Michael Wilson v. Jarrod Farris, David Taylor, & Ross Glazer

Plain-English summary

Michael Wilson, a nonemployee miners' representative at the Parkway Mine, alleged that three ram-car drivers interfered with his Mine Act rights by asking an MSHA inspector how to remove him as a representative and keep him off mine property. Wilson sought permission to depose the three respondents and the inspector before responding to the respondents' summary-decision motion. Judge William B. Moran held that Rule 67(b) does not create an unconditional right to discovery before summary decision and that the discrimination claim was confined to the complaint Wilson submitted to MSHA. Because the respondents accepted Wilson's allegations as true for their motion, the requested discovery could not reveal a material factual dispute and would impose unnecessary delay and expense. The Judge denied discovery and directed Wilson to respond to the summary-decision motion within two weeks.

Decision snapshot

• Governing authority: 29 C.F.R. §§ 2700.56(c), 2700.67(b); 30 U.S.C. § 815(c)(3)
• Outcome: Wilson's motion for leave to take discovery was denied.
• Key point: Discovery may be limited when the opposing party accepts the complaint's facts and the requested evidence cannot create a material factual dispute.

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:
202-434-9933 / FAX: 202-434-9949

January 12, 2016

MICHAEL WILSON,

Complainant,

v.

JARROD FARRIS, DAVID TAYLOR,

& ROSS GLAZER,

Respondents.

DISCRIMINATION PROCEEDING

Docket No. KENT 2015-672-D

MSHA
Case No. MADI-CD-2015-13

Mine: Parkway Mine

Mine ID: 15-19358

ORDER DENYING MOTION FOR LEAVE TO
TAKE DISCOVERY

Before: Judge
Moran

This
case is before the Court upon a complaint of discrimination under section 105(c)(3)
of the Federal Mine Safety and Health Act of 1977 (“Mine Act”). Complainant
(“Wilson”) has filed a Motion for Leave to Take Discovery (“Motion”), which
Respondents opposed. For the reasons that follow, the motion is DENIED.

As
outlined more fully below, the essence of this discrimination complaint rests
on a simple set of facts: Respondents Farris, Taylor and Glazer, ram car
drivers at the Parkway mine, allegedly asked an MSHA inspector how they could
get Michael Wilson, a non-employee representative of miners the Parkway Mine,
removed as a miners’ representative and keep him off mine property. Complaint
Ex. B. Complainant argues that without taking depositions of the three
respondents and the inspectors, this case is not ripe for summary decision because
it will rest on speculative facts.

Complainant
argues that “[t]he Commission’s procedural rules impliedly grant parties the
right to take discovery before a motion for summary decision is filed with the
presiding ALJ.” Motion at 1. In support, Complainant first notes that discovery
is generally allowed, and that Procedural Rule 67(b) states that “[a] motion
for summary decision shall be granted only [upon consideration of] the entire
record, including the pleadings, depositions, answers to interrogatories,
admissions, and affidavits.” Id. at 1-2 (quoting 29 C.F.R. §
2700.67(b)). Because the parties have not engaged in discovery, Complainant
argues, there “has been no development of the record on which the Court can
reasonably consider a motion for summary decision.” Id. at 2.

Respondents’ opposition contends
that Procedural Rule 67(b) merely provides examples of what may “typically be
in a record ripe for summary decision, but those are not required if   . . .
the Court cognizes legal grounds from which to independently resolve the
matter.” Response at 1. They note that discovery may not be used as an “ever-expansive
fishing expedition” and, a related concern, Respondents assert that allowing depositions
under these circumstances would put them to inordinate expense. Id. at

2. Finally, Respondents makes the point that “a complainant who initiates his
   own proceeding before the Commission is confined to the four corners of his
   complaint as it was presented to and investigated by MSHA.” Id. (citing Hatfield
   v. Colquest Energy, Inc., 13 FMSHRC 544, 546 (Apr. 1991)).

Discussion

The
subject of summary decision is set forth in Commission Procedural Rule 67(b),   
 which provides:

A motion for summary
decision shall be granted only if the entire record, including the pleadings,
depositions, answers to interrogatories, admissions, and affidavits, 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.

29
C.F.R. § 2700.67(b).

Although
that provision speaks to summary decision, it does not grant to parties an
unequivocal right to take discovery prior to the Court ruling on a motion for
summary decision. Instead, the ruling on discovery is connected to the nature
of the complaint. In section 105(c)(3) discrimination complaints in particular,
per the Commission’s decision in Hatfield, such matters are confined to
the miner’s complaint to MSHA.

Wilson’s Complaint, dated June
18, 2015, states in its entirety:

I am a non-employee
“representative of miners” at Armstrong Coal Company’s Parkway underground
mine. I worked for Armstrong at the Parkway mine from August 2009 until May 6,
2015. Since my employment with Armstrong Coal ended, I have continued to act as
a “representative of miners” at the mine.

On or about May 12, 2015, I
traveled underground with a MSHA inspector. That same day, three ram car
drivers from the unit approached MSHA Inspector Jeremy Walker and asked Walker
how they could get rid of me as a miners’ rep and keep me off of mine property.

These actions constitute
interference with my rights as a “representative of miners” under the Mine Act,
and violate section 105(c) of the Act.

I will provide MSHA with the
names of the ram car drivers on the unit and ask that the MSHA Special
Investigator interview each of them. When it is determined which miners asked
the MSHA inspector how to remove me as a miners’ rep, I will amend my
discrimination complaint to include their names.

I want each of these miners to be
fined for violating section 105(c) of the Mine Act, and I want each of them to
be required to take training – taught by MSHA personnel – in miners’ rights
under the Act, including the rights of “representatives of miners.” I also want
each of the miners to be ordered to cease and desist from interfering with my
rights as a “representative of miners.”

I am not filing this complaint
against Armstrong Coal. I am filing it against the three ram car drivers
individually.

Complaint
Ex. A at 2.

On
July 16, 2015, Wilson amended his complaint, by adding Farris, Taylor, and
Glazer, thereby identifying the names of the ram car drivers. In both his June
18th and July 16th discrimination complaint filings, Wilson checked “no” in the
box, inquiring if the alleged discriminatory action resulted in his being
suspended, laid off, or discharged.

Accordingly,
the full content of Wilson’s complaint and its amendment, the latter adding
only the names of the three ram car drivers, represents the four corners of his
discrimination claim. Depositions of the three ram car drivers and the
inspector, which is the discovery requested by Complainant, would not provide
any possible issue of material fact that would prevent the Court from ruling on
the motion for summary decision. This is also true for answers to
interrogatories, admissions, and affidavits. Given that state of affairs, no
amount of legerdemain, through the vehicle of discovery or otherwise, can conjure
up genuine issues as to any material fact, nor could they disprove that the
moving party may be entitled to summary decision as a matter of law. In short,
when the Court subsequently rules upon the motion for summary judgment, it will
be working from the proposition that each of Wilson’s allegations in his
complaint is taken to be true.

Under
Complainant’s reading of the summary decision provision of the Commission’s
procedural rules, depositions, answers to interrogatories, admissions, and
affidavits would all be required prior to the filing of a motion for summary decision,
even in those cases in which some or all of those documents are unnecessary and
unhelpful to the motion for summary decision.  Rule 67(b) does not mandate that
depositions be allowed in all instances.  Further, Commission Procedural Rule 56(c)
infers the result taken in this Order by providing that a judge may limit
discovery to prevent undue delay or to protect a party from oppression or undue
burden or expense. See 29 C.F.R. § 2700.56(c). That is to say, where
such discovery will not alter the core facts nor materially change the basis of
the discrimination claim, and therefore, to put it plainly, would not only be
an undue expense on the party burdened by it, but also a waste of time, it
should be denied.

The Court finds that these
circumstances exist here. Further, in its order on the motion for summary
decision, the Court will resolve all of the claims made by Wilson as true.[1] 

As Respondents
are not disputing the allegations of the Complaint, and for the reasons set
forth above, at least for the purposes of Complainant’s motion for leave to
take discovery, allowing
depositions of the three respondent miners and the inspector would needlessly
delay the resolution of this proceeding, and it would force them to endure
unnecessary and undue expense. Furthermore, given the concession by
Respondents, there is no genuine issue as to any material fact, and this leaves
the Court only with the question of whether, as a matter of law, Complainant
has alleged a cognizable claim of discrimination under section 105(c) of the
Mine Act.

Accordingly,
Complainant’s motion is DENIED. As previously agreed, Complainant is
directed to file his response to Respondents’ motion for summary decision
within two weeks of the date of this Order.

/s/ William B. Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Tony
Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

Wes
Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858

Brandon
W. Marshall, Esq., Patrick F. Nash, Esq., Nash Marshall, PLLC, 129 West Short
Street, Lexington, KY 40507

[1] That Order will
be issued once the Complainant has had an opportunity to respond to the motion
for summary decision and after the Court has considered it. However, it is
noted that in the Respondents’ Memorandum of Law in Support of its Motion for
Summary Decision, they have conceded, for the purposes of the motion, that
“each and every fact asserted in the complaint is true.” Mem. Supp. Summ.
Decision 1.