<DOC>
[DOCID: f:se99292o1.wais]
July, 12, 2000
C S R SOUTHERN AGGREGATES
SE 99-292-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July, 12, 2000
RICHARD L. WILSON, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. SE 99-292-DM
v. : SE MD 99-10
:
C S R SOUTHERN AGGREGATES, :Dogwood Quarry
Respondent :
ORDER REQUESTING CLARIFICATION
This case is before me on an amended complaint filed by
Richard Wilson, alleging that Respondent, CSR Southern
Aggregates ("CSR") had discriminated against him in
violation of section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 815(c). Wilson
alleged that, on June 26, 1997, CSR terminated him from
employment for having reported numerous safety violations
to CSR.
Wilson filed a discrimination complaint with the Equal
Employment Opportunity Commission ("EEOC") on August 27,
1997, and was issued a Right to Sue letter by the EEOC on
February 26, 1998, pursuant to the EEOC's determination
that Wilson had not been discriminated against on the
basis of his race. Subsequently, on May 18, 1999,
pursuant to contact from Wilson the previous day, MSHA
forwarded a discrimination complaint form to Wilson,
along with a letter urging him to complete and return the
form as quickly as possible and to attach a letter of
explanation for failure to timely file his complaint, if
60 days had elapsed. Wilson filed his discrimination
complaint with MSHA on July 6, 1999, without providing
the requested explanation for his delayed filing.
Despite this deficiency, MSHA investigated Wilson's
complaint and on August, 26, 1999, issued its
determination that no violation of the Mine Act had
occurred, and advised Wilson of his right to file a
discrimination claim with the Commission on his own
behalf and the time limitation applicable thereto.
Wilson, pro se, filed his complaint of discrimination
with the Commission on September 24, 1999, and
subsequently obtained counsel, whose appearance was
entered on March 3, 2000. Thereafter, pursuant to
unopposed Motion to Amend Complaint, filed April 24,
2000, Wilson was permitted to amend his complaint to
allege protected activity under the Mine Act, which had
never been raised previously, and a hearing on the merits
was rescheduled for June 27, 2000.
On June 15, 2000, CSR filed a Motion for Summary
Judgment, seeking dismissal of Wilson's discrimination
complaint for untimely filing with MSHA. Wilson's
Response to Respondent's Motion for Summary Judgment,
filed July 3, 2000, essentially alleges that Wilson was
unaware of his right to file a discrimination complaint
under the Mine Act until May 18, 1999, when MSHA so
advised him and sent him a discrimination complaint form.
CSR filed its Reply on July 7, 2000, noting, among other
things, that Wilson's EEO complaint was also untimely
filed, that Wilson never provided any explanation to MSHA
for failure to file within the proscribed time, and that
CSR would be greatly prejudiced by continued processing
of Wilson's complaint.
Wilson's Response raises more questions than it answers.
By affidavit, Wilson asserts that, as Quality
Control/Site Safety Coordinator at CSR, he had been
involved in a previous MSHA investigation of a terminated
employee, and because the MSHA investigator had told him
that the EEOC had forwarded the discrimination complaint
to MSHA because the employee had filed with the wrong
agency, he (Wilson) assumed that "filing a complaint
through the EEOC was the same as filing an MSHA
complaint." Aside from the question of whether Wilson's
assumption was reasonable, it would seem curious, at
first blush, that Wilson did not initially file his
complaint with MSHA, the agency with which he had some
familiarity, until one considers that Wilson raised, as
CSR's sole motive for terminating him, a basis protected
by Title VII of the Civil Rights Act, rather than any
safety related activity protected by the Mine Act.
Troubling, as well, is Wilson's assertion that sometime
around the filing of his EEO complaint, he had contacted
MSHA, outlined the facts of his termination and, upon
advising MSHA that he had filed a discrimination
complaint with the EEOC, was at no time advised that he
needed to file a different complaint with MSHA. Assuming
that Wilson's rendition of his case to MSHA was
consistent with the substance of his EEO race
discrimination complaint, it is conceivable and
reasonable that he would not have been advised to file a
complaint with MSHA at that time. There is no getting
around the fact that Wilson selected the proper forum in
which to file his discrimination complaint, given his
belief that CSR terminated him because he is Black.
Equally evident is that, had Wilson initially raised any
safety related complaints as bases for his termination,
the EEOC, lacking jurisdiction, would have transferred
those allegations to MSHA for administrative processing.
In any case, before ruling on CSR's Motion for Summary
Judgment, Wilson shall be afforded the opportunity to
provide the reasons, with specificity, for the following
course of action on his part: 1) selection of the EEOC,
rather than MSHA, for filing his discrimination
complaint; 2)failure to allege the safety related
complaints raised in his amended discrimination complaint
before the Commission, when he initially filed his
discrimination complaint with the EEOC; 3)failure to
provide written explanation to MSHA , as directed, for
untimely filing his discrimination complaint; and 4)
filing his discrimination complaint with MSHA seven weeks
after he had received the complaint form and
instructions.
ORDER
Accordingly, it is ORDERED that Wilson respond to and/or
provide information on the questions specified above on
or before July 21, 2000. Filing by facsimile is
permissible, accompanied by mailed original. Failure to
timely and completely respond to this Order may result in
issuance of an Order to Show Cause Why the Complaint
Should Not Be Dismissed.
Jacqueline R. Bulluck
Administrative Law Judge
(703) 756-6210
Distribution: (Certified Mail)
M. V. Booker, Esq., Attorney at Law, P.O. Box 447, Washington,
GA 30673
Robert J. Coursey III, Esq., Fisher & Phillips, 945 E. Paces
Ferry Road, 1500 Resurgens Plaza, Atlanta, GA 30326
/nt