**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

OFFICEOF ADMINISTRATIVE LAW JUDGES

1331PENNSYLVANIA  AVENUE N. W., SUITE 520N

WASHINGTON, D.C.20004-1710

Telephone No.: 202-434-9933

Telecopier No.:202-434-9949

 

July25, 2020

 
| SECRETARY  OF LABOR,           U.S. DEPARTMENT OF LABOR on behalf of WILLIAM R.  WHITMORE,                        

             Complainant

 

                        v.

 

 

 

 

 

YAGER MATERIALS CORP.,

                        Respondent                                                                                         |   |   | TEMPORARY  REINSTATEMENT

 

Docket  No. KENT 2020-0116-DM

Mine:  Riverside Stone Mine

Mine  ID: 15-00081

 

 

 

 

Docket  No. KENT 2020-0117-DM

Mine:  Riverside Stone Mine

Mine  ID: 15-18549

  |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

**ORDER ONRESPONDENT’S MOTION TO COMPEL**

**PRODUCTION OFDOCUMENTS**

 

Respondent, Yager Materials Corp.,through Counsel, filed, on July 21, 2020, a Motion to Compel Production ofDocuments. (“Motion”). The Court held a conference call with the parties onJuly 23, 2020 to discuss the Motion. During that call the also Court issued itsrulings on the subjects identified in the Motion. This Order memorializes theCourt’s rulings.

            The Motion requested the followingdocuments: Copies of the statement or memorandum of interview of any interviewof Mr. Whitmore; Copies of the statements or memoranda of interviews of anymanagement witness; Copies of all exhibits the Secretary intends to introduceat hearing on the Secretary’s Application for Temporary Reinstatement in thismatter; Copies of any documents Mr. Fugate relied upon in preparing his Declaration.Motion at 2-3.

            The Secretary responded to the Motionvia an email, objecting to it on the basis that it ran afoul of several of the Commission’sProcedural Rules, including claims that the response to the Motion would not bedue until the day of the temporary reinstatement hearing or later and thatdiscovery was not expressly contemplated for a hearing on a temporaryreinstatement application. The full text of the Secretary’s email response isfootnoted here.[1]

            At the outset of the July 23, 2020conference call with the parties to discuss the Motion, the Court informed thatit considered the Secretary’s Counsel’s procedural objections to have beenwaived by virtue of his email response. 

            The Court’s rulings on the Motion werealso informed by the Commission’s procedural rules on the subject of Temporaryreinstatement Proceedings at 29 CFR 2700.45. It is noted that subsection (d) ofthat section provides that “[t]he scope of a hearing on an application fortemporary reinstatement is limited to a determination as to whether the miner'scomplaint was frivolously brought. The burden of proof shall be upon theSecretary to establish that the complaint was not frivolously brought. **Insupport of his application for temporary reinstatement, the Secretary may limithis presentation to the testimony of the complainant.** The respondent shallhave an opportunity to cross-examine any witnesses called by the Secretary andmay present testimony and documentary evidence in support of its position thatthe complaint was frivolously brought.” *Id.* (emphasis added).  In thatregard, the Court notes that there is no reference to the MSHA investigator’sdeclaration. Rather, the focus is upon the testimony of the complainant andthat the Secretary’s presentation can rely solely upon that.[2]

**1.    ****TheRespondent’s request for copies of the statement or memorandum of interview ofany interview of Mr. Whitmore**

Apart from the Court’s rulingthat the Secretary had waived issues regarding the due date for a response tothe motion, the Court informed the parties that it did not view theRespondent’s request for copies of the statement or memorandum of interview ofany interview of Mr. Whitmore to be properly denominated as “discovery,” atleast in the classic sense of that term.  The Court explained its reasoning forthis determination, noting that all the Respondent had, and all that the Court hadas well, was the Complainant’s signed, but *unfairly uninformative* May18, 2020, “Discrimination Report.” That document contained a typed “Summary ofDiscriminatory Action,” which stated *in its entirety* the following:

I was suspended on April 23, 2020, then dischargedon April 29, 2020, from my job as the Maintenance Manager at Riverside Stoneunderground and surface mines because of numerous protected safety activitiesthat I engaged in.

Discrimination Report,May 18, 2020.

            The “DiscriminationComplaint” document itself was no more enlightening.    At its heart, itinformed of the Complainant’s name, rate of pay, job title and the address ofthe Respondent’s mine and the names of four individuals employed by theRespondent alleged to be responsible for the discriminatory action.[3] DiscriminationComplaint, May 19, 2020. 

            Importantly,the Discrimination Complaint added nothing, that is to say it provided no additionalinformation whatsoever regarding any particulars about the alleged protectiveactivity. 

            It was *only*through the vehicle of the Secretary’s “Declaration of Freddie Fugate,”identified as a “senior special investigator” employed by MSHA, that someparticulars about the nature of the Complainant’s discrimination complaint werefirst revealed. Of course, Mr. Fugate has no more first-hand knowledge aboutthe Complainant’s allegations than the Court. 

Accordingly,the Fugate Declaration serves as a mere conduit, recounting the allegations madeby the Complainant and nothing more than that. Thus, the Court does notconsider it far-fetched to analogize the Fugate Declaration as akin to anindividual relating a story over a fence to a neighbor. And it is that seriousshortcoming that formed the basis of the Court’s problem with the inadequacy ofthe declaration. The story may be an accurate retelling, or it may not, but forpurposes of defending a discrimination complaint under due process, arespondent has a right to more. The Respondent is entitled to the Complainant’sfirst-hand accounting of the basis for his discrimination complaint. Fundamentalfairness demands this. *See*, *e.g.*, *Sec. v. Cumberland CoalResources*, 32 FMSHRC 442 (May 2010), wherein the Commission stated that the“concepts of fundamental fairness [ ] require that every litigant receiveadequate notice of charges made against it.” *Id.*at 449.

Accordingly,during the conference call, the Court ordered that copies of the statement ormemorandum of interview of any interview of Mr. Whitmore be provided. 

**2.    ****Copiesof the statements or memoranda of interviews of any management witness**

 

The Court ruledduring the conference call that this request was denied. The basis for thatruling was that such statements, if they exist, are not necessary in thecontext of the Secretary’s burden in an application for temporaryreinstatement. If the Secretary did intend to introduce such documents, theCourt’s order for the parties’ prehearing exchange would cover those.[4] As anaside, the Court opined that it would be highly unusual for any managementwitness to have made a statement without receiving a copy of it.

 

**3.    ****Copiesof all exhibits the Secretary intends to introduce at hearing on theSecretary’s Application for Temporary Reinstatement in this matter**

This request, as alluded to above, was covered bythe Court’s prehearing exchange order. 

**4.    ****Copiesof any documents Mr. Fugate relied upon in preparing his Declaration.**

Asthe Court ruled that Mr. Fugate’s declaration could not serve as a substitutefor copies of the statement or memorandum of interview of any interview of Mr.Whitmore, this request was denied. The Court considered that such otherdocuments, if they exist, would more appropriately be the subject for possible discoveryin a full hearing on the merits in the complainant’s discrimination complaint,but not in the context of a temporary reinstatement application. It is notedthat such a request could run afoul of attorney-client or deliberative processclaims.  

Accordingly,having ruled on the four aspects of the Respondent’s Motion, this matter hasbeen disposed of and will now proceed to the hearing on the application fortemporary reinstatement set to commence on Wednesday, July 29, 2020 at 9:00a.m. EDT.

**SOORDERED.**

 

 

 

/s/William B. Moran

William B. Moran

                                                                                    AdministrativeLaw Judge

 

 

 

Distribution:

 

ThomasJ. Motzny, Office of the Solicitor, U. S. Department of Labor, U. S. Departmentof

Labor,618 Church Street, Suite 230, Nashville, TN 37219 motzny.thomas.j@dol.gov

 

TonyOppegard, P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com

 

WesAddington, Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY41858

wes@aclc.org

 

ArthurM. Wolfson, Fisher Phillips, Six PPG Place, Suite 830, Pittsburg, PA 15222

awolfson@fisherphillips.com

 

----

[1] The Secretary’sAttorney stated in his email that he “request[ed] oral argument on this matter[asking that the Court] [p]lease permit [him] a brief, if unorthodox, rejoinder:As the parties are aware, by Rule, a response to the Respondent’s Motion is notdue for eight days from service, which would be July 29, 2020, the day of thehearing. 29 C.F.R. 2700.10(d). Any discovery served under the Rules would notbe due for 25 days from service. 29 C.F.R. 2700.57(c). If we call what [Respondent’sAttorney] served on July 17, 2020 “Document Requests,” the responses from theSecretary would not be due until August 11, 2020. The Rules also clearly statethat discovery must be completed at least 20 days before a hearing. 29 C.F.R.2700.56(e). We are within 20 days of hearing and were when the requests wereserved. Even [the Respondent’s attorney’s] arbitrary deadline of this Friday[July 24, 2020] (after he conceded his initial arbitrary deadline of tomorrow)has not passed for the Secretary’s responses. So, to have any discussion ofwhat the Rules permit, we must ignore the plain language of the foregoingrules, and the deadline that the Respondent, itself, set.  The Respondent andthe Secretary agree on one thing: the Commission Rules do not expresslycontemplate discovery commencing after a request for a hearing on anApplication for Temporary Reinstatement: (d) Initiation of discovery. Discoverymay be initiated after an answer to a notice of contest, an answer to apetition for assessment of penalty, or an answer to a complaint under section105(c) or 111 of the Act has been filed. 30 U.S.C. 815(c) and 821. 29 C.F.R.2700.56(d). Absent from this list is the request for a Temporary Reinstatementhearing. This absence is intentional in light of the unique scope of such ahearing and the speed at which it must be completed. If the rules contemplateddiscovery prior to a Temporary Reinstatement hearing, they would necessarilyhave set forth things like the scope of such discovery in light of the limitedscope of the hearing, alternate time frames for service of requests andresponses, and a blanket exemption from Rule 2700.56(e). Initial disclosures,rather than discovery, would be more appropriate given the tight deadlinesbetween the request for a hearing and the hearing itself, but the Rules containno such provisions. As I explained to [the Respondent’s Attorney]: he wantsdiscovery, the complainant (I am sure) wants discovery, and the Secretary wantsdiscovery. Why does the Respondent get discovery and not the Secretary or theComplainant? The time frame for a Temporary Reinstatement hearing does notallow the parties the opportunity to serve discovery and to lodge good-faithobjections to such requests. As we have here, we are essentially preparing forthe hearing at the same time we are having a discovery dispute. If all of theparties, as the Respondent argues, are allow[ed] to serve discovery, the weekbefore the hearing will be filled with constant expedited discovery battles forwhich the Rules set forth no time frames. This current issue only came to ahead because the Secretary’s counsel affirmatively stated that discovery wasnot permitted. Had the undersigned waited until this Friday to do so, the issuewould not be before the Tribunal until three days before the hearing. Had theSecretary served discovery responses with objections, the same problem wouldhave arisen. Finally, since the Rules set forth no limit on discovery for [a]TemporaryReinstatement proceeding, who is to decide the scope of what is permissible forsuch requests and how many requests can be served? There is simply no guidanceavailable on what the permissible scope of discovery is in light of the ‘notfrivolously brought’ standard. It is inconsistent that a party would beburdened with a broader scope of discovery than its burden of proof at anexpedited hearing. The Rules contain no guidance on these issues becausediscovery was not completed, and was specifically excluded, for TemporaryReinstatement hearings.” July 21, 2020 email from the Secretary to the Court.

 

[2] As explained *infra*with regard to the Respondent’s request for copies of the statement ormemorandum of interview of any interview of Mr. Whitmore, the Court considered theRespondent’s discovery request to actually be a request for a complete statementof the Complaint from the Complainant Whitmore. 

[3] Fourindividuals are named in Complaint itself as those responsible for thediscriminatory action: Bryan Ory, Rick Voyles, Tammy Wimsatt, and Lisa Weldman,but *there is no information tying those individuals to Whitmore’sDiscrimination Report*.

[4] The Court hadpreviously ordered that the parties conduct their prehearing exchange byFriday, July 24, 2020. The parties submitted those exchanges pursuant to thatorder.