Joseph Stora v. Southern Ohio Coal Company (ALJ decision, August 16, 1988)

Plain-English summary

Joseph Stora alleged that Southern Ohio Coal Company discharged him for working under unsupported roof while other employees were not discharged for similar conduct. He also acknowledged the roof violation and disputed the company's claim of a continuing pattern of unsatisfactory work. Judge Roy J. Maurer dismissed the complaint because the allegations did not show that Stora had engaged in activity protected by the Mine Act's discrimination provision. The decision states that violating federal mining regulations is not protected activity under section 105(c)(1).

Decision snapshot

• Cited standards: 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination complaint was dismissed for failure to state a claim.
• Key point: Unequal discipline for an admitted safety violation does not itself establish protected activity under the Mine Act's discrimination provision.

Full text (FMSHRC public release)

+CCASE:
JOSEPH STORA V. SOUTHERN OHIO COAL
DDATE:
19880816
TTEXT:

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

JOSEPH STORA,
DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. WEVA 88-96-D
v. MORG CD 88-4

SOUTHERN OHIO COAL COMPANY,
Raccoon No. 3 Mine
RESPONDENT

DECISION

Before: Judge Maurer

On October 27, 1987, the Complainant, Joseph Stora, filed a complaint of discrimination under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (hereinafter referred to as the "Act") with the Secretary of Labor, Mine Safety and Health Administration (MSHA) against the Southern Ohio Coal Company (SOCCO). That complaint was denied by MSHA and Mr. Stora thereafter filed a complaint of discrimination with the Commission on his own behalf under section 105(c)(3) of the Act. Mr. Stora alleges that he was discriminated against in violation of section 105(c) of the Act because he was discharged on August 28, 1987, by SOCCO for proceeding under unsupported top while other persons are known by management to go out under unsupported top and are not discharged. He goes on to state that the other reason he was given for his discharge was a "continuous pattern of unsatisfactory work." He admits proceeding under the unsupported roof on the cited occasion but denies the "continuous pattern of unsatisfactory work."

SOCCO, by counsel, has moved to dismiss the subject complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted under section 105(c) of the Act. On June 22, 1988, an ORDER TO SHOW CAUSE was issued by the undersigned wherein the Complainant was ordered to show cause within fifteen (15) days as to why this proceeding should not be dismissed for "failure to state a claim for which relief can be granted under section 105(c)(1) of the Act." There has been no response received to date.

For the purposes of ruling on SOCCO's motion to dismiss, the well pleaded material allegations of the complaint are taken as admitted. 2A Moore's Federal Practice 12.08. A complaint should not be dismissed for insufficiency unless it appears to a certainty that the complainant is entitled to no relief under any

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state of facts which could be proved in support of a claim. Pleadings are, moreover, to be liberally construed and mere vagueness or lack of detail is not grounds for a motion to dismiss. Id.

Section 105(c)(1) of the Act provides as follows:

No 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, representative of miners or applicant for employment in any coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101 or because such representative of miners or applicant for employment has instituted or caused to be instituted any proceedings under or related to this Act or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act.

In order to establish a prima facie violation of section 105(c)(1) the Complainant must prove that he engaged in an activity protected by that section and that his discharge was motivated in any part by that protected activity. Secretary ex. rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980) rev'd on other grounds, sub nom, Consolidation Coal Company v. Secretary, 633 F2d. 1211 (3rd Cir.1981). In this case, Mr. Stora asserts that he was discharged for going beyond supported top while other persons are known by management to have engaged in similar unsupported top infractions and were not discharged. Assuming that this allegation is true, it is clearly not sufficient to create a claim under section 105(c)(1) of the Act. That section does not provide a remedy for what the Complainant perceives to be "discrimination" but what is in reality, at best, unfairness or inequitable treatment; if that conduct on the part of the operator was not caused in any part by an activity protected by the Act. Violating the federal mining regulations is not activity protected by the Act. Therefore, I find that the complaint herein fails to state a claim for which relief can be

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granted under section 105(c)(1) of the Act, and this case is therefore dismissed.

Roy J. Maurer
Administrative Law Judge