<DOC>
[DOCID: f:ct99267.wais]
REINTJES OF THE SOUTH, INC.
October 13, 1999
CENT 99-267-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 13, 1999
JAMES C. KEYS, JR., : DISCRIMINATION PROCEEDING
Complainant :
:
v. : Docket No. CENT 99-267-DM
:
REINTJES OF THE SOUTH, INC., : SC MD 99-07
Respondent :
: Ormet Primary Aluminum
: Mine ID 16-00354 FDP
DECISION
Before: Judge Zielinski
James C. Keys, Jr. ("Keys" or "Complainant") initiated this
proceeding by filing a complaint of discrimination pursuant to
section 105(c)(3) of the Federal Mine Safety and Health Act of
1977 (the "Act"), 30 U.S.C. � 815(c)(3). Complainant alleges
that Reintjes of the South, Inc.("Reintjes" or "Respondent"),
discriminated against him as a result of his complaints regarding
alleged violations of the Act made on November 22, 1996, the day
he allegedly suffered a work-related injury when a fellow
employee deliberately sprayed him with caustic material. The
essence of his cause of action, as deduced from the pro se
complaint and attached documents, is that he was fired on
November 22, 1996, after complaining to a Reintjes official that
it had failed to train employees as required by the Act.[1]
Keys filed a discrimination complaint with the Mine Safety
and Health Administration ("MSHA") on February 16, 1999, more
than 2 years beyond the 60 days allowed by section 105(c)(2) of
the Act. In the interim he failed in an attempt to secure
workmen's compensation benefits beyond payment of some medical
expenses associated with his initial treatment. MSHA determined
that no violation of the Act had occurred and by notice dated
May 24, 1999, advised Complainant of that determination and his
right to file an action with the Commission on his own behalf.
Complainant filed the instant complaint with the Commission on
June 30, 1999.
In response to the complaint, Reintjes filed an answer and a
motion to dismiss or in the alternative for summary judgement,
arguing, inter alia, that Keys did not timely file either his
complaint with the Secretary or the Commission and that it
suffered prejudice as a result.
Complainant failed to timely respond to the motion, the
service copy of which was eventually returned to Respondent
marked "unclaimed." On August 24, 1999, an order was issued
directing Complainant to show cause why Respondent's motion
should not be granted. The Order to Show Cause was mailed to
Complainant by both certified and regular mail and included a
copy of Respondent's answer and motion. Complainant was
specifically directed to address Respondent's timeliness
arguments and "whether any untimely actions were justified."
During a telephonic status conference on September 1, 1999, the
parties acknowledged receipt of the August 24, 1999 order and the
issues raised in the motion were discussed. Particular emphasis
was placed on Complainant's need to justify any delay in filing
his complaints. On September 2, 1999, a Scheduling Order was
entered, reflecting the substance of the discussions and
reiterating the directive that Complainant address the timeliness
issues and "submit any facts or arguments that he relies on as
justification for any untimely filing."
Complainant's response to the show cause order and motion
was received on September 7, 1999. Respondent filed a reply on
September 20, 1999, including affidavits supporting its claims of
prejudice. Complainant did not file a response, as permitted by
the scheduling order.
Filing with the Commission
Reintjes' argument that Keys' complaint was not timely filed
with the Commission is easily disposed of. While the complaint
was filed 37 days following the date of the letter noting MSHA's
finding of no discrimination, the 30 day time period prescribed
in section 105(c)(3) of the Act and Commission Rule 2700.41[2]
commences with receipt of the determination, not the purported
mailing date. Complainant asserts, in his response to the show
cause order, that "someone else" was allowed to sign for the
original delivery and that the copy he received was mailed on
June 24, 1999. There is no evidence in the record establishing
that Keys actually received the MSHA letter before June 1, 1999.
I find that the complaint was timely filed with the
Commission.[3]
Filing with the Secretary
Reintjes argument that Keys' filing of a complaint with the
Secretary of Labor's MSHA was untimely carries considerably more
weight. Section 105(c)(2) of the Act specifies 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. * * * (emphasis supplied.)
Here, the alleged discriminatory action, Respondent's firing of
Complainant, occurred on November 22, 1996. Under section
105(c)(2), Complainant's allegation of discrimination should have
been filed with MSHA on or before January 22, 1997. However, the
complaint was not filed with MSHA until February 16, 1999,
2 years and 26 days beyond the statutory deadline.
The Commission has held that the 60 day time limit in
section 105(c)(2) of the Act is not jurisdictional and that non-
compliance may be excused on the basis of justifiable
circumstances. Hollis v. Consolidation Coal Co., 6 FMSHRC 21
(1984); Herman v. IMCO Services, 4 FMSHRC 2135 (1982). As the
Commission stated in Herman, 4 FMSHRC at pp. 2138-39:
The placement of limitations on the time-periods
during which a plaintiff may institute legal
proceedings is primarily designed to assure fairness to
the opposing party by:
Preventing surprises through the revival of
claims that have been allowed to slumber
until evidence has been lost, memories have
faded, and witness have disappeared. The
theory is that even if one has a just claim
it is unjust not to put the adversary on
notice to defend within the period of
limitations and that the right to be free of
stale claims in time comes to prevail over
the right to prosecute them.
Burnett v. N.Y. Central R.R. Co.,380 U.S. 424, 428
(1965), quoting R.R Telegraphers v. REA, 321 U.S. 342,
348-49 (1944). * * *
The cases dealing with justification for delays in filing
identify several factors that are typically considered,
including: complainant's capacity or ability to initiate and
pursue such a remedy, See, William T. Sinnott, II v. Jim Walter
Resources, Inc., 6 FMSHRC 2445 (1994) (Maurer, ALJ);
complainant's awareness of his rights under the Act, Id.; Hollis,
supra.; Secretary of Labor on behalf of Franco v. W.A. Morris
Sand and Gravel, Inc., 18 FMSHRC 278 (1996)(Manning, ALJ)(delay
of 107 days justified by prompt filing after complainant first
became aware of rights under the Act, filing of substantially
identical allegations in workmen's compensation and employment
discrimination claims and absence of prejudice to respondent);
Secretary of Labor on behalf of Smith v. Jim Walter Resources,
Inc., 21 FMSHRC 359 (1999) (Melick, ALJ)(10 month delay excused
by filing within 65 days of first learning of rights under
section 105(c), no claim of prejudice by respondent); Secretary
of Labor on behalf of Gay v. Ikard-Bandy Co., 18 FMSHRC 341
(1996)(Melick, ALJ)(3 month delay excused by filing 1 day after
first learning of section 105(c) rights and no claim of
prejudice); and, the length of the delay and whether it has
resulted in prejudice to a respondent. Prejudice is inherent in
any delay, because witnesses' recollections fade. See, Sinnott,
supra, (delay of over 3 years "inherently prejudicial").
Consequently, the lengthier the delay, the stronger the
justification required to overcome it. See, Roland A. Avilucea
v. Phelps Dodge Corp., 19 FMSHRC 1064, 1067 (1997)(Fauver,
ALJ.)("very special circumstances" required to justify delay of
over 2 years). Concrete demonstrable prejudice may also occur,
e.g. the unavailability of witnesses or documents. All such
factors must be weighed to reach the ultimate determination of
whether, on the facts of the particular case, the delay was
justified. Hollis, supra; Herman, supra.
The delay here, in excess of 2 years, is truly
extraordinary. Complainant has made no attempt to justify the
delay, despite the instructions in the show cause and scheduling
orders. While he claims significant injury, he clearly was not
incapacitated and actively pursued his workmen's compensation
case. He does not claim to have been unaware of his rights under
the Act, and his complaint and related papers evidence
considerable familiarity with it's provisions.[4]
Respondent's ability to defend against the allegations has
been prejudiced by the delay. Evidence of any discussions that
Keys may have had with Reintjes officials on or about November
22, 1996, the only protected activity claimed by Keys, would be
critical to prosecution and defense of the claim. Recollections
of any such discussions are likely to have faded considerably.
Respondent has also submitted affidavits establishing that
training records and potential witnesses may no longer be
available. However, whether or not there were training
violations and whether or not Keys was injured in the manner he
claimed would not likely become issues in this proceeding. See,
Munsey v. FMSHRC, 595 F.2d 735, 742-43 (D.C.Cir 1978)(safety
complaints are protected activity even if frivolous or not made
in good faith).[5]
**FOOTNOTES**
[1]: The complaint states a cause of action of discrimi-
nation under the liberal construction accorded pro se
pleadings. See, Clyde Perry v. Phelps Dodge Morenci, Inc., 18
FMSHRC 1918 (1996).
[2]: 29 C.F.R. � 2700.41.
[3]: Respondent claims that its ability to rebut
complainant's explanation for the allegedly untimely filing of
his complaint was prejudiced because it determined during a phone
call on September 10, 1999, that a witness was then deceased.
However, Respondent failed to establish whether the
unavailability of information from the witness is attributable to
Keys' alleged delay of a few days, or it's own determination to
not pursue an investigation or formal discovery upon receipt of
the complaint. The prejudice claim is rendered moot by the
finding that the complaint was timely filed.
[4]: His papers reference; a "Guide Manual to Miners'
Rights and Responsibilities Under the Federal Mine Safety and
Health Act of 1977;" section 110(f)'s criminal penalties for
making false statements; and, training and posting requirements.
[5]: There is no merit to Respondent's claim of prejudice
because its exposure to a back pay award has been substantially
increased by the delay. Respondent is adequately protected by
the requirement of proof of causation for any claimed relief and
the doctrine of mitigation of damages.
Complainant's primary interest in the present action appears
to be obtaining compensation for damages resulting from the
November 1996 injury.[6] He was involved in a lengthy workmen's
compensation proceeding in an attempt to secure compensation.
His complaint to MSHA was submitted only after his workmen's
compensation claim was denied, a delay of more than 2 years for
which he has offered no justification.
ORDER
Based upon the factors discussed above, Complainant's delay
of more than 2 years beyond the prescribed period for filing a
complaint of discrimination with MSHA was not justified.
Accordingly, the complaint is hereby dismissed.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Mr. James C. Keys, Jr., 1115 Ina Claire Drive, Opelousas, LA
70570 (Certified Mail)
Mark N. Savit, Esq., Adele L. Abrams, Esq., Patton Boggs, LLP,
2550 M Street, NW, Washington, DC 20037 (Certified Mail)
dcp
**FOOTNOTES**
[6]: The response to the Show Cause Order itemizes relief
claims of medical expenses of $4,662.98, lost wages of $83,835.00
and $40,000.00 for pain and mental distress, and states:
* * * * By law, I was injured badly and I am
entitled to medical treatment and wages by the LWCC. I
am demanding that they pay me what is owed. * * * *