Secretary of Labor obo Jacob Hamilton v. Small Mine Development

Plain-English summary

Before Jacob Hamilton's temporary-reinstatement hearing, the Secretary sought to exclude evidence that would create credibility conflicts or support Small Mine Development's rebuttal and affirmative defenses. Judge David Simonton held that the operator could present relevant testimony and documents supporting its position that the complaint was frivolous, even though the judge could not resolve merits disputes at this preliminary stage. He rejected the Secretary's broad request to exclude entire categories of defense evidence. He did exclude evidence of wrongdoing discovered after Hamilton's termination because it was not relevant to whether the original discrimination complaint was frivolously brought.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45(d)
• Outcome: The Secretary's motion in limine was granted only as to after-acquired evidence and otherwise denied.
• Key point: An operator may present relevant rebuttal evidence at a temporary-reinstatement hearing, but later-discovered misconduct does not bear on whether the complaint was frivolous when filed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th ST.
SUITE 443

DENVER, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

December 18, 2020

SECRETARY OF LABOR,

U.S. DEPARTMENT OF LABOR ON BEHALF OF JACOB HAMILTON,

Complainant,

v.

SMALL MINE DEVELOPMENT,

Respondent.

TEMPORARY REINSTATEMENT

Docket No. WEST 2021-0069

Mine: El Nino

Mine ID: 26-02830

ORDER GRANTING
IN PART AND DENYING IN PART

SECRETARY’S MOTION IN LIMINE

Before:             Judge Simonton

This case is before me upon an
application for temporary reinstatement filed by the Secretary of Labor, acting
through the Mine Safety and Health Administration (“MSHA”), against Small Mine
Development (“Respondent”) pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). On December 15, 2020, the
Secretary filed a Motion in Limine to exclude Respondent’s evidence extending
beyond the narrow scope of the temporary reinstatement determination. The
Respondent filed a response in opposition to the Secretary’s motion on December
18, 2020. The temporary reinstatement hearing is scheduled for December 22,
2020 via Zoom.

Under
Section 105(c)(2), if the Secretary finds that a miner’s complaint alleging
discrimination under Section 105(c) was “not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on the
complaint.” 30 U.S.C. § 815(c)(2). At this juncture, the Secretary need not
prove a prima facie case of discrimination by a preponderance of the evidence in
order for the Complainant to receive temporary reinstatement—he must only prove
that the complaint was “not frivolously brought.” The Secretary asserts that
the “not frivolously brought standard” restricts the Judge’s ability to weigh
credibility and testimonial conflicts during the temporary reinstatement hearing,
and therefore should not include Respondent’s rebuttal or affirmative defense
evidence.

Respondent
argues that the Secretary’s motion should be denied because it is overly broad
and precludes it the right to introduce nearly any evidence at the temporary
reinstatement hearing. Respondent argues that it is permitted to cross-examine
the Secretary’s witnesses and present testimony and documentary evidence to
support its claim that the complaint was frivolously brought. The Secretary’s
motion, framed to exclude any evidence presented “to create a testimonial
conflict or credibility determination or to support an affirmative or rebuttal
defense,” would in its view effectively prevent Small Mine Development from
introducing any contrary evidence to support its opinion that the complaint is
frivolous.

The Commission has held that “the scope of a
temporary reinstatement hearing is narrow, being limited to a determination by
the judge as to whether a miner’s discrimination complaint is frivolously brought.”
Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc. , 9 FMSHRC
1305, 1306 (Aug. 1987), aff’d 920 F.2d 738 (11th Cir. 1990). The judge
should not resolve conflicts in testimony at this preliminary stage of the proceeding,
nor should the judge determine whether there is sufficient evidence to justify
permanent reinstatement. Jim Walter Res., Inc. v. Fed. Mine Safety & Health
Review Comm’n , 920 F.2d 738, 744 (11th Cir. 1990).  However, such
discretion should not interfere with the right of the respondent to present
testimony and evidence that supports a finding that the Secretary’s complaint
was frivolously brought. See 29 C.F.R. § 2700.45(d).

The Secretary offers no case law
holding that evidence creating testimonial conflicts or supporting affirmative
or rebuttal defenses must be excluded from temporary reinstatement proceedings.
The Secretary’s reliance on the Commission’s decision in CAM Mining, LLC ,
31 FMSHRC 1085 (Oct. 2009), is misplaced. In CAM Mining , the Commission
addressed whether the judge applied the proper burden of proof and refrained
from weighing conflicts in testimony in determining whether the Secretary’s
discrimination claim was frivolous. Id. at 1088. The Commission did not
hold that evidence creating testimonial conflicts was inadmissible, but limited
what the judge may consider and determine in properly evaluating whether the
discrimination case was frivolous. Id. at 1089–91. In fact, none of the
Secretary’s cited case law requires that such evidence must be excluded from
temporary reinstatement proceedings, but rather holds that the judge must
refrain from making findings on the merits of the discrimination claim.

Furthermore,
the Secretary’s motion is overbroad and may unduly preclude Respondent from
presenting evidence relevant to the temporary reinstatement proceeding. Respondent
has the right under section 2700.45(d) to present testimonial and documentary
evidence to support its argument that the Secretary’s claim is frivolous. Here,
the Secretary’s motion does not identify any specific testimony or documentary
evidence to be excluded, but intends to exclude all evidence that creates a
“testimonial conflict” or supports “affirmative or rebuttal defense.” In
temporary reinstatement cases, the testimony of the operator is highly likely
to conflict with that of the Secretary and the complainant miner, and nearly
all other evidence offered will speak in some way to the respondent’s defense. Admissibility
of such evidence should therefore be considered based on its specific relevance
to whether the Secretary’s claim is frivolous, and not based upon broad
categorical exclusions. Granting the motion runs the unnecessary risk of
excluding relevant evidence simply because it falls into one of those two
categories, and would undoubtedly inhibit the respondent’s ability to put on
its defense. 

However,
the Secretary is right on one count. Any evidence of wrongdoing that the
Respondent acquired after terminating Hamilton is irrelevant and inadmissible
at this temporary reinstatement stage. The Mine Act directs the Commission to
reinstate a miner during the pendency of his discrimination complaint as long
as his claim is not frivolously brought. The sole purpose of this
hearing is to determine whether Hamilton’s claim was frivolously brought. While
after-acquired evidence may be relevant to the remedies available to Hamilton
after a hearing on the merits, this evidence is not relevant to the narrow
question before the court at this juncture. In its statement in opposition to
the Secretary’s motion in limine, Respondent has not cited any precedent where after-acquired
evidence has been admitted in a temporary reinstatement context under the Mine
Act, and I believe that it would be inappropriate to introduce such evidence
here.

Accordingly, the Secretary’s Motion
in Limine is GRANTED to the extent that it seeks to exclude the
admission of after-acquired evidence. The remainder of the Secretary’s motion
is hereby DENIED .

/s/
David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (Email [1] )

B.A. Schaaff, U.S. Department of Labor, Office of the
Solicitor, [email protected]

Hailey McAllister, U.S. Department of Labor, Office of the
Solicitor, [email protected]

Bruce L. Brown, U.S. Department of Labor, Office of the
Solicitor, [email protected]

Donna Pryor, Husch Blackwell LLP, [email protected]

Jacob Hamilton, [email protected]

[1] For
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