Wesley Mallery v. El Segundo Coal Company, LLC

Plain-English summary

Miner Wesley Mallery alleged that he raised workplace safety concerns and was immediately placed on administrative leave, followed by disability status at reduced pay. The judge dismissed his pro se discrimination case for failure to state a claim after issuing two show-cause orders. The Commission majority held that Mallery met the Mine Act's minimal pleading burden, that his allegations had to be taken as true at this stage, and that possible interference did not necessarily require a separate adverse action. It also held that the judge improperly demanded a clear and concise presentation beyond Rule 42's short-and-plain-statement requirement. The majority vacated the dismissal and remanded for discovery and evidentiary proceedings, while Chair Jordan dissented.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1), 815(c)(3), and 823(d)(2)(B)
• Outcome: The dismissal was vacated and the discrimination case was remanded for evidentiary proceedings.
• Key point: A pro se miner need only satisfy the minimal pleading standard, with allegations construed in the miner's favor at the dismissal stage.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

WESLEY
MALLERY

v.

EL
SEGUNDO COAL COMPANY, LLC

Docket
No. CENT 2024-0106

BEFORE:
Jordan, Chair; Baker and Marvit, Commissioners

DECISION

BY: Commissioners
Baker and Marvit:

On January 12, 2023, Miner Wesley Mallery
brought three type-written pages of workplace and safety concerns into a
meeting with mine management at El Segundo Coal Company, LLC (“El Segundo”). He
walked out of the meeting on administrative leave.

These assertions are undisputed and alone
are sufficient to support a claim of discrimination under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or
“Act”). Specifically, Mallery engaged in protected activity, he suffered an
adverse employment action, and circumstantial indicia showed a causal nexus
between the protected activity and adverse action (the operator was aware of
his protected activity and the timing was almost immediate). [1]

On January 19, 2024, Mallery filed a
complaint with the Federal Mine Safety and Health Review Commission, alleging
discrimination under Section 105(c), 30 U.S.C. § 815(c)(1), of the Mine Act. [2] Following two
Show Cause orders from the assigned Commission Administrative Law Judge (“ALJ”)
demanding that Mallery clarify his claims, the Judge dismissed Mallery’s claim,
stating that he failed “to state a claim upon which relief may be granted under
section 105(c) of the Mine Act[.]” 46 FMSHRC 416, 420 (June 2024) (ALJ).

For the reasons that follow, we find that
that the Judge’s dismissal order was in error. We vacate the order and remand
for further proceedings.

I.                   

Factual and
Procedural Background

On May 30, 2023, Mallery filed a
discrimination complaint with the Mine Safety and Health Administration (“MSHA”).
On August 3, 2023, MSHA notified Mallery that it declined to pursue his case
and advised him of his right to file a petition for discretionary review with
the Commission. On January 19, 2024, Mallery filed a pro se petition with the
Commission pursuant
to section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3). [3]

In his complaint to MSHA, Mallery alleged
protected activities and adverse actions beginning in 2019 and leading up to
his placement on administrative leave in January 2023 and subsequently
short-term disability in February 2023. MSHA Compl. at 2-3; Mallery Rebut. at
4-8. However, the bulk of Mallery’s protected activity occur in the six-month
period leading up to El Segundo placing him on administrative leave. MSHA
Compl. at 2-3.

In his MSHA complaint, Mallery alleged
that on August 30, 2022, a supervisor “rushed” Mallery to complete loading logs
of explosive product and Mallery refused to complete the logs inaccurately, and
within a week he had a conversation with a manager who stated that “100%
accountability” was not possible. MSHA Compl. at 3. Then, in October 2022, El
Segundo allegedly failed to offer him a more desirable position. On December
28, 2022, Mallery complained at a morning safety meeting of harassment from a
supervisor and how it affected the safety of the crew. In December 2022 and
January 2023, Mallery requested and did not receive the “Peabody Employee
Guidebook.” MSHA Compl. at 2. On January 5, 2023, he raised safety concerns
regarding the blast crews and a supervisor “berated” him. Id . at 3 . In
addition, throughout Mallery’s complaint and filings, he describes his
supervisor reprimanding him in front of other employees for his complaints
about safety at the mine. Id . at 2-3; Mallery’s Rebut. at 4-7.

Most recently, on January 12, 2023, El
Segundo placed Mallery on fully paid administrative leave immediately after two
meetings in which Mallery discussed “safety and pay issues” with mine human
resources representatives and the mine manager, the first on January 11 and the
second the next day on January 12. ALJ Order of Dismissal (“ALJ Order”) at 2-3;
Resp.’s Brief at 8. Mallery alleges that on January 11, 2023, mine manager Seth
Puls told Mallery that he had arranged a meeting for Mallery with human
resources representative Kischa Jackson to discuss Mallery’s concerns. M.’s Reb
at 8. Mallery met with Jackson on January 11, and she raised their shared
background as veterans, which the two discussed, but Mallery remained focused
on raising workplace issues. Id. Jackson arranged a meeting for the next
day and Mallery typed up three pages of workplace and safety concerns to raise.
Id. On January 12, 2023, Mallery informed management that he wanted to
discuss these written concerns and Jackson refused to discuss them. Mallery’s
Rebut. at 8, Ex. E, Mallery’s Rebut. Mallery alleges that during the meeting,
Jackson turned the conversation towards his family and his veteran status,
refusing to address workplace issues. [4] Resp.’s Brief at

3. El Segundo alleged that it placed Mallery on leave due to his “emotionally
   distraught demeanor” at the meeting in which he raised safety issues. ALJ Order
   at 4.

Mallery alleges that he was asked to
undergo a medical evaluation, and that he agreed because he “strongly [felt he]
had no other options.” M.’s Brief at 2. On January 26, 2023, Joanna Sparks from
corporate human resources called Mallery to ask that he undergo a fitness for
duty assessment. Mallery’s Rebut. at 8. On February 3, 2023, Mallery underwent
a medical assessment for fitness for duty that resulted in a report dated
February 7, 2023, where the doctor recommended he take leave from work. M.’s
Brief, Ex. 6. El Segundo states multiple times that it “played no role in Dr.
Sadek’s ultimate determination that Mallery was not fit for duty.” Resp.’s Rsp.
Brief at 8-9. However, the doctor’s assessment states that the managers present
at the January 11 and 12 meetings were interviewed as “collateral informants.” M.’s
Brief, Ex. 6 at 3. Mallery applied for and qualified for short-term disability
at one hundred percent pay until April 10, 2023 when he exhausted his leave. ALJ
Order at 4 . Subsequently, he applied and received long-term disability,
receiving sixty percent of his pay. Id . According to El Segundo, he
remains employed and eligible to return upon medical clearance. Id.

Following the Operator’s Answer, on March
5, 2024, the Judge issued an Order to Show Cause stating that “[i]t is not
clear whether [Mallery] is alleging any adverse action, resulting from his
engagement in any protected activity, that may entitle him to relief under the
Mine Act.” First Order to Show Cause (“First OSC”) at 1. Citing Commission
Procedural Rule 42, [5] the Judge ordered
that he “submit a clear and concise statement of the alleged protected
activity(s) [sic] giving rise to the adverse action(s), including applicable
dates, that may entitle him to relief under the Mine Act.” Id. at 2
(emphasis added). The Judge asked Mallery to explain the lack of timeliness in
his filings. Id. In addition, the Judge accepted as true El Segundo’s
Answer, wherein it described that “the determination to place [Mallery] in [disability]
status was made by medical professionals and a third-party insurance company.” Id.
On March 11, 2024, Mallery responded to the Judge’s show cause order reciting
his original allegations and explaining why he delayed in filing.

On March 14, 2024, the Judge issued a
second Order to Show Cause excusing Mallery’s late filings and providing him
with a “final opportunity to set forth a clear and concise statement of
a cognizable claim under section 105(c),” which she said he should do “very
briefly.” Second Order to Show Cause (“Second OSC”) at 2 (emphasis added). Mallery
responded with a list of allegations from his original MSHA complaint on March
22, 2024. On appeal, Mallery explained that he did not feel able to disagree
with management’s recommended course of action: “I felt I had no choice but to
agree with what Seth Puls and Human Resources suggested to me.” M.’s Brief at
2.

On June 12, 2024, the Judge dismissed
Mallery’s case based on the reasoning made in her two Orders to Show Cause,
stating that Mallery failed to state a claim upon which relief could be granted,
citing Rule 12(b)(6) of the Federal Rules of Civil Procedure. [6] ALJ Order at 2,

4. The Judge found that “short-term disability…does not constitute an
   employer-generated adverse action.” Id. at 4. [7] In addition, the
   Judge noted that his “allegations far exceed the time limit applicable to
   initiating a complaint with MSHA.” Id . The same day Mallery filed his petition
   for discretionary review with the Commission, challenging the Judge’s finding
   that short-term disability was not an adverse action. On July 5, 2024, Mallery filed
   additional materials in support of his claim.

On July 12, 2024, the Commission granted review
of Mallery’s petition for discretionary review. In addition, pursuant to
Commission Procedural Rule 71, 29 C.F.R. § 2700.71, and section 113(d)(2)(B) of
the Mine Act, 30 U.S.C. § 823(d)(2)(B), the Commission granted review on the Judge’s
Orders to Show Cause, issued on March 5, 2024 and March 14, 2024, and
subsequent dismissal to determine whether they are contrary to law. 46 FMSHRC
445 (July 12, 2024). The Commission also voted to determine whether Mallery’s
July 5, 2024 filings should be part of the record on appeal.

II.                

Disposition

A.    
The
Judge’s Order of Dismissal

As we have previously held, the Commission
disfavors dismissing cases for failure to state a claim, which the Judge
correctly restated in her dismissal. ALJ Order at 3. In Perry v. Phelps
Dodge Morenci, Incorporated , the Commission stated that “[i]t is well
settled that “[t]he motion to dismiss for failure to state a claim is viewed
with disfavor and is rarely granted.” 18 FMSHRC 1918, 1920 (Nov. 1996) (citing 5A
Wright & Miller, Federal Practice & Procedure: Civil § 1357 (2d ed.
1990)); see also KenAmerican Res., Inc., 38 FMSHRC 1943, 1947 (Aug.
2016) (summary decisions should not be granted “unless the entire record shows
a right to judgment with such clarity as to leave no room for controversy and
establishes affirmatively that the adverse party cannot prevail under any
circumstances.”) (quoting Campbell v. Hewitt, Coleman & Assocs.,
Inc., 21 F.3d 52, 55 (4th Cir. 1994)).

As the Judge noted, under the requirements
of section 105(c), Mallery was only obligated to plead that
he “ engaged
in protected activity, and that he suffered an adverse action that was, at
least, partially motivated by the protected activity.” ALJ Order at 3 (citing Sec’y
of Labor on behalf of Smitherman, v. Warrior Met Coal Mining, LLC, 45
FMSHRC 446, 451 (June 2023); Sec’y of Labor on behalf of Pasula v.
Consolidation Coal Co. , 2 FMSHRC 2786 (Oct. 1980), rev’d on other
grounds , 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of
Robinette v. United Castle Coal Co. , 3 FMSHRC 803 (Apr. 1981)). In short,
at this stage Mallery was only required to plead sufficiently that he engaged
in protected activity, suffered an adverse action, and that the latter may have
been motivated by the former.

The Commission has defined an adverse
action as “‘an action of commission or omission by the operator subjecting the
affected miner to discipline or a detriment in his employment relationship.”’ Sec’y
of Labor on behalf of Pendley v. Highland Mining Co. , 34 FMSHRC 1919, 1930
(Aug. 2012) (citing Sec’y of Labor on behalf of Pendley v. Fed. Mine Safety
& Health Rev. Comm'n , 601 F.3d 417, 428 (6th Cir. 2010)). The
Commission has also held that “discrimination may manifest itself in subtle or
indirect forms of adverse action.” Sec’y of Labor on behalf of Jenkins v.
Hecla-day Mines Corp. , 6 FMSHRC 1842, 1852 n.2 (Aug. 1984).

Furthermore, in considering a dismissal
order, the ALJ is required, pursuant to Rule 12(b)(6), to construe Mallery’s
complaint in the light most favorable to him and assume his allegations are
true. Fed. R. Civ. P. 12: Ribble v. T & M Develop. Co ., 22 FMSHRC
593, 596 n.3 (May 2000) (“Under Rule 12(b)(6), we must construe the complaint
in the light most favorable to [complainant], and must assume that his
allegations are true. . . . We must also liberally construe the complaint,
which was filed pro se.”) (internal citation omitted); s ee also 5A
Wright & Miller, Federal Practice & Procedure: Civil § 1357 (2d ed.
1990). The Commission has consistently followed this approach. See Ribble ,
22 FMSHRC at 596 n.3; Marin v. Asarco, Inc ., 14 FMSHRC 1269, 1273 (Aug.
1992) (citing Maduakolam v. Columbia University , 866 F.2d 53, 56
(2d Cir. 1989) (“In general, courts take into account the “special
circumstances of litigants who are untutored in the law.”); Goff v.
Youghiogheny & Ohio Coal Co. , 7 FMSHRC 1776, 1777 (Nov. 1985) ( citing
Hughes v. Rowe , 449 U.S. 5, 9-10 (1980) (“For purposes of reviewing the
judge's grant of a motion to dismiss for failure to state a claim, we will
treat the allegations as true.”).

The facts asserted by Mallery in his
Complaint and submissions are as follows: On January 12, 2024, El Segundo
placed Mallery on administrative leave because of his workplace safety
concerns. At that time, he felt he had “no choice” but to apply for disability,
which resulted in a forty-percent reduction in his pay. M.’s Brief at 2. Asking
Mallery to file for disability was clearly an action taken by the operator and
there is no assertion by any party in this case that Mallery was thinking about
filing for disability before his employer asked him to do so during a meeting
in which he raised his workplace concerns. In Mallery’s rebuttal brief before
the Judge, he stated: “My goal was to see workplace issues get addressed and to
return as a valuable employee. I was financially hurt prior to this situation
and most definitely am hurting with 60% of my wages while receiving short term
disability and long-term disability.” M’s Reb. at 9.

Taking Mallery’s allegations as true, the
only reasonable conclusion is that he met the minimal burden required under
section 105(c). Here, Mallery walked into a meeting with a list of workplace
complaints and walked out having been placed on administrative leave, leading
soon after to long-term disability at sixty percent of his pay. See Pamela
Bridge Pero v. Cyprus Plateau Mining Corporation , 22 FMSHRC 1361, 1365 (Dec.
2000) (the operator’s knowledge of the protected activity and temporal
proximity between the protected activity and the adverse action are sufficient
to show a motivational nexus). See also Sec’y of Labor on behalf of
Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2511 (Nov. 1981),  rev'd
on other grounds , 709 F.2d 86 (D.C. Cir. 1983) (coincidence in
time between protected activity and adverse action may be circumstantial
indicia of discriminatory intent).

Mallery’s description of the meeting on
January 12 and its events constitutes a proper assertion of protected activity
and an adverse action: he prepared a three-page document of safety complaints,
raised workplace safety complaints in the meeting with management, and El
Segundo immediately placed him on administrative leave and referred him to a
fitness for duty assessment leading to his long-term removal from work. [8] In sum, Mallery
properly pled a prima facie case.

The ALJ’s Order does not consider Mr.
Mallery’s complaint and allegations in the light most favorable to him. Though
the Judge correctly stated the law under section 105(c) and relied upon Perry
for the Commission’s view on dismissals for failure to state a claim, she
failed to follow these rules and committed a procedural error in dismissing the
case at this early stage. Specifically, the Judge impermissibly raised the bar
the Commission has set for such dismissals, especially involving pro se
litigants such as Mallery, and erred in not recognizing that Mallery asserted
at least one adverse action. As in Ribble , the Judge here required a pro
se litigant to prove his “prima facie case at a stage in the proceedings
when [the complainant is] simply obligated to meet the Commission’s minimal
pleading requirements.” 22 FMSHRC at 595 (citing Perry ).

The Judge erred in her show cause orders
and dismissal by repeatedly crediting as true the operator’s version of the
facts. In particular, the Judge treated as true El Segundo’s allegation that
the “the determination to place him in [disability] status was made by medical
professionals and a third-party insurance company.” First OSC at 2. We believe
this impermissibly credited El Segundo’s allegations as true.

Throughout the dismissal, the Judge
interwove El Segundo’s version of the facts into her analysis and selectively
quoted Mallery’s allegations, creating the appearance that all parties agreed
that Mallery required a leave from work due to medical issues. The Judge wrote,
“According to El Segundo, based on Mallery’s emotionally distraught demeanor,
Puls placed him on fully-paid administrative leave, pending a voluntary fit for
work evaluation.” Order at 4. Despite Mallery’s stated and repeated position
that El Segundo placed him on short-term disability because he sought to
address workplace issues, the Judge concluded that “the record is devoid of any
indication that Mallery was coerced into applying for the contractual benefit.” [9] Id. We
disagree.

In support of this position, the Judge
selectively picked from Mallery’s submissions. For example, the Judge cited
Mallery’s rebuttal brief for the proposition that he “acknowledges that he has
legitimate medical issues, and the determination was made by third-party
medical and insurance providers.” Id. at 4. What in fact Mallery wrote
is that the doctor “identified that [Mallery has] medical issues that needed to
be addressed, however he stated that [Mallery has] linear thought.” Mallery’s
Rebut. at 9. In other words, Mallery did not simply accept the doctor’s
conclusion and the result that Mallery should be removed from work at a reduced
rate of pay. Mallery cited the doctor’s report to show his ability to be
cogent.

The Judge relied almost entirely on El
Segundo’s version of the facts in support of an unsupported legal conclusion
that placement on short-term disability could not constitute an adverse action,
including by ignoring that El Segundo placed Mallery on administrative leave
before he applied for short-term disability. The facts as Mallery pled them are
clearly sufficient under section 105(c).

We are unable to uphold an analysis that
contains faulty assumptions and that misreads the record. Upholding the Judge’s
decision here would amount to a finding that, as a matter of law, placing a
miner on administrative leave is not an adverse action. We make no
determination as to whether placing Mr. Mallery on administrative leave, in the
particular facts of this case, constitutes an adverse action. [10]
However, we find that he has pled his case sufficiently to support, at this
stage of the proceeding, an allegation of adverse action. Both parties are
entitled to engage in discovery and in a hearing to prove their facts.

The Judge’s legal conclusion at this early
stage that there was no adverse action was also problematic for a separate
reason, which is that interference under section 105(c) requires no adverse
action and Mallery may have argued an interference claim (as well as a
traditional discrimination claim). It is well-established that the statutory
language in section 105(c)(1) also protects miners against interference with
the exercise of protected rights.

The Commission has held that interference that
would dissuade a reasonable miner from engaging in protected activity may
constitute on its own an adverse action. See McNary v. Alcoa World Alumina,
LLC , 39 FMSHRC 433, 439 (Mar. 2017). Mallery raised in his complaint
several instances of potential interference against his exercise of protected
rights that need not necessarily be tied to an adverse action such as
discharge, suspension, or retaliatory leave. This statutory protection extends
to protection against coercive conversations and harassment. Moses v.
Whitely Development Corp. , 4 FMSHRC 1475, 1478-79 (Aug. 1982), aff’d ,
770 F.2d 168 (6th Cir. 1985). See also United Mine Workers of America on
behalf of Franks et al. v. Emerald Coal Res., LP , 36 FMSHRC 2088, 2105
(Aug. 2014) (separate opinion of Chair Jordan and Commissioner Nakamura)
(coercive interrogation “alone…[can] constitute a violation of that statutory
section.”).  

The most prominent example that Mallery
alleged of his protected activity occurred on August 30, 2022, when a
supervisor rushed him in completing a loading log for explosives. MSHA Compl.
at 3. Mallery also alleged that during morning safety meetings on December 28,
2022, and January 5, 2023, he raised safety and discrimination issues, being
met with verbal ridicule and reprimand from a supervisor. Id. The
January 11 and 12, 2023, meetings may also be analyzed as potential
interference in the form of “coercive interrogation” and retaliatory harassment
for both Mallery’s earlier protected activity at the jobsite and his protected
activity during the meetings with human resources as he sought to raise
workplace issues. See Moses , 4 FMSHRC at 1478-79.

As the Commission wrote in Moses regarding
the “coercive interrogation and harassment over the exercise of protected
rights”:

A natural result of such practices may be
to instill in the minds of employees fear of reprisal or discrimination. Such
actions may not only chill the exercise of protected rights by the directly
affected miners, but may also cause other miners, who wish to avoid
similar treatment, to refrain from asserting their rights. This result is at
odds with the goal of encouraging miner participation in enforcement of the
Mine Act.

Id .

According to the Judge’s Order, Mallery
properly alleged that he engaged in various protected activities, which was
alone sufficient for the case to proceed on an interference claim. That is not
to say that Mallery has proven that interference has occurred, only that he could
prove a violation under section 105(c) even in the face of a well-reasoned
finding that an adverse action did not take place.

Taking his allegations as true at this
early stage, once more, Mallery adequately pled interference with his statutory
rights. Whether these allegations occurred as pled is a question necessarily
left for discovery and a hearing. See Sec’y of Labor on behalf of Gray v.
North Star Mining, Inc. , 27 FMSHRC 1, 8 (Jan. 2005) (whether a
management official’s conduct constitutes interference proscribed by the Act “must
be determined by what is said and done, and by the circumstances surrounding
the words and actions”) (quoting  Moses , 4 FMSHRC at 1479
n.8). 

In conclusion, Mallery pled a prima
facie case as required by law. While El Segundo was free to rebut the prima
facie case, the Judge was not entitled to credit the operator’s alleged
facts as true in dismissing Mallery’s case for the failure to state a claim. As
such, we find that the Judge’s dismissal of Mallery’s complaint was premature. Mallery
must be given an opportunity to prove his case through discovery and a hearing,
to engage in settlement discussions, and “to avail himself of all the other
rights afforded under our Procedural Rules.” Ribble , 22 FMSHRC at 595. If
the parties agree on all factual matters, they may also submit summary judgment
motions.

B.     
The
Judge’s Show Cause Orders

Our finding that Mallery pled a prima
facie case at the outset is sufficient to remand the case for further
proceedings. However, we separately address the two Orders to Show Cause the
Judge issued because, while the Judge’s orders were not contrary to law per se,
the Judge misinterpreted Commission Procedural Rule 42 in issuing them.

It is undisputed that Commission Judges
have the authority to issue orders to show cause under Commission Procedural
Rule 66, even without a dispositive motion filed by the parties. [11]
29 C.F.R. § 2700.66. The Judge cited Rule 42, which requires that a discrimination
complaint “shall include a short and plain statement of the facts, setting
forth the alleged discharge, discrimination or interference.” 29 C.F.R. §
2700.42 (cited in First OSC).

The Commission warned in Perry that
pro se cases “demonstrate[] the difficulty of establishing all the
relevant facts strictly on the basis of a pro se complainant’s pleadings.” 18
FMSHRC at 1921. Here, we encounter just such a case. The Judge ordered Mallery
twice to provide a “clear and concise statement” of his case, finding that his
filings were “confusing.” First OSC at 2; Second OSC at 1, 2. However, no
requirement exists under Rule 42 or section 105(c) of the Act that a miner
provide a “clear and concise statement” of their discrimination claim.

The requirement in Rule 42 is a “minimal”
standard that does not require Mallery to “substantiate a prima facie
case.” Hopkins Cty. Coal, LLC v. Acosta , 875 F.3d 279, 290 (6th Cir.
2017). The Judge did exactly that by demanding that Mallery conform to a “clear
and concise statement[.]” First OSC at 2; Second OSC at 2. The Commission has
also stated time and again that the party pleading discrimination carries a
“minimal” burden in pleading. E.g. , Ribble , 22 FMSHRC at 595; Perry,
18 FMSHRC at 1921. As such, nothing in the Act or Rule 42 prevented Mallery
from providing more than what was required or arranging his pleading in a
particular manner.

Mallery’s filings were undoubtedly
voluminous and muddled at times. However, it is the duty of the factfinder to
discern, especially when a pro se litigant is involved, whether a
discrimination case was properly pled. And here it was. As such, the Judge
erred in issuing the two Orders to Show Cause in this instance.

C.      The July 5, 2024
Filings

Because we remand this case for further
proceedings, we find that the question of whether Mallery’s July 5, 2024,
filings should be part of the record on appeal is moot. The parties may submit
additional evidence in those proceedings if appropriate.

III.             

Conclusion

For all the foregoing reasons, we vacate
the Judge's dismissal order and remand this matter for further evidentiary
proceedings and, if necessary, a full hearing consistent with this order.

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/
Moshe Z. Marvit

Moshe Z. Marvit,
Commissioner

Chair
Jordan, dissenting:

I would affirm the Judge’s order
dismissing the complaint as neither the complaint nor the supplemental filings
articulate a cognizable claim that El Segundo Coal Company violated section
105(c) of the Mine Act, 30 U.S.C. § 815(c), in retaliation for Wesley Mallery’s
asserted safety-related protected activities.

A cognizable claim of unlawful
discrimination in violation of section 105(c) requires that the complainant
articulate: (1) that he engaged in protected activity, and (2) that he suffered
an adverse action that was, at least, partially motivated by the protected
activity. [12]
Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co ., 2 FMSHRC
2786 (Oct. 1980), rev’d on other grounds , 663 F.2d 1211 (3rd Cir. 1981);
Sec’y of Labor on behalf of Robinette v. United Castle Co ., 3 FMSHRC 803
(Apr. 1981).

As the Judge found, Mallery sufficiently
alleged that he engaged in various activities protected by the Mine Act,
including raising safety complaints with his supervisors on January 5, 2023,
and complaining about safety again at a January 12, 2023, meeting with the mine
manager and representatives of the mine’s human resources department. El
Segundo placed Mallery on administrative leave following the January 12th
meeting. [13]

In his complaint and supplemental filings
Mallery alleges that his decision to apply for and receive short-term
disability benefits and later long-term disability benefits has caused a
reduction in his pay and benefits. [14]
The Judge concluded that his disability status was not an adverse action. Accordingly,
the Judge granted El Segundo’s motion to dismiss the complaint.

A.     The Judge did not
err in dismissing the complaint. 

An adverse action is “ an action of
commission or omission by the operator subjecting the affected miner to
discipline or a detriment in his employment relationship.” Sec’y of Labor on
behalf of Pendley v. Highland Mining Co. , 34 FMSHRC 1919, 1930 (Aug. 2012)
(quoting Sec’y of Labor on behalf of Pendley v. Fed. Mine Safety &
Health Rev. Comm’n , 601 F.3d 417, 428 (6th Cir. 2010)) (emphasis added). An
adverse action must be “materially adverse to a reasonable employee,” in that
“the employer’s actions must be harmful to the point that they could well
dissuade a reasonable worker” from engaging in protected activity. Pendley ,
34 FMSHRC at 1931-32, citing Burlington Northern & Sante Fe Railway Co.
v. White , 548 U.S. 53, 57 (2006).

I agree with the Judge’s finding that the
complaint lacked an adverse action. The miner’s act of voluntarily applying for
and receiving disability benefits is not an act or omission taken by the
operator . The fact that Mallery may have received a lesser salary and
benefits under either short or long-term disability does not change the
analysis here.

Notably, Mallery does not allege that the
operator unlawfully coerced him into filing for disability or otherwise
unlawfully influenced the process. [15]
 In fact, according to El Segundo, Mallery is currently employed by the
operator and eligible to return to work upon appropriate medical clearance. Mallery,
however, is not seeking reinstatement. Statement of Relief (Feb. 14, 2024) (“I
do not wish to return to work for [the mine operator].”).

B.      Mallery’s
complaint does not allege that he was unlawfully placed on

administrative leave.

The majority finds that the Judge erred in
failing to consider that prior to Mallery’s decision to apply for disability,
El Segundo placed him on paid administrative leave pending a fitness-for-duty
evaluation. At least for the purpose of pleading a prima facie case, my
colleagues find that the administrative leave which preceded Mallery’s receipt
of disability benefits was an adverse action and the Judge erred in omitting it
from her analysis. I disagree. 

First and foremost, Mallery does not claim
that El Segundo retaliated against him by placing him on administrative leave. Furthermore,
it is at least an open question as to whether “administrative leave” requires
an allegation of some corresponding adverse impact to constitute as an adverse
action. See Hornsby v. Watt , No. 17-5001, 2017 WL 11687516, at *1 (D.C.
Cir. Nov. 14, 2017) (“leaving open” the question of whether “being placed on
administrative leave could constitute the type of adverse action that would
support a retaliation claim”); cf. Richardson v. Petasis , 160 F.Supp.3d
88, 118 (D.D.C. 2015) (in which the District Court concluded that 39 days of
paid administrative leave was an adverse action because the plaintiff pled an
objectively tangible harm resulting from the duration and conditions of the
suspension).  

Second, Mallery does not claim that he
suffered any adverse impact as a result of his administrative leave. As the
Fifth Circuit has stated:

[D]epending on the circumstances,
[administrative leave] may range from a completely benign measure to one that
stigmatizes an employee and causes significant emotional distress. Forced leave
may even affect an employee's opportunities for future advancement. But “the
significance of any given act of retaliation will often depend upon the
particular circumstances. Context matters.” Burlington Northern and Santa Fe
Ry. Co. v. White , 548 U.S. 53, 69, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345
(2006).

Stewart
v. Miss. Transp. Comm’n , 586 F.3d 321, 332 (5th Cir. 2009).

In Stewart v. Mississippi
Transportation Commission, the Court found that under the circumstances of
the case the plaintiff’s administrative leave was not an adverse action,
relying on Stewart’s receipt of full salary without forced use of accumulated
leave time and her reinstatement with full-pay three weeks later. Furthermore,
the plaintiff did not suggest that her administrative leave created a negative
stigma. Id .

In
the case before us, Mallery did not allege that his administrative leave was an
adverse action. Nor does he allege that he suffered any harm during the
approximately one-month period he was on administrative leave, prior to his
receipt of disability benefits. [16]
Accordingly, for these reasons, I would find that the Judge did not err in
excluding Mallery’s administrative leave from her consideration of whether an
adverse action was alleged in the complaint. [17]

/s/
Mary Lu Jordan

Mary Lu Jordan, Chair

Distribution:

Wesley Wayne Mallery

P.O. Box 666

7120 Zuni Canyon Rd.

Grants, NM 87020

[email protected]

Christopher G. Peterson, Esq.

Fisher & Phillips, LLP

1125 17 th Street Suite 2400

Denver, CO 80202

[email protected]

Thomas
A. Paige, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

200
Constitution Avenue NW, Suite N4420-N4430

Washington,
DC 20210

[email protected]

Emily
O. Roberts, Esq.

Division
of Mine Safety and Health

Office
of the Solicitor

200
Constitution Avenue NW Suite N4420 – N4430

Washington,
DC 20210

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal
Mine Safety & Health Review Commission,

1331
Pennsylvania Avenue, NW, Suite 520 N,

Washington,
DC 20004-1710               

[email protected]

Administrative
Law Judge Jacqueline Bulluck,

Office
of the Chief Administrative Law Judge

Federal
Mine Safety and Health Review Commission,

1331
Pennsylvania Avenue, NW, Suite 520 N,

Washington,
DC 20004-1710

[email protected]

[1] That Mallery made
a cognizable claim is not the same as proving that he suffered discrimination. There
are, strictly speaking, no facts in this case at this time and any
determination on the merits would be premature. Whether Mallery suffered
discrimination can only be determined after a record is created.

[2] Section 105(c)(1)
of the Mine Act states in pertinent part that:

No person shall discharge or
in any manner discriminate against   . . . any miner . . . because such miner .
. . filed or made a complaint under or related to this Act, including a
complaint notifying the operator or the operator’s agent . . . of an alleged
danger or safety or health violation in a coal or other mine, . . . or because
such miner . . . has instituted or caused to be instituted any proceeding under
or related to this Act . . . .

30 U.S.C. § 815(c)(1).

[3] Section 105(c)(3) provides a
miner with the right to file an action on his or her own behalf before the
Commission. 30 U.S.C. § 815(c)(3) states:

Within 90
days of the receipt of a complaint filed under paragraph (2), the Secretary
shall notify, in writing, the miner . . . of his determination whether a
violation has occurred. If the Secretary, upon investigation, determines that
the provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary’s determination, to
file an action in his own behalf before the Commission, charging discrimination
or interference in violation of paragraph (1).

[4] The operator
alleges that it was Mallery who turned the conversation towards his family,
Resp.’s Brief at 3, and the Judge inexplicably does not accept Mallery’s
allegations as true at this stage of the proceedings. The ALJ does not credit,
for purposes of the dispositive order, that he attempted multiple times to
discuss safety issues and instead she simply uses the passive voice. ALJ Order
at 3. It is material to Mallery’s allegations if the operator’s representatives
shifted the conversation to non-work matters that would upset Mallery, thereby
possibly provoking him. By using the passive voice, the Judge is not accepting
the non-moving party’s allegations as true at this stage of the proceedings. This
is simply one example of the Judge not applying the appropriate standard and
may be relevant if the Complainant argues that he was provoked in this meeting.

[5] Commission
Procedural Rule 42 requires a discrimination complaint to “include a short and
plain statement of the facts, setting forth the alleged discharge,
discrimination or interference, and a statement of the relief requested.” 29
C.F.R. § 2700.42.

[6] See 29
C.F.R. § 2700.1(b) (“On any procedural question not regulated by the Act, these
Procedural Rules, or the Administrative Procedure Act . . . , the Commission
and its Judges shall be guided so far as practicable by the Federal Rules of
Civil Procedure . . . “).

[7] We note that the
Judge cited no authority for the proposition that, as a matter of law, a
miner’s placement on short-term disability does not constitute an employer
generated adverse action. See our discussion infra at FNs 8 & 10, regarding
what constitutes an adverse action.

[8] While we do not
reach the merits of Mallery’s case, we note that Commission precedent does not
require an adverse action to result in direct or permanent pecuniary loss, as
cases involving transfers and assignments to less desirable tasks demonstrate. See
Pendley , 34 FMSHRC at 1930. As to the voluntariness of applying for
short-term disability after the paid administrative leave, Mallery stated on
appeal he did not feel he had a choice but to accept management’s
recommendation. M.’s Brief at 2.

[9] In addition, we
note that it is not at all clear that the assessment to place Mallery on
disability was independent or that El Segundo was not motivated by retaliatory
animus. El Segundo stated that it played no role in the doctor’s determination
that Mallery should take leave, but the doctor’s report indicates that El
Segundo’s human resources representatives Sparks and Jackson, and mine manager
Puls, played a role in the doctor’s evaluation as “collateral informants.” The
exact nature of their role in the doctor’s determination is something that
would have to be determined at hearing.

[10]
See Sec’y
on behalf of Jenkins v. Hecla-Day Mines Corp. , 6 FMSHRC 1842, 1848 n. 2 (Aug.
1984) (“Determinations as to whether an adverse action was taken must be made
on a case-by-case basis.”).

[11] Though the Judge
did not cite Rule 66, in essence she invoked this rule governing the summary
disposition of proceedings and the procedure for judges to issue orders to show
cause. The Commission has noted that “Rule 66(a) generally requires a Judge to
issue an order to show cause before dismissing a case as a result of a party's
procedural errors.” Armstrong Coal Co., Inc. , 36 FMSHRC 1947, 1948 n. 2
(Aug. 2014); also id. at 1949 n.3 (noting that the “rule does not limit
in any way the Judge’s discretion to excuse a party’s procedural errors”).

[12]
Commission
Procedural Rule 42, 29 C.F.R. § 2700.42, requires that a miner file “a short
and plain statements of facts, setting forth the alleged discharge,
discrimination or interference, and a statement of the relief requested.”

[13] According to El
Segundo, Mallery exhibited an emotionally distraught demeanor at the January
12, 2023, meeting, and as a result management placed Mallery on administrative
leave pending a fitness-for-duty evaluation. The evaluation occurred on
February 3, 2023. Mallery then applied for disability benefits and began
receiving the benefits on or around February 14, 2023.

[14]
Mallery had
previously filed a complaint with the Mine Safety and Health Administration,
which investigated his complaint and determined that there was no “sufficient
evidence to establish” that a violation of section 105(c) of the Mine Act had
occurred. Letter (Aug. 3, 2023). Mallery thereafter filed a pro se complaint
on his own behalf with the Commission pursuant to section 105(c)(3) of the Mine
Act, 30 U.S.C. § 815(c)(3).

[15]
  In his petition for discretionary review
to the Commission, Mallery states he “voluntarily agreed to a fit for duty
assessment . . . as well as voluntarily appl[ied] for short-and long-term
disability benefits under Peabody’s disability plan” but alleges there was “in
fact an adverse action” because “I strongly feel I had no other options.” PDR
at 1.  

My colleagues interpret Mallery’s
statement that he felt he “had no other options” as a possible allegation that
El Segundo took some action to remove Mallery from his regular duties in
retaliation for his exercise of protected activities. Slip op. at 5-6. After
review of the complaint and responses to the orders to show cause, I find that
Mallery made no such allegation to the Judge. The first time this ambiguous
statement appears in the record is in Mallery’s petition to the Commission. See
Order of Dismissal at 4 (June 12, 2024) (finding that there is no “indication
that Mallery was coerced into applying for the contractual benefit.”).  

[16]
My
colleagues claim that affirming the Judge’s decision would amount to a finding
that administrative leave is not an adverse action. Slip op. at 7. I make no
such conclusion; my decision is limited to the Judge’s dismissal order as well
as the allegations and relief sought in the miner’s filings.

[17]
I further
conclude that the Judge did not err in issuing the Orders to Show Cause.