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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

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

Washington, D.C. 20004

May 17, 2023

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION, 

 on behalf of PAUL KIRK,

Complainant,

v.

CEMEX CONSTRUCTION MATERIALS 

FLORIDA, LLC,

Respondent.

: DISCRIMINATION PROCEEDING

:

: Docket No. SE 2023-0007-DM

: MSHA No. SE MD 2022-06

:

:

:

: Brooksville South Cement Plant

: Mine ID 08-01287

:

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION

This discrimination proceeding is before me pursuant to section 105(c)(2) of the Federal 

Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2). The case is currently 

set for hearing on May 23–24, 2023, in Tampa, Florida. On April 28, 2023, Respondent filed a 

Motion for Summary Decision. Thereafter, on May 3, 2023, the Secretary filed a Motion to 

Extend Deadline to Respond to Respondent’s Motion for Summary Decision, which I granted, 

briefly extending the deadline to file a response to May 15, 2023. On May 12, 2023, Respondent 

filed a Supplement to Respondent’s Motion for Summary Decision stating that Paul Kirk 

voluntarily resigned his employment from CEMEX that same day due to his disability retirement 

through the U.S. Department of Veterans Affairs. (Suppl. at 1.) CEMEX asserts that the 

requested relief in this matter is now moot. (Id.) The Secretary timely filed a response—which 

she entitles Response in Opposition to Respondent’s Motion for Partial Summary Decision—on 

May 15, 2023. 

I. PROCEDURAL AND FACTUAL BACKGROUND

A. Kirk’s Complaint

Respondent Cemex Construction Materials Florida, LLC operates the Brooksville South 

Cement Plant, an aboveground mine in Hernando County, Florida that mines materials to 

produce cement which uses a kiln in the process. (Compl. at 2.) On October 12, 2022, the 

Secretary of Labor on behalf of Paul Kirk filed a complaint alleging CEMEX Construction 

engaged in discrimination and interference in violation of 105(c)(1) of the Mine Act. (Compl. at 

1.) On May 25, 2022, Kirk voiced concerns to his supervisors that hot dust was spilling from the 

“dog box” associated with the kiln. (Compl. at 2–3.) First, Kirk texted David Singer with his 

concerns, followed by Marcello Leal, Chris Walls, and Carlos Uruchurtu. (Compl. at 3.) Kirk 

and Carlos Uruchurtu exchanged text messages about the kiln, and Kirk understood from the 
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messages that the kiln would be shut down. (Compl. at 3.) The Secretary alleges that Kirk was 

informed that the kiln was still operating at the morning meeting the next day. (Compl. at 3.) 

Kirk expressed his concerns about the kiln at a meeting between Uruchurtu and two contractors. 

(Compl. at 3.) Uruchurtu told Kirk to leave the meeting, but Kirk did not do so due to the 

“urgency of the issue.” (Compl. at 3.) The kiln was shut down later in the morning on May 26, 

2022, and restarted on Saturday, May 28, 2022. (Compl. at 3.) 

During the night of May 26, 2022, MSHA received a complaint about hot dust leaking 

from the kiln and the safety hazards posed by hot dust spilling out while a miner is operating the 

loader. (Compl. at 4.) MSHA visited the plant on May 29, 2022, and issued two citations for the 

“excessive hot dust filling the dog box and miners being subjected to injury while attempting to 

remove the dust using the front-end loader” and because “barricades were not used to warn of the 

high temperature dust, subjecting miners accessing the area to severe burn injuries.” (Compl. at 

4.) MSHA received two additional complaints regarding the kiln on the early morning of May 

30, 2022. The MSHA inspector viewed the kiln and observed “excessive hot dust in the dog box 

being removed by workers using the front-end loader, exposing them to hazardous conditions,”

which resulted in an additional citation. (Compl. at 4.) The Secretary alleges that CEMEX 

management “suspected that Kirk was involved with the MSHA complaints.” (Compl. at 4.)

The Secretary alleges that CEMEX discriminated against Kirk in violation of 30 U.S.C. 

Section 815(c) “for his protected activity of raising safety concerns to Uruchurtu by issuing a 

verbal warning regarding alleged insubordination,” “based on its beliefs he engaged in the 

protected activity of making safety complaints to MSHA by issuing a verbal warning regarding 

alleged insubordination,” and “interfered with Kirk’s statutorily protected right to raise safety 

concerns with MSHA and Plant management by issuing a verbal warning regarding alleged 

insubordination.” (Compl. at 5.) Therefore, the Secretary requests declaratory judgements that 

CEMEX unlawfully discriminated against Kirk and interfered with his statutorily protected 

rights. (Compl. at 5.) The Secretary also requests orders requiring all members of CEMEX’s 

management team to participate in a training course on protected rights and an order assessing an 

appropriate civil monetary penalty. (Compl. at 6.)

B. Respondent’s Motion for Summary Decision and the Secretary’s Response

In its Motion for Summary Decision CEMEX argues, among other things, primarily: (1) 

Complainant did not engage in good faith protected activity, but even if he did, (2) the adverse 

action imposed by CEMEX was not motivated in any part by Kirk’s engagement in protected 

activity. (Mot. Mem. at 5.) CEMEX attaches several documents including portions of 

deposition testimony from Kirk, as well as Uruchurtu. The Secretary in her Response in 

Opposition to Respondent’s Motion for Partial Summary Decision argues many disputed 

material facts exist and that Respondent’s motion should be construed as a partial motion for 

summary decision because Respondent failed to move for a decision on, or even meaningfully 

address, the interference claim. (Sec’y Resp. at 1–2.) The Secretary further asserts many of 

CEMEX’s factual assertions lack any citation to supporting record evidence in violation of 29 

C.F.R. § 2700.67(c). The Secretary attaches several documents including the deposition of

Carlos Uruchurtu, the deposition of Kirk, Respondent’s answers to Interrogatories, and copies of 

the original citations.
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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 Act1bars 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., 

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“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). 
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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.

III. DISCUSSION AND ANALYSIS

A. Disputed Facts for Protected Activity Under Section 105(c)

The parties dispute material facts related to Kirk’s discrimination claim. In particular, the

parties dispute facts related to the condition of the kiln, notification of the shutdown of the kiln, 

and Kirk’s knowledge of the kiln’s condition and purported shutdown. Respondent CEMEX 

asserts that on May 26, 2023, the kiln’s “condition[] vastly improved that morning.” (Mot. 

Mem. at 11.) Yet other evidence, including Uruchurtu’s deposition, suggest part of the kiln 

failed that morning causing dust to leak from the dog box. (Mot. Mem. at 3; Sec’y Ex. A

Uruchurtu Dep. 54:20–23; Sec’y Ex. B Kirk Dep. 62:21–63:7.) Therefore, the condition of the 

kiln on the morning of May 26, 2023, is disputed. This is material because the kiln’s condition 

may have affected Kirk’s understanding of the urgency and degree of the alleged safety hazard. 

In its motion CEMEX also argues that plant management was aware of the issues with 

the kiln and actively addressed the issue. (Mot. Mem. at 11.) Yet the Secretary points to Kirk’s 

deposition testimony that suggests Ekstrom was trying to avoid shutting down the kiln. (Sec’y 

Resp. at 5; Sec’y Ex. B Kirk Dep. 64:14–18.) Therefore, material facts surrounding CEMEX 

management’s attitude toward the kiln’s shut-down and the steps management was taking to shut 

down the kiln are in dispute.

CEMEX argues that “Uruchurtu instructed the production manager, Marcelo Leal, to 

direct Jacob Ekstrom, the Superintendent of the K-1 kiln, to begin the shut-down process” at 

6:42 a.m. on May 26. (Mot. Mem. at 6; Mot. Ex. 3 at CEMEX000497.) Yet, the Secretary 

points to a text message that states, “stop the kiln as soon as you are ready,” and notes the lack of 

evidence that notification to shut down the kiln was given at this time. (Sec’y Resp. at 3.) 

Therefore, the timing, manner, and occurrence of the instruction to shut down the kiln are in 

dispute, which are material facts in this case.

CEMEX claims that Kirk made the complaints after being told by Ekstrom that the order 

to shut down the kiln had been given. (Mot. Mem. at 5–7; Sec’y Resp. at 5–6; see Mot. Ex. 4

Kirk Dep. 62:14–18.) Yet the Secretary alleges and points to evidence suggesting Kirk did not 

know the order to shut down the kiln had been given. (Sec’y Resp. at 5–6; Sec’y Ex. B Kirk 

Dep. 62:14–18.) Therefore, Kirk’s knowledge regarding the kiln’s shut down is in dispute, 

which is material in this case.

CEMEX alleges Uruchurtu explained to Kirk in their meeting after the safety complaints 

were made, that Uruchurtu was working to troubleshoot the issue with the kiln and the specific 

steps Uruchurtu had taken to resolve the issue; yet, the Secretary disputes this fact, and 

Uruchurtu, in his deposition, could not remember saying this and did not understand what Kirk 
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was saying when Kirk interrupted his meeting. (Mot. Ex. 3 at CEMEX000579–580; Mot. Mem. 

at 7; Sec’y Ex. A Uruchurtu Dep. 82:15–16, 98:13–18; Sec’y Resp. at 6.)

CEMEX also argues that Kirk did not raise the “issue of an immediate danger to the 

employees of the plant” due to the kiln at the shift-change meeting. (Mot. Mem. at 5.) However, 

Kirk indicates in his deposition testimony “we talked about the kiln and the dusting” and “[t]hat 

they were still running, dusting and all that stuff” and further stated “[y]ou know, there’s a lot of 

huge safety concerns.” Therefore, whether and to what extent the safety of the kiln may have

been discussed at the shift-change meeting is a material fact in dispute. (Sec’y Ex. B Kirk Dep. 

62:13–24, 63:1–7; Sec’y Resp. at 5.)

B. Kirk’s Claim is not Moot

CEMEX filed a Supplement to Respondent’s Motion for Summary Decision reporting

that Kirk voluntarily resigned his employment with CEMEX, effective May 12, 2023. CEMEX 

asserts that due to Kirk’s resignation, he “no longer [has] a legally cognizable interest in the 

outcome,” making this matter moot. (Suppl. at 1); Mid-Continent Res., Inc., 12 FMSHRC 949 

(May 1990). However, the Secretary notes, “[s]hould Kirk’s disability status change or he seek 

further employment for any reason, removal of the discipline from his file and/or a neutral 

employment reference would provide a benefit for future job applications.” (Sec’y Resp. at 16–

17.) CEMEX’s citation to the Administrative Law Judge case Sonney v. Alamo Cement 

Company is misplaced because the miner there “ha[d] already received assurances that his 

personnel record ha[d] been cleansed and that Alamo [would] not provide negative employment 

recommendations”). Sonney v. Alamo Cement Co., Ltd., 29 FMSHRC 310, 315 (2007) (ALJ). 

That is not the case here with Kirk and CEMEX.

C. Interference Claim

The Secretary notes that CEMEX does not meaningfully address Complainant’s 

interference claim in its motion. Thus, the Secretary argues that, if I were to grant CEMEX’s 

motion, I should construe it only as a motion for partial summary decision because the 

interference claim still survives. (Sec’y Resp. at 16–17.) Because Respondent bears the burden 

of proving there are no material facts in dispute, I cannot rule in favor of CEMEX on the 

interference claim, given that it did not argue explicitly regarding the interference claim. 

Moreover, I determine many of the disputed material facts discussed above are also relevant to 

the interference claim and, therefore, summary decision on this issue is not appropriate.

D. Conclusion

When viewed in the light most favorable to the Secretary, I therefore determine that 

several genuine issues of material fact exist in this section 105(c) proceeding. Given this 

determination, I conclude that CEMEX is not entitled to summary decision as a matter of law

under Commission Procedural Rule 67(b). 29 C.F.R. § 2700.67(b).
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IV. ORDER

Respondent’s Motion for Summary Decision is DENIED. The hearing will be held as 

previously scheduled on May 23–24, 2023, in Tampa, Florida.

Alan G. Paez

Administrative Law Judge

(202) 233-3889

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

Rachel M. Bishop, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 

61 Forsyth Street S.W. Room 7T10, Atlanta, GA 30303-8816 

(bishop.rachel.m@dol.gov)

(abreu.jean.c@dol.gov)

(atl.fedcourt@dol.gov) 

Michael T. Cimino, Esq. & Benjamin J. Wilson, Esq., Jackson Kelly PLLC, P.O. Box 553, 

Charleston, WV 25322-0553 

(mcimino@jacksonkelly.com)

(benjamin.wilson@jacksonkelly.com)

/gw