ORDER
TERRENCE BOYLE, District Judge
This matter is before the Court on Plaintiff and Defendant's Motions for Summary Judgment. Plaintiffs motion is DENIED. Defendant's motion is GRANTED in part and DENIED in part as the Court allows Plaintiff's Title IV claim for a hostile work environment to proceed while granting the Defendant summary judgment for Plaintiffs retaliation claim.
I. FACTS
Plaintiff has been an employee at Food Lion since 1999. She is now suing for having suffered a hostile work environment under Title VII. The Plaintiff alleged that the following incidents of sexual assault occurred during her employment:
Plaintiff was first assaulted when Defendant's Store Manager Rocky Ester attempted to rape her when she was 16. Later, Plaintiff was raped by coworker "Eden" in 2004 or 2005. (Coward Dep. 266-268, June 8, 2010). Plaintiff was also violently raped by coworker "Edwin" during a Food Lion Business Trip in 2005. (Coward Dep. 191-200, 266). Plaintiff initially did not report these incidents.
Also during 2004 or 2005, Assistant Store Manager Chris Barnette made sexual proposals to Plaintiff, exposed himself to her, and rubbed his penis against her hand, all against Plaintiff protests. (Coward Dep. 138-140). Plaintiff initially did not report this incident.
Plaintiff was unable to provide a specific period for the Chris Barnette and Eden incidents.
In December 2007, Plaintiff transferred from Defendant's Store 1374 in Raleigh to Store 1557, also in Raleigh. On January 17, 2008, coworker Starvos Matthiadis slapped and rubbed her bottom. Plaintiff yelled at him, using several expletives. Matthiadis then blocked Plaintiffs passage, refused her requests to move, grabbed her breasts three times on the pretense of removing some dirt from her shirt, and put his hands inside her shirt to touch her navel. He also put his hands around her neck and hugged her hard enough that she could not breathe. He refused Plaintiff's requests to release her, so she had to push him away. Plaintiff states that a concerned customer witnessed the incident and asked her if she was alright. (Coward Dep. 110-112). Plaintiff responded by leaving the store immediately. Shortly after, Plaintiff told coworker Elizabeth Raimondo about the incident, who notified store manager Brian Roof. Roof contacted Human Resources and had Plaintiff leave work an hour and a half early for a few days to avoid being on the same schedule as Matthiadis. Food Lion Investigator Enitan Kalejaiye spoke to Plaintiff around January 22, and Plaintiff reported the earlier incident with Chris Barnette for the first time. (Coward Dep. 134-137). Barnette and Matthiadis denied the accusations, and the investigator could not substantiate Plaintiff's claims. (Coward Dep. 134).
Plaintiff next encountered Matthiadis while with Deli Manager, Saffie Conteh, on January 24, 2008. Although Plaintiff was visibly upset by seeing him again, Matthiadis rubbed the Plaintiffs shoulders and back, stating, "[h]ey sweetie. I missed this girl. I love this girl. Where she'd been?" Plaintiff pushed him away and told him to stop touching her. Conteh also told Matthiadis to stop touching Plaintiff and to leave her alone. (Coward Dep. 115)
On January 28, 2008, Plaintiff saw Matthiadis again while shopping in Store 1557. Matthiadis hugged Plaintiff from behind so hard that she could not breath, stating "Sweetie where are you." Plaintiff began crying and shaking, and pushed him away and told him not to touch her anymore. (Coward Dep. 119-122). Plaintiff's nephew, who was visiting, and the store cashier also told Matthiadis to leave Plaintiff alone. Plaintiff reported the incident to Roof, who apologized profusely, stating that Kalejaiye was supposed to have talked to Matthiadis but "obviously" had not yet. (Coward Dep. 123). After this incident, Matthiadis never bothered Plaintiff again. Yet in her motion for summary judgment, Plaintiff outlines several earlier incidents of sexual harassment with Matthiadis that she had not previously mentioned in her complaint or deposition.
Subsequent to reporting the final incidents with Matthiadis, Plaintiff was transferred twice until finally requesting to work at her present location of employment, Store 1484 in Raleigh, in April 2008. It was here that Plaintiff was again sexually harassed on March 25, 2010: Coworker Chris Galliher arrived at work intoxicated and told Plaintiff that he had a wild night, and said "I did everything in the book but to call [you] over, baby." At this time, Galliher placed his hands on Plaintiff's waist and pulled Plaintiff toward him. Plaintiff told him to let her go and pushed him away. Gallliher continued to make inappropriate comments to her throughout the day. (Coward Dep. 165-166). Plaintiff reported the incident to her supervisor, Douglas Wheeler, and Human Resources. (Coward Dep. 166-168). Galliher was suspended, but Plaintiffs cooperation with in-house Investigator Robin Green was very limited as she was evidently too upset to discuss the incident. The investigation did not substantiate Plaintiffs claims. (Coward Dep. 173-177). In an effort to make Plaintiff more comfortable and reduce the possibility for any future conflict, the store manager assigned a different employee to take Galliher's duty in unloading the trucks in the deli department, which had previously put him into contact with Plaintiff. The store manager also ensured that a manager would accompany Plaintiff whenever she worked in areas where she may encounter Galliher.
Plaintiff continues to work for the Defendant.
II. DISCUSSION
The Court denies the Defendant's Motion for Summary Judgment on Plaintiffs claim for a hostile workplace under Title VII, as a reasonable jury could find for Plaintiff on this claim.
In reaching this conclusion, the Court declines to consider incidents occurring earlier than 2008, as these events are time-barred. The Court also ignores the new allegations outlined in the Plaintiff's Motion for Summary Judgment. Yet considering only the alleged events in 2008 and 2010, the Court finds the Plaintiff provides adequate facts to overcome the Defendant's motion.
A. Hostile Work Environment Claim 1. Events occurring in 2004, 2005, and 2006
The Court cannot consider Plaintiff's claims of sexual harassment occurring before 2008. To have standing to file suit under Title VII, a plaintiff must exhaust her administrative remedies by filing a charge with the EEOC. In addition, the EEOC charge must be filed within 180 days of the occurrence of the alleged conduct. See Jenkins v. Trustees of Sandhills Comm. College, 259 F. Supp. 2d 432, 441 (M.D.N.C. 2003); 42 U.S.C. § 2000e-5(e)(1). Plaintiff filed her EEOC charge on July 2, 2008. Thus, any alleged actions occurring more than 180 days prior to July 2, 2008 — i.e., before March 14, 2008-are time-barred.
According, the Court cannot consider the Plaintiffs claims that she suffered two rapes, one attempted rape, and sexual exposure and assault as Plaintiff states that all these events occurred before 2008.
2. New Facts Alleged in Summary Judgment Motion
The Court will also not consider the additional events that Plaintiff alleged in her Motion for Summary Judgment as she improperly failed to include these allegations in her previous pleadings and testimony. It is well established that "a plaintiff may not avoid summary judgment by submitting an affidavit that conflicts with earlier deposition testimony." Alba v. Merrill Lynch Co., 199 Fed. Appx. 288, 300 (4th Cir. 2006).
Here, the Defendant explicitly asked Plaintiff at the end of her deposition whether there were any other facts supporting her Title VII claim, and Plaintiff said there was not. (Coward Dep. 277). Now Plaintiff contradicts this response by offering several additional incidents of sexual harassment by Matthiadis. The Court cannot consider this new evidence.
3. Events in 2008 and 2010
Despite the exclusion of the above events, the Court finds the Plaintiff plead sufficient facts for a jury to award her a verdict for her Title VII claim. The Court thus denies summary judgment to Defendant on this issue.
To establish a claim for sexual harassment under Title VII, the Plaintiff must prove that (1) the subject conduct was unwelcome, (2) it was based on the sex of the Plaintiff, (3) it was sufficiently severe or pervasive to alter the Plaintiffs conditions of employment and to create an abusive work environment, and (4) it was imputable on some factual basis to the employer. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). A court should consider all of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. This standard is designed to "filter out complaints attacking `the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'" Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Barbara Lindemann David Kadue, Sexual Harassment in Employment Law 175 (1992)). At the same time, the standard "protect[s] working women from the kind of male attentions that can make the workplace hellish for women."Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995). This standard is an objective one, and an individual plaintiffs sensitivities should not be considered. Mangum v. Town of Holly Springs, 551 F. Supp. 2d 439, 443 (E.D.N.C. 2008).
In a case where an employee is sexually harassed by a coworker, the employer can be liable if it knew or should have known about the harassment and failed to take effective action to stop it.Ocheltree v. Scollon Productions, Inc. 335 F.3d 325, 334 (4th Cir. 2003).
The Defendant claims that Plaintiffs allegations are not objectively severe or pervasive to create an abuse work environment under Title IV; the Court, however, finds a jury could conclude otherwise. Matthiadis blocked Plaintiffs passage and fondled her buttocks, breasts, stomach, and neck, all against her protests. Even after Plaintiff discussed this incident with supervisors, Matthiadis twice more touched Plaintiff inappropriately despite her being visibly upset and protesting on both occasions.
Defendant also claims that this conduct is not imputable to Food Lion. Yet a jury may very well conclude that Matthiadis only continued this behavior because the Defendant did not discuss his unacceptable behavior with him and warn him to stay away from Plaintiff in a timely matter. In her deposition for example, Plaintiff states that after she reported the second and third incidents to Store Manager Roof, he apologized several times and said that Investigator Kalejaiye should have spoken to Matthiadis and "obviously" had not yet. (Coward Dep. 123). This theory is consistent with Matthiadis's confusion regarding why Plaintiffs schedule had been changed. (Coward Dep. 115-122) ("Sweetie where are you . . . Where she'd been?"). Indeed, the Defendant claims that Kalejaiye talked to Matthiadis and counseled him on the store's harassment policies, but does not state what date this occurred. (Kalejaiye Aff. 2, July 23, 2010; Def.'s Mot. Summ. J. 4; Roof Aff. 3, July 6, 2010). In addition, while Defendant states the date it spoke to Galliher and provides the sexual harassment policy it required Galliher to sign after investigating the accusations against him, it offers neither for Matthidis. (Green Aff. 3, July 23, 2010). As Defendant states the Matthiadis investigation ended in March 2008, the Court is left to wonder at what point during the nearly three month investigation that anyone actually spoke to Matthiadis. (Kalejaiye Aff. 3).
As to Plaintiff's allegations regarding coworker Chris Galliher on March 25th, 2010, the Court does not find these claims necessary to her sexual harassment claim. They can however, be included in her claim. Although the incident occurred in a different store and two years later than the incidents with Matthiadis, a jury could view the event added to the "pervasive" conditions of the three earlier incidents. In addition, a jury could find the Defendant's conduct imputable if it did in fact allow a visibly intoxicated employer to work and did nothing to stop his allegedly inappropriate comments to Plaintiff that continued throughout the day.
Therefore, a reasonable jury could find the Defendant liable for a hostile work environment, and the Court allows the Plaintiff's Title VII claim to proceed.
B. Retaliation Claim
The Court grants summary judgment to Defendant on Plaintiffs Title VII retaliation claim. To establish a case for retaliation, a plaintiff must show that (1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action. Beall v.Abbott Laboratories, 130 F. 3d 614, 619 (4th Cir. 1997). Plaintiff claims that Defendant retaliated against her by demoting her and cutting her hours. However, Plaintiff has not alleged facts showing either of these claims.
Plaintiff first alleges she was demoted from Deli Manager to Cake Decorator. However, the only evidence Plaintiff presents to support this demotion is the title listed on her pay stubs. Plaintiffs actual pay was not decreased, nor where her responsibilities diminished. To the contrary, Plaintiff assumed more duties after reporting sexual harassment to her superiors, and was given a raise in January 2009. (Coward Dep. 270-273).
Plaintiff also contends that her hours were cut after she reported harassment. She alleges this occurred in store 1557 when Defendant asked her to leave work early to avoid Matthiadis while the store investigated her harassment claims. Plaintiff admits however, that she only had to leave an hour and a half early for a few days at most. (Coward Dep. 216-217). This act is insufficient to constitute adverse employment action.
In addition, Plaintiff claims her hours were cut after she was transferred from 1557 to other Food Lion locations. However, Plaintiffs allegations on this subject are vague and difficult to follow, especially as Plaintiff admits missing many hours of work for her own personal reasons. (Coward Dep. 244). Assuming her hours were in fact cut, Plaintiff has not pled facts showing that this occurred in retaliation for her reporting sexual harassment. To the contrary, Defendant helped her find work at other locations after Plaintiff quit store 1557 in an emotional moment.Id.
Thus, the Plaintiff has not showed she was retaliated against and the Court grants summary judgment on this issue to the Defendant.
III. CONCLUSION
The Court denies summary judgment to the Defendant for Plaintiffs claim for hostile work conditions, but grants summary judgment to Defendant for Plaintiffs retaliation claim. In addition, the Court denies Plaintiffs Motion for Summary Judgment as a jury must resolve the material issues of whether the alleged harassment was sufficiently severe or pervasive to constitute a hostile work environment and whether the Defendant was responsible for this harassment under Title VII.
SO ORDERED, this 22 day of October, 2010.
ef82 F.3d 451, 457 (D.C. Cir. 1996)) (ellipsis in original). In
Nuclear Energy, the Energy Policy Act required the agency to issue standards "based upon and consistent with the findings and recommendations of the National Academy of Sciences [`NAS1]."
Id. at 1269. The court held the regulations were not "consistent with" the NAS's findings because the agency had "rejected NAS's findings, and then went on to promulgate a dramatically different standard, one that [NAS] had expressly rejected."
Id. at 1270. The court concluded that the agency's action "so completely diverges from any realistic meaning of the [statute] that it cannot survive scrutiny under
Chevron Step Two."
Id. (alteration in original). On the other hand, in
Envtl. Def Fund, the court concluded the agency's incorporation of minor deviations from the statutory standard was reasonable. The rule approved of plans that deviated from the statutory implementation schedules in view of problems identified by the applicant that caused the delays. The agency had explained this modification was a "practical
necessity to accommodate uncontrollable delays."
Envtl Def. Fund, 82 F.3d at 457 (quoting 58 Fed.Reg. at 62,197) (quotation marks omitted). So too in
Sierra Club v. EPA, 356 F.3d 296, 304-06 (D.C. Cir. 2004), the court concluded that the agency's determination of ozone air quality attainment was "based on" a photochemical grid model, as required by the statute. The court rejected the suggestion that "based on" means "the sole basis for,"
id. at 306, but stated that the phrase would not permit a determination that "wholly abandoned the results of a model,"
id. The court concluded the statute was satisfied because the model was the primary basis and starting point for the attainment demonstration. The states in the Washington, D.C. metropolitan area initially failed to demonstrate ozone air quality attainment under the model, but the agency permissibly "adjusted the model's extrapolations in light of [its] concerns about the model's reliability and uncertainty" and determined attainment was successfully demonstrated.
Id. at 305. Under this precedent, then, MSHA could permissibly adopt changes to the NIOSH recommendations in response to issues raised by commentators or the agency itself, but it could not adopt a provision that is contrary to the NIOSH Report.
The UMWA maintains that MSHA "abandoned" the NIOSH Report "recommendation of quarterly training consisting of both hands-on motor skills component and expectations training." Pet'r Br. 27. With the exception of quarterly task training in the non-emergency task of proper transportation of the refuge alternatives and components, 30 C.F.R. § 75.1504(b)(9), the UMWA considers the much more limited quarterly training in the Final Rule to "amount[] to nothing more than a paper review of procedures that operators could meet by handing miners a stack of documents. See 30 C.F.R. 75.1504(b)(6) and (8)." Pet'r Br. 27.
The training provision in the Final Rule, 30 C.F.R. § 75.1504, does not abandon training requirements even though it does not provide for quarterly hands-on training; such training is required annually. MSHA's suggestion that the Final Rule could ignore NIOSH's recommendations on training because "Congress' mandate to NIOSH did not extend to training" is not well taken. Resp't Br. 18. In laying out guidelines for training, NIOSH acted within its statutory mandate under Section 13(a) of the MINER Act to conduct research on the "utility, practicality, survivability, and cost" of alternative refuge chambers, 120 Stat, at 504. NIOSH could reasonably determine that this purpose included research on training, which it "assessed to be critical to the successful use of refuge alternatives," NIOSH Report at 4.
More persuasively MSHA maintains that the Final Rule did not abandon or supplant the NIOSH training recommendation but accepted it with modification. It views the requirement for annual hands-on training, 30 C.F.R. § 75.1504(c) , as "consistent with" the NIOSH Report because it "diverged from the recommendation only with regard to the frequency of the training." Resp't Br. 19. MSHA notes that the NIOSH Report recommended motor task, decision-making skills, and expectations training be required and be given quarterly. However, in comments NIOSH stated that "[t]he proposed rule is consistent with the NIOSH findings as presented in its research report to Congress . . . if appropriate training is provided." NIOSH Comments at 2. Unlike its comments on refuge volume provision, NIOSH made no specific comment on the differences between its recommendation and the training provision. MSHA suggests it thus "is fair to conclude" that NIOSH would have commented on any differences it perceived to be significant. Resp't Br. 20.
Subsection 75.1504(c), "Annual expectations training," provides:
Over the course of each year, each miner shall participate in expectations training that includes the following:
(1) Donning and transferring SCSRs in smoke, simulated smoke, or an equivalent environment.
(2) Breathing through a realistic SCSR training unit that provides the sensation of SCSR airflow resistance and heat.
(3) Deployment and use of refuge alternatives similar to those in use at the mine, including —
(i) Deployment and operation of component systems;
(ii) Instruction on when to use refuge alternatives during a mine emergency, emphasizing that it is the last resort when escape is impossible.
(4) A miner shall participate in expectations training within one quarter of being employed at the mine.
30 C.F.R. § 75.1504(c); 73 Red. Reg. at 80,-698.
In the Final Rule MSHA did not exclude hands-on training among the requirements but determined annual training sufficed. Such a modification comes within our precedent interpreting the "consistent with" mandate. It is true that the NIOSH Report stated its "research indicated motor-task training, i.e., how to use refuge alternatives. should be given quarterly," NIOSH Report at 15, but it did not fore-close the possibility of requiring annual training. See id.; Nuclear Energy Inst., 373 F.3d at 1270. And while 30 C.F.R. § 75.1504(c) does not expressly reference the expectations training as described in the NIOSH Research, the preamble to the Final Rule explains that the training provision offers a comprehensive approach for mine evacuation training and drills that includes deploying and using a refuge chamber under simulated emergency conditions, albeit not for four days, see 73 Fed.Reg. at 80,680.
The training provision is nonetheless arbitrary and capricious because, as the UMWA contends, it defies the expert record evidence and is unexplained. MSHA has not explained the basis for rejecting quarterly hands-on motor skills, decision-making, and expectations training, other than to state it relied upon its "knowledge and expertise," id. at 80,681. It does not identify what this knowledge and expertise is, nor point to a study or comparison of non-hands-on training. Its conclusory statement is unsupported by the rulemaking record. The NIOSH Report and Research emphasized the importance of quarterly hands-on training, referencing, for example, a NIOSH study that found that after 90 days miners' ability to accomplish a six-step process for donning SCSRs had severely deteriorated, a problem that would be more severe in the case of the eighteen-step process needed for operation of refuge alternatives, see NIOSH Research at 1. NIOSH warned that "[t]rainers ought not to rely solely on verbal or printed instructions, videos, etc." Id. In the Final Rule MSHA did not permit trainers to rely "solely" on such materials, but while acknowledging "problems related to skill degradation in emergency evacuations of mines," 73 Fed.Reg. at 80,-680, it offered no analysis for its conclusion that such problems were adequately addressed with annual hands-on motor task training. Similarly, MSHA provides no explanation for concluding the needs for decision-making and expectations training as described in the NIOSH Research are otherwise met by annual training.
MSHA points to no comments advocating against the quarterly hands-on standard. The preamble to the Final Rule noted only that while some commentators opposed training or wanted to limit the type of training, "some expressed concern that all aspects of deploying and maintaining a refuge alternative be covered during hands-on training and that this hands-on training should occur every, 90 days," id. MSHA did not resolve these commentators' objections but, in the next sentence of the preamble simply repeated its view, based on its knowledge and experience, that "expectations training" would be helpful. MSHA's failure to address these comments, or at best its attempt to address them in a conclusory manner, is fatal to its defense of the training provision. See AT T Wireless Servs., Inc. v. FCC, 270 F.3d 959, 968 (D.C. Cir. 2001). Nat'l Mining Ass'n v. MSHA, 116 F.3d 520 (D.C. Cir. 1997), on which MSHA relies for the proposition that a rule may be supported solely by the agency's expertise, does not absolve MSHA from providing a reasoned explanation for its decision only to require annual hands-on training. In that case the Secretary provided a "reasoned explanation" by explaining what the "[a]gency experience" was and how it informed the determination. Id. at 546-47. The Final Rule does neither. And while at oral argument counsel for MSHA attempted to rectify this deficiency by explaining MSHA's determination, when Congress has delegated "a determination of policy or judgment . . . [to] the agency alone," SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943), "the courts may not accept appellate counsel's post hoc rationalizations for agency action," State Farm, 463 U.S. at 50, 103 S.Ct. 2856. Removing from the preamble the expert evidence clarifying the type of training required, while retaining the conclusion that frequent and effective training is necessary, does not absolve MSHA from the obligation to explain its reasoning for rejecting such evidence. "Conclusory explanations for matters involving a central factual dispute where there is considerable evidence in conflict do not suffice to meet the deferential standards of our review." AT T Wireless Servs., 270 F.3d at 968.
Accordingly, we remand but do not vacate the Final Rule for MSHA to provide an explanation of the training provision, see Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150 (D.C. Cir. 1993), or, absent record evidence to support MSHA's conclusion, to reopen the record, and afford interested parties an opportunity to comment, see Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 242 (D.C. Cir. 2008).
B.
The UMWA challenges the refuge volume requirement as arbitrary and capricious on several grounds. It contends the requirement is not a logical outgrowth of the proposed rule, specifically maintaining that it was not afforded an opportunity to submit comments regarding the mental well-being of miners in "coffin-sized spaces," or about "larger persons," i.e., "a mildly obese miner," or the ability to perform basic survival tasks.
Acknowledging in its reply brief that NIOSH's volume recommendation was qualified, the UMWA concedes that its statutory objections based on Section 13 of the MINER Act and the 2008 Appropriations Act are no longer viable.
A final rule is a logical outgrowth of the proposed rule "only if interested parties should have anticipated that the change was possible, and thus reasonably should have filed their comments on the subject during the notice-and-comment period." Int'l Union, United Mine Workers of Am. v. MSHA, 407 F.3d 1250, 1259 (D.C. Cir. 2005) (internal quotations omitted). However, "a final rule will be deemed to be the logical outgrowth of a proposed rule if a new round of notice and comment would not provide commentators with their first occasion to offer new and different criticisms which the agency might find convincing." Fertilizer Inst. v. EPA, 935 F .2d 1303, 1311 (D.C. Cir. 1991) (citation and internal quotation marks omitted). Notice of the agency's intention is crucial to "ensure that agency regulations are tested via exposure to diverse public comment. . . . to ensure fairness to affected parties, and . . . to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review." Int'l Union. 407 F.3d at 1259.
Thus, in Int'l Union, 407 F.3d at 1259, the court held that a proposed rule providing for a minimum air velocity did not put parties on notice that the maximum air velocity might be regulated. In Shell Oil Co. v. EPA, 950 F .2d 741, 751-52 (D.C. Cir. 1991), the court held that there was no logical outgrowth where there was "a marked shift in emphasis between the proposed regulations and the final rules" because the listing of hazardous waste went from a "largely supplementary function" to having a "heavy emphasis" in the regulatory scheme. By contrast, in Nat'l Mining Ass'n v. MSHA. 512 F.3d 696, 699 (D.C. Cir. 2008), where the proposed rule requiring that "`rescue devices be provided for each miner in both the primary and the alternative escapeways" left open the questions of where the devices would be stored, how they would be available to miners, and whether one common cache of devices would be sufficient where escapeways were proximate, the court held that the rule providing for a hardened room cache between the escapeways was a "logical outgrowth" of the proposal.
The proposed rule identified the potential problem with attaining 60 cubic feet of space per miner, explaining that "for mines with lower heights, the 60 cubic feet of space may need to be attained by increasing the length or floor area," 73 Fed. Reg. at 34,146. The Final Rule dealt with the problem by reducing the volume to as little as 30 cubic feet per miner where mine heights are 36 inches or less, 30 C.F.R. § 75.1506(b)(1). The UMWA contends that the proposed rule contained "[t]he explicit assurance . . . that any problem presented by lower mine heights would be addressed by increasing the length or floor area of the refuge chamber . . . not . . . through further reduction in the volume requirement." Pet'r Br. 34. However, this overlooks MSHA's statement that "achieving the volume per mine in refuge alternatives for low coal mines could be problematic," 73 Fed.Reg. at 34,-157, and its specific call for comments on the proposed floor space and volume requirements in low mining heights, see id. MSHA was free to adopt a different solution in the Final Rule, as long as it gave interested parties fair notice and an opportunity to respond. See Crawford v. FCC, 417 F.3d 1289, 1295 (D.C. Cir. 2005).
The UMWA "does not suggest that it lacked adequate notice that the Secretary in her [Final] Rule may have further reduced the proposed rule's 60 cubic feet volume requirement," but rather emphasizes that MSHA's reduction of ceiling heights in low mining areas without increasing the floor space presents a logical outgrowth problem. Reply Br. 30. The UMWA views the change as of the more extreme kind in Int'l Union, 407 F.3d at 1259, maintaining that MSHA, in "slash[ing] in half the volume requirement, Reply Br. 30, flipped the potential solution entirely. But the court has held "a final rule represents a logical outgrowth where the NPRM expressly asked for comments on a particular issue or otherwise made clear that the agency was contemplating a particular change." CSX Transp., Inc. v. STB, 584 F.3d 1076, 1081 (D.C. Cir. 2009); see also City of Portland, Or. v. EPA, 507 F.3d 706, 715 (D.C. Cir. 2007). In some instances, the agency had included specific questions in the NPRM; in City of Portland, 507 F.3d at 715, the court concluded it was foreseeable the final rule might require covering open reservoirs or treating them for Cryptosporidium because the proposed rule asked the commentators to address questions about the feasibility of treating uncovered reservoirs rather than covering them and whether there was an increased risk of Cryptosporidium in open reservoirs. Here MSHA's proposed rule identified the problem of low height mines and specifically solicited detailed comments on it.
The UMWA also fails to show that it was prejudiced. See 5 U.S.C. § 706; Owner-Operator Indep. Drivers Ass'n, Inc. v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 202 (D.C. Cir. 2007). In commenting on the proposed rule, the UMWA explicitly or implicitly conveyed its views in opposition to the proposed reduction in refuge volume. It stated, in opposing the reduction from 85 to 60 cubic feet, that 85 cubic feet should be the minimum for "all refuges." UMWA Comments at 10, 25. Additionally, it addressed the miners' mental well-being and the size of miners, urging MSHA to require refuges large enough to "provide comfort" for all miners, regardless of circumstances. Its position was that "miners at low coal mines deserve the same protections as those working in high seams." Id. at 13. It also cited the risks of elevated CO2 exposure and increased temperatures. Id. at 10. On appeal UMWA points to no new evidence that it would have submitted in comments. See Fertilizer Inst, 935 F.2d at 1311; see also Owner-Operator Indep. Drivers, 494 F.3d at 202. The UMWA states only that it would have argued that the space was so small that it would be infeasible for miners to perform basic life functions in such a small space; that the openings might have been too small for larger miners to gain entry; and that the rule could have provided for more refuge alternatives to address fears that overlarge refuges would be unwieldy, instead of reducing the volume per miner. These arguments were encompassed in its comments on miner comfort and well-being.
Neither can the UMWA show that the refuge volume provision is arbitrary and capricious. It contends MSHA failed adequately to explain any connection between its findings of fact with regard to chamber volume and the choice it made of 60 cubic feet instead of the 85 cubic feet recommended in the NIOSH Report. It also contends MSHA failed adequately to explain its further reduction based on mine height in view of its suggestion in the NPRM that for mines with lower heights, the 60 cubic feet of space may need to be attained by increasing the length or floor area, see 73 Fed.Reg. at 34,146. It urges that the result is "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." State Farm, 463 U.S. at 43, 103 S.Ct. 2856. It notes that the preamble to the Final Rule states that "[a]dequate space is needed to accommodate larger than average persons" and sufficient space is needed to "conduct necessary activities." 73 Fed. Reg. at 80,665.
MSHA responds persuasively that the Secretary adopted the volume range as a "policy determination," Resp't Br. 29, to "accommodate commenters' concerns regarding the ability to maneuver, deploy, or use larger units in mines with low seam heights," 73 Fed.Reg. at 80,665. The preamble to the Final Rule references comments (such as the UMWA's) urging adoption of 85 cubic feet, the NIOSH comment supporting the 60 cubic feet in the proposed rule, and comments stating that the proposed space and volume requirements were excessive in an emergency because persons could survive with less space; that larger refuge alternatives were difficult to transport or may not be feasible in all seam heights; that floor space per person is the critical measurement, not volume; and that less space was needed because the number of persons to be accommodated would be less than half due to overlapping crews. See id.
The UMWA, suggesting that MSHA's problems with low seam "heights" could refer more directly to the problem of moving taller chambers in low-ceilings, is incorrect, in stating that the rulemaking record is devoid of comments indicating that refuge alternatives with wider floor areas would be difficult to maneuver in low-seam mines. MSHA's supplemental filing of the rulemaking record at the court's request includes comments presented, for example, by Jack Kennedy Metal Products and Buildings, Inc., that a unit with a height of 5.5 feet and width of 8 feet would require a length of 27 feet which "cannot be easily towed around a corner with typical mine equipment" and that such regulations would result in "the chambers that offer the best protection, that is, hard chambers, . . . be[ing] eliminated." Similarly, the Superintendent of Dana Mining Company LLC's Prime No. 1 Mine located in West Virginia commented that "[f]or mines with approximately 40 inches or less of height, it will become impossible to install a twenty (20) person rigid shelter to meet the square footage requirement of the proposed law and be able to advance the unit as the section advances, much less get it installed initially". Other comments suggested, moreover, that the reduced volume would be sufficient for the miners to perform necessary functions for at least 96 hours, citing United States military requirements and mine requirements elsewhere; that 15 cubic feet was consistent with international standards; and that a literature review supported a 30 cubic foot standard. See 73 Fed.Reg. at 80,665. Absent comments beyond the UMWA's about a further reduction in volume or the alternative of having more smaller refuge alternatives, MSHA made a rational choice based on the record to reduce the volume requirement in these low-height mines.
Comments ol Bill Kennedy, President, CEO, Jack Kennedy Metal Products and Buildings, Inc. Docket No. COMM-1, at 5 l'July 17, 2008) ("Bill Kennedy Comments").
Comments of Steve Polce, Superintendent, Dana Mining Company LLC, Docket No. COMM-13, at 2 (Aug. 15, 2008).
See Bill Kennedy Comments at 5 (noting reduced volume is "in line with international standards"); Comments of Randall Harris, Engineering Advisor, West Virginia Office of Miners Health, Safely and Training, Docket No. COMM-4, at 35-37, 69-71 (Aug. 1, 2008) (citing U.S. Department of Defense Human Engineering Manual and an example of mine shelters for proposition that smaller volumes are sufficient); Comments ol Ralph Sanich, Manager. Health and Safety, Interwest Mining Company, Docket No. COMM-8, at 4 (Aug 13, 20081 (providing requirements from a regulation adopting another country's standard and relying on a report by Dr. Joel Haight, a specialist in human factors engineering, which found 30 cubic feet to be sufficient); Comments of Tony Bumbico, Vice President ol Safety, Arch Coal, Inc., Docket No. COMM-12. at 5 (Aug. 15, 2008) (citing, for example, the U.S. Navy program on disabled submarines and survival considerations); Comments of Bruce Watzman, National Mining Association, Docket No. COMM-17, at 5 (Aug. 18, 2008) (appending report by Dr. Joel Haight); Comments of John M. Gallick, Vice President Safety and Health, Foundation Coal Corporation, Docket No. COMM-21, at 2 (Aug. 18, 2008) (citing another country's standard of 6.4 square feet of floor space with no volume requirement); Comments of Chris Hamilton, West Virginia Coal Association, Docket No. COMM-33, at 7-8 (discussing sufficiency another country's lower volume standard).
Accordingly, we grant the petition in part and we deny the petition in part.