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

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

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  1. Discrimination Complaints & Case FilesHandbook PH05-I-4, Chapters 2 and 7 Judy R. Peters peters.judy@dol.gov 570-831-7543

  2. 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.

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

  4. 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

  5. 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

  6. 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)

  7. 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

  8. 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

  9. 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

  10. 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

  11. 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)

  12. 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

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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

  18. 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

  19. 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

  20. 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

  21. 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)

  22. 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)

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

  24. 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

  25. 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

  26. 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

  27. 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

  28. 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

  29. 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

  30. 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

  31. 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

  32. 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)

  33. 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

  34. 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

  35. 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

  36. 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

  37. 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

  38. 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)

  39. 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)

  40. 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

  41. 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

  42. 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

  43. 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

  44. Section 105(c) Case File • Cover letters or transmittal memorandums (Page 7-27) • Memorandum of Investigation • Exhibits (Page 7-2)

  45. 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

  46. Section 110 Case File • Cover letters or transmittal memorandums (Page 7-26) • Memorandum of Investigation • Exhibits (Page 7-3)

  47. 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)

  48. 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

  49. 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

  50. 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)