FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N.W., SUITE 9500

WASHINGTON, D.C. 20001

Telephone (202) 577-6809 and (202) 434-9933

Facsimile (202) 434- 9949

October 18, 2011

ORDER ON HIGHLAND’S MOTION FOR SUMMARY DECISION

Before: Judge Moran

Introduction:

            In this discrimination proceeding, Complainant John Gary Jarvis, acting pro se, has alleged that, in his attempt to demonstrate that he was sufficiently proficient to be hired as a roof bolter by Respondent Highland Mining Company, LLC, (Highland), he was tested under more rigorous conditions and standards than others who took the roof bolter proficiency test and that the harsher testing was applied to him because he is a member of the United Mine Workers of America (UMWA). Highland has filed a Motion for Summary Decision asserting that, as no protected activity has been claimed, the action must be dismissed. Accordingly, this Order addresses the question of whether union membership, and alleged disparate treatment by a mine operator of an applicant for employment because of such union membership, can constitute protected activity for a claim of discrimination brought under Section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (Mine Act). For the reasons which follow, the Court concludes that, because a claim on such grounds has not been recognized by the Federal Mine Safety and Health Review Commission as a basis for protected activity, the complaint must be DISMISSED.

Legal Framework:

            The Commission’s Procedural Rules set forth the grounds for evaluating a motion for summary decision. The applicable provision of those Rules, Section 2700.67, provides:

A motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows that there is no genuine issue as to any material fact; and that the moving party is entitled to summary decision as a matter of law.

            As the Commission observed in Hanson Aggregates New York, Inc., 29 FMSHRC 4, (Jan. 2007), (“Hanson”) it “has long recognized that [] ‘[s]ummary decision is an extraordinary procedure,”’ and [it] has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which “the Supreme Court has indicated that summary judgment is authorized only ‘upon proper showings of the lack of a genuine, triable issue of material fact.”’ Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). Hanson at *9. Further, the Commission looks “at the record on summary judgment in the light most favorable to … the party opposing the motion,” and that “the inferences to be drawn from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.” Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Mindful of the procedural rule and the Commission’s words, the Court concludes that there is no genuine issue of material fact and that Highland is entitled to summary decision as a matter of law.

Complainant’s contention

            The present complaint needs to be placed in context. Mr. Jarvis is proceeding pro se in this matter. This is Mr. Jarvis’ second Section 105(c) complaint arising out of the same issue, namely the testing which he took in connection with his application for a roof bolter position at Highland’s mine. That first complaint was filed on March 26, 2009 and, like the current matter, it stemmed from Mr. Jarvis’ failure to satisfy, during the job test, the performance requirements for that position. Mr. Jarvis filed a response to Highland’s motion and it is accurate to sum up that three page response as essentially asserting that he was “tested differently” for the roof bolter performance test. It is not necessary here to review the details of his complaint that he was tested differently because such details do not shed light on the issue presently before the Court.

            When one examines Mr. Jarvis’ statement of September 2, 2009, initiating his discrimination complaint, he similarly asserted that he was treated differently and unfairly so. Although Jarvis’ complaint lacks a plain and clear statement of the basis of his claim, two aspects of it reveal his contentions. Mr. Jarvis first asserts that Terry Miller, the UMWA Local Union President, told Jarvis that it was his (i.e. Miller’s) belief that Jarvis failed the test because Jarvis had filed a 105(c) discrimination complaint. However, the heart of Mr. Jarvis’ claim is that “nobody has failed this [roof bolter] test except for UMWA members that have come off the panel [and that this is] disparate treatment . . . .”

            This assertion, forming the basis of his discrimination complaint, is consistent with Mr. Jarvis’ statement during the conference call the Court conducted on March 14, 2011. That call was transcribed. As pertinent here, the Court inquired of Mr. Jarvis, “ . . . it seems to me that the essence of your claim is that [ ] Highland discriminated against you in that they applied a tougher test to see if you will qualify to be a roof bolter and that the reason they made it tougher on you was because you’re a member of the UMWA.” Mr. Jarvis responded: “That’s correct.” The Court wanted to be sure that was Mr. Jarvis’ position, so it asked again, “Is that the essence of what your claim is?” Again, Mr. Jarvis responded, “Yes sir.” Although the Court made no ruling then, it did call to Mr. Jarvis’ attention that the basis of his claim could present an obstacle, noting “there are some things that are not recognizable as a cause of action for discrimination proceedings under the Mine Act.”

In its Reply to Jarvis’ Response, Highland asserts that the Complainant provided no affidavits, cited no authority and does not address the Respondent’s contention that Section 105(c) of the Mine Act “does not protect against the union-membership discrimination”

For purposes of resolving the motion for summary decision, the Court assumes that Mr. Jarvis was tested differently than others.

Discussion

              As Respondent notes, in its Memorandum in Support of its Motion for Summary Decision (“Respondent's Memorandum”or “R’s Memorandum”) Respondent Highland Mining Company LLC (“Highland”) operates a coal mine in Waverly, Kentucky. Mr. Jarvis, the Complainant, is a former UMWA-represented employee who holds “panel rights” at the mine “pursuant to the 1998 National Bituminous Coal Wage Agreement, as a former employee of Peabody Coal Company affiliates.” R’s Memorandum at 2.

            Because the heart of Mr. Jarvis’ discrimination claim is based upon his claim that “he was denied the position [of roof bolter] because of his union membership,” only the briefest background needs to be provided. R’s Memorandum at 1. As will become apparent, the background is not determinative of the outcome. It is provided here simply for context. In January 2009 Mr. Jarvis applied for a position as a roof bolter operator at Highland. To attain such a position, applicants must be tested and show a particular level of proficiency. It is not disputed that Mr. Jarvis took this test on March 11, 2009, but did not pass. Following that, Mr. Jarvis filed a discrimination complaint and a grievance, alleging “disparate treatment.” The upshot of this was that an arbitrator required that Mr. Jarvis be re-tested and the complaint became moot. However, Mr. Jarvis did not pass the second testing for the roof bolter position. This prompted the filing of his second discrimination complaint, which complaint is the subject of this proceeding.

            As Mr. Jarvis reiterated during his April 28, 2011 deposition, it is his belief that he was unfairly tested for the roof bolter position and that the reason for that unfair testing was that Highland did not want to have a union man obtain the job.

As Counsel for Highland asked Mr. Jarvis during the deposition: 

                        And the basis you think this is Highland is saying this guy’s

                        coming off the union panel and we don’t want this guy to

                        have the job?

Mr. Jarvis responded:

                        Correct.

Jarvis Deposition at 118.

            As Highland correctly notes, section 105 of the Mine Act “does not provide redress for discrimination (even otherwise wrongful discrimination) unless it occurred in response to the exercise of a protected activity.” Respondent's Memorandum at 9. Highland observes that Jarvis does not claim that his application for the roof bolter job was rejected because he had previously filed a discrimination complaint, nor does he claim there was any safety or health hazard attendant to the filing of his action. Instead, it notes that Jarvis’ complaint is not related to a claim of any safety or health hazard. Instead the core of the basis for his discrimination complaint is that it arose solely from his union membership. See Jarvis’ deposition at 74-75 and 118.

            Highland states that “protected activity” under the Mine Act can only arise where the complaint alleges that the adverse action stemmed from a danger or a safety or health violation or from the filing of an action under the Act, but that “adverse action” resting upon membership in a union is not cognizable under the Mine Act. The Court agrees that, under the present state of the law, that is an accurate statement. Highland also notes that MSHA itself has indicated that such a claim is not a recognized basis for discrimination under the Mine Act. Respondent observes that MSHA has stated that “Discrimination on the basis of race, sex, religion, handicap, etc., is not covered by Section 105(c) of the Mine Act.” R’s Memorandum at 11, Exhibit K, quoting MSHA Handbook PH 05-I-4, August 2005. A second source, MSHA’s Guide to Miners’ Rights, is even more explicit, expressly adding that “union activity” is not covered by Section 105(c), while reiterating that discrimination on the basis of race, sex, age, religion, or handicap are also not covered by that provision. R’s Memorandum at 12, Exhibit L, citing MSHA 3116 (Rev. 2010), p. 7 and at: http://www.msha.gov/S&HINFO/minersrights/minersrights.asp. Respondent submits that case law is such that deference must be afforded to the agency’s interpretation. Id., citations omitted.

            Respondent continues that Jarvis’ claim must be rejected because non-safety concerns must not be recognized. It adds that Congress’ intent was to promote the safety and health of miners, and not, under the Mine Act, other forms of alleged discrimination. Id. at 13. Although the Court agrees that the law does not presently recognize a claim founded upon the basis advanced by Mr. Jarvis, it does not subscribe to the Respondent’s additional assertion that interpreting the Mine Act to include such a claim would foil the Act’s aim and undermine its safety goals.

            Respondent’s last contention is another stretch beyond what is appropriately before the Court in this motion. Under this argument Highland assumes, for the sake of argument, that union activity is a basis for protected activity and then proceeds to claim that Jarvis has failed to show that he suffered an adverse action which was motivated by his union membership. This argument continues with whether the mine operator’s refusal to hire Jarvis was based on his failure to satisfy bona fide occupational qualifications for that position. As explained earlier, this is not purely a question of law and the factual underpinnings are far from conceded. Therefore, summary judgment would not be appropriate at this time.

            The starting point of the issue analysis begins with the statutory provision itself. That section suggests that Mr. Jarvis’ Complaint is not cognizable under the Mine Act. Section 105(c)(1) provides:

No 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, representative of miners or applicant for employment in any coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to Section 101 or because such miner, representative of miners or applicant for employment has 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, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by the Act. 30 U.S.C. § 815(c)(1) (2006).

            As applied here, the provision can be abbreviated to its applicable essence:

No person shall in any manner discriminate against or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any applicant for employment in any mine subject to this Act because such applicant for employment has filed or made a complaint under or related to this Act, or because such applicant for employment has instituted any proceeding under or related to this Act or because of the exercise by such applicant for employment of any statutory right afforded by the Act.

            In Consolidation Coal Company (aka the Commission’s “Pasula” decision), 2 FMSHRC 2786 (1980), the Commission held that a complainant, in a discrimination proceeding alleging a violation of section 105(c)(1) of the Mine Act, has the burden of establishing a prima facie case. In carrying out that burden, a complainant must show by a preponderance of the evidence that he engaged in a protected activity and that the adverse action was motivated in any part by the protected activity. Id. at 2799-2800. There is more to the test for resolving discrimination claims, but there is no need to have a discussion about those other aspects here, because out of the starting gate one must establish engagement in protected activity.

            In many subsequent cases, including Gilbert v. Sandy Fork Mining, 9 FMSHRC 1327 (August 1987), the Commission has noted again that the “complaining miner bears the burden of production and proof to establish that (1) he engaged in protected activity and (2) the adverse action complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797–2800 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.1981); Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817–18 (April 1981). It added that the operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part motivated by protected activity.

            The Commission’s stance about the essential requirement that there must be protected activity has never varied. In its most recent discrimination decision, Turner v. National Cement, 2011 WL 2286883 (May 20, 2011), the Commission repeated that, to establish “a prima facie case of prohibited discrimination [a complainant must present] evidence sufficient to support a conclusion that the individual engaged in protected activity . . . .” Id. at *4.

            Accordingly, having found that Mr. Jarvis’ complaint of discrimination is not founded upon a cognizable basis for such a claim, Highland’s Motion for Summary Decision is GRANTED and Mr. Jarvis’ complaint of discrimination is hereby DISMISSED.

SO ORDERED.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

John Gary Jarvis, pro se

1362 State Route 2551

Breman, KY 42325

Jeffrey K. Phillips, Esq.

D. Eric Lycan, Esq.

Steptoe & Johnson PLLC

1010 Monarch Street, Suite 250

P.O. Box 910810

Lexington, Kentucky 40591-0810