Secretary of Labor obo Jason Ebert v. The Marshall County Coal Company

Plain-English summary

Jason Ebert alleged that Marshall County Coal forced him to resign two days after hiring him because management learned that his brother was a vocal safety advocate who had filed Mine Act discrimination complaints. The company initially requested a hearing on temporary reinstatement but withdrew that request after the hearing began. Judge William B. Moran reviewed the Secretary's application under the nonfrivolous standard and found a sufficient connection between the brother's protected activity and the adverse action alleged against Ebert. The Judge noted persuasive prior decisions recognizing that section 105(c) can protect a miner from retaliation based on a relative's safety activity. He ordered Ebert immediately reinstated to his former position with the same pay and benefits until the discrimination matter ended.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Jason Ebert was ordered temporarily reinstated to his former position with the same pay and benefits.
• Key point: A claim that an operator forced a newly hired miner to resign because of a relative's protected safety activity was not frivolous and supported interim reinstatement.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE N. W., SUITE 520N

WASHINGTON, D.C.
20004-1710

Telephone No.: 202-434-9933

Telecopier No.:
202-434-9949

December 19,
2019

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH ADMINISTRATION (MSHA), on behalf of JASON EBERT,

Applicant

v.

THE
MARSHALL COUNTY COAL COMPANY,

Respondent

TEMPORARY
REINSTATEMENT PROCEEDING

Docket
No. WEVA 2020-0133-DM

MSHA
Case No. MORG-CD-2020-04

Mine:
Marshall County Mine

Mine
ID: 46-01437           

ORDER GRANTING
TEMPORARY REINSTATEMENT

Appearances:
Ryan Atkinson, U.S. Department of Labor, Office of the Regional Solicitor,

Philadelphia, Pennsylvania
for the Petitioner

Philip K. Kontul, Ogletree, Deakins,
Nash, Smoak & Stewart, P.C., Pittsburgh, Pennsylvania, for the Respondent

Before:
Judge William B. Moran

This matter
concerns the Secretary of Labor’s (“Secretary”) Application for Temporary Reinstatement
of miner Jason Ebert to his position at The Marshall County Coal Company
(“Respondent”), filed pursuant to the Secretary’s authority under section
105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”). Application
for Temporary Reinstatement, December 6, 2019, (“Application”). On December 11,
2019, Respondent, pursuant to its right under Commission Procedural Rule 45(c),
29 C.F.R. § 2700.45(c), requested a hearing on the Secretary’s Application. A
hearing convened on December 17, 2019 in Wheeling, West Virginia. The only issue
considered at the hearing is whether the Secretary’s application was
frivolously brought.

For
the reasons described herein, the Court, finding the Application not
frivolously brought, GRANTS the Secretary’s Application for temporary
reinstatement of Jason Ebert, effective as of the date of this Order.

Statement
of Facts

As
noted, the Respondent requested a hearing on the Secretary’s Application for
temporary reinstatement. The Secretary called for its first witness Jason B.
Adkins, who is the Supervisor of Human Resources for the Respondent mine. Tr.

26. Not long into Mr. Adkins’ testimony an evidentiary issue arose. The Court
    directed that a recess occur for the purpose of having counsel for the
    Secretary and for the Respondent to confer regarding that issue. The Court excused
    itself, retiring to chambers while the parties’ counsels privately conferred.

Subsequently,
the parties’ counsels informed the Court that they had completed their conferencing
and the proceeding then resumed on the record. At that point, counsel for the
Respondent stated that it was withdrawing its request for a hearing. Tr. 68. The
Court responded that, pursuant to Respondent’s withdrawal of the hearing
request, it would treat the matter as effectively operating under 29 C.F.R. § 2700.45(c),
titled “Request for hearing.”

That
provision states, in relevant part, “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, he shall issue immediately a written
order of temporary reinstatement.” The parties agreed to the Court’s
construction of the applicability of the subsection, effectively treating the
matter as if no hearing had been requested.  Tr. 69.

Principles
of Law

In order for a miner to receive an
order granting temporary reinstatement, the Secretary must prove that the
miner’s complaint was not frivolously brought.  30 U.S.C. § 815(c) (“[I]f the
Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on the
complaint.” In drafting section 105(c) of the Mine Act, Congress indicated that
a complaint is “not frivolously brought” when it “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 Federal Mine Safety and Health Act of
1977, at 6240625 (1978). As part of a temporary reinstatement proceeding, the
Commission has recognized that “[i]t [is] not the judge’s duty, nor is it the
Commission’s, to resolve the conflict in testimony at this preliminary state of
the proceedings.” Sec’y of Labor on behalf of Deck v. FTS Int’l Proppants ,
34 FMSHRC 2388, 2390 (Sept. 2012).

While the Secretary is not
obligated to make out a prima facie case of discrimination during a temporary
reinstatement proceeding, evaluating the Application with regard to the
elements of a discrimination claim is a useful method to assess whether an
application is not frivolously brought. There are two elements to an act of
discrimination: first, that the employee engaged in protected activity, and
second, that the adverse action complained of was motivated in part by that
activity. Turner v. Nat’l Cement Co. of Cal. , 33 FMSHRC 1059, 1064 (May
2011); Sec’y on behalf of Baier v. Durango Gravel , 21 FMSHRC 953, 957
(Sept. 1999); Sec’y on behalf of Robinette v. United Castle Coal Co. , 3
FMSHRC 803, 817-18 (Apr. 1981).

The
determination of whether an application is frivolously brought is not limited
to the four corners of the discrimination complaint. The statutory scheme
provides to miners an administrative investigation and evaluation of an
allegation of discrimination.   Hatfield v. Colquest Energy , 13 FMSHRC
544 (Apr. 1991). In Hopkins Cty. Coal, LLC , 38 FMSHRC 1317 (June
2016), the Commission expounded upon its Hatfield decision, stating that
“the miner’s complaint establishes the contours for subsequent action.” Hopkins ,
38 FMSHRC at 1340. It noted in Hopkins that the complainant’s
original complaint was general in nature and contained no indication of the new
matters apparently alleged for the first time in the amended complaint.” Id.
at 1341 (citing Hatfield , 13 FMSHRC at 546). The Commission
held that the initial complaint formed the basis of MSHA’s investigation. Id .
The key element in these matters is that the determination of the scope of the
complaint is not constrained entirely by the four corners of the miner’s
complaint, but is also informed by MSHA’s ensuing investigation:

The Commission has
previously held that ‘the Secretary’s decision to proceed with a complaint to
the Commission, as well as the content of that complaint, is based on the
Secretary’s investigation of the initiating complaint to [him], and not merely
on the initiating complaint itself.’ Sec’y o/b/o Callahan v. Hubb Corp .,
20 FMSHRC 832, 837 (Aug. 1998); see Sec’y o/b/o Dixon v. Pontiki Coal Corp ,
19 FMSHRC 1009, 1017 (June 1997); Hatfield , 13 FMSHRC at 546. If the
content of a discrimination complaint filed with the Commission is based on
that which is uncovered during the Secretary’s investigation, then it follows
that the Secretary’s authority to investigate in the first instance cannot be
circumscribed by the early and often uninformed statements made by a miner in
his charging complaint. [ Hopkins ] , at 1326 n.15.

Mulford
v. Robinson Nevada Mining , 39 FMSHRC 1957, 1959-60 (Oct. 2017)(ALJ). Accordingly,
the Court need not limit itself strictly to considering the miner’s initial
discrimination complaint, so long as the additional evidence considered stems
from the Secretary’s investigation, its application for temporary
reinstatement, and evidence evinced at hearing.

The
Court’s
Determination

The
Court has reviewed the Secretary’s Application. The Application includes
various jurisdictional prerequisites, which were also read into the record at
the commencement of the hearing. [1]
The Application also represents that:

Complainant
Jason Ebert, was hired by Respondent to work at its Marshall County Mine
operation to work as a laborer, and is a "miner" within the meaning
of Section 3(g) of the Mine Act, 30 U.S.C. § 802(g). [ ] Carl Ebert,
Complainant's brother, is a miner employed by Respondent who has a long history
of being a vocal safety advocate, and who has filed two § 105 (c)
discrimination complaints. [ ] On or around January 30, 2019, Respondent became
aware that Jason Ebert and Carl Ebert are brothers.[ ] On January 30, 2019,
Respondent gave Jason Ebert a choice: resign, or be terminated. [ ] Respondent
informed Complainant that, had Respondent been aware that he was Carl Ebert's
brother, Respondent would not have hired him. [2]
[ ] On January 30, 2019, Complainant resigned his employment with Respondent. [3]
He filed a discrimination complaint with MSHA. [ ] After receiving Jason
Ebert's complaint, MSHA supervisory investigator J. Cajetan Stepanic conducted
a discrimination investigation. [ ] Stepanic's investigation determined that
Complainant's complaint that on or about January 30, 2019, Respondent
discriminatorily forced him to resign from his employment as a laborer with
Respondent because he was related to an individual who had repeatedly engaged
in protected activities, was not frivolously brought. [ ] …

Application
at 2-3. [4]

Based
on the Court’s review of the four corners of the contents of the Secretary’s
Application and upon application of the relevant case law for evaluating such
temporary reinstatement applications, as set forth above, the Court has
determined that the miner's complaint was not frivolously brought. Complainant’s
employment with Marshall Coal began on January 28, 2019 and he was terminated
from employment on January 30, 2019. Application at 2; Tr. 47. Based on the
Application, for purposes of the frivolously brought standard of review,
Respondent discriminatorily forced the Complainant to resign from his
employment as a laborer with Respondent because he was related to Carl Ebert, who
had repeatedly engaged in protected activities. Id . There is a
sufficient nexus between the protected activity and adverse action to support
temporary reinstatement. Sec’y of Labor on behalf of Shaffer v. Marion Cty.
Coal , 40 FMSHRC 39, 43 (Feb. 2018).

ORDER

Having determined the Application was
not frivolously brought, it is hereby ORDERED that Respondent, The
Marshall County Coal Company, reinstate Jason Ebert to his former position at
the same rate of pay and with all other benefits that he enjoyed prior to his
discharge, effective immediately upon issuance of this Order. This Order shall
terminate by operation of law upon the Secretary’s determination that a
violation of section 105(c) did not occur, or upon resolution of a complaint of
discrimination filed under section 105(c)(2) of the Mine Act, whichever occurs
first.

/s/ William B.
Moran

William B. Moran

Administrative
Law Judge

Distribution:

Ryan
Atkinson, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170
S. Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA
19106

Christopher
H. Rider, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170
S. Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA
19106

Philip
K. Kontul, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG
Place, Suite 1900, Pittsburgh, PA 15222

Jason
Ebert, 1619 Diamond Street, Moundsville, WV 26041

[1] These
stipulations were as follows:

Stipulation 1.
At all relevant times to this proceeding Respondent, The Marshall County Coal
Company, was an operator of the Marshall County Mine, Mine ID 46-01437.

Stipulation 2.
The Marshall County Mine is a mine. That term is defined in Section 3(d) of the
act, 30 U.S.C. Section 802(d).

Stipulation 3.
Respondent Marshall County Coal is engaged in the operation of a coal mine, is
therefore an operator as defined in Section 3(d) of the act, 30 U.S.C. Section
802(d).

Stipulation 4.
At all times relevant to this proceeding products of Marshall County Coal
entered commerce or the operations or products thereof affected commerce within
the means and scope of Section 4 of the Mine Act, 30 U.S.C. Section 803. Jason
Ebert was previously employed by Marshall County Mine. Jason Ebert is a miner
within the meaning of Section 3(g) of the Mine Act, 30 U.S.C. Section 802(g). Marshall
County Coal is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission. The presiding administrative law judge has the authority
to hear this case and issue a decision regarding this case.

Tr. 11-12. The
stipulations are adopted by the Court as findings of fact for purposes of this
temporary reinstatement proceeding.

[2] Administrative
Law Judge Kenneth R. Andrews recently examined prior decisions regarding
alleged discrimination against a miner for protected activity committed by a
relative:

“[t]here is
decisional support for the proposition that a miner is protected under 105(c)
from retaliation based on the protected activity of a relative.” Sec'y of
Labor on behalf of Kizziah v. C&H Company, Inc ., 14 FMSHRC 1362, 1366
(Aug. 1992)(ALJ Melick) citing Mackey and Clegg v. Consolidation Coal Co .,
7 FMSHRC 977 (Jun. 1985)(ALJ Broderick); See also Sec'y of Labor on Behalf
of Flener v. Armstrong Coal Co ., 34 FMSHRC 1658, 1665-1666 (Jul. 2012)(ALJ
Simonton)(rejecting a strict reading and interpretation of 105(c) that would
“require that the complaining miner be the only individual who is protected
from reprisal for complaining about a health and safety concern.”)

In one
particularly well-reasoned instance, Judge Zielinski faced a substantially
similar situation: “[t]he central issue raised… is whether a discrimination
action can be maintained on behalf of Jimmy Caudill based upon his father's
protected activity.” Sec'y of Labor on behalf of Jimmy Caudill and Jerry
Michael Caudill v. Leeco, Inc. and Blue Diamond Coal Co ., 24 FMSHRC 589,
590 (May 2002).

Kingston Mining , 37 FMSHRC 1282,
1294 (June 2015)(ALJ). Though not precedential, the Court finds these ALJ
decisions to be well-reasoned and persuasive.

[3] That Ebert
officially “resigned” does not cast the situation out of the realm of adverse
action. See, e.g. , Simpson v. FMSHRC , 842 F.2d 453, 461 (D.C. Cir.
1988) (“[c]onstructive discharge doctrines simply extend liability to employers
who indirectly effect a discharge that would have been forbidden by statute if
done directly.”).

[4] Government Ex.
1 was entered as an exhibit at the hearing. It is titled “Statement of Jason
Barrett Adkins,” but it is not signed by Mr. Adkins. The Court’s determination
in this matter did not rely upon the statement at all.