal employees
participating as members of the general public in an EP&R/FEMA conducted
education program will be subject to the same enforcement procedures as
members of the general public. For example, if an employee of the
Department of Justice participates in a FEMA training course, the
employee may choose to file an EO 13160 claim with EP&R/FEMA's Office of
Equal Rights. However, the employee can choose the alternative of filing
an EEO complaint at the Department of Justice, if the Department's EEO
procedures provide for the filing of such a complaint.

 

If a federal employee indicates that he or she has not filed any other
EEO claims at the time of filing a complaint under the EO, the employee
may still file a related claim under Title VII, section 504, the ADEA,
or EO 11478. To do so, the employee must follow the appropriate EEO
filing procedures, including contacting an EEO counselor and filing the
complaint within the relevant statutory time limit. In such cases, the
employee should notify OER that he or she has decided to contact an EEO
counselor and file a related EEO claim.

 

**c.** Notice. The Agency shall prepare outreach materials to ensure
that all individuals involved in federally conducted education and
training programs are aware of EO 13160 and are advised as to the proper
procedures for filing complaints. These outreach materials should
provide individuals with specific information, including, but not
limited to, the general anti-discrimination mandates of EO 13160,
timelines for filing complaints, the name(s) and address(es) of the
office(s) to which such complaints should be sent, and specific
procedures established by EP&R/FEMA regarding the processing of
complaints.

 

Outreach materials will provide clear instructions to federal employees
regarding their respective rights under EO 13160 and Title VII, sections
501/504, the ADEA, and EO 11478. Specifically, outreach materials will
clearly state the differing timelines for filing claims under the EO and
these three statutes, as well as the availability (or unavailability) of
different remedies. Federal employees should be clearly advised that
claims filed under both the EO and an equal employment opportunity
statute will be processed only under the relevant statute (or under EO
11478).

**d.** Filing a Complaint**.** Any individual who believes him or
herself to be aggrieved by a violation of EO 13160 or its implementing
regulations, rules, policies or guidance, may, personally or through a
representative, file a written complaint with EP&R/FEMA. All written
complaints should be filed with OER.

**(1)** **Complaints.** In order to be accepted, all written complaints
must be \"complete complaints.\" A complete complaint must:

 

**(a)** Include the name, address, and phone number of the complainant.

**(b)** Identify whether the complainant is a federal employee and
employing agency.

**(c)** Identify whether the complainant\'s involvement in the relevant
education program was related to his or her employment.

**(d)** Describe the alleged discriminatory conduct in sufficient detail
to inform EP&R/FEMA as to the nature and approximate date of the alleged
violation; and,

**(e)** Be signed and dated by the complainant or complainant's
representative.

**(2)** Time Limits for Filing Complaints. As a general matter, all
complaints must be filed within 180 days of the alleged discrimination.
However, OER may extend this time limit:

**(a)** If the complainant can demonstrate that he or she had no notice
of the time limit and was not otherwise aware of it; or

> **(b)** If the complainant can demonstrate that he or she was
> prevented by circumstances beyond his or her control from submitting
> the complaint in a timely fashion; or

**(c)** For other reasons, or under other circumstances, considered
sufficient by the agency. For purposes of determining when a complaint
is timely filed, a complaint mailed to the Agency will be deemed filed
on the date that it is postmarked. Any other complaint will be deemed
filed on the date that it is received by OER.

If a complaint is filed within 180 days of the alleged discrimination,
but the Agency subsequently determines that the complaint is not a
"complete complaint," the complainant's claims shall nevertheless be
deemed filed in a timely manner, and the complainant shall be given
appropriate opportunity to amend his or her original complaint. 

**(3)** Class Complaints. Any individual who believes that any specific
class of persons has been subjected to discrimination prohibited by EO
13160 or any of its implementing regulations, rules, policies, or
guidance, may file a class complaint with OER, provided that individual
is either a member of the allegedly aggrieved class of persons or a
representative of a member of the allegedly aggrieved class of persons.

**(4)** Legal Representation. Any individual filing a complaint under EO
13160 or any of its implementing regulations, rules, policies, or
guidance may be represented and assisted in all stages of these
proceedings by an attorney or representative of his or her own choosing.
An individual has a responsibility to promptly inform the agency if
legal counsel is retained. In addition, an individual has an obligation
to notify OER if he or she wishes to have any other representative
included in these proceedings. It is the responsibility of the
complainant to provide

OER with the name, address, and phone number of any attorney or other
representative. In

addition, it is an ongoing responsibility of the complainant to advise
OER as to any changes with respect to the status of his or her legal
and/or non-legal representation in any proceeding under this EO or any
of its implementing regulations, rules, policies, or guidance.

**e.** Initial Review by OER. Upon receipt of a complaint filed under
this EO, OER must assess

the complaint and determine how to proceed. OER will consider whether
the complaint is a complete complaint, whether it was filed in a timely
manner, and, in the case of a federal employee, whether the complaint
should be consolidated with another complaint and transferred, if
necessary, to that employee's EEO office.

After reviewing the complaint, OER may need to obtain additional
information from the complainant. For example, OER may ask the
complainant to supply additional information if the complaint is not
complete. Additional information also may be required by OER to
determine whether to waive the time limits for filing a complaint or
consolidate and transfer a federal

employee\'s claim. If a complainant fails to provide additional
information, or otherwise respond to OER's request within 30 days,
without good cause shown, OER may dismiss the complaint.

 

In certain instances, OER may determine that a complaint should be
dismissed because the alleged discriminatory conduct did not occur in a
federally conducted education or training program. In such cases, OER
will issue a brief written determination setting forth the basis for the
dismissal and advising the complainant of his or her right to appeal
this decision to the Attorney General for a final determination
regarding coverage pursuant to Section 2-203 of the EO.

 

**f.** Informal Resolution**.** Before undertaking a formal
investigation, OER will pursue resolution of all complaints filed under
this EO through efforts to achieve voluntary compliance. OER will make
use of alternative dispute resolution techniques whenever appropriate.

 

If an informal resolution of a complaint between a complainant and
respondent cannot be reached within a reasonable period of time
(generally 45 days), or if efforts to achieve an informal resolution
appear to become futile, OER will initiate a formal investigation.
However, efforts to achieve voluntary compliance should be undertaken
whenever possible and should continue throughout the course of a formal
investigation if and when appropriate opportunities arise.

**g.** Formal Investigation. If a decision is made to initiate a formal
investigation, OER must notify the complainant in writing. OER will
attempt to complete the investigation within 180 days of the Agency\'s
receipt of a complete complaint. The investigation should include a
thorough review of the circumstances under which the alleged
discrimination occurred and any other circumstances which may
constitute, or appear to constitute, discrimination against the
complainant.

 

A formal investigation may require the cooperation and participation of
other Agency employees. Employees who are required by OER to participate
in any investigation concerning violations of this EO will do so as part
of their official duties and during the course of regular working hours.

 

Upon completion of a formal investigation, OER must prepare a written
report setting forth the results of the investigation. If the
complainant is an EP&R/FEMA employee, the report will be prepared by the
EEO Complaints Manager; if the complainant is a member of the public or
employee of another Federal agency, the report will be completed by the
Civil Rights Program Manager. The report will set forth conclusions as
to whether the EO has been violated, together with an analysis of the
facts supporting the finding. If the report concludes that any agency
employee has not complied with the EO or any of its implementing rules,
regulations, policies, or guidance, OER will refer a copy of the report
and any relevant findings or supporting evidence to the Undersecretary,
Emergency, Preparedness and Response (EP&R), Federal Emergency
Management Agency (FEMA). OER also may make recommendations for any
corrective and/or remedial action. A copy of the investigative report
should be sent to both the complainant and the respondent, including the
employee who is the subject of the report.

If a determination is made that there has been no violation of the EO or
any of its implementing rules, regulations, policies, or guidance, a
copy of the report also shall be sent to both the complainant and the
respondent. In such cases, although no action is required, a copy of the
report should nevertheless be sent to the Undersecretary, EP&R/FEMA.

**h.** Referral to the Undersecretary, EP&R/FEMA. Upon receipt of a
report from OER that indicates there has been a violation of the EO or
its implementing rules, regulations, policies, or guidance, the
Undersecretary, EP&R/FEMA shall review the report and all relevant
supporting material in order to determine what, if any, disciplinary
action is appropriate. Any action taken to discipline an employee,
including removal, must be taken in compliance with otherwise applicable
procedures, including the Civil Service Reform Act of 1978. The
Undersecretary, EP&R/FEMA, also shall review the OER report in order to
determine whether any corrective or remedial action should be initiated.
Nothing in the EO authorizes monetary relief to the complainant as a
form of remedial or corrective action. If the Undersecretary does
determine that the complainant is entitled to some form of remedial or
corrective action, the Undersecretary

shall so notify the complainant in writing. The Undersecretary also
shall take all necessary steps to ensure that the corrective or remedial
action ordered is implemented. If a determination is made that the
complainant is not entitled to any corrective or remedial action, the
Undersecretary shall notify the complainant of this decision and the
reasons for this determination.

**i.** Remedies. As a general matter, if there has been a violation of
the EO, the complainant shall be entitled to all appropriate,
non-monetary, equitable relief. The Undersecretary, EP&R/ FEMA should
attempt to ensure that the aggrieved individual ends up in the same
position he or she would have occupied absent discrimination, or a
substantially equivalent position. In the context of violations of this
EO, specific remedies are likely to include placement in the next
available education or training program of a comparable nature; the
development of an individualized training opportunity; the cancellation
of an unwarranted personnel action or the expungement of adverse
materials from agency records; the awarding of a diploma, other
certificate, or specific grade; and the provision of reasonable
accommodations.

 

EP&R/FEMA will ensure that sufficient authority exists to provide all
appropriate forms of relief. Complainants should be aware that the EO
specifically provides that the Order is not intended, and should not be
construed, to create any right or benefit, substantive or procedural,
enforceable at or by law by a party against the United States, its
agencies, its officers, or its employees. Actions taken pursuant to the
EO, however, are open to judicial review of final decisions in
accordance with the Administrative Procedures Act, 5 U.S.C. 701, et seq.

**8. [Reporting Requirements]{.underline}**. For the first three years
following issuance of the EO, the Office of Equal Rights shall file
annual reports with the Assistant Attorney General for Civil Rights that
summarize the number, nature, and disposition of complaints filed under
the EO. Such reports are to be submitted within 90 days of the end of
the preceding year\'s activities. Subsequent reports are to be submitted
every three years and within 90 days of the end of each three-year
period.

\_\_\_\_\_\_\_\_\_\_***S***\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Michael D. Brown

Under Secretary

Emergency Preparedness and Response