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Friday, February 18, 2005

 

Spector, Santorum, USDOL, Missing Alleged EEOC Investigative File



Members and staff of the House and Senate often assist constituents in their dealings with administrative agencies by acting as facilitators or ``ombudsmen.'' Members may properly communicate with agencies on behalf of constituents:

* to request information or status reports;

* to urge prompt consideration of a matter based on the merits of the case;

* to arrange for appointments;

* to express judgment on a matter (subject to ex parte communication rules); and/or

* to ask for reconsideration, based on law and regulation, of an administrative decision.

The officials should make clear to administrators that action is only being requested to the extent consistent with governing law and regulations.

I contacted Senators Arlen Spector and Rick Santorum (when Mr. Santorum was a member of Congress) and explained in detail the apparent corruption (missing investigative case file). That is, I explained the case (Docket No. 95-CV-00339) where a federal judge in Western Pennsylvania turned a blind eye despite having responsibility for enforcing a consent decree at United States of America v. Port Authority of Allegheny County. I also provided exhibits from a related case (Docket No. 91-CV-1694), and explained the alleged EEOC investigative file that was prematurely purged.

I explained in detail how the U.S. Department of Labor refused delivery of its copy despite a subpoena, FOIA Request and Motion to Compel. See Docket No. 98-CV-230.

In short, the Department of Labor closed its investigation based on the alleged EEOC decision. But, I had proffered to the court, ALJ and USDOL and EEOC, writings that demonstrated no investigation was conducted. I provided copies of the correspondence I received from EEOC that acknowledged it had mistakenly closed my case (without an investigation). EEOC said that it would open the matter for investigation. No other correspondence was issued. The Department of Labor refused to correct its records. Arlen Spector and Rick Santorum accepted the Department of labor's position.

Please note the Department of Labor never considered the political discrmination/retaliation section of the complaint.

Date: October 27, 1999

Case No.: 1999-JTP-20

In the Matter of:

(Name Removed),
Complainant,

v.

DIRECTORATE OF CIVIL RIGHTS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent.

ORDER DISMISSING CASE FOR
WANT OF JURISDICTION

Complainant filed an Emergency Request for Review and Order of Mandamus with the Office of Administrative Law Judges (OALJ) on September 7, 1999. Complainant's request for review is based on the alleged failure of the Directorate of Civil Rights, United States Department of Labor (Respondent) to provide appropriate redress on a complaint filed by Complainant on May 25, 1999, alleging that a JTPA recipient and subrecipient intentionally obstructed the handling of his complaint of race and political discrimination. Subsequently, on September 9, 1999, Complainant filed a Supplemental Emergency Request for Intervention and Order for Mandamus. This supplemental request contends that certain of Complainant's charges were improperly referred to the EEOC, and that the U.S. Department of Labor has jurisdiction and the responsibility to complete an investigation using newly discovered information.

The Complainant's request did not set forth a jurisdictional basis for a review of Respondent's actions, and jurisdiction was not apparent therein. Accordingly, a Notice of Docketing and Order to Brief Jurisdictional Issue was issued on September 16, 1999.

Complainant filed a brief on the jurisdictional issue on October 1, 1999. On October 7, 1999, he filed a reply to Respondent's brief. Complainant maintains that OALJ has authority to review his case on the following grounds:


Complainant contends that his original and/or amended complaint previously decided under subpart E of the regulations clearly charged Section 143 violations based on political discrimination. He further contends that Ms. Lockhart (whether done intentionally or by mistake), issued a 20 C.F.R. section 627.604(b)(2) decision for the Secretary, in reply to Complainant's May 26, 1999 complaint charging inappropriate redress under 20 C.F.R. Sections 627.601(a) saying, among other:

'(Name Removed)'s complaint sent to EEOC and, as presented by (Name Removed), was based on race and not political affiliation.'

Complainant contends, with his 20 C.F.R. Section 627.801 emergency request for review and hearing, the 20 C.F.R. Section 627.604(b)(2) reply modified or reversed all previous USDOL responsive letters that were issued under a procedure set forth at subpart E of the regulations. That is, in regards to the Complainant charge of Section 143 based on political discrimination." Complainant's Brief at 3, 4. Thus, Complainant argues that his entitlement to a hearing is grounded in 20 C.F.R. § 627.603(b)(3), in accordance with sections 166(a) and 144(d) of the Act. Id. at 5.

Respondent filed a brief on October 6, 1999 arguing that OALJ has no jurisdiction to review Respondent's actions in this matter. Respondent explains that the complaint filed by Complainant contains allegations of discrimination by a JTPA grant recipient, and that such complaints are governed by 20 C.F.R. § 627.600(b) which states that "[c]omplaints of discrimination pursuant to section 167(a) of the Act shall be handled under 29 CFR part 34." 29 C.F.R. part 34 provides for a hearing before OALJ only when there has been either a Final Determination on a matter or a Breach of a Conciliation Agreement. See 29 C.F.R. § 34.51(a) and (b)(2). A Final Determination is issued by the Respondent if it is determined that there has been a violation by a grant recipient, and a Conciliation Agreement is a written agreement based on voluntary compliance by a grant recipient after it is determined that there has been a violation. Neither event has occurred here. Rather, Complainant's complaint was referred to the EEOC pursuant to § 34.43(g)(8), and the EEOC determined that there was no merit to the allegations. Respondent then adopted the EEOC's no cause determination, which represents a final agency action of the Department under § 34.43(g)(9)(ii) and is not subject to review by OALJ.

The OALJ has jurisdiction to conduct hearings only where specifically authorized by statute or regulation. 20 C.F.R. § 627.800 outlines the extent of OALJ's jurisdiction over cases arising under the Job Training Partnership Act. Subsection (a) provides that OALJ's jurisdiction only extends to those complainants identified in §§ 141(c), 144(d), 164(f), and 166(a) of the Act. Subsection (b) states that actions arising under § 167 of the Act shall be handled under 29 C.F.R. Part 34. Finally, Subsection (c) provides that "[a]ll other disputes arising under the Act shall be adjudicated under the appropriate recipient or subrecipient grievance procedures or other applicable law."

Complainant's position that OALJ has jurisdiction over his allegation of "section 143 violations based on political discrimination" pursuant to § 144(d) is untenable. Section 144(d) grants OALJ jurisdiction to review the Secretary's decisions decided in accordance with § 143; however, § 143 deals exclusively with labor standards violations and has no bearing on discrimination complaints, no matter what type of discrimination is charged. Hence, Respondent could not have issued a decision on a § 143 allegation under 20 C.F.R. § 627.604(b)(2), either intentionally or inadvertently, as Complainant argues, because the complaint presented for consideration did not allege a labor standards violation pursuant to § 143 of the Act.

All discrimination complaints filed under JTPA, including those alleging political discrimination, are governed by § 167 of the Act, 1 and are processed in accordance with 29 C.F.R. Part 34. 20 C.F.R. § 627.800(b). In the instant case, Respondent determined that it had concurrent jurisdiction with the EEOC over Complainant's allegation of racial discrimination and referred the complaint to the EEOC, as permitted by 29 CFR § 34.43(g)(8). Complainant argues that the EEOC does not have jurisdiction over claims of political discrimination, and therefore Respondent neglected to address his political discrimination allegation. Complainant's Brief at 4. Assuming, arguendo, that the complaint did contain allegations of political discrimination, OALJ is nevertheless unable to review Respondent's handling of the claim. As previously explained herein, Part 34 does not provide for a hearing before OALJ unless there has been either (1) a Breach of a Conciliation Agreement or (2) a Final Determination on a violation by a grant recipient. 20 C.F.R. § 34.51. Neither is present here.

Furthermore, Complainant cannot establish jurisdiction pursuant to §§ 141(c), 164(f), or 166(a) of the Act, as none of these sections are relevant to the case at hand.2 Thus, no section of the Act or regulations provides OALJ with authority to adjudicate Complainant's claim.

Based on the foregoing, the above-captioned matter is hereby DISMISSED for want of jurisdiction.

IT IS SO ORDERED.

Thomas M. Burke
Associate Chief Judge



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