Monterey Coal Company (ALJ decision, September 10, 1987)

Plain-English summary

Paula L. Price complained that Monterey Coal Company discriminated against her after suspending her for refusing to wear metatarsal safety boots that she said did not fit, caused foot injuries, and created a safety hazard. The Secretary told Price that her complaint had been satisfied and that no further pursuit was required, but did not determine that no violation had occurred. A Commission decision issued while Price's case was pending invalidated the part of former Rule 40(b) that allowed a private complaint after 90 days without a determination. Applying that decision, Judge Gary Melick held that he lacked authority to continue Price's private discrimination proceeding and dismissed it. The Commission later directed review of that dismissal.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2), 30 U.S.C. § 815(c)(3), and 29 C.F.R. § 2700.40(b)
• Outcome: The discrimination proceeding was dismissed for lack of legal authority to continue it.
• Key point: The Commission invalidated the former rule allowing a private action based only on the Secretary's failure to decide within 90 days; the judge applied that ruling to dismiss this pending complaint.
• Subsequent review: The Commission later vacated its prior direction for review and remanded the case for further proceedings in lake-86-45-d-commission-2.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

PAULA L. PRICE,
DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. LAKE 86-45-D
v. VINC CD 85-18

MONTEREY COAL COMPANY,
Monterey No. 2 Mine
RESPONDENT

AMENDED DECISION

Appearances: Linda Krueger MacLachlan, Esq., St. Louis, Missouri for the Complainant;
Thomas C. Means, Esq., Crowell & Moring, Washington, D.C. for the Respondent.

Before: Judge Melick

On July 28, 1985, Paula L. Price filed a complaint of discrimination with the Secretary of Labor under Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et. seq., the "Act" (FOOTNOTE 1) , alleging inter alia that Monterey Coal Company (Monterey) discriminated against her in violation of Section 105(c)(1) of the Act by suspending her for refusing to wear metatarsal safety boots provided by Monterey. Ms. Price maintains that the boots did not fit, caused foot injuries and presented a health and safety hazard.

Thereafter, on January 7, 1986, the Secretary's representative responded to the Complaint. The letter reads as follows:

Your complaint of discrimination under section 105(c) of the Federal Mine Safety and Health Act of 1977 has been investigated by a special investigator of the Mine Safety and Health Administration (MSHA).

A review of the information gathered during the investigation has been made. On the basis of that review, MSHA has determined that your complaint of discrimination has been satisfied and that no further pursuit of the complaint is required.

If you should disagree with MSHA's determination, you have the right to pursue your action and file a complaint on your own behalf with the Federal Mine Safety and Health Review Commission at the following address:

Federal Mine Safety and Health Review Commission 1730 K Street N.W.

Washington, D.C. 20006 (202) 653Ä5629
Section 105(c) provides that you have the right, within 30 days of this notice, to file your own action with the Commission.

After further unsuccessful efforts to have the Secretary represent her under section 105(c)(2) of the Act, Ms. Price filed the instant proceedings under Section 105(c)(3) of the Act and under what was then Commission Rule 40(b). (FOOTNOTE 2)

In her initial request to the Commission Ms. Price stated in part as follows:

I would like to file a complaint in my own behalf concerning discrimination under section 105(c) of the Federal Mine Safety and Health Act of 1977. MSHA has determined my complaint has been satisfied. I feel it has only been partially satisfied.

Subsequently, in a decision issued on August 25, 1987, a majority of the Commission invalidated Rule 40(b) in part and stated as follows:

Section 105(c) does not provide that complainants may file complaints on their own behalf if the Secretary has not determined whether a violation has occurred within 90 days of the filing of the complaint. To the contrary section 105(c)(3) expressly provides that the complainant may file his private action only after the Secretary has informed the complainant of his determination that a violation has not occurred:

Within 90 days of the receipt of the complaint filed under [Section 105(c)(2) ], the Secretary shall notify, in writing, the miner . . . of his determination whether a violation has occurred. If the Secretary, upon investigation, determines that the provisions of [section 105(c) ] have not been violated, the complainant shall have the right within 30 days of the Secretary's determination, to file an action on his own behalf before the Commission, charging discrimination or interference in violation of [section 105(c)(1) ].

Gilbert v. Sandy Fork Mining Company Inc. and Secretary on behalf of Gilbert v. Sandy Fork Mining Company Inc., Dockets No. KENT 86Ä49ÄD and KENT 86Ä76ÄD, slip opinion p. 11.

In that decision the majority also held that its ruling therein was applicable to any individual discrimination complaint then pending before the Commission.

In light of the above it is clear that I am now without

legal authority to continue the instant proceeding under section 105(c)(3) of the Act. The Secretary has not informed the Complainant herein of a determination that a violation has not occurred. (FOOTNOTE 3) Accordingly I have no choice but to dismiss this case.

ORDER

Discrimination Proceeding Docket No. LAKE 86Ä45ÄD is hereby dismissed.

Gary Melick
Administrative Law Judge
(703) 756Ä6261
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE

1 Section 105(c)(2) of the Act provides as follows:

Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or otherwise 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. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation to be made as he deems appropriate. Such investigation shall commence within 15 days of the Secretary's receipt of the complaint, and if the Secretary finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall immediately file a complaint with the Commission, with service upon the alleged violator and the miner, applicant for employment, or representative of miners alleging such discrimination or interference and propose an order granting appropriate relief. The Commission shall afford an opportunity for a hearing; (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section) and thereafter shall issue an order, based upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or directing other appropriate relief. Such order shall become final 30 days after its issuance. 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. The complaining miner, applicant, or representative of miners may present additional evidence on his own behalf during any hearing held pursuant to this paragraph.

~FOOTNOTE_TWO
2 Commission Rule 40(b), 29 C.F.R. 2700.40(b), then provided as follows:

A complaint of discharge, discrimination or interference under section 105(c) of the Act may be filed by the complaining miner, representative of miners, or applicant for
employment if the Secretary determines that no violation has occurred, or if the Secretary fails to make a determination within 90 days after the miner complained to the Secretary.

~FOOTNOTE_THREE
3 On the contrary, testimony at hearings in this case indicates that the Secretary's representatives found that there was a violation of section 105(c) but decided that in light of the purportedly small amount of damages involved and the heavy caseload in the Solicitor's office the case was not significant enough for the Secretary to pursue. Tr. 2589Ä2590.