Leslie A. Pride v. Highland Mining Company, LLC

Plain-English summary

Leslie Pride alleged that Highland Mining repeatedly refused to issue reports for back injuries he said occurred at work, preventing him from obtaining workers' compensation and other benefits. Highland sought summary decision based on the late filing, lack of protected activity, lack of adverse action, and the requested remedy. Judge L. Zane Gill held that Highland had not shown material legal prejudice from the delay and that factual disputes remained over whether Pride's requests were protected safety activity and whether the refusals were discriminatorily motivated. He further held that refusing injury reports could qualify as adverse action because it could discourage safety reporting and harm access to benefits. The Judge also concluded that ordering the company to issue the reports was an available Mine Act remedy, so the case would proceed to hearing.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 815(c)(2); 29 C.F.R. § 2700.67(b)
• Outcome: Highland Mining's motion for summary decision was denied, and Pride's discrimination claim was allowed to proceed.
• Key point: A refusal to issue injury reports can support a Mine Act discrimination claim when factual disputes remain about protected activity, adverse action, and motive.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

June 23, 2014

LESLIE
A. PRIDE

Complainant

v.

HIGHLAND
MINING COMPANY, L.L.C.

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. KENT 2010-318-D

MSHA
Case No. MADI CD 2009-11

Mine:
Highland 9 Mine

Mine
ID: 15-02709

ORDER DENYING
MOTION FOR SUMMARY DECISION

Before:                        Judge
Gill

This case is before me
upon a complaint of discrimination, brought under section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (“Act”). Discrimination
proceedings are governed by procedural rules found at 29 C.F.R. Part 2700,
Subpart E (Complaints of Discharge, Discrimination or Interference). The
complainant, Leslie A. Pride (“Pride”), filed an appeal to this court on
December 3, 2009. The operator, Highland Mining Company, L.L.C. (“Highland”),
filed a motion for summary decision on June 29, 2011. After reviewing the
pleadings and the record, I find that Highland is not entitled to judgment as a
matter of law and deny Highland’s motion.

Facts

Pride began working for
Highland on February 23, 2006. Pride V.S. ¶ 1. Pride injured his back
while attempting to lift a 70-pound tank of acetylene during his work at
Highland in August, and again in May, 2006. Id. at 2. After each
incident, Pride requested that Highland write an accident report, and Highland
refused on the grounds that the injury was due to a pre-existing condition and
thus was not work-related. Id.

Following an
examination in October, 2006, Pride’s physician determined that his injury was
work-related, and that he should not continue working. Exhibit A. Pride
ceased working in October, 2006. Id. at 5. Highland offered Pride
payment for sickness and accident benefits beginning in October 2006, with the
stipulation that he would have to pay those benefits back should he obtain
worker’s compensation benefits. Id. at 11. On October 19, 2007, Highland
notified Pride of his suspension with the intent to discharge. Exhibit D. [1]

On April 14, 2009, MSHA
contacted Pride due to ongoing investigations about Highland’s repeated failure
to issue safety reports, and encouraged him to file a discrimination complaint.
Pride V.S. ¶ 9. Following the investigation, MSHA cited Highland for repeated
violations of Title 30 Code of Regulations for failure to issue safety reports.
Exhibit D.

Because he does not
have an injury report on file, Pride has been denied worker’s compensation
benefits. Pride V.S. ¶ 7. Pride has also experienced delays in receiving
UMWA pension, health card, and social security benefits. Id. at 8.

Discussion
of Relevant Law

When considering a
motion for summary decision, the standard is set out in Commission Procedural
Rule 67, which states that a motion for summary decision shall be granted only
if, on the basis of the entire record, there is no genuine issue of material
fact, and the moving party is entitled to summary decision as a matter of law.
29 C.F.R. § 2700.67(b). The Commission “has long recognized that ‘[s]ummary
decision is an extraordinary procedure,”’ and has analogized it to Rule 56 of
the Federal Rules of Civil Procedure, under which “the Supreme Court has
indicated that summary decision is authorized only ‘upon proper showings of the
lack of a genuine, triable issue of material fact.”’ Energy West Mining Co.,
16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC
2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986)).

To establish a prima
facie case of discrimination under Section 105(c) (1)[2] of the Act,
Pride bears the burden of establishing that he engaged in protected activity
and that the adverse action complained of was motivated by that activity. Sec’y
of Labor Ex Rel. Robinette v. United Castle Coal Company, 3 FMSHRC 803
(Apr.1981) (quoting Sec’y of Labor on behalf of Pasula v. Consolidation Coal
Company, 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.
1981)). A prima facie case thus requires evidence sufficient to support
a conclusion that (1) the individual engaged in activity protected under the
Act, (2) the individual suffered adverse action, and (3) the adverse action
complained of was motivated in any part by that activity. See Driessen
v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Pasula, 2
FMSHRC at 2786; Robinette, 3 FMSHRC at 817.

The burden of proof for
a prima facie case “is lower than the ultimate burden of persuasion.” Turner
v. Nat’l Cement of CA, 33 FMSHRC 1059, 1065 (May 2011). Factors considered
in assessing whether a prima facie case exists include the operator's knowledge
of the protected activity, hostility or “animus” towards the protected activity,
timing of the adverse action in relation to the protected activity, and
disparate treatment. Sec’y of Labor on behalf of Green v. D&C Mining
Corp., 33 FMSHRC 243 (Jan. 2011). The prima facie case may be
rebutted by showing either that no protected activity occurred or that the
adverse action was in no part motivated by the protected activity. Robinette,
3 FMSHRC at 818, n. 20.

Analysis

Pride claims that the
discrimination occurred when Highland refused to file the injury reports in
violation of Title 30 of the Code of Federal Regulations. He argues that this
resulted in an unjust denial of his worker’s compensation benefits.

Highland argues that Pride’s
claim should be dismissed as a matter of law for four reasons: that Pride filed
his discrimination complaint in an untimely manner; that he did not engage in
any protected activity; that he did not suffer an adverse employment action;
and that his complaint does not seek a remedy available to him under 105(c).

The dispositive
questions are whether, viewing all of the evidence in the light most favorable
to Pride, there are genuine issues of material fact, and whether Highland is
entitled to judgment as a matter of law. For reasons outlined below, I hold both
that there are genuine issues of material fact, and that Highland is not
entitled to judgment as a matter of law.

I.                  
Untimeliness

Highland argues that
because Pride filed his request approximately two and a half years after the
statutory time period had elapsed, and nearly five years after the alleged
discrimination occurred, his complaint should be dismissed for untimeliness.

Section 105(c)(2) of
the Act states, “any miner… who believes that he has been… 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.”

The
Commission has held that this 60-day time limit may be extended given a showing
of “justifiable circumstances.” Herman v. IMCO Services, 4
FMSHRC 2135, 2137 (Dec. 1982); Hollis v. Consol. Coal Co., 6 FMSHRC 21,
24 (Jan. 1984). There is no bright-line standard for determining whether
justifiable circumstances exist. Circumstances that could establish justifiable
circumstances include the miner bringing the complaint to the attention of
another agency or to his employer within the 60-day period, or the miner
failing to meet the time limit because he is misled about, misunderstands, or
is ignorant of his rights. Hollis at 24.

Pride does not contend that there were
justifiable circumstances that would excuse his delay in filing. However, even
if there are no such circumstances, Highland is not entitled to judgment as a
matter of law for untimeliness because it has not provided evidence that it has
suffered material legal prejudice due to Pride’s delay in filing his
discrimination complaint.

A
complaint may be dismissed, even if justifiable circumstances are shown, where
the mine operator can show prejudice such as loss of critical evidence or
unavailability of a witness. Fulmer v. Mettiki Coal Corp., 30 FMSHRC
523, 525 (June 2008) (ALJ). The Commission has held that evidence of prejudice
is a primary consideration in determining whether to grant an extension. Morgan
v. Arch of Illinois, 21 FMSHRC 1381, 1387 (Dec. 1999). The Commission has
likewise held that, “absent a showing of material legal prejudice,” a complaint
should not be dismissed for untimeliness. Sec’y of Labor on behalf of Nantz
v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208, 2215 (Nov.
1994); see also Sec’y of Labor on behalf of Hale v. 4-A Coal Company,
Inc., 8 FMSHRC 905, 909 (June 1986) (prejudice is the “requisite
foundation” for a dismissal based on untimeliness); Sec’y of Labor v. Salt
Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981) (“basic
principle of administrative law that substantive agency proceeding, and
effectuation of a statute’s purpose, are not to be overturned because of a
procedural error, absent a showing of prejudice”).

Here,
Highland has failed to show prejudice. The operator has not shown a loss of
critical evidence, nor has it shown the unavailability of any key witnesses. Highland
argues that prejudice is inherent in a delay of over 2 years, and that
prejudice could be “reasonably inferred” from the extensive delays in
prosecuting the case. Sec’y of Labor v. Curtis Crick, 15 FMSHRC 735
(Apr. 1993) (ALJ). However, the principle in Crick is not applicable in
this case. For one, Pride has filed a pro se complaint. Additionally, and more
importantly, Crick does not involve a discrimination complaint, but
rather concerned a civil penalty involving equipment defects. For these
reasons, I find the principle in Fulmer – that while memories may have
faded, Denison must show “concrete prejudice attributable to delays” –
controlling in this case. 30 FMSHRC at 530. Thus, Pride’s complaint should not
be dismissed for untimeliness.

II. Protected Activity

As
outlined above, a prima facie case requires that Pride show he engaged
in an activity protected by the Act. Section 105(c) (1) enumerates five rights
protected under the Act: (i) filing a complaint related to the act, including a
complaint notifying the operator of an alleged danger or safety or health
violation; (ii) being subject to medical evaluations and potential transfer
under standards published pursuant to Section 101; (iii) instituting or causing
to be instituted any proceeding related to the Act; (iv) testifying in any
proceeding related to the Act; and (v) exercising any statutory right afforded
by the Act.

Pride
does not allege that he engaged in any of the enumerated activities listed
above. Rather, Pride argues that he suffered discrimination because he was
refused injury reports from his accident.

In
a case involving complaints about the issuance of an inaccurate report
following a miner’s accident, the evidence established that the complainant was
seeking to establish his right to an additional ten percent increase in
payments under his workman’s compensation benefits, and that the inaccuracy of
the report constrained him from doing so. Mooney v. Sohio Western Mining Co.,
4 FMSHRC 440, 444 (Mar. 1982) (ALJ). The judge held that if the complaints were
“motivated by a sincere belief ... that such matters were related to safety and
health conditions of the mine, it would constitute protected activity.” Id.
On review, the Commission upheld the decision of the ALJ, but specifically
declined to “address whether the judge erred in determining that Mooney's
complaints upon his return to work were not protected simply because of their
monetary basis.” Mooney v. Sohio Western Mining Co., 6 FMSHRC 510 (Mar.
1984).

This
case can be distinguished in several ways. First, the operator in Mooney
issued an inaccurate injury report, whereas here Highland failed to issue two
injury reports. A failure to issue a report has a much stronger bearing on the
health and safety of the mine than a complaint that is largely accurate with
regard to health and safety conditions. Additionally, in its investigation of
Highland’s mine, MSHA noted 13 prior instances of Highland failing to report
on-the-job injuries, which support a reasonable inference that a genuine health
and safety issue exists there. Exhibit D. Finally, the decision in Mooney
was written after a full hearing, and was based on a credibility judgment with
regard to the complainant’s motive. Such a determination would be inappropriate
here, at the summary decision stage. My role in the summary decision phase is
to determine whether a factual dispute exists, not to resolve it. That
determination is reserved for hearing, where the parties can present their
evidence, and I can the make the credibility determinations required for a
factual determination of these issues.

A
reasonable fact-finder could find that Pride was motivated, in whole or in
part, by a concern for health and safety. However, assuming arguendo
that Pride was solely motivated by monetary concerns, in light of the fact that
Highland outright refused to issue an injury report at all, and in light of the
repeated instances of Title 30 violations, Pride’s activity could be protected
even if it was solely motivated by pecuniary concerns. The complainant’s motive
is relevant, if not necessarily controlling, for the purposes of determining
whether he has made a prima facie case of discrimination. Pride’s motive
must at least be considered before I can determine whether his activity is
considered protected activity. Thus, based on the available evidence, I cannot
make a conclusive determination with regard to whether Pride engaged in
protected activity.

III. Adverse Action

Highland
contends that a refusal to issue safety reports does not constitute adverse
action as understood under Section 105(c) (1) of the Act. Adverse
action is defined as “an act of commission or omission by the operator
subjecting the affected miner to discipline or a detriment in his employment
relationship.” Pendley v. Fed. Mine Safety & Health Rev. Commn., 601
F.3d 417, 428 (6th Cir. 2010). However, the Commission has also recognized that
while “discrimination may manifest itself in subtle or indirect forms of
adverse action,” nevertheless, “an adverse action ‘does not mean any action
which an employee does not like.’” Sec’y of Labor on behalf of Jenkins v.
Hecla-Day Mines Corp., 6 FMSHRC 1842, 1848 n.2 (Aug. 1984) (quoting Fucik
v. United States, 655 F.2d 1089, 1096 (Ct. Cl. 1981). The Commission has
held that the test articulated by the Supreme Court in Burlington Northern
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006), should be applied
in Mine Act cases to ascertain whether adverse action has occurred. Sec’y of
Labor on behalf of Pendley v. Highland Mining Company, 34 FMSHRC 1919 (Aug.
2012). Under the Burlington standard, adverse action consists of action
that would have been “materially adverse to a reasonable employee.” Id. This
means “that the employer’s actions must be harmful to the point that they could
well dissuade a reasonable worker from making or supporting a charge of discrimination.”
Id.

Here,
Pride explicitly states in his complaint that he was not fired, suspended, or
laid off as a result of his request for an accident report. Exhibit B. Indeed,
Pride actually argues that he should have been laid off from employment per
Highland’s company policy of automatic termination for employees that cannot
return to work after 52 weeks of sick leave. Pride V.S., 3. Instead,
Pride asserts that the adverse action taken against him by Highland consisted
of a refusal to issue accident reports.

On
the basis of the record, viewing the evidence in the light most favorable to
the complainant, I conclude that Highland’s refusal to issue a safety complaint
constitutes adverse action. Highland’s actions go beyond mere action that an
employee does not like. Rather, Pride has presented evidence that Highland has
engaged in a pattern of denying injury reports to miners in violation of Title

30. Exhibit D. The legislative history of the Mine Act, in relevant
    part, states:

It is the Committee's intention to protect miners
against not only the common forms of discrimination, such as discharge,
suspension, demotion, reduction in benefits, vacation, bonuses and rates of
pay, or changes in pay and hours of work, but also against the more subtle
forms of interference, such as promises of benefit or threats of reprisal.

S. Rep. No. 181,
95th Cong., 1st Sess. 30 (1977).

I
conclude that a refusal to issue injury reports falls under the penumbra of the
“more subtle forms of interference.” One of the major purposes of the
discrimination protections contained in the Mine Act is to encourage miners to
take an active role in enforcement of the Act. “[I]f miners are to be encouraged
to be active in matters of safety and health, they must be protected against
any possible discrimination which they might suffer as a result of their
participation.” Id. Taking an active role in enforcement certainly
includes requesting injury reports, as the judge in Mooney admits. 4
FMSHRC at 444. Repeated refusal to issue injury reports interferes with this
right, and discourages miners from requesting those reports in the future.

Additionally,
Pride seeks unemployment, social security, and medical card benefits, which he
cannot obtain without an injury report on file. If true, this suggests that the
action taken has grave impacts on the quality of Pride’s life. Thus, although Highland’s
actions do not fall under the umbrella of common forms of discrimination, they
fall within the penumbra of the “more subtle forms of discrimination,” because
a reasonable finder of fact could determine that Highland is effectively using
its denial to issue an injury report as a tool to inflict harm upon Pride.

In
light of the purpose of the Act, the negative effects of the action on Pride,
and the potential effect it could have on future injury reports by other
miners, I conclude that Highland’s actions constituted adverse action.

IV. Causal Nexus

In
addition to establishing protected activity and adverse action, a prima
facie case requires evidence that the adverse action was motivated, in
whole or in part, by the protected activity.

The sufficiency of the
motivation element of its prima facie case depends on inferences that
can be reasonably drawn from the record. The Commission has frequently stressed
the importance of inferential evidence when making out a prima facie
case, because it is unlikely that there will be direct evidence of
discrimination when it has occurred: “[d]irect evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect.” Sec’y
of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510
(Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).

The court in Chacon
identified several characteristic marks of discriminatory intent, including (1)
knowledge of the protected activity; (2) hostility towards the protected
activity; (3) coincidence in time between the protected activity and the
adverse action; and (4) disparate treatment of the complaint. Id. at
2510. Additionally, with regard to motivation, “circumstantial evidence… and
reasonable inferences drawn thereof may be used to sustain a prima facie case.”
Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 1982) (citing Chacon,
3 FMSHRC at 2510). It would therefore be inappropriate to grant summary
decision, where multiple mutually incompatible interpretations could reasonably
be drawn from agreed-upon facts in a case. Empire Electronics Co v. U.S.,
311 F.2d 175, 180 (2d. Cir. 1962); Hanson Aggregates New York, Inc., 29
FMSHRC 4 (Jan. 2007). “When the inferences which the parties seek to have drawn
deal with questions of motive,” the issue of multiple possible inferences
becomes particularly important. Empire Electronics, 311 F.2d at 180.

Here, there is
sufficient evidence for a reasonable fact-finder to conclude that Highland’s
refusal to issue the injury reports was motivated by Pride’s request for
issuance of the injury reports. A coworker has averred that Pride informed both
his immediate supervisor and the safety director, James Allen, of his injury. Roper
Aff. A reasonable fact-finder could infer that Highland was aware of
Pride’s request for the injury report. Additionally, the refusal followed
almost immediately after the complaint, and Highland maintained its refusal to
issue the injury report several times after the initial request, supporting an
inference of coincidence in time between the protected activity and alleged
discrimination. Finally, there is evidence that Highland has refused to issue
injury reports to several miners over an extended period of time which allows
for a potential inference of animus towards the requests for injury reports. On
these facts, a reasonable fact-finder could infer that Highland’s refusal to
issue the injury reports was motivated, in whole or in part, by Pride’s request
for the injury report.

V. Remedy

Pride seeks specific
performance as his remedy: he requests that the Commission order Highland to
issue the injury report. Highland contends that this is not a remedy afforded
to miners under section 105(c) of the Act, and that he is not seeking “tangible
relief.”

The Commission has held
that, “so long as our remedial orders effectuate the purposes of the Mine Act,
our judges and we possess considerable discretion in fashioning remedies
appropriate to varied and diverse circumstances.” Sec’y of Labor v. Azko
Nobel Salt Inc., 19 FMSHRC 1254 (July 1997) (quoting Sec’y of Labor on
behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 142 (Feb. 1982)
(vacation pay and hearing expenses in addition to back pay)) (restoration of
prior position following a discriminatory demotion). This notion is supported
by the text of Section 105(c)(2) which states, in relevant part:

The Commission shall
have authority in such proceedings to require a person committing a violation
of this subsection to take such affirmative action to abate the violation as
the Commission deems appropriate, including, but not limited to, the
rehiring or reinstatement of the miner to his former position with back pay and
interest.

30 U.S.C. § 815(c) (2). (emphasis added)

Pride seeks neither
reinstatement nor back pay. His request for relief is unique, and presents a
case of first impression. I hold that, in line with the discretion afforded to
judges under Section 105(c) (2) in providing appropriate remedies, the remedy
Pride seeks is appropriate. While it may not fully “make him whole” with regard
to the alleged discrimination, it would at least partially ameliorate the harm
Pride has suffered. Were it not for the alleged discrimination, Pride readily
admits that he would have been terminated after a maximum of 52 weeks of sick
leave, but he would have benefitted from UMWA and medical benefits starting
from that point onwards. Issuing the injury reports would allow Pride to enjoy
future benefits, even if it does not make him whole with respect to past
benefits. Thus, I conclude that Pride has not sought relief that necessitates
dismissal as a matter of law.

Because Highland is not
entitled to judgment as a matter of law, I will deny the motion, and the case
will proceed to hearing.

WHEREFORE,
the motion for summary decision is DENIED.

/s/
L. Zane Gill      

L.
Zane Gill

Administrative
Law Judge

Distribution:

K.
Brad Oakley, Jackson Kelly PLLC, 175 E. Main St., Suite 500, Lexington, KY
40507

Leslie
A. Pride, 681 State Rt. 365, Sturgis, KY 42459

/as

[1] In 2007, Pride
was charged with, and ultimately convicted for, trafficking over five pounds of
marijuana. Pride objects to and contests the admission of any information
related to such charges on the grounds that it is irrelevant to his
discrimination claim. Commission rule § 2700.63 states that “relevant evidence…
that is not unduly repetitious or cumulative is admissible.” See also 5
U.S.C. 556 (exclusion of irrelevant, immaterial, or unduly repetitious
evidence). I conclude that the evidence concerning Pride’s marijuana charge is
irrelevant for the purposes of determining whether his discrimination claim
survives summary decision. Such evidence may be relevant at a hearing on the
merits.

[2]
Section 105(c) (1) of the Act, 30 U.S.C. § 815(c) (1) states in relevant part:

No person shall
discharge or in any other manner discriminate against ... or otherwise
interfere with the exercise of the statutory rights of any miner ... because
such miner ... has filed or made a complaint under or relating to this Act,
including a complaint notifying the operator or the operator's agent, or the
representative of the miners ... of an alleged danger or safety or health
violation ..., or because such miner ... is the subject of medical evaluations
and potential transfer under a standard published pursuant to section 101 or
because such miner ... has instituted or caused to be instituted any proceeding
under or related to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner ... on behalf of
himself or others of any statutory right afforded by this Act.