**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

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Denver, CO 80202-2536

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| SECRETARY  OF LABOR, 

  MINE  SAFETY AND HEALTH        

  ADMINISTRATION  (MSHA), on

  behalf  of MIGUEL PUGMIRE,

                            Complainant, 

 

                        v.

 

NEVADA  GOLD MINES, LLC,

                            Respondent                                                                                       |   |   | DISCRIMINATION  PROCEEDING

 

Docket  No. WEST 2021-0148-DM

MSHA  CASE NO: WE-MD-2021-03

 

 

 

 

Mine:  Turquoise Ridge

Mine  ID: 26-02286 |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

****/s/ Richard W. Manning

Richard W. Manning

Administrative LawJudge

 

 

 

 

 

 

 

 

 

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

 

 

 

 

Distribution:

 

LauraE. Beverage, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202(lbeverage@jacksonkelly.com)

 

NatashaMagness, Office of the Solicitor, U.S. Department of Labor, 300 Fifth Ave.,Suite 1120, Seattle, WA 98104 (magness.natasha.a@dol.gov)

 

MiguelPugmire (miguelpugmire@gmail.com)

----

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

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

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