Michael Deuso v. Shelburne Limestone Corp.

Plain-English summary

Michael Deuso alleged that Shelburne Limestone fired him after he adjusted a stone-feeder control and requested a conveyor-belt speed sensor. He filed his Commission discrimination case almost 19 months after an MSHA supervisor had told him that MSHA could not help with his original report, which had focused on age discrimination and an incident at the company's main office. Acting Chief Judge Thomas P. McCarthy noted that a late filing may be excused in some circumstances, but the record also did not show that MSHA had investigated the conveyor safety allegation later raised before the Commission. The Judge ordered Deuso to explain why the case should not be dismissed as untimely or for failure to satisfy the statutory investigation prerequisite. The order did not decide the discrimination claim.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1), (2), and (3)
• Outcome: The complainant was given two weeks to show why his discrimination case should not be dismissed on threshold procedural grounds.
• Key point: A miner filing directly with the Commission must address both the filing deadline and whether MSHA investigated the Mine Act allegation presented in the case.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

February 6, 2019

MICHAEL DEUSO,

Petitioner

v.

SHELBURNE LIMESTONE CORP.,

Respondent

DISCRIMINATION PROCEEDING

Docket No. YORK 2019-0015-DM

Mine: SLC Swanton Div.

Mine ID: 43-00030

ORDER TO
COMPLAINANT TO SHOW CAUSE

This case is before me on a pro se
Complaint of Discrimination pursuant to Section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”) filed on December 12, 2018 with the
Commission. Respondent filed a Motion to Dismiss on January 8, 2019. The case
was assigned to the undersigned on January 24, 2019.

Complainant’s claim of discrimination stems from
an incident alleged to have occurred at the Respondent’s main office on April
21, 2017. On May 22, 2017, Complainant e-mailed the Mine Health and Safety
Administration’s (MSHA) Albany Field Office supervisor recounting the alleged
incident. At that time, Complainant did not raise any issue of protected
activity under the Mine Act, but did assert that he was terminated because of
his age, and that a physical altercation with Respondent’s representatives
occurred after he was terminated by the Respondent. Less than four hours later,
MSHA’s supervisor responded to Complainant’s e-mail by asserting that he “was
sorry to hear about this very unfortunate incident,” that MSHA lacked
jurisdiction over an incident that occurred at Respondent’s main office, and
that “there is nothing that MSHA can do to assist in the matter.” The MSHA
supervisor’s reply email further stated that Respondent’s “main office would
fall under VOSHA [Vermont OSHA] jurisdiction and they should be made aware of
the incident,” that age discrimination is a violation of the Age Discrimination
in Employment Act (ADEA), and “[i]f you seek legal counsel on this matter, they
should be well versed in the laws that have been violated.”

Complainant subsequently sought redress of his
alleged improper termination claim with the Office of Administrative Hearings
at the Department of Labor for the State of Vermont.  Complainant’s claim has
been active in the Vermont administrative adjudication system and the state
courts [1]
through at least October 30, 2018.

On December 12, 2018, almost 19 months after his
e-mail conversation with MSHA, the Complainant filed a discrimination claim
with the Commission alleging he was discharged for activity protected under the
Mine Act. Complainant alleged, in pertinent part, his “belief that for the past
couple of years the owners were looking for ways to force me to quit because I
was a highly paid employee and by making my job unbearable that they would push
me out the door.” Complainant further avers, for the first time, that on the
week of April 17, 2017, the owners came to the mine and “made adjustments on
the primary and secondary feeders and the system [was] running at 100 percent
capacity using the conveyor belt amp meters as guides[.] [I]t had rained and
the stone was flowing faster through the feeder pans and the belt amps were
starting to run past the amp setting that they had the feeders set at so I
tweaked the setting on the stone crusher to maintain the belt amperage.” Complainant
further alleges that after the owners came out of a meeting, one of them asked
why he had adjusted the feeder knob. Complainant explained, and was told by the
owner to “set the dial on 100 percent no matter what happened.”  Complainant
then turned the dial back to 100 percent and gave the owner a brochure of a
belt speed sensor and asked him to install it on the conveyor belt.  The owner
left with the brochure. Complainant alleges that a couple of days later, he was
called down to the main office to be fired for touching the feeder dial.

On January 8, 2019, Respondent filed a Motion to
Dismiss arguing that Complainant filed a Section 105(c)(1) complaint with MSHA
on May 22, 2017, that MSHA denied the complaint that same day, and that
Complainant did not timely file a Section 105(c)(3) complaint within 30 days of
MSHA’s denial. In addition, Respondent argues that the acts complained of took
place at the Respondent’s main office, which is not under MSHA jurisdiction,
and age discrimination is not covered by the Mine Act. Finally, Respondent
relies on and attaches Vermont administrative decisions finding that
Complainant was terminated for insubordination and failure to obey a direct
order. [2]

Section 105(c)(1) of the Mine Act
provides, in pertinent part, that:

No person shall discharge or in any
manner discriminate against . . . or otherwise interfere with the exercise of
the statutory rights of any miner . . . in any coal or other mine subject to
this Act 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 in a
coal or other mine, or because such miner . . . instituted or caused to be
instituted any proceeding 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 . . . on behalf of himself or others of any statutory right afforded by
this Act.

Section 105(c)(2) of the Mine Act provides, in pertinent part,
that:

Any miner . . . who believes that
he has been discharged, interfered with, or otherwise discriminated against by
any person in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the Secretary shall forward a
copy of the complaint to the respondent and shall cause such investigation to
be made as he deems appropriate. . . .

Section 105(c)(3) of the Mine Act provides, in pertinent
part, that:

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, within
30 days of notice of the Secretary's determination, to file an action in his
own behalf before the Commission, charging discrimination or interference in
violation of paragraph (1) . . . .

Under Section 105(c)(3) of the Mine Act,
assuming arguendo that MSHA’s e-mail communication on May 22, 2017 is
considered a determination after investigation that no violation of the Mine
Act occurred, Complainant had 30 days to file his 105(c)(3) action with the
Commission. As noted, Complainant filed with the Commission almost 19 months
later.

The Commission has held however, that a claim may be considered
despite untimely filing due to “justifiable circumstances, including ignorance,
mistake, inadvertence and excusable neglect.” Perry v. Phelps Dodge Morenci,
Inc., 18 FMSHRC 1918, 1921-22 (Nov. 1996). There is no evidence in the
record that the Secretary’s May 22, 2017 determination that the Mine Act had
not been violated was based upon any investigation of the conveyor belt
incident raised for the first time in the Complainant’s filing with the
Commission. Cf. Hatfield v. Colquist Energy, Inc. , 13 FMSHRC 544 (Apr.
1991).

In light of the foregoing, the Complainant is
directed to SHOW CAUSE why his claim should not be dismissed as untimely
filed, or dismissed because the matters contained in his Commission filing were
not investigated by the Secretary such that the statutory prerequisites for a
complaint pursuant to Section 105(c)(3) have not been satisfied.

Complainant is directed to respond within two
weeks of receipt of this order. Respondent will have two weeks from the filing
of Complainant’s response to submit a reply to Complaint’s response.

/s/
Thomas P. McCarthy

Thomas P.
McCarthy

Acting
Chief Administrative Law Judge

Distribution:

Michael Deuso, 236 N. Main Street, East Berkshire, VT 05447

Joseph Cahill, Cahill, Gawne, Miller & Manahan, P.O. Box
810, St. Albans, VT 05478     

/BFP

[1] Deuso
v. Vermont Department of Labor , No. 2017-425, 2018 WL 2100366 (Vt. May 4,
2018) (unpub. mem.) (reversed and remanded for further proceedings).

[2]
See note 2, supra .