Metric Constructors, Inc.

Plain-English summary

Metric Constructors argued that Brian S. Ousley's discrimination complaint was too late and that the Secretary's delay had prejudiced the company. Judge Avram Weisberger found that the complaint stated a non-frivolous claim, that the Secretary had some explanation for the delay, and that the company had not shown material legal prejudice. He denied the motion to dismiss or for summary decision.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The motion to dismiss or for summary decision was denied, and the discrimination case continued.
• Key point: A delay in filing a discrimination complaint is not enough for dismissal without a showing of material legal prejudice.

Full text (FMSHRC public release)

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

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) Docket No. SE 87-85-DM
ON BEHALF OF BRIAN S. OUSLEY,
COMPLAINANT MD 86-18

         v.                          C.P.L. Plant

METRIC CONSTRUCTORS, INC.,
RESPONDENT

               ORDER DENYING RESPONDENT'S MOTION
               TO DISMISS OR FOR SUMMARY DECISION

 In its Answer, filed on June 16, 1987, Respondent moved to

dismiss "or For Summary Decision." On June 23, 1987, the
Secretary, on behalf of the Complainant, filed a motion to extend
the time to reply to Respondent's motion. On June 24, 1987, an
order was entered extending the time for the Secretary to reply
to this motion until July 13, 1987. On July 14, 1987, the
Secretary filed its response to the Respondent's motion.

 In essence, the basis for the Respondent's motion is that

the complaint herein is time-barred. The alleged act of
discrimination occurred on January 21, 1986, and a complaint was
filed with MSHA on February 3, 1986. MSHA conducted an
investigation but did not, within 90 days after the filing of the
claim with MSHA or at any time, issue any determination of a
violation of the Federal Mine Safety and Health Act. On May 12,
1987, a complaint of discrimination was filed with the
Commission.

 Judge Broderick, in Secretary v. Jim Walter Resources, Inc.,

9 FMSHRC 263 (February 1987), analyzed the relevant law with
regard to the time obligations of the Act. I concur in his
analysis as follows:

      The Act further provides that upon receipt of a
      complaint by a miner, the Secretary shall commence an
      investigation within 15 days, and if he determines that
      discrimination has occurred, shall immediately file a
      complaint with the Commission. It directs the Secretary
      to notify the miner within 90 days of the receipt of a
      complaint of his determination whether a violation has
      occurred. The Legislative History of the

      Act makes it clear that this time limitation is not
      jurisdictional and that Complainant should not be prejudiced by
      the failure of the Government to meet its time obligations.
      S.Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in
      Senate Subcommittee 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). However the Commission has
      held that a long delay coupled with a showing of prejudice to the
      operator may subject the complaint to dismissal. Secretary/Hale
      v. 4-A Coal Company, Inc., 8 FMSHRC 905 (1986). (Secretary v. Jim
      Walter Resources, Inc., supra, at 266).

 In essence, it is Respondent's position that the complaint

herein is frivolous and that there is no justification for the
delay by the Secretary in filing the complaint more than a year
after the period established in the Act. Without making any
decision as to the merits of this action, I find that the
allegations in the complaint do state a cause of action under the
Act, and as such the complaint is not frivolous. Furthermore,
according to the affidavit of July 9, 1987, of William H. Berger,
("Attach" 4 to the Secretary's response), the case was received
in the Atlanta Regional Solicitor's Office on June 11, 1986, and
in August 1986, when Berger contacted the Complainant about the
case, he was informed that the latter had instituted a State
Court Action arising out of the same transaction alleged in the
MSHA complaint, except that "the State Law supposedly provided
for punitive damages." Berger then informed the Complainant and
his attorney, Ronald S. Webster, that the Department of Labor
would not proceed with his case while the State Court proceeding
was ongoing. Berger stated that he was told by both the
Complainant and Webster, on several occasions, that they desired
to proceed in State Court because of the possibility of
recovering punitive damages. Berger stated in his affidavit that
in mid December 1986 he was informed, by the Complainant, that
the State Court had denied any claim for punitive damages and
that he, the Complainant, wished to proceed with the MSHA claim.
The case was subsequently transferred to the National Solicitor's
Office on March 11, 1987. Based upon the affidavit of Berger, I
conclude that there was some justification for the Secretary's
delay in filing a complaint in this matter.

 In addition, the Respondent alleges that it has suffered

substantial prejudice, by reason of Respondent's delay in bring
this action, in that all material witnesses have been laid off,
and that it has been denied an opportunity to conduct discovery
and defend the claim while witnesses and documentary evidence
were readily and inexpensively available. Respondent also argued

that the residences of key witnesses, including Elmer Podratz and
Michael O. Webb, are outside the State of Florida and unknown.
However, it appears from the affidavit of John K. Day, Jr., that
Podratz (who left the Respondent on or about July 10, 1986), and
Webb (who left the Respondent on May 15, 1987) are, to the best
of Day's knowledge, residing in Charlotte, North Carolina and
Louisiana respectively. No facts are alleged to establish any
reason why Podratz and Webb cannot be subpoened to testify in
this matter. The same pertains to Duke Roberts and James
Wilkerson who, accordingly to the affidavit of Day, left the
Respondent on May 28, 1987 and January 9, 1986 respectively, and,
to the best of Day's knowledge, are residing in Virginia and
Washington State respectively.

 According to Day's affidavit, Fred K. Coogle and Robert

Baker left the Respondent on July 9, 1986 and October 6, 1986,
and as to each of them Day indicated "I do not know his current
whereabouts." Respondent has not described in any detail the
scope of any prospective testimony of Coogle and Baker. As such,
it has not been established that their testimony is critical to
Respondent's case. Further, Respondent has not set forth any
facts which would establish that Coogle and Baker can not be
served with a subpoena. The fact that Day does not know their
current whereabouts does not establish that Respondent has no way
of locating these individuals.

 According to the affidavit of Day, the other individual

having knowledge as to the fact and circumstances surrounding the
Complainant's termination is John Camball, who is currently
employed by Respondent and certainly is available to testify.

 Therefore, accordingly, I find that Respondent has not shown

material legal prejudice attributable to the Secretary's delay in
filing the complaint with the Commission. (See Secretary/Hale v.
4-A Coal Company, Inc., 8 FMSHRC 905 (June 1986).

 Based upon all the above, and in the interest of justice, it

is ORDERED that Respondent's Motion to Dismiss or for Summary
Decision is DENIED.

                                 Avram Weisberger
                                 Administrative Law Judge
                                 (703) 756-6210