Koger v.
Directorate of Civil Rights, 1999-JTP-20 (ALJ Oct. 27, 1999)
U.S. Department of
Labor
Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington,
DC 20001-8002
(202) 565-5330 (202) 565-5325 (FAX)
Date: October 27, 1999
Case No.: 1999-JTP-20
In the Matter of:
TODD ELLIOTT KOGER,
Complainant,
v.
DIRECTORATE OF CIVIL RIGHTS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
ORDER DISMISSING CASE FOR
WANT OF JURISDICTION
Todd Elliott Koger (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.
[Page 2]
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:
Mr. Koger 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 Mr.
Koger's May 26, 1999 complaint charging inappropriate redress under 20 C.F.R. Sections
627.601(a) saying, among other:
'Mr. Koger's complaint sent to EEOC and, as presented by Mr. Koger, was based on race
and not political affiliation.'
Mr. Koger 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.
[Page 3]
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.
1 Section 167 prohibits discrimination
under JTPA based upon race, color, religion, sex, national origin, age, disability, or political
affiliation or belief. 29 USCA § 1577(a)(2) (1999).
2 Section
141(c) of the Act outlines specific restrictions on the use of JTPA funds; section 164(f) provides
a JTPA recipient with an expedited hearing upon the determination by the Secretary that the
immediate termination or suspension of financial assistance is necessary; and section 166(a)
grants a hearing to either (1) an applicant for JTPA funds when the Secretary has determined not
to award funds, or (2) a recipient of JTPA funds when a corrective action or a sanction has been
imposed by the Secretary.