Homer W. Davis v. Armco Steel Corporation (ALJ decision, October 15, 1984)

Plain-English summary

Homer Davis alleged that Armco Steel refused to rehire him because he had pneumoconiosis. He filed a discrimination complaint with MSHA in December 1983 after the alleged refusal in 1980. Judge Michael Lasher dismissed the case because Davis had missed the Mine Act's 60-day filing deadline and had not shown circumstances that justified the long delay. The judge found that Davis knew by the end of 1982 about the disease, Armco's possible knowledge of it, and his right to file a discrimination complaint. The judge did not decide whether Armco's refusal to rehire him violated the Act.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2), the filing period for a miner's discrimination complaint.
• Outcome: Complaint dismissed as untimely; no penalty assessed.
• Key point: The judge required a strong justification for a filing delay of more than three years and found none here.

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

HOMER W. DAVIS, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEVA 84-118-D
V. :
: HOPE CD 84-2
ARMCO STEEL CORPORATION,
:
Respondent : No. 8 Mine
DECISION AND ORDER OF DISMISSAL
Before: Judge Lasher
This proceeding, which was initiated by the filing with the Federal Mine Safety and Health Review Commission of a com- plaint of discrimination by Mr. Homer W. Davis on February 1, 1984, arises under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981), hereinafter "the Act".
By letter dated January 23, 1984, the Complainant had been notified that his complaint of discrimination (filed De- cember 15, 1983) before the Mine Safety and Health Administra- tion (MSHA) had been investigated and the determination made that "a violation of section 105(c) had not occurred." Under the Act, a complaining miner has an independent right to bring a complaint before this Commission and this proceeding is based on that right.
On April 17, 1984, the Respondent filed a Motion to Dis- miss alleging inter alia that:
1. The Complaint was not timely filed, i.e. not filed within 60 days "after the alleged Octo- ber 31, 1980 discriminatory act of Respondent."
2. The Complaint fails to state a claim recog- nizable under the Act.
A preliminary hearing to determine the two issues raised by the motion to dismiss was held on the record in Charleston, West Virginia, on June 21, 1984, at which Respondent was rep- resented by counsel and Complainant appeared pro se.
The reliable and probative evidence of record indicates that the Complainant was employed by Respondent, Armco Steel Corporation (ARMCO), from October 18, 1979 (Tr. 38) through November 15, 1979, on which latter date he voluntarily quit

to take care of "personal business" in California. On or about October 15, 1979, Respondent had received a "Pre-employment" Chest X-ray, the results of which were reported by J. Dennis Kugel, M.D. (Exhibit R-1), and the pertinent portion of which provided as follows:
PA CHEST: The projection is somewhat under- exposed. There appears to be a fine nodular fibrosis in fairly prominent amount throughout the lung fields so that if there is a proper history of exposure an Occupational pneumoconio- sis should be considered of a UICC-p 2/3 all six lung zones. A repeat chest study is suggested with some increase in penetration. 1/
Whether the report of Dr. Kugel indicates occupational pneumoconiosis depends on Complainant's having an appropriate history of exposure (Tr. 10, 27). This question which goes to the merits of the complaint was not resolved in the preliminary hearing which was limited to the 2 issues raised in the motion to dismiss. However, as noted subsequently, a Workmen's Com- pensation claim filed by Complainant in 1982 was turned down because he had insufficient exposure.
Sometime in May of 1980, Complainant discussed re-employ- ment with Terry E. Whitt, Respondent's Personnel Relations Rep- resentative, and on May 19, 1980, he filed an employment appli- cation. He was not rehired. 2/ At unspecified times during the period May 1980 into the autumn of 1980, conversations took place between Complainant and MSHA officials in which it appears that Complainant had discussed with MSHA possible discrimination by Respondent in not rehiring him (Tr. 20-23).
Although not clearly articulated', Complainant's contention of discrimination appears to be that he was not rehired in the Spring of 1980 (Tr. 54) because he had pneumoconiosis. He be- came aware that he had pneumoconiosis on or about October 23,

1/ The face of the X-Ray report shows it was taken on 10-12-79, and "Received" on 10-15-79. Since it was part of Complainant's Pre-employment examination, I infer that it is unlikely that Complainant would have gone on the payroll prior to Respondent's being aware of it. 2/ At the prehearing conference, Mr. Whitt gave the following explanation why Complainant was not rehired: ’ "Basically he was under consideration for hire. We had several other employees, applicants that we had. Mr. Davis worked for us for approximately three weeks, and I wasn't quite sure whether or not his family problems were through and did not know if he was stable or not." (Tr. 17, 18).

1981 (Tr. 46, 56). Complainant contends that sometime during the period July 26, 1982 - August 9, 1982, he first became a- ware that when he went to work for Respondent in 1979 that Re- spondent had evidence that he had pneumoconiosis (Tr. 57, 58). On January 27, 1983, Complainant's claim against the West Vir- ginia Workmen's Compensation Fund for pneumoconiosis was turned down because he had insufficient exposure to the hazards of "occupational pneumoconiosis" during the pertinent 10-year and 15-year periods. (Court Exhibit 1). The claim itself was filed by Complainant on July 26, 1982. In approximately October 1981, Complainant sought employment with Kanawha Coal Company. He was rejected on the basis of an X-Ray report dated October 23, 1981, which indicated pneumoconiosis (Tr. 55). Sometime in 1982, Com- plainant filed with MSHA a discrimination complaint against Kanawha Coal Company which Complainant testified was later with- drawn for reasons which were not delineated at the hearing (Tr. 61-68).
The complaint herein was filed on December 15, 1983 (Tr.
43).
There is no question but that the complaint was not timely filed with the Secretary within the 60-day period prescribed in section 105(c)(2) of the Act.
The Commission has held that the purpose of the 60-day time limit is to avoid stale claims, but that 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:
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 cir- cumstances. Circumstances which could war- rant 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 em- ployer, or the miner fails to meet the time limit because he is misled as to or misunder- stands his rights under the Act.
S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), re- printed 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 ques- tions must be resolved on a case-by-case basis, taking into account the unique circumstances of each situation.

Here, Respondent's failure to rehire Complainant occurred in October 1980, but his complaint of discrimination with the Secretary was not filed until December 15, 1983, more than 3 years beyond the statutory filing deadline. Accepting the relevant time factors as presented by Complainant, it appears that at least by the end of 1982, he was aware (1) that he had pneumoconiosis, (2) that Respondent might have had evidence when he was first hired and also when he was subsequently re- fused re-employment that he had pneumoconiosis (whether or not "occupational" pneumoconiosis), and (3) of his right to bring- and the procedure for bringing-a discrimination complaint un- der the Act against Respondent (Tr. 22, 23).
The 60-day 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 de- signed 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 no- tice 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 remarkably prolonged, it seems a fair proposition to re- quire a proportionately strong and clear justification therefor.
The lengthy time lapse and sequence of events here man- dates the conclusion that Complainant's delay in filing his complaint 3/ was not justified and that the complaint was not timely filed. 4/ ORDER
Respondent's motion to dismiss is granted and this pro- ceeding is dismissed.

Michael A. Lasher, Jr.
Administrative Law Judge

3/ Cf. Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC 8 (January 1984) (31-day delay). 4/ In view of this holding, the question of whether the com- plaint states a cause of action under the Act is not reached.

Distribution:

Mr. Homer W. Davis, General Delivery, Gordon, WV 25093 (Certi- fied Mail)

William T. Brotherton III, Esq., Spilman, Thomas, Battle & Klostermeyer, 1101 Kanawha Banking & Trust Building, Charleston, WV 25301 (Certified Mail)

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