HAR §12-46-11. Dismissal of complaint

(a) The executive director shall dismiss the complaint: (1) If it is determined that the commission does not have jurisdiction over the complaint; (2) If it is determined after investigation that reasonable cause does not exist to believe that the alleged unlawful discriminatory practice has been committed; s6-19 ( (3) If either the complainant or respondent cannot be located; provided that reasonable efforts have been made to locate the complainant or respondent, or the complainant has not responded within thirty days to a notice sent by the commission to the complainant's last known address; (4) If the complainant has failed or is unable to cooperate fully in the investigation or conciliation of a complaint by: (A) Failing or refusing to provide the investigating examiner with requested information; (B) Failing or refusing to appear or to be available for interview or conferences as an investigating examiner deems (C) necessary; or Otherwise refusing or failing to cooperate, or not being able to provide information which a person would reasonably be expected to have; to the extent that the commission's executive director or investigating examiner is unable to resolve the complaint; provided that after due notice of the commission's executive director's intent to dismiss the complaint, the complainant has had thirty days in which to respond; (5) If the executive director determines that there are inadequate remedies because: (A) The respondent to the complaint has filed a petition for relief under Chapter VII of the Bankruptcy Code, Title 11 United States Code, and the executive director determines that there are insufficient assets available to provide relief to the complainant and other remedies are inappropriate; or t,6-20 ( ( 6) ( 7) (B) There is no significant monetary, employment, accommodation, service, housing, declaratory, or injunctive relief available to the complainant; If the complaint has been investigated by an appropriate local, state, or federal enforcement agency, such as the EEOC, Department of Housing and Urban Development, Office for Civil Rights, or Office of Federal Contract Compliance Programs, and a final determination regarding the complaint has been made by the agency; If it is determined at any time that, based upon the executive director's discretion, dismissal is justified for administrative reasons, such as but not limited to: (A) A finding of reasonable cause is no longer appropriate because of a material change in the allegations of the complainant or respondent; (B) A finding of reasonable cause is no longer appropriate because of a material change in the testimony of a key witness for the complainant or respondent; (C) A finding of reasonable cause is no longer appropriate because of a change in law or the discovery of new and material evidence; (D) A civil action alleging similar facts has been filed pursuant to section 515- 9(b), HRS; or (8) If the complaint or relief sought is covered by a court order or consent decree, or the respondent action complained of is required or authorized by a court order or consent decree. (b) The executive director may dismiss a complaint if the respondent has made a predetermination settlement offer as described in 46-21 ( section 12-46-13, which is in writing and specific in its terms, and the complainant refuses to accept the offer; provided that the offer, as determined by the commission's executive director, would afford a just resolution for the harm alleged by the complainant and the complainant fails to accept the offer within thirty days after actual notice of the offer. (c) In the event of any dismissal of a complaint: (1) The complainant certified mail, of: shall be notified by return receipt requested, (A) (B) The reason or reasons for dismissal; The right to sue as provided by section 368-12 or 515-9, HRS; and (C) The right to request the executive director to reconsider the dismissal. (2) The respondent shall be notified in writing of the dismissal and the reasons therefor. (d) The dismissal of a complaint may be reconsidered on the executive director's own initiative at any time or upon the complainant's written request filed within thirty days after the date of the receipt of the notice of disposition. Written notice of the reconsideration shall be provided by the executive director to the parties. [Eff 12/31/90; am 5/1/92; am 11/4/93; am 5/3/99; am 10/6/13; am and comp ] (Auth: HRS §368- 3) (Imp: HRS §§368-11, 368-12, 368-13, 515-9) §12-46-12 Investigation, fact-finding conference, and discovery. (a) After the filing of a complaint, the executive director shall investigate the charges contained in the complaint. In complaints alleging violations of chapter 515, HRS, investigations shall be commenced within thirty days after filing. (b) As part of its investigation, the executive director may require all parties to attend a fact- finding conference. (c) The fact-finding conference is primarily for the purposes of: (1) Ascertaining the positions of the parties; (2) Identifying the issues in dispute; (3) Resolving those issues that can be resolved; (4) Obtaining evidence; and (5) Determining the likelihood of a predetermination settlement. (d) The commission's executive director is authorized to issue subpoenas for the production of documents or the examination of witnesses deemed necessary for the investigation of a complaint. The executive director can require parties to provide written responses to a complaint and other requests for information or discovery, including but not limited to, interrogatories and requests for admissions or for the production of documents. (e) If a party or a witness refuses to honor a subpoena or if a party fails to respond to a complaint or discovery requests within the time allowed for such responses under the Hawaii Rules of Civil Procedure, the commission's executive director is authorized to file a petition for appropriate temporary relief in the circuit court. (f) An investigation shall be concluded within one hundred eighty days of the filing of a complaint alleging violations of chapters 368, 378, or 489, HRS, or within one hundred days of the filing of a complaint alleging violations of chapter 515, HRS; provided that the commission may grant an extension. In complaints alleging violations of chapter 515, HRS, complainants and respondents shall be provided written notice if the investigation cannot be completed within one hundred days. [Eff 12/31/90; am 5/1/92; am 11/4/93; comp ) (Auth: HRS §368-3) (Imp: HRS §§368-13, 515-9) !,6-23 (