FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004

June 19, 2013

DECISION ON LIABILITY

AND

CEASE AND DESIST ORDER

Appearances:  Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Secretary of Labor;

                        Tony Oppegard, Esq., Lexington, Kentucky, for Reuben Shemwell;

Mason L. Miller, Esq., and Adam K. Spease, Esq., Miller Wells, PLLC, Louisville, Kentucky,for Armstrong Coal Company, Inc., and Armstrong Fabricators, Inc.; and Daniel Z. Zaluski, Esq., Madisonville, Kentucky,

                        for Armstrong Coal Company, Inc.

Before:            Judge Feldman

            Reuben Shemwell’s employment as a welder with Armstrong Coal Company and/or Armstrong Fabricators (collectively referred to as “Armstrong”) was terminated on September 14, 2011. Shemwell filed a discrimination complaint with the Mine Safety and Health Administration (“MSHA”) on January 23, 2012. Shemwell’s complaint initiated discrimination proceedings to determine whether his discharge was motivated, at least in part, by safety related activities protected under section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 (the “Act” or “Mine Act”). Section 105(c)(1) provides in pertinent part:

No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner . . . because such miner . . . has instituted or caused to be instituted any proceeding under or related to this Act . . . or because of the exercise by such miner . . . of any statutory right afforded by this Act.

30 U.S.C. § 815(c)(1).

            During the pendency of MSHA’s discrimination investigation, the Secretary of Labor (“the Secretary”) applied for Shemwell’s temporary reinstatement. In the temporary reinstatement proceeding, the Federal Mine Safety and Health Review Commission (“the Commission”) determined that Shemwell’s complaint was not frivolous. 34 FMSHRC 1580, 1582-83 (July 2012) (holding that substantial evidence supports a finding that Shemwell’s complaint was not frivolously brought), aff’g 34 FMSHRC 1464 (June 2012) (ALJ). Armstrong recognizes the finality of the Commission’s preliminary decision that Shemwell’s complaint appears to have merit. Oral Arg. Tr. 158-59. Upon the culmination of MSHA’s investigation, the Secretary declined to bring a discrimination complaint on Shemwell’s behalf.

            Following the Secretary’s decision not to pursue Shemwell’s discrimination case, on August 22, 2012, Armstrong filed a civil tort suit in the Commonwealth of Kentucky’s Muhlenberg Circuit Court alleging that Shemwell’s discrimination complaint brought before the Commission constitutes a “Wrongful Use of [Commission] Civil Proceedings.” Circuit Court Complaint at 7, No. 12-CI-00897 (Aug. 22, 2012).

            Currently before me is a January 8, 2013, discrimination complaint filed by the Secretary on behalf of Shemwell pursuant to section 105(c)(2) of Act. 30 U.S.C. § 815(c)(2). The Secretary asserts that Armstrong’s civil suit in Kentucky violates section 105(c)(1) because it interferes with Shemwell’s right to file a discrimination complaint. The Secretary filed an amended complaint on February 13, 2013, proposing a civil penalty of $70,000.00 for Armstrong’s alleged violation of the statute. Armstrong alleges that the civil suit cannot be a violation of the Mine Act because it is protected by the First Amendment right to petition. Armstr. Br. at 1. The First Amendment provides:

Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. I.

            I. Statement of the Case

            In addressing this matter, I am reminded of a landlord-tenant case in which it was alleged that there was excessive noise emanating from an apartment leased by Sokolow that was disturbing Levin, the lessee of the apartment below. Louisiana Leasing Co. v. Sokolow, 266 N.Y.S.2d 447 (Civ. Ct. 1966). Sokolow is reported to have said “this is my home, and no one can tell me what to do in my home.” Id. at 448-49. Although Sokolow was not evicted because it was determined that the noise from his apartment was not excessive, the Judge noted that property rights are not absolute because of the common law right of other tenants to quiet enjoyment. The Judge noted that there is “a prevalent notion that stems from the ancient axiom that a man’s home is his castle.” Id. at 449. However, the Judge indicated that, despite this prevailing notion, it must be remembered that “Mr. Sokolow’s castle is directly above the castle of Mr. Levin.” Id.

            Louisiana Leasing illustrates that, in an orderly society, one cannot seek to exercise an asserted right if it interferes with the manifest right of another. Thus, one cannot commit slander, or hide behind an asserted First Amendment right after yelling “fire” in a crowded theater.

            Yet, Armstrong asserts that it would have an unfettered First Amendment right to bring a civil suit against Shemwell even if the Commission ultimately determines Shemwell’s discharge was motivated by discrimination. Thus, Armstrong argues its civil suit cannot be held to violate section 105(c)(1) of the Mine Act. In this regard, Armstrong boldly proclaims that resolution of this case in favor of its asserted First Amendment right is “simple,” stating:

Armstrong, like every other person in the United States, has a sacred and fundamental First Amendment right to file a lawsuit against persons they believe have wronged them. No statute and no public interest, no matter how noble (such as the safety goals of the Mine Act), can infringe upon that right. And regardless of what this body thinks of the merits of Armstrong’s state court lawsuit, one thing is always true: Armstrong has a constitutional right to file it, and by definition it therefore cannot be a violation of the Mine Act (or the Mine Act is unconstitutional). Like it or not, it is that simple.

Armstr. Br. at 1.

            As an initial matter, this Commission has been delegated by Congress to adjudicate cases brought under the Mine Act. 30 U.S.C. §§ 815(d), 823(a). The Commission is not required to adopt Armstrong’s “like it or not” assertion of an absolute First Amendment right. Rather, as discussed below, longstanding case law, as well as the Mine Act and its legislative history, clearly reflect that Shemwell’s statutory right to bring his discrimination case preempts Armstrong’s civil tort claim regardless of whether the Commission ultimately grants or denies Shemwell’s complaint.

            Even if Armstrong’s civil suit were not preempted because it is not in conflict with section 105(c)(1) of the Act, the civil suit is not protected by the First Amendment because it is both baseless and retaliatory. Thus, Armstrong’s assertion of a “sacred and fundamental” constitutional right to file a state law suit, even if it conflicts with rights conferred by a federal statute, must be rejected.

            II. Background

            Reuben Shemwell was employed by Armstrong as a welder since April 19, 2010. 34 FMSHRC at 1467. In April 2011, Shemwell, after being overcome by fumes while welding, complained to David Lander, Armstrong’s dragline manager, about the need for greater respirator protection. Id. at 1467-68. In response to Shemwell’s complaint, Armstrong purchased new respirators. Id. at 1468. Within several weeks of Shemwell’s protected safety complaint, Lander executed two verbal warnings in June 2011, admonishing Shemwell for excessive cell phone use. Id. The verbal warnings were followed by a July 22, 2011, written warning, advising Shemwell that he would be terminated by December 2011 if his cell phone use continued. Id. Lander subsequently recommended Shemwell’s reassignment to Armstrong’s fabrication shop where Oscar Ramsey, the manager of the shop, could observe Shemwell under closer supervision. Id. at 1469. Upon consultation with Human Resources Director Gary Phillips, Ramsey recommended Shemwell’s September 14, 2011, discharge after reportedly observing Shemwell using his cell phone several times a day. Id.

            Following his termination, Shemwell met with Ronnie Drake, Director of the Kentucky Office of Mine Safety and Licensing. Temp. Reinst. Tr. 152-53. Upon learning of the circumstances surrounding Shemwell’s dismissal, Drake advised Shemwell to contact MSHA. Temp. Reinst. Tr. 152-53. Shortly thereafter, Shemwell telephoned Kirby Smith, an MSHA Special Investigator in District 10, located in Madisonville, Kentucky, who advised Shemwell to come to his office to file a complaint with the clerical processor. Temp. Reinst. Tr. 152-53.

            Shemwell filed his complaint at the District 10 office on January 23, 2012. Temp. Reinst. Tr. 152-53. At that time, April Marks, the complaint processor, transcribed on Shemwell’s complaint the reason given to him by Armstrong for his discharge. Temp. Reinst. Tr. 156-57, 125-27. Namely, the complaint indicated that Shemwell was terminated for excessive cell phone use. Armstr. Br. Ex. 2. Smith interviewed Shemwell on January 26, 2012,

at which time he determined Shemwell had a colorable claim of discrimination because he “had engaged in protected activity by reporting the harmful fumes and vapors emitted during the welding process.” Temp. Reinst. Tr. 154-55. Smith testified that it was not uncommon for miners to lack awareness of the significance of their protected activity with respect to their rights under section 105(c). Temp. Reinst. Tr. at 157.

            The Secretary subsequently filed an application for Temporary Reinstatement which was granted following an evidentiary hearing. Shemwell’s temporary reinstatement ultimately was affirmed by the Commission in a decision that determined Shemwell’s discrimination complaint was not frivolously brought. 34 FMSHRC at 1582-83. The Commission’s Temporary Reinstatement decision was not appealed. Consequently, the Commission’s not frivolously brought determination has become final. On July 27, 2012, the Secretary advised Shemwell that she had declined to bring a section 105(c)(2) discrimination complaint on his behalf. Armstr. Br. Ex. 3. Consequently, the temporary reinstatement was dissolved on September 13, 2012. 34 FMSHRC 2549 (Sept. 12, 2012) (ALJ).

            Following the Secretary’s decision not to pursue Shemwell’s complaint, Armstrong filed the subject state civil tort action on August 22, 2012, seeking compensatory and punitive damages. Cir. Ct. Comp. at 9. The civil action is premised on a state tort cause of action for “Wrongful Use of Civil Proceedings.” Id. at 7. Armstrong’s tort action is based on its assertion that, regardless of the merits of his complaint, Shemwell did not believe he was discriminated against when he filed his complaint on July 23, 2012. Id. at 5; Oral Arg. Tr. 32, 140. Therefore, Armstrong argues Shemwell intentionally initiated a false discrimination action for the sole purpose of imposing litigation costs on Armstrong, despite a final Commission reinstatement determination that Shemwell’s complaint appears to have merit. Cir. Ct. Comp. at 5-6.

            The Secretary filed this section 105(c)(2) discrimination proceeding on January 8, 2013. Oral Argument was conducted at the Commission’s Headquarters in Washington, D.C. on February 27, 2013, at which time Armstrong maintained that “the First Amendment right to file . . . a petition in court trumps all other interests, statutes or rights.” Oral Arg. Tr. 59. Specifically, Armstrong alleged that its Kentucky lawsuit cannot be a violation of section 105(c)(1) because it is immunized by its First Amendment right to file a petition, even if doing so interferes with Shemwell’s statutory rights, even if Shemwell’s complaint is ultimately found to be meritorious, and even if the state suit creates a chilling effect. Oral Arg. Tr. 32-34; 124; 133.

The essence of Armstrong’s assertion is that it is Shemwell’s right to file a complaint under the Mine Act that is preempted, rather than Armstrong’s right to bring a state civil suit.

            The Secretary argues that the state civil action is not protected by the First Amendment because it is preempted by the purpose of the Mine Act. Oral Arg. Tr. 105. Furthermore, even if it were not in conflict with the Mine Act, the Secretary argues the civil suit is not worthy of First Amendment protection because it is baseless and retaliatory. Oral Arg. Tr. at 175-77. The parties’ Post Oral-Argument Briefs filed on May 10, 2013, and their response briefs filed on May 25, 2013, have been considered in the disposition of this matter.

            III. Legal Framework for Discrimination

            The anti-discrimination provisions of section 105(c) protect miners who exercise rights granted to them under the Mine Act. To establish a case of discrimination, Shemwell must demonstrate that the Kentucky civil suit is a prohibited adverse action in response to the exercise of his protected right to file a discrimination complaint. A miner alleging discrimination under the Act establishes a prima facie case of prohibited discrimination by proving that he engaged in protected activity, and that the adverse action complained of was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula, 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3rd Cir. 1981); Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817 (Apr. 1981). The operator may rebut the prima facie case by showing that no protected activity occurred, or that the adverse action was in no part motivated by protected activity. Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that it would have taken the adverse action for the miner’s unprotected activities alone. Id. at 817, citing Pasula, 2 FMSHRC at 2799.

            The Commission has long recognized the important role of the section 105(c):

That Congress gave miners many valuable rights under the 1977 Mine Act clearly demonstrates the congressional view that their participation in the enforcement of the Act is essential to the achievement of safe and healthful mines. This is particularly true of the right to complain to the operator and to the Secretary of alleged dangers or violations. MSHA inspectors cannot be everywhere at once, nor can they be expected to be so familiar with every mine that they will become aware of every condition or practice in need of correction. The successful enforcement of the 1977 Mine Act is

therefore particularly dependent upon the voluntary efforts of miners to notify either MSHA officials or the operator of conditions or practices that require correction.

Pasula, 2 FMSHRC at 2790.

            The fundamental purpose of the Mine Act is clear. The statute declares, “the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource - the miner.” 30 U.S.C. § 801(a). With this in mind, the statute further states, “the operators of such mines with the assistance of the miners have the primary responsibility to prevent the existence of [unsafe] conditions and practices in such mines.” 30 U.S.C. § 801(e). In this regard, the Legislative History emphasizes the raison d’être of the 1977 Act:

If our national mine safety and health program is to be truly effective, miners will have to play an active part in the enforcement of the Act. The Committee is cognizant that if miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination which they might suffer as a result of their participation.

S. Rep. No. 95-181, at 35-36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623-24 (1978).Thus, to achieve this statutory goal, it is crucial that miners be sufficiently protected from retaliatory conduct to allow them to feel comfortable actively engaging in efforts to promote mine safety.

            In the final analysis, the issue to be resolved in a discrimination proceeding is whether there was a discriminatory motive for the adverse action as claimed by the miner. Although a mine operator’s admission of discriminatory motive is rare, the grant of a discrimination complaint cannot be based solely on conjecture that adverse action was motivated by protected activity. In such circumstances, discrimination can be proven by circumstantial evidence such as knowledge of protected activities, hostility towards protected activity, coincidence in time between the protected activity and the adverse action, and disparate treatment. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981).

            IV. Discussion and Evaluation

                        a. Statutory Violation

            As a threshold matter, Armstrong asserts that Shemwell is not entitled to protection under section 105(c)(1) because he was no longer an employee of Armstrong when the state civil suit was filed, and therefore is not a miner for the purposes of the Act. Armstr. Br. at 13; Armstr. Resp. Br. at 5. Armstrong’s assertion is without merit. Armstrong’s state suit was filed on August 22, 2012, while Shemwell was temporarily reinstated to his employment with Armstrong, as the temporary reinstatement was not dissolved until September 13, 2012. Furthermore, even if Shemwell had not been temporarily reinstated, an individual retains his status as a miner under the Act where the asserted protected activity occurs during the miner’s employment, or where the protected activity is the filing of a discrimination complaint after the miner has been discharged.

            Having concluded that Shemwell has retained his status as a miner at all times relevant to this proceeding, the focus shifts to whether Armstrong’s state suit constitutes a violation of section 105(c)(1). The operative language in section 105(c)(1) is that mine operators are prohibited from interfering with a miner’s right to institute a discrimination proceeding under the Mine Act. The term “interfere” means “to be or create a hindrance or obstacle.” The American Heritage Dictionary 913 (4^th Ed., 2009). It is uncontested that Armstrong’s initiation of its state suit was motivated by Shemwell’s exercise of his statutory right to initiate a discrimination proceeding.

            With respect to whether the Kentucky civil suit seeking to recover compensatory and punitive damages from Shemwell serves as an impediment to Shemwell’s statutory right to seek redress as an alleged victim of discrimination, one need only look to the Supreme Court, which stated:

A lawsuit no doubt may be used by an employer as a powerful instrument of coercion or retaliation. As the [National Labor Relations] Board has observed, by suing an employee who files charges with the Board or engages in other protected activities, an employer can place its employees on notice that anyone who engages in such conduct is subjecting himself to the possibility of a burdensome lawsuit. Regardless of how unmeritorious the employer’s suit is, the employee will most likely have to retain counsel and incur substantial legal expenses to defend against it [citation omitted]. Furthermore, as the Court of Appeals in the present case noted, the chilling effect of a state lawsuit upon an employee’s willingness to engage in protected activity is multiplied where the complaint seeks damages in addition to injunctive relief [citation omitted]. Where, as here, such a suit is filed against hourly-wage [employees] or other individuals who lack the backing of a union, the need to allow the Board to intervene and provide a remedy is at its greatest.

Bill Johnson’s Restaurants, Inc v. NLRB, 461 U.S. 731, 740-41 (1983). Thus, it is abundantly clear that Armstrong’s state suit is an adverse action that violates section 105(c)(1) of the Act because it interferes with Shemwell’s statutory right to file a discrimination complaint.

            

It is important to emphasize that Armstrong’s civil suit is a violation of section 105(c)(1) regardless of the ultimate outcome of Shemwell’s pending private discrimination complaint. Miners must be free to file safety related complaints regardless of whether they are ultimately determined to be meritorious. The denial of a complaint of discrimination by the Commission is based on a finding that the complainant failed to demonstrate, by a preponderance of the evidence, that he was discriminated against. See Pasula, 2 FMSHRC at 2799. It is not a finding that discrimination did not occur.

                        b. First Amendment Right to Petition

            The question in this case is whether the First Amendment right to petition immunizes Armstrong from Mine Act liability for bringing a Kentucky civil suit which is facially discriminatory and prohibited by section 105(c)(1) of the Act. The First Amendment right to petition state courts is a fundamental element of the Bill of Rights. As a general proposition, state suits brought by employers against employees are protected by the right to petition unless they are preempted. See, e.g., Bill Johnson’s, 461 U.S. at n.5 (noting that federally preempted lawsuits by employers may be enjoined); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 514 (1972) (“First Amendment rights are not immunized from regulation when they are used as an integral part of conduct which violates a valid [federal] statute”). Preemption is particularly relevant where, as in this case, enforcing one party’s right to petition a state court would interfere with another party’s right to petition a federal agency. 404 U.S. at 512 (noting that civil suits brought “to discourage and ultimately to prevent the respondents from invoking the processes of the administrative agencies and courts” fall within an exception to the immunity provided by the First Amendment).

            As discussed below, with regard to state suits brought by employers that are not preempted because they do not conflict with federal law, it is noteworthy that the Commission has looked for guidance to case law interpreting the National Labor Relations Act (“NLRA”). See, e.g., Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 616 (Apr. 1993) (recognizing that the Commission looks to case law interpreting relevant remedial provisions of the NLRA for guidance with respect to accomplishing the Mine Act’s remedial goals). Consistent with NLRA case law, the right to petition does not immunize suits which are both objectively baseless and subjectively motivated by an unlawful purpose. BE & K Constr. Co. v. NLRB, 536 U.S. 516, 531-32 (2002).

                        c. Preemption as a Bar to First Amendment Protection

            The doctrine of preemption is derived from the Supremacy Clause of the Constitution, which provides that “[the] Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land . . . any thing in the Constitution or Laws of any state to the contrary notwithstanding.” U.S. Const. art. VI, § 2. The supremacy of the “laws of the United States” applies to any federal law, including a regulation of a federal agency. Thus, the Federal Supremacy Clause trumps conflicting state law, including conflicting suits brought under state tort law. Preemption can either be express or implied.

            With respect to express preemption, the Supreme Court has noted that Congress can insulate its statutory goals from state laws that undermine its legislative purpose by enacting statutes that explicitly preempt state law. English v. General Electric Co., 496 U.S. 72, 78 (1990). With this in mind, Congress’ enactment of section 506(a) of the Mine Act explicitly states:

No state law . . . shall be superseded by any provision of this chapter or order issued or any mandatory health or safety standard, except insofar as such State law is in conflict with this chapter or with any order issued or any mandatory health or safety standard.

30 U.S.C. § 955(a) (emphasis added). Thus, the Mine Act recognizes, in essence, the sanctity of the First Amendment with respect to civil suits brought under state law, unless such suits interfere with the rights of miners granted under the statute. Armstrong’s reliance on the First Amendment as an absolute right that shields it from liability for violations of the Mine Act is misplaced, as it is inconsistent with the preemption provision of the statute.

            Even if section 506(a) of the Mine Act was narrowly construed, such that Armstrong’s tort action was not expressly preempted, the tort action would still be precluded by implied preemption, also known as conflict preemption, if furtherance of the tort proceeding frustrates a federal purpose. In this regard, longstanding case law notes that even if the state action were not explicitly preempted by statute, a state law is also preempted where it actually conflicts with or “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” English, 496 U.S. at 79 (citing Hines v. Davidowitz, 312 US 52, 67 (1941)). As previously noted, the clear statutory language and legislative history reflect that the Mine Act is predicated on encouraging the cooperation and participation of both mine operators and miners in achieving a safe mining environment. The explicit statutory language and legislative history noted above need not be repeated. See Section III, supra.

            In short, it is paramount that miners must be insulated from any chilling effect that would inhibit their willingness to report safety related concerns to mine management. Determining whether there is objective evidence of a chilling effect depends on whether the adverse action “reasonably tended to discourage miners from engaging in protected activities.” Sec’y of Labor on behalf of Poddey v. Tanglewood Energy, Inc., 18 FMSHRC 1315, 1321 (Aug. 1996) (citing Sec’y of Labor on behalf of Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 558 (Apr. 1996)). Can anyone deny that the prospect of a miner being sued in state court for filing a protected complaint that is pending before the Commission is a significant disincentive for miner participation? In this regard, since Armstrong contends it has a right to petition in state court even if the miner’s discrimination complaint is granted, Shemwell’s counsel correctly asserts:

every miner would know that even if he files and wins a discrimination complaint . . . he could still be dragged into a state court by his employer and interrogated about his motivation for having filed the complaint. It would be the rare miner who would file a discrimination complaint over health or safety issues under such circumstances.

Shemwell Br. at 8 (emphasis in the original). It is evident that the chilling effect of Armstrong’s civil suit clearly frustrates the fundamental statutory goal of encouraging miner involvement in safety related matters. With regard to the potential chilling effect, Armstrong argues that its civil suit would only discourage false and maliciously filed claims, and that section 105(c) does not protect claims made in bad faith. Armstr. Br. at 29; Armstr. Resp. Br. at 5-6. However, the D.C. Circuit Court has held that a miner who complained to MSHA’s predecessor safety agency was protected against retaliatory action even if the complaint was made in bad faith. Munsey v. FMSHRC, 595 F.2d 735, 742, 745 (D.C. Cir. 1978); Sec’y Resp. at 2. In any event, the treatment of a fraudulent discrimination claim goes beyond the scope of this proceeding. The Commission has already determined that Shemwell’s complaint is not frivolous, and, the full merits of Shemwell’s complaint have yet to be adjudicated. Thus, the record is devoid of any evidence that Shemwell’s claim has been fraudulently brought.

            It should be noted that Armstrong makes several assertions in an attempt to avoid preemption which should not be ignored. As an initial matter, Armstrong argues that the Kentucky court is the only forum that could provide compensatory and punitive relief for Shemwell’s alleged tort of “Wrongful Use of Civil Proceedings,” as Congress did not delegate to the Commission the authority to award such relief. Armstr. Br. at 9. Armstrong misses the point. The exposure to compensatory and/or punitive damages would discourage miners from exercising their statutory rights. Thus, to allow a state court to grant monetary damages against a miner for filing a safety related complaint, a remedy that was not authorized by Congress in the Mine Act, would undermine the goal the Act seeks to accomplish - miner participation in safety matters. See, e.g., San Diego Bldg. Trades Council v Garmon, 359 U.S. 236, 246-47 (1959) (noting that “to allow the State to grant a remedy here which has been withheld from the NLRB only accentuates the danger of conflict”). Moreover, the prospect of a multi-million dollar corporation instituting a civil suit that seeks to collect monetary damages from a rank-and-file miner for bringing a discrimination case before the Commission is unsettling. Rather, Armstrong’s focus should be demonstrating in a relevant Commission proceeding that its discharge of Shemwell was not motivated by discrimination.

            In addition, Armstrong asserts its First Amendment right to petition cannot be curtailed, arguing:

There is simply no basis in the language of the First Amendment for a finding that Congress may perform an end run around the protections of the Right to Petition by drafting legislation allegedly preempting that right. Put differently, you can’t preempt the First Amendment.

Armstr. Br. at 6 (emphasis in the original).

            Armstrong’s focus is misplaced. The doctrine of preemption does not apply to constitutional rights. Rather, preemption applies, in appropriate circumstances, to state law, including tort actions. Thus, the issue to be resolved is whether the Kentucky suit is preempted because it is prohibited by the plain language of section 105(c)(1) of the Mine Act. As discussed above, a long line of case law reflects that preemption is a well-settled doctrine that is applied to preclude state actions when such actions violate or conflict with federal law. Armstrong’s suit brought under Kentucky tort law conflicts with the Mine Act. Acceptance of Armstrong’s proposition that the right to petition is absolute and immunizes its violation of the Act would, in effect, preempt the doctrine of preemption. In other words, Armstrong’s assertion of its entitlement to an absolute First Amendment right ignores the fundamental belief of the framers of the Constitution in the supremacy of federal law expressed in Article VI. Armstrong’s reliance on a First Amendment right must be rejected.

d. Baseless and Retaliatory

            The facts in this case require preemption of the state civil suit because it is a direct attack on activity protected under section 105(c)(1) of the Act. However, there may be instances where employers have a subjectively genuine desire to test the legality of conduct that is related to protected activity. Under such circumstances, civil suits that constitute genuine petitioning are entitled to First Amendment protection. As a general matter, such civil suits are considered to be genuine if the employer’s belief is both “subjectively genuine and objectively reasonable.” BE & K, 536 U.S. at 533-34.

            Thus, civil suits that do not conflict with federal law, although they are related to subject matter regulated by federal statute, are protected by the First Amendment provided that the civil action is not both baseless and retaliatory. For example, assume a mine operator is aware that a miner has filed a safety related complaint with MSHA. The mine operator has filed a suit for defamation against that miner, based on the miner’s widespread dissemination of his claim that the mine operator’s extracted material is adulterated and unfit for use. The miner claims the defamation suit is motivated, at least in part, by his safety related protected activity. The defamation suit is entitled to First Amendment protection if the suit is not baseless, even if it is retaliatory. See, e.g., BE & K, 536 U.S. 516 (holding that a civil suit brought by a construction contractor alleging that unions had intentionally delayed a project was not within the scope of the relevant provisions of the NLRA, and was protected by the First Amendment provided it was not both objectively baseless and subjectively motivated by an unlawful purpose.) 

                                    i. Baselessness

            The Supreme Court has held that a lawsuit is objectively baseless if “no reasonable litigant could realistically expect success on the merits.” Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 US 49, 60 (1993). There are several reasons why Armstrong cannot realistically expect to succeed in Kentucky. The Commission has determined that Shemwell’s complaint has not been frivolously brought. A not frivolously brought finding is the equivalent of a determination that Shemwell’s discrimination complaint “appears to have merit” or that there is a “reasonable cause to believe” Shemwell is the victim of discrimination. Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d 920 F.2d 738 , 747 & n.9 (11^th Cir. 1990). Armstrong does not dispute the finality of the Commission’s determination. Oral Arg. Tr. 158-59. It is manifestly unreasonable for Armstrong to believe that it has a realistic chance to prevail in Kentucky, based on an alleged misuse by Shemwell of a Commission proceeding, when the Commission has finally determined that Shemwell’s discrimination complaint appears to have merit. Shemwell having satisfied a “probable cause to believe” burden of proof before the Commission strips Armstrong of any realistic expectation that it could succeed on the merits in Kentucky.

            The Commission looks to indirect evidence of discrimination, as mine operators rarely if ever admit to a discriminatory motive. Chacon, 3 FMSHRC at 2510. In this regard, irrespective of the Commission’s final “not frivolous” determination, there is undisputed indirect evidence

of discrimination sufficient to demonstrate that Shemwell’s claim appears to have merit. Shemwell’s complaints about fumes were directly communicated in April 2011 to Lander, who in June 2011 began a series of verbal and written disciplinary actions reportedly based

on Shemwell’s excessive cell phone use that ultimately culminated in his September 2011 discharge. Thus the facts establish knowledge of the protected activity, and coincidence in time between the protected activity and the adverse action - two of the elements of indirect evidence of discrimination in Chacon. Consequently, there is strong circumstantial evidence of discrimination that renders Armstrong’s civil action baseless.                      

            Regardless of the Commission’s “not frivolously brought” determination and the indirect evidence reflecting the possibility of a discriminatory motive, Armstrong’s civil suit is baseless because it fails to meet two essential elements of state tort law. First, the Kentucky tort of “Wrongful Use of Civil Proceedings” requires that the allegedly misused civil proceeding terminate in favor of the party filing the state tort action. D’Angelo v. Mussler, 290 S.W.3d, 75, 79 (Ky. App. 2009). It is undisputed that there has been no final Commission determination on the merits concerning whether Shemwell’s discharge was motivated by discrimination. Oral Arg. Tr. 39. Thus, applying Kentucky law, Armstrong’s civil suit is facially baseless,

as it is premature because the Commission has yet to rule on Shemwell’s complaint.

            In addition, the civil suit is baseless because Kentucky law requires Armstrong to demonstrate that Shemwell’s complaint lacked probable cause when it was filed before the Commission. D’Angelo, 290 S.W.3d at 79. As previously noted, a Commission “not frivolously brought” finding is substantively analogous to a proceeding that “appears to have merit” or a proceeding where there is “reasonable cause to believe” the claim alleged.

Jim Walter, 9 FMSHRC at 1306. Armstrong’s reliance on its self-serving assertion that Shemwell did not have reasonable cause to believe he was discriminated against, despite indirect evidence of a possible discriminatory motive, cannot be reconciled with Commission case law.

            In an attempt to demonstrate that its civil suit is meritorious, Armstrong relies on Shemwell’s statement in his initial discrimination complaint that “I was discharged from my job for using my cell phone at work.” Armstr. Br. Ex. 2. However, as mine operators rarely admit a discriminatory motive, it is essential that determining whether a miner has a colorable claim of discrimination must await the MSHA investigator’s analysis of the circumstances surrounding the miner’s discharge. To exclude MSHA participation in evaluating a complaint would reward mine operators who mislead miners by concealing their discriminatory intent. Thus, the operative date for determining the validity of Shemwell’s complaint is January 26, 2012, when he met with Kirby Smith, rather than January 23, 2012, when the clerical assistant completed Shemwell’s complaint application. In this regard, the Commission has stated, “it is the scope of the Secretary’s investigation, rather than the initiating complaint, that governs the permissible

ambit of the complaint filed with the Commission.” Sec’y on behalf of Dixon v. Pontiki Coal Corp., 19 FMSHRC 1009, 1017 (June 1997). Thus, when viewed in the context of MSHA’s discrimination filing procedures, there is an inadequate basis for Armstrong’s claim that Shemwell’s complaint lacked probable cause, a required element for the Kentucky civil action.

            Finally, to accept Armstrong’s proposition that a litigant can sue an opponent solely on the assertion that a claim was insincerely brought would result in an endless series of frivolous lawsuits. It is ironic, if not hypocritical, that Armstrong maintains that its good faith motivation for filing its civil suit cannot be questioned, because “evidence of Armstrong’s intent can only come from Armstrong itself.” Armstr. Br. at 14. The gravamen of Armstrong’s statement is that evidence of Shemwell’s intent can only come from Shemwell himself. Thus, Armstrong’s attack on Shemwell’s motivation is based on mere speculation, with no meaningful indirect evidence of bad faith or fraudulent intent. In the final analysis, Armstrong’s claim of “Wrongful Use of Civil Proceedings”: lacks a predicate final Commission decision on the merits; is inconsistent with significant indirect evidence supporting a colorable claim of discrimination; and is inconsistent with Kentucky case law. As such, the civil suit is baseless, in that it is not objectively reasonable.

                                    ii. Retaliation

            Objectively baseless suits that are not subjectively genuine because they are motivated by an unlawful purpose are exempted from First Amendment protection. BE & K, 536 U.S. at 531. Such suits are deemed not to be genuine when they attempt to mask an unlawful retaliatory motive by disingenuously claiming the motive is to challenge the conduct that is the subject of the suit. Here, Armstrong is attempting to conceal its illegal interference with Shemwell’s 105(c) rights by attacking in a state court action Shemwell’s motivation for filing a discrimination complaint. However, Armstrong has failed to demonstrate any reasonable basis for asserting Shemwell’s discrimination complaint constitutes an abuse of process. The Commission has determined that Shemwell’s complaint is not frivolous. Moreover, Armstrong’s state suit lacks a prerequisite element in that there has been no final adjudication of the complaint. Consequently, Armstrong’s assertion of its First Amendment right as a shield to its manifest violation of section 105(c)(1), in the name of a “Wrongful Use of Civil Proceedings” action,

is pretextual in nature. 

            The fact that Armstrong’s civil suit is aimed at the act of filing the discrimination complaint, rather than challenging the merits of the complaint, is further evidence of a retaliatory motive. In fact, Armstrong has expressed a disinterest in the ultimate outcome of Shemwell’s complaint, asserting it is justified in bringing the state action even if Shemwell ultimately prevails in the Commission discrimination proceeding. Oral Arg. Tr. 17, 19, 50-51, 133.

Thus, the primary effect of the civil suit is to discourage future complaints, rather than to achieve vindication through defending against Shemwell’s complaint. See, e.g., Prof’l Real Estate, 508 U.S. at 60-61 (finding that sham anti-trust litigation exists when the plaintiff has no reasonable expectation of prevailing, and the true purpose of the suit is to interfere with the business of a competitor).

            Finally, Armstrong’s civil suit seeks to recover compensatory and punitive damages from Shemwell. Suits to recover extreme damages have been deemed to be retaliatory in factually similar NLRB cases. See, Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26, 33 (Ct. App. D.C. Cir. 2001). In the final analysis, Armstrong’s civil suit is not subjectively genuine because, regardless of its ostensible purpose of recovering damages, its real purpose is to interfere with Shemwell’s statutory right. Bill Johnson’s, 461 U.S. at 740 (noting the potential retaliatory nature of state suits brought by employers seeking to recover compensatory damages against employees who bring charges under a federal statute).

            V. Conclusion

            In view of the above, Armstrong’s civil tort action, brought in the Commonwealth of Kentucky’s Muhlenberg Circuit Court, violates section 105(c)(1) of the Mine Act because it interferes with Shemwell’s statutory right to file a discrimination complaint. In this regard,

the civil suit is not protected by the First Amendment, as it is in violation of, and preempted by, federal law. Even if Armstrong’s suit were not preempted, it is not protected by the First Amendment because it is both objectively baseless and motivated by the unlawful purpose of violating the anti-retaliation provisions of section 105(c)(1) with impunity.

            VI. Interim Remedy - Cease and Desist Order

            The Commission has been delegated broad remedial power to remove the burdens suffered by the victims of discrimination. The Commission, in Sec’y of Labor on behalf of James Rieke v. Azko Nobel Salt, Inc., 19 FMSHRC 1254 (July 1997), citing the provisions of section 105(c)(2), the relevant legislative history, and its longstanding case law, recognized its broad authority to grant appropriate relief given the myriad of circumstances that confront miners who have experienced discrimination. It stated:

“The Commission shall have authority . . . to require a person committing a violation of this subsection to take such affirmative action to abate the violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay and interest.” 30 U.S.C. § 815(c)(2). As the Commission stated in Secretary of Labor on behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 142 (February 1982), this is a “broad remedial charge” and that “so long as our remedial orders effectuate the purposes of the Mine Act, our judges and we possess considerable discretion in fashioning remedies appropriate to varied and diverse circumstances.” Thus, the Commission reviews the judge's remedial order for abuse of discretion and to ensure that it effectuates the purposes of the Mine Act.

The Mine Act's legislative history similarly indicates Congressional intent for expansive remedial relief to victims of discrimination:

It is the Committee's intention to protect miners against not only the common forms of discrimination, such as discharge, suspension, demotion, reduction in benefits, vacation, bonuses and rates of pay, or changes in pay and hours of work but also against the more subtle forms of interference . . . .

. . .

It is the Committee's intention that the Secretary propose, and that the Commission require, all relief that is necessary to make the complaining party whole and to remove the deleterious effects of the discriminatory conduct . . . .

S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978).

In accordance with these principles, the Commission endeavors to make miners whole and to return them to their status before the illegal discrimination occurred. Secretary of Labor on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2056 (December 1983) . . . . “‘Unless compelling reasons point to the contrary, the full remedial measure of relief should be granted to [an improperly] discharged employee.’” Arkansas-Carbona, 5 FMSHRC at 2049 (quoting Secretary of Labor on behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982)).

Azko Nobel Salt, Inc., 19 FMSHRC at 1257-58.

              In providing full remedial relief, the Commission has cautioned that “a miner should not be worse off than he otherwise would have been because he has chosen to vindicate his rights under the Mine Act.” Id. at 1259. In other words, Shemwell must be relieved, with all deliberate speed, of the financial burden and anxiety caused by having to defend a civil suit simply because he exercised his statutory right as a miner.
 

            Ordinarily, affirmative steps required by a mine operator to relieve a miner of the effects of discrimination, such as back pay and reinstatement, must await a final decision on relief. Under such circumstances, the violative Kentucky tort action would remain unabated for several months, during which time the parties are entitled to file petitions for relief before an ultimate decision on relief can be issued.

            This matter presents the novel question of whether an order requiring Armstrong to cease and desist its prosecution of its civil suit can be issued now, or, whether it must be delayed until a final decision on relief. A stay of implementation is, in effect, a delay in implementation. Consequently, it is helpful to apply the criteria for determining whether remedial action ordered to be taken by a mine operator in a Commission proceeding should be stayed to the issue of whether the cease and desist order should be delayed. The criteria are: (1) whether there is a likelihood of Armstrong prevailing on appeal; (2) whether Armstrong will be irreparably harmed if the cease and desist order is not delayed; (3) whether not delaying the cease and desist order creates an adverse effect on others; and (4) whether not delaying the cease and desist order is in the public interest. See Kevin Baird v. PCS Phosphate Company, Inc., 33 FMSHRC 127, 128-29 (Feb. 2011) (citing Virginia Petroleum Jobbers Ass’n v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).

            With respect to the first factor, notwithstanding the propriety of preemption, having determined that the civil suit is baseless, it is not likely that Armstrong will prevail on appeal. With regard to irreparable harm, it is significant that Armstrong’s suit is premature under Kentucky tort law, since no final decision has been issued in the Commission proceeding alleged to have been misused. Moreover, withdrawal of Armstrong’s suit can be without prejudice, permitting Armstrong to once again bring its civil proceeding in the unlikely event Armstrong is ultimately successful on appeal. Turning to the third factor, the cease and desist order must not be delayed because to do so would have a chilling effect on similarly situated miners who would be discouraged from bringing safety related complaints. Finally, not delaying the cease and desist order is in the public interest because it will further the Mine Act’s goal of ensuring that miners play an active role in achieving a safer working environment. Consequently, an order requiring Armstrong to cease and desist should not be further delayed.

            Consistent with the Commission’s broad remedial powers, it is unreasonable to permit Armstrong to continue to interfere with Shemwell’s statutory right to file his discrimination complaint. Moreover, it is imprudent to further delay the removal of the chilling effect imposed on rank-and-file miners by allowing the civil suit to continue. Consequently, Armstrong shall be ordered to cease and desist prosecution of its Kentucky suit by filing an appropriate motion to dismiss, within 40 days of the date of this decision on liability.

ORDER

            Accordingly, IT IS ORDERED that the discrimination complaint filed by the Secretary on behalf of Shemwell pursuant to section 105(c)(2) of the Act, as a consequence of Armstrong’s civil suit for “Wrongful Use of Civil Proceedings,” is granted.

            IT IS FURTHER ORDERED that Armstrong, within 40 days of the date of this decision, cease and desist from prosecuting its civil suit brought against Shemwell in the Commonwealth of Kentucky’s Muhlenberg County Circuit Court by filing an appropriate motion to dismiss.

            This Decision on Liability is an interim decision. It does not become final until a Decision on Civil Penalty and Supplemental Decision on Relief is issued. Accordingly, IT IS FURTHER ORDERED that the parties should confer before July 30, 2013, in an attempt to reach an agreement on the specific relief to be awarded. Such relief may include, but is not limited to: appropriate attorney’s fees associated with Shemwell’s defense in the Kentucky civil suit; reimbursement of any other relevant expenses incurred by Shemwell; compensation for any impediment the civil suit may have caused with regard to Shemwell’s ability to successfully procure equivalent employment in the mining industry, less any income earned from alternative employment; and compensation for any demonstrable physical or emotional harm related to the civil action and reimbursement for any medical expenses related thereto.

            If the parties agree to stipulate to the appropriate relief to be awarded they shall file a Joint Stipulation on Relief on or before August 23, 2013. An agreement concerning the scope and amount of relief to be awarded shall not preclude either party from appealing this decision.

            If the parties cannot agree on the relief to be awarded, the parties ARE FURTHER ORDERED to file, on or before August 23, 2013, Proposals for Relief specifying the appropriate relief to be awarded. Any claim for reimbursement, or for health related issues, must be accompanied by documentary evidence. If separate Proposals for Relief are filed, I will confer with the parties to determine if there are disputed factual issues that require an evidentiary hearing. 

                                                                        /s/ Jerold Feldman

                                                                        Jerold Feldman                                                                                                                      

                                                                         Administrative Law Judge

Distribution (by regular mail and electronic mail):

Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

Adam K. Spease, Esq., Miller Wells, 710 W. Main Street, 4^th Floor, Louisville, KY 40202

Mason L. Miller, Esq., 300 E. Main Street, Suite 360, Lexington, KY 40507

Daniel Z. Zaluski, Esq., 407 Brown Road, Madisonville, KY 42431

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg,

KY 41858

/tmw