Secretary of Labor obo Miguel Pugmire v. Nevada Gold Mines, LLC

Plain-English summary

Miguel Pugmire alleged that Nevada Gold Mines terminated him after he removed four headings from service because of low airflow readings. Discovery produced evidence that he had also raised ventilation concerns at an earlier meeting attended by the manager who later terminated him. The Secretary asked to add that alleged protected activity to the discrimination complaint. Judge Richard W. Manning found that the amendment added context rather than a new discrimination count, provided adequate notice, and would not prejudice the operator at the early stage of the case. He granted leave to file the amended complaint without deciding whether the added allegation was protected activity.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. Part 2700
• Outcome: The Secretary was granted leave to file a first amended discrimination complaint.
• Key point: An additional ventilation complaint could be added when it supplied relevant context, discovery was still open, and the operator had adequate notice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577/FAX
303-844-5268

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA), on

behalf
of MIGUEL PUGMIRE,

Complainant,

v.

NEVADA
GOLD MINES, LLC,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. WEST 2021-0148-DM

MSHA
CASE NO: WE-MD-2021-03

Mine:
Turquoise Ridge

Mine
ID: 26-02286

ORDER GRANTING THE
SECRETARY’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

This proceeding
was brought by the Secretary of Labor on behalf of Miguel Pugmire against
Nevada Gold Mines (“NGM”) pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801, et seq . (“Mine Act”) and
29 C.F.R.§ 2700.40 et seq . On August 19, 2021, the Secretary filed a Motion
for Leave to File First Amended Complaint (“Mot.”). Respondent filed an
opposition to the Secretary’s motion (“Opp.”). For reasons that follow, I GRANT
the Secretary’s motion.  

The complaint in this matter, as
originally filed, contended that Pugmire, an underground mine engineer, was
summarily terminated from his position after removing four active headings from
service due to low airflow readings on his monthly secondary air ventilation
survey. [1]
The Secretary asserts that, during discovery, Respondent produced a document
showing that Pugmire engaged in additional protected activity. As a result, the
Secretary now seeks leave to amend the complaint to include the additional
protected activity. Specifically, the Secretary asks that the complaint be
amended to allege that “around early August 2020, Mr. Pugmire also raised
various concerns about the Mine’s ventilation at a meeting attended by Benjamin
Gunn, the manager who eventually terminated Mr. Pugmire’s employment.” Mot. 3. The
Secretary avers that the proposed amendment “will not significantly affect the
scope of the case or unduly prejudice Respondent.” Mot. 3.

NGM, in its opposition, argues that the
motion should be denied because the alleged additional protected activity was
known to the Secretary at the time the discrimination complaint was originally filed
and, further, that the claims made in the motion are “duplicative” and the
motion to amend is “futile.” Opp. 1-2, 5-6.

The Commission's procedural rules do not address
amendments to pleadings. Nevertheless, the Commission, using the Federal Rules
of Civil Procedure as guidance, has taken the view that leave to amend
discrimination complaints should be “freely granted” in the interest of justice.
Sec’y of Labor obo Hannah et al. v. Consolidation Coal Co. , 20 FMSHRC
1293, 1303 n. 10 (Dec. 1998); Fed. R. Civ. P. 15); Cyprus Empire Corp. ,
12 FMSHRC 911,916 (May 1990); see also Eminence Cap., LLC v. Aspeon, Inc. ,
316 F.3d 1048, 1051 (9th Cir. 2003) (9 th Circuit stating that the
policy of granting leave to amend should be “applied with extreme liberality.”).
This is especially true when such amendments “do not prejudice a party in
preparing its defenses.” Brannon v. Panther Mining, LLC , 31 FMSHRC 1277,
1279 (Sept. 2009) (ALJ).

Here, the Secretary seeks to amend the complaint
to include the additional alleged protected activity of Pugmire raising
ventilation concerns at an August 2020 meeting attended by the individual who
ultimately terminated him. I find that the proposed amendment does not amount
to a new count of discrimination, i.e., it does not allege a new reason for the
termination, but it provides potentially important context for the complaint by
alleging that Pugmire raised substantially similar concerns in August. By
amending the complaint, the Secretary properly seeks to conform the pleadings with
evidence that will be adduced at hearing. See Faith Coal Co. , 19 FMSHRC
1357, 1361-62 (Aug. 1997).

Administrative pleadings are to be broadly
construed and easily amended if adequate notice is provided and there is no
prejudice to the opposing party. Respondent seemingly argues that the Secretary
should be barred from amending the complaint to include information that was
known at the time, but not included in the complaint as originally filed. I
disagree. The Secretary only learned of the details of the meeting after
Respondent provided its responses to written discovery. Moreover, I find that the
motion provides ample notice of the proposed amendment. As the Secretary
correctly points out, although written discovery has commenced, “there is
currently no deadline set for written discovery, depositions have not been
scheduled, and there is currently no hearing date.” Mot. 6. Further, to avoid
additional discovery and possibly resolve this matter without the need for a
hearing, the parties recently agreed to participate in mediation facilitated by
court appointed settlement counsel. Given the early stage of this proceeding, I
find that Respondent has adequate notice of the proposed amendment. [2]

While Respondent does not allege that it
will suffer prejudice, it asserts that the motion should nevertheless be denied
because the claims made in the Secretary’s motion are “duplicative” and, in
turn, “futile.” I disagree. Even if the concerns raised during the August 2020
meeting are substantially like those raised when Pugmire removed the headings
from service, the events took place on two separate occasions. Again, as
mentioned above, I find that the proposed amendment provides potentially important
context for the claim. As a result, I find that the two alleged protected
activities are not duplicative and, in turn, that the proposed amendment is not
futile for purposes of this discrimination complaint.

For the reasons set forth above, the
Secretary’s Motion for Leave to File First Amended Complaint is GRANTED . [3]

/s/ Richard W. Manning

Richard W. Manning

Administrative Law
Judge

Until
further notice, case issuances of the Federal Mine Safety and Health Review
Commission (FMSHRC), including notices, decisions, and orders, will be sent
only through electronic mail. This includes notices, decisions, and orders
described in 29 CFR 2700.4(b)(1), 2700.24(f)(1), 2700.45(e)(3), 2700.54, and
2700.66(a). Further, FMSHRC will not be monitoring incoming physical mail or
facsimile described in Procedural Rule 2700.5(c)(2). If possible, all filings
should be e-filed as described in 29 CFR 2700(c)(1).

Distribution:

Laura
E. Beverage, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202
( [email protected] )

Natasha
Magness, Office of the Solicitor, U.S. Department of Labor, 300 Fifth Ave.,
Suite 1120, Seattle, WA 98104 ( [email protected] )

Miguel
Pugmire ( [email protected] )

[1] The complaint, as
originally filed, alleged that Pugmire removed four active headings from
service on September 2, 2020. The following day, September 3, 2020, Pugmire
requested time off due to a family emergency. The complaint further alleged
that the request was initially approved and Pugmire did not attend work that
day, but that NGM later repealed approval and labeled Pugmire’s absence as “unexcused.”
On September 9, 2020, NGM suspended Pugmire and ultimately terminated his
employment on September 11, 2020. Among other defenses in its answer to the
original complaint, Respondent states that Pugmire failed to take all the
required steps when he first discovered the insufficient airflow such as
barricading the affected areas to keep miners out.

[2] In Brannon v.
Panther Mining, LLC , 31 FMSHRC 1277, 1279 (Sept. 2009) (ALJ) Former Commission
Judge Barbour granted a motion to amend a discrimination complaint to include
additional protected activity even though the proceeding was much further
along, i.e., a hearing date had been set and depositions had already occurred. In
granting the motion he stated that “the company may feel compelled to amend its
answer, conduct additional discovery, amend its pending motion and supplement
its brief in support of the motion, the expenses inherent in such activities
are the necessary consequences of litigation, costs the company (and any
litigant) must be prepared to bear.” Id .

[3] By granting the
motion, the court is not passing judgement on whether the additional
allegations amount to protected activity. Complainant bears the burden of proof
and must present credible evidence on this point at hearing.