Scott McGlothlin v. Dominion Coal Corporation

Plain-English summary

Scott McGlothlin claimed that Dominion Coal reduced his hourly pay after he exercised Part 90 protections based on pneumoconiosis. Part 90 allows an eligible miner to transfer to a lower-dust job without losing the regular rate of pay received immediately before exercising that option. Judge Jerold Feldman found that the timing of McGlothlin's Part 90 election and pay reduction appeared suitable for possible resolution on summary decision. He continued the scheduled hearing and set deadlines for McGlothlin's motion, Dominion's opposition, and reply briefs. The order did not decide whether Dominion violated the Mine Act.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 90.3 and 90.103
• Outcome: The hearing was continued without date and a summary-decision briefing schedule was established.
• Key point: The parties were directed to focus on whether the pay reduction coincided with the miner's Part 90 election and whether the pay-protection rule imposed liability.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

February 23, 2015

SCOTT MCGLOTHLIN,

Complainant,

v.

DOMINION COAL CORPORATION,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. VA 2014-233-D

NORT-CD-2013-04

Mine: Dominion No. 7

Mine ID: 44-06499

ORDER OF
CONTINUANCE

AND

ORDER
ESTABLISHING FILING SCHEDULE

This discrimination proceeding was previously
scheduled for hearing on February 24, 2015, in Pikeville, Kentucky. During telephone
conferences with the parties conducted on February 10 and February 11, 2015, Scott
McLothlin’s counsel represented that he intends to file a motion for summary
decision. As discussed below, a preliminary review of the facts reflects that
disposition through summary decision may be appropriate as it is not readily
apparent that there are disputed issues of material fact. Accordingly, the previously-scheduled
hearing shall be continued to permit consideration of McGlothlin’s
motion for summary decision and any opposition filed by Dominion Coal
Corporation (“Dominion”).

I.                  
Procedural Background

Section 101 of the Federal Mine Safety and
Health Act of 1977, as amended, 30 U.S.C.  § 811 (2006) (“the Act”), authorizes
the Secretary to promulgate, consistent with the provisions of section 553 of
the Administrative Procedure Act, 5 U.S.C. § 553, “mandatory health or safety
standards for the protection of life and prevention of injuries in coal or
other mines.” Part 90 of the Secretary’s regulations was “promulgated pursuant
to section 101 of the Act.” 30 C.F.R.   § 90.1. Under Part 90, a miner
determined by the Secretary of Health and Human Services to have evidence of
the development of pneumoconiosis is given the opportunity to work without loss
of pay in an area of the mine where the average concentration of respirable dust
in the mine atmosphere during each shift to which that miner is exposed is
continuously maintained at or below 1.0 milligrams per cubic meter of air
(“mg/m3”). 30 C.F.R. §§ 90.1, 90.3; see also Goff v.
Youghiogheny & Ohio Coal Co., 8 FMSHRC 1860 (Dec. 1986).

The anti-discrimination provisions of section
105(c) of the Act provide, in relevant part, that “[n]o person shall . . . in
any manner discriminate . . . or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner . . . [who] is
the subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 . . . .” 30 U.S.C. § 815(c)(1).

In February 2013, McGlothlin was an hourly
employee at the Dominion No. 7 Mine who was assigned to operate a continuous
miner at a rate of pay ranging from approximately $33.00 to $35.00 per hour. Based
on representations made by the parties during the February 10 and February 11,
2015, telephone conferences, it appears that McGlothlin was granted Part 90
status in June 2013 based on his medical condition. The parties further
represented that McGlothlin’s pay was reduced to approximately $25.00 per hour,
also in June 2013, after he was transferred to less dusty occupations,
including scoop operator and other job duties performed in outby areas of the
mine.

Section 90.103 requires a mine operator to “compensate
each [P]art 90 miner at not less than the regular rate of pay received by that
miner immediately before exercising the option under § 90.3 (Part 90
option; notice of eligibility; exercise of option).” 30 C.F.R. § 90.103
(emphasis added). A fair reading of sections 101 and 105(c)(1) of the Act, as
well as 90.103 of the Secretary’s regulations, reflects that the issue in this
proceeding is whether McGlothlin’s reduction in pay is a violation of section
105(c) of the Act because it interfered with transfer rights and pay protection
accorded to McGlothlin under section 90.103—a regulation promulgated pursuant
to section 101 of the Act.

II.               
Parameters for Summary Decision

Commission Rule 67 provides that a motion for
summary decision shall be granted if: “(1) 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(b). The issue in this proceeding is
whether McGlothlin’s reduction in pay violated section 90.103 of the
Secretary’s regulations. Given the “immediately before” provision in section
90.103, the material facts necessary for resolving this matter through summary
decision are whether there was, in fact, a coincidence in time between
McGlothlin’s exercise of Part 90 status and his reduction in pay, and, if so,
whether this coincidence in time precluded Dominion from reducing McGlothlin’s
hourly pay. The material dates of McGlothlin’s exercise of Part 90
protection, and the effective date of the reduction in his hourly rate of pay,
are readily ascertainable and should not be in dispute.

McGlothlin’s motion for summary decision should
be limited to the merits of his discrimination complaint. McGlothlin will have
the opportunity to submit a proposal for relief if Dominion is deemed to be
liable. In support of his motion for summary decision McGlothlin should provide
reports of relevant medical evaluations and diagnoses, as well as relevant
reports of objective clinical findings based on, but not limited to,
radiographic, MRI, or pulmonary function studies. McGlothlin should also
provide evidence of the date of his exercise of Part 90 status through relevant
copies of his “exercise of option form,” filed pursuant to section 90.3.  30
C.F.R. § 90.3. To support his alleged pay reduction, McGlothlin should provide
relevant pay stubs reflecting the date and change of his hourly rate of pay.

Any dispute regarding the documentation provided
in support of McGlothlin’s motion for summary decision may be addressed in
Dominion’s opposition. In addition, Dominion may address whether the
chronological evidence in this matter satisfies the “immediately before”
provision in section 90.103. Finally, Dominion should address whether the
“immediately before” provision imposes strict liability for any such reduction
in pay, or whether McGlothlin must demonstrate that the reduction was motivated
by, or made in contemplation of, his exercise of Part 90 status.

During the February 11, 2015, telephone
conference, the following filing schedule was established: A motion for summary
decision on behalf of McGlothlin must be filed on or before March 18, 2015;
any opposition by Dominion must be filed on or before April 17, 2015;
thereafter, the parties may simultaneously file reply briefs on May 1, 2015.

ORDER

In view of the above, as the parties have been
previously informed, IT IS ORDERED that the February 24, 2015, hearing
in this matter IS CONTINUED without date. IT IS FURTHER ORDERED that
the parties shall abide by the above filing schedule for the motion for summary
decision and the opposition, and replies, if any.

/s/
Jerold Feldman

Jerold
Feldman

Administrative
Law Judge    

Distribution:

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian
Citizens Law Center, Inc., 317 Main Street, Whiteburg, KY 41858

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC,
500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

/acp