Powell Mountain Coal Company, Inc.

Plain-English summary

Powell Mountain Coal moved to dismiss Jerry Polly's discrimination complaint, arguing that he filed it after the 30-day deadline following MSHA's determination. Judge David F. Barbour found that the Commission received Polly's complaint on May 13, 2002, before the deadline, even though service on Powell was apparently late. The judge denied the motion to dismiss and ordered Powell to file an answer within 30 days.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.7(a); 30 U.S.C. § 815(c)(3)
• Outcome: The motion to dismiss was denied, and Powell Mountain was ordered to answer the complaint within 30 days.
• Key point: Timely filing with the Commission was not defeated by a likely service error where the pro se complainant's complaint reached the Commission before the statutory deadline.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3868
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

                                      August 13, 2002

JERRY POLLY, : DISCRIMINATION PROCEEDING
Complainant, :
v. : Docket No. KENT 2002-253-D
:
POWELL MOUNTAIN COAL : BARB-CD-2002-04
COMPANY, INC., :
Respondent : Mine: Kentucky Wallins Mine

                    ORDER DENYING MOTION TO DISMISS
                 ORDER TO RESPONDENT TO FILE AN ANSWER

Before: Judge Barbour

    On July 17, 2002, the Respondent, Powell Mountain Coal Company, Inc. (“Powell”),

filed a motion to dismiss the above captioned discrimination case. In support of the motion,
Powell asserts the Complainant, Jerry Polly, failed to file a discrimination complaint with the
Commission within 30 days notice by the Mine Safety and Health Administration (“MSHA”)
that no violation occurred under Section 105(c) of the Mine Act (“the Act”). Resp. Mot. at 1.
Powell argues that Polly was required to file a complaint with the Commission by May 15, 2002,
but Polly did not mail the complaint until June 4, as shown by a copy of the envelope. Mot. at 2;
Resp. Exhibit 4.

    Section 105(c)(3) of the Act states in pertinent part: “[i]f the Secretary, upon

investigation, determines that the provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the Secretary’s determination, to file
an action in his own behalf before the Commission, charging discrimination.” 30 U.S.C. §
815(c)(3).

    The record indicates, as Powell correctly states in its motion, that MSHA’s letter is dated

April 15, 2002, and, therefore, Polly had until May 15, 2002, to file a complaint with the
Commission. However, Powell is mistaken in asserting that Polly did not timely file a
complaint. My office received Polly’s complaint on May 13, 2002, two days before the deadline.
Subsequently, on May 14, 2002, I sent a letter to Polly - as is normal practice - instructing him to
file additional information, within 30 days, including a copy of the return receipt indicating he
had sent a copy of the complaint to Powell. If Polly had not already sent a copy of the complaint
to Powell, I instructed him, in the alternative, to do so via certified mail, return receipt requested.
My office timely received the required information on June 14, 2002.
Thus, the record clearly indicates that Polly was in compliance with MSHA’s April 15

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letter and my May 14 letter. Polly timely filed his documents with my office. Polly’s apparent
error was in failing to timely serve Powell with a copy of the complaint, an error that likely was
the root of Powell’s belief that Polly did not timely file a complaint. Commission Rule 7(a) (29
C.F.R. § 2700.7(a)) requires all documents filed with the Commission to be served on all parties.
However, Polly, who is appearing pro se, may have been unaware of the rule. He is now, and I
expect him to fully comply in the future.

   In light of the foregoing, Powell’s motion to dismiss is DENIED.

    Further, Powell is ORDERED to file an answer to the complaint within 30 days of the

date of this order.

                                         David F. Barbour
                                         Chief Administrative Law Judge

Distribution:

Jerry W. Polly, HC 61,Box 199, Pinevelle, KY 40977 (Certified Mail)

Marco M. Rajkovich, Jr., Esq., Melanie J. Kelpatrick, Esq., Noelle M. Holladay, Esq., Wyatt,
Tarrant & Combs, LLP, 1600 Lexington Financial Center, Lexington, KY 40507 (Certified Mail)

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