FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240 / FAX: 412-928-8689

May 13, 2022

ORDER GRANTING TEMPORARY REINSTATEMENT

OF FRANK CAFEGO

Before: Judge Lewis

Pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 

U.S.C. § 801, et. seq., and 29 C.F.R. § 2700.45, the Secretary of Labor (“Secretary”) on April 28, 

2022, filed an Application for Temporary Reinstatement of miner Frank Cafego (“Complainant”) 

to his former position as an equipment operator and truck driver with Civil, LLC.

(“Respondent”) at Respondent’s mine pending final hearing and disposition of the case.

According to Commission Rule 45, a request for hearing must be filed within 10 days 

following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R. 

§ 2700.45(c). The Application for Temporary Reinstatement was served on Respondent by 

electronic mail on April 29, 2022. My management analyst provided Respondent with 

Commission Rule 45 on May 4, 2022. The Respondent has not filed a timely Request for 

Hearing. The Secretary proposed on May 11, 2022, an Order of Temporary Reinstatement,

which I approve herein.

The Secretary has found that the Complaint was not frivolously brought and, as explained 

below, has provided evidence supporting that determination. Therefore, consistent with Section 

105(c) of the Act, the temporary reinstatement of Frank Cafego is granted.

Law and Regulations

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act and provides that a miner may file a complaint with the 

Secretary alleging discrimination. 30 U.S.C. § 815(c)(1-2). The plain language of the Act also 

provides that “if the Secretary finds that the complaint was not frivolously brought, the 

Commission, on an expedited basis upon application by the Secretary, shall order the immediate 

reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2) 

(emphasis added). 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 on behalf of FRANK CAFEGO,

 Complainant,

v.

CIVIL, LLC,

 Respondent

TEMPORARY REINSTATEMENT

Docket No. WEVA 2022-0317

MSHA Case No.: HOPE CD 2022-04

Mine: CV #2 Surface Mine

Mine ID: 46-09105
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The Commission’s regulations control the temporary reinstatement procedures. Once an 

application for temporary reinstatement is served on the person against whom relief is sought, 

that person shall notify the Chief Administrative Law Judge or his designee within 10 calendar 

days whether a hearing on the application is requested. 29 C.F.R. § 2700.45(c). If no hearing is 

requested, the Judge assigned to the matter shall review immediately the Secretary’s application 

and, if based on the contents thereof, the Judge determines that the miner’s complaint was not 

frivolously brought,1 shall issue immediately a written order of temporary reinstatement. Id.

If there is a hearing, the Judge must determine whether the complaint of the miner “is 

supported by substantial evidence and is consistent with applicable law.”2 Sec’y of Labor on 

behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). In the instant 

case, however, the Respondent has not timely filed a request for hearing. Thus, Commission 

Procedural Rule 45(c) compels me to review the Secretary’s determination that the complaint in 

this matter was not frivolously brought. See 29 C.F.R. § 2700.45(c).

Disposition

The Secretary has provided the evidentiary basis for his determination that the complaint 

in this matter has not been frivolously brought. The Act requires the Secretary to investigate the 

miner’s complaint of discrimination. 30 U.S.C. § 815(c)(2). The Secretary’s application includes 

the Complaint filed by Complainant (Exhibit “A” to the Application) and the Declaration of 

Special Investigator Russell Richardson indicating that this was done (Exhibit “B.”) 

Mr. Richardson’s Declaration provides facts in support of the Secretary’s conclusion that 

the complaint was not frivolously brought:

1. At all relevant times, Civil, LLC, (“Civil”) was a Limited Liability corporation 

and is a “person” as defined in § 3(f) of the Mine Act.

2. Applicant was employed as an equipment operator and truck driver at Civil, 

LLC, and therefore, was a “miner” within the meaning of § 3(g) of the Mine 

Act.

3. Applicant was employed at the mine for approximately three months, from 

January 2022 until he was discharged from his employment on March 25, 

2022.

4. On April 7, 2022, Cafego filed a discrimination complaint with MSHA for 

being fired on March 25, 2022.

1 The Act’s legislative history suggests that a complaint is not frivolously brought if it “appears 

to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In addition to 

Congress’ “appears to have merit” standard, the Commission and the courts have also equated 

“not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” Sec'y of Labor 

on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 

738, 747 & n.9 (11th Cir. 1990). 

2 “Substantial evidence” means “such relevant evidence as a reliable mind might accept as 

adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).
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5. Applicant alleges that he was fired because he engaged in protected activities.

6. Applicant alleges that he complained to management about the condition of 

the equipment that he was assigned to operate on numerous occasions prior to 

his being discharged. For instance, Mr. Cafego complained to management 

repeatedly during his employment of an anti-freeze leak and lack of air 

conditioning in the truck he was assigned to operate, which required him to 

operate the truck with the windows open and exposed him to excessive 

amounts of dust being generated at the worksite.

7. The investigation into Cafego’s complaint is ongoing. To this point, I have 

interviewed several employees and management personnel at the mine. 

Employees and management corroborated that Cafego complained about the 

condition of the equipment on numerous occasions. Management personnel 

admitted that they were aware of Cafego’s complaints. Management personnel 

stated that the reason Mr. Cafego was discharged was in part because he 

complained too much.

Dec. of Russell Richardson, April 28, 2022 (Ex. “B” to App. For Temp. Reinst.)

The facts provided in support of the agency’s decision, if true, would establish 

jurisdiction, a timely complaint of discrimination, and that Complainant engaged in protected 

activity and suffered an adverse action close in time to the protected activity, under 

circumstances that provide a reasonable cause to believe that there was a causal nexus between 

his participation in an MSHA investigation and his termination.

Findings and Conclusion

At this stage, the facts alleged by the Secretary are undisputed. Therefore, I find that the 

complaint for discrimination has not been frivolously brought, and that Complainant Frank 

Cafego is entitled to Temporary Reinstatement under the provisions of Section 105(c) of the Act.

ORDER

It is hereby ORDERED that Frank Cafego be immediately TEMPORARILY 

REINSTATED to the position he held on the date of his discharge from Civil, LLC, or a 

comparable position within the same commuting area and at the same rate of pay and benefits he 

received prior to his discharge. 

This Order SHALL remain in effect until such time as there is a final determination in 

this matter by hearing and decision, approval of settlement, or other order of this court or the 

Commission.
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 I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. 

§ 2700.45(e)(4). The Secretary shall provide a report on the status of the underlying 

discrimination complaint as soon as possible. 

 

John Kent Lewis 

 Administrative Law Judge

Distribution: 

Cole Quintrell, Superintendent, 799 Highway 3459, Harlan, KY, 40831 (cole@civilllc.us) 

Andrea M. Milyko, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12th Street 

South, Suite 401, Arlington, VA 22202 (milyko.andrea.m@dol.gov) 

Frank Cafego, P.O. Box 293, Kincaid, WV 25119 (cafegofrank@gmail.com)