Duval Corporation

Plain-English summary

Leonardo R. Lamas brought a Mine Act discrimination complaint against Duval Corporation after his employment was terminated in 1983. He filed with MSHA more than two years later and then filed a second complaint with the Commission after MSHA found no violation. Judge Michael A. Lasher, Jr. found that the delay was not justified and that Duval was prejudiced because its operations and potential witnesses were no longer available. The judge granted Duval's motion to dismiss and dismissed the proceeding.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The respondent's motion to dismiss was granted, and the discrimination proceeding was dismissed as untimely.
• Key point: A prolonged delay in filing a discrimination complaint requires a clear, reliable justification, especially when the delay prejudices the operator's ability to defend.

Full text (FMSHRC public release)

CCASE:
LEONARDO R. LAMAS V. DUVAL CORP
DDATE:
19870213
TTEXT:

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~306

        Federal Mine Safety and Health Review Commission
              Office of Administrative Law Judges

LEONARDO R. LAMAS, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. WEST 86-99-DM
v. MD 85-45

DUVAL CORPORATION, Duval Mine
RESPONDENT

                            DECISION

Appearances: Leonardo R. Lamas, Tucson, Arizona,
pro se;
G. Starr Rounds, Esq., Evans, Kitchell &
Jenckes, Phoenix, Arizona,
for Respondent.

Before: Judge Lasher

 This proceeding, which was initiated by the filing with the

Federal Mine Safety and Health Review Commission of a complaint
of discrimination by Leonardo R. Lamas (herein "the Complainant")
on March 24, 1986, arises under Section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.,
(1982) (herein "the Act").

 By letter dated February 28, 1986, the Complainant had been

notified that his complaint before the Labor Department's Mine
Safety and Health Administration (MSHA), which was filed on an
indeterminate date in October, 1985 had been investigated and the
determination made that a violation of Section 105(c) of the Act
had not occurred. Under the Act, a complaining miner has an
independent right to bring a second complaint before this
Commission and this proceeding is based on that right.

 On August 11, 1986, the Respondent filed a motion for

summary judgment alleging inter alia that the complaint was not
timely filed since it was filed more than 60 days-approximately 2
years-after the last alleged discriminatory action of Respondent,
i.e., the termination of Complainant's employment on August 21,
1983.

 A preliminary hearing to determine the issues raised by the

motion to dismiss was held on the record in Tucson, Arizona, on

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November 19, 1986, at which Complainant (FOOTNOTE 1) and Harlen
Klemetson, a former official of Respondent, testified.

 The record herein reflects that on August 21, 1981,

Complainant was placed on a disability leave status by Respondent
because he was unable to perform his duties and his doctors would
not release him for work. Two years later, on August 21, 1983,
Complainant was terminated pursuant to Article IV, Section 3(2)
of the pertinent collective bargaining agreement. Complainant's
complaint with MSHA was filed sometime in October, 1985 (Ex. CÄ1;
T. 17). Thereafter, by letter dated February 28, 1986,
Complainant was advised by a Labor Department official that on
the basis of MSHA's review "MSHA has determined that the facts
disclosed during the investigation do not constitute a violation
of Section 105(c)."

 After Complainant's termination, Respondent heard nothing

further regarding such termination until sometime in about
mid-October, 1985 when it was informed by MSHA that Complainant
had filed a complainant alleging discrimination (T. 17Ä20; Ex.
RÄ1).

 In early 1986, Respondent sold its Arizona operations. As a

result, it retained only three of its employees who have been
assisting in the transition but whose relationship with Duval
will soon end (T. 24Ä26). All of the potential witnesses either
expressly named by Lamas in his Complaint or necessarily involved
in events described by or affecting Lamas are no longer employed
by Duval. Aside from outside doctors to whom Lamas was referred,
these potential witnesses include a number of his foremen, safety
supervisors, individuals involved in decisions regarding massive
layoffs, recalls, and the handling and distribution of benefits,
the directors of personnel and labor relations, their assistants
and others (T. 25Ä29; Ex. CÄ1).

 Section 105(c) of the Act, 30 U.S.C.   815(c)(2), states, in

pertinent part:

     "Any miner %y(3)27 who believes that he has been
     discharged, interfered with, or otherwise discriminated
     against by any person in violation of this subsection
     may, within 60 days after such violation occurs, file a
     complaint with the Secretary alleging such
     discrimination." (Emphasis added).

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The MSHA complaint having been filed in October 1985, there is no
question but that it was filed with the Secretary more than 2
years beyond the 60Äday period prescribed in section 105(c) of
the Act.

 The Commission has held that while the purpose of the 60Äday

time limit is to avoid stale claims, a miner's late filing may be
ecused on the basis of "justifiable circumstances," Joseph W.
Herman v. IMCO Services, 4 FMSHRC 2135 (December 1982). The Mine
Act's legislative history relevant to the 60Äday time limit
states:

     While this time-limit is necessary to avoid stale
     claims being brought, it should not be construed
     strictly where the filing of a complaint is delayed
     under justifiable circumstances. Circumstances which
     could warrant the extension of the time-limit would
     include a case where the miner within the 60Äday period
     brings the complaint to the attention of another agency
     or to his employer, or the miner fails to meet the time
     limit because he is misled as to or misunderstands his
     rights under the Act. S.Rep. No. 181, 95th Cong., 1st
     Sess. 36 (1977), 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) (emphasis added).

 Timeliness questions therefore must be resolved on a

case-by-case basis, taking into account the unique circumstances
of each situation.

 After considering the testimony, exhibits, and arguments

submitted by the parties, it is concluded that the Respondent's
position in seeking dismissal is meritorious.

 Complainant's attempted justification for the delay is in

the form of a barren assertion that he was engaged in a Workmen's
Compensation matter and that "the lawyers and the people"
from MSHA, and MSHA Inspector Pascoe, had advised him "to wait and see
the results" (T. 17). In light of his entire testimony and
Respondent's rebuttal evidence, I find Complainant's assertions
incredible, vague, and not probative. Thus, Complainant Lamas
admits that prior to his termination in August 1983, he had
several conversations with MSHA representatives in its Tucson
office (T. 18). Further, he concedes that he knew he had 60 or 65
days within which to file a complaint regarding his termination
and that this time began to run as of August 21, 1983, the date
of his termination and the date Complainant put on the face of
the complaint as Respondent's last act of discrimination (See
Complainant's deposition, Ex. RÄ1, at pp. 9Ä10, 68Ä69; Attachment
No. 1 to RÄ1; T. 18Ä19, 36Ä39).

 Although it would appear that a complainant should first be

required to establish a recognizable and believable justification
for a filing delay beyond the 60Äday period before any burden

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devolves on a mine operator to show prejudice therefrom, the
record nonetheless lends support to Respondent's claim that
because of the delay it would be prejudiced in its attempt to
defend itself from the allegations made by Complainant. In its
brief it alleges: "Duval is barely in existence and soon will not
exist. It retains only three employees (Ex. CÄ1; T. 24, 26). All
of the alleged participants in the events cited by Lamas are no
longer employed by Duval. Those responsible for the decisions
about which he complains and who know the reasons for such
decisions, e.g., the investigation of the accident in 1979 or
1980, the transfer request, the payments granted in December,
1981 and March 1982, do not work for Duval; they, and others who
could testify about Duval's practices, are no longer its
employees (Ex. CÄ1; T. 24Ä28). Moreover, the events to which
Lamas refers occurred as early as 1979Ä1980; they are from about
four to seven years old (Ex. RÄ1). Obviously, memories dim with
the passage of years and it is Lamas' inexcusable neglect or
failure to act that has caused this situation to exist."

 The 60Äday statutory limitation is not a particularly long

filing period in view of the lack of sophistication of the
average Complainant and the complexity of some of the legal bases
for bringing a discrimination action. On the other hand, the
placement of limitations on the time-periods during which a
plaintiff may institute legal proceedings is primarily designed
to assure fairness to the opposing party by preventing surprises
through the revival of claims that have been allowed to slumber
until evidence has been lost, memories have faded, and witnesses
have disappeared. The theory is that even if one has a just claim
it is unjust not to put the adversary on notice to defend within
the period of limitation and that the right to be free of stale
claims in time comes to prevail over the right to prosecute them.
Where, as here, the filing delay is prolonged, (FOOTNOTE 2) it seems a
fair proposition to require (1) a clear justifiable explanation
therefor, which (2) is supported in the record by substantial and
reliable evidence.

 The considerable length of the time lapse here as well as

the bald, inherently dubious, unreliable basis asserted for the
delay mandate the conclusion that such delay in filing the
complaint was not justified.

                            ORDER

 Respondent's motion to dismiss is granted and this

proceeding is dismissed.

                            Michael A. Lasher, Jr.
                            Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE

 1 Complainant noted at the commencement of the hearing that

there was no interpreter present. It appeared, however, that he
understood English, understood the questions asked him by readily

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answering them, was perfectly able to ask questions himself, and
that he had a keen grasp of the hearing situation and of the
subleties and complexities of the matters involved in the
hearing.

~FOOTNOTE_TWO
2 This is not the situation sometimes seen where the
complaint was filed a few days, or even a month, late.