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

April 1, 2013

ORDER DENYING RESPONDENT’S MOTION TO DISMISS

Factual Background

            Claude Layne was employed by Rhino Excavating, LLC, a trucking company that contracted exclusively with Respondent, Excel Mining, LLC, at Excel’s preparation plant in Martin, Kentucky. On August 16, 2012, Layne filed a discrimination complaint with the Mine Safety and Health Administration (“MSHA”) under section 105(c)(1) of the Act. Layne’s complaint states:

On August 19, 2011, I was involved in a serious accident at the Excel Mining Preparation Plant in Martin, Kentucky. The MSHA investigation revealed that the failure of Excel Mining to properly maintain the haul road resulted in the accident. I am currently pursuing a Workers Compensation claim against my employer (Rhino Excavating) but I also filed a civil action against Excel Mining LLC. As soon as I filed the claim I was escorted from the mine site and was told not to come back to work. My boss, Terry Raines, said that it was Excel Mining that would not let me come back to the mine site because they were upset because I had filed my lawsuit. I have had no wages since June 19, 2012. I wish to have my wages paid.

            On or about November 5, 2012, MSHA’s Assistant Director for the Technical Compliance and Investigation Office, Carolyn T. James, sent a standard pro forma dismissal letter to Layne, with copy to Respondent, stating in relevant part:

Your complaint of discrimination filed under Section 103(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) has been thoroughly investigated by a Special Investigator of the Mine Safety and Health Administration (MSHA). A careful review of the information gathered during the investigation has been made. On the basis of that review, MSHA has determined that the facts disclosed during the investigation do not constitute a violation of Section 105(c). Therefore, the discrimination, within the confines of the Mine Act, did not occur.

            On November 27, 2012, counsel for Complainant Layne filed an action under 105(c)(3) appealing and challenging MSHA’s investigatory “no-go” determination and enclosing Layne’s original complaint.

            On December 26, 2012, Respondent, Excel Mining, LLC (“Respondent” or “Excel”) filed a Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted, with supporting memorandum. In its motion, Respondent Excel argues that Layne’s 105(c)(3) complaint fails to state a claim upon which relief can be granted because it does not allege protected activity or an unlawful adverse employment action. Therefore, Respondent contends that the case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot. at 1, 4-8.

            On January 10, 2013, Layne, through counsel, filed a Response to the Motion to Dismiss. In his response, Layne claims that prior to the August 19, 2011 accident when he lost control of his rock truck due to alleged improper maintenance of the haul road, he made safety complaints to his Rhino supervisor and to Excel personnel about the alleged dangerous conditions of the haul road, but his safety concerns were not addressed. Resp. at 1-2. Layne further claims that an MSHA investigation was conducted and citations were issued to Respondent and Rhino for failure to maintain a safe work place due to the condition of the haul road. Resp. at 2. In addition, Layne states that he initiated a Kentucky Workers Compensation action against Rhino on February 22, 2012, and returned to work for Rhino at Excel’s mine, without incident. Resp. at 2.

            Thereafter, on June 13, 2012, Layne filed a civil action against Excel and certain of its agents in Pike County, Kentucky Circuit Court. Layne claims that his civil suit was based in part on Excel’s duties under the Mine Act to ensure a safe environment for all persons on the mine site. Resp. at 2. Layne further claims that the Pike County, Kentucky Circuit Court Clerk’s Office served Excel with a copy of his civil lawsuit on June 18, 2012. Layne claims that when he reported to work on June 19, 2012, he was notified (by Rhino) that he was no longer allowed on the property of Excel and he immediately was escorted from the property. Id.; see also August 16, 2012 complaint: “As soon as I filed the claim I was escorted from the mine site and was told not to come back to work. My boss, Terry Raines, said that it was Excel Mining that would not let me come back to the mine site because they were upset because I had filed my lawsuit.” Layne argues that since Rhino was working exclusively for Excel, and Layne was not allowed on Excel’s property, the actions of Excel caused his discharge. Resp. at 2.

            On January 24, 2013, this matter was assigned to the undersigned. I convened a conference call with the parties on March 8, 2013 to discuss the outstanding motion and response. After full discussion of the parties’ respective positions, as augmented by their filings, Respondent’s Motion to Dismiss was denied. I ruled that review of the record indicated that Complainant Layne had raised a viable claim that he had engaged in protected activity under the Mine Act when he filed a civil suit against Excel, which was arguably related to prior safety complaints that he made to Excel and Rhino, who contracted exclusively with Excel. I further ruled that the temporal proximity between Layne’s alleged exclusion from Excel’s property and the alleged animus or hostility expressed by Excel to Rhino management shortly after Excel obtained knowledge of Layne’s alleged protected activity could establish a prima facie case that Excel caused the discharge of Layne from Rhino’s employ by prohibiting Layne’s return to the mine site. I stated that this written order would follow.

            Following the conference call, in preparation of this written Order, the undersigned requested a copy of the civil suit, with copy to Respondent.

Discussion and Analysis

            Having carefully reconsidered my prior ruling, I see no basis to depart from it. I note that in applying Rule 12(b)(6) to discrimination proceedings, the Commission has established a high threshold for dismissal. In Perry v. Phelps Dodge Morenci, Inc., the Commission stated:

            It is well settled that “[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.” The Supreme Court has held that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

18 FMSHRC 1918, 1920 (Nov. 1996) (citations omitted); see also Ribble v. T & M Dev. Co., 22 FMSHRC 593 (May 2000). Respondent’s Motion to Dismiss fails to meet this high standard when claiming that no viable claim for protected activity or adverse employment action exists.

            As noted, Complainant’s Response to the Motion to Dismiss alleges that the filing of his civil action against Excel, in part premised on Excel’s statutory duty under the Mine Act to maintain a safe work environment, is protected activity. In addition, Complainant’s Response points out that his civil suit against Excel was instituted after complaints to Excel and Rhino about failure to maintain the haul road went unheeded and resulted in an accident, which triggered an MSHA investigation and citations to both operators. Furthermore, according to the complaint, the day after Excel learned of Layne’s suit, it directed Rhino to exclude Layne from the mine site. More specifically, “[m]y boss, Terry Raines, said that it was Excel Mining that would not let me come back to the mine site because they were upset because I had filed my lawsuit.”

            The anti-discrimination language of Section 105(c)(1) of the Mine Act is broad indeed. Swift v. Consolidation Coal Co., 16 FMSHRC 201, 212 (February 1994)(“the anti-discrimination section should be construed ‘expansively to assure that miners will not be inhibited in any way in

exercising any rights afforded by the legislation.’ ”) (quoting S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted 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)). It states, in pertinent part, as follows:

“[n]o 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 . . . because such miner . . . has filed or made a complaint under or related to this chapter, 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 . . . has instituted or caused to be instituted any proceeding under or related to this chapter . . . .”

30 U.S.C. § 815(c)(1) (emphasis added).

            After careful consideration of this broad statutory language, I reaffirm my prior ruling that Layne has raised a viable claim that he engaged in protected activity under the Mine Act when he filed a civil suit against Excel Mining. That civil suit purportedly was grounded in a statutory duty under the Mine Act to maintain a safe haul road, and arguably was related to prior safety complaints that Layne made to Excel and Rhino. Review of the civil suit confirms this.

            Respondent contends that Layne’s allegation that he made safety complaints to Rhino and Excel prior to his accident cannot be considered in determining the adequacy of the complaint because such claims were not set forth specifically in Layne’s initial complaint to MSHA. The Commission has found that the initiating complaint does not govern the permissible ambit of the investigation undertaken by the Secretary, and it is the scope of the investigation that is controlling. See Sec'y of Labor o/b/o Charles H. Dixon et. al. v. Pontiki Coal Corp., 19 FMSHRC 1009, 1017 (June 1997). Moreover, Layne’s prior complaints to Rhino and Excel, even if they fall outside the 60-day period from the alleged violation under 105(c)(2), may be relevant as background evidence of animus, particularly since the 60-day period is not considered a statute of limitation by the Commission. Cf. Cordero Mining LLC v. Sec'y of Labor ex rel. Clapp, 699 F.3d 1232, 1237 (10th Cir. 2012). In addition, discrimination complaints need not include a complete presentation of all facts or legal theories underlying the alleged discrimination. Instead, Commission Rule 42 requires that a discrimination complaint “include a short and plain statement of the facts, setting forth the alleged discharge, discrimination or interference, and a statement of the relief requested.” 29 C.F.R § 2700.42.

            In any event, I find Layne’s complaint to MSHA is legally sufficient as it includes a basic statement of his alleged protected activity, the filing of his lawsuit against Excel, and requests back pay from the date of his discharge. Specifically, Layne’s complaint may be construed to allege that Excel caused Layne’s discharge as soon as Excel obtained knowledge that Layne had sued Excel, in part, for failure to maintain a safe work environment under a duty imposed by the Mine Act and state law. As more fully fleshed out in Layne’s response to Excel’s motion to dismiss, Layne sought a safe haul road and had unsuccessfully complained to Excel and Rhino about the condition of the haul road prior to MSHA’s post-accident investigation and citation of both operators.

            It is noteworthy that Section 105(c)(1) specifically states that instituting any proceeding related to the Act constitutes a protected activity. While the nature of the alleged protected activity here may present a novel issue for the Commission, under the facts and circumstances presented, I conclude at the pleading stage that the filing of Layne’s civil suit against Excel may qualify as a proceeding related to the Mine Act and thus be protected. In addition, the temporal proximity of Layne’s alleged exclusion from Excel’s property and the alleged animus or hostility expressed by Excel to Rhino management shortly after Excel obtained knowledge of Layne’s alleged protected activity could establish a prima facie case that Excel caused the discharge of Layne from Rhino’s employ by prohibiting Layne’s return to the mine site. Put differently, a reasonable person in Layne’s shoes could assume that Excel had caused his discharge based on statements made by Rhino at the time of Layne’s exclusion from Excel’s mine site.

            In light of the foregoing, Respondent’s Motion to Dismiss is DENIED. The matter is set for hearing in Pikeville, Kentucky on May 7, 2013 and continuing days thereafter until concluded. A Notice of Hearing shall be issued under separate cover. The parties are encouraged to continue settlement discussions.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Ron Diddle, Esq., Law Office of R. Michael Pack and Ron Diddle, PLLC, P.O. Box 330, 118 Carolina Ave., Suite 2, Pikeville, KY 41502

Gary D. McCollum, Esq., Excel Mining LLC, 771 Corporate Drive, Suite 500, Lexington, KY 40503

/tjr