Sean Miller v. Savage Services Corporation

Plain-English summary

Sean Miller alleged that Savage Services harassed and retaliated against him after he removed unsafe commercial vehicles from service and refused to operate an overweight or uncleared replacement truck. Savage sought summary decision, arguing that the MSHA complaint was late, no actionable adverse action occurred, the case exceeded MSHA's investigation, and a later termination case had superseded it. Judge William B. Moran excused the pro se miner's filing delay, limited the case to the original harassment events, and held that the separate termination proceeding did not replace this claim. He explained that coercive questioning or harassment tied to protected safety activity can itself violate the Mine Act even without a suspension, discharge, or demotion. Savage had acknowledged that its supervisor questioned Miller about his sexuality and had disciplined the supervisor for that conduct, leaving factual issues about the harassment and its effects. The Judge denied summary decision and kept the hearing on schedule.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 815(c)(3); 29 C.F.R. § 2700.67
• Outcome: Savage's motion for summary decision was denied, and Miller's harassment claim proceeded to hearing.
• Key point: Harassment or coercive questioning linked to protected safety activity may be actionable Mine Act interference even without a traditional employment penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9933 / FAX: 202-434-9949

May 4, 2015

SEAN
MILLER,

Petitioner,

v.

SAVAGE
SERVICES CORP.,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. WEST 2014-7-DM

RM
MD 2013-08

Mine:
Freeport-McMoRan Morenci Mine

Mine
ID: 02-00024 A3858

ORDER ON
RESPONDENT’S MOTION FOR SUMMARY DECISION

Before:           
Judge Moran

Before the Court
is Respondent Savage Services Corporation’s (“Savage”) Motion for Summary
Decision (“Savage Motion”).[1]
The Complainant, Sean Miller, is not an attorney and is bringing this action pro
se pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815(c)(3) (“Mine Act”), and 29 C.F.R. § 2700.40(b). For
the reasons that follow, the Respondent’s Motion is DENIED. The hearing in this
matter remains as scheduled, to commence on May 12, 2015, at the Graham County
Courthouse, 800 W. Main Street, Safford, Arizona.

Background

On
May 14, 2013, Sean Miller made a discrimination complaint with MSHA, which
complaint was received on May 17th. Mr. Miller alleged that he was “Harrassed
and Retaliated againsts (sic) for putting Commercial Vehicles Out of Service.” The
Complaint identified Isaiah Krass, assistant operations manager, and Richard
Burkie,[2]
another Savage supervisor, as the individuals who “harassed and retaliated
against[] [him] for putting commercial vehicles out of service.” MSHA
Discrimination Report May 14, 2013. Thereafter, on August 22, 2013, MSHA
advised Miller by letter that

[b]ased on a
review of the information gathered during the investigation, MSHA does not
believe that there is sufficient evidence to establish, by a preponderance of
the evidence that a violation of Section 105(c) occurred [and] [f]or that
reason, the Secretary of Labor will not file a discrimination case with the
Federal Mine Safety and Health Review Commission (“Commission”) in this matter.

The
letter noted that Miller “continue[s] to have the right to file a
discrimination case on [his] own behalf with the Commission.” Miller did just
that, submitting a letter to Carolyn T. James (“Ms. James”), Mine Safety and
Health Administration, 1100 Wilson Boulevard, Arlington, Virginia 22209-3939,
on September 30, 2013, which letter was then forwarded to the Commission and
date stamped as received on October 9, 2013. The letter to Ms. James identified
two instances of protected activity: (1) Miller’s taking his truck out of
service because of inoperable brakes, and (2) his refusal to drive an
overweight vehicle and his further refusal to use a replacement truck which had
not been cleared for service in place of the overweight vehicle.

At
this point, it is necessary to note that Miller subsequently made a second
discrimination complaint against Savage, which resulted in the Secretary filing
a complaint against Savage, identified as Docket No. WEST 2014-404, and
regarding which the Court issued its decision on April 30, 2015, finding that
Savage unlawfully discriminated against Sean Miller. The second discrimination
complaint was filed on or about October 21, 2013, and was based upon the claim
that Miller was unlawfully discharged on or about September 3, 2013. The second
complaint references Miller’s first complaint, alleging that around May 2,
2013, he was harassed and disciplined for taking vehicles out of service and it
identifies May 2, 2013, as one of the incidents of Miller’s protected activity.
The second complaint then related other alleged instances of protected activity
occurring after the matter raised in the first complaint.

Summary
Decision

The Commission’s
procedural rule governing summary decision, 29 C.F.R. § 2700.67, provides in
relevant part:

(b) Grounds.
A motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions,
and affidavits, 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.

. . . .

(d) Form of opposition.
An opposition to a motion for summary decision shall include a memorandum of
points and authorities specifying why the moving party is not entitled to
summary decision and may be supported by affidavits or other verified
documents. The opposition shall also include a separate concise statement of
each genuine issue of material fact necessary to be litigated, supported by a
reference to any accompanying affidavits or other verified documents. Material
facts identified as not in issue by the moving party shall be deemed admitted
for purposes of the motion unless controverted by the statement in opposition.
If a party does not respond in opposition, summary decision, if appropriate,
shall be entered in favor of the moving party.[3]

. . . .

(f) Case not fully
adjudicated on motion. If a motion for summary decision is denied in whole
or in part, the Judge shall ascertain what material facts are controverted and
shall issue an order directing further proceedings as appropriate.

29 C.F.R. §
2700.67 (emphasis added).

Savage’s
Motion for Summary Decision

On
April 3, 2015, Savage filed its motion for summary decision, alleging four
bases in support:

[1] Mr. Miller’s
complaint was filed with MSHA outside of the 60-day statutory time limit
imposed by Section 105(c) of the Mine Act without a justifiable excuse for that
delay;

[2] No adverse
action actionable under the Mine Act was taken against Mr. Miller as a result
of his protected activity;

[3] The
complaint now before the Commission alleges conduct that is outside the scope
of the complaint Mr. Miller filed with MSHA and to that extent is outside the
scope of the agency’s investigation and is not properly raised in his Section
105(c)(3) complaint; and

[4] This matter
has been superseded by Mr. Miller’s termination-related proceeding in No. WEST
2014-404-DM.

Savage
Motion at 5.

Because Miller is not an attorney and is
acting pro se, the Court had a conference call with the parties to
discuss Savage’s Motion on April 9, 2015. During that call, the Court ruled on
two of the bases advanced by Respondent. As to the first basis, that Mr.
Miller’s complaint was filed with MSHA outside of the 60-day statutory time
limit imposed by Section 105(c) of the Mine Act without a justifiable excuse
for that delay, the Court rules that Miller’s lack of sophistication in legal
matters excuses his delay. Beyond that finding, it is noted that Savage’s
objection relates to Miller’s complaint that he was harassed on January 31,
2013, and did not file the complaint with MSHA until some six weeks after the
60 day time limit. However, neither MSHA nor Savage previously raised, or had
an issue with, Miller’s delayed filing. Savage concedes that the deadline is
not jurisdictional. The Court finds that there was delay all around and that
Savage should have objected when MSHA first notified Savage that it was
investigating Miller’s complaint.

The second basis ruled upon by the Court
during the call pertains to Savage’s objection that the complaint now before
the Commission alleges conduct that is outside the scope of the complaint Mr.
Miller filed with MSHA, and to that extent is outside the scope of the agency’s
investigation, and is therefore not properly raised in his section 105(c)(3)
complaint. The Court disposed of that objection, but agrees with Savage that
Mr. Miller’s complaint can’t now be expanded from the basis which prompted him
to file it, namely the January 31, 2013, events, the harassment associated with
those events, and any harm he may have experienced from that harassment.

Although, sequentially, it was the last
of the four bases advanced by Savage, the Court turns to Respondent’s claim
that the matter has been superseded by Mr. Miller’s termination-related
proceeding in No. WEST 2014-404-DM. The first complaint was not superseded by
the second complaint, although some factual aspects of the first
complaint were addressed during the hearing held in June 2014. MSHA Special
Investigator Funkhouser testified that four safety incidents were considered in
this first complaint: a brake shoe issue; a brake line leak; a tire issue; and
an overweight truck incident. Investigator Funkhouser recommended that MSHA go
forward with that first complaint, but MSHA decided against that recommendation
and Miller then proceeded on his own in this present section 105(c)(3) action. Funkhouser
noted a difference between the first complaint and the second one: the adverse
action in the first complaint was harassment, while the second complaint
involved Miller’s employment termination. Transcript of Hearing at 237-48, Sec’y
of Labor on behalf of Miller v. Savage Services Corp., WEST 2014-404-DM (Apr.
30, 2015) (ALJ) [hereinafter Miller I].

The last of the bases raised by the
Respondent is that the complaint in this matter fails to assert that an
“adverse action actionable under the Mine Act was taken against Mr. Miller as a
result of his protected activity.” More particularly, Savage maintains that “Mr.
Miller was not suspended, discharged, disciplined, or even subjected to any
undesirable change in his work assignments. . . . Harassment, standing alone,
does not constitute an adverse action under the Mine Act.” Savage Motion at 11.
Savage continues, stating that “[e]ven assuming for the sake of argument that
Mr. Krass questioned Mr. Miller about his sexuality, and even assuming further
that Mr. [Krass] did so in a harassing manner, that by itself is not ‘adverse’
activity actionable under the Mine Act.” Id. at 12.

Savage concludes its argument with the
assertion that “because Mr. Miller suffered no adverse action, there is no
redressable injury in this case.” Id. at 13. Rhetorically, it then asks,
“What relief could the Commission possibly offer to Mr. Miller when he was not
suspended, discharged, disciplined, or subjected to undesirable work
assignments? Nothing changed for Mr. Miller.” Id.

The Court
believes that adverse action can be established under allegations such as those
contained in Miller’s Complaint. The Commission has tacitly recognized
harassment as a stand-alone form of adverse action since its 1982 decision in Moses
v. Whitley Development Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770
F.2d 168 (6th Cir. 1985), in which the Commission considered whether coercive
interrogation and harassment may ever constitute a violation of section
105(c)(1). The Commission found that such actions do violate the Mine Act:

Section 105(c)(1) states that “no person
shall discharge or in any manner discriminate against . . . or otherwise
interfere with the exercise of the statutory rights of any miner.”
(Emphasis added.) We have previously noted the high priority Congress placed
upon the unencumbered exercise of rights granted miners under the Mine Act. David
Pasula v. Consolidation Coal Company, 2 FMSHRC 2786, 2790
(October 1980), rev'd on other grounds sub nom, Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). As we concluded
in Pasula, Congress viewed the free exercise of miners' rights as
“essential to the achievement of safe and healthful mines.” 2 FMSHRC at 2790.
Furthermore, it is clear that section 105(c)(1) was intended to encourage miner
participation in enforcement of the Mine Act by protecting them against “not
only the common forms of discrimination, such as discharge, suspension,
demotion . . . , but also against the more subtle forms of interference, such
as promises of benefit or threats of reprisal.” S. Rep. 95-191, 95th Cong., 1st
Sess. 36 (1977) [“S. Rep.”], 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)
[“Legis. Hist.”].

We find that among the “more subtle
forms of interference” are coercive interrogation and harassment over the
exercise of protected rights. A natural result of such practices may be to
instill in the minds of employees fear of reprisal or discrimination. Such
actions may not only chill the exercise of protected rights by the
directly affected miners, but may also cause other miners, who wish to avoid
similar treatment, to refrain from asserting their rights. This result is at
odds with the goal of encouraging miner participation in enforcement of the
Mine Act. We therefore conclude that coercive interrogation and harassment
over the exercise of protected rights is prohibited by section 105(c)(1) of the
Mine Act.

Moses, 4 FMSHRC at
1478-79 (emphasis added). In that same decision, the Commission stated:

Under section
103(g)(1) of the Act, Moses had the right to request an inspection and to do so
anonymously. The persistence with which the subject of his supposed reporting
of the bulldozer accident was raised and the accusatory manner in which it was
done could logically result in a fear of reprisal and a reluctance to exercise
the right in the future. These conversations thus constituted prohibited
interference under section 105(c)(1).

Id. at 1479.

Shortly after Moses,
the Commission added that, “[i]n general, an adverse action is an act of
commission or omission by the operator subjecting the affected miner to
discipline or a detriment in his employment relationship.” Sec’y of Labor on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug.
1984); see also id. at 1848 n.2 (“This case does not require us
to develop a more detailed inventory of what is covered by the term adverse
action. We recognize that discrimination may manifest itself in subtle or
indirect forms of adverse action.”).

Quoting
Moses, the Commission has stated that “[w]hether an operator's question or
comments concerning a miner's exercise of a protected right constitute coercive
interrogation or harassment proscribed by the Mine Act ‘must be determined by
what is said and done, and by the circumstances surrounding the words and
actions.’” Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 27
FMSHRC 1, 8 (Jan. 2005) (quoting Moses, 4 FMSHRC at 1479 n.8).

Based
on the foregoing, the Court believes that harassment resulting from engaging in
protected activity is cognizable under the Mine Act. The essence of the
problem regarding Miller’s section 105(c)(3) claim is that the protected
activity that spawned his first complaint was raised during the hearing on his
second complaint but the harassment attendant to that was not. The matters were
not consolidated and, as a practical matter they could not be, given that the
Secretary opted not to proceed with Miller’s first complaint but did take up
the second complaint.

Miller’s
Response to Savage’s Motion for Summary Decision

Pursuant to the
Court’s conference call with the parties discussing Savage’s Motion for Summary
Decision, the Court directed Mr. Miller to file a response to that motion. The
response was minimal, as would be expected from a non-attorney complainant.[4] The Court
acknowledges that Mr. Miller’s response was minimal, but concludes that, in
context, summary decision would not be appropriate.[5]

Conclusion

For the
foregoing reasons, the Court DENIES Respondent’s Motion for Summary Decision. It
is not as if Complainant Miller’s allegations about harassment have been
characterized by Savage as being made out of whole cloth. Savage, while not
conceding each aspect of Miller’s harassment contention, spoke to his claim at
several points in its Motion. As it noted in that submission:

At a deposition
taken in the termination-related case, No. WEST 2014-404-DM, Mr. Miller
described “the crux of the discrimination” that took place in January 2013 as
follows: “My supervisor – I felt my supervisor personally attacked me, asking –
demanding if I was homosexual, if I batted for the other team, and so forth.” Exhibit
C, at 75:17-22; see also Exhibit D (written statement by Mr. Miller
dated March 4, 2013, submitted as an internal company complaint to the acting
manager of the Morenci operation complaining about Mr. Krass harassing him
about his sexuality).

Savage
Motion for Summary Decision at 3. Later, it quoted the following from Miller’s
deposition by Savage about the matter:

MILLER: I
believe discrimination.

Q: Okay. Who?

MILLER: Isaiah
Krass.

Q: Okay. When
did that discrimination that you’ve complained about occur?

MILLER: On the
30th of January.

Q: Okay. And
what was the – the crux of the discrimination, as you perceive it?

MILLER: My
supervisor – I felt my supervisor personally attacked me, asking – demanding if
I was homosexual, if I batted for the other team, and so forth. . . . Exhibit C
at 75:4-22; 78:4-16[.]

Savage
Motion at 9-10.

Indeed, because of a written complaint
to management that Mr. Miller submitted on or around March 4, 2013 (Exhibit D),
Mr. Krass was issued a counseling statement of his own by the then acting
Operations Manager, Richard Bjerke, instructing him not to repeat his behavior
and warning him that if he acted in that manner again, it would be grounds for
termination. See Exhibit I; Savage Motion at 10. Krass was issued a
counseling statement on March 5, 2013, in connection with his improper
conversations between him (as a supervisor) and an employee (Miller). Ex. C-7
at 3-4, Miller I.[6]
Savage then concedes, “It is easy enough to understand how questioning a
co-worker about his sexuality, regardless of motive, could create an
uncomfortable work atmosphere, and for that reason it is easy to see why, from
a company’s human resources perspective, such conduct should be discouraged,
which is exactly why Savage Services issued Mr. Krass a counseling statement.” Savage
Motion at 12 n.7.

Beyond these remarks, tantamount to
admissions, there is also Miller’s handwritten statement, dated March 4, 2013,
about the incident. Ex. C-9 at 12-13, Miller I. The Court, by this
Order, makes that admitted exhibit part of this case.

As the Court observed on May 1, 2015, in
response to an email from Savage’s Counsel:

[It] would note
that when Mr. Miller filed his first discrimination complaint, the special
investigator recommended that the case go forward and this came about without
Mr. Miller having been demoted or fired or some other thing along those lines. The
Commission too,     in several cases, has recognized that harassment, by
itself, can be the basis for [] discrimination. Apart from the Commission’s
remarks about this, [the Court] acknowledge[s] that damages, though
ascertainable, would be in uncharted waters because decisions so far have
involved harassment plus some other action taken against an employee.

The hearing
would be for Mr. Miller to have the opportunity to testify in detail about the
circumstances surrounding and the nature of the harassment he alleges to have
experienced and how that harmed him, financially and/or emotionally, if that is
the case, and would also include, if alleged and so testified to under oath by
Mr. Miller, any factor of intimidation making him reluctant to assert future
safety or health concerns. Savage Services would then have the opportunity to
rebut those claims, but bearing in mind that certain statements (effectively
admissions) by Savage, could be construed as harassment towards Mr. Miller and,
depending on Mr. Miller’s testimony, which harassment was linked with his
safety complaint(s).

That said, as in
any case, whether the Secretary is involved or, as in this case, not involved,
there is nothing to prevent the parties from discussing between themselves a
modest but fair settlement figure pertaining only to WEST 2014-7. For
emphasis, [the Court] want[s] to remind the parties that any such settlement
would be totally separate and apart from the damages associated with WEST
2014-404. The cases are separate and distinct. What happens in one does not
impact the other. Note that if the matter does go to hearing and [the Court]
find[s] that discrimination occurred, the Secretary would then be obligated to
seek a civil penalty for such violation of section 105(c)(3).

Email
from the Court to the parties (May 1, 2015, 12:59 EDT) (emphasis added).

Accordingly, at the hearing, Mr. Miller will have
the opportunity to testify in detail both as to the nature of his safety
complaint and the harassment which he has asserted was leveled at him by Savage’s
Mr. Krass. Further, Mr. Miller will have a full opportunity to express if that
odious alleged harassment, directed at him by Krass, impacted and harmed him. Of
course Savage will have the opportunity to establish, if it can, that the
harassment had no impact upon Miller and otherwise to defend against the claim,
with a goal, one would presume, of diminishing the claim that Miller was harmed
by that harassment.

/s/ William B.
Moran

William B. Moran

Administrative
Law Judge

Distribution:

Daniel
Wolff, Esq.

Crowell
& Moring LLP

1001
Pennsylvania Avenue NW

Washington,
DC 20004

Sean
Miller

15216 N. 11th Street

Phoenix,
AZ 85022

Amy
Poulson, Esq.

6340
South 3000 East, Suite 600

Salt
Lake City, UT 84121

[1]
The Order
of Assignment lists the Respondent as “Savage Transport,” as did a
pre-assignment Order directing the Respondent to answer the Complaint. The
Respondent is now correctly identified as Savage Services Corporation.

[2]
This is a
misspelling. The individual is Richard Bjerke.

[3]
Following
a conference call with the parties regarding Savage’s Motion for Summary
Decision, the Court emailed Miller, copying Attorney Wolff. As noted below,
that email summed up the Court’s discussion of the conference call. However,
one aspect of the email from the Court misstated the standard for reviewing
such motions in the statement that “such a [summary decision] motion asserts
that there are no factual issues in dispute and that the law favors the
arguments of the party filing the motion (Savage, in this case), so the
Court may issue its decision without any hearing.” In fact, the applicable
provision provides: “If a party does not respond in opposition, summary
decision, if appropriate, shall be entered in favor of the moving party.”
29 C.F.R. § 2700.67(d) (emphasis added). Accordingly, it is within the Court’s
informed discretion to rule in favor of the moving party in such circumstances or
not. Under the circumstances here, for the reasons expressed in this Order,
the Court has determined that, despite the minimal response in opposition from
Mr. Miller, it would not be appropriate to enter summary decision in favor of
Savage against this pro se complainant.

[4]
The full
text of Mr. Miller’s response provided:

As I am
representing myself and I am not an attorney, consistent with the conference
call, the Court does not expect me to supply a memorandum of points and
authorities specifying why Savage is not entitled to summary decision. Although
after the conference call on Wednesday I realized that I had commented on the
wrong timeline of events. Now fully understanding the precise time frame of
when the complaint was filed and to the fact of what the delay was.

Claim #1

It took me some
time to see and recognize that there was a pattern being established as a
result of my frequent Safety complaints. I felt that I was being singled out.
On Record as Brian Hancock testified on pg. 354 lines 11- 22, states that I
made 75 percent more complaints to the other drivers 25 percent.

Claim #4

I experienced
sleeplessness, anxiety, weight gain, while trying to perform job duties. I did
not understand, but now I see that there are no new facts to be presented to
the court.

E-mail
from Sean Miller, Complainant, to Daniel Wolff and Michael Small (Apr. 14, 2015,
11:45 EDT). With reference to Mr. Miller’s last remark, that there are no new
facts to be presented, this remark is disregarded. During the course of
conference calls with the parties for this docket, which were recorded, Mr.
Miller misunderstood other aspects of his complaint, but when the Court took
the time to explain matters, he would then change his intention about
continuing this litigation. In fact Mr. Miller’s same email response here
contradicts his remark that he has no new facts, as he states experiencing
“sleeplessness, anxiety, weight gain, while trying to perform job duties,” all
of which would constitute new facts. This Order attempts to explain the
facts about which Mr. Miller will testify in support of his claim of the
harassment he experienced in connection with his safety complaint and with the
ill-effects, if any, that he subsequently experienced both personally and in
connection with interactions with fellow miners.

[5]
The issue
of a motion for a directed verdict at the conclusion of Mr. Miller’s evidence
is matter to be resolved at a later time.

[6] In Savage’s
Post-Hearing Brief, in connection with Miller’s complaint about bad brakes on a
truck, it notes that Krass was disciplined for his statements to Miller despite
disagreeing with the allegations. Savage Br. 32, Miller I.