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Discrimination Complaints & Case Files Handbook PH05-I-4, Chapters 2 and 7. Judy R. Peters peters.judy@dol.gov 570-831-7543. Intent of Congress Miners would have an active part in the enforcement of the Mine Act to have a truly effective mine S&H program. Protected Class. Miners

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discrimination complaints case files handbook ph05 i 4 chapters 2 and 7

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

Judy R. Peters

peters.judy@dol.gov

570-831-7543

slide2
Intent of Congress Miners would have an active part in the enforcement of the Mine Act to have a truly effective mine S&H program.
protected class
Protected Class
  • Miners
  • Representative of Miners
  • Applicants for a mining position
    • Protected from retaliation for engaging in safety and health related activities
protected activity
Protected Activity
  • 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

priority
Priority
  • 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
section 428 title iv
Section 428, Title IV
  • Prohibits discrimination against coal miners who are suffering from pneumoconiosis
    • Only underground coal miners
  • Administered by the Employment Standards Administration (ESA)
agreement with esa
Agreement with 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
agreement with nlrb
Agreement with NLRB
  • 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
processing complaints
Processing 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
confidentiality
Confidentiality
  • 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
receiving complaints
Receiving Complaints
  • 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)
lost wages or employment
Lost Wages or Employment
  • 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
in person
In person
  • 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
by telephone
By Telephone
  • 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
by mail
By Mail
  • 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
form 2000 123
Form 2000-123
  • 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
form 2000 124
Form 2000-124
  • 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
redacting form 2000 124
Redacting Form 2000-124
  • Copy Form 2000-124
    • Complaint Processor will remove any information identifying a miner or witness
    • Name or nick-name
    • Job Title
    • Characteristics
group complaints
Group Complaints
  • 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
referrals to different districts
Referrals to Different Districts
  • 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
assigning case numbers
Assigning Case Numbers
  • 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)
notification letters
Notification Letters
  • 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)
general investigative procedures
General Investigative Procedures
  • Investigation must address five elements of discrimination (Page 2-30)
    • Protected Class
    • Protected Activity
    • Adverse Action
    • Nexus
    • Operator’s Defense
protected class24
Protected Class
  • 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
protected activity25
Protected Activity
  • 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
protected activity cont d
Protected Activity, cont’d
  • 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
burden of proof
Burden of Proof
  • 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
discriminatory acts
Discriminatory Acts
  • 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
discriminatory acts cont d
Discriminatory Acts, Cont’d
  • 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
nexus
Nexus
  • 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 s defense
Operator’s Defense
  • 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
timeframes
Timeframes
  • 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)
temporary reinstatements
Temporary Reinstatements
  • 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
tr standard of proof
TR Standard of Proof
  • 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
case on the merits
Case on the Merits
  • Sixty Days – TCIO complete review and refer to SOL or decline
  • Ninety Days – SOL must file a complaint with FMSHRC or decline
withdrawn complaints
Withdrawn Complaints
  • 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
withhdrawn complaints cont d
Withhdrawn Complaints, cont’d
  • 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
case files
Case Files
  • 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)
case files cont d
Case Files, cont’d
  • 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)
case files cont d40
Case Files, cont’d
  • 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
case files cont d41
Case Files, cont’d
  • 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
hazardous conditions
Hazardous Conditions
  • 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
original case file
Original Case File
  • 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
section 105 c case file
Section 105(c) Case File
  • Cover letters or transmittal memorandums (Page 7-27)
  • Memorandum of Investigation
  • Exhibits (Page 7-2)
number of case files to tcio
Number of Case Files to TCIO
  • 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
section 110 case file
Section 110 Case File
  • Cover letters or transmittal memorandums (Page 7-26)
  • Memorandum of Investigation
  • Exhibits (Page 7-3)
number of case files
Number of Case Files
  • 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)
exceptions
Exceptions
  • 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
tcio review
TCIO Review
  • 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
tcio review cont d
TCIO Review, cont’d
  • 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)
tcio review cont d51
TCIO Review, cont’d
  • 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
msis codes
MSIS Codes
  • E12 – Knowing/willful Investigations (110)
  • E05 – Injunctive Actions or Other SI activities (108)
  • E11 – Discrimination Investigation
  • T03 – Legal Hearings/Documents
msha form 2000 158
MSHA Form 2000-158
  • 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 cont d
Case Diary, cont’d
  • 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
solicitor review of case file
Solicitor Review of Case File
  • 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)
agent conference rights
Agent Conference Rights
  • 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
agent conference request
Agent Conference Request
  • 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)
agent conference
Agent Conference
  • If a conference was conducted, DM will notify TCIO (Page 7-33)
    • Date
    • Location
    • Person conducting conference
    • Documents submitted
    • Conference notes
    • Findings