T & M Development Company

Plain-English summary

Donald Ribble filed a pro se Mine Act discrimination complaint alleging that T & M Development Company fired him after a back injury and after he sought an accident report and reported safety problems. The ALJ dismissed the complaint for failing to allege facts constituting discrimination and because Ribble had not responded to an order to show cause by the stated deadline. The Commission found that the complaint met the minimal pleading requirement, vacated the dismissal, and remanded for further evidentiary proceedings. The remand allows Ribble to pursue discovery and, if necessary, a full hearing.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1) and (c)(3)
• Outcome: The dismissal order was vacated and the matter was remanded for further proceedings.
• Key point: A pro se discrimination complaint should not be dismissed at the pleading stage when it alleges protected activity, adverse action, and possible discriminatory timing.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006

                                      May 18, 2000

DONALD L. RIBBLE :
:
v. : Docket No. LAKE 2000-25-DM
:
T & M DEVELOPMENT COMPANY :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                     DIRECTION FOR REVIEW AND DECISION

BY: THE COMMISSION

     Pursuant to Commission Procedural Rule 71, 29 C.F.R. § 2700.71, on our own motion,

we direct review of the judge’s April 18, 2000 Order of Dismissal in this case on the ground that
it is contrary to law and Commission policy. 30 U.S.C. § 823(d)(2)(B). For the reasons set forth
below, we vacate the judge’s decision and remand this matter to him to conduct further
proceedings consistent with this order.

                                            I.

                           Factual and Procedural Background

   On December 20, 1999, Donald Ribble filed a pro se discrimination complaint with the

Commission pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c)(3) (1994) (“Mine Act”).1 In his complaint, Ribble alleges that his former
employer, T & M Development Company (“T & M”), fired him on August 17, 1999 after he

   1
      In order to succeed in a discrimination case under the Mine Act, a miner has to present

evidence that could convince a judge that (1) the miner engaged in protected activity (for
example, reporting a safety violation), (2) the miner suffered an adverse employment action, and
(3) the adverse action was motivated by the protected activity. Secretary of Labor on behalf of
Pasula v. Consolidation Coal Co., 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); Secretary of Labor
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).

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Page 2

sustained a back injury on August 11, 1999. Ribble also alleges that after his injury, but before
being fired, he repeatedly and unsuccessfully attempted to obtain an accident report from T & M.
Compl. at 1. Ribble also submitted to the judge notes of a September 20, 1999, interview
between Ribble and two Mine Safety and Health Administration (“MSHA”) investigators in
which Ribble details several complaints he made to mine inspectors regarding safety problems at
T & M, although it is unclear when these complaints were made. Notes at 7-8.

    Ribble’s complaint was assigned to Commission Administrative Law Judge Gary Melick.

On March 28, 2000, Judge Melick issued on his own motion an Order to Show Cause in which
he stated that Ribble’s complaint failed to “allege facts constituting a violation” of the Mine
Act’s anti-discrimination provision, section 105(c)(1), 30 U.S.C. § 815(c)(1). Order at 2. The
judge directed Ribble “to show cause (explain why) on or before April 14, 2000, why this case
should not be dismissed.” Id. (emphasis in original).

    On April 18, 2000, Judge Melick issued an Order of Dismissal reiterating the points made

in his Order to Show Cause, stating that Ribble failed to respond to that order, and dismissing the
case. On April 21, 2000, the Commission received a letter from Ribble dated April 17 bearing a
postmark of April 18, 2000, in which he essentially responded to the judge’s Order to Show
Cause. Ribble stated, inter alia, that when he “asked for a[n] accident report form to fill out at
the time [he] fell,” his supervisor “had all kind[s] of excuse[s],” and that “three day[s] before I
got fired they didn’t even want me to fill out a[n] accident report form.” Letter at 1.

                                             II.

                                        Disposition

   Although in his Order to Show Cause and Order of Dismissal the judge did not cite Rule

12(b)(6) of the Federal Rules of Civil Procedure or use its terminology, he in essence dismissed
Ribble’s complaint for failure to state a claim upon which relief could be granted.2 In Perry v.
Phelps Dodge Morenci, Inc., the Commission stated as follows regarding Rule 12(b)(6):

                    It is well settled that “[t]he motion to dismiss for failure to
           state a claim is viewed with disfavor and is rarely granted.” The
           Supreme Court has held that “a complaint should not be dismissed
           for failure to state a claim unless it appears beyond doubt that the
           plaintiff can prove no set of facts in support of his claim which
           would entitle him to relief.” Additionally, we hold the pleadings of
           pro se litigants to less stringent standards than pleadings drafted by
           attorneys. In cases brought by pro se complainants, motions to


   2
     See 29 C.F.R. § 2700.1(b) (“On any procedural question not regulated by [the

Commission’s Procedural] Rules . . . the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure . . .”).

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Page 3

           dismiss for failure to state a claim should rarely be granted.
           Instead, in such a case, a judge should ensure that he informs
           himself of all the available facts relevant to his decision, including
           the complainant’s version of those facts.

18 FMSHRC 1918, 1920 (Nov. 1996) (citations omitted).

    Here, as in Perry, a pro se discrimination complaint was dismissed for failure to state a

claim — although in this case, Ribble’s complaint was dismissed by the judge sua sponte rather
than on any motion filed by a party. Under the stringent standard set forth in Perry, we find the
judge’s initial conclusion in his Order to Show Cause that Ribble’s “Complaint does not allege
facts constituting a violation of Section 105(c)(1)” erroneous. It follows that his decision to
dismiss Ribble’s complaint was also erroneous.

     To state a claim, Ribble’s complaint had to set forth “a short and plain statement of the

facts, setting forth the alleged . . . discrimination . . . and a statement of the relief requested.”
29 C.F.R. § 2700.42. We find that the complaint met this minimal burden. Ribble alleged that
he engaged in protected activity, namely, requesting an accident report form on which to report
his injury.3 The protected nature of Ribble’s request arises from T & M’s obligation under 30
C.F.R. § 50.20 to report Ribble’s injury to MSHA. In addition, we note that Ribble’s statement
to MSHA, included as part of his complaint, mentions safety problems he reported to mine
inspectors, which would also clearly be protected activity. Furthermore, Ribble’s allegation that
T & M terminated him is an assertion of adverse action. There may also be a close connection in
time between the adverse action allegedly taken by T & M against Ribble and his request (as
reported in his complaint) that he be permitted to fill out an accident report, which could indicate
discriminatory motivation. See Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2511 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983)
(coincidence in time between protected activity and adverse action may be circumstantial indicia
of discriminatory intent). On the record before us, we therefore find that Ribble has met his
burden of alleging discrimination actionable under section 105(c).

   In Perry, we warned against requiring a pro se complainant to begin proving his or her

“prima facie case at a stage in the proceedings when [the complainant is] simply obligated to
meet the Commission’s minimal pleading requirements.” 18 FMSHRC at 1921. Accordingly,
Ribble must now be afforded the opportunity to prove his allegations, and to avail himself of all
the other rights afforded under our Procedural Rules, including discovery and, if necessary, a full
hearing.

   3
      Under Rule 12(b)(6), we must construe the complaint in the light most favorable to

Ribble, and must assume that his allegations are true. See 5A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure: Civil § 1357, at 304 (2d ed. 1990). We must also
liberally construe the complaint, which was filed pro se. Marin v. Asarco, Inc., 14 FMSHRC
1269, 1273 (Aug. 1992).

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Page 4

                                           III.

                                       Conclusion

    For all the foregoing reasons, we vacate the judge’s dismissal order and remand this

matter for further evidentiary proceedings consistent with this order.

                                         Mary Lu Jordan, Chairman




                                         Marc Lincoln Marks, Commissioner




                                         James C. Riley, Commissioner




                                         Theodore F. Verheggen, Commissioner




                                         Robert H. Beatty, Jr., Commissioner




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Distribution

Mr. Donald Ribble
4775 22nd Avenue
Hudsonville, MI 49426

Marlene J. VanPatten, Manager
Thompson-McCully Company
P.O. Box 787
Belleview, MI 48111

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

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