Secretary of Labor obo Darcy White v. Prairie State Generating Co.

Plain-English summary

Darcy White and Prairie State Generating had agreed to temporary economic reinstatement while the Secretary investigated her discrimination complaint. After White amended the complaint to add a staffing agency, the Secretary requested more time to investigate, and Prairie State asked the judge to dissolve or toll reinstatement. Judge Thomas P. McCarthy found that the Mine Act's investigation deadlines were not jurisdictional and that the more complicated employment relationship justified additional time. He also found that continued payments and speculation about future delay did not establish actual prejudice. The motion was denied without prejudice, and the Secretary was ordered to report on the investigation every 21 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)-(3); 29 C.F.R. § 2700.45
• Outcome: Prairie State's motion to dissolve or toll temporary economic reinstatement was denied without prejudice.
• Key point: An investigative delay did not justify ending interim relief when the added employment issues were being investigated and the operator had not shown actual prejudice.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9900
/ FAX: 202-434-9949

September 24, 2021

SECRETARY OF LABOR, U.S.
DEPARTMENT OF LABOR on behalf of DARCY WHITE,

Complainant,

v.

PRAIRIE STATE GENERATING CO.,

Respondent.

TEMPORARY
REINSTATEMENT

PROCEEDING

Docket No. LAKE 2021-0158

MSHA Case No. VINC-CD-2021-03

Mine: Lively Grove Mine

Mine ID: 11-03193

ORDER DENYING
RESPONDENT’S

MOTION TO
DISSOLVE TEMPORARY ECONOMIC REINSTATEMENT

Pursuant
to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine
Act” or “Act”), 30 U.S.C. §801, et. seq. , and 29 C.F.R. §2700.45, the
Secretary of Labor (“Secretary”) on September 27, 2017, filed an Application
for Temporary Reinstatement of miner Darcy White (“Darcy” or “Complainant”) to her
former position with Respondent Prairie State Generating Co., (“Prairie State”
or “Respondent”) at the Lively Grove Mine pending final hearing and disposition
of the case.

PROCEDURAL
HISTORY AND PARTY CONTENTIONS

On
June 30, 2021, the Respondent filed a timely request for hearing, as well as a
Motion to Dismiss Application for Temporary Reinstatement for Failure to Join
Required Party or to Join Required Party. In its motion, Respondent stated that
Complainant was employed by Custom Staffing, a staffing agency through which Respondent
sourced temporary contract workers, as needed. Accordingly, Respondent argued
that Custom Staffing was a required party under Fed.R.Civ.P. 19(b), because Custom
Staffing was necessary to effect a remedy.

The
Secretary opposed Respondent’s motion.  The Secretary argued that preliminary
investigation revealed no evidence that Custom Staffing engaged in any
discriminatory conduct, and that the complete relief sought required only Prairie
State as Respondent.

The
undersigned deferred ruling on Respondent’s motion prior to hearing, which convened
via Zoom videoconference on July 20, 2021. After the hearing opened, the
parties requested to meet in breakout rooms to engage in settlement
discussions. Following several attempts, the parties reached agreement on material
terms of settlement.  On July 27, 2021, the parties filed a Joint Motion to
Approve Economic Reinstatement. On July 29, 2021, this administrative tribunal approved
the Joint Motion and ordered that within 30 days the Secretary either complete his
investigation and make a determination on the complaint, or provide a detailed explanation
why he could not do so.  

On
August 25, 2021, the Secretary filed a motion stating that the Secretary would
not be able to complete his investigation within 30 days of the undersigned’s
Order due to new developments in the case. Specifically, the Complainant filed
an Addendum on August 18, 2021, naming Custom Staffing as an additional Respondent
in her discrimination complaint.

On
August 31, 2021, the Respondent filed a Motion to Dissolve Order Granting Joint
Motion to Approve Temporary Economic Reinstatement Motion and Agreement. In
this motion, Respondent argued by analogy to the Commission’s decision in Long
Branch Energy , 34 FMSHRC 1984 (Aug. 2021), that this tribunal should adopt
a test that would balance the Secretary’s need to proceed beyond the deadline
with the prejudice the operator would face to determine that the Temporary
Economic Reinstatement should be dissolved for failure to complete the investigation
of this expedited matter within the statutory 90-day period referenced in
section 105(c)(3), or the additional 30-day period encouraged by the
undersigned.

With
respect to the first step of Respondent’s proposed test—the Secretary’s burden
of establishing adequate cause—Respondent argues that the Secretary has failed
to establish adequate cause for not completing its investigation into the
merits of Complainant’s case. Specifically, Respondent argues that Complainant
is late in filing any Addendum and that any additional investigation into an additional
respondent should not impact the completion of the Secretary’s investigation of
Prairie State. Furthermore, Respondent argues that the Secretary and Complainant
“disclaimed that Custom Staffing was a proper respondent when that issue was
pending before the Court.” Resp. Mot. at ¶25. Respondent also alleges
that the Complainant’s Addendum amounts to a “willful delay” and is the result
of “bad faith.” Resp. Mot. at ¶26, 27.

With
respect to the second step of Respondent’s proposed test—the operator’s burden
of showing actual prejudice arising from the delay—Respondent argues (1) that
the continuation of its requirement to pay Complainant is “manifestly prejudicial,”
and (2) that because the Secretary has provided no end date for the investigation,
he has unduly delayed the matter such that it constitutes prejudice against Respondent.

In
a brief footnote, Respondent suggested in the alternative that if the undersigned
was disinclined to dissolve the Order Granting Temporary Economic Reinstatement,
it should toll the Order during the period of investigation.

On
September 7, 2021, prior to the Secretary or Complainant submitting their
responses to the Respondent’s motion, the undersigned convened a conference call,
wherein the undersigned noted certain strengths in Respondent’s motion and asked
why it should not be granted.

On
September 13, 2021, the Secretary filed its Opposition to Respondent’s Motion
for Dissolution, wherein it argued that Respondent “asks for a severe and
extraordinary remedy without citing any case law in support of its request.” Sec’y
Resp. at ¶7. The Secretary argued that the only grounds recognized by the
Commission to dissolve a Temporary Reinstatement are if the Secretary’s
involvement in the case ends, and it can be tolled only if there is no longer
work at the mine for the Complainant. Neither of these circumstances apply to the
instant case, so therefore it may not be tolled or dissolved.

The
Secretary further argues that the Respondent’s proposed test based on Long Branch
Energy , 34 FMSHRC 1984, is inappropriate because civil penalty cases are
different from Temporary Reinstatement cases in crucial ways. Congress made
clear its intention that employers should bear the greater burden of risk in a Temporary
Reinstatement proceeding. As a result, the Commission has never applied Long
Branch to a Temporary Reinstatement case.

The
Secretary also argued that even if this tribunal were to adopt Respondent’s proposed
balancing test, Respondent has not shown either undue delay or actual
prejudice. Contrary to the Respondent’s assertions, the Secretary states that there
was no “bad faith” in the instant case. Complainant was not represented by counsel
when she filed her initial complaint, and it is entirely reasonable that she
would amend her complaint after retaining and consulting with counsel. Furthermore,
the Secretary’s earlier position opposing Custom Staffing as a necessary party
only stated that it was not necessary to effectuate the desired remedy. However,
the issue presented by Complainant’s Addendum is that Custom Staffing was part
of the discrimination alleged. The Secretary contends that Respondent
improperly conflates these two issues in order to arrive at its conclusion of
undue delay.

The
Secretary further argues that Respondent has not made any showing of actual
prejudice. The requirement to pay a miner under Temporary Reinstatement is not
prejudice; it “is the nature of temporary reinstatement.” Sec’y Resp. at
¶13. Citing the Commission’s decision in Secretary ex rel. Hale v. 4-A Coal
Co., Inc ., the Secretary argues that the Respondent’s reliance on inconvenience
or cost is misplaced, because prejudice means a “deprivation of a meaningful opportunity
to defend against the claim.” 8 FMSHRC 905, 908 (June 1986). The Secretary
argues that the inconvenience that Respondent relies on is entirely speculative
because it rests on what may occur if the investigation proceeds indefinitely. Furthermore,
he argues that the decision to choose temporary economic reinstatement in lieu
of actual reinstatement was the Respondent’s, and it cannot claim prejudice due
to its agreement to forgo the value of Complainant’s labor.  

On
September 13, 2021, the Complainant, through counsel, similarly submitted a
Response to Respondent’s Motion, which incorporated the arguments made by the
Secretary. Additionally, Complainant’s counsel cavils that the September 7,
2021 conference call was inappropriate because it was essentially an off-the-record
surprise oral argument that may inform the undersigned’s decision prior to
Complainant or the Secretary having submitted written responses.

The
Complainant’s counsel strenuously objected to Respondent’s accusations of “willful
delay” and “bad faith” in filing the “eleventh-hour” Addendum to White’s
discrimination complaint. He explained that the timing of the filing of the addendum
was due to the heavy caseload that Complainant’s counsel is currently handling,
as well as research on the “cat’s paw” theory of liability.

On
September 20, 2021, the Respondent filed a Reply to the Complainant’s and
Secretary’s Responses, wherein it argued that the Secretary did not establish
or show adequate cause for the delay. Respondent questioned the timing of the
Secretary’s inclusion of Custom Staffing, and ultimately why adding this party impacts
the conclusion of the investigation of Prairie State.

DISPOSITION

While
the undersigned is sympathetic to Respondent’s frustration with the Secretary’s
continued inability to conclude its investigation within the timeframe stated
in the Act, the Motion to Dissolve or Toll the Temporary Economic Reinstatement
must be denied.

Congress
viewed the discrimination provision of the Mine Act as having a central place in
ensuring the health and safety of miners. In the Senate Report accompanying the
1977 Mine Act, the Committee stated this sentiment clearly:

If
our national mine safety and health program is to be truly effective, miners
will have to play an active part in the enforcement of the Act. The Committee
is cognizant that if 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.

S. Rep. No. 95-181 at 34
(1977),  reprinted in  Senate Subcomm. on Labor, Comm. on Human
Res., 95th Cong.,  Legislative History of the Federal Mine Safety and
Health Act of 1977 , at 623-624 (1978). Indeed, it was for this reason that
Congress explained that the scope of protected activities should be “broadly”
interpreted and that the Section be “construed expansively.” Id. However,
Congress understood that a right with a delayed remedy would be hollow, so it
included a provision for temporary reinstatement of the miner. (“The Committee
feels that this temporary reinstatement is an essential protection for
complaining miners who may not be in the financial position to suffer even a
short period of unemployment or reduced income pending the resolution of the
discrimination complaint.” Id. at 35.) Though Congress included short
timeframes for the investigation and complaint, it was abundantly clear that no
miner should suffer as a result of delay, stating, “[i]t should be emphasized,
however, that these time frames are not intended to be jurisdictional. The
failure to meet any of them should not result in the dismissal of the
discrimination proceedings; the complainant should not be prejudiced because of
the failure of the Government to meet its time obligations .” Id. at
36 (emphasis added). Based on the Act and congressional intent, neither a judge
nor the Commission can lightly dissolve or toll a temporary reinstatement.

While the law
gives the Secretary a great deal of flexibility in meeting its deadlines, it
does not allow for an investigation to proceed indefinitely. By its very
nature, a temporary reinstatement was intended to be temporary, and evidence of
undue delay by the Secretary, along with actual prejudice to the Respondent,
may be grounds for a court to take extraordinary action. Such an inquiry must closely
examine the facts of the case to determine if extraordinary action in
warranted. In this case at this time, even accepting
Respondent’s proposed Long Branch test, which balances the Secretary’s
need to proceed against the prejudice faced by the Respondent, a dissolution or
tolling of the Order Granting Temporary Economic Reinstatement is not yet
warranted.

The
Secretary justified its need for additional time in this case by informing this
tribunal that on August 18, 2021, Complainant filed an Addendum to her
discrimination complaint naming Custom Staffing as an additional Respondent to
her complaint. Sec’y Response to TR Order at ¶5. Complainant had not
received legal advice when she filed her initial complaint and did not
understand the legal distinctions between Prairie State and Custom Staffing. Sec’y
Opposition to Resp. Motion at ¶3. The Secretary has confirmed that within a
week of receiving this Addendum, it began requesting documents and interviews
from Custom Staffing and is diligently investigating the allegations. Id.
at ¶6.

The
Secretary should have concluded his investigation into this expedited case in a
more timely manner, but the employment relationship in this case is more
complicated than in most instances. This has led to disagreements over whether
the Complainant’s employment was actually terminated because she remained
employed for Custom Staffing, even after being removed from the Prairie State
assignment. Resp. Mot. To Dismiss at ¶3-11. There were disagreements on
whether a remedy could be effectuated by Prairie State alone, because the
contract between Prairie State and Custom Staffing appeared to be silent on
whether Prairie State could recall someone for a temporary work assignment. Resp.
Reply to Sec’y Opposition . These are not issues that arise in most discrimination
cases. And while Respondent is free to structure its business and employment
relationships in whatever manner it chooses, its complaint about delay is less
convincing when a complicated employment relationship takes longer to investigate.

With regards to question
of prejudice, Respondent argues that it is prejudiced in two ways. The first is
that it must continue to pay Complainant during the course of the
investigation, and the second is “the potentially infinite delay proposed by
the Secretary.” Resp. Motion to Dissolve TR at ¶21, 28. Both of these
reasons fail to demonstrate actual prejudice. In considering whether a delay by
the Secretary in making a discrimination determination has resulted in
prejudice such that a dismissal may be appropriate, the Commission has held
that the Respondent must show that “such delay prejudicially deprives a respondent
of a meaningful opportunity to defend the claim.” Sec’y ex rel. Hale v. 4-A
Coal Co. Inc ., 8 FMSHRC 905, 908 (June 1986).

The first
reason that Respondent invokes to establish prejudice is true in every temporary
reinstatement case and cannot constitute actual prejudice. As the Commission
recently stated:

Under the Mine Act, if a mine
operator has a duty to reinstate a miner, the operator must continue to fulfill
that obligation during the period prior to a reinstatement hearing. Temporary
reinstatement is an essential protection for miners, and Congress intended
employers to bear the proportionately greater burden of risk in temporary
reinstatement proceedings.

Sec’y of Labor obo James
McGoughran v. Lehigh Cement Co., LLC , 42
FMSHRC 467, 471 (July 2020). Insofar as Respondent is arguing that it is
prejudiced because it is paying Complainant while not receiving any labor in
return, this too cannot constitute prejudice because Respondent chose temporary
economic reinstatement in lieu of temporary reinstatement. [1]

The second reason that
Respondent advances to establish prejudice must also fail as it is too
speculative at this time. The Secretary’s inability to provide at present a
date for the end of its investigation is not proof that it will proceed indefinitely.
Indeed, if the Secretary’s investigation drags on for too long without good
reason, and the Respondent can show actual prejudice at that time, the
undersigned will consider a renewal of this Motion with updated facts and arguments
However, that moment has not yet arrived.

The
Respondent further suggests that the undersigned toll the Temporary Economic
Reinstatement pending completion of the investigation. This option is simply
not permissible under existing Commission caselaw, although the undersigned is
sympathetic to this alternative. In a recent decision, the Commission held that
a judge abused her discretion when she tolled a temporary reinstatement due to
technical difficulties that led to delays in the hearing. Lehigh Cement,
42 FMSHRC 467. In reversing the judge, the Commission succinctly outlined the
parameters of when a judge should toll temporary reinstatement:

The
Commission has recognized that the occurrence of certain events may toll an
operator's temporary reinstatement obligation. The types of “events” which may
justify tolling are those which would affect the availability of relevant work
at the mine for the miner at issue, such as a layoff due to business
contraction. See Sec'y of Labor on behalf of Gatlin v. KenAmerican Res.,
Inc. , 31 FMSHRC 1050, 1054-56 (Oct. 2009) (finding the Judge erred in
failing to consider “changes that occur at the mine” and explaining that the
operator must show that work was unavailable for the discriminatee);  Sec'y
of Labor on behalf of Anderson v. A&G Coal Corp. , 39 FMSHRC 315, 319-20
(Feb. 2017) (finding tolling inappropriate where the miner may not have
properly been included in the layoff). The purpose of temporary reinstatement
is to provide the miner with an income through a return to work until the
complaint is resolved. North Fork , 33 FMSHRC at 592. The obligation to
temporarily reinstate may logically be tolled when work at the mine is no longer
available for the relevant miner.

Id. at 470.  The Commission explicitly rejected respondent’s arguments
that tolling was justified by factors other than availability of work at the
mine, and also rejected the Judge’s justification for tolling due to economic
harm to the operator and unjust enrichment of the miner. Id. at n. 4, 5.

WHEREFORE ,
the Respondent’s Motion to Dissolve Order Granting Joint Motion to Approve
Temporary Economic Reinstatement Motion and Agreement is DENIED, WITHOUT
PREJUDICE .

It
is FURTHER ORDERED that the Secretary shall provide to the undersigned a
detailed status update on the investigation and when it is expected to be
completed every 21 days until a determination has been made or a new motion
filed by Respondent Prairie State.

Thomas
McCarthy

Administrative
Law Judge

Distribution: (Email)

Suzanne F. Dunne, Esq., Office
of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, Rm. 844, Chicago,
IL 60604; [email protected]

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

Wes Addington, Esq., Appalachian
Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858; [email protected]

Arthur Wolfson, Esq., Fisher Phillips
LLP, Six PPG Place, Suite #830, Pittsburgh, PA 15222; [email protected]

/mzm

[1] The Respondent is free to move for temporary economic
reinstatement in lieu of economic reinstatement. See Sec’y of Labor obo
Dustin Rodriguez v. C.R. Meyer and Sons Co ., 35 FMSHRC 811, 813-814 (April
2013) (“The economic cost it bears … can be mitigated by making use of [the
miner’s] services.”)