Reintjes of the South, Inc.

Plain-English summary

James C. Keys alleged that Reintjes of the South fired him after he complained about mine safety and training. He filed a discrimination complaint with MSHA more than two years after the alleged firing, even though the Mine Act generally allows 60 days for that filing. The judge found the delay unjustified and prejudicial to the company's ability to defend, while finding that Keys timely filed his later complaint with the Commission after receiving MSHA's no-violation determination. The Commission complaint was dismissed because the earlier filing with MSHA was untimely.

Decision snapshot

• Cited standard(s): 30 U.S.C. §§ 815(c)(2) and 815(c)(3), and 29 C.F.R. § 2700.41
• Outcome: The discrimination complaint was dismissed because the filing with MSHA was more than two years late and the delay was not justified.
• Key point: Timely filing with the Commission did not cure the failure to file the underlying discrimination complaint with MSHA within the statutory period.

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



                                    October 13, 1999

JAMES C. KEYS, JR., : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. CENT 99-267-DM
:
REINTJES OF THE SOUTH, INC., : SC MD 99-07
Respondent :
: Ormet Primary Aluminum
: Mine ID 16-00354 FDP

                                      DECISION

Before: Judge Zielinski

     James C. Keys, Jr. ("Keys" or "Complainant") initiated this proceeding by filing a

complaint of discrimination pursuant to section 105(c)(3) of the Federal Mine Safety and Health
Act of 1977 (the "Act"), 30 U.S.C. § 815(c)(3). Complainant alleges that Reintjes of the South,
Inc.("Reintjes" or "Respondent"), discriminated against him as a result of his complaints
regarding alleged violations of the Act made on November 22, 1996, the day he allegedly
suffered a work-related injury when a fellow employee deliberately sprayed him with caustic
material. The essence of his cause of action, as deduced from the pro se complaint and attached
documents, is that he was fired on November 22, 1996, after complaining to a Reintjes official
that it had failed to train employees as required by the Act.1

    Keys filed a discrimination complaint with the Mine Safety and Health Administration

("MSHA") on February 16, 1999, more than 2 years beyond the 60 days allowed by
section 105(c)(2) of the Act. In the interim he failed in an attempt to secure workmen’s
compensation benefits beyond payment of some medical expenses associated with his initial
treatment. MSHA determined that no violation of the Act had occurred and by notice dated
May 24, 1999, advised Complainant of that determination and his right to file an action with the
Commission on his own behalf. Complainant filed the instant complaint with the Commission
on June 30, 1999.

   In response to the complaint, Reintjes filed an answer and a motion to dismiss or in the


   1
    / The complaint states a cause of action of discrimination under the liberal construction

accorded pro se pleadings. See, Clyde Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918
(1996).

Page 2

alternative for summary judgement, arguing, inter alia, that Keys did not timely file either his
complaint with the Secretary or the Commission and that it suffered prejudice as a result.

    Complainant failed to timely respond to the motion, the service copy of which was

eventually returned to Respondent marked "unclaimed." On August 24, 1999, an order was
issued directing Complainant to show cause why Respondent’s motion should not be granted.
The Order to Show Cause was mailed to Complainant by both certified and regular mail and
included a copy of Respondent’s answer and motion. Complainant was specifically directed to
address Respondent’s timeliness arguments and "whether any untimely actions were justified."
During a telephonic status conference on September 1, 1999, the parties acknowledged receipt of
the August 24, 1999 order and the issues raised in the motion were discussed. Particular
emphasis was placed on Complainant’s need to justify any delay in filing his complaints. On
September 2, 1999, a Scheduling Order was entered, reflecting the substance of the discussions
and reiterating the directive that Complainant address the timeliness issues and "submit any facts
or arguments that he relies on as justification for any untimely filing."

   Complainant’s response to the show cause order and motion was received on

September 7, 1999. Respondent filed a reply on September 20, 1999, including affidavits
supporting its claims of prejudice. Complainant did not file a response, as permitted by the
scheduling order.

Filing with the Commission

    Reintjes’ argument that Keys’ complaint was not timely filed with the Commission is

easily disposed of. While the complaint was filed 37 days following the date of the letter noting
MSHA’s finding of no discrimination, the 30 day time period prescribed in section 105(c)(3) of
the Act and Commission Rule 2700.412 commences with receipt of the determination, not the
purported mailing date. Complainant asserts, in his response to the show cause order, that
"someone else" was allowed to sign for the original delivery and that the copy he received was
mailed on June 24, 1999. There is no evidence in the record establishing that Keys actually
received the MSHA letter before June 1, 1999. I find that the complaint was timely filed with the
Commission.3

Filing with the Secretary

   2
    / 29 C.F.R. § 2700.41.
   3
     / Respondent claims that its ability to rebut complainant’s explanation for the allegedly

untimely filing of his complaint was prejudiced because it determined during a phone call on
September 10, 1999, that a witness was then deceased. However, Respondent failed to establish
whether the unavailability of information from the witness is attributable to Keys’ alleged delay of
a few days, or it’s own determination to not pursue an investigation or formal discovery upon receipt
of the complaint. The prejudice claim is rendered moot by the finding that the complaint was timely
filed.

                                             2

Page 3

   Reintjes argument that Keys’ filing of a complaint with the Secretary of Labor’s MSHA

was untimely carries considerably more weight. Section 105(c)(2) of the Act specifies that:

           Any miner * * * who believes that he has been discharged, interfered with,
   or otherwise discriminated against by any person in violation of this subsection
   may within 60 days after such violation occurs, file a complaint with the
   Secretary alleging such discrimination. * * * (emphasis supplied.)

Here, the alleged discriminatory action, Respondent’s firing of Complainant, occurred on
November 22, 1996. Under section 105(c)(2), Complainant’s allegation of discrimination should
have been filed with MSHA on or before January 22, 1997. However, the complaint was not
filed with MSHA until February 16, 1999, 2 years and 26 days beyond the statutory deadline.

    The Commission has held that the 60 day time limit in section 105(c)(2) of the Act is not

jurisdictional and that non-compliance may be excused on the basis of justifiable circumstances.
Hollis v. Consolidation Coal Co., 6 FMSHRC 21 (1984); Herman v. IMCO Services,
4 FMSHRC 2135 (1982). As the Commission stated in Herman, 4 FMSHRC at pp. 2138-39:

          The placement of limitations on the time-periods during which a plaintiff
   may institute legal proceedings is primarily designed to assure fairness to the
   opposing party by :

           Preventing surprises through the revival of claims that have been
           allowed to slumber until evidence has been lost, memories have
           faded, and witness have disappeared. The theory is that even if one
           has a just claim it is unjust not to put the adversary on notice to
           defend within the period of limitations and that the right to be free
           of stale claims in time comes to prevail over the right to prosecute
           them.

   Burnett v. N.Y. Central R.R. Co.,380 U.S. 424, 428 (1965), quoting
   R.R Telegraphers v. REA, 321 U.S. 342, 348-49 (1944). * * *

    The cases dealing with justification for delays in filing identify several factors that are

typically considered, including: complainant’s capacity or ability to initiate and pursue such a
remedy, See, William T. Sinnott, II v. Jim Walter Resources, Inc., 6 FMSHRC 2445 (1994)
(Maurer, ALJ); complainant’s awareness of his rights under the Act, Id.; Hollis, supra.;
Secretary of Labor on behalf of Franco v. W.A. Morris Sand and Gravel, Inc., 18 FMSHRC 278
(1996)(Manning, ALJ)(delay of 107 days justified by prompt filing after complainant first
became aware of rights under the Act, filing of substantially identical allegations in workmen’s
compensation and employment discrimination claims and absence of prejudice to respondent);
Secretary of Labor on behalf of Smith v. Jim Walter Resources, Inc., 21 FMSHRC 359 (1999)
(Melick, ALJ)(10 month delay excused by filing within 65 days of first learning of rights under
section 105(c), no claim of prejudice by respondent); Secretary of Labor on behalf of Gay v.
Ikard-Bandy Co., 18 FMSHRC 341 (1996)(Melick, ALJ)(3 month delay excused by filing 1 day

                                             3

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after first learning of section 105(c) rights and no claim of prejudice); and, the length of the delay
and whether it has resulted in prejudice to a respondent. Prejudice is inherent in any delay,
because witnesses’ recollections fade. See, Sinnott, supra, (delay of over 3 years "inherently
prejudicial"). Consequently, the lengthier the delay, the stronger the justification required to
overcome it. See, Roland A. Avilucea v. Phelps Dodge Corp., 19 FMSHRC 1064, 1067
(1997)(Fauver, ALJ.)("very special circumstances" required to justify delay of over 2 years).
Concrete demonstrable prejudice may also occur, e.g. the unavailability of witnesses or
documents. All such factors must be weighed to reach the ultimate determination of whether, on
the facts of the particular case, the delay was justified. Hollis, supra; Herman, supra.

   The delay here, in excess of 2 years, is truly extraordinary. Complainant has made no

attempt to justify the delay, despite the instructions in the show cause and scheduling orders.
While he claims significant injury, he clearly was not incapacitated and actively pursued his
workmen’s compensation case. He does not claim to have been unaware of his rights under the
Act, and his complaint and related papers evidence considerable familiarity with it’s provisions.4

     Respondent’s ability to defend against the allegations has been prejudiced by the delay.

Evidence of any discussions that Keys may have had with Reintjes officials on or about
November 22, 1996, the only protected activity claimed by Keys, would be critical to
prosecution and defense of the claim. Recollections of any such discussions are likely to have
faded considerably. Respondent has also submitted affidavits establishing that training records
and potential witnesses may no longer be available. However, whether or not there were
training violations and whether or not Keys was injured in the manner he claimed would not
likely become issues in this proceeding. See, Munsey v. FMSHRC, 595 F.2d 735, 742-43
(D.C.Cir 1978)(safety complaints are protected activity even if frivolous or not made in good
faith).5

   4
    / His papers reference; a "Guide Manual to Miners’ Rights and Responsibilities Under the

Federal Mine Safety and Health Act of 1977;" section 110(f)’s criminal penalties for making false
statements; and, training and posting requirements.
5
/ There is no merit to Respondent’s claim of prejudice because its exposure to a back pay
award has been substantially increased by the delay. Respondent is adequately protected by the
requirement of proof of causation for any claimed relief and the doctrine of mitigation of damages.

                                              4

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   Complainant’s primary interest in the present action appears to be obtaining

compensation for damages resulting from the November 1996 injury.6 He was involved in a
lengthy workmen’s compensation proceeding in an attempt to secure compensation. His
complaint to MSHA was submitted only after his workmen’s compensation claim was denied, a
delay of more than 2 years for which he has offered no justification.

                                       ORDER

    Based upon the factors discussed above, Complainant’s delay of more than 2 years

beyond the prescribed period for filing a complaint of discrimination with MSHA was not
justified. Accordingly, the complaint is hereby dismissed.

                                       Michael E. Zielinski
                                       Administrative Law Judge

Distribution:

Mr. James C. Keys, Jr., 1115 Ina Claire Drive, Opelousas, LA 70570 (Certified Mail)

Mark N. Savit, Esq., Adele L. Abrams, Esq., Patton Boggs, LLP, 2550 M Street, NW,
Washington, DC 20037 (Certified Mail)

dcp

   6
    / The response to the Show Cause Order itemizes relief claims of medical expenses of

$4,662.98, lost wages of $83,835.00 and $40,000.00 for pain and mental distress, and states:
* * * * By law, I was injured badly and I am entitled to medical treatment and
wages by the LWCC. I am demanding that they pay me what is owed. * * * *

                                          5