Date: 04/21/06 18:46:15
To: Scott Linsley
Subject: Fw: "NEW EVIDENCE" OF MY VRRA CLAIMS SUBMITTED TO MR. BEADLE AND A COPY SENT TO YOU FOR REINVESTIGATION
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Date: 04/21/06 18:46:15
To: Scott Linsley
Subject: Fw: "NEW EVIDENCE" OF MY VRRA CLAIMS SUBMITTED TO MR. BEADLE AND A COPY SENT TO YOU FOR REINVESTIGATION |
Dear Mr. Wilson:
I am sending you a copy of the most recent email from Mr. Beadle, ADVET, of your Santa Monica VETS office. Mr. Beadle has made many requests as to the method and manner in which I am to submit my "new evidence" for reinvestigation.
He does not seem to be very accommodating and some of his requests are onerous and burdensome. However, I tried my best to satisfy his requests and requirements but was unable to comply with all of them.
I do not feel that I should have to send the evidence via FedEx or UPS. The U.S. Post Office's Priority Mail should be more than adequate.
I did not know that there was a time limit to present my "new evidence" to him as he did not state that requirement in his previous emails. My VETS file verifies that, in the past, the DOL/LMSA and DOL/VETS took months and sometimes years to investigate and respond, to me, on "new evidence" which I presented to them for consideration.
The Secretary of Labor and the DOL/VETS are mandated to assist veterans with their complaints and provide technical assistance. Which I have continuously requested. They are also allowed to request assistance from other Federal agencies (OFCCP - VEVRAA) in similar or related activities.
I cite here from the newly amended USERRA rules, 20 CFR Part 1002, effective January 18, 2006. The Sections listed below which support my claims and warrant a reinvestigation of my case.
III. Prior Laws and Interpretation
USERRA was enacted in part to clarify prior laws relating to the reemployment rights of service members, rights that were first contained in the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C. 301, et seq. USERRA's immediate predecessor was the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) of 1974, 38 U.S.C. 2021-2027 (later recodified at 38 U.S.C. 4301-4307 and commonly referred to as the Veterans' Reemployment Rights Act ``VRRA''), which was amended and recodified as USERRA. (See Exhibit "1" in "New Evidence" and my employer's failure to comply with the laws governing veterans' rights; VEVRAA)
In construing USERRA and these prior laws, courts have followed the Supreme Court's admonition that: This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. * * * And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act. See Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 285 (1946), cited in Alabama Power Co. v. Davis, 431 U.S. 581, 584 -85 (1977); King v. St. Vincent's Hosp., 502 U.S. 215, 221 n.9 (1991). The Department intends that this interpretive maxim apply with full force and effect in construing USERRA and these regulations.
Subpart F--Compliance Assistance, Enforcement and Remedies
Compliance Assistance
USERRA authorizes the Secretary of Labor to provide assistance to any person regarding the employment and reemployment rights and
benefits provided under the statute. 38 U.S.C. 4321. The Secretary acts through the Veterans' Employment and Training Service (VETS). USERRA promotes the resolution of complaints without resort to litigation. In order to facilitate this process, section 4321 allows VETS to request assistance from other Federal and State agencies and volunteers engaged in similar or related activities. Section 1002.277 describes VETS' authority to provide assistance to both employees and employers. VETS' assistance is not contingent upon the filing of a USERRA complaint.
The regulation also contains the procedures for processing a complaint. See section 1002.289. VETS provides technical assistance to a potential claimant upon request, and his or her employer if appropriate. 38 U.S.C. 4322(c). Technical assistance is not limited to filing a complaint; it also includes responding to requests for information on specific issues that are not yet part of a formal USERRA complaint. Once an individual files a complaint, VETS must conduct an investigation. If the agency determines that a violation of USERRA has occurred, VETS undertakes ``reasonable efforts'' to effectuate compliance by the employer (or other entity) with its USERRA obligations. Section 1002.289-.290; 38 U.S.C. 4322(d). VETS notifies the claimant of the outcome of the investigation and the claimant's right to request that VETS refer the case to the Attorney General. See 38 U.S.C. 4322(e), 4323.
Section 4322(e) of USERRA requires that the Department ``shall notify the person who submitted the complaint'' of the results of the investigation if the Department is unable to resolve the complaint, and section 1002.290 reflects this mandate. Further, in those cases in which VETS' investigation indicates that a violation of USERRA has occurred, VETS must make reasonable efforts to resolve the complaint by ensuring that the employer comes into compliance. See 38 U.S.C. 4322(d). As a practical matter, efforts to achieve compliance would necessitate notice to the employer and an opportunity to discuss the investigative findings.
Section 1002.289 sets forth VETS' authority to use subpoenas in connection with USERRA investigations. VETS may (i) require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation; and (ii) enforce the subpoena by requesting the Attorney General to apply to a district court for an appropriate order. 38 U.S.C. 4326(a)-(b). VETS' subpoena authority does not apply to the judicial or legislative branch of the Federal Government. 38 U.S.C. 4326(d). (An option never utilized by VETS in the investigation of my case)
With respect to remedies, the court has broad authority to protect the rights and benefits of persons covered by USERRA. The court may order the employer to comply with USERRA's provisions; compensate the claimant for lost wages and/or benefits; and pay additional, liquidated, damages equivalent to the lost wages/benefits if it determines that the employer's violation is willful. 38 U.S.C. 4323(d)(1). The legislative history establishes that ``a violation shall be considered to be willful if the employer or potential employer `either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [provisions of this chapter].' '' H.R. Rep. No. 103-65, Pt. I, at 38 (1993), quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993) (holding that a violation of the ADEA is willful if the employee either knew or showed reckless disregard for whether the statute prohibited its conduct); see also Fink v. City of New York, 129 F.Supp.2d 511, 523-25; Duarte v. Agilent Technologies, Inc., 366 F.Supp.2d 1039, 1048. Section 1002.312 lists the possible remedies allowed under section 4323(d). Section 1002.313 states that compensation consisting of lost wages, benefits or liquidated damages derived from any action brought on behalf of the United States shall be paid directly to the aggrieved individual. Finally, the court may use its equity powers to enforce the rights guaranteed by USERRA. 38 U.S.C. 4323(e); section 1002.314.
In conclusion, I mailed, to you, an identical copy of my "New Evidence" which was also sent to Mr. Beadle today. In the cover letter, to you, I requested that you and your staff, at the National Office of VETS, investigate my claim in conjunction with Mr. Beadle. You told me, in our phone conversation at the beginning of this year, to call upon you if I need any help or further assistance. I am, at this time, humbly requesting your help and assistance in this matter since you are the Chief of the "Investigations and Compliance" Division of VETS.
Thank you.
Sincerely,
Wes Brickner
Mr. Brickner:
On March 20, 2006, I sent you an email (see below) indicating that I had completed my review of your VRRA case file and requesting that you send the "new evidence" in support of your allegations that you referenced on your most recent USERRA claim form. On Thursday, April 20, it will have been one month since that request was made, and this office has not yet received the requested documentation.
As we previously discussed, in order to properly investigate your claim it is necessary for you to submit new and material evidence substantiating the allegations you have raised in your complaint. As you are aware, your complaint has been reopened and closed on a number of prior occasions. In each instance, the VETS investigators, Department Solicitors and Assistant U.S. Attorneys all concluded that the evidence of record failed to support your allegations, and decisions were made not to pursue the matter further.
At this time, the evidence of record does not contain any additional documents or other material that have not been fully considered. Accordingly, you must submit new evidence which has not been previously associated with your claims file, and which is probative, e.g., would tend to prove or substantiate the allegations you have raised. You have indicated on several occasions that you are in possession of such evidence. Please forward that material to this office at the address indicated in my March 20 email, below, via either FedEx or UPS as soon as possible in order that it can be reviewed and considered. If you fail to submit the requested new and material evidence, as described above, by no later than April 24, 2006, VETS will have no choice but to administratively close your case until such time as the necessary evidence is submitted.
Thank you for your timely attention to this matter.
Sincerely,
Michael Beadle
Assistant Director, VETS
U.S. Department of Labor
(310) 576-6444
______________________________________________
From: Beadle, Michael - VETS REMOTES
Sent: Monday, March 20, 2006 1:36 PM
To: Wes Brickner
Subject: VRRA/USERRA Claim / Brickner v. PMA
Mr. Brickner,
I have completed my review of your VRR/USERRA claims, including the previously rendered opinions of the Solicitor's Office and the Department of Justice. I would now like to review the "new evidence" that you have acquired in support of your allegations.
Please FedEx or UPS your new evidence to:
Michael Beadle/ADVET
USDOL/VETS
914 Broadway
Santa Monica, CA 90401
To ensure clarity and to expedite the review process, please assign an "Exhibit #" to each piece of new evidence. On a separate piece of paper please create an "Exhibit List" showing the exhibits in numerical sequence. Under each exhibit on the Exhibit List" please provide a brief description of the new evidence and how it supports your allegations.
Do not send documents that are already contained in your case file or that do not support your allegations.
Once the requested new evidence has been received and reviewed by this office you will be contacted with additional questions and/or to arrange a meeting to discuss your claim.
Your timely cooperation in following the procedure outlined above is appreciated.
Michael Beadle
Assistant Director, VETS
U.S. Department of Labor
(310) 576-6444