FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

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

May 13, 2013

ORDER DENYING MOTION TO DISMISS  AND NOTICE OF HEARING 

            In this case the Secretary of Labor (“Secretary”) alleges that on May 11, 2012 George’s Shop & Rock, Inc. (“George’s”) illegally discharged its employee, Matthew Barlow. The Secretary asserts that Barlow’s termination was motivated by Barlow’s protected activity, including but not limited to, his complaining about health conditions at the mine and his participation in an inspection of the mine conducted by the Secretary’s Mine Safety and Health Administration (“MSHA”). On August 1, 2012 – 81 days after he was fired – Barlow filed a complaint with the Secretary alleging that his (i.e., Barlow’s) termination was discriminatory and in violation of the Federal Mine Safety and Health Act of 1977 (“Mine Act or Act”). 30 U.S.C. §801 et seq. The Secretary investigated Barlow’s complaint and concluded that Barlow’s allegations had merit. As a result, on February 6, 2013, the Secretary filed the subject complaint with the Commission alleging that Barlow was fired in violation of section 105(c)(1) of the Act. 30 U.S.C. § 815(c)(1). The Secretary requests, among other things, Barlow’s reinstatement, the restoration to Barlow of all lost benefits, back pay and interest, expenses, expungement of Barlow’s employment records, and a requirement that George’s post a notice stating it will not violate section 105(c)(1) in the future. Complaint 3-4.

            On March 7, 2013, George’s answered the Secretary’s complaint admitting that it terminated Barlow’s employment as an ore truck driver on May 11, 2012, but denying that its action was in any way discriminatory and in violation of the Act. Answer 1-2. George’s further denies that Barlow engaged in protected activity under the Act, or if he did George’s asserts that he was not terminated because of such activity. George’s contends that all actions taken with respect to Barlow’s employment were for legitimate, non-discriminatory business reasons. Id. 3.

            In addition, George’s moves to dismiss the Secretary’s complaint asserting that although the Mine Act requires a miner to file a complaint of discrimination with the Secretary within 60 days of the alleged adverse action, Barlow filed his complaint 83 days after his employment was ended, 23 days after the expiration of the 60 day limit. Motion 2. George’s recognizes that late filed claims may be excused on the basis of “justifiable circumstance.” Id., citing Hollis v. Consolidation Coal Company, 6 FMSHRC 21 (January, 1984). But, according to George’s, no such circumstances exist here. On the contrary, George’s asserts that Barlow fully understood his rights and knew that his complaint had to be submitted within 60 days of his termination. He simply failed to file it on time. Id. 3-5.

            The Secretary responds that a miner’s “genuine ignorance of applicable time limits may excuse a late filed . . . complaint” (Sec’s Response 2, quoting Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386 (Dec. 1999)), that absent an allegation of prejudice a short dely in the filing of a complaint warrants an extension of the time limit (Id. 3, citing Smith v. Jim Walters Resources, 21 FMSHRC 359 (March 1999 (ALJ Melick); Secretary obo Franco v. W.A. Morris Sand & Gravel, Inc. 18 FMSHRC 278 (February 1996) (ALJ Manning)), and that the time for filing the complaint may be extended if the miner learns the facts justifying the complaint after the alleged adverse action has occurred. Id., citing Fulmer v. Mettiki Coal Corp. 30 FMSHRC 523, 529 & n.10 (ALJ Zielinski) (June 2008). The Secretary argues that George’s has not shown it was prejudiced, that the delay is a short one, that Barlow did not sleep on his rights and, most persuasively, that the complaint was based on information acquired after his termination. The Secretary states:

                        Barlow initially believed that his termination 

                        was unjustified but not necessarily because he had made

                        safety complaints. On the day he was terminated, his

                        supervisor . . . presented him with his last pay check

                        and told him that “things were not working out.” . . . .

                        Barlow wanted to proceed cautiously and sought legal

                        advice to learn his options. He did not want to file a

                        claim or bring a lawsuit which was patently frivolous.

                        If he did, he believed that he would be ‘blackballed’ in

                        his small rural community where employment

                        opportunities were limited. When he learned that

                        [Richard] Paget, a fellow employee who had also made

                        safety complaints, was terminated at the end of

                        June 2012, [Barlow] concluded that [George’s] had

engaged in a pattern of discrimination which included

him[,] and [Barlow] immediately sought the assistance

of MSHA. Under these facts, the 60 day period should

be deemed to have begun on June 29th, the date he

learned that [Georges] terminated Paget. In addition,

Barlow should be deemed to have filed his

discrimination complaint on the 33^rd day after he

discovered the adverse action.

                        The fact that the delay was caused by Barlow’s

                        objective of insuring that he had adequate grounds for

                        filing a discrimination complaint should not be used to

                        defeat his claim.

            Sec’s Response 5 (citation and note omitted).

RULING

            Section 105(c)(2) of the Act states 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.

            30 U.S.C. § 815(c)(2).

            As the parties agree, the Commission has held that the 60 day time limit is not jurisdictional and non-compliance may be excused on the basis of justifiable circumstances. Hollis, 6 FMSHRC at 24-25. The Secretary accurately notes that there is no claim of prejudice by Georges. Sec’s Response 3-4. Further, the undersigned agrees with Commission Administrative law Judge Michael Zielinski that the principals applicable to the equitable tolling of limitations periods apply to the Mine Act when, after the adverse action, the complainant reasonably comes to believe the company was wrongfully motivated. In such a case, the filing period should be deemed to begin upon the complainant’s reasonable conclusion that the company’s conduct was wrongful under the Act.

            The Secretary’s statement of facts detailing the complainant’s discovery of what he believed to be company conduct violative of the Mine Act is based on Barlow’s sworn declaration. Sec’s Response, Exh. A. For the purposes of deciding the motion, I accept the declaration as true, and I find that it when Rick Paget was discharged on June 29, Barlow came to believe that his own termination was based on his (i.e., Barlow’s) exercise of protected rights. After reaching this conclusion, Barlow quickly began the process leading to the August 1 filing of his complaint with MSHA. Sec’s Response, Exh A 2. Because the undersigned concludes that the time period set forth in section 105(c)(2) should begin on June 29, rather than on May 11, he deems Barlow’s complaint timely filed with MSHA, and he DENIES George’s motion to dismiss.

NOTICE OF HEARING

            Counsels are advised that a hearing in this matter will be convened beginning at 8:30 a.m., in Boise, Idaho, on September 5, 2013. The issues include whether Barlow engaged in protected activity, and if so whether George’s fired him in whole or in part because of that activity. Also at issue may be whether George’s was motivated to fire Barlow because of his unprotected activity and would have fired him for the unprotected activity alone.

/s/ David Barbour

David Barbour

Administrative law judge

202-434-9953

Distribution: (Certified Mail)

Matthew Vadnal, Esq., Department of Labor, Office of the Solicitor, 300 Fifth Avenue, Suite 1120, Seattle, WA 98104

Austin E. Smith, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1700 Lincoln Street, Suite 4650, Denver, Colorado 80203

Michael L. Barlow, 3807 West Cedar Drive, Vale, Oregon 97918

/sa