Mark L. Lujan v. Signal Peak Energy, LLC

Plain-English summary

Mark Lujan alleged that Signal Peak suspended and later terminated him after gout flare-ups made him unable to walk and, in his view, unsafe to enter the mine. Signal Peak sought summary decision, arguing that a medical absence was not protected activity, that Lujan left after time-sheet discrepancies were raised, and that his complaint was late. Judge David F. Barbour held that the record contained material factual disputes about the reason for the employment action and Lujan's claimed ignorance of the filing deadline. He also found the law unsettled on whether a miner's physical condition can support a protected work refusal in appropriate circumstances. The Judge denied summary decision so the facts, including the good faith and reasonableness of the alleged safety concern, could be developed at a hearing.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: Signal Peak's motion for summary decision was denied and the discrimination case proceeded to hearing.
• Key point: A miner's own medical limitation may support a protected work refusal in appropriate circumstances, making summary dismissal improper when material facts remain disputed.

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: 202-434-9958 / FAX:
202-434-9949

MARK
L. LUJAN,

Complainant

v.

SIGNAL
PEAK ENERGY, LLC,

Respondent

DISCRIMINATION
PROCEEDING:

Docket
No. WEST 2015-252-D

MSHA
Case No. DENV-CD 2014-17

Mine:
Bull Mountains Mine No. 1

Mine
I.D. 24-01950

ORDER DENYING
THE RESPONDENT’S MOTION FOR SUMMARY DECISION

NOTICE OF
HEARING SITE

Before:                        Judge
Barbour

This case is before the court on a
Complaint of Discrimination brought by Mark L. Lujan, on his own behalf,
pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1988,
as amended. 30 U.S.C. § 815(c) (the
“Mine Act” or “Act”). The Respondent, Signal Peak Energy, LLC (“the company” or
“Signal Peak”), has filed a Motion for Summary Decision. For the reasons that
follow, the Motion for Summary Decision is DENIED.

Procedural
Background

On September 23, 2014, Mr. Lujan filed a
discrimination complaint with the Secretary of Labor, Mine Safety and Health
Administration (“MSHA”). On November 24, 2014, MSHA sent Mr. Lujan a letter
informing him it did not find sufficient evidence to establish that a violation
of section 105(c) occurred. Under section 105(c)(3) of the Act, if MSHA
determines the provisions of section 105(c)(1) have not been violated, the
complaining miner may file a discrimination complaint on his own behalf. Mr.
Lujan filed an “appeal” of MSHA’s determination to the Commission on December
30, 2014. Mr. Lujan’s appeal was docketed by the Commission as a section
105(c)(3) discrimination complaint, and the case was assigned by the Chief
Judge to the court. In a March 4, 2015, Notice of Hearing, the court scheduled
the case to be heard on June 30, 2015. The court also suspended discovery and
the filing of pretrial motions and submissions until April 6, 2015, in order to
provide Mr. Lujan time to obtain representation.[1] On May 8, 2015, Signal
Peak filed a motion for summary decision. Mr. Lujan filed a response to the
motion on June 4, 2015.[2]

Summary Decision

Commission Rule 67(b) provides that a
“motion for summary decision shall be granted only if the entire
record, including the pleading, 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.” 29 C.F.R. § 2700.67(b). 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). Here, after review of the entire record in the light most favorable to
Mr. Lujan, the court finds that there are genuine issues as to material facts
and that Signal Peak has not met its burden as the moving party to establish
its right to summary decision as a matter of law.

Facts

Mr. Lujan charges that on June 18, 2013,
he was fired by Signal Peak and that his termination was a “direct result of
discrimination . . . for [his] medical condition.” Letter of Mark L. Lujan to
U.S. Department of Labor, Mine Safety and Health Administration, Colorado
District Office (September 23, 2014). The medical condition to which Mr. Lujan
refers is gout, a condition he claims Signal Peak knew of when it hired him,
and a condition which caused him to miss several days of work. MSHA
Discrimination Complaint 1.

Mr. Lujan states that prior to April 19,
2013, he was suspended and given “verbal warnings” because he missed work due
to flare ups of gout, and around April 19, he missed another day of work
because of his medical condition. As a result, on April 19, 2013, he was
suspended again from work for “mismanagement of days.” MSHA Discrimination
Complaint 1. Mr. Lujan alleges that his condition was such that he could not
walk and he had to take gout and pain medication. Mr. Lujan maintains that he
“would have been a safety risk to even enter the mine” and that his then
supervisor, Ryan Stahl, likewise was suspended on April 19 for giving him
permission to stay home. Id. According to Mr. Lujan, Mr. Stahl stated that
Mr. Lujan would have been “to [sic] big of a risk to work.” Id.

The parties agree that Mr. Lujan’s
employment with the company ended on June 18, 2013, during a meeting involving
Mr. Lujan and company officials. The company asserts that Mr. Lujan resigned
during the meeting after being confronted by company personnel about
discrepancies between Mr. Lujan’s time sheets and the company’s employee
tracking system. Answer to Pro Se Complaint of Discrimination 2-3. The
discrepancies involve several dates when Mr. Lujan claimed to have worked
overtime hours. Id. Because the company believed that Mr. Lujan
falsified his time cards and violated Signal Peak’s Discipline and Time
Reporting Policies, the company asserts that it had a legitimate business
reason to take disciplinary action against him. Id, Memorandum of Points
and Authorities in Support of Respondent’s Motion for Summary Decision 5.
Mr. Lujan responds that the allegations at the June 18 meeting were “false” and
that “[he] was terminated but not for the reasons given.” Commission
Discrimination Complaint 3. Instead, Mr. Lujan alleges, “Signal Peak ultimately
terminated my employment due to my medical condition. I was never reasonably
accommodated.” Id.

Issues

Signal Peak argues that Mr. Lujan’s
discrimination complaint should be dismissed for his failing to state a claim
for relief recognized under section 105(c) of the Mine Act. Specifically, the
company argues that Mr. Lujan failed to allege that he engaged in activity
protected under the Act, that he did not suffer any adverse action as the
result of engaging in protected activity, and that he would have been
disciplined for unprotected activity alone. The first two arguments attempt to
rebut Mr. Lujan’s prima facie case for prohibited discrimination, while the
latter argument functions as an affirmative defense. Additionally, the company
argues that Mr. Lujan’s complaint is untimely, as it was filed 462 days after
his employment ended, and he has failed to allege that he suffered any adverse
employment action within 60 days of the date he filed his complaint.

Analysis

Section 105(c) of the Mine Act protects
miners from discrimination motivated by their protected activity. Protected
activity includes filing or making complaints under or related to the Act or
exercising any other statutory right afforded by the Act. 30 U.S.C. § 815(c)(2).
Additionally, while the Act does not expressly state that miners have the right
to refuse work under conditions involving health or safety dangers, “the
Commission and the courts have recognized the right to refuse to work in the
face of such perceived danger.” Dykhoff v U.S. Borax, Inc., Jr., 22
FMSHRC 1194, 1198 (Oct. 2000).

In order to establish a prima
facie case of discrimination, a complainant need only present evidence
“sufficient to support a conclusion that the individual engaged in protected
activity and that the adverse action complained of was motivated in any part by
that activity.” Sec. of Labor obo David Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2799-2800 (Oct. 1980); Sec. of Labor obo Donald E. Zecco v.
Consolidation Coal Co., 21 FMSHRC 985, 989, (Sept. 1999). Additionally, the
Commission has explained that in a pro se discrimination proceeding
under section 105(c)(3) of the Act, a complainant’s pleadings should be held to
a less stringent standard than those prepared by attorneys when ruling on a
motion to dismiss. Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC
1918, 1920 (Nov. 1996); see also Ribble v. T & M Dev. Co., 22
FMSHRC 593 (May 2000). As in a motion to dismiss, the court concludes that a pro
se complainant should be held to a more lenient standard as the non-moving
party in a motion for summary decision. Moreover, the Act’s legislative history
provides guidance that section 105(c) is to be “construed expansively” to
guarantee miners the ability to exercise their rights under the Mine Act. S. Rep. No. 95-11, at 36 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res,. Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624 (1978)).

In reviewing the record, the court views
the facts in this case in the light most favorable to the non-moving party, Mr.
Lujan. Mr. Lujan alleges that he was terminated due to his work absences
resulting from his medical condition and Signal Peak’s failure to provide
reasonable accommodation instead of the company’s alleged reasons regarding
falsified timecards and unexcused absences. Since there is a legitimate factual
dispute on this material issue, the court cannot grant summary decision on the
basis of the company’s arguments that Mr. Lujan was or would have been
disciplined for unprotected activity.

The more difficult and fundamental
question is whether Mr. Lujan has alleged any protected activity. Mr. Lujan is
effectively asserting that he engaged in a protected work refusal under section
105(c) of the Mine Act by staying home because his gout flare ups would have
made working conditions unsafe and that Signal Peak took adverse actions in
suspending him and terminating his employment motivated at least in part by his
work refusals.

Signal Peak, in its brief in support of
its motion for summary decision, cites several decisions wherein the Commission
and its Administrative Law Judges have strongly signaled that work absences
based on medical conditions particular to an individual may not be protected by
section 105(c). See Memorandum of Points and Authorities in Support of
Respondent’s Motion for Summary Decision 5-8, citing Dykhoff, 22 FMSHRC
at 1199; Perando v. Metiki Coal Corp., 10 FMSHRC 491, 494-95 (Apr.
1988); Price v. Monterey Coal, 12 FMSHRC 1505 (Aug. 1990); Sheperd v.
Black Hills Bentonite, 25 FMSHRC 129 (Mar. 2003)(ALJ). However, none of the
language that the company cites to from these decisions is binding precedent
that compels the court to dismiss Mr. Lujan’s complaint as a matter of law.

The court notes that the Commission’s
holding in Bjes v Consolidation Coal Co., 6 FMSHRC 1411, 1417-18 (Jun.
1984), that “under appropriate circumstances . . . a miner may refuse to work
on the basis of a perceived hazard arising from his own physical condition or
limitations” has never explicitly been overturned. In Dykhoff, a case in
which three out of four Commissioners affirmed an Administrative Law Judge’s
dismissal of a section 105(c) complaint on the basis that the complainant had
not alleged a protected work refusal, the Commission nonetheless rejected the
ALJ’s conclusion that “‘idiosyncratic physical impairments’ cannot serve as the
basis for a protected work refusal” and reaffirmed its holding in Bjes. Dykhoff,
22 FMSHRC at 1199, 1205. A plurality of Commissioners in Dykhoff found
error in the ALJ’s reliance on Commissioner Doyle’s concurrence in Price v.
Monterey Coal, 12 FMSHRC 1505 (Aug. 1990). Dykhoff, 22 FMSHRC at
1201 n.11. In her Price concurrence, Commissioner Doyle rejected the
notion that “Congress intended to give miners the right to refuse work on the
basis of problems that are totally idiosyncratic to the miner and over which
the operator has no control” and found no protected activity on that basis. Price,
12 FMSHRC at 1519-20 (Doyle concurring).[3] Although Signal Peak has
cited Commissioner Doyle’s concurrence in Price in support of its motion
for summary decision, this court may only treat it as persuasive authority at
best. Moreover, while Signal Peak quotes language in Dykhoff suggesting
that medically-related absences cannot be protected work refusals, and that to
hold otherwise would “stretch[] the work refusal doctrine far beyond its
contours as heretofore recognized by the Commission,” 22 FMSHRC at 1200, the
language Signal Peak quotes is not dispositive because it is contained in a
plurality opinion.[4]

Further, Perando, which Signal
Peak also cites, was decided on the grounds that the complainant failed to
effectively communicate to her employer a refusal to work and had not alleged
any other protected activity. 10 FMSHRC at 494-95. Under the relaxed pleading
standards afforded to pro se litigants in 105(c) cases, there appears to
be sufficient evidence in Mr. Lujan’s complaints to conclude that he clearly
communicated his refusal to work based on health or safety concerns, and
although the Perando decision contains language suggesting that had the Commission
found that the complainant clearly communicated a work refusal based on safety
concerns related to her medical condition, it would not have found the refusal
to be protected, the court views the language as nonbinding dicta.

The cumulative effect of the referenced
decisions is to strongly suggest that medical-related absences cannot form the
basis of a protected activity claim. However, the court concludes the issue
remains unsettled as a matter of law. Given the Commission’s long-standing
policy on pro se complainants and Congress’s intent that section 105(c)
be read expansively to protect miners’ rights, the court finds that summary
dismissal of this proceeding is inappropriate. Mr. Lujan may yet be able to
prove a claim of protected activity at hearing. The Commission has explained in
regard to the scope of the work refusal doctrine, “The mine is an interactive
environment involving human beings, equipment, and the mine's physical setting
itself. The human factor cannot be ignored in the evaluation of hazards.” Bjes,
6 FMSHRC at 1417. This language suggests that a protected work refusal claim
involving a miner’s own physical conditions or limitations is fact-specific. A
hearing is necessary for Mr. Lujan to develop the relevant facts.

At the hearing, Mr. Lujan will have the
burden of proving both the good faith and the reasonableness of his belief that
a hazard existed, whether due to his condition or to other considerations in
his work environment. See Sec’y of Labor on behalf of Robinette v. U.S. Castle
Coal Co., 3 FMSHRC 803, 809-12 (Apr. 1981). A good faith belief “simply
means honest belief that a hazard exists.” Id. at 810. The company may then
rebut the case by showing either that no protected activity occurred or that
the adverse action was in no part motivated by protected activity. Id. at
818 n.20. As a final option, the company may affirmatively defend itself by
proving that it would have taken the adverse action for unprotected activity
alone. Id. at 817-18.

Finally, the
court rejects Signal Peak’s argument that it is entitled to summary judgment as
a result of Mr. Lujan’s untimely filing. The Commission has stated that in
deciding whether to excuse the late filing of a miner’s 105(c) complaint, a
judge should review
the facts “on a case-by-case basis, taking into account the unique
circumstances of each situation.” Hollis v. Consolidation Coal Co., 6
FMSHRC 21, 24 (Jan. 1984), aff’d mem, 750 F.2d 1093 (D.C. Cir. 1984). Further,
“a miner's genuine ignorance of applicable time limits may excuse a late filed
discrimination complaint.” Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 13
(Jan. 1984). Mr. Lujan claims he was ignorant of his section 105(c) rights and
any applicable time limits until he started to explore his legal options for
discrimination and contacted the Equal Employment Opportunity Commission. Letter of Mark
L. Lujan to U.S. Department of Labor, Mine Safety and Health Administration,
Colorado District Office (September 23, 2014). The company has responded that
this is not true, as Signal Peak holds annual refresher training on miners’
rights. Memorandum
of Points and Authorities in Support of Respondent’s Motion for Summary
Decision 10-11. Once
again, this is a factual dispute on a material issue that must be resolved at
hearing. Signal Peak’s motion is therefore DENIED.

In view of this
holding, the parties are advised the hearing will go forward in Denver,
Colorado, beginning at 8:30 am on June 30, 2015. The hearing will be held at
the following locations:

June
30

U.S.
District Court

Alfred
A. Arraj Courthouse

901
19th Street

Courtroom
No. 702

Denver,
Colorado 80294

July
1, 2015

U.S.
Custom House

721
19th Street

Courtroom
No. 443, 4th Flr.

Denver,
Colorado 80202

/s/ David F.
Barbour

David F. Barbour

Administrative
Law Judge

Distribution:
(Certified Mail)

Christopher G. Peterson, Esq., Jackson Kelly, PLLC, 1099 18th
Street, Suite 2150, Denver, Colorado 80202

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center,
401 Liberty Ave., Suite 1500, Pittsburgh, Pennsylvania 15222

Mark L. Lujan, P.O. Box 4733, Grand Junction, Colorado 81502

[1]
As of the
date of this order, Mr. Lujan has been unable to secure representation.

[2]
In an
email to the parties dated May 20, 2015, the court allowed Mr. Lujan an
extension of time to file a response even though the deadline had passed, as
the Commission favors giving pro se claimants procedural leeway.

[3]
The
majority in Price found the complainant’s work refusal to be unprotected
on the narrower grounds that it was unreasonable to believe that a hazard
existed under the specific facts of that case. Id. at 1515.

[4]
Commissioner
Doyle wrote separately in her concurrence affirming the dismissal of the
complaint on the narrower grounds that “Dykhoff’s absences did not result from
any decision or choice on his part” and that therefore the complainant had not
engaged in any activity at all, let alone protected activity. Dykhoff,
22 FMSHRC at 1204 (Doyle concurring).