The Coteau Properties Co.

Plain-English summary

Royal Sargent alleged that The Coteau Properties Co. suspended him, transferred him, restricted his job availability, and placed him on probation after he raised safety issues. His initial discrimination complaint to MSHA was filed 49 days beyond the stated 60-day period. Judge Michael E. Zielinski held that affidavits raised genuine factual issues about whether Sargent misunderstood the filing requirement and whether company statements deterred him from filing on time. He denied the motion to dismiss and issued a prehearing order for the case to proceed.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 815(c)(2); 29 C.F.R. §§ 2700.1 and 2700.67
• Outcome: The motion to dismiss was denied, and the discrimination case was set for further proceedings.
• Key point: Evidence about misunderstanding, notice, and possible deterrence can require a hearing on justifiable circumstances for a late discrimination complaint.

Full text (FMSHRC public release)

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

          OFFICE OF ADMINISTRATIVE LAW JUDGES
                 2 SKYLINE, Suite 1000
                   5203 LEESBURG PIKE
             FALLS CHURCH, VIRGINIA  22041


                     April 4, 2000

SECRETARY OF LABOR : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2000-96-D
ON BEHALF OF ROYAL SARGENT, : DENV CD 99-03
Complainant :
v. :
:
THE COTEAU PROPERTIES CO., : Freedom Mine
Respondent : Mine ID 32-00595

             ORDER DENYING MOTION TO DISMISS
                    PREHEARING ORDER

 This case is before me on an amended complaint filed by the

Secretary of Labor on behalf of Royal Sargent, alleging that
Respondent, The Coteau Properties Co, had discriminated against
him in violation of section 105(c)(1) of the Federal Mine Safety
and Health Act of 1977 (the "Act"), 30 U.S.C. § 815(c)(1).
Sargent alleged that, on August 3, 1998, he had been suspended
for five days because he brought safety issues to Respondent's
attention. He also claims that on August 10, 1998, he was
subjected to an involuntary job transfer and restrictions on job
availability, and was placed on probationary status. Sargent
filed his initial written complaint of discrimination with the
Mine Safety and Health Administration ("MSHA") on November 20,
1998, 49 days beyond the statutorily prescribed 60 day period.[1]
On December 21, 1999, a complaint alleging discrimination was
filed with the Commission.

 Respondent filed an Answer and a motion to dismiss the

complaint asserting that Sargent did not timely file his
complaint with the Secretary.[2] The Secretary opposed the motion
, claiming that there were justifiable circumstances to excuse
the late filing. On February 28, 2000, the undersigned
Administrative Law Judge found that Complainant had failed to
submit evidence that could establish justifiable circumstances
for the late filing and issued an Order to Show Cause Why the
Complaint Should Not be Dismissed. Complainant filed a response
to the Order, submitting affidavits from himself, his brother and
an MSHA official. Respondent submitted a reply. For the reasons
set forth below, I find that Complainant has submitted competent
evidence demonstrating the existence of genuine issues with
respect to facts material to whether there were justifiable
circumstances for his late filing and deny Respondent's motion
to dismiss.

                  The Motion to Dismiss

 The Order to Show Cause noted that Respondent's motion

to dismiss would be treated as a motion for summary decision
pursuant to Commission Rule 2700.67. Section (b) of the Rule
provides that the motion can be granted only if the entire
record shows:

 (1) That there is no genuine issue as to any material
 fact; and

 (2) That the moving party is entitled to summary decision as
 a matter of law.

Rule 2700.67(c) further provides that: "Supporting and opposing
affidavits shall be made on personal knowledge and shall show
affirmatively that the affiant is competent to testify to the
matters stated."

 The Order to Show Cause addressed the deficiencies in

Complainant's opposition to the motion, specifically, that the
affidavit relied on was not based upon personal knowledge and did
not show that the affiant was competent to testify to the matters
stated. As a result, it was concluded that there was no reliable
evidence that Complainant "misunderstood or was mislead as to his
rights or obligations under the Act." Order, at p. 5.

 The affidavits submitted in response to the Show Cause

Order, in contrast, present direct evidence based upon personal
knowledge that Complainant misunderstood his rights and
obligations under the Act and was affirmatively deterred by
Respondent from exercising those rights in a timely fashion.
These facts, if ultimately established, would constitute
justifiable circumstances for the untimely filing of his
discrimination complaint with MSHA.

 Respondent continues to argue that Complainant was, or at

least should have been, aware of his rights and has submitted
competent evidence that the rights of miners under the Act had
been included as part of new miner training at the time
Complainant was hired in 1985 and that notice of such rights was
posted on a bulletin board in an area that Complainant
frequented. However, the facts relied upon by Respondent do
not conclusively establish that Complainant was fully aware of
his rights under the Act. While Complainant has not directly
refuted those contentions, he denies any recollection of new
miner training on the topic of rights under the Act and, at least
indirectly, the contents of the poster. There is no evidence
that Complainant had read the poster, which had been on the
bulletin board for many years. In any event, the poster does not
clearly convey the concept that a discrimination complaint must
be filed within 60 days of the adverse action. The poster read,
in pertinent part:

 If you believe you have been punished for using your
 safety and health rights, you or your representative
 should file a complaint with MSHA.  The complaint
 should be filed in writing, within 60 days.  (Emphasis
 supplied)

FOOTNOTES

 [1] 30 U.S.C. § 815(c)(2).

 [2] Respondent   also  argued  that  the  Secretary  lacked

authority to reopen her investigation and file the eventual
complaint. In response to the motion, the Secretary provided
factual information that undercut the premise of that argument.
By failing to address the Secretary's response, as directed in
the Order to Show Cause, Respondent has abandoned this argument.

 The use of the permissive term "should" is not likely to

inform an average miner that filing a complaint with MSHA within
60 days is mandatory and may be critical to his ability to pursue
such a claim. There is no warning of the potentially serious
consequences of failing to file a complaint within 60 days of an
adverse action. The posted language also is unclear as to when
the 60 day period begins to run. There is no statement
identifying the beginning of the time period in the sentence that
contains the "60 days" language.[3] Reference to the preceding
sentence would suggest that it runs from the time the miner forms
a belief that he has been punished for exercising his rights.

 Complainant's denial of present recollection of training

that he may have received when he was hired in 1985 is plausible.
His claims that he was not aware of the 60 day filing requirement
and was proceeding cautiously because of concerns about reprisals
by Respondent are also plausible. His affidavit, and the other
affidavits submitted in response to the Show Cause Order,
establish genuine issues as to the precise extent of his
knowledge and understanding, on and after August 3, 1998, of the
filing requirement and the reasonableness of his actions based
thereon.

 Complainant further asserts in his affidavit that he was

told by Respondent's area manager that he could not talk about
the adverse action with anyone or he could lose his job.
Respondent disputes this assertion. If Complainant's assertion
is accurate, it would lend support to his statements regarding
fear of retaliation and how such concerns prompted him to proceed
cautiously in pursuit of his discrimination claim. It might also
raise an estoppel issue with respect to Respondent's assertion of
the untimely filing defense. Genuine issues exist with respect
to such statements made by Respondent's agents and the
reasonableness of Complainant's interpretation of them.

 As noted above, the affidavits submitted by Complainant in

response to the Show Cause Order present competent evidence
creating genuine issues as to several facts material to the
justifiable circumstances determination. Accordingly,
Respondent's motion to dismiss the complaint is denied.

FOOTNOTES

 [3]  Compare  that language with the corresponding statutory

language: "Any miner * * * who believes that he has been * * *
discriminated against * * * may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging
such discrimination. . . . ." 30 U.S.C. § 815(c)(2) (emphasis
supplied).

                     Prehearing Order

 In accordance with section 105(c) of the Federal Mine Safety

and Health Act of 1977, the "Act," 30 U.S.C. § 815(c) and 29
C.F.R. § 2700.1, et seq., this matter will be called for a
hearing on the merits at a time and place to be designated in a
subsequent notice.

 In preparation for the hearing, the parties are directed

to: (a) confer on the possibility of settlement and endeavor to
stipulate to relevant matters not in dispute; (b) endeavor to
stipulate the issues of fact and law remaining for hearing; (c)
discuss exhibits, and, at the request of a party, produce
exhibits for inspection and copying; (d) endeavor to stipulate
to the admissibility of exhibits, and specify the grounds for
any objections to any exhibit the admissibility of which is not
stipulated to; and, (e) discuss the testimony expected of each
witness (unless privileged). The parties are also invited to
discuss proposals to expedite the submission of evidence or
shorten the proceedings, e.g., the submission of witnesses'
direct testimony in writing.

 The parties shall notify the undersigned Administrative Law

Judge of the results of their efforts on or before May 17, 2000.
The communication may be in writing or by conference call. The
notification shall include each party's: best estimate of the
hearing time required to present it's case and the number of
witnesses it expects to call; a hearing location preference; and,
at least two agreed hearing dates, preferably within the
following 30-60 days. Complainant's counsel shall assure that
the notification is timely made.

 Discovery requests and responses thereto, pursuant to Rule

2700.58, shall not be filed with the Commission. Deposition
transcripts shall not be filed, but shall be retained and
safeguarded by the party noting the deposition. Pertinent
requests and responses shall be set forth verbatim in any motion
to compel or for other relief regarding discovery matters.

 If the matter has not been settled, each party shall file

with the undersigned Administrative Law Judge on or before May
31, 2000, a written prehearing report setting forth: (a) a
statement of the party's case, identifying each contested issue;
(b) any stipulations entered into; (c) a list of witnesses
expected to be called by that party and a synopsis of each
witness' expected testimony (unless privileged); (d) a list of
exhibits[4]; (e) a statement of the grounds of any objection to
an adverse party's exhibits; and, (f) a memorandum of law on any
significant or novel legal issue expected to be raised in the
proceeding.

FOOTNOTES

 [4]  Complainant's  exhibits  shall  be  prefixed  with the

letter "C" and Respondent's exhibits shall be prefixed with the
letter "R". Exhibits shall be numbered consecutively.

 Failure to comply with any part of this prehearing order may

result in sanctions against the defaulting party.

                          Michael E. Zielinski
                          Administrative Law Judge

Distribution:

Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

James A. Lastowka, Esq., McDermott, Will & Emery, 600 13th
Street, N.W., Washington,
D.C. 20006-3096 (Certified Mail)

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