Phelps Dodge Morenci, Inc.

Plain-English summary

Phelps Dodge Morenci moved to dismiss Armando Rivas's discrimination complaint because he filed it about 174 days after his discharge, beyond the 60-day period in section 105(c) of the Mine Act. Judge Michael A. Lasher, Jr. found that Rivas had shown a significant mental impairment affecting his functioning and memory and had made reasonable efforts to learn about his remedies. The judge held that the delay, without sufficient proof of material legal prejudice to the operator, did not justify dismissal and denied the motion.

Decision snapshot

• Cited standards: 30 U.S.C. § 815(c)
• Outcome: The respondent's motion to dismiss was denied.
• Key point: A delay beyond the Mine Act's filing period did not require dismissal where the complainant showed a significant mental impairment and the operator's prejudice allegations were speculative.

Full text (FMSHRC public release)

CCASE:
ARMANDO M. RIVAS V. PHELPS DODGE MORENCI
DDATE:
19900321
TTEXT:

Page 2

~595
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

ARMANDO M. RIVAS, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. WEST 89-395-DM
v.
MD 89-36
PHELPS DODGE MORENCI, INC.,
RESPONDENT

                        ORDER DENYING MOTION

 Following an on-the-record preliminary hearing on February

6, 1990, for the special purpose of resolving Respondent's Motion
for Summary Decision, counsel for both parties submitted their
positions by oral argument at the close of hearing in lieu of
filing written briefs.

 Respondent contends the Complaint should be dismissed since

Complainant did not file such with MSHA until approximately 174
days (T. 52) after he was discharged on September 15, 1988 (T.
14), or some 3 1/2 months beyond the 60-day filing limit provided
in Section 105(c) of the Mine Act.

 Complainant presented three witnesses at the hearing to

establish that the filing delay resulted from his suffering
epilepsy, and memory defects, and from the time it took for him
to consult with attorneys and to investigate his remedies with
other agencies (T. 12-13).

 Respondent presented no witnesses (T. 49) but claimed both

general and specific prejudice (T. 54) from the filing delay. Thus
Respondent contends:

        ". . . there are approximately two dozen employees that
   are listed in Mr. Rivas's three page complaint who either
   participated in alleged harassment of him or observed that
   alleged harassment. . . . it is not reasonable for this
   tribunal to assume that all 24, 25, 30 of those employees
   mentioned in there would have the same recollection of
   events two years ago as they would have of events if they
   were permitted to testify to them in a timely manner.

        And with respect to the specific prejudice issue . . .
   it is clear from the testimony that Mr. Rivas gave, and
   that of his mother, that he himself has very specific
   recollection problems. He testified that he has trouble
   remembering things, his memory is not good, that he is
   confused. His mother testified that there are some things
   he remembers and other things that he does not."

Page 3

~596
". . . there has been an inadequate (sic) showing of
justification. The complainant clearly was aware of the
Mine Safety Act and his right to assert complaints under
it as early as February of 1988. He apparently was con-
tacting both agencies and attorneys as early as November
of 1988. And if he has received poor advice from those
attorneys, from those agencies, that is not obviously
the fault of the respondent."

 According to Complainant, Armando M. Rivas, (age 32 with a

high school education), he made contact with his employer, Phelps
Dodge, when he met with James Madison to request his job back (T.
15). After that he called "several attorneys" and several
agencies who advised him they could do nothing (T. 15, 20).

 Mr. Rivas, an epilectic, was depressed and had "disorder"

seizures during the period after his discharge which seizures
cause him to get confused, jerk, and affect his memory (T. 16).
This condition worsened in October and November, 1988 (Tr. ).

 In November, 1988, Complainant apparently found out about

his rights to go to MSHA and file a complaint against his
employer (T. 35).

 In January or February, 1989, while at the Civil Rights

Division (believed to be a division of the Arizona Attorney
General's Office), a call was made in his behalf to MSHA which
subsequently sent him complaint forms to be filled out (T.
22-26). Complainant received help from a Community Action agency
in Safford, Arizona in completing the MSHA forms which led to the
Complaint (Ex. R-2) being prepared in late February, 1989 (T.
45-48) being filed in early March, 1989 (T. 23, 27, 48).

 According to Complainant's mother, Maria Meza, Complainant

never left "the home". She indicated that Complainant had
seizures in October, November and December of 1988, and that his
"mind wasn't well," (T. 42) and that "he remembers some things,
others he doesn't." (T. 44).

 The Commission has held that the 60-day time limit is not

jurisdictional and that while the purpose of the 60-day time
limit is to avoid stale claims, a miner's late filing may be
excused 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 60-day time limit
states:

Page 4

~597
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
60-day 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 674 (1978) (emphasis added).

 Timeliness questions therefore must be resolved on a

case-by-case basis, taking into account the unique circumstances
of each situation. Hollis v. Consolidation Coal Company, 6 FMSHRC
21 (1984).

 To prevail, the Respondent mine operator must establish that

it suffered material legal prejudice which was attributable to
the Complainant's delay in filing his complaint. See Secretary of
Labor v. 4-A Coal Company, Inc., 8 FMSHRC 905 (June 1986); Buelke
v. Thunder Basin Coal Company, 11 FMSHRC 238 (February 1989).

 In this matter, the Complainant established the existence of

a most significant mental handicap affecting both his ability to
function as well as his memory following his discharge. It also
appears that following his discharge he made, in the context of
his condition, reasonable efforts to ascertain his remedies and
to obtain direction. The delay of 3 1/2 months beyond the filing
period is not sufficient to constitute the basis for creation of
a presumption of legal prejudice to the operator. Respondent's
allegations of prejudice, specific and general, are broad and
speculative and do not constitute grounds for a determination
that it has suffered sufficient material legal prejudice which
are attributable to the filing delay.1 See Nealey v.
Transportation Maritime Mexicana, S.A., 662 F.2d 1275, 1280-1281
(9th Cir. 1980)

Page 5

~598
Accordingly, Respondent's motion for dismissal of these
proceedings is denied.

                             Michael A. Lasher, Jr.
                             Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

 1. A weak excuse may suffice if there has been no prejudice;

an exceeding good one might still do even when there has been
some. Larios v. Victory Carriers, Inc., 316 F.2d 63, 67 (2d Cir.
1963).