Haskell Addington v. XMV, Inc. and Debra Vaughan

Plain-English summary

XMV miner Haskell Addington had complicated pneumoconiosis and later applied for Part 90 status. He alleged that XMV and human resources manager Debra Vaughan discriminated, retaliated, and interfered by cutting his pay and hours, assigning dusty work, withholding information about Part 90 eligibility, and ending benefits while he could not work. Judge Alan Paez granted summary decision because the salary reductions and last job transfer predated Addington's protected Part 90 application, and the record showed no adverse personnel action during or after that application. The judge also found that the operator had no role in the federal eligibility determination and no duty to transfer Addington or begin dust sampling until MSHA notified it after he exercised his Part 90 option. The complaint was dismissed, without deciding any claims or remedies available under statutes other than the Mine Act.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1) and 30 C.F.R. Part 90
• Outcome: Respondents received summary decision, and Addington's discrimination proceeding was dismissed.
• Key point: A section 105(c) claim requires an adverse or interfering action tied to protected activity, and the undisputed timeline showed none after Addington applied for Part 90 status.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W.,
Suite 520N

Washington, D.C. 20004

HASKELL
ADDINGTON,

Complainant,

v.

XMV,
INC.,

and

DEBRA VAUGHAN,

Respondents.

:     DISCRIMINATION
PROCEEDING

:

:     Docket
No. WEVA 2022-0114-D

:     MSHA
No. PINE CD 2021-06

:

:

:

:     Mine
No. 39

:     Mine
ID 46-09261

:

:

DECISION
GRANTING RESPONDENTS’ MOTION FOR SUMMARY DECISION

This discrimination proceeding is before
me pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of
1977 (“Mine Act”), 30 U.S.C. § 815(c)(3). Chief Administrative Law Judge Glynn
F. Voisin assigned me this case on January 3, 2022. On January 27, 2022, I set
this case to be heard on June 14–15, 2022, in Beckley, West Virginia. On April
5, 2022, the parties filed a Joint Motion to Continue Hearing Date, which I
granted and thus rescheduled the hearing for September 13–15, 2022. Due to a
delay in completing discovery the parties asked for, and I agreed to, a
revision of the prehearing order deadlines.

On August 26, 2022, Respondents filed their
Motion for Summary Decision. [1] I issued an
order on August 31, 2022, continuing the hearing to allow time to consider the
extensive documentary evidence provided in Respondents’ motion, as well as any
opposition filed by the Complainant. (Order to Continue Hr’g Pending
Determination on Resp’ts’ Mot. for Summ. Decision at 1–2.) My order also
permitted Addington time to file an opposition without simultaneously preparing
for hearing. On September 7, 2022, Complainant filed his Response in Opposition
to the Motion for Summary Decision. Thereafter, on September 15, 2022,
Respondents filed a Motion for Leave to File Reply, which I do not consider. [2]

Based
on the entire record, I determine Addington alleges no genuine issue as to any material
fact and conclude that Respondents are entitled to summary decision as a matter
of law. [3]

I.  PROCEDURAL AND FACTUAL BACKGROUND

A.        Addington’s
Complaints Filed with MSHA and the Commission

On
August 30, 2021, Addington filed a discrimination complaint with MSHA using the
agency’s standard form and naming as the violators Respondents XMV, Inc. (“XMV”)
and Debra Vaughan, the company’s human resources manager. ( Compl., Ex. A ; Mot. Mem., Ex.
A at 1–2. ) In MSHA Forms 2000-123 and 2000-124 Addington alleges that XMV
and Vaughan discriminated and retaliated against him and interfered with the
assertion of his Part 90 rights by “refusing to afford [him] access to benefits
or a reasonable accommodation for [his] breathing impairment . . . due
to [his B]lack [L]ung [D]isease” (coal workers’ pneumoconiosis) after
Respondents became aware that his chest X-ray under the Coal Workers’ Health
Surveillance Program showed complicated Black Lung Disease. (Compl., Ex. A; Mot.
Mem., Ex. A at 1–2.) In his statement to the MSHA investigator, Addington
acknowledges he received a June 19, 2020, letter as part of this health
surveillance program regarding a free chest X-ray, which he took on October 30,
2020. (Mot. Mem., Ex. D at 5–6.) On October 27, 2021, MSHA notified Addington of
its investigation into his discrimination claim and its determination that a
violation of section 105(c) of the Mine Act had not occurred. [4] (Compl., Ex. B; Mot. Mem., Ex. S.)

Thereafter,
on November 26, 2021, Addington filed a complaint with the Commission pursuant
to section 105(c)(3) of the Mine Act. Addington’s section 105(c)(3) complaint
alleges that XMV and Vaughan engaged in wrongful discrimination, retaliation,
and interference when they “improperly accessed information about” Addington’s
Part 90 eligibility “and then withheld that information” from Addington,
“preventing him from availing himself of his Part 90 rights to remove himself
from dusty coal environments until after his [B]lack [L]ung [D]isease had
progressed to the point of respiratory failure, causing him to lose wages and
benefits.” [5] (Compl. at
1.) Addington also alleges that Respondents refused to provide requested
accommodations or any ongoing assistance with healthcare premiums while
Addington was unable to work due to his Black Lung Disease. (Compl. at 1.) Addington
claims that after he expressed concerns about his Black Lung Disease,
Respondents took away his customary Saturday work hours and reduced his pay by
$10,000, whereby according to Addington’s Prehearing Statement “beginning in
2017” XMV departed from an arrangement of “agreeing to keep him in non-dusty
areas of the mines” and “require[ed] him to work underground shoveling belts .
. . that increased his exposure to coal mine dust. . . . [and] began reducing
his wages repeatedly” from a top salary of “$125,000 annually.” ( Complainant’s Pre-hr’g Statement at 2 –3.)

The
documentary evidence, including Addington’s statement to the MSHA investigator,
reveals he lost $10,000 off his salary around December 2016 (Mot. Mem., Ex. D
at 4), and Addington’s deposition testimony (Mot. Mem., Ex. B at 139) establishes
that the last of these $10,000 salary cuts occurred on
April 26, 2020, before Addington applied for Part 90 status “in the fall of
2020.” (Complainant’s Pre-hr’g Statement at 1; Compl. at 2; Mot. Mem., Exs. D
at 4–5, G.) In his September 3, 2021, statement to the MSHA investigator Addington
does not allege any changes in his salary or work environment after applying for
his chest X-ray, which was taken on October 30, 2020. (Mot. Mem., Ex. D at 5–6.)
Addington’s last transfer at work occurred on September 22, 2020, when he
transferred from Mine 43 (working on the surface areas of that mine) to Mine 39
(also on the surface areas of the mine) with the same title of “Foreman
Projects” and doing “the same work that [he] had been doing at [Mine] 43” at
the same payrate of “$105,000 + $800 VAP.” (Opp’n, Ex. 2 at 23; Mot. Mem., Exs.
B at 23, 139, D at 5, H.) Addington told the MSHA investigator that “on January 18, 2021[,] I had acute respiratory
failure and that was my last day of work at [Mine] 39,” whereafter “I got set
up on short term disability benefits in January [2021].” (Mot. Mem., Ex. D at
6.)

B.        Respondents’
Allegations

In
their motion for summary decision Respondents argue, among other things,
primarily: (1) section 105(c) of the Mine Act is an inappropriate vehicle for
Addington’s generalized claims of discrimination and failure to accommodate
based on his Black Lung Disease; (2) Addington’s claims are unsupported by the
record because XMV did not and could not have discriminated against him given
the timeline of events; (3) Addington’s claims are procedurally improper and
barred by the statute of limitations; and (4) there is no issue of material
fact and thus Respondents are entitled to summary decision as a matter of law. (Mot.
Mem. at 1, 7, 17–19.) [6]

For
purposes of Commission Procedural Rule 67, I must examine and address the
material facts as laid out in the parties’ pleadings, depositions, and
documentary evidence, to rule on Respondents’ motion.

C.        Material
Facts in the Pleadings, Depositions, and Documentary Evidence

It
is undisputed that Complainant
Addington was a coal
miner who worked for XMV since 2012, and that he developed and suffered from a
severe form of Black Lung Disease called complicated pneumoconiosis. In an
affidavit dated May 20, 2015, Addington acknowledges that a doctor diagnosed
him with “complicated pneumoconiosis” in early 2015 and that Addington had
“sufficient residual ventilatory capacity to return to [his] last coal mine
job.” (Mot. Mem, Ex. C at 1.) Addington returned to work at XMV despite
acknowledging “the potential for exposure to dust and a possible progression of
[his] lung condition.” (Mot. Mem, Ex. C at 2.)

Over
two years later on October 10, 2019, a U.S. Department of Labor Administrative Law
Judge (“ALJ”) noted in his decision adjudicating Addington’s federal Black Lung
Benefits claim that XMV “stipulates that [Addington] has complicated
pneumoconiosis and is entitled to the irrebuttable presumption of total
disability due to pneumoconiosis.” Addington v. XMV, Inc. , Case No.
2017-BLA-05663, slip op. at 3 (Oct. 10, 2019) (ALJ). [7]
The Department of Labor ALJ who determined Addington suffered from complicated
pneumoconiosis wrote that Addington “had to stop [work at XMV] on October 7,
2014, due to breathing problems,” which comports with Addington’s journal notes.
(Opp’n, Ex. 1);  Addington v. XMV, Inc. , Case No. 2017-BLA-05663,
slip op. at 3. The ALJ wrote that a “chest X-ray dated January 6, 2015, was
read as positive for complicated pneumoconiosis,” whereby the agency issued its
decision awarding Addington benefits on September 29, 2016. Addington v.
XMV, Inc. , Case No. 2017-BLA-05663, slip op. at 2 . Indeed, the ALJ
stated, “[t]he only issue [XMV] contests is whether [Addington’s] benefits
should be offset by his wages.” Id. That’s because Addington decided to
return to work at XMV even with his complicated pneumoconiosis diagnosis, per
the affidavit he signed on May 20, 2015. (Mot. Mem., Ex. C.) Despite
Addington’s diagnosis of complicated pneumoconiosis and Black Lung Benefits
award, he did not apply for Part 90 status at that time.

Not
until receiving a notice dated June 19, 2020, whereby XMV miners could obtain a
free chest X-ray to determine Part 90 eligibility did Addington contemplate applying
for Part 90 status. (Mot. Mem., Ex. I); see generally 30 C.F.R. Part 90
(Mandatory Health Standards–Coal Miners Who Have Evidence of the Development of
Pneumoconiosis). As he explains in his deposition, Addington consciously
decided not to seek Part 90 status earlier:

Q:
You indicated you were getting the chest X-ray because you wanted to try
to get Part 90 status. But what did you understand Part 90 status to
entail?

A:
Again, you know, after we talked about Dale, you know, he had mentioned that —
and honestly, I didn’t get the Part 90 early on is because I didn’t want to
harm the company, because I knew that they would have to run dust — on me or I
would have filed it a long time ago, but I wanted to be as fair as I could be. As
long as I could continue to work and nobody really bothered my pay and my
benefits, then I just wanted to leave it as is because if I got fired at XMV
and I went to try to pursue another job somewhere else, then I knew the Part 90
would affect me in getting a job somewhere else because managers and people at
the coal mine know what the Part 90 — the protections that have to come along
with the Part 90. So I elected not to do it …”

(Mot. Mem.,
Ex. E at 29.)

Addington underwent a chest X-ray
at a local hospital on October 30, 2020, as part of the process administered by
the National Institute
for Occupational Safety and Health (“NIOSH”), a component of the Department of Health and Human
Services (“HHS”) , for miners to be screened for Part
90 eligibility. (Mot. Mem., Ex. D at 6.) In his statement to the MSHA
investigator, Addington noted a delay in the reading of his October 30, 2020,
X-ray due to a nurse at the hospital making a mistake and not processing his
results. (Mot. Mem., Ex. D at 6; Opp’n, Ex. 2 at 33.)
Addington’s chest X-ray was read by two NIOSH-approved
doctors on January 11, 2021 (Mot. Mem., Ex. J), and January 18, 2021 (Mot.
Mem., Ex. K), as being positive for pneumoconiosis. See 42 C.F.R. §§
37.52, 37.53 (HHS
regulations on radiograph classifications).

On January 20, 2021, HHS made a
final determination that Addington’s October 30, 2020, chest X-ray was positive
for pneumoconiosis making him eligible to assert his Part 90 transfer rights. (Mot.
Mem., Ex. L); see 42 C.F.R. §
37.102 (transfer to
less dusty area). After being notified of his Part 90 eligibility
Addington exercised his Part 90 rights by signing an “Exercise of Option to
Transfer” form and sending it to MSHA on January 21, 2021. (Mot. Mem., Ex. M.) MSHA
notified XMV that Addington exercised his rights to dust monitoring and a
transfer to a low-dust area of the mine by letter dated January 29, 2021. (Mot.
Mem., Ex. N.)

II.  PRINCIPLES OF LAW

A.        Summary
Decision

Commission
Procedural Rule 67(b) provides that a motion for summary decision shall be
granted only if “the entire record, including the pleadings, depositions,
answers to interrogatories, admissions, and affidavits, shows: (1) [t]hat there is no genuine issue as to any material fact; and (2)
[t]hat the moving party is entitled to summary decision as a matter of law .”
29 C.F.R.  § 2700.67(b); see Mo. Gravel Co. ,
3 FMSHRC 2470, 2471 (Nov. 1981).

The
Commission has consistently held that summary decision is an “extraordinary
procedure” and analogizes it to Rule 56 of the Federal Rules of Civil
Procedure. Lakeview Rock Prods., Inc. , 33 FMSHRC 2985, 2987
(Dec. 2011) (citations omitted). The Supreme Court, as the Commission observes,
has determined that summary judgment is only appropriate “upon proper showings
of the lack of a genuine, triable issue of material fact.” Id . at
2987–88 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 327 (1986)). The
Supreme Court has also held that both the record and “inferences to be drawn
from the underlying facts” are viewed in the light most favorable to the party
opposing the motion. United States v. Diebold, Inc. , 369 U.S.
654, 655 (1962)). Commission Judges should not
grant motions for summary decision “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.” KenAmerican
Res., Inc. , 38 FMSHRC 1943, 1947 (Aug. 2016) (quoting Campbell v.
Hewitt, Coleman & Assocs., Inc. , 21 F.3d 52, 55 (4th Cir. 1994)).

B.        Protections
under Section 105(c) of the Mine Act

Section
105(c)(1) of the Mine
Act [8] bars discrimination against or
interference with miners asserting a protected right . For discrimination claims, the Commission applies the
Pasula-Robinette framework in which a complainant must establish a prima
facie case showing the miner (1) engaged in protected activity, (2) suffered an
adverse action, and (3) the adverse action was motivated in any part by the
protected activity. Driessen
v. Nev. Goldfields ,
20 FMSHRC 324, 328 (Apr. 1998);
Sec’y of Labor on
behalf of Robinette v. United Castle Coal Co. ,  3
FMSHRC 803, 817–18 (Apr. 1981); Sec’y of Labor on behalf of Pasula v. Consolidation Coal
Co. , 2 FMSHRC 2786, 2799–2800 (Oct. 1980),  rev’d on other
grounds, sub nom. Consolidation Coal Co. v. Marshall , 663 F.2d
1211 (3d Cir. 1981).

The
Commission has no settled legal test for claims of interference. See
Monongalia Cty. Coal Co. , 40 FMSHRC 679, 680–81 (June 2017). Several
Commission Judges have applied the Secretary’s two-prong test, which asks first
whether the alleged interfering actions reasonably
can be viewed as “tending to interfere with the exercise of protected rights,”
and, second, whether the interfering person can “justify the action with a
legitimate and substantial reason whose importance outweighs the harm caused to
the exercise of protected rights.” See, e.g. , Armstrong Coal Co. ,
39 FMSHRC 1072, 1089 (May 2017) (ALJ) (applying Secretary’s proposed test for
interference), appeal dismissed per settlement stipulation , 40 FMSHRC
973, 974 (July 2018). Some Commissioners, however, would replace the second
prong of the test with a requirement that the complainant demonstrate the
interfering actions were motivated by animus to the exercise of protected rights.
Monongalia Cty. Coal Co. , 40 FMSHRC at 708–29.

C.        “Part
90 Miner” Rights under 30 C.F.R. Part 90

One
set of rights protected under the Mine Act are the Part 90 rights afforded to miners
employed at coal mines who have evidence of pneumoconiosis. See 30 C.F.R. § 90. 2 (definition of “Part 90 miner”). Part 90 rights include a miner’s option to transfer
without a loss of pay to a less dusty area of the mine that is subject to
testing where the average concentration of respirable dust in the mine
atmosphere during each shift to which that miner is exposed is continuously
maintained at or below 1.0 milligrams per cubic meter of air. 30 C.F.R. §§ 90.1 ,  90.3 ; see
Goff v. Youghiogheny & Ohio Coal Co. ,  7
FMSHRC 1776, 1778–79 (Nov. 1985) (holding miner could maintain discrimination
claim while Part 90 application was pending), and affirming decision on
remand , 8 FMSHRC 1860, 1862–63 (Dec. 1986) (upholding ALJ decision on
remand that mine operator had rebutted the miner’s prima facie case of
discrimination).

A
multi-step interagency process exists for a miner to apply under Part 90 and
exercise the option to become a “Part 90 miner.” See 30 C.F.R. §§ 90.2 ,  90.3 ; 42 C.F.R. § §  37.52, 37.53, 37.102. HHS/NIOSH sends
miners an initial letter notifying them of the availability of getting a free
chest X-ray that may indicate pneumoconiosis and make them eligible for the
Part 90 program. See 30 C.F.R.
§ 90.3(a). After the
chest X-ray is taken and read, the Secretary of HHS interprets
the results and, if the miner has pneumoconiosis, the miner is notified in
writing of his rights along with an Option to Exercise form. Id. ; see Rochester & Pittsburgh Coal Co. , 12 FMSHRC 189, 190 –91 (Feb. 1990). Upon signing and dating
the Option to Exercise form, the miner becomes a Part 90 miner with rights to
transfer to a low dust area of the mine with respirable dust sampling and no
loss of pay. Rochester & Pittsburgh Coal Co. ,
12 FMSHRC at 192 –93 ; Goff ,
7 FMSHRC at 1778–79 .  

III.  DISCUSSION
AND ANALYSIS

Because
Addington alleges discrimination, retaliation, and interference with his Part
90 rights, I review his allegations pursuant to the Commission’s case law on
these issues.

As
Addington points out, the Commission has jurisdiction and has opined on miners
filing discrimination cases under section 105(c)(1) for violations of their
protections under Part 90. (Opp’n at 6–8); see Goff v. Youghiogheny &
Ohio Coal Co. , 7 FMSHRC 1776. The key holding of Goff is that “a
miner is protected from adverse personnel actions based on his medical
evaluation or potential transfer pursuant to Part 90 at least as early as the
date on which he files his application for Part 90 status.” Goff , 7 FMSHRC at 1781 – 82 ;
see also McGlothlin v. Dominion Coal Corp. , 37 FMSHRC 1256 (June 2015) (ALJ) (ruling section 105(c)
protections apply to Part 90 miner applicant). In Goff , the Commission noted
that the miner “ presented sufficient allegations to
plead a cause of action,” inasmuch as “[s]everal days prior to his discharge,
he applied for classification as a Part 90 miner,” and “[t]his application made
him ‘the subject of medical evaluation and potential transfer’ within the
meaning of section 105(c)(1).” Goff , 7 FMSHRC at 1782. The Commission
further noted in Goff that the miner “also appears to allege that [the coal
mine operator] had knowledge of his possible pneumoconiosis and his intent to
file under Part 90 prior to the mailing of his [Part 90] application.” Id. Thus,
the Commission in Goff interpreted the miner’s pleadings and
documentation to present a claim cognizable under section 105(c)(1) of the Mine
Act.

Consequently,
I must examine Addington’s pleadings and the entire record to determine whether
Addington presents a cognizable claim . Using the Pasula-Robinette
test for section 105(c) discrimination claims, I must determine whether
Addington has presented sufficient allegations to plead
a cause of action under section 105(c)(1) for this case to proceed.

A.        Protected
Activity Under Section 105(c)

Addington
makes allegations and presents facts that he engaged in protected activity when
he had a chest X-ray on October 30, 2020, under the auspices of HHS/NIOSH as
part of applying for Part 90 status. [9] The Mine Act
protects miners from discrimination who are engaged in the process of seeking
Part 90 status. 30 U.S.C. §
815(c)(1); Goff ,
7 FMSHRC at 1782. [10] Thus,
Addington’s allegations would satisfy the first element under the Pasula-Robinette
test for a discrimination or retaliation claim under section 105(c)(1). Also, this
would qualify as an exercise of a protected activity under the interference
tests articulated by the Commission.

B.        Adverse
Action for Discrimination or Retaliation Claims Under Section 105(c)

Although
Addington pleads facts sufficient to meet the first element under the Pasula-Robinette
test in that he engaged in protected activity by filing a Part 90 application, Addington
fails under the second element to allege any adverse action taken by Respondents
during the period of his Part 90 application or after his qualification as a
Part 90 miner. Examining the parties’ undisputed timeline of events surrounding
Addington’s Part 90 application demonstrates the hole in Addington’s claims as
to his allegations of any adverse action by Respondents.

Addington’s
Part 90 application timeline is as follows: (1) the June 19, 2020, letter from
HHS/NIOSH notified Addington of the availability of a free chest X-ray to apply
for Part 90 status; (2) Addington had his free chest X-ray taken at a local
hospital on October 30, 2020; (3) a delay in processing Addington’s X-ray
occurred due to an administrative error by a nurse at the hospital; (4) two
NIOSH-approved doctors read Addington’s chest X-ray as being positive for
pneumoconiosis on January 11, 2021 (Mot. Mem., Ex. J), and January 18, 2021
(Mot. Mem., Ex. K); (5) based upon the X-ray readings HHS made a final determination
on January 20, 2021, that Addington was eligible under Part 90 (Mot. Mem., Ex. L);
(6) Addington received notice of his Part 90 eligibility from MSHA and exercised his Part 90 rights by signing his “Exercise
of Option to Transfer” and sending it to MSHA on January 21, 2021 (Mot.
Mem., Ex. M); and (7) by letter dated January 29, 2021, Respondents were
notified that Addington exercised his option to transfer to a low-dust area
with quarterly respirable dust testing (Mot. Mem., Ex. N).

A
review of the entire record including pleadings, deposition testimony, and
documentary evidence, reveals that Addington raises no issues of material
fact or alleges that he suffered any adverse action at the hands of Respondents
during the pendency of his Part 90 application. Addington’s last salary cut occurred on April
26, 2020, nearly two months before Addington received the June 19, 2020, notice
from HHS/NIOSH about applying for Part 90 status. (Complainant’s Pre-hr’g
Statement at 1; Compl. at 2; Mot. Mem., Exs. D at 4–5, G.) Addington had his free chest X-ray
taken on October 30, 2020, yet his last work transfer took place over a month
earlier on September 22, 2020, when he moved to the surface area of XMV’s Mine
39 at his same pay rate of $105,000 per year and with the same title he had at
Mine 43, which was his prior assignment also on the surface area of the mine. (Mot.
Mem., Exs. B at 135, H.) He makes no allegations that this transfer was an
adverse personnel action. Indeed, Addington makes no allegations of any adverse
personnel action or work change up to the time he took himself to an urgent
care center due to breathing problems on January 18, 2021, when he was then admitted
to the hospital. (Mot. Mem., Exs. H, O.) As Addington stated to the MSHA
investigator: “[O]n
January 18, 2021[,] I had acute respiratory failure and that was my last day of
work at [Mine] 39,” whereafter “I got set up on short term disability benefits
in January [2021].” (Mot. Mem., Ex. D at 6.) Absent from the record are any allegations to suggest
Respondents took any adverse action against Addington after he applied for Part
90 status in the fall of 2020, or after he become a Part 90 miner on January
21, 2021.

Addington’s
loss of company life insurance, health insurance, and other employee benefits as
noted in the letter he received from Respondents on July 12, 2021 (Opp’n, Ex.
3), arose from his own inability to return to work after being admitted to the
hospital in respiratory failure on January 18, 2021. (Mot.
Mem., Exs. E at 66, O.) Addington’s allegation he was somehow treated differently
while unable to return to work is also inapposite, because to date he is still
not cleared by his doctors to return to work. (Mot. Mem., Exs. B at 21, Q, R,
T.)

C.        Adverse
Action Motivated in Any Part by Protected Activity

Because
Addington has not alleged any adverse action by Respondents during the pendency
of his Part 90 application or after, it is not possible to analyze the third
prong of the Pasula-Robinette test for discrimination, i.e., whether the
adverse action was motivated in part by the protected activity. Consequently, I
determine that Addington has not presented sufficient allegations to plead a
cause of action for discrimination or retaliation under section 105(c).

D.        Interference
Claim

Although
Addington makes factual allegations that he engaged in protected activity by
applying for Part 90 status, which could satisfy an element of a claim of
interference under section 105(c), he must also plead allegations of interfering
actions by Respondents during the pendency of his Part 90 application or after
he exercised his option to become a Part 90 miner. [11]  

In
his complaint Addington
alleges that XMV and Vaughan engaged in wrongful interference when they “improperly
accessed information about” Addington’s Part 90 eligibility “and then withheld
that information” from Addington. (Compl. at 1.) The crux of Addington’s claim is contained in
paragraph 9 of his complaint filed with the Commission where he states:

In
December 2020, Josh Judd and Debra Vaugh[a]n informed Addington that the
company had learned that Addington had received Part[] 90 status. They did not
inform Addington of his rights to be moved to a low-dust area. They did not
inform him that he had to take any additional action to assert his Part 90
right. They did not afford any protection to [] Addington.

(Compl. at
3.) These are serious allegations which require thorough analysis.

If
by the above statement (i.e., “the company had learned that Addington had
received Part[] 90 status”) Addington means that Respondents knew he was a Part
90 miner in November or December 2020 (which they deny), then that would defy
logic. The undisputed facts reveal HHS made its final determination that
Addington’s X-ray was positive for pneumoconiosis on January 20, 2021 (Mot.
Mem., Ex. L), and Addington became a Part 90 miner on January 21, 2021, when he
signed his “Exercise of Option to Transfer” form and sent it to MSHA. (Mot.
Mem., Ex. M.) Thus, it is impossible for Respondents to have known in November
or December 2020 about an event that took place on January 21, 2021.

Looking
at the entire record including the pleadings, deposition testimony, and
documents in the light most favorable to Addington , it is quite possible
that XMV and Vaughan not only believed Addington would apply for Part 90 status
because XMV agreed to pay for free X-rays as stated in the notice dated June
19, 2020 (Mot. Mem., Ex. I), but that Addington would eventually qualify as a
Part 90 miner because of his pneumoconiosis diagnosis years earlier. (Mot.
Mem., Ex. C at 1.) Both Addington and XMV knew of, and accepted, Addington’s
complicated pneumoconiosis diagnosis several years before Addington ever
applied for Part 90 status under the Mine Act during the fall of 2020. Indeed, XMV
knew of Addington’s complicated pneumoconiosis diagnosis at least as early as
2015, so if Addington applied for Part 90 protections it would not have taken a
leap in logic to conclude he would qualify.  

But
Addington’s allegations in his complaint hinge on a misplaced belief that Judd
and Vaughan’s knowledge of his pneumoconiosis and possible filing of his Part
90 application before HHS made a final
determination that his chest X-ray was positive for pneumoconiosis and before
MSHA had officially notified Addington of his Part 90 status, somehow qualifies
as interference with his Part 90 rights. Knowledge alone does not qualify as
interference, and such an allegation is legally erroneous and factually immaterial
given the structure of the Part 90 program as discussed below.

XMV
and Vaughan’s alleged foreknowledge of Addington’s pneumoconiosis and his Part
90 application is immaterial here because, even if true, an operator possesses
no role in the process of a miner qualifying for, or exercising his transfer
option under, Part 90. Per the Part 90 program regulations, only NIOSH-approved
doctors review a miner’s chest X-ray and HHS makes the final determination on
whether a miner has pneumoconiosis and is eligible for Part 90 status, whereby
notification is given to the miner about the miner’s qualification and transfer
rights under Part 90. See 30 C.F.R. § § 90.1, 90.3 ;
42 C.F.R. § §  37.52, 37.53, 37.102. And only after
a miner exercises the transfer option does MSHA notify a coal mine operator
about the miner’s Part 90 status. See 30 C.F.R. §§ 90.2 (“Part 90 miner”
definition), 90.100, 90.102(b), (c) (multiple references to operator’s
“notification from MSHA that a part 90 miner is employed at the mine”).

Further,
under the Part 90 regulations neither XMV nor Vaughan would have a duty to
transfer Addington to a less dusty area of the mine or begin respirable dust
sampling prior to being notified by MSHA that Addington had exercised
such option under Part 90. See 30 C.F.R. § 90.3(a); §§ 90.100–90.104.
Thus, even if Addington’s allegations of Respondents’ foreknowledge were proven
true, they would have no bearing on his claim of interference, given that HHS
made its final determination on January 20, 2021 (Mot. Mem., Ex. L), and
Addington exercised his Part 90 rights on January 21,
2021 (Mot. Mem., Ex. M) . Respondents had no legal obligation to transfer
Addington to a less dusty area of the mine or to “run dust” (i.e., conduct
respirable dust sampling) at Addington’s workplace until MSHA notified them,
which did not happen until January 29, 2021, when Respondents received a letter
from MSHA that Addington was a Part 90 miner. (Mot. Mem., Ex. N.)

Given
the structure of the Part 90 program discussed above, whether Judd and Vaughan allegedly
knew about Addington’s pneumoconiosis and Part 90 application are not by
themselves material facts. Put another way, it makes no difference
whether Respondents knew in November or December 2020 that Addington had
pneumoconiosis or that he had applied for Part 90 status, because Respondents
neither had a role in the Part 90 approval process or in Addington becoming a
Part 90 miner, nor had they any duty to transfer Addington to a less dusty area
or to conduct respirable dust sampling until notified by MSHA. Knowledge of
Addington’s pneumoconiosis and Part 90 application alone—without an allegation
of some interfering
action by Respondents—cannot satisfy a claim of interference.

Yet,
in his Opposition to the Motion for Summary Decision, Addington focuses on his belief that
Judd and Vaughan notified him of his Part 90 status earlier in November or
December 2020, rather than after January 21, 2021, when he exercised his transfer
option to become a Part 90 miner. (Opp’n at 8–9; Compl.
at 3.) [12] Addington
points to his deposition testimony to buttress the veracity of his allegations
that Judd and Vaughan called and advised him of his Part 90 status in late
November or early December (Opp’n at 2–4, 8 – 9, Ex.
2 at 33–34), despite documentary evidence that no final determination on
Addington’s Part 90 status was made by HHS until January 20, 2021. (Mot. Mem., Ex. L.)

But
as explained above, any such foreknowledge by Respondents about Addington’s application
and potential eligibility for Part 90 status means nothing under section 105(c)
without allegations of some interfering action by XMV or Vaughan. Here,
Addington comes up empty because he conflates foreknowledge with an interfering
action. His bald accusation that Respondents somehow delayed his becoming a
Part 90 miner holds no water, because the administrative process of becoming a
Part 90 miner lies with HHS and MSHA, not Respondents. Moreover, Addington raises
no genuine issue of material fact, and he makes no allegations that he suffered
any actual delay or interference at the hands of Respondents during the
processing of his Part 90 application in the fall of 2020 up through his
exercising of the option to become a Part 90 miner on January 21, 2021, or
thereafter. No genuine, triable issue of material fact exists.

Addington’s
interference claim must fail due to the lack of allegations regarding any interfering
action by Respondents that would have delayed, hindered, or otherwise
interfered with, his Part 90 application or process of becoming a Part 90 miner.
Accordingly, I determine that Addington has not presented sufficient
allegations to plead a cause of action for a cognizable claim of interference
under section 105(c)(1).

C.        Conclusion

The
entire record shows that no genuine issues of material fact exist, and
Addington makes no allegations of an adverse action or interfering action to
satisfy a claim under section 105(c)(1) that Respondents engaged in any
discrimination, retaliation, or interference during the pendency of his Part 90
application or after becoming a Part 90 miner. Addington was not terminated,
forced to leave, transferred to a more dusty area, or subject to a pay cut by Respondents
during the pendency of his Part 90 application. And Addington’s inability to
return to work is not an adverse action caused by Respondents. Rather,
Addington was unable to work due to medical reasons on January 18, 2021. HHS only made a final determination that Addington’s X-ray
showed pneumoconiosis making him eligible under Part 90 on January 20, 2021. By
the time Addington exercised his Part 90 transfer rights on January 21, 2021, he
was already unable to physically return to work. Indeed, over more than a year
later during his deposition taken on June 27, 2022, Addington stated he had not
yet been cleared by his doctors to return to work and had no timetable as to a
possible return. [13] (Mot. Mem., Ex. B at 21 .)

Even
when viewed in a light most favorable to Addington, the record and inferences
drawn show he fails to make a cognizable claim, as his allegations are
insufficient to plead a cause of action under section 105(c)(1). Legally, Addington’s
claims of discrimination, retaliation and interference fail, and Respondents’
motion must be granted. This ruling applies only to Addington’s claims under
the Mine Act and does not address any separate claims or remedies he may seek
under other statutes, such as section 428 of the Black Lung Benefits Act .

Respondents
prevail because of an administrative process that puts the onus on miners to
apply for Part 90 status—a process that took months even when the miner and
coal mine operator would agree the result should be the applicant’s
qualification as a Part 90 miner. Requiring a miner like Addington to go
through the Part 90 application process seems to be a blind spot in the
intersection of the Black Lung Benefits Act and the Mine Act. The only factor
in play was time, which begs the question—why would a miner adjudicated as
suffering from complicated pneumoconiosis and receiving Black Lung Benefits
need to apply to receive a chest X-ray and wait for HHS to tell him he had
pneumoconiosis to determine his eligibility as a Part 90 miner? Only the policymakers
for the Part 90 rule know. Had Addington been able to exercise his transfer option
at the time of the June 19, 2020, notice, or earlier, without going through the
superfluous chest X-ray process, perhaps Addington would still be working.

Because
there is no genuine issue as to any material fact and Addington has not
presented any cognizable claim under section 105(c) even after viewing the entire
in the light most favorable to Addington, Respondents demonstrate their
entitlement to summary decision as a matter of law. Therefore, I conclude that summary
decision is appropriate and that Addington’s section 105(c) complaint must be
dismissed.

IV.  ORDER

Respondents’ Motion for Summary
Decision is GRANTED , and this proceeding is hereby DISMISSED .

/s/
Alan G. Paez

Alan G. Paez

Administrative Law Judge

Distribution:
(Via Electronic Mail & U.S. Mail)

Samuel B.
Petsonk, Esq., Petsonk PLLC, P.O. Box 1045, Beckley, WV 25802-1021

([email protected])

Jonathan
R. Ellis, Esq., & Mark C. Dean, Esq., Steptoe & Johnson PLLC, P.O. Box
1588,

Charleston,
WV 25326-1588

([email protected])

([email protected])

/ gw

[1] In this
decision, the Memorandum of Law in Support of Respondents’ Motion for Summary
Decision that accompanies their two-page motion for summary decision is cited
as “Mot. Mem. at ” with references to its Exhibits A–T. Complainant’s
Response in Opposition to Motion for Summary Decision is cited as “Opp’n at
,” with references to its Exhibits 1–3.

[2] Pursuant to
Commission Procedural Rule 67 no reply brief is contemplated after an
opposition is filed to a motion for summary decision. 29 C.F.R. § 2700.67. Respondents
had an opportunity to lay out their view of the case in their motion for summary
decision with its voluminous attachments. Although Complainant filed no response
to the Motion for Leave to File Reply, Respondents are not entitled to the
proverbial “second bite at the apple,” and their motion is hereby DENIED .

[3] Per Commission
Procedural Rule 67(b), a motion for summary decision is granted only if “the
entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) [t]hat there is no
genuine issue as to any material fact; and (2) [t]hat the moving party is
entitled to summary decision as a matter of law.” 29 C.F.R. §
2700.67(b).

[4] The Mine Act provides that upon
receipt of a discrimination complaint, the Secretary “shall cause such
investigation to be made as he deems appropriate,” and that “[i]f upon such
investigation, the Secretary determines that the provisions of this subsection
have been violated, he shall immediately file a complaint with the Commission .
. . .” 30 U.S.C. § 815(c)(2). Section 105(c)(3) of the Mine Act provides that
if the Secretary determines no discriminatory violation occurred, “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 [section 105(c)(1)].” 30
U.S.C. § 815(c)(3).

[5] Addington seeks the
following remedies—an injunction barring Respondents from engaging in further
retaliation and discrimination, back pay with interest for his reduced hours
and work allegedly missed for failure to move him to a less dusty area,
retention of his current healthcare coverage without paying for healthcare
premiums beginning October 2021 to assist with the costs of his lung
transplant, retention of his life insurance benefits, and attorney costs and
fees. (Compl. at 2, 5, 6.)

[6] Respondents also allege
that Addington’s complaint violated the statute of limitations because section 105(c)(2),
30 U.S.C. § 815(c)(2), requires a miner to file any complaint under this
section “within 60 days after such violation occurs,” and that Addington added
claims after the initial filing of the MSHA forms. I find these issues
inapposite given my ruling.

[7] I take judicial notice of the U.S.
Department of Labor ALJ decision inasmuch as it is a public document discussing
an issue at the heart of this case—the determination that Addington suffered
from complicated pneumoconiosis and his employer’s knowledge of it. See,
e.g. , Sec’y on behalf of McGary v. The Marshall Cty. Coal Co. , 38
FMSHRC 2006 (2016) (finding Commission Judge did not abuse discretion in
admitting federal court complaint because “the court
complaint is a publicly-filed document regarding a dispute over the reporting
of mine safety and health hazards at Respondents’ mines, an issue that is at
the heart of this case”).

[8] “No person shall discharge or in
any manner discriminate against . . . or otherwise interfere with the statutory
rights of any miner . . . because of the exercise by such miner . . . on behalf
of himself or others of any statutory right afforded by [this Act].” 30 U.S.C.
§ 815(c)(1).

[9] Addington makes general
allegations about his
inability to work due to his breathing condition after his hospitalization on January
18, 2021, but I cannot construe this as protected
activity under a work refus al theory . See Braithwaite v. Tri-Star
Mining , 15 FMSHRC 2460, 2463–64 (Dec. 1993) (miner has right under section
105(c) to refuse work, if miner has a good faith, reasonable belief in a
hazardous condition); see also Dolan v. F&E Erection Co. , 22 FMSHRC 171, 176 (Feb. 2000) (citing
Simpson v. Fed. Mine Safety & Health Rev. Comm’n , 842 F.2d 453,
461–63 (D.C. Cir. 1988)) (adverse action may be constructive discharge where
operator has no conscious retaliatory motive but fails to reasonably remedy
intolerable conditions, leading to resignation of miner who reported conditions). Indeed, the Commission flatly rejected a Commission
Judge’s determination that a miner’s “medically substantiated inability to work
underground” constituted the “functional equivalent of a work refusal” that could
be deemed protected activity. Perando v. Mettiki Coal Corp ., 10 FMSHRC
491, 494 – 96 (1988). Here, Addington does not
allege he refused to work on or after January 18, 2021, and his general factual allegations do not constitute a
work refusal under Commission case law.

[10] Addington also alleges
he engaged in protected activity by complaining to management over the years about
his difficulty breathing due to his pneumoconiosis. (Compl.
at 4; Opp’n at 3, Ex. 2 at 23–24.) In paragraph 19 of his Complaint,
Addington believes his status as a miner with pneumoconiosis provides him
protections from reductions in work hours or pay, and that Respondents refused
to offer Addington any reasonable accommodation or unpaid leave with benefits. (Compl.
at 4.) The Commission, however, has not recognized a discrimination claim under
section 105(c)(1) for a miner simply having pneumoconiosis, absent a showing
that the miner also “was ‘the subject of medical evaluation and potential
transfer’ under Part 90.” Goff , 7 FMSHRC at 1781–82.

[11] I need not decide
between the two interference tests because Addington fails both.

[12] In his opposition, Addington attaches his journal
notes from 2014 and 2015 (Opp’n, Ex. 1), as well as excerpts of his deposition
transcript (Opp’n, Ex. 2), and the suspension of benefits letter from XMV and
Vaughan dated July 12, 2021. (Opp’n, Ex. 3.)

[13] In his deposition
Addington states he currently receives federal Black Lung Benefits, as well as
Social Security benefits. (Mot. Mem., Ex. E at 72.)