<DOC>
[DOCID: f:perry.wais]
PHELPS DODGE MORENCI, INC.
November 27, 1996
WEST 96-64-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
November 27, 1996
CLYDE PERRY :
:
v. : Docket No. WEST 96-64-DM
:
PHELPS DODGE MORENCI, INC. :
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]
ORDER
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act").
On April 26, 1996, former Commission Administrative Law Judge Arthur
Amchan granted the motion to dismiss of Phelps Dodge Morenci, Inc.
("Phelps Dodge"), concluding that complainant Clyde Perry failed "to
state a claim upon which relief may be granted" under section 105(c)
of the Mine Act, 30 U.S.C. � 815(c). 18 FMSHRC 643, 646-47 (April 1996)
(ALJ). The Commission granted Perry's petition for discretionary review.
For the reasons that follow, we vacate the judge's dismissal order and
remand for further proceedings.
I.
Factual and Procedural Background
On February 16, 1993, Perry injured his right foot at Phelps Dodge's
Morenci Branch Mine. 18 FMSHRC at 643. When he returned to work a month
later, he was assigned "light duty" work. Id. During October 1993, Perry
began working as a truck driver. Id. After driving trucks for several
months, Perry asked to be reassigned to other work because his foot injury
was interfering with his ability to operate a truck by causing him pain
in his foot, back, and knee. Id. He was not reassigned. Id.
At some point, Perry complained to his superiors at Phelps Dodge that it
was unsafe for him to operate heavy equipment because of his medical
condition, after which Perry was harassed continually. Compl. at 1; Am.
Compl. at 1.[2] During the early morning hours of January 28, 1995, Perry
experienced chest pains while working the graveyard shift. Compl. at 4.
He went to the hospital, but could not be treated because he was unable to
produce a urine specimen which a doctor requested after Perry told him he
(Perry) was taking an over-the-counter medicine. Id. Perry subsequently
tested negative for drugs and alcohol based on the results of a test performed
that evening. Id. at 7. On February 3, 1995, Perry was fired "pending
arbitration." Perry Br. at 3. Apparently he was fired because, according
to Phelps Dodge, he tested positive for drugs or alcohol after being in an
area where an accident occurred. Compl. at 8.
Perry filed a discrimination complaint with the Department of Labor's
Mine Safety and Health Administration ("MSHA") on September 14, 1995.
On November 6, MSHA notified Perry that, in the agency's opinion, Phelps
Dodge had not violated section 105(c) of the Mine Act in its treatment
of Perry. 18 FMSHRC at 644. On November 17, Perry filed a complaint
with the Commission under section 105(c)(3) of the Mine Act, 30 U.S.C.
� 815(c)(3). Id.; Compl. at 2. In its answer, filed on February 20, 1996,
Phelps Dodge moved that Perry be ordered to provide a more definite
statement of his claim. 18 FMSHRC at 644. The judge granted Phelps
Dodge's motion and ordered Perry to provide a more definite statement of
his claim, including a description of his protected activities and when
they occurred, the basis for his belief that Phelps Dodge discriminated
against him, the nature of the alleged discrimination and when it occurred,
and the relief he sought. Id.; Order to Show Cause and To Provide a More
Definite Statement (February 29, 1996). Perry filed his amended complaint
on March 22, 1996. Phelps Dodge replied to the amended complaint on April
25, 1996, and included in its reply a motion to dismiss on the grounds that
Perry failed to properly allege that he had engaged in any protected activity,
and that he failed to file his complaint within the 60-day limit set forth
in section 105(c).
The judge dismissed Perry's complaint in an order dated April 26, 1996.
18 FMSHRC at 647. Without citing Rule 12(b)(6) of the Federal Rules of
Civil Procedure, but using its terminology, the judge dismissed Perry's
for failure to state a claim upon which relief may be granted.[3] Id.
The judge found that Perry had "not alleged that he engaged in any
activities protected by the [Mine] Act," and that being injured on the
job, inability to perform one's tasks, and refusal to take a drug test
or testing positive are not protected activities. Id. at 646. The judge
also found that Phelps Dodge did not violate section 105(c) when it
declined to provide Perry alternative employment after he complained that
his continued operation of a truck in his condition posed a threat to
himself and others. Id.
II.
Disposition
Appearing pro se, Perry alleges that Phelps Dodge "retaliated against me
because I gave them a lost time accident and, also, for filing a complaint
under the [Mine] Act." Perry Br. at 2. He asserts that, on February 16,
1993, he was seriously injured and, thereafter, complained that it was
unsafe for him to operate heavy equipment because of his medical condition.
Id. at 2-3. Although he resumed his duties as a truck driver, "[e]ver
since my accident and the complaint I made, I've been harassed, discriminated
against, and almost terminated." Id. at 3. Perry further asserts that on
January 28, 1995, he was discharged pending investigation following an
anxiety attack at work and his subsequent inability to produce a urine
sample for drug and alcohol testing. Id. He states that on February 3,
1995, he was discharged pending arbitration. Id. Phelps Dodge asserts that
the judge properly dismissed the complaint because Perry failed to allege
that he engaged in protected activity and that, in addition, he failed to
file his complaint within the time limit imposed by section 105(c). P.D.
Br. at 4-6.
A. The Judge's 12(b)(6) Ruling
It is well settled that "[t]he motion to dismiss for failure to state
a claim is viewed with disfavor and is rarely granted." 5A Wright &
Miller, Federal Practice & Procedure: Civil � 1357 (2d ed. 1990). The
Supreme Court has held that "a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Additionally,
we hold the pleadings of pro se litigants to less stringent standards than
pleadings drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269,
1273 (August 1992) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
In cases brought by pro se complainants, motions to dismiss for failure
to state a claim should rarely be granted. Instead, in such a case, a
judge should ensure that he informs himself of all the available facts
relevant to his decision, including the complainant's version of those facts.
Heckler v. Campbell, 461 U.S. 458, 470-73 (1983) (Brennan, J., concurring).
Here, Perry was obligated to provide the Commission with "a short and plain
statement of the facts, setting forth the alleged . . . discrimination . . .
and a statement of the relief requested." 29 C.F.R. � 2700.42. This he did.
The judge's finding that Perry failed to allege that he engaged in any
protected activity is erroneous. Perry alleged that he complained to Phelps
Dodge that, because of medical problems arising from an earlier on-the-job
accident, his operation of a truck posed a safety hazard to himself and others.
Am. Compl. at 1. Such complaints are activities protected under the Mine Act.
Smith v. Kem Coal Co., 14 FMSHRC 67, 71 (January 1992); cf. Bjes v. Consolidation
Coal Co., 6 FMSHRC 1411, 1417 (June 1984) ("a miner may refuse to work on the
basis of a perceived hazard arising from his own physical condition or
limitations"). Perry also alleged that after he complained, he was continually
harassed and ultimately fired on grounds that were "made up" by Phelps Dodge.
Compl. at 1. According to Perry, Phelps Dodge actually fired him because of
his complaints "that it [was] unsafe operating heavy equipment under [his]
condition." Id. Additionally, Perry alleged that when he complained, Phelps
Dodge refused to give him light duty work such as he was given after his earlier
injury, despite the fact that others similarly situated were routinely assigned
such duty. Id. at 4.
When the judge ordered Perry to provide the basis for his belief that Phelps
Dodge discriminated against him, he essentially required Perry to begin proving
his prima facie case at a stage in the proceedings when Perry was simply
obligated to meet the Commission's minimal pleading requirements. See
Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786 (October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981),
and Secretary of Labor on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803 (April 1981) (a miner alleging discrimination under the Mine
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). To go beyond the pleading
requirements of Rule 42 at so early a stage in a case is particularly
inappropriate in view of the complainant's burden to establish discriminatory
motive. We have often acknowledged the difficulty of establishing a
motivational nexus between protected activity and the adverse action that
is the subject of the complaint. Hicks v. Cobra Mining, Inc., 13 FMSHRC 523,
530 (April 1991), and cases cited therein.
This case demonstrates the difficulty of establishing all the relevant
facts strictly on the basis of a pro se complainant's pleadings. But
on the record before us, Perry has more than met his burden of alleging
discrimination actionable under section 105(c). Accordingly, we vacate
the judge's dismissal order and remand the case for further evidentiary
proceedings.
B. The Timeliness of Perry's Complaint
We find unpersuasive Phelps Dodge's argument that Perry's complaint
should be dismissed because it was filed at least seven and a half
months beyond the time limit set forth in section 105(c). Section
105(c) provides that a discrimination complaint may be filed "within
60 days after [a] violation occurs." A miner's late filing of a
discrimination complaint may be excused on the basis of justifiable
circumstances, including ignorance, mistake, inadvertence, and
excusable neglect. Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 12-13
(January 1984); Farmer v. Island Creek Coal Co., 13 FMSHRC 1226,
1230-31 (August 1991). Even if there is an adequate excuse for late
filing, a serious delay causing legal prejudice to the respondent may
require dismissal. Secretary of Labor on behalf of Hale v. 4-A Coal Co.,
9 FMSHRC 905, 908 (June 1986). In general, timeliness questions must be
resolved on a case-by-case basis, taking into account the unique
circumstances of each situation. Hollis v. Consolidation Coal Co.,
6 FMSHRC 21, 24 (January 1984), aff'd mem., 750 F.2d 1093 (D.C. Cir. 1984).
Here, on the question of timeliness, Perry never responded to Phelps
Dodge's allegations. In this respect, the case presents a question
analogous to one we addressed in Farmer v. Island Creek (a case also
involving a pro se claimant), where we stated:
Given complainants' silence below in the face of the
operator's motion to dismiss, this case arrives at the
Commission in virtually the same posture as a default. As in
any default case, the defaulted party has failed to speak at
some crucial juncture.
13 FMSHRC at 1232. After noting "a pro se party's general lack of
understanding of appropriate Mine Act and Commission procedure,"
we held:
We conclude that good cause [for the complainant's
delay] has been shown to the extent that, in the interests of
justice, the matter should be remanded to the judge so that
complainants' explanations can be placed before him for his
resolution. At that time, the operator will have the
opportunity to present evidence of the material legal prejudice,
if any, resulting from such delay.
Id. Following the Commission's reasoning in Farmer, we remand this
matter for the additional purpose of allowing the judge to determine
in the first instance whether appropriate circumstances exist to excuse
Perry's allegedly late filing of his discrimination complaint.[4]
III.
Conclusion
For all of the foregoing reasons, we vacate the judge's dismissal order
and remand this matter to the Chief Administrative Law Judge for assignment
to a judge for further evidentiary proceedings consistent with this
opinion.[5]
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
FOOTNOTES
[1] Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. _ 823(c), this panel of three
Commissioners has been designated to exercise the powers of the
Commission.
[2] Because this case is before us on an appeal of an order
entered pursuant to a motion to dismiss, Perry's allegations are
treated as true. Goff v. Youghiogheny & Ohio Coal Co., 7 FMSHRC
1776, 1777 (November 1985). Perry's complaint consists of a cover
note, a copy of MSHA's letter to Perry regarding its investigation
of his complaint, a copy of Perry's original complaint to MSHA, and
a note sent to Phelps Dodge informing it that a complaint had been
filed. Perry's amended complaint consists of a cover letter, a
statement in support of claim, and several attachments. Page
references to the complaint and amended complaint are to the
documents assembled in the order above.
[3] Rule 1(b) of the Commission's Procedural Rules provides:
"On any procedural question not regulated by [these] Rules . . . the
Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure . . ." 29 C.F.R. _ 2700.1(b).
[4] Given our disposition, we deny Phelps Dodge's motion for a
more definite statement and its motion to dismiss.
[5] Judge Amchan has since transferred to another agency.