<DOC>
[DOCID: f:wv200080o.wais]
CAPITOL CEMENT CORPORATION
August 6, 2001
WEVA 2000-80-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 6, 2001
DANIEL C. HOWELL, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEVA 2000-80-DM
v. : NE MD 00-03
:
CAPITOL CEMENT CORPORATION, : Martinsburg Plant
Respondent : Mine ID 00-03
ORDER
Capital Cement filed a Motion to Dismiss the above-captioned
discrimination complaint on August 1, 2001, on the grounds that
"Complainant failed to file a charge of discrimination ... almost
four months after the time period for filing such a charge had
expired."
Section 105(c) sets forth the time limitation applicable to
filing a complaint under the Mine Act by requiring that "Any
miner ... who believes that he has been discharged, interfered
with, or otherwise discriminated against in violation of this
subsection may within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination."
The Commission has held that the 60-day time limitation in
section 105(c) is not jurisdictional and that justifiable
circumstances may excuse non-compliance. Hollis v. Consolidation
Coal Co., 6 FMSHRC 21 (1984); Herman v. IMCO Services, 4 FMSHRC
2135 (1982). In Herman, the Commission found a "prolonged
hesitation" of nine months to constitute "extraordinary delay" in
filing, and explained the primary objective of imposing time
limitations for instituting legal proceedings as assuring
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 witnesses 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 limitation and that the
right to be free of stale claims in time comes to
prevail over the right to prosecute them.
Id. at 2138-39, quoting Bennett v. N.Y. Central R.R. Co., 380
U.S. 424, 428 (1995), quoting R.R. Telegraphers v. REA, 321 U.S.
342, 348-49 (1944).
There are several cases that examine whether untimely filing
is excusable, by considering factors such as: Complainant's
capacity or ability to initiate and pursue such a remedy, see
William T. Sinnott, II v. Jim Walters Resources, Inc., 6 FMSHRC
2445 (1994) (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)
(ALJ) (delay of 107 days justified by prompt filing after
Complainant first became aware of his rights under the Act,
filing of substantially identical allegations in workman's
compensation and employment discrimination claims, and absence of
prejudice to Respondent); Secretary of Labor on behalf of Smith
v. Jim Walters Resources, Inc., 21 FMSHRC 359 (1999) (ALJ) (ten
month delay excused by filing within 61 days of first learning of
section 105(c) and no claim of prejudice by Respondent);
Secretary of Labor on behalf of Gay v. Ikard-Bandy Co., 18 FMSHRC
341 (1996) (ALJ) (three month delay excused by filing one day
after first learning of section 105(c) rights and no claim of
prejudice); and the length of delay and whether it has resulted
in prejudice to a Respondent, see Sinnitt, supra (delay of over
three years "inherently prejudicial"). Consequently, the
lengthier the delay, the more substantial the justification
required to overcome it. See Roland A. Avilucea v. Phelps Dodge
Corp., 19 FMSHRC 1064, 1067 (1997) (ALJ) ("very special
circumstances" required to justify delay of over two years).
Concrete demonstrable prejudice may also occur, e.g.,
unavailability of witnesses or documents. Factors such as these,
pertinent to the particular circumstances of each case, must be
weighed in order to determine whether delay has been justified.
Hollis, supra; Herman, supra.
In the instant matter, Howell was discharged on October 19,
1999 and filed his discrimination complaint on April 17, 2000,
almost four months past the December 20, 1999 deadline for
filing. Howell seeks to have delayed filing excused by stating
that he lacked knowledge of the procedure by which discrimination
complaints are filed, sought information from Capitol Cement and
the Department of Labor to no avail, and was not directed to MSHA
until he contacted the National Labor Relations Board in March
2000. Crediting Howell's statement that he became aware of his
right to file with MSHA in March, filing his complaint on April
17 does not constitute inordinate delay. Moreover, Capitol
Cement's claim of prejudice does not appear to amount to any more
time and expense than that which would have been required in
defending against this action had it been timely filed.
Accordingly, Daniel C. Howell's delay in filing his
complaint of discrimination with MSHA was justified and is,
therefore, excused, and Capitol Cement's Motion to Dismiss is
hereby DENIED.
Jacqueline Bulluck
Administrative Law Judge
703-756-6210
Distribution: (Certified Mail)
Daniel C. Howell, Capitol Cement Corporation, P.O. Box 885,
Martinsburg, WV 25401
Jeffrey S. Shapiro, Esq., McGuire Woods LLP, One James Center,
901 East Cary Street, Richmond VA 23219-4030
nt