29 Cfr 1981.103

§ 1981.103

29 CFR Ch. XVII (7–1–05 Edition)

request, engaged in any of the activities specified in paragraphs (b)(1)
through (5) of this section.
(b) It is a violation of the Act for any
employer to intimidate, threaten, restrain, coerce, blacklist, discharge or
in any other manner discriminate
against any employee because the employee has:
(1) Provided, caused to be provided,
or is about to provide or cause to be
provided to the employer or the Federal Government, information relating
to any violation or alleged violation of
any order, regulation, or standard
under chapter 601, subtitle VIII of title
49 of the United States Code or any
other Federal law relating to pipeline
safety;
(2) Refused to engage in any practice
made unlawful by chapter 601, in subtitle VIII of title 49 of the United
States Code or any other Federal law
relating to pipeline safety, if the employee has identified the alleged illegality to the employer;
(3) Provided, caused to be provided,
or is about to provide or cause to be
provided, testimony before Congress or
at any Federal or State proceeding regarding any provision (or proposed provision) of chapter 601, subtitle VIII of
title 49 of the United States Code or
any other Federal law relating to pipeline safety, or testimony in any proceeding under chapter 601, subtitle VIII
of title 49 of the United States Code or
any other Federal law relating to pipeline safety, or a proceeding for the administration or enforcement of any requirement imposed under chapter 601,
subtitle VIII of title 49 of the United
States Code or any other Federal law
relating to pipeline safety;
(4) Commenced, caused to be commenced, or is about to commence or
cause to be commenced a proceeding
under chapter 601, subtitle VIII of title
49 of the United States Code or any
other Federal law relating to pipeline
safety, or a proceeding for the administration or enforcement of any requirement imposed under chapter 601, subtitle VIII of title 49 of the United
States Code or any other Federal law
relating to pipeline safety; or
(5) Assisted or participated or is
about to assist or participate in any
manner in such a proceeding or in any

other action to carry out the purposes
of chapter 601, subtitle VIII of title 49
of the United States Code or any other
Federal law relating to pipeline safety.
(c) This part shall have no application to any employee of an employer
who, acting without direction from the
employer (or such employer’s agent),
deliberately causes a violation of any
requirement relating to pipeline safety
under chapter 601, subtitle VIII of title
49 of the United States Code or any
other Federal law.
§ 1981.103 Filing
complaint.

of

discrimination

(a) Who may file. An employee who
believes that he or she has been discriminated against by an employer in
violation of the Act may file, or have
filed by any person on the employee’s
behalf, a complaint alleging such discrimination.
(b) Nature of filing. No particular
form of complaint is required, except
that a complaint must be in writing
and should include a full statement of
the acts and omissions, with pertinent
dates, which are believed to constitute
the violations.
(c) Place of filing. The complaint
should be filed with the OSHA Area Director responsible for enforcement activities in the geographical area where
the employee resides or was employed,
but may be filed with any OSHA officer
or employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet
address:
http://
www.osha.gov.
(d) Time for filing. Within 180 days
after an alleged violation of the Act occurs (i.e., when the discriminatory decision has been both made and communicated to the complainant), an employee who believes that he or she has
been discriminated against in violation
of the Act may file, or have filed by
any person on the employee’s behalf, a
complaint alleging such discrimination. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the
date of filing; if the complaint is filed
in person, by hand-delivery or other
means, the complaint is filed upon receipt.

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Occupational Safety and Health Admin., Labor
(e) Relationship to section 11(c) complaints. A complaint filed under the
Pipeline Safety Act that alleges facts
which would constitute a violation of
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 660(c), will
be deemed to be a complaint filed
under both the Pipeline Safety Act and
section 11(c). Similarly, a complaint
filed under section 11(c) that alleges
facts that would constitute a violation
of the Pipeline Safety Act will be
deemed to be a complaint filed under
both the Pipeline Safety Act and section 11(c). Normal procedures and timeliness requirements for investigations
under the respective laws and regulations will be followed.
§ 1981.104 Investigation.
(a) Upon receipt of a complaint in the
investigating office, the Assistant Secretary will notify the named person of
the filing of the complaint, of the allegations contained in the complaint,
and of the substance of the evidence
supporting the complaint (redacted to
protect the identity of any confidential
informants). The Assistant Secretary
will also notify the named person of his
or her rights under paragraphs (b) and
(c) of this section and paragraph (e) of
§ 1981.110. A copy of the notice to the
named person will also be provided to
the Department of Transportation.
(b) A complaint of alleged violation
shall be dismissed unless the complainant has made a prima facie showing
that protected behavior or conduct was
a contributing factor in the unfavorable personnel action alleged in the
complaint.
(1) The complaint, supplemented as
appropriate by interviews of the complainant, must allege the existence of
facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a protected activity or conduct;
(ii) The named person knew or suspected, actually or constructively, that
the employee engaged in the protected
activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that the
protected activity was a contributing
factor in the unfavorable action.

§ 1981.104

(2) For purposes of determining
whether to investigate, the complainant will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the named
person knew or suspected that the employee engaged in protected activity
and that the protected activity was a
contributing factor in the unfavorable
personnel action. Normally the burden
is satisfied, for example, if the complaint shows that the adverse personnel action took place shortly after
the protected activity, giving rise to
the inference that it was a factor in the
adverse action. If the required showing
has not been made, the complainant
will be so advised and the investigation
will not commence.
(c) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section, an
investigation of the complaint shall
not be conducted if the named person,
pursuant to the procedures provided in
this paragraph, demonstrates by clear
and convincing evidence that it would
have taken the same unfavorable personnel action in the absence of the
complainant’s protected behavior or
conduct. Within 20 days of receipt of
the notice of the filing of the complaint, the named person may submit
to the Assistant Secretary a written
statement and any affidavits or documents substantiating his or her position. Within the same 20 days, the
named person may request a meeting
with the Assistant Secretary to
present his or her position.
(d) If the named person fails to demonstrate by clear and convincing evidence that it would have taken the
same unfavorable personnel action in
the absence of the behavior protected
by the Act, the Assistant Secretary
will conduct an investigation. Investigations will be conducted in a manner that protects the confidentiality of
any person who provides information
on a confidential basis, other than the
complainant, in accordance with part
70 of title 29 of the Code of Federal
Regulations.

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