Secretary of Labor obo Tracy A. Lewis v. Tip Top Materials, LLC

Plain-English summary

Tracy Lewis, a foreman at Tip Top Materials, participated in an MSHA investigation concerning his son's alleged firing for making a safety complaint. The Secretary alleged that Lewis was then fired under circumstances suggesting a connection to that protected activity. Tip Top did not timely request a hearing on the temporary-reinstatement application. Judge Michael G. Young found the complaint was not frivolously brought and ordered Lewis immediately returned to his former job, pay, overtime, and benefits while the discrimination case continued.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)-(2); 30 C.F.R. § 2700.45(c), (e)(4)
• Outcome: Tracy Lewis was ordered immediately temporarily reinstated to his former foreman position and compensation.
• Key point: Participation in an MSHA discrimination investigation followed closely by termination supported interim reinstatement at the nonfrivolous stage.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Ave.
NW, Suite 520N

TELEPHONE: (202)434-9958
/ FAX: (202)434-9949

SECRETARY OF LABOR

MINE SAFETY AND HEALTH     

ADMINISTRATION (MSHA),

on behalf of TRACY A. LEWIS,

Complainant,

v.

TIP TOP MATERIALS, LLC,

Respondent

TEMPORARY REINSTATEMENT

Docket No. VA 2021-0008-D

MSHA Case No.: NORT-CD 2021-03

Mine: Tip Top Materials, LLC

Mine ID: 44-07399

ORDER GRANTING TEMPORARY REINSTATEMENT

OF TRACY A. LEWIS

Before:            Judge Young

Pursuant
to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”),
30 U.S.C. § 801, et. seq. , and 29 C.F.R. § 2700.45, the Secretary of
Labor (“Secretary”) on February 26, 2021, filed an Application for Temporary
Reinstatement of miner Tracy A. Lewis (“Complainant”) to his former position
with Tip Top Materials, LLC (“Respondent”) at Respondent’s mine pending final
hearing and disposition of the case.

According
to Commission Rule 45, a request for hearing must be filed within 10 days
following receipt of the Secretary’s application for temporary reinstatement.
29 C.F.R. § 2700.45(c). The Secretary’s certificate of service states that
the Application for Temporary Reinstatement of Complainant was served on
Respondent by electronic mail on February 26. The Respondent has not filed a
timely Request for Hearing.

The
Secretary has found that the Complaint was not frivolously brought and, as
explained below, has provided evidence supporting that determination. Therefore,
consistent with Section 105(c)(2) of the Act, the temporary reinstatement of Tracy
A. Lewis is granted.

Law
and Regulations

Section
105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act and provides that a miner may file a
complaint with the Secretary alleging discrimination. 30 U.S.C. § 815(c)(1-2).
The plain language of the Act also provides that “if the Secretary finds that
the complaint was not frivolously brought, the Commission, on an expedited
basis upon application by the Secretary, shall order the immediate
reinstatement of the miner pending final order on the Complaint.” 30 U.S.C. § 815(c)(2)
(emphasis added).

The
Commission’s regulations control the temporary reinstatement procedures. Once
an application for temporary reinstatement is served on the person against whom
relief is sought,

that
person shall notify the Chief Administrative Law Judge or his designee within
10 calendar days whether a hearing on the application is requested. 29 C.F.R. § 2700.45(c).
If no hearing is requested, the Judge assigned to the matter shall review
immediately the Secretary’s application and, if based on the contents thereof,
the Judge determines that the miner’s complaint was not frivolously brought, [1]
shall issue immediately a written order of temporary reinstatement. Id.

If
there is a hearing, t he judge must determine
whether the complaint of the miner “is supported by substantial evidence and is
consistent with applicable law.” [2]
Sec = y
of Labor on behalf of Peters v. Thunder Basin Coal Co. , 15 FMSHRC 2425,
2426 (Dec. 1993). In the instant case, however, the
Respondent has not timely filed a request for hearing. Thus, Commission
Procedural Rule 45(c) compels me to review the Secretary’s determination that
the Complaint in this matter was not frivolously brought. See 29 C.F.R.
§ 2700.45(c).

Disposition

The
Secretary has provided the evidentiary basis for his determination that the
complaint in this matter has not been frivolously brought. The Act requires the
Secretary to investigate the miner’s complaint of discrimination. 30 U.S.C. § 815(c)(2).
The Secretary’s application includes the complaint filed by Complainant
(Exhibit “A” to the Application) and the Declaration of Special Investigator Michael
R. Hughes indicating that this was done (Exhibit “B.”)

Mr.
Hughes’ Declaration provides facts in support of the Secretary’s conclusion
that the complaint was not frivolously brought, including:

1. Complainant was a “miner” employed as a
   foreman at a “mine” operated by a “person,” as defined by the Act;

2. Complainant participated in an MSHA
   investigation into a discrimination complaint arising from the firing of his
   son, Matthew Lewis, allegedly for filing a safety complaint with MSHA;

3. Complainant had been ordered by the
   mine superintendent to fire his son for making a safety-related complaint to
   MSHA, and that he carried out the order;

4. Complainant was subsequently terminated from his employment
   under circumstances that Mr. Hughes found to provide “reasonable cause to
   believe that Tracy Lewis was discharged because he engaged in protected
   activities.”

Dec. of Michael R. Hughes, Feb. 4, 2021 (Ex. “B” to App.
For Temp. Reinst.)

The
Complaint was timely filed, within a week after Complainant was terminated. It
includes additional allegations relevant to MSHA’s decision. Complainant stated
that he was told by other employees at the mine that Complainant would be “gone
in two weeks,” and that he was told he was fired for approaching too quickly in
his vehicle upon learning of a confrontation between his son and the mine
superintendent and other employees.

The
facts provided in support of the agency’s decision, if true, would establish
jurisdiction, a timely complaint of discrimination, and that Complainant
engaged in protected activity and suffered an adverse action close in time to
the protected activity, under circumstances that provide a reasonable cause to
believe that there was a causal nexus between his participation in an MSHA
investigation and his termination.

Findings
and Conclusion

At
this stage, the facts alleged by the Secretary are undisputed. Therefore, I
find that the Complaint for discrimination has not been frivolously brought,
and that Complainant Tracy A. Lewis is entitled to Temporary Reinstatement
under the provisions of Section 105(c) of the Act.

ORDER

It is hereby ORDERED that Tracy A. Lewis be immediately
TEMPORARILY REINSTATED to his former job as a foreman at the Tip Top
Materials mine at his former rate of pay, overtime, and all benefits he was
receiving at the time of his termination.

This Order SHALL remain in effect until such time as
there is a final determination in this matter by hearing and decision, approval
of settlement, or other order of this court or the Commission.

I
retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4).
The Secretary SHALL provide a report on the status of the underlying
discrimination complaint as soon as possible . Counsel for the Secretary SHALL
also immediately notify my office of any settlement or of any determination
that Tip Top Materials, LLC, did not violate Section
105(c) of the Act.

/s/
Michael G. Young

Michael
G. Young

Administrative
Law Judge

Distribution (Via Certified Mail & E-mail)

LaShanta Harris, Esq., U.S. Dept. of Labor, Office of the
Regional Solicitor, 201 12 Street South, Suite #401, Arlington, VA 22202, [email protected]

Christopher Dale, Superintendent, Tip Top Materials, LLC,
1704 U.S. Highway 19, Lebanon, VA 24266, [email protected]

Wes Addington, Esq., Appalachian Citizens’ Law Center, 317
Main Street, Whitesburg, KY 41858, [email protected]

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522, [email protected]

[1]
The Act’s legislative history suggests that a
complaint is not frivolously brought if it A appears
to have merit. @ S. Rep. No. 181, 95th Cong.,
1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977 , at 624-25 (1978). In
addition to Congress = A appears
to have merit @ standard, the Commission and
the courts have also equated A not frivolously brought” to A reasonable cause to believe” and A not insubstantial.” Sec'y of Labor on behalf of Price v.
Jim Walter Res., Inc. , 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd , 920
F.2d 738, 747 & n.9 (11th Cir. 1990).

[2] A Substantial evidence @ means A such
relevant evidence as a reliable mind might accept as adequate to support [the
judge = s] conclusion. @ Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. V. NLRB , 305 U.S. 197, 229 (1938)).