**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

(sam@petsonk.com)

 

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

Charleston,WV 25326-1588

(jonathan.ellis@steptoe-johnson.com)

(mark.dean@steptoe-johnson.com)

 

/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 refusaltheory. *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.*, 22FMSHRC171,176 (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.)