FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9953 / FAX: 202-434-9949

February 15, 2012

RULING ON TIMELINESS OF COMPLAINT

AND

ORDER TO SHOW CAUSE

             This proceeding arises under section 105(c)(3) of the Federal Mine Safety and Health Act of l977, 30 U.S.C. § 815(c)(3). In the complaint, Todd Descutner alleges that he was unlawfully terminated from his job as a haul truck driver at Newmont USA Ltd’s (Newmont’s) Leeville Mine after “exercising [his] rights under the Mine Act.” Discrimination Complaint 2. To redress the alleged discrimination, Mr. Descutner asks for several remedies: The expungement of his work record, payment of back pay, payment of a pension, and damages due to the “pain and suffering.” Letter of Todd Descutner (January 13, 2011).

             After the matter was assigned to the court, Newmont filed an Amended Answer. In its Amended Answer Newmont denied the court’s jurisdiction asserting that “the complaint was not timely brought.” Newmont’s Amended Answer (November 22, 2011) at 2. In addition, Newmont denied that it discriminated against Mr. Descutner when it terminated him on or about June 9, 2010. Rather, the company claimed it “terminated [Mr.] Descutner for insubordination and for damaging equipment” and that the basis for Mr. Descutner’s termination was “unrelated to any alleged protected activity.” Id.

             Following the receipt of the Amended Answer, the court issued an order requesting that the parties submit additional information. The court stated:

                                       To rule on Newmont’s claim that the Commission is

                                       barred from entertaining the case because

                                       [Mr. Descutner’s complaint] was late filed, the court

                                       requires additional information.

                                       Mr. Descutner shall provide the court in writing

                                       with an explanation as to why his complaint with

                                       MSHA was not filed within the 60 days required by

                                       the statute. . . In other words, Mr. Descutner shall

                                       state the circumstances, if any, which justify why

                                       his complaint was late.

                                       Newmont shall provide the court with a written

                                       explanation as to the “material legal prejudice” it

                                       will suffer – assuming there is any – if Mr.

                                       Descutner’s claim goes forward.

                          Order (December 2, 2011) at 2.

             After several delays, Mr. Descutner responded to the order by essentially claiming ignorance of the statute’s timeliness requirements and by citing his reliance on advice from unnamed officials of the Mine Safety and Health Administration (MSHA). Mr. Descutner stated:

                                       I was delayed . . . because no one ever told me

                                       how to go about protesting my termination.

                                       The union representative informed me there

                                       was no next step, so I had to do the whole case

                                       by myself until MSHA stepped in. I finally

                                       got in touch with MSHA and they let me know

                                       how to file a complaint. This was after months

                                       of trying to get my case heard by someone. I

                                       did speak with MSHA and they assured me my

                                       case was filed within the allotted times. I have

                                       done everything MSHA has asked of me.

                          Letter of Todd Descutner to Administrative Law Judge David Barbour

(January 26, 2012).

             For its part Newmont stated that, “To the extent Newmont has suffered any legal prejudice, it is limited to the potential fading of memories of witnesses.” Response to Order to Provide Additional Information (December 19, 2011) at 2-3. The company also noted that its in-house counsel who represented the company during MSHA’s special investigation of Mr. Descutner’s complaint to the agency had left the company.

TIMELINESS OF THE COMPLAINT

             The court finds that neither of the circumstances cited by the company are sufficient to defeat Mr. Descutner’s complaint. First, while it is true that memories of potential witnesses fade with time, Mr. Descutner’s complaint was filed at most 52 days late (see Order 2) and this hardly constitutes a delay that can be presumed to cause prejudicially faded memories. Moreover, the departure of its in-house counsel during or following the conclusion of MSHA’s investigation is not in itself prejudicial. Counsel presumably left his work product with the company, including his notes and/or recordings of his or others’ interviews of those with knowledge of the facts surrounding Mr. Descutner’s termination. Further, the company does not claim its former in-house counsel is unavailable for consultation if the case goes forward.

             Newmont also challenges Mr. Descutner’s excuse for his late filing. The company notes that it provided Mr. Descutner with training in miners rights and responsibilities, including the right to file a discrimination complaint with MSHA within 60 days of an alleged adverse action and that this training was most recently given to Mr. Descutner approximately six months prior to his discharge. Response to Order 3. It further notes that at that time Mr. Descutner was given a copy of MSHA’s pamphlet on miners’ rights, a publication that contains the Act’s timeliness requirements. Id.

             Although the court accepts all of Newmont’s assertions as true, it none the less finds that Mr. Descutner has established “justifiable circumstances” for the late filing of his complaint. In reaching this conclusion the court is especially mindful that Mr. Descutner is representing himself. Therefore, in the court’s view, the showing that Mr. Descutner needs to make to go forward is modest. Pro se litigants in Mine Act discrimination cases are frequently not learned in the Act and the rights it affords even in the face of required training, and the Commission has been loath to bar such persons from litigating when they have misapprehended applicable procedures or misunderstood the Act’s requirements. This is especially so since Mr. Descutner’s delay in filing was not lengthy. As Commission Administrative Law Judge Michael Lasher observed, “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.” John C. Gross v. Leeco, Inc., 7 FMSHRC 219, 229 (February 1985) Further, while Judge Lasher also noted that, “[T]he placement of limitations on the time-periods during which a plaintiff may institute legal proceedings is primarily designed 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 court concludes that Newmont has not established that such factors are at issue here. For these reasons the court finds that Mr. Descutner’s complaint is not barred for untimeliness.

SUFFICIENCY OF THE COMPLAINT

             The court’s finding that the complaint is not barred for untimeliness does not end the matter. There is still the issue of the complaint’s adequacy.

             In its Order the court observed that the complaint was lacking in necessary specifics. In the complaint he filed with MSHA, Mr. Descutner claimed that he “was terminated after exercising [his] rights under the Mine Act. Complaint to MSHA 4. In the complaint he filed with the Commission, Mr. Descutner stated that “beyond the shadow of doubt” he was certain “that [his] rights under [section] 105 © were violated.” Complaint. Finding that Newmont and the court were “left to guess as to what [Mr. Descutner was] referring,” the court ordered Mr. Descutner to state how and when his rights were exercised and why he believed his termination was related to the exercise of those rights. Oder 2-3. The court summed up its order by stating, “In other words, [Mr. Descutner] must provide the court with a reasonably complete account of what . . . [he] believes happened and why.” Id. 3.

             The court’s order was issued on December 2, 2011, and Mr. Descutner was required to comply within 15 days of the order. He did not, and he still has not. He has submitted nothing to the court to amplify and make meaningful his contention that he “was terminated for exercising [his] rights under the Mine Act.” Complaint to MSHA at 4.

             The court recognizes that leeway in pleading that is traditionally given to pro se complainants. See e.g. Clyde Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1920 (November, 1996). However, the requirement of Commission Rule 42 that a complaint contain “a short and plain statement of the facts setting forth the alleged . . . discrimination” is there for a reason. 29 C.F.R. § 2700.42. The Respondent can hardly make meaningful trial preparations if it is left to guess at the facts the Complainant is alleging. In addition, the court can not judge the legal sufficiency of the complaint in a vacuum.

             Because Mr. Descutner has failed to comply with the court’s order with regard to supplementing his complaint, he is ORDERED TO SHOW CAUSE within 15 days of the date of this order why his complaint should not be dismissed.

                                                                 /s/ David Barbour

                                                                 David Barbour

                                                                 Administrative Law Judge

Distribution: (Certified Mail)

Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202

Todd Descutner, 399 Parkchester Drive, Apartment B, Spring Creek, NV 89815  

/sa