Phelps Dodge Morenci, Inc.

Plain-English summary

Clyde Perry alleged that Phelps Dodge Morenci discharged him after he complained that his medical condition made truck-driving work unsafe and after a dispute about a drug test. Judge Arthur J. Amchan held that an injury, inability to perform assigned work, and refusal to take a drug test were not protected activity under section 105(c) as pleaded. The judge concluded that the complaint did not state a claim under the Mine Act and dismissed it. The Commission later vacated this dismissal and remanded the case for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c), 30 U.S.C. § 815(c)(1), and 30 U.S.C. § 815(c)(3)
• Outcome: The ALJ dismissed the discrimination complaint for failure to state a claim. The Commission later vacated the dismissal.
• Key point: The ALJ held that the activities alleged in this initial complaint were not protected Mine Act activity, while noting that retaliation for separate protected safety complaints could support a different claim.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  OFFICE OF ADMINISTRATIVE LAW JUDGES
                          2 SKYLINE, 10th FLOOR
                            5203 LEESBURG PIKE
                      FALLS CHURCH, VIRGINIA 22041



                        April 26, 1996

CLYDE PERRY, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. WEST 96-64-DM
: MSHA Case No. RM MD 95-18
:
PHELPS DODGE MORENCI, INC., : Morenci Branch Mine
Respondent : Mine I.D. 02-00024

      ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE
          A CLAIM UPON WHICH RELIEF MAY BE GRANTED

Before: Judge Amchan

 In September 1995, Complainant, Clyde Perry, filed a

complaint with the Mine Safety and Health Administration (MSHA)
alleging that he had been discharged by Respondent, Phelps Dodge,
on February 3, 1995, in violation of section 105(c) of the
Federal Mine Safety and Health Act. Material attached to the
complaint indicates that Mr. Perry was fired either for refusing
to provide a urine sample for a drug test, or for testing
positive.

 Complainant Perry apparently injured his right foot at work

on February 16, 1993. After a month off work, Mr. Perry claims
that Respondent required him to return on light duty.

 In October, 1993, Complainant states that he was taken off

light duty and required to work as a truck driver. Perry states
further that he requested that his foreman give him another
assignment because driving a truck caused him to have pain in his
right foot, knee and back. Respondent apparently declined to
provide Mr. Perry with any other type of work.

 On January 28, 1995, Complainant was asked to provide a

urine specimen for a drug and alcohol test. Documents provided
by Complainant indicate an accident occurred in the vicinity in
which he was working that evening, although Mr. Perry was not
involved in the accident. Complainant contends that Respondent=s
demand for a urine specimen was unfair and contrary to
Respondent=s policies and normal practices. He was fired either
for failing to cooperate with the test or for testing positive.

 On November 6, 1995, MSHA informed Complainant that it had

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determined that his discharge did not violate section 105(c) of
the Act. Thereupon, Complainant initiated this action on his own
behalf pursuant to section 105(c)(3) of the Act. In February,
1996, Respondent filed an Answer to the Complaint and a Motion
for a More Definite Statement.

 On February 29, 1996, I issued an Order to Show Cause to

Complainant and an Order to Provide a More Definite Statement of
his claim for relief. In that order, I expressed my opinion that
Mr. Perry=s complaint did not appear to allege any activity
protected by the Federal Mine Safety and Health Act.

 Complainant responded to my Order three weeks later. In

response to my direction to specify his protected activities,
Mr. Perry replied:

 When I was forced to go back to work almost a month I
 had been off of work, still on crutches and medication.
  I felt it was unsafe to go back to work with doctors
 orders, and if I did not go back to work I would be
 discharged. When I was task training other employees
 on buses while I was on medication I also complained
 to the Respondent that it was unsafe. I was also kept
 in a lower paying job, harassed for being off of work
 for almost the whole month of May for medical reasons
 and was told that I was terminated, because I told the
 Respondent that I was unable to perform my duties as a
 truck driver I felt it was unsafe because of medication
 and medical reasons. I explained to Respondent that I
 could not perform my duties with doctors orders to
 retrain with different type of work.

 Mr Perry stated further that, A[t]he basis for my belief

[that he was the victim of retaliation] is I complained about my
injury and I could not perform my job. I felt I was unsafe for
myself and co-workers to operate heavy equipment under my
condition. I gave the Respondent a lost time accident@.
Having reviewed Complainant=s response to my Order to Show
Cause I hereby dismiss his complaint alleging that his discharge
violated section 105(c) of the Act. Assuming that I were to find
all the facts alleged by Mr. Perry to be true, I conclude that
they fail to state a claim upon which relief may be granted under
the Act.

 Section 105(c)(1) of the Federal Mine Safety and Health Act

provides that:

 No person shall discharge or in any manner

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 discriminate against or cause to be discharged
 or cause discrimination against or otherwise
 interfere with the exercise of the statutory
 rights of any ... miner because such miner ...
 has filed or made a complaint under or related
 to this Act, including a complaint notifying
 the operator or the operator's agent ... of an
 alleged danger or safety or health violation
 ... or because such miner ... has instituted
 or caused to be instituted any proceeding
 under or related to this Act ... or because of
 the exercise by such miner ... of any statutory
 right afforded by this Act.

 The Federal Mine Safety and Health Review Commission has

enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec. ex rel. Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981), and Sec. ex rel. Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (April 1981). In these cases, the Commission
held that a complainant establishes a prima facie case of dis-
crimination by showing (1) that he engaged in protected activity
and (2) that an adverse action was motivated in part by the
protected activity.

 The operator may rebut the prima facie case by showing

either that no protected activity occurred, or that the adverse
action was in no part motivated by the protected activity. If
the operator cannot thus rebut the prima facie case, it may still
defend itself by proving that it was motivated in part by the
miner's unprotected activities, and that it would have taken the
adverse action for the unprotected activities alone.

  Complainant herein has not alleged that he engaged in

activities protected by the Act. Being injured on the job is not
an activity protected by section 105(c). Inability to perform
one=s tasks, even if due to a work-related injury, is similarly
not within the scope of this provision. Refusal to take a drug
test or testing positive is not protected activity either -- even
if the employer=s demand for such a test is unfair, unwarranted
and contrary to the employer=s normal practice1.

 Finally, I conclude that it is not a section 105(c)

violation to decline to provide alternative employment to a
person who alleges that their physical condition poses a threat
to their safety and the safety of others. An employee, who in
good faith, believes his condition threatens others would cease
performing such work activities. Although it may be a violation
to retaliate against an employee who in good faith asserts that
the continued employment of a co-worker poses a safety hazard,
it is not a violation of the Act for an employer to take the
position that an employee must either be able to perform his
current tasks or seek employment elsewhere.

 In short, I dismiss Mr. Perry=s complaint because even if

he were to establish that he was treated unfairly, or in a
discriminatory manner, he would fail to establish a section
105(c) violation. The Act does not prohibit all discriminatory
or retaliatory conduct. It prohibits only such conduct taken
with regard to activities protected by the Act. Since

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  However, a demand for a urine specimen might constitute a

section 105(c) violation if it was made in retaliation for other
protected activities, such as making legitimate safety
complaints, assisting MSHA in conducting an inspection, etc.

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Complainant has not alleged any such activities, he has failed
to state a claim upon which relief may be granted. His
discrimination complaint is therefore DISMISSED.

                            Arthur J. Amchan
                            Administrative Law Judge

Distribution:

Clyde Perry, Box 291, Morenci, AZ 85540 (Certified Mail)

Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln St.,
Suite 2710, Denver, CO 80219 (Certified Mail)

/lh

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