Felix Maurice Sykes v. Har-Lee Coal Company

Plain-English summary

Felix Maurice Sykes, a miner and roof bolter operator, alleged that Har-Lee Coal Company discriminated against him for raising safety concerns. Sykes did not appear at the scheduled hearing, did not request a continuance, and did not explain his absence. Based on the respondent's uncontested offer of proof, Judge Irwin Schroeder found that Sykes's pay and privileges had not been reduced, that his employment ended through a voluntary resignation, and that Har-Lee had not discriminated against him. The complaint was dismissed.

Decision snapshot

• Cited standard: 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination complaint was dismissed.
• Key point: The judge ruled for the respondent after the complainant failed to attend the hearing and the respondent's offer of proof was accepted as true.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                                       July 17, 2002

FELIX MAURICE SYKES, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. VA 2002-33-D
v. : NORT CD 2002-02
:
:
HAR-LEE COAL COMPANY, : Mine ID 44-06966
Respondent : No. 10 Mine

                                       DECISION

Appearances: Felix Maurice Sykes, Clintwood, Virginia, Pro Se, for the Complainant;

           Louis Dene, Esq., Dene & Dene, Abingdon, Virginia, for the Respondent.

Before: Judge Schroeder

                                       Introduction

   This case is before me on the Complaint filed by Mr. Felix Maurice Sykes pursuant to

Section 105(c)(3) of the Mine Safety Act. The Complaint alleged discrimination by the
Respondent in violation of Section 105(c)(1). All the conditions necessary to file a complaint
were satisfied by Mr. Sykes. A hearing was scheduled on July 9, 2002, and notice of the hearing
was served on both parties. Verification of receipt of the notice was made by telephone
approximately one week prior to the hearing.

     On July 9, 2002, at the schedule time and place, the hearing was commenced. Mr. Sykes

failed to appear even after waiting a reasonable time to allow for difficulties in transportation.
Mr. Sykes has failed to apply for a continuance of the hearing or to provide an explanation for his
failure to appear.

    At the hearing, Mr. Dene provided an offer of proof as to the testimony which would be

provided by his four witnesses if they were required to testify. In the absence of objection to the
offer of proof, I accept as true the factual matters that Mr. Dene described.

                                Findings and Conclusions

   Complainant was employed by the Respondent as a miner for less than a year. His usual

assignment was a roof bolter operator. Mr. Sykes' pay and privileges as a roof bolter operator

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have never been reduced by the Respondent. Each time Mr. Sykes has expressed concern about
safety, Respondent's mine management has taken reasonable and prompt steps to investigate his
concerns and to take appropriate corrective action if necessary. Mr. Sykes' employment was not
terminated by Respondent because of expression of safety concerns. Mr. Sykes voluntarily
resigned his position with the Respondent after refusing to continue working in the mine.
Respondent has not discriminated against Mr. Sykes in violation of Section 105(c)(1) of the
Mine Safety Act.

                                         Order

    For the foregoing reasons, I find in favor of the Respondent and against the Complainant

on the issues in this case. Accordingly, the complaint is DISMISSED.

                                        Irwin Schroeder
                                        Administrative Law Judge

Distribution:

Mr. Felix Maurice Sykes, Rt. 1, Box 463, Clintwood, VA 24228 (Certified Mail)

Louis Dene, Esq., Dene & Dene, P.C., Box 1135, 138 Court St., N.E., Abingdon,
VA 24210 (Certified Mail)

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