Discrimination Complaints & Case Files Handbook PH05-I-4, Chapters 2 and 7 - PowerPoint PPT Presentation

Discrimination Complaints & Case FilesHandbook PH05-I-4, Chapters 2 and 7

Judy R. Peters

peters.judy@dol.gov

570-831-7543

• Miners
• Representative of Miners
• Applicants for a mining position
• Protected from retaliation for engaging in safety and health related activities

• Identifying hazards

To them self or others

• Asking for an MSHA inspection

103(g) complaint or Code-A-Phone

• Refusing to engage in an unsafe or unhealthy act

Work Refusal

• Discrimination Complaints are given priority over all other special investigation cases
• All available Special Investigation resources will be used to ensure the timely initiation and completion of the cases
• Supervisory Special Investigator
• Additional resources requested from TCIO

• Prohibits discrimination against coal miners who are suffering from pneumoconiosis
• Only underground coal miners
• Administered by the Employment Standards Administration (ESA)

• Memorandum of Understanding with ESA to provide additional locations to file complaints
• ESA will accept Section 105(c) cases
• MSHA will accept Black lung cases
• MSHA will conduct an investigation
• If no violation of Section 105(c), will forward case file to ESA
• If dual violation, will process & forward copy to ESA

• Memorandum of Understanding between MSHA and National Labor Relations Board (NLRB)
• Violations of Mine Act
• Violations of NLRB
• Both TCIO and NLRB are responsible for coordination and consultation in handling discrimination complaints

• Proper coordination and processing ensures efficient action
• Filed with any MSHA or ESA office
• At least one person in each field office and District office designated and trained to process complaints
• At least one alternate

• Will be maintained by all MSHA employees involved in the process
• Copies of complaints are NOT to be retained by the complaint processor
• Only original complaint is to be maintained in the case file
• Complaint and file maintained in accordance with Privacy Act

• Complaint forms may be obtained from any MSHA or ESA office
• Provided by Complaint Processor
• Complaint form 2000-123 (Page 2-8)
• Report Form 2000-124 (Page 2-11)
• FMSHRC Rules of Procedure (1999 edition is not in Handbook)
• Privacy Act Statement (page 2-16)

• Information on Backpay for Miners

(Page 2-17)

• Claimant Expense Search for Work, and Interim Earnings Report

(Page 2-21)

• MSHA enforcement personnel must have access to all material

• Individuals who come into an MSHA office with questions concerning discrimination should be referred to:
• Complaint processor
• SSI
• or Other designated person
• Complaint processor
• Should discuss general nature of complaint
• Provide forms and other documents
• Assist in filling out the forms

• Individuals should be referred to Complaint Processor
• Complainant advised he/she may come to any MSHA office to file complaint and be assisted in preparing and filing a complaint
• or, Packet mailed to complainant
• A cover letter (Page 2-23)
• Forms & documents listed on page 2-23
• Certified Mail; return receipt

• Any signed letter or written document received in any MSHA office which alleges a discriminatory act will be treated as a complaint
• Information will be transferred to Forms 2000-123 & 2000-124 and attached to the letter
• Complainant will sign 2000-124 during investigation
• Cover Letter (Page 2-23)
• Forms & documents listed on page 2-23

• Capture pertinent information from complainant on specific items
• Include as much information as possible
• Advise complainant NOT to include names, addresses and phone numbers of potential witnesses

• Complainant summarizes the discriminatory action
• Brief
• Concise
• One or two paragraphs
• Remedy
• Names, addresses, and phone numbers of potential witnesses are not to be included on this form

• Copy Form 2000-124
• Complaint Processor will remove any information identifying a miner or witness
• Name or nick-name
• Job Title
• Characteristics

• Filed on behalf of a group of miners
• Complaint and remedy is the same for all
• Only one case number assigned
• One case file prepared
• Signed by each person in the group
• Separate case numbers and case files
• Different or unique issues
• Events occurred at different times

• Mine not in the district’s jurisdiction
• Complaint Processor shall immediately notify the SSI
• Arrangements can be made to forward the information to the appropriate office for processing

• Complaint Processor shall obtain:
• Case number
• Name of Investigator
• Fill out Investigation Assignment Control Form 2000-158
• Mail to Headquarters copy of 2000-158 AND copy of complaint (Forms 2000 123 & 124)
• Document in Discrimination Log (Page 2-29)

• Complaint Processor will prepare and distribute notification letters
• Each Complainant (Page 2-24)
• Attach copy of Forms 2000-123 and 2000-124
• Other documents listed if not previously provided
• Each Respondent (Page 2-25)
• Attach Redacted Copy of 2000-124
• Attach FMSHRC Rules of Procedure
• Mailed certified mail; return receipt; or hand delivered (receipts included in case file)

• Investigation must address five elements of discrimination (Page 2-30)
• Protected Class
• Protected Activity
• Adverse Action
• Nexus
• Operator’s Defense

• The complainant must provide evidence that he/she is employed as, or acting in the capacity of, one of the protected classes
• Miners
• Representative of Miners
• Applicant for a mining position

• Filing or making a complaint of an alleged danger or safety or health violation
• Instituting a proceeding under the Mine Act
• Testifying or preparing to testify in any proceeding
• Being the subject of medical evaluation and potential transfer under Section 101

• Enforcement of the safety training provisions of Section 104(g) and Section 115
• Refusing to work in unsafe or unhealthy conditions
• Participating in an inspection in accordance with Section 103(a)
• Exercising any statutory right afforded by the Mine Act

• Complainant must provide evidence that he/she was involved in activity afforded by the Mine Act
• Work Refusals - complainant must make a reasonable attempt to convey their safety and health concerns to management
• Complainant must be reasonable in their belief that the condition or work assignment was unsafe or unhealthy

• Complainant must provide proof that some type of adverse action occurred
• Discharge, Termination, or Lay-off
• Demotion
• Refusal of employment
• Reduction in benefits
• Vacation
• Bonus
• Rates of pay

• Change of pay
• Change of work hours
• Interference with the exercise of the statutory right of miners
• Subtle forms of interference
• Promises of benefit
• Threats of reprisal
• Transfer to another position with loss of pay

• Investigator must show by a preponderance of evidence that there is a connection between the protected activity and adverse action
• Perceived or real
• Prima Facie Case:
• Timeliness of events
• Evidence of disparate treatment
• Admission by discriminating official
• Knowledge of miner’s protected activity

• Operator may rebut the Prima Facie Case or offer evidence to affirmatively defend their actions
• The complainant was not involved in protected activity
• No discriminatory act
• The action taken was motivated by the complainant’s involvement in unprotected activity and adverse action would have been taken in any event

• All timeframes are initiated from the date complaint is received by an MSHA office
• Fifteen Days - All investigations initiated
• Forty-Five Days - All case files postmarked and mailed to TCIO (Case on the merits)

• Seven days – notify TCIO and Solicitor
• (Page 2-23)
• Complainant’s name
• Date filed
• Date of TR request
• Mine name and ID number
• Name and phone number of SI
• Twenty Days – refer case to Sol or decline
• Page 2-33 or Pages 2-34 thru 2-35
• Thirty Days – SOL file case with FMSHRC or decline

• The investigation only has to establish there is a “reasonable cause to believe” that a discriminatory act occurred
• The case was not frivolously brought as distinguished from the preponderance of evidence standard to prove the underlying discrimination

• Sixty Days – TCIO complete review and refer to SOL or decline
• Ninety Days – SOL must file a complaint with FMSHRC or decline

• Complainant may withdraw complaint at any time
• Submit request in writing
• Discontinuance of Discrimination Complaint (Page 2-26)
• Witnessed by an SI
• Notarized
• Verified by SI if submitted by mail

• Understanding, Settlement, or Agreement
• Letter to complainant
• Copy to respondents
• Prepared by TCIO
• Mailed certified; return receipt
• Page 2-27
• Any other reason
• Letter to complainant
• Copy to respondent
• Prepared by TCIO
• Mailed Certified; return receipt
• Page 2-28

• A case file will be established for every investigation
• Case numbers will be assigned (Pages 7-20 & 7-21)
• Investigation Assignment Control Form 2000-158 on left side of folder
• Clear and legible copies
• Exhibits numbered sequentially
• Each page numbered with exhibit number and page number (Page 7-1, item number 3)

• Investigation report and all exhibits will be attached to the right side of the case file and bound using two-prong fastener
• If more than one case file folder is needed, each folder will be numbered sequentially
• Each case file folder will have a label indicating the case number and parties involved (Pages 7-4 & 7-9)

• All files shall be stamped: CONFIDENTIAL

and kept under lock and key

• All case files alleging discharge will be stamped with the word DISCHARGE in large red letters
• The Supervisory Special Investigator shall be responsible for maintaining the confidentiality and security of all files
• Access to files shall be by authorized personnel only
• Names of anyone accessing the file will be recorded on the Form 2000-158

• All investigative notes must be marked with the case number and the word “notes”
• All notes must be placed in a manila envelope and placed in the original case file
• Personal memoranda and extraneous notations not related to the investigation SHALL NOT be included with the notes

• Possible hazardous conditions identified during an investigation shall be reported and documented in a memorandum to the file
• Referring conditions to the DM
• Action taken by the SI
• Action taken by the SSI
• Action taken by enforcement personnel

• The SSI shall maintain the official case file in the district office
• If the SI is located in a field office, the SI may retain a copy until litigation is completed.
• Copy must be secured under lock and key
• When litigation is completed, or the case is closed, all copies will be returned to the district office for proper disposal

• Cover letters or transmittal memorandums (Page 7-27)
• Memorandum of Investigation
• Exhibits (Page 7-2)

• Section 105(c)
• Two copies if the case is being referred for action
• One copy of report and letter to complainant if no action recommended

• Cover letters or transmittal memorandums (Page 7-26)
• Memorandum of Investigation
• Exhibits (Page 7-3)

• Section 110 recommending prosecution
• Three copies
• Section 110 recommending civil penalty
• Two copies
• Section 110 recommending no action
• Copy of report and letter to operator (Page 7-29)

• Provide an additional copy for any Section 105(c) cases referred to:
• NLRB
• ESA
• EEOC
• Refer all FOIA requests for case files to TCIO and provide additional copy, if requested

• Section 105(c) referred to TCIO for action
• Refer case to Regional Solicitor and recommend case filed with FMSHRC
• Request additional information from district
• Close the case
• Mail notification letter to complainant

• Section 110 cases referred for action
• Refer case to SOL and recommend civil penalty
• Refer case to MSHA SOL and recommend prosecution
• TCIO and criminal counsel in MSHA SOL office will confer with district
• TCIO, MSHA SOL and the district will work together to refer case to Department of Justice (AUSA)

• Request additional information from district
• Close case without further action
• When there is a disagreement between TCIO and the district
• TCIO will present case to Administrator
• Case will be forwarded to MSHA SOL or closed

• E12 – Knowing/willful Investigations (110)
• E05 – Injunctive Actions or Other SI activities (108)
• E11 – Discrimination Investigation
• T03 – Legal Hearings/Documents

• Complaint Processor will complete applicable items 1-19 (Pages 7-22 thru 7-25)
• Item 14 – Every referral will be documented

Date, name, and title

• Item 15 – The event number will be clearly noted in this section

• Case Diary
• Date: The date action occurred
• Action: The particular activity performed
• Place: Where activity was performed
• Hours: Time spent on activity
• Initials: Initials of person performing activity
• This includes EACH person involved in activity

• Case files referred for criminal prosecution will not be reviewed by regional solicitors
• When a case is not referred for action, the Solicitor’s office may ask to review file in preparation for litigation of underlying violations
• Attach Memorandum (Page 7-30)

• Complaint Processor or SSI will compose a letter to agent notifying him/her the agency may propose a civil penalty (Page 7-29)
• 10 days to request conference
• Mailed certified; return receipt

• If the agent requests a conference, it will be scheduled with the DM or his designee
• Confirmation letter will be mailed to agent (Page 7-32)
• If no request is received, letter will be mailed to TCIO (Page 7-33)

• If a conference was conducted, DM will notify TCIO (Page 7-33)
• Date
• Location
• Person conducting conference
• Documents submitted
• Conference notes
• Findings