Sandra G. McDonald v. TMK Enterprises Security

Plain-English summary

Sandra McDonald filed a discrimination complaint against the mine-site security business she identified as TMK Enterprise Security. An ALJ dismissed after finding that a similarly named corporation had lost its corporate status before McDonald's 2011 to 2013 employment. The Commission held that the Mine Act's definition of person is broader than a registered corporation and includes individuals, partnerships, associations, firms, and other organizations. The record showed that George King and Mark Toler continued the security operation under TMK trade names and possibly through Appalachian Enterprise Security Services, LLC, and the entity had participated in the case without denying it employed McDonald. The Commission reversed, kept TMK Enterprise Security as a respondent, allowed McDonald to add King, Toler, and other relevant parties, and remanded for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(f) and 815(c)
• Outcome: The dismissal was reversed, TMK Enterprise Security remained a respondent, and amendment and further proceedings were authorized on remand.
• Key point: A business can be a Mine Act person and discrimination respondent even after a similarly named corporation dissolves if the operation continues as a partnership, trade name, or other organization.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE NW, SUITE 520N

WASHINGTON,
DC 20004-1710

SANDRA G. MCDONALD                            :

:

:

v.                                                            :        Docket
No. WEVA 2014-387-D

:

TMK
ENTERPRISE SECURITY                    :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and
Althen, Commissioners

DECISION

BY THE COMMISSION:

This proceeding arises under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.  § 801 et seq. (2012)
(“Mine Act”). It involves a complaint of discrimination filed by Sandra G.
McDonald (“McDonald”) against “TMK Enterprise Security” pursuant to section
105(c)(3) of the Mine Act.[1]
At issue is whether the Administrative Law Judge erred by finding that “TMK
Enterprise Security” could not have been McDonald’s employer because it was not
registered as a corporation during the period of McDonald’s employment. For the
reasons that follow, we hold that the Judge erred when determining that this
entity could not have been McDonald’s employer. Accordingly, we reverse and
remand the Judge’s decision.

I.                  

Factual and Procedural Background

The
complaint filed by McDonald concerns her employment as a security guard by a
security services contractor at a mine site operated by Frasure Creek Mining,
LLC, during the period May 2011 through September 2013. Her employment was terminated on or about September 3, 2013.

On
September 13, 2013, McDonald filed a discrimination complaint with the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) under
section 105(c)(2) of the Mine Act.[2]
In this complaint, McDonald named her employer, the security services
contractor, as “TMK Enterprise Security,” which is listed as a contractor in
the MSHA Mine Data Retrieval System.[3]
MSHA Discrimination Compl.; Mot. to Lift Temporary Stay and to Amend Compl.,
MSJ000002 (records of the MSHA Mine Data Retrieval System). After an
investigation, MSHA declined to pursue her complaint. Subsequently, on January
7, 2014, McDonald filed a discrimination complaint with this Commission under
section 105(c)(3) of the Mine Act. That complaint also named “TMK Enterprise
Security” as the Respondent.

The
Judge scheduled a hearing on the case for November 18, 2014. A few days prior
to the hearing, counsel for the Respondent sought to withdraw as counsel
asserting as good cause a disagreement between Mark Toler and George King, whom
counsel represented to be the owners of the Respondent, regarding the ongoing
operation of the business. Counsel also cited the Respondent’s financial
inability to continue to retain counsel. The Judge granted the attorney’s
request to withdraw and ordered that the security services business file a
notice of appearance and specify substitute representation or the pro se
appearance of King and/or Toler on or before January 14, 2015. The Judge
rescheduled the case for hearing on February 10, 2015. Unpublished Order (Dec.
3, 2014). On January 14, 2015, King and Toler informed the Judge that they
intended to proceed pro se and would participate fully in all remaining
hearings. Unpublished Order (Feb. 3, 2015).

On
January 21, 2015, McDonald filed a motion for default judgment, alleging that
the Respondent had failed to comply with the Judge’s Order. On January 22,
2015, the Judge convened a conference call with the parties. During the call,
it was represented that the corporate status of “TMK Enterprise Security” was
dissolved in June 2009. The Judge then ordered the parties to participate in a
mediation conference with the Commission’s settlement counsel. The mediation
was scheduled for January 28, but neither King nor Toler appeared.

On
February 2, 2015, McDonald filed a motion for a temporary stay of the
proceeding, stating, in part, that she intended to file a motion to amend her
original complaint to add parties. The Judge granted the motion and continued
the hearing pending the filing of a motion by McDonald to amend her complaint.[4] Unpublished
Order at 2 (Feb. 3, 2015). On February 18, 2015, McDonald filed a motion to
lift the stay and amend her complaint to add Frasure Creek, the operator of the
mine, as a Respondent in the matter.

On
March 12, 2015, the Judge issued an Order denying the motion to amend to
include Frasure Creek, stating that the Secretary’s initial investigation did
not include consideration of matters contained in the amended complaint, and
that McDonald had failed to comply with the statutory prerequisite of initially
filing a complaint with the Secretary pursuant to section 105(c)(2). The Judge
also found that the corporate status of “TMK Enterprise Security Services,
Inc.” had been terminated on June 12, 2009, prior to the relevant period of
McDonald’s employment (May 2011 through September 2013). McDonald v. TMK
Enterprise Security, 37 FMSHRC 683, 683-85 (Mar. 2015) (ALJ).[5] Therefore,
the Judge dismissed the proceeding as he concluded that “TMK Enterprise
Security Services, Inc.” could not have been McDonald’s employer during the
relevant period of her employment. Instead, he found that “McDonald was
employed by George King and Mark Toler, the former [principals] of [the
corporation], who continued to operate their security services business as a
non-corporate entity.” Id. at 683.

On March 23, 2015, McDonald filed a “Petition for
Reconsideration” requesting that the Judge set aside his dismissal order and
add King and Toler as Respondents. On March 31, 2015, the Commission directed
review sua sponte “to determine whether the Judge erred as a matter of
law in concluding that TMK Enterprise Security could not have been the employer
of Sandra McDonald because it was not registered as a corporation during the
period of McDonald’s employment.” Thus, the Direction for Review focused on
whether “TMK Enterprise Security,” rather than the corporation “TMK Enterprise
Security Services, Inc.,” could have been McDonald’s employer.

II.               

Disposition

For the reasons that follow, we conclude that the
Judge erred in failing to consider whether the named respondent, “TMK
Enterprise Security,” referred to a “person” meaning “any individual,
partnership, association, corporation, firm, subsidiary of a corporation, or
other organization,” pursuant to section 3(f) of the Mine Act, which employed
McDonald during the relevant period of her employment. 30 U.S.C. § 802(f).

The Judge found that following the termination of “TMK
Enterprise Security Services, Inc.” in 2009, George King and Mark Toler
continued to operate their security services business as a non-corporate
entity. A non-corporate entity may constitute an employer under the Mine Act. Section
105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1), provides, in pertinent part
that “[n]o person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any miner.” Section 3(f) of the
Mine Act defines the term “person” to mean “any individual, partnership,
association, corporation, firm, subsidiary of a corporation, or other
organization.” 30 U.S.C. § 802(f). See Meredith v. FMSHRC, 177 F.3d 1042,
1052-56 (D.C. Cir. 1999). Therefore, it is clear that a non-corporate entity
such as a partnership, association, or other organization may qualify as a
“person” or employer under section 105(c) of the Mine Act. 

The Judge also noted that the relevant
period of McDonald’s employment, for the purpose of this proceeding, was May
2011 to September 2013. We find that the record establishes that King and Toler
operated one or more non-corporate security services businesses under the name
“TMK Security” and/or “TMK Enterprise Security,” which employed McDonald during
this period.[6]

Furthermore, the record indicates that
during 2011 through 2013, “TMK Security” was the trade name for “Appalachian
Enterprise Security Services, LLC.” Pet. for Recons., Ex. 1. “Appalachian
Enterprise Security Services, LLC” listed King and Toler, the former principals
of “TMK Enterprise Security Services, Inc.,” among its officers. Id. Upon
the termination of the corporate status of “TMK Enterprise Security Services,
Inc.,” Messrs. King and Toler clearly continued to operate in a non-corporate
form under the name “TMK Security” and/or “TMK Enterprise Security,” without
attention to details of corporate law. Therefore, the termination of the
corporate status of “TMK Enterprise Security Services, Inc.” does not lead to
the dismissal of the complaint against “TMK Enterprise Security.” The entity,
either as a partnership of Toler and King or as a trade name for “Appalachian
Enterprise Security Services, LLC,” was Respondent’s employer during the period
applicable to the complaint.[7]

Hence, we hold that the Judge erred when
he dismissed the complaint against “TMK Enterprise Security.”[8]

III.

Conclusion

For the reasons stated above, we reverse the Judge and
conclude that “TMK Enterprise Security” is a “person” pursuant to section 3(f)
of the Mine Act. “TMK Enterprise Security” continues to be a Respondent in this
proceeding and leave is granted for McDonald to amend the complaint to add
other relevant parties, including King and Toler. The case is remanded for
further proceedings consistent with this decision.      

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William
I. Althen, Commissioner

[1]
Section 105(c)(3), 30 U.S.C. § 815(c)(3),
provides in pertinent part:

Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in writing, the miner . . . of
his determination whether a violation has occurred. If the Secretary, upon
investigation, determines that the provisions of this subsection have not been
violated, the complainant shall have the right . . . to file an action in his
own behalf before the Commission[.]

[2]
Section 105(c)(2), 30 U.S.C. § 815(c)(2),
provides in pertinent part, that “[a]ny   miner . . . who believes that he has
been discharged, interfered with, or otherwise discriminated against by any
person in violation of this subsection may . . . after such violation occurs,
file a complaint with the Secretary alleging such discrimination.”

[3]
In her complaint to MSHA, McDonald also listed
her employer’s contractor ID as “5GI” which, according to the Mine Data
Retrieval System, corresponds to the company “TMK Enterprise Security.” MSHA
Discrimination Compl.; Mot. to Lift Temporary Stay and to Amend Compl.,
MSJ000002.

[4]
The Judge did not grant the motion for default
judgment, noting that King and Toler had informed his law clerk that they
intended to proceed pro se and provided assurances that they would
participate fully in all remaining proceedings. The Judge also noted, however,
that neither King nor Toler had attended the scheduled mediation conference.
Unpublished Order (Feb. 3, 2015).

[5]
The records of the State of West Virginia
confirm that the corporate status of “TMK Enterprise Security Services, Inc.”
had been terminated on June 12, 2009. Mem. in Supp. of Mot. for Default J., Ex.
C.

[6]
In this regard, the “employee disciplinary
report” issued to McDonald on September 9, 2013 bears the letterhead “TMK
Security.” Employee Disciplinary Report, issued on Sept. 9, 2013. However, as
noted above, a security entity operated by King and Toler was registered as a
contractor with MSHA under the name “TMK Enterprise Security.” Significantly,
“TMK Enterprise Security” filed an Answer to McDonald’s complaint, responded to
her interrogatories and requests for production of documents, and filed both a
motion to dismiss, and a Pre-Hearing Report. In the Answer to the complaint,
motion to dismiss and response to McDonald’s discovery requests, the entity
referred to itself as “TMK Enterprise Security.” Answer to Compl. at 1-2; Mot.
to Dismiss at 1-2; Resp. to Disc. Reqs. at 1-2. In the Pre-Hearing Report, the
entity referred to itself as “TMK Security.” Resp’t Preh’g Report at 4. Significantly,
it was never denied that McDonald worked for this entity, or that King and
Toler were the principals of the entity.

[7]
After termination of its corporate form “TMK
Enterprise Security” would have been operating as a partnership between Messrs.
King and Toler or as a trade name for “Appalachian Enterprise Security
Services, LLC.” Therefore, the complainant may amend her complaint to add “Appalachian
Enterprise Security Services, LLC,” “TMK Security,” King, and Toler as Respondents.

[8] Not only is “TMK Enterprise Security” listed in the
MSHA Mine Data Retrieval System, but the Mine Data Retrieval System lists
citations issued to the contractor “TMK Enteprise Security” in 2013, several
years after the termination of the corporation “TMK Enterprise Security
Services, Inc.” Mot. to Lift Temporary Stay and to Amend Compl., MSJ000002.