Durbin Coal, Inc.

Plain-English summary

The Secretary of Labor filed a discrimination complaint for Michael Jenkins and Michael Mahon, alleging that Durbin Coal discharged or constructively discharged them because it suspected they had made or caused a safety complaint to MSHA. Durbin Coal asked the judge to dismiss the complaint or require a more definite statement. Judge Michael E. Zielinski held that the complaint gave enough notice of the claims, including the theory that the company acted on a mistaken belief that the miners had engaged in protected activity. He denied the motion and ordered Durbin Coal to answer by March 3, 2000.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1); 29 C.F.R. § 2700.42
• Outcome: The motion to dismiss or for a more definite statement was denied.
• Key point: A discrimination complaint may proceed when it alleges that an adverse action was motivated by a belief that miners engaged in protected activity, even if they did not actually engage in that activity.

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

                                  February 16, 2000

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2000-31-D
ON BEHALF OF MICHAEL JENKINS : HOPE CD 99-10
AND MICHAEL MAHON, :
Complainants : Mine No. 1
v. : Mine ID 46-08102
:
DURBIN COAL, INC., :
Respondent :

                                         ORDER

     The Secretary of Labor initiated this case by filing a complaint on behalf of two miners,

Michael Jenkins and Michael Mahon, alleging that they had been discriminated against in
violation of Section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, (Act),
30 U.S.C. § 815(c)(1). Respondent, Durban Coal, Inc., filed a motion to dismiss, or in the
alternative, for a more definite statement, contending that the complaint failed to state a claim
upon which relief could be granted and otherwise failed to apprize Respondent of the basis of the
claims being advanced. Complainants response to the motion further clarified their claims. In
it’s reply, Respondent continued to maintain that the complaint failed to state a claim upon which
relief could be granted and prayed for dismissal or entry of an order directing complainants to file
a more definite statement. For the reasons set forth below, Respondent’s motion is denied.

    The complaint sets forth more than ample allegations of jurisdiction, including that

Jenkins and Mahon had a specific employment relationship with Respondent and were miners
entitled to the protections of the Act, that Respondent is a mine operator as defined in the Act
and that the mine’s operations and products enter and affect commerce. It further alleges that:

           Respondent illegally discriminated and retaliated against Complainants by
   discharging or constructively discharging Complainants, on or about March 2,
   1999, because Respondent suspected that complainants had made or caused to be
   made a Code-A-Phone complaint to MSHA which alleged health and safety
   violations of the mine Act at Respondent’s mine. * * *

Complaint, at p.2. The complaint also advances specific demands for relief. Appended to the
complaint as Exhibit A, is the initial complaint of discrimination submitted by Jenkins and
Mahon to the Mine Safety and Health Administration (MSHA) on March 3, 1999, which states

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that they were discriminated against by being discharged on March 2, 1999 because they “were
falsely accused of reporting safety violations to inspectors and for stealing.” The MSHA
complaint identified the person responsible for the discriminatory action as “Forrest Newsome,
Superintendent.”

    Respondent filed a motion to dismiss or in the alternative for a more definite statement

asserting that the complaint was deficient, chiefly because it failed to allege that either of the
Complainants had engaged in activity protected by the Act or that there was a causal nexus
between protected activity and the adverse action complained of. Respondent also argues that the
complaint fails to allege that Respondent committed an adverse action motivated by animus
toward a protected activity, which is largely a re-casting of it’s first argument.

    Complainants opposed the motion, indicating that they were relying on Secretary on

behalf of Moses v. Whitley Development Corp., 4 FMSHRC 1475 (1982), aff’d. sub nom, Whitley
Development Corp. v. FMSHRC, 770 F.2d 168 (6th Cir. 1985). In Moses, the Commission held
that “discrimination based upon a suspicion or belief that a miner has engaged in protected
activity, even though, in fact, he has not, is proscribed by section 105(c)(1).” Id. at 1480.
Complainants did not allege, either in their complaint to MSHA or in the instant complaint, that
they engaged in protected activity. Rather, they contend that Respondent was motivated to
discharge them by the apparently mistaken belief that they had engaged in protected activity, i.e.
making, or causing to be made, a Code-A-Phone complaint to MSHA. Complainants also further
explained that a second, or alternative, reason for their discharges was a false allegation that they
engaged in stealing, which they contend was a pretext for the illegal personnel actions.

     Under Commission Rule 2700.42, a “discrimination complaint shall include a short and

plain statement of the facts, setting forth the alleged discharge, discrimination or interference,
and a statement of the relief requested.” 29 C.F.R. § 2700.42. This notice pleading standard is
consistent with the general practice in federal litigation under Fed. R. Civ. P. 8(a) and requires no
more than that an opposing party be given fair notice of the claim and the grounds upon which it
is based. Conley v. Gibson, 355 U.S. 41, 47 (1957); and see, Carmichael v. Jim Walter
Resources, Inc., 20 FMSHRC 479, n. 9 at 489 (1998). A complaint need not set forth all facts
upon which a claim is based or specify the precise legal theory that would entitle the complainant
to relief. E.g., Crull v. GEM Ins. Co., 58 F.3rd 1386, 1391 (9th Cir. 1995); Harris v. Procter &
Gamble Cellulose Co., 73 F.3rd 321 (11th Cir. 1996). These liberal pleading rules permit
inconsistency in both legal and factual allegations. Independent Enterprises Inc., v. Pittsburgh
Water and Sewer Authority, 103 F.3rd 1165, 1175 (3rd Cir. 1997).

    A motion to dismiss for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), tests

only the formal sufficiency of the claims for relief under the liberal notice pleading standard and
can be granted “only if it is clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)
(citing Conley, supra, 355 U.S. at 45-46). The complaint filed on behalf of Jenkins and Mahon
easily passes this test.

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    There is no question that under Moses, a miner can state a cause of action for

discrimination in violation of § 105(c)(1), by alleging impermissible motivation for adverse
action, without claiming to have engaged in protected activity. See also, Secretary on behalf of
Smith, et al. v. Stafford Construction Co., 5 FMSHRC 618, 621 (1983). While a specific
reference to Moses may have helped to clarify the precise legal theory relied upon, it was
certainly not required. The complaint alleged that Jenkins and Mahon were subjected to adverse
action based upon a motive prohibited by § 105(c)(1). If the complainants can prove facts
consistent with those basic allegations, they clearly could be entitled to relief, even if they did not
personally engage in protected activity.

     Respondent also contends that it needs considerably more information in order to prepare

a responsive answer. Without detailed allegations specifying “whether such a [Code-A-Phone]
complaint was in fact made and when, whether Complainants made it, and what actions on the
part of Durbin indicated that it suspected that Complainants had made it”,1 Respondent asserts
that it would not be able to file a complete answer. While Respondent’s desire for such
information from claimants is understandable, it is difficult to understand how it would be
necessary to enable Respondent to admit or deny that it discharged or constructively discharged
the Complainants on the date alleged, to admit or deny that if it did so it was motivated by a
suspicion or belief that they had engaged in protected activity, or to respond to other allegations
in the complaint. Respondent also objects to Complainants’ alternative allegations that they were
either discharged or constructively discharged, contending that they cannot rely upon theories
based upon essentially inconsistent factual allegations. However, as noted supra, pleading
alternative theories of recovery based upon inconsistent factual premises is clearly permitted.
See also, Perlman v. Zell, 938 F.Supp 1327, 1337-38 (N.D.Ill 1996). Moreover, while the
evidence used to prove those alternative propositions might generally be quite different, the line
between discharge and constructive discharge may not always be clear2 and the essence of both
allegations is the same, i.e. that their employment relationship with Respondent was involuntarily
terminated.

    Upon consideration of Respondent’s motion to dismiss or in the alternative for a more

definite statement, Complainants’ opposition and the reply thereto, the motion be and the same is
hereby DENIED. Respondent shall file an answer to the complaint on or before March 3, 2000.

                                                   Michael E. Zielinski
                                                   Administrative Law Judge




   1
           Memorandum of points and authorities in support of the motion, at p. 5.
   2
           See, Moses, supra, 4 FMSHRC at 1479.

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Distribution:

M. Yusuf M. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 516, Arlington, VA 22203 (Certified Mail)

David J. Farber, Esq., Alexandra V. Butler, Esq., Patton Boggs, LLP, 2550 M Street, NW,
Washington, D.C. 20037 (Certified Mail)

/mh

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