Hopkins Cnty. Coal, LLC v. Acosta
| Decision Date | 18 July 2017 |
| Docket Number | No. 16-3848,16-3848 |
| Citation | 875 F.3d 279 |
| Parties | HOPKINS COUNTY COAL, LLC, Petitioner, v. Alex ACOSTA, Secretary of Labor, Mine Safety and Health Administration; Federal Mine Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
COUNSEL ARGUED: Melanie J. Kilpatrick, Rajkovich Williams Kilpatrick & True, PLLC, Lexington, Kentucky, for Petitioner. Philip Mayor, United States Department of Labor, Arlington, Virginia, for Respondent Secretary of Labor. ON BRIEF: Melanie J. Kilpatrick, Marco M. Rajkovich, Jr., Rajkovich Williams Kilpatrick & True, PLLC, Lexington, Kentucky, Gary D. McCollum, Hopkins County Coal, LLC, Lexington, Kentucky, for Petitioner. Philip Mayor, W. Christian Schumann, United States Department of Labor, Arlington, Virginia, for Respondent Secretary of Labor.
Before: KEITH, ROGERS, and KETHLEDGE, Circuit Judges.
KEITH, J., delivered the opinion of the court in which ROGERS, J., joined. KETHLEDGE, J. (pgs. 296–97), delivered a separate dissenting opinion.
This appeal involves the scope of the Secretary of Labor's ("Secretary") power to access company documents during investigations of discrimination complaints under the Federal Mine Safety and Health Act of 1977 ("Mine Act"). An employee of Hopkins County Coal ("HCC"), Robert Gatlin ("Gatlin"), filed a discrimination complaint with the Department of Labor's Mine Safety and Health Administration ("MSHA"). After forwarding the discrimination complaint to HCC and making an initial request to interview HCC managerial employees, the MSHA sent a letter to HCC requesting to review five sets of documents that it claimed were necessary to properly evaluate Gatlin's discrimination claim. Following a series of letters and a site visit to the mine, HCC refused to produce (1) Gatlin's personnel file and (2) the personnel files of all other employees at the mine where Gatlin was employed who faced discipline, reprimand, or termination during the previous five years for engaging in the conduct which led to Gatlin's termination. During the site visit, an MSHA investigator issued two citations and an order to HCC under § 104(a) and (b)1 of the Mine Act, and HCC contested those citations with the Federal Mine Safety and Health Review Commission ("Commission"). Following a hearing, an ALJ upheld the citations and order, and the Commission affirmed the decision. On appeal, HCC claims that (1) the MSHA exceeded its authority under the Mine Act by demanding company personnel documents without first identifying any basis for a discrimination claim and (2) the MSHA's demands to inspect the records violated HCC's Fourth Amendment rights. For the following reasons, we AFFIRM .
HCC owned and operated the Elk Creek Mine (hereinafter "the Mine") in Madisonville, Kentucky. Gatlin was terminated from his job as a non-union belt examiner at the Mine on January 8, 2009, after refusing to perform a pre-shift examination that he believed entitled him to an extra hour of pay. HCC's stated reason for terminating Gatlin was "insubordination." On January 20, 2009, Gatlin filed a discrimination complaint against HCC with the MSHA, and an MSHA complaint processor forwarded a copy of the discrimination complaint to HCC. A cover letter attached to the complaint informed HCC that there was an investigator assigned to the case who would contact the company during the fact-finding stage of the investigation. Gatlin's complaint against HCC stated as follows:
I feel that I was unfairly terminated due to being directed to do more than my regular job duties on a daily basis, which I would do on weekends for extra pay. I also feel that the comment about the union played a part in my being discharged. I would like my job back, any negative comments deleted from my personnel file and backpay for the time I've been off. I feel that my name has been black balled in the mining industry around here and they will not hire me.
The Commission would later determine that this complaint, standing alone, did not set forth a protected activity for a discrimination claim pursuant to § 105(c) of the Mine Act.2 Secretary of Labor v. Hopkins Cty. Coal, LLC , 38 FMSHRC 1317, 1318 (June 2016).
However, the day after the complaint was sent to HCC, MSHA Special Investigator Kirby Smith ("Smith") conducted a post-complaint interview of Gatlin and determined that Gatlin may have engaged in a protected activity under the Mine Act. Specifically, Smith testified that his interview with Gatlin revealed that HCC may have instructed Gatlin to fix, repair, or correct an unsafe condition in the Mine in lieu of recording each potential safety violation. Gatlin also reported to Smith that his job had become so burdensome that he didn't have sufficient time to correct the unsafe conditions he discovered. Additionally, Smith believed based on the post-complaint interview that Gatlin may have been reporting an increased number of hazardous conditions to management in his pre-shift and on-shift book.3
Following the post-complaint interview, Smith prepared a letter requesting permission from MSHA District Manager Carl Boone ("Boone") to initiate an investigation into Gatlin's case. Boone approved and signed the letter, which was addressed to HCC General Manager William Adelman ("Adelman") and requested interviews with five of HCC's management-level employees regarding Gatlin's discrimination complaint. The letter, dated January 26, 2009, was sent to HCC. In response, counsel for HCC "refused to arrange the requested interviews unless MSHA identified the protected activity alleged in [Gatlin's] discrimination claim." Hopkins Cty. Coal , 38 FMSHRC at 1319. MSHA never responded directly to this letter.
On February 23, 2009, Boone sent another letter stating that MSHA was conducting an investigation into Gatlin's discrimination complaint and requested six sets of documents that MSHA determined to be "necessary to properly evaluate the claim." The request for documents included: (1) a copy of Gatlin's personnel file; (2) any documents showing disciplinary action that was taken against Gatlin by HCC; (3) documents showing any hazards or potentially hazardous conditions at the Mine that were recorded between July 1, 2008 and January 31, 2009; (4) any HCC employee handbook or manual; (5) the personnel files of all employees at the Elk Creek Mine who were disciplined, reprimanded, or terminated during the period of January 1, 2004—January 20, 2009 for engaging in the conduct which led to Gatlin's termination ("comparators"); and (6) all documents relied on by HCC in its decision to terminate Gatlin. The letter stated that all documents requested therein should be provided by close of business on March 2, 2009 and noted that a failure to comply with the request would result in the matter being considered for legal action under § 1084 of the Mine Act. After the exchange of several letters between Boone and HCC counsel, HCC agreed to produce all the documents requested except for the personnel files of Gatlin and the comparators.
On March 20, 2009, Boone notified HCC that MSHA investigators would arrive at the Mine to conduct a site visit on March 23, 2009. Boone stated his expectation that the personnel files would be provided to the investigators at that time. Once again, HCC counsel responded with a letter challenging the MSHA's right to review the personnel files and contended that the company is entitled to know the protected activity underlying Gatlin's discrimination claim as a prerequisite to its duty to produce the requested documents. MSHA never responded.
On March 23, 2009, Smith and MSHA Investigator Adamson arrived at the Mine and were met by Adelman, the Mine's general manager. At approximately 8:15 a.m., Smith requested to review the personnel files, and Adelman refused to make them available. Then, Smith issued a citation to HCC for failing to produce files as required of mine operators ("operators") under § 103(a) and (h) of the Mine Act.5 Smith gave Adelman forty-five minutes, until 9:00 a.m., to abate the violation. After Adelman spoke with HCC counsel, he informed Smith that he did not intend to turn over the personnel files. Consequently, at 9:00 a.m., Smith issued a withdrawal order under § 104(b) of the Mine Act. Five minutes later, at 9:05 a.m., Smith issued a final citation for continuing to operate in the face of a withdrawal order. Because the violation was not abated, HCC became subject to daily civil penalties of up to $5,000 per day pursuant to § 110 of the Mine Act.6
On the same day that HCC received two citations and a withdrawal order arising from their refusal to produce the requested personnel files, HCC filed a notice of contest with the Commission. On March 26, 2009 following a conference between the parties, HCC voluntarily produced Gatlin's personnel file and the redacted personnel files of the comparators, thereby relieving HCC of continuing liability for daily civil fines.
On June 7, 2011, a hearing was held before an ALJ from the Federal Mine Safety and Health Review Commission. During those proceedings, HCC contested the validity of the two citations and the withdrawal order issued by MSHA Inspector Smith during his site visit to the Mine. HCC argued, inter alia , that: (1) § 103 of the Mine Act does not authorize the Secretary to request personnel files which are not required to be kept under the Mine Act during the course of discrimination investigations; and (2) the demand for personnel files violated HCC's Fourth Amendment Rights.7 The Commission provided the following summary of the ALJ's decision, which upheld the citations and order:
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