Secretary of Labor obo William R. Whitmore v. Yager Materials Corp.

Plain-English summary

Before William Whitmore's temporary-reinstatement hearing, Yager Materials sought interview statements, management-witness materials, hearing exhibits, and documents used by MSHA's investigator. Judge William Moran held that fairness required the Secretary to provide Whitmore's own interview statements because the filed complaint gave almost no detail about his alleged protected activity. He denied the request for management interview materials and documents supporting the investigator's declaration because they were unnecessary at the narrow nonfrivolous-claim stage and could implicate privileges. The scheduled prehearing exchange already covered intended exhibits. The case then proceeded to the temporary-reinstatement hearing.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45(d)
• Outcome: The motion to compel was granted only for Whitmore's interview statements and otherwise denied or treated as covered by prehearing exchange.
• Key point: Limited early disclosure may be required for fair notice, but broad merits discovery is not necessary in an expedited temporary-reinstatement proceeding.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE
OF ADMINISTRATIVE LAW JUDGES

1331
PENNSYLVANIA  AVENUE N. W., SUITE 520N

WASHINGTON, D.C.
20004-1710

Telephone No.: 202-434-9933

Telecopier No.:
202-434-9949

July
25, 2020

SECRETARY
OF LABOR,           U.S. DEPARTMENT OF LABOR on behalf of WILLIAM R.
WHITMORE,                       

Complainant

v.

YAGER MATERIALS CORP.,

Respondent

TEMPORARY
REINSTATEMENT

Docket
No. KENT 2020-0116-DM

Mine:
Riverside Stone Mine

Mine
ID: 15-00081

Docket
No. KENT 2020-0117-DM

Mine:
Riverside Stone Mine

Mine
ID: 15-18549

ORDER ON
RESPONDENT’S MOTION TO COMPEL

PRODUCTION OF
DOCUMENTS

Respondent, Yager Materials Corp.,
through Counsel, filed, on July 21, 2020, a Motion to Compel Production of
Documents. (“Motion”). The Court held a conference call with the parties on
July 23, 2020 to discuss the Motion. During that call the also Court issued its
rulings on the subjects identified in the Motion. This Order memorializes the
Court’s rulings.

The Motion requested the following
documents: Copies of the statement or memorandum of interview of any interview
of Mr. Whitmore; Copies of the statements or memoranda of interviews of any
management witness; Copies of all exhibits the Secretary intends to introduce
at hearing on the Secretary’s Application for Temporary Reinstatement in this
matter; Copies of any documents Mr. Fugate relied upon in preparing his Declaration.
Motion at 2-3.

The Secretary responded to the Motion
via an email, objecting to it on the basis that it ran afoul of several of the Commission’s
Procedural Rules, including claims that the response to the Motion would not be
due until the day of the temporary reinstatement hearing or later and that
discovery was not expressly contemplated for a hearing on a temporary
reinstatement application. The full text of the Secretary’s email response is
footnoted here. [1]

At the outset of the July 23, 2020
conference call with the parties to discuss the Motion, the Court informed that
it considered the Secretary’s Counsel’s procedural objections to have been
waived by virtue of his email response.

The Court’s rulings on the Motion were
also informed by the Commission’s procedural rules on the subject of Temporary
reinstatement Proceedings at 29 CFR 2700.45. It is noted that subsection (d) of
that section provides that “[t]he scope of a hearing on an application for
temporary reinstatement is limited to a determination as to whether the miner's
complaint was frivolously brought. The burden of proof shall be upon the
Secretary to establish that the complaint was not frivolously brought. In
support of his application for temporary reinstatement, the Secretary may limit
his presentation to the testimony of the complainant. The respondent shall
have an opportunity to cross-examine any witnesses called by the Secretary and
may present testimony and documentary evidence in support of its position that
the complaint was frivolously brought.” Id. (emphasis added).  In that
regard, the Court notes that there is no reference to the MSHA investigator’s
declaration. Rather, the focus is upon the testimony of the complainant and
that the Secretary’s presentation can rely solely upon that. [2]

1. The
   Respondent’s request for copies of the statement or memorandum of interview of
   any interview of Mr. Whitmore

Apart from the Court’s ruling
that the Secretary had waived issues regarding the due date for a response to
the motion, the Court informed the parties that it did not view the
Respondent’s request for copies of the statement or memorandum of interview of
any interview of Mr. Whitmore to be properly denominated as “discovery,” at
least in the classic sense of that term.  The Court explained its reasoning for
this determination, noting that all the Respondent had, and all that the Court had
as well, was the Complainant’s signed, but unfairly uninformative May
18, 2020, “Discrimination Report.” That document contained a typed “Summary of
Discriminatory Action,” which stated in its entirety the following:

I was suspended on April 23, 2020, then discharged
on April 29, 2020, from my job as the Maintenance Manager at Riverside Stone
underground and surface mines because of numerous protected safety activities
that I engaged in.

Discrimination Report,
May 18, 2020.

The “Discrimination
Complaint” document itself was no more enlightening.    At its heart, it
informed of the Complainant’s name, rate of pay, job title and the address of
the Respondent’s mine and the names of four individuals employed by the
Respondent alleged to be responsible for the discriminatory action. [3] Discrimination
Complaint, May 19, 2020.

Importantly,
the Discrimination Complaint added nothing, that is to say it provided no additional
information whatsoever regarding any particulars about the alleged protective
activity.

It was only
through the vehicle of the Secretary’s “Declaration of Freddie Fugate,”
identified as a “senior special investigator” employed by MSHA, that some
particulars about the nature of the Complainant’s discrimination complaint were
first revealed. Of course, Mr. Fugate has no more first-hand knowledge about
the Complainant’s allegations than the Court.

Accordingly,
the Fugate Declaration serves as a mere conduit, recounting the allegations made
by the Complainant and nothing more than that. Thus, the Court does not
consider it far-fetched to analogize the Fugate Declaration as akin to an
individual relating a story over a fence to a neighbor. And it is that serious
shortcoming that formed the basis of the Court’s problem with the inadequacy of
the declaration. The story may be an accurate retelling, or it may not, but for
purposes of defending a discrimination complaint under due process, a
respondent has a right to more. The Respondent is entitled to the Complainant’s
first-hand accounting of the basis for his discrimination complaint. Fundamental
fairness demands this. See , e.g. , Sec. v. Cumberland Coal
Resources , 32 FMSHRC 442 (May 2010), wherein the Commission stated that the
“concepts of fundamental fairness [ ] require that every litigant receive
adequate notice of charges made against it.” Id. at 449.

Accordingly,
during the conference call, the Court ordered that copies of the statement or
memorandum of interview of any interview of Mr. Whitmore be provided.

2. Copies
   of the statements or memoranda of interviews of any management witness

The Court ruled
during the conference call that this request was denied. The basis for that
ruling was that such statements, if they exist, are not necessary in the
context of the Secretary’s burden in an application for temporary
reinstatement. If the Secretary did intend to introduce such documents, the
Court’s order for the parties’ prehearing exchange would cover those. [4] As an
aside, the Court opined that it would be highly unusual for any management
witness to have made a statement without receiving a copy of it.

3. Copies
   of all exhibits the Secretary intends to introduce at hearing on the
   Secretary’s Application for Temporary Reinstatement in this matter

This request, as alluded to above, was covered by
the Court’s prehearing exchange order.

4. Copies
   of any documents Mr. Fugate relied upon in preparing his Declaration.

As
the Court ruled that Mr. Fugate’s declaration could not serve as a substitute
for copies of the statement or memorandum of interview of any interview of Mr.
Whitmore, this request was denied. The Court considered that such other
documents, if they exist, would more appropriately be the subject for possible discovery
in a full hearing on the merits in the complainant’s discrimination complaint,
but not in the context of a temporary reinstatement application. It is noted
that such a request could run afoul of attorney-client or deliberative process
claims.  

Accordingly,
having ruled on the four aspects of the Respondent’s Motion, this matter has
been disposed of and will now proceed to the hearing on the application for
temporary reinstatement set to commence on Wednesday, July 29, 2020 at 9:00
a.m. EDT.

SO
ORDERED.

/s/
William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Thomas
J. Motzny, Office of the Solicitor, U. S. Department of Labor, U. S. Department
of

Labor,
618 Church Street, Suite 230, Nashville, TN 37219 [email protected]

Tony
Oppegard, P.O. Box 22446, Lexington, KY 40522 [email protected]

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

[email protected]

Arthur
M. Wolfson, Fisher Phillips, Six PPG Place, Suite 830, Pittsburg, PA 15222

[email protected]

[1] The Secretary’s
Attorney stated in his email that he “request[ed] oral argument on this matter
[asking that the Court] [p]lease permit [him] a brief, if unorthodox, rejoinder:
As the parties are aware, by Rule, a response to the Respondent’s Motion is not
due for eight days from service, which would be July 29, 2020, the day of the
hearing. 29 C.F.R. 2700.10(d). Any discovery served under the Rules would not
be due for 25 days from service. 29 C.F.R. 2700.57(c). If we call what [Respondent’s
Attorney] served on July 17, 2020 “Document Requests,” the responses from the
Secretary would not be due until August 11, 2020. The Rules also clearly state
that discovery must be completed at least 20 days before a hearing. 29 C.F.R.
2700.56(e). We are within 20 days of hearing and were when the requests were
served. Even [the Respondent’s attorney’s] arbitrary deadline of this Friday
[July 24, 2020] (after he conceded his initial arbitrary deadline of tomorrow)
has not passed for the Secretary’s responses. So, to have any discussion of
what the Rules permit, we must ignore the plain language of the foregoing
rules, and the deadline that the Respondent, itself, set.  The Respondent and
the Secretary agree on one thing: the Commission Rules do not expressly
contemplate discovery commencing after a request for a hearing on an
Application for Temporary Reinstatement: (d) Initiation of discovery. Discovery
may be initiated after an answer to a notice of contest, an answer to a
petition for assessment of penalty, or an answer to a complaint under section
105(c) or 111 of the Act has been filed. 30 U.S.C. 815(c) and 821. 29 C.F.R.
2700.56(d). Absent from this list is the request for a Temporary Reinstatement
hearing. This absence is intentional in light of the unique scope of such a
hearing and the speed at which it must be completed. If the rules contemplated
discovery prior to a Temporary Reinstatement hearing, they would necessarily
have set forth things like the scope of such discovery in light of the limited
scope of the hearing, alternate time frames for service of requests and
responses, and a blanket exemption from Rule 2700.56(e). Initial disclosures,
rather than discovery, would be more appropriate given the tight deadlines
between the request for a hearing and the hearing itself, but the Rules contain
no such provisions. As I explained to [the Respondent’s Attorney]: he wants
discovery, the complainant (I am sure) wants discovery, and the Secretary wants
discovery. Why does the Respondent get discovery and not the Secretary or the
Complainant? The time frame for a Temporary Reinstatement hearing does not
allow the parties the opportunity to serve discovery and to lodge good-faith
objections to such requests. As we have here, we are essentially preparing for
the hearing at the same time we are having a discovery dispute. If all of the
parties, as the Respondent argues, are allow[ed] to serve discovery, the week
before the hearing will be filled with constant expedited discovery battles for
which the Rules set forth no time frames. This current issue only came to a
head because the Secretary’s counsel affirmatively stated that discovery was
not permitted. Had the undersigned waited until this Friday to do so, the issue
would not be before the Tribunal until three days before the hearing. Had the
Secretary served discovery responses with objections, the same problem would
have arisen. Finally, since the Rules set forth no limit on discovery for [a]Temporary
Reinstatement proceeding, who is to decide the scope of what is permissible for
such requests and how many requests can be served? There is simply no guidance
available on what the permissible scope of discovery is in light of the ‘not
frivolously brought’ standard. It is inconsistent that a party would be
burdened with a broader scope of discovery than its burden of proof at an
expedited hearing. The Rules contain no guidance on these issues because
discovery was not completed, and was specifically excluded, for Temporary
Reinstatement hearings.” July 21, 2020 email from the Secretary to the Court.

[2] As explained infra
with regard to the Respondent’s request for copies of the statement or
memorandum of interview of any interview of Mr. Whitmore, the Court considered the
Respondent’s discovery request to actually be a request for a complete statement
of the Complaint from the Complainant Whitmore.

[3] Four
individuals are named in Complaint itself as those responsible for the
discriminatory action: Bryan Ory, Rick Voyles, Tammy Wimsatt, and Lisa Weldman,
but there is no information tying those individuals to Whitmore’s
Discrimination Report .

[4] The Court had
previously ordered that the parties conduct their prehearing exchange by
Friday, July 24, 2020. The parties submitted those exchanges pursuant to that
order.