Secretary of Labor obo Jeffrey S. Brewer v. Monongalia County Coal Company

Plain-English summary

Monongalia County Coal moved to dismiss Jeffrey Brewer's Mine Act discrimination case because Brewer filed his MSHA complaint 29 days after the 60-day period and the Secretary filed the Commission complaint 21 days late. Brewer said he misunderstood the filing requirements and believed he first had to complete the union grievance and arbitration process. Judge Kenneth R. Andrews found the miner's explanation reasonable and emphasized that the statutory time limits are not jurisdictional. The Secretary attributed its delay to an attorney's unexpected resignation and reassignment of the case. Because the delays were short and the company showed no material legal prejudice, the Judge denied both motions to dismiss and allowed the discrimination case to proceed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: Monongalia County Coal's motions to dismiss the original and amended discrimination complaints were denied.
• Key point: A late discrimination filing does not require dismissal when circumstances justify the delay and the operator shows no material legal prejudice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

on
behalf of JEFFREY S. BREWER,

Complainant,

v.

MONONGALIA
COUNTY COAL COMPANY,

Respondent,

DISCRIMINATION
PROCEEDING

Docket
No. PENN 2016-240-D

MSHA
Case No.: MORG-CD-2016-14

Mine:
Monongalia County Mine

Mine
ID: 46-01968

ORDER DENYING
RESPONDENT’S MOTIONS TO DISMISS

Before:           
Judge Andrews                                 

Pursuant to
section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. §801, et.
seq., and 29 C.F.R. §2700.40, the
Secretary of Labor (“Secretary”) on June 3,
2016, filed a Complaint on behalf of miner Jeffrey S. Brewer (“Complainant”),
alleging that Brewer was discriminated against in violation of his rights under
the Mine Act. On July 8, 2016, Secretary filed a First Amended Complaint on
behalf of Brewer, attaching Exhibit A, which was omitted from the original
complaint, and adding in the penalty assessment, with corresponding Exhibit B. Respondent
filed respective Answers and Defenses to the Complaints.

On
July 5, 2016, Respondent filed a Motion to Dismiss
Complaint based on the miner’s and Secretary’s untimely filing of discrimination
complaints, and on July 15, 2016, Respondent filed a Motion to Dismiss First
Amended Complaint for the same reasons. Respondent argues that the Mine Act
contains a 60-day statute of limitations, after which a miner may not file a
discrimination complaint, unless there are justifiable circumstances. In the
instant case, the miner filed his discrimination complaint 89 days after the
alleged discrimination occurred, and the Respondent argues that the miner knew
of his rights under the Mine Act, but chose to pursue relief through a
grievance procedure instead. Respondent also argues that the Secretary failed
to timely file a discrimination complaint on behalf of Brewer, within the
120-day filing period.

The Secretary responded by arguing that Brewer was
unaware of his rights under the Mine Act, as well as filing requirements
contained in the Act. Furthermore, the delay was relatively short, and
Respondent alleged no material prejudice. Additionally, the Secretary argues
its failure to timely file occurred because of an unexpected resignation and
reassignment of the case in the Solicitor’s office, which should not prejudice
the Complainant. Therefore, the Secretary argues that the matter should not be
dismissed.

As Judge Miller has noted,

[t]he
Commission's procedural rules do not provide formal guidance on a motion to
dismiss for failure to state a claim. However, Commission judges addressing
similar motions have been guided by Federal Rules of Civil Procedure 12(b)(6)
and 12(c) and treated those filings as motions for summary decision. See
e.g., Sec'y of Labor on behalf of Chaparro v. Comunidad Argricola
Bianci, Inc., 32 FMSHRC 1517 (Oct. 2010) (ALJ).

Mona Kerlock v. Asarco, LLC, 36 FMSHRC 2404, 2405 (Aug.
27, 2014).

Commission Procedural Rule 67 sets forth the grounds for granting
summary decision and requires that it shall be granted only if the entire
record 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. The Commission has explained that summary decision is an
extraordinary procedure, and, in reviewing the record, the judge should do so
in the light most favorable to the non-moving party. Energy West Mining
Co., 16 FMSHRC 1414, 1419 (July 1994); Hanson Aggregates New York, Inc.,
29 FMSHRC 4, 9 (Jan. 2007).

I.          Complainant’s Failure to Timely File His
Discrimination Complaint

The relevant facts in this
matter are that Brewer was suspended with intent to discharge on October 16,
2015. Brewer grieved the matter, and on December 30, 2015, following an
arbitration hearing, the suspension with intent to discharge was upheld. Brewer
filed a discrimination complaint with MSHA on January 14, 2016—89 days after
his initial suspension and 15 days after the arbitration decision. This was 29
days past the 60-day statutory filing period.

Any miner who believes he
has been discriminated against due to protected activity has the right under
the Act to file a discrimination complaint with the Secretary within 60 days of
the alleged violation. 30 U.S.C. §815(c)(2). The Commission has held that “the
time limits in sections 105(c)(2) and (3) ‘are not jurisdictional’ and that the
failure to meet them should not result in dismissal, absent a showing of
‘material legal prejudice.’” Sec’y of Labor ex rel. Nantz v. Nally &
Hamilton Enterprises, 16 FMSHRC 2208, 2215 (Nov. 1994) (citing Sec’y of
Labor obo Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986)). Further,
the legislative history plainly states that discrimination filing periods are
not meant to be jurisdictional.[1]
A miner is not time barred from a discrimination claim when a miner has “justifiable
circumstances” for a delay in filing. Gary D. Morgan v. Arch of Illinois,
21 FMSHRC 1381, 1386 (Dec. 1999). Justifiable circumstances are evaluated on a
case-by-case basis. Id. An example of a justifiable circumstance is when
a “miner within the 60–day period brings the complaint to the attention of
another agency or to his employer, or the miner fails to meet the time limit
because he is misled as to or misunderstands his rights under the Act.” David
Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), citing
legislative history, S.Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted
in Senate Sub-committee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 624 (1978).

In the Secretary’s Motion, it states
that Brewer did not understand what type of violation “could trigger the time
limit under the Act and erroneously believed that the arbitrator’s decision was
an adverse discriminatory act.” Sec’y Resp. to Resp’t Mot. to Dismiss at 5. Further,
Brewer mistakenly believed, with his union’s guidance, that prior to filing a
§105(c) complaint he had to first exhaust other remedies, including
arbitration. Id. at 4. Therefore, Brewer first brought his complaint to
his employer and arbitrated the issue. Id.

Respondent argues that Brewer was aware
of his rights under the Mine Act and failed to timely file his discrimination
complaint. Respondent also argues that Brewer clearly knew of his Mine Act
rights because he previously filed a 105(c) complaint, 103(g) complaints with
MSHA, and made safety complaints to mine management. Mem. of Law. in Supp. of
Resp’t First Mot. To Dismiss at 7. I find that any previous experience
Complainant has filing 105(c) complaints does not necessarily relate to the
circumstances of this case. Complainant’s prior instance of filing a
discrimination or 103(g) complaint did not by necessity grant him an
understanding of the filing deadlines and exceptions under the Act. Furthermore,
Respondent fails to provide any material prejudice caused by the untimely
filing of the discrimination complaint.

Respondent relies primarily on Hollis
to support its argument that Complainant did not timely file a
discrimination complaint. Hollis v. Consolidation Coal, 6 FMSHRC 21 (Ja.
1984). However, Hollis is distinguishable from this case. In Hollis,
an evidentiary hearing was held, and the ALJ found the miner’s claim of
ignorance concerning his rights under the Act were not credible. Hollis v.
Consolidation Coal Co., 4 FMSHRC 1974 (Nov. 12, 1982) (ALJ Melick). “Noting
its limited role in reviewing a judge’s credibility determinations, the
Commission found that the judge’s conclusions were appropriate because the
miner filed his complaint 133 days late, despite his assertions that he was
knowledgeable about the Mine Act, that he was a militant chairman of the Safety
Committee, and that he had written notice in his arbitration decision of
remedies available under the Mine Act.” Sec’y on behalf of Scoles v.
Harrison County Coal Co., 2016 WL 2956692 at *2 (May 2016)(ALJ) citing Hollis,
6 FMSHRC at 24-25.

In the instant case, there was no factual
evidence brought forth demonstrating that Brewer knew of the time limitations
or his rights under §105(c) of the Act. Brewer’s delay in filing was also only
29 days. Moreover, recent case law has indicated that miners who alleged
ignorance of their Mine Act rights and filed shortly after the 60-day filing
period are not time barred from asserting their discrimination complaints when
there is no evidence of material prejudice for Respondent. See e.g. Daniel
C. Howell v. Capitol Cement Corp., 23 FMSHRC 901 (Aug. 6, 2001) (ALJ
Bulluck) (4 month delay in filing permitted where miner claimed he lacked
knowledge of discrimination procedure); Sec’y of Labor obo Smith v. Jim
Walters Resources, Inc., 21 FMSHRC 359 (March 23, 1999) (ALJ Melick)
(10 month delay excused by filing within 61 days of first learning of section
105(c) and no claim of prejudice by Respondent); Sec’y of Labor obo Rocoe
Ray Young v. Lone Mountain Processing, Inc., 20 FMSHRC 1233 (Oct. 27, 1998)
(ALJ Melick) (permitting complaint filed 21 days late); Sec’y of Labor on
behalf of Franco v. W.A. Morris Sand and Gravel, Inc., 18 FMSHRC 278
(Feb. 15, 1996) (ALJ Manning) (delay of 107 days justified by prompt filing
after Complainant first became aware of his rights under the Act).

II.        The
Secretary’s Failure to Timely File a Discrimination Complaint on behalf of Complainant

Respondent also argues the Secretary
failed to timely file a discrimination complaint within 120 days of receiving
Complainant’s discrimination complaint. In Sec’y on behalf of Howard v. Cave
Spur Coal, LLC, the court cited Secretary, ex rel. Donald R. Hale v. 4-A
Coal Company, 8 FMSHRC 905 at 908 (June 1986), stating:

‘… we hold that
the Secretary is to make his determination of whether a violation occurred within
90 days of the filing of the miner's complaint and is to file his complaint on
the miner's behalf with the Commission “immediately” thereafter -- i.e.,
within 30 days of his determination that a violation of section 105(c)(1)
occurred. If the Secretary's complaint is late-filed, it is subject to
dismissal if the operator demonstrates material legal prejudice attributable to
the delay. Cf. David Hollis v. Consolidation Coal Co., 6
FMSHRC 21, 23-25 (January 1984), aff'd mem., 750 F.2d 1093
(D.C. Cir. 1984) (table); Walter A. Schulte v. Lizza Industries,
Inc., 6 FMSHRC 8, 12-14 (January 1984).’

Sec’y
on behalf of Howard v. Cave Spur Coal, LLC, 25 FMSHRC 471,487 (Aug.
2003)(ALJ).

Therefore, in a case where the Secretary
untimely files a discrimination complaint, “without a showing that the delay
prejudiced the Respondents, dismissal is not warranted.” Id. This is in
line with the legislative history, which makes clear that a Complainant should
not be penalized for the Government’s failure to timely file a discrimination
complaint. S. Rep. 95-181 at 36.

The
Secretary filed its first complaint 21 days after the 120 day time period
expired.  The Secretary attributes this short delay to the reassignment of this
case to another attorney after the unexpected resignation of an attorney in the
Solicitor’s Office. Sec’y Resp. to Resp’t Mot. to Dismiss at 9. This delay was
for a short period of time after the filing time period, and Respondent failed
to show that the delay caused any material prejudice. Further, the Complainant
should not be penalized because of the Secretary’s failure to timely file.

Consequently, the miner’s justifications for filing
his complaint 29 days late appear reasonable, and Respondent has not alleged
that it has been prejudiced by the delay in filing. The Secretary’s
justifications for filing a complaint and amended complaint on behalf of Brewer
21 days late also appear reasonable and have not caused material prejudice for the
Respondent. Accordingly, the Motions to Dismiss are DENIED.

/s/
Kenneth R. Andrews

Kenneth
R. Andrews

Administrative
Law Judge

Distribution:

Pilar
Castillo, Esq., U.S. Department of Labor, Office of the Regional Solicitor, The
Curtis Center, Suite 630E, 170S. Independence Mall West, Philadelphia, PA 19106

Philip
K. Kontul, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG
Place, Suite 1900, Pittsburgh, PA 15222

/ktw

[1]
Referring to discrimination cases, the Senate Committee stated:

It 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.

S. Rep. No. 181, 95th Cong., 1st
Sess. 24 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, 3401,
2436 (1978).