Michael Deuso v. Shelburne Limestone Corp.

Plain-English summary

Michael Deuso filed a discrimination case nearly 19 months after MSHA told him it could not assist with his age-discrimination and assault allegations. Judge Thomas P. McCarthy excused the late filing because MSHA had not told the self-represented miner about his right to bring his own Commission action, and Shelburne Limestone showed no material prejudice from the delay. Deuso's Commission filing, however, alleged for the first time that he was fired after reducing belt-feeder speed because he feared another fire. Under controlling Commission precedent, the new protected-activity allegation could not proceed because it had never been presented to or investigated by MSHA. The Judge dismissed the complaint while criticizing MSHA's cursory review and noting that a fuller investigation might have uncovered a potentially protected work refusal.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)-(3)
• Outcome: The late filing was excused, but the discrimination complaint was dismissed because its safety allegation had not first been investigated by MSHA.
• Key point: A miner may receive leeway for a late filing, but a section 105(c)(3) case cannot rest on protected activity that was never part of the complaint investigated by MSHA.

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:
202-434-9900 / FAX: 202-434-9949

MICHAEL
DEUSO

Complainant

v.

SHELBURNE
LIMESTONE CORP.,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. YORK 2019-0015-DM

Mine:
SLC Swanton Div.

Mine
ID: 43-00030

ORDER DISMISSING
SECTION 105(c) DISCRIMINATION COMPLAINT

Before:                        Judge
McCarthy

This matter is before the undersigned
on a Complaint of Discrimination filed pursuant to section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., as
amended (“Mine Act”) and 29 C.F.R. 2700.42. Respondent seeks an Order
Dismissing the Complaint for untimely filing and lack of jurisdiction. For the
reasons set forth below, the undersigned finds that Complainant’s untimely
filing of his action with the Commission was justifiable because of ignorance, misunderstanding,
or mistake, and because of the absence of any material prejudice to Respondent.
The undersigned further finds, however, that such action should be dismissed because
Complainant’s new allegations, which raised arguable protected activity for the
first time before the Commission, were not investigated by the Secretary under extant
controlling precedent set forth in Hatfield v. Colquest Energy, Inc ., 13
FMSHRC 544 (Apr. 1991).

I. STATEMENT OF THE CASE

On
April 21, 2017, Complainant was terminated from his position at SLC Swanton
(“Mine”). Complainant contacted the Mine Safety and Health Administration
(“MSHA”) via email on May 22, 2017. In that email, sent at 7:06 a.m., Complainant
asserted that he had been terminated because of his age. He further asserted
that immediately after he was fired, a physical altercation ensued with Mine owners
Dennis and Trampas Demers. As described by Complainant in his email to MSHA:

I was texted to
go to main office in Colchester VT for a meeting which I thought was going to
be about plant modifications, but it was about terminating me from [sic] being
57 yrs old.

I sat and
listened to them for 5 min. I got up said I heard enough and stormed out of
there [sic] office when I reached outside door Dennis Demers grabbed me, as
Trampas Demers was shouting at me you did this to yourself & I told you dad
he is a fking loser, he is nothing. I went to grab Trampas and Dennis tackled
me on to the asphalt where Trampas had his arm on my throat choking me while I
was on my back, and Dennis was kneeling his whole body on my chest area between
my head holding my head with his hands, I went to take a swipe at Trampas to
get him off my throat so could breath [sic], Dennis took my head and picked it
up and slammed it on the asphalt 3 times almost knocked me out. After 5 min or
so Dennis let me up I grabbed my glasses from the ground Dennis asked for the
keys I gave him the plant keys & company truck keys I asked if he would
unlock my truck so I could grab some personal things he did. I cleaned it out
while Trampas hollered we were going to give you a severance but your to [sic] fking
stupid.

Email from Michael
Deuso, Complainant, to the Albany, New York MSHA Field Office (May 22, 2017, 07:06
EDT).   Complainant
also provided his phone number to the MSHA Field Office.

At 11:01 a.m. on May 22, 2017, an Albany, New York
MSHA Field Office supervisor responded to Complainant’s email. He stated that the
company’s main office where the altercation allegedly occurred is “not under
MSHA jurisdiction,” and that “age discrimination is not a protected act under
the Mine Act.” MSHA concluded that “there is nothing that MSHA can do to assist
in the matter.”

After
MSHA declined to investigate any further, Complainant filed an unlawful termination
claim with the Office of Administrative Hearings at the Vermont Department of
Labor. Complainant’s claim was active through at least October 30, 2018 in the
Vermont state adjudicative system. [1]

On December 12, 2018, Complainant filed a pro se action
with the Commission under section 105(c)(3) of the Mine Act. His Commission filing
recounts the incident at Respondent’s corporate office. It further alleges for
the first time that, during the week of April 17, 2017, the Mine owners came to
the mine and “made adjustments on the primary and secondary feeders” to run the
system at 100% capacity. Complainant states that he “adjusted the feeder knob”
to reduce the speed at which the feeders were operating, against the wishes of
Respondent. Complainant further asserts that he adjusted the feeder knob
because “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 cone crusher to maintain the
belt amperage.” With his Commission filing, Complainant submitted a news
article recounting a conveyor belt fire at the Mine in 2015. [2]
Complainant claims that he reduced the speed of the feeders out of concern for
the possibility of another fire on the belts.

On January 8, 2019, the Respondent filed a Motion to
Dismiss (“Motion”). The Motion argues that Complainant’s email communication
with MSHA on May 22, 2017 constituted a “complaint” within the meaning of section
105(c)(1) of the Mine Act. The Respondent further argues that section 105(c)(3)
requires Complainant to file his action with the Commission within 30 days
after the Secretary of Labor declines to prosecute his complaint under section
105(c)(2) of the Act. Given that Complainant’s filing with the Commission was
received on December 17, 2018, approximately 19 months after the Secretary
determined that there was nothing that MSHA could do to assist in this matter, the
Respondent argues that the action should be dismissed as untimely filed.

On January 31, 2019, the undersigned conducted a
conference call with the parties and deferred ruling on Respondent’s Motion to
Dismiss pending an opportunity for Complainant to show cause why his action should
not be dismissed as untimely filed, or dismissed because his allegations were
not investigated by the Secretary under Commission precedent set forth in Hatfield ,
13 FMSHRC at 546. On February 6, 2019, the undersigned issued such Order to
Show Cause.

On February 15, 2019, Complainant submitted his
Response to the Order to Show Cause, recounting the circumstances surrounding
his termination and quoting from Chapter 2 of MSHA’s Special Investigations
Handbook, [3]
which outlines the procedures for investigating discrimination complaints. Complainant
avers that MSHA’s Albany Field Office Supervisor did not follow MSHA procedures
regarding investigation of discrimination complaints, and “if you decide to
allow an investigation you will find multiply [sic] violations of the Section
105(c) of the miners act [sic]. I sincerely hope you decide to allow an
investigation into this case so future miners will have a safer place to work.”
Response at 3.

On February 27, 2019, Respondent submitted its Reply
to Complainant’s Response (“Reply Memorandum”). Respondent argues that Vermont state
investigators found insufficient evidence to prove age discrimination and that
neither age discrimination nor acts that occur at the Mine’s corporate
headquarters fall under MSHA jurisdiction. Further, Respondent argues that
Complainant was terminated for insubordination after his failure to comply with
the operator’s directives to refrain from adjusting the dial settings on the
belt feeders. Finally, Respondent argues that the Complainant’s active
engagement in the state law proceedings indicates that he is sophisticated
enough to understand his legal rights, and that he should not be excused from
filing his section 105(c)(3) action with the Commission approximately 19 months
after MSHA informed him that it was declining to take any action on his behalf.

II. LEGAL PRINCIPLES AND ANALYSIS

In cases involving
a pro se litigant, the Commission has stated that “motions to dismiss
for failure to state a claim should rarely be granted. Instead, a judge should
ensure that he informs himself of all the available facts relevant to his
decision, including the complainant’s version of those facts.” Perry v.
Phelps Dodge Morenci, Inc. , 18 FMSHRC 1918, 1920 (Nov. 1996), citing Heckler
v. Campbell , 461 U.S. 458, 470-73 (1983) (Brennan, J., concurring). The
filings of a pro se litigant are to be construed liberally. Marin v.
Asarco, Inc. , 13 FMSHRC 1269, 1273 (Aug. 1992), citing Haines v. Kerner ,
404 U.S. 519, 520 (1972).

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,
Complainant had 30 days to file his section 105(c)(3) action with the
Commission after receipt of MSHA’s May 22, 2107 email communication advising
him that there was nothing that MSHA could do on his behalf.  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), citing S chulte v. Lizza Indus., Inc ., 6 FMSHRC 8,
12-13 (Jan. 1984); Farmer v. Island Creek Coal Co ., 13 FMSHRC 1226,
1230-31 (Aug. 1991). [4]
In Perry , the Commission noted that “[even if there is an adequate
excuse for late filing, a serious delay causing legal prejudice to the
respondent may require dismissal.” See Secretary of Labor on behalf
of Hale v. 4-A Coal Co ., 9 FMSHRC 905, 908 (June 1986).” The Commission
concluded that “[i]n general, “timeliness questions must be resolved on a
case-by-case basis, taking into account the unique circumstances of each
situation.” See Hollis v. Consolidation Coal Co ., 6 FMSHRC 21, 24
(Jan. 1984) aff'd mem., 750 F.2d 1093 (D.C. Cir. 1984).

Although this case arises under section
105(c)(3), the undersigned finds that Commission precedent addressing the Mine
Act’s legislative history regarding the filing time limit under section 105(c)(2)
is instructive here. The Commission has found that the 60-day filing period for
discrimination claims is not a jurisdictional bar and that timeliness questions
must be examined on a case-by-case basis. Hollis , 6 FMSHRC at 24, aff'd
mem., 750 F.2d 1093 (D.C. Cir. 1984). The relevant legislative history of the
Mine Act supports this case-by-case approach when stating:

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
circumstances. Circumstances which could warrant 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 employer, or the
miner fails to meet the time limit because he is misled as to or misunderstands
his rights under the Act.

S.Rep.
No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Sub-committee 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); see also
Herman v. IMCO Services , 4 FMSHRC 2135, 2138 (Dec. 1982).

Although Complainant’s section 105(c)(3)
action was filed nearly 19 months after Complainant was notified that MSHA
could do nothing on his behalf, the Commission and its judges have waived the
untimely filing of a section 105(c) complaint on numerous occasions, even when
the delay in filing was extensive, particularly where there is no showing of
prejudice to respondent. See , e.g., 4-A Coal Co., 9 FMSHRC at 908 (reversing
judge’s dismissal of section 105(c)(2) complaint filed by the Secretary two
years after the incident where the respondent did not demonstrate prejudice due
to the delay); c f ., Keim v. Cordero Mining LLC , 36 FMSHRC 963
(April 2014) (ALJ) (excusing the untimeliness of pro se section complaint filed
with MSHA, but dismissing timely filed section 105(c)(3) action for failure to
establish any genuine issue of material fact that adverse discipline was
motivated, at least in part, by any protected activity, or that respondent harbored
any animus toward such activity; Jack v. Mid-Continent Resources, Inc. ,
6 FMSHRC 1059, 1061 (April 1984) (ALJ) (excusing the untimeliness of pro se complaint
filed more than nine months after discharge where complainant misunderstood his
rights under the Act and was confused about the proper manner in which to
proceed, and respondent did not demonstrate prejudice due to the delay, but
dismissing section 105(c)(3) action because discharge was not motivated in any
part by protected activity).

In this case, it appears that Complainant
misunderstood or was ignorant of the rights he had under the Mine Act to file an
action on his own behalf after MSHA declined to further investigate the matter.
When the Secretary declines to bring a discrimination case before the
Commission, the Secretary typically provides an insufficient evidence letter to
the complainant advising of the Secretary’s decision and the right to file a
discrimination action under section 105(c)(3) with the Commission. See, e.g. ,
Farmer v. Spartan Mining Co., LLC , 389 FMSHRC 1301, 1303 (June 2017)
(ALJ). In this case, the email sent by MSHA to the Complainant makes no
reference to his section 105(c)(3) right to file an action with the Commission.
In the undersigned’s view, it was reasonable for Complainant to conclude that
he had no remedy under the Mine Act based on statements made by MSHA in their
initial intake of his Complaint. The Albany MSHA Field Office supervisor
informed Complainant that there was nothing that MSHA could do to assist in
this matter. Complainant may have mistakenly inferred from this statement that he
had no additional rights under the Mine Act. Considering the totality of
circumstances, including Complainant’s pro se status and the lack of any
notification from MSHA about the Complainant’s right to pursue an action under
section 105(c)(3) with the Commission, the undersigned concludes there were justifiable
circumstances that excuse the untimely filing of his section 105(c)(3) action
with the Commission.

Additionally, the Respondent failed to
demonstrate material prejudice should the undersigned excuse the Complainant’s
untimeliness. In both its motion to dismiss and its Reply to the Order to Show
Cause, Respondent fails to articulate why, much less demonstrate how, its legal
interests would be prejudiced by Complainant’s delay in filing with the
Commission. Although Respondent cites Perry to support the proposition
that the 19-month delay is too long to qualify as “excusable neglect,” Respondent
does not address any of the cases or the legislative history cited above, which
favor processing a claim despite untimely filing where no prejudice has been
shown. Nor does Respondent’s Reply Memorandum address the other circumstances
outlined in Perry that might give rise to a waiver of untimely filing,
such as ignorance or mistake. Additionally, as noted, Respondent does not offer
any reason why its legal interests would be adversely affected by waiving the
untimely filing. Although the pro se Complainant was dilatory in pursuing his
legal action under section 105(c)(3), Complainant contested his discharge with
the Vermont Department of Labor and the Vermont judicial system shortly after
contacting MSHA. As the parties’ filings indicate, the Respondent has been on
notice of Complainant’s claims and has vigorously defended the validity of Complainant’s
discharge since Complainant initiated legal actions against Respondent. Furthermore,
there has been no showing by Respondent that essential witnesses are no longer
available or that essential evidence no longer exists. Therefore, the
undersigned concludes that the Respondent has not demonstrated material
prejudice caused by waiving the untimely filing of the section 105(c)(3) action
that Complainant filed with the Commission.

Nevertheless,
the undersigned concludes that Complainant’s section 105(c)(3) action should
be dismissed under extant Commission precedent set forth in Hatfield v.
Colquest Energy, Inc ., 13 FMSHRC 544 (Apr. 1991). In Hatfield , the
complainant sought to amend his complaint under section 105(c)(3) after a
Commission judge dismissed his initial complaint for failure to allege any protected
activity. The judge denied the respondent’s motion to dismiss the amended
complaint. The Commission reversed and remanded on interlocutory review,
holding that the complainant could not amend his complaint to include
allegations that the Secretary had not previously investigated. The Commission
reasoned that section 105(c)(2) gave the Secretary the prerogative to
investigate violations of section 105(c), not the Commission. The Commission
concluded:

The written
discrimination complaint filed by Hatfield with MSHA is general in nature and
alleges no specific protected activities. The present record contains no
indication that the matters alleged in the amended complaint were part of the
case reported to and investigated by MSHA. Nor is there evidence in the record
that the Secretary's determination that the Act had not been violated was based
on matters contained in the amended complaint. If the Secretary's determination
was based upon an investigation that did not include consideration of the
matters contained in the amended complaint, the statutory prerequisites for a
complaint pursuant to § 105(c)(3) have not been met.

13
FMSHRC at 546.

The Mine Act provides that an aggrieved
miner must file a “complaint with the Secretary” to commence the investigatory
process under section 105(c)(2). The initial complaint must contain some
allegations of protected activity that the Secretary can investigate. If the
Complainant does not allege protected activity in its initial communication
with MSHA, a complainant cannot subsequently amend his pleading before the
Commission to allege new protected activity that was not investigated by MSHA. Hatfield,
13 FMSHRC at 545.

Hatfield is controlling
here. Complainant’s initial complaint filed with MSHA does not appear to allege
any protected activity. Complainant’s May 22, 2017 email communication with
MSHA makes no reference to the alleged belt feeder incident. The closest that Complainant
comes to describing the alleged belt feeder incident in his initial
communication with MSHA is his general statement that he was called into
Respondent’s offices to discuss “plant modifications.” There is no reference to
health or safety concerns. Even given the liberal construction that the
Commission accords pro se pleadings, Complainant’s email is simply too
indefinite to satisfy Hatfield .

By comparison, in DeRossett v. Martin
County Coal Corp. , 15 FMSHRC 883 (May 1993) (ALJ), the judge found that
complainant had apparently complied with Hatfield , but dismissed the
complaint as untimely filed. Id. at 885 and n.2. In DeRossett, complainant’s
initial complaint to MSHA stated:

I was discharged
by Martin County Coal Corp., MTR Surface Mine No. 1, in November 1989, for
complaining about safety hazards. I am requesting reinstatement to my original
job, receive backpay plus interest, have all benefits reinstated and to have
all records pertaining to the discharge removed from my personnel file.

Id . at 884. The judge found that complainant submitted a
supplemental statement to MSHA detailing allegations of transfer to the evening
shift and efforts to seek reinstatement after layoff. Accordingly, the judge found
it apparent that complainant had complied with the administrative prerequisites
set forth in Hatfield.   Id. at 885 n.2. Complainant sought
to file an amended complaint with the Commission to include additional
violations of section 105(c)(1). Assuming arguendo that DeRossett's complaint
to MSHA incorporated the allegations of discrimination contained in the amended
complaint filed with the Commission, [5]
and even assuming that such allegations were investigated by MSHA, the judge
concluded that the complaint was filed untimely and that the untimely filing
could not be excused. Id . at 885. More specifically, the judge reasonably
inferred, under the totality of circumstances, that DeRossett received
sufficient information during his period of employment with respondent from
which he knew, or should have known, of his right to file complaints with MSHA
under Section 105(c) of the Act for retaliation against him for making safety
complaints. Id . at 887.

By
contrast, in this case, Complainant did not provide any additional explanation to
MSHA about what “plant modifications” meant in his initial email to MSHA. He simply
alleges that Respondent unlawfully discharged him due to his age and thereafter
physically assaulted him at company headquarters. [6]
Also, there is no evidence in the record that MSHA’s determination that there
was nothing it could do—i.e., there was insufficient evidence that the Act had
been violated in customary parlance—was based on matters contained in the new
allegations filed under section 105(c)(3).

On the contrary, Complainant’s section
105(c)(3) action filed with the Commission on December 13, 2018 sets forth the alleged
belt feeder incident for the first time. Under Hatfield , the December
13, 2018 filing does not cure the deficiency of the earlier filing because MSHA’s
insufficient evidence determination was based upon an investigation that did
not include consideration of the matters contained in the section 105(c)(3) filing. [7]
Under section 105(c)(2), the Secretary is entitled to “cause such investigation
to be made as he deems appropriate.” Here, the Secretary’s designee apparently
deemed no investigation appropriate other than an initial reading of
Complainant’s May 22, 2017 email. Consequently, despite the liberal manner in
which the Commission construes pro se complaints, under the Commission’s
precedent in Hatfield , Complainant’s December 13, 2018 filing is
deficient as a matter of law and must be dismissed.

Nevertheless, the undersigned is compelled to
comment on the cursory nature of MSHA’s investigation of this matter. Complainant
contacted the MSHA Albany Field Office supervisor at 7:06 a.m. on May 22, 2017.
He informed MSHA that he had been terminated from his position at a mine for allegedly
improper reasons and that a physical altercation occurred between Complainant
and owners of Respondent immediately after he was fired. [8]
He also provided his phone number. One brief follow-up phone conversation
between MSHA and Complainant might have uncovered the belt feeder incident,
which could have prompted an investigation into whether the Complaint appeared
to have merit. Such an investigation would have been timely under the Mine Act
and would have preserved Complainant’s ability to bring his allegations under
section 105(c)(3), if the Secretary determined, after investigation, that he
would not prosecute the Complaint on Complainant’s behalf.

Furthermore, in subsequent proceedings brought
before the Vermont Department of Labor and this Commission, the Respondent
acknowledged that Complainant was terminated for refusing to obey an order to
keep the belt feeder running at full capacity.

[Complainant]
was specifically instructed not to adjust any of the settings and if any issues
arose or if he felt needed [sic] to reset, he was to contact either Dennis
Demers or Trampas Demers before making any adjustments. There is no question
that he disobeyed and disregarded that direct order. That is the reason he was
terminated.

Reply Memorandum
at 2. If Complainant reasonably believed that the operator’s order was unsafe
or hazardous, firing him for refusing to follow that order arguably violates section
105(c) of the Mine Act. See Secretary of Labor on behalf of Hogan v. Emerald
Mines Corp. , 8 FMSHRC 1066, 1071 (July 1986) (“A miner has the right under
section 105(c) of the Mine Act to refuse work, if the miner has a good faith,
reasonable belief in a hazardous condition.”), citing Miller v. Federal Mine
Safety and Health Review Comm’n , 687 F.2d 194, 195 (7th Cir. 1982); Consolidation
Coal Co. v. Marshall , 663 F.2d 1211 (3d. Cir. 1981); Secretary of Labor
on behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC 803, 817-18
(Apr. 1981).

In short, a more thorough investigation by MSHA likely
would have shed light on the validity of pro se Complainant Deuso’s allegations
before the Commission. Instead, MSHA summarily dismissed the matter less than
four hours after it was initially brought to the Albany Field Office’s
attention, resulting in dismissal of whatever potential claims to relief
Complainant might have had after full investigation by MSHA under extant
Commission precedent set forth in Hatfield .

III. ORDER

For
the foregoing reasons, it is ORDERED that the section 105(c)(3) Complaint
filed on December 13, 2018, be DISMISSED .

/s/
Thomas P. McCarthy

Thomas P.
McCarthy

Administrative
Law Judge

Distribution:

Michael J. Deuso, 236 North Main
Street, East Berkshire, VT 05447

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

James
R. Logan, U.S. Department of Labor, MSHA, 24 Computer Drive West, Albany, NY
12205

[1] As of this
writing, Complainant has a suit against Respondent active in the United States
District Court for the District of Vermont. Deuso v. Shelburne Limestone
Corp ., No. 2:18-CV-131-CR (D. Vt. Aug. 13, 2018).

[2] Elodie Reed, SWANTON:
Stone elevator catches on fire , St.
Albans Messenger (Sep. 22, 2015), https://www.samessenger.com/swanton-stone-elevator-catches-on-fire/ .

[3] U.S. Dep’t of
Labor, Handbook Number PH05-I-4, Special Investigations Procedures (2005).

[4]
In Perry ,
complainant Perry filed his discrimination complaint with MSHA pursuant to section
105(c) on September 14, 1995. On November 6, 1995, MSHA notified Perry and
Phelps Dodge after investigation that it had concluded that a violation of section
105(c) had not occurred. Perry filed his section 105(c)(3) action with the Commission
on November 17, 1996. A Commission Administrative Law Judge issued an Order
dated April 26, 1996, dismissing Perry’s complaint for failure to state a claim
upon which relief may be granted. The Commission vacated the judge's Order. Emphasizing
the complainant’s pro se status, the Commission found that Perry had met his
burden of alleging discrimination actionable under Section 105(c), and remanded
the case for further evidentiary proceedings and a determination of whether the
facts warranted a waiver of the time requirements for filing a complaint.

On remand, a different Commission
Administrative Law Judge found that Perry filed his discrimination complaint
223 days after he was discharged and 38 days after the issuance of an arbitration
decision upholding his discharge. Considering Perry's pro se status, his hearing
testimony, and the absence of any allegation of discrimination throughout the
Phelps Dodge appeal process, the judge found that Perry formed the belief that
he was discharged for having a lost-time accident and raising a related safety
complaint only after he had lost in arbitration. Accordingly, she found that Perry's
filing 163 days in excess of the 60–day time limit set forth in section 105(c) was
excusable and without prejudice to Phelps Dodge, and concluded that Perry timely
filed his complaint within 60 days of exhausting Phelps Dodge's appeal process.
  Perry v. Phelps Dodge Morenci, Inc. , 19 FMSHRC 1664, 1665 n.3 (Oct.
1997) (ALJ).

[5] Specifically,
the amended complaint filed with this Commission alleged the following two
allegations: 1) complainant made numerous complaints to supervisory personnel
about unsafe working conditions, which complaints were a substantial factor in
motivating respondent to move complainant to second shift during a reduction in
force, despite the retention on the first shift of a position that complainant
was qualified and entitled to fill; and 2) complainant sought reinstatement to
his former position on numerous occasions following his discharge, but
respondent refused to rehire him, despite the recall of less senior individuals
following the reduction in force, because of complainant's safety complaints.

[6] While alleged age
discrimination and physical assault are serious matters, the Mine Act is not
the remedy for every workplace dispute simply because it occurs in or around a
mine. See, e.g., Delisio v. Mathies Coal Co ., 12 FMSHRC 2535, 2544 (Dec.
1990) (“[T]he Commission does not sit as a super grievance board to judge the
industrial merits, fairness, reasonableness, or wisdom of an operator’s
employment policies except insofar as those policies may conflict with rights
granted under section 105(c) of the Mine Act.”) (internal citations omitted). Although
the Commission has never addressed the issue to the undersigned’s knowledge, it
is conceivable that under the particular facts and circumstances of a given
case, reporting workplace violence or abuse because of protected activity or because
it implicates concerns for safe performance of work tasks could rise to the
level of protected activity under section 105(c) of the Mine Act. Cf. Harris
v. Duane Thomas Marine Contr., LLC , No. 2:13-cv-00076-SPC-DNF (M.D. Fla.
Feb. 5, 2013) (the Secretary brought a complaint under section 11(c) of the OSH
Act of 1970 alleging that internal complaints to owner and/or external
complaints to OSHA concerning workplace violence and verbal abuse constitute
protected activity related to the OSH Act). See Keim v. Cordero Mining LLC ,
36 FMSHRC at 972 n. 5. However, the Secretary’s 11(c) theory in Harris was
never tested by dispositive motion before the case settled in 2014, and there is
a clear distinction between reporting workplace violence motivated by alleged
protected activity or which implicates concern for the safe performance of work
tasks, and engaging in a physical altercation with mine management in reaction
to being terminated. In either instance, it is incumbent on the Complainant,
pursuant to Hatfield , to provide sufficient information to enable MSHA
to initiate an investigation into the matter.  

[7] As recounted in
the statement of facts, Complainant did describe the altercation in his email
to MSHA. However, Complainant merely told MSHA that he initially believed the
meeting was going to be about “plant modifications,” which is not sufficiently
descriptive of any protected activity or any nexus between the workplace
altercation and protected activity to compel MSHA to investigate. Furthermore,
the Supreme Court of Vermont, when hearing Complainant’s state law wrongful
termination claim, made no reference to a physical fight following Complainant’s
realization that he was to be terminated. See Deuso v. Vermont Department of
Labor , No. 2017-425, 2018 WL 2100366 (Vt. May 4, 2018) (unpub. mem.), which
states:

Before the
president or vice president had the opportunity to raise their specific
concerns, claimant asked if the meeting was about the quarry or about him. When
told that the meeting was about him, claimant ‘jumped to the conclusion he was
being fired and stormed out of the meeting.’ He used profanity on the way out
of the building.

Id . at *1. Taken
together, the undersigned concludes that Complainant’s description of the alleged
termination to MSHA was insufficient to plead protected activity as articulated
in Hatfield .

[8] The MSHA Field
Office’s response to the Complainant’s initial filing states, in part, that
Respondent’s main office does not fall under MSHA jurisdiction. It would appear
to be wholly inconsistent with the purposes of section 105(c)(1) if an operator
could avoid MSHA jurisdiction simply by bringing miners to the operator’s
corporate offices before retaliating against them because of the exercise of any
alleged protected rights at the mine site.