Discrimination Complaints & Case Files

Handbook PH05-I-4, Chapters 2 and 7

Judy R. Peterspeters.judy@dol.gov570-831-7543

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)

51

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

52

MSIS Codes

E12 – Knowing/willful Investigations (110)

E05 – Injunctive Actions or Other SI activities (108)

E11 – Discrimination Investigation T03 – Legal Hearings/Documents

53

MSHA Form 2000-158 Complaint Processor will complete

applicable items 1-19 (Pages 7-22 thru 7-25)

Item 14 – Every referral will be documentedDate, name, and title

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

54

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

55

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)

56

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

57

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)

58

Agent Conference If a conference was conducted, DM

will notify TCIO (Page 7-33) Date Location Person conducting conference Documents submitted Conference notes Findings