**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

Office of Administrative Law Judges

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

Washington, D.C. 20004

 

 

| 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 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.

**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[1] 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. 

 

**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 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).

 

** **

**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.

 

 

 

/s/ Alan G. Paez

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

----

[1] “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).