<DOC>
[DOCID: f:we200114c.wais]

 
COLORADO LAVA, INCORPORATED
WEST 2001-14-DM
April 30, 2002

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                         April 30, 2002

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         : 
  on behalf of                  :
  ANDREW GARCIA                 :
                                :
          v.                    : Docket No. WEST 2001-14-DM
                                :
COLORADO LAVA, INCORPORATED     :

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners[1]

                             DECISION

BY:  Verheggen, Chairman; and Beatty, Commissioner

     In this discrimination proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq.
(1994) ("Mine Act" or "Act"), Administrative Law Judge Avram
Weisberger granted Colorado Lava, Inc.'s motion to dismiss the
discrimination complaint filed by the Secretary of Labor on
behalf of Andrew Garcia pursuant to section 105(c)(1) of the 
Mine Act, 30 U.S.C.  815(c)(1).[2]  23 FMSHRC 213, 217-18 
(Feb. 2001) (ALJ).  The judge found that the Secretary failed 
to establish a prima facie case of discrimination. Id. at 222.
The  Commission  granted  the  Secretary's  petition  for 
discretionary review challenging the judge's decision.  For 
the following reasons, we vacate the judge's dismissal of the 
discrimination complaint and remand for further proceedings.

                               I.

                Factual and Procedural Background

     The complainant, Andrew Garcia, worked as a front-end 
loader operator at Mountain West Colorado Aggregates ("MWCA") 
from January to June 1997.  23 FMSHRC at 213. He then worked 
as a truck driver in MWCA's truck division from June 1997 to 
January 2000, and subsequently as a front-end loader operator 
at the railroad shipping yard in MWCA's Antonito bagging 
facility from January to June 2000.  Id.; Tr. 21.  Robert 
Duran was also employed as a loader operator in MWCA's 
railroad yard. 23 FMSHRC at 213.

     In October 1999, Garcia tagged out a loader because the
parking brake did not work.  Id. at 213-14. The following day,
Garcia told David McCarroll, the plant manager and Garcia's
supervisor, that the parking brake on the loader was not 
working. Id. at 214.  McCarroll responded that the loader did 
not need a parking brake, and ordered Garcia to continue using 
the loader. Id.  Garcia complied and later complained to MSHA. 
Id. at 214, 218.  As a result, MSHA came to the Antonito site 
to inspect the loader, issued a citation to MWCA, and initiated 
an investigation of McCarroll under section 110(c) of the Mine 
Act, 30 U.S.C.  820(c).  Id. at 214.

     Shortly after the incident, McCarroll learned of Garcia's
complaint to MSHA, and when he was alone with Garcia, asked him
"in a high toned voice" about the complaint. Id. Garcia denied
filing the complaint.  Tr. 34.  According to Garcia, McCarroll
responded, "You know all about it," and "Bull. It will all come
out in the wash."  Tr. 34.  According to McCarroll, he asked
Garcia about the complaint and said, "It will all come out in 
the wash."  Tr. 255-56.  Garcia also testified that on another
occasion in March 2000, when he was unable to load some marble
chips because they were frozen, McCarroll swore at him in a 
loud voice.  23 FMSHRC at 214. McCarroll recalled the incident, 
but denied confronting Garcia.  Tr. 254-55.  Nevertheless, 
McCarroll testified that he was upset with Garcia for 
complaining to MSHA, acknowledged that he considered Garcia's
complaint an example of his "troublemak[ing]," and stopped 
speaking to Garcia socially. 23 FMSHRC at 214, 217; Tr. 224-27.

     Sometime, in the spring of 2000, Ronald Bjustrom, the
eighty-percent owner of Colorado Lava, became interested in
purchasing MWCA's Antonito facility. 23 FMSHRC at 215. Bjustrom
visited the facility on four occasions prior to Colorado Lava's
purchase on June 5, 2000.  Id.  During this time, Bjustrom
decided to eliminate several positions, and asked McCarroll his
opinion as to what jobs could be eliminated.  Id.  McCarroll
suggested a railroad yard loader operator position and a 
mechanic position. Id. Bjustrom also asked McCarroll which MWCA
employees were weak. Id. McCarroll told Bjustrom that Garcia
and four other employees were weak,[3] and that Garcia caused
trouble, tried to stir up trouble between employees, was a poor
operator, abused equipment, and had filed union grievances.  
Id. Garcia was the only employee about whom McCarroll said only
negative things. Id. Bjustrom testified that his conversations
with McCarroll had no bearing on which MWCA employees would be
rehired by Colorado Lava. Id.

     In late May or early June 2000, prior to the interviews on
June 5, Bjustrom told McCarroll that he would be retained as 
the plant manager. Tr. 100-01. Also prior to June 5, Bjustrom
retained Terry Kissner, who was not an employee of Colorado 
Lava, to do the hiring. 23 FMSHRC at 215-16. Kissner had done 
hiring for Bjustrom in the past.[4]  Id. at 215.

     On June 5, Kissner interviewed the MWCA employees
individually according to Bjustrom's instructions, which 
included asking the applicants the same questions from the 
booklet, asking the mechanics additional questions, including
whether they would accept another position, and eliminating 
one railroad yard loader operator position and one mechanic 
position.  Id. at 215-16; Tr. 174.  Kissner testified that, 
with respect to Garcia, he did not look at his personnel file, 
letters of recommendation, past safety record, or production 
levels, and that the interviews were a formality. 23 FMSHRC 
at 216. He also testified: that he did not review the personnel
files of any of the employees he interviewed; that before the 
day of the interviews, he had never visited the Antonito 
facility; that he had no personal knowledge of the MWCA 
employees; and that while he spoke with McCarroll "as few as 
three times," he did not meet McCarroll until the day of the 
interviews and never discussed the MWCA employees with him.
Id. at 215-16; Tr. 159, 178. Bjustrom testified that Kissner
made the final decision about which employees to rehire, and 
that he (Bjustrom) did not participate in that decision, 
although he retained the ultimate authority to hire. 23 FMSHRC 
at 215, 220.

     Garcia testified that on June 1, 2000, he was told of the
sale of MWCA's Antonito facility to Colorado Lava and that all
employees would be rehired, but was not informed that any jobs
would be eliminated.  Tr. 39-40.  Garcia also testified that on
the morning of June 5, Bjustrom gave the employees application
packets, and scheduled each employee for an interview.  Tr. 40-
41.  At the interview, Kissner did not inform Garcia that one
loader operator position at the rail yard was being eliminated.
Tr. 42, 177.

     On June 6, 2000, Colorado Lava purchased MWCA and rehired
all of the MWCA employees except Garcia, and Ernie Lucero, a
mechanic. 23 FMSHRC at 216 & n.2. After Garcia learned that he
was not going to be rehired, he secured a job with MWCA which 
is farther from his home, has a lower pay scale, and fewer
incentives than his former position at the Antonito railroad 
yard facility.  Id. at 215.  Bjustrom testified that he first 
learned about Garcia's complaint to MSHA about a week or two 
after the decision was made not to hire him. Tr. 143-44.

     At the conclusion of the Secretary's case, the judge issued
a bench decision granting Colorado Lava's motion to dismiss the
discrimination complaint on the basis that the Secretary had
failed to establish a prima facie case of discrimination.  23
FMSHRC at 217-18, 222.  The judge found that Garcia participated
in protected activity when he complained about the parking brake
on the loader to his supervisor McCarroll and to MSHA.  Id. at
218.  He also found that Colorado Lava took adverse action
against Garcia when Kissner decided not to retain Garcia after
Colorado Lava's purchase of the Antonito facility.  Id.  He
concluded, however, that McCarroll's animus could not be imputed
to Kissner, who independently made the decision to take the
adverse action against Garcia, because there was no evidence 
that McCarroll in any way participated in the decision not to 
hire Garcia, or that either Bjustrom or Kissner had knowledge 
of Garcia's protected activity.  Id. at 218-21.  The judge 
therefore concluded that there was no evidence that the adverse 
action was motivated in any part by Garcia's protected activity. 
Id. at 220-21.

                               II.

                           Disposition

     A complainant alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity.
See Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec'y of Labor on behalf of Pasula v. Consolidation Coal
Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Sec'y of Labor on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).

     Here, the judge found that Garcia engaged in protected
activity when he complained to McCarroll and MSHA that the
parking brake on the front-end loader was not operational, and
also determined that the operator took adverse action against
Garcia when it declined to hire him.  23 FMSHRC at 218.
Substantial evidence supports both of these conclusions.[5] The
remaining issue before us is whether the adverse action taken 
by Colorado Lava was motivated in any part by Garcia's protected
activity.

     Concerning motivation, in Secretary of Labor on behalf of
Chacon v. Phelps Dodge Corp., the Commission stated that
"[d]irect evidence of motivation is rarely encountered; more
typically, the only available evidence is indirect."  3 FMSHRC
2508, 2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 
(D.C. Cir. 1983).  In Chacon, the Commission identified several 
indicia of discriminatory intent, including: (1) knowledge of 
the protected activity; (2) hostility or animus towards
protected activity; (3) coincidence in time between the 
protected activity and the adverse action; and (4) disparate 
treatment of the complainant. 3 FMSHRC at 2510.

     Here, the judge concluded that the Secretary failed to 
show motivation based on his finding that Kissner, the person 
who allegedly made the decision not to hire Garcia, had no 
knowledge of his protected activity and no animus towards him.  
However, it is clear that the judge did not explicitly consider 
all of the evidence of motivation he was required to consider 
under Chacon. Specifically, it appears that the judge failed 
to consider fully record evidence of disparate treatment toward 
Garcia by Colorado Lava.  In fact, the judge found "some 
indication in the record of disparate treatment of Mr. Garcia," 
but concluded that disparate treatment did not occur, stating 
instead that "there is a difference between establishing the 
existence of a fact based on an inference, as opposed to 
proffering evidence of sufficient probative weight to establish
a fact in issue." 23 FMSHRC at 218-19.

     On this point the judge was incorrect, because the
consideration of indirect evidence when examining motivational
intent necessarily involves the drawing of inferences. As the
Commission stated in Bradley v. Belva Coal Co., "circumstantial
evidence [of discriminatory motivation] and reasonable 
inferences drawn therefrom may be used to sustain a prima facie 
case." 4 FMSHRC 982, 992 (June 1982).  Furthermore, inferences 
drawn by judges are "permissible provided they are inherently 
reasonable and there is a logical and rational connection 
between the evidentiary facts and the ultimate fact inferred." 
Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984). 
Since the judge's decision is premised upon a mistaken 
assumption that motivation may not be established through 
inferences based on circumstantial evidence, he erred.

     Indeed, as the judge found, there are many "indication[s] 
in the record of disparate treatment."  For example, the judge
explicitly pointed to evidence that (1) Duran was chosen over
Garcia for the loader operator position because Duran had more
experience than Garcia, on the other hand, Vondrak, who had 
less experience than Lucero, was hired over Lucero as a 
mechanic; (2) Lucero, the only other employee not rehired, was 
offered another position at Colorado Lava, but Garcia was not; 
and (3) when considering which positions to eliminate, 
Bjustrom only evaluated the loader operator and mechanic 
positions, and not other positions at the site. 23 FMSHRC at 
218-19.

     There is additional record evidence set forth in the 
judge's decision that could support a finding of disparate 
treatment. The judge found that Kissner wanted to hire the 
best qualified employees for the loader operator and the 
mechanic positions and testified that he reviewed the 
applications for these two positions prior to making his 
decision.  Id. at 216.  Kissner stated that he looked at work 
history and tenure when he decided to hire Duran over Garcia 
for the loader operator position, but admitted that he did 
not review Garcia's personnel file, letters of recommendation, 
safety record, or production levels when considering whom to 
hire. Id.

     Moreover, the record indicates that, on approximately June
7, 2000, with Bjustrom's approval, McCarroll hired Jeremy
Gallegos, a former MWCA employee who was not working for the
company at the time of its purchase by Colorado Lava, to fill a
bagger position that had been vacated prior to Colorado Lava's
purchase on June 5.  Tr. 120-23, 241-42, 270-71.  Gallegos
apparently had experience as a bagger.  Tr. 270-71. Garcia,
while still employed at the Antonito facility, was being trained
as a bagger and had filled in as a bagger three or four times
prior to June, but was not considered for the vacant position.
23 FMSHRC at 214; Tr. 192-93, 274.  Although Gallegos had
experience as a bagger, Garcia was also experienced both as a
bagger and more specifically with the operations at the 
Antonito facility.  Despite Garcia's availability when the 
bagger position was open, he was not considered for the 
position.

     The record further demonstrates that, in spite of
McCarroll's recommendation that Bjustrom retain only one rail
yard employee, after assuming operations at the Antonito
facility, Colorado Lava continued to use two employees at the
rail yard. Tr. 246-48, 289, 298. McCarroll testified that after
June 5, a second employee from the Antonito facility worked at
the rail site with either Duran or himself, including George
Ruybal, Brian Kent, and Joe Padillo, who were former MWCA
employees rehired by Colorado Lava.  Tr. 246-47.  He testified
that prior to June 5, Ruybal and Kent did not have experience
operating the front-end loader and were being trained. Tr. 247-
48. Duran confirmed McCarroll's testimony that two employees
continued to work at the rail site after June 6.  Tr. 289.

     We conclude that the judge did not adequately consider the
record evidence of disparate treatment in this case. Under
Chacon, therefore, his analysis of motivation is incomplete.
Accordingly, his conclusion that the Secretary failed to
establish motivation cannot be upheld and his decision to 
dismiss the discrimination complaint for failure to establish 
a prima facie case must be vacated. On remand, consistent with 
Chacon, the judge should consider all the evidence tending to 
show improper motivation, including that of disparate treatment 
of the miner.  If the judge finds that a prima facie case has 
been established, he must reopen the record to allow the
operator to present further evidence, if it chooses, as part of 
its rebuttal,[6] and to allow the Secretary an opportunity to
demonstrate that the operator's justification was pretextual.

                              III.

                           Conclusion

     For the foregoing reasons, we vacate the judge's dismissal
of the discrimination complaint, and remand for further
proceedings consistent with this opinion.

                           Theodore F. Verheggen, Chairman
                              
                           Robert H. Beatty, Jr., Commissioner

**FOOTNOTES**

     [1]:   Commissioner  Riley participated in the consideration
of this matter, but his term  expired  before  issuance  of  this
decision.   Pursuant to section 113(c) of the Federal Mine Safety
and Health Act  of  1977, 30 U.S.C.  823(c), this panel of three
Commissioners has been  designated  to exercise the powers of the
Commission.

     [2]:  Section 105(c)(1) provides in pertinent part:

          No person shall discharge or  in  any  manner
          discriminate   against   or   cause   to   be
          discharged or cause discrimination against or
          otherwise  interfere with the exercise of the
          statutory rights  of  any  miner  .  .  .  or
          applicant  for  employment  in any . . . mine
          subject to this [Act] because  such miner . .
          .  or applicant for employment has  filed  or
          made  a  complaint  under  or related to this
          [Act],  . . . or because of the  exercise  by
          such miner  . . . or applicant for employment
          on  behalf  of   himself  or  others  of  any
          statutory right afforded by this [Act].

30 U.S.C.  815(c)(1).

     [3]: However, loader operator Duran  testified  that  he
supervised Garcia at the rail yard, and found  him  to  be  a
satisfactory worker.  Tr. 291-92.

     [4]: Bjustrom received from  his  banker  a  booklet  of
interview  questions, which he gave to Kissner, to use during 
the interviewing of the MWCA employees. 23 FMSHRC at 215.

     [5]: When reviewing an administrative law judge's factual
determinations, the Commission  is bound by the terms of the 
Mine Act to apply the substantial evidence test.  30 U.S.C.
 823(d)(2)(A)(ii)(I). "Substantial  evidence"  means  "`such
relevant evidence as a reasonable mind might  accept  as 
adequate to  support  [the  judge's] conclusion.'"  Rochester 
& Pittsburgh Coal Co., 11 FMSHRC  2159,  2163  (Nov.  1989)  
(quoting  Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 
(1938)).

     [6]: Our concurring colleague, Commission Jordan, would
have the Commission address at this time the judge's finding 
that Kissner  lacked knowledge regarding Garcia's  protected 
activity and animus  towards  him.  Slip op. at 8-12. Because 
we view the finding as not dispositive of the prima facie case 
issue, we find it unnecessary at this  time  to  address the 
evidence supporting it. Of  course,  before the judge again 
reaches a conclusion regarding the strength of this rebuttal 
evidence, we would expect him to consider the Secretary's   
arguments for imputing McCarroll's knowledg  of and animus  
towards  Garcia's safety complaints to Bjustrom or Kissner. 
Having dismissed  the case in the  middle  of the hearing, 
it is apparent to us that the judge did not have an adequate  
opportunity to fully  consider these arguments, and the 
evidence supporting them.  That can only occur after a 
complete hearing. Commissioner Jordan, concurring:

     As a result of Andrew Garcia's safety complaint to MSHA, 
the operator received a citation and David McCarroll, Garcia's
supervisor, became the subject of a section 110(c)
investigation.[1]  23 FMSHRC 213-214, 218 (Feb. 2001) (ALJ).
Subsequently, Garcia was the only worker not retained when
Colorado Lava took over the mine from Mountain West Colorado
Aggregates ("MWCA") eight months later.  Id. at 215, 216 n.2.
Garcia was also not considered for a job opening that arose
shortly after the takeover. Tr. 120-23, 241-42, 270-271. For
the reasons discussed below, I agree with my colleagues that
the judge's decision dismissing the case should be vacated 
and the case remanded.  However, because I conclude that the 
Secretary has already established a prima facie case of 
discrimination, I would not instruct the judge to revisit 
that issue.

     The judge's holding that the Secretary failed to establish
a prima facie case was based on his finding that Terry Kissner,
the individual who allegedly made the decision not to rehire 
Garcia, had no knowledge of Garcia's protected activity and 
therefore could harbor no retaliatory animus towards him. 23 
FMSHRC at 220.  The judge failed to take into account, however, 
the pivotal role that Garcia's supervisor, McCarroll may have 
played in the decision not to rehire Garcia. McCarroll admitted 
that he was upset about Garcia's complaint to MSHA, Tr. 224, and
the judge found that McCarroll harbored animus towards Garcia 
because of this protected activity.  23 FMSHRC at 219.  Prior 
to the takeover by Colorado Lava, Ronald Bjustrom, who owned 
eighty percent of that company and had the ultimate authority 
to make hiring decisions, id. at 220, asked McCarroll about the
employees he supervised. McCarroll described Garcia as "a poor 
employee" who "causes trouble" and "talks to other employees, 
trying to stir up trouble between them."  Tr. 229.  McCarroll 
also told Bjustrom that Garcia filed grievances, was a poor 
operator, and abusive to the equipment.  Tr. 231.[2]  In 
addition, McCarroll recommended to Bjustrom that one of the two 
rail loader jobs (the position Garcia held) be eliminated.
23 FMSHRC at 215; Tr. 240.  On June 6, 2000, Colorado Lava
purchased MWCA and hired all of the MWCA employees except
Garcia.[3]  23 FMSHRC at 216 & n.2

     To make out a prima facie case of discrimination, the
Secretary need only submit enough evidence so that the record
could support an inference that the failure to rehire Garcia 
was motivated by his safety complaint.  See Sec'y of Labor on 
behalf of Hyles v. All American Asphalt, 21 FMSHRC 119, 127-28 
(Feb. 1999) (a complainant establishes a prima facie case "by
presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity.
. . . The `possibility of drawing either of two inconsistent
inferences from the evidence [does] not prevent [the judge] from
drawing one of them.'" (citation omitted)); see EEOC v. Avery
Dennison Corp., 104 F.3d 858, 861-862 (6th Cir. 1997) (reversing
district court's finding that plaintiffs "failed to present
sufficient evidence to meet their burden of establishing a prima
facie case of retaliation" in a case where there was "ample
evidence from which the court could have inferred retaliation 
at the prima facie stage").  The judge should have determined
whether there was enough evidence in the record from which a
reasonable person could infer that McCarroll's negative review
of Garcia resulted, at least in part, from Garcia's protected
activity and that the negative review in turn was a factor in
Colorado Lava's decision not to hire Garcia.

     If McCarroll's criticisms were a result of retaliatory
animus and if those negative remarks influenced the decision 
not to hire Garcia, then the principle announced by the 
Commission in Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 
(Feb. 1984) applies and McCarroll's retaliatory animus should 
be attributed to the decision maker.  In Metric, the night 
superintendent told the project superintendent that certain 
miners were refusing to perform work, but he did not 
communicate the protected safety reason behind the miners' 
refusal.  6 FMSHRC at 226, 228.  The project superintendent 
thereafter terminated the miners.  Id. at 228.  In rejecting 
the operator's defense that the project superintendent himself
did not know of the miners' protected activity, the Commission 
held that:  "[a]n operator may not escape responsibility by 
pleading ignorance due to the division of company personnel 
functions."  Id. at 230 n.4 (citation omitted).  Since the 
judge here dismissed the case without considering the principle 
of imputing knowledge announced in Metric, he erred.

     The approach used by the Commission in Metric is one that
has also been extensively applied in cases arising under the
National Labor Relations Act.  If a supervisor has knowledge of
an employee's protected activities, harbors animus towards that
activity, and influences or participates in a decision that
adversely affects the employee, the courts have imputed 
knowledge and animus to the employer notwithstanding the actual 
decision-maker's ignorance of the protected activities.  See 
Boston Mutual Life Ins. Co. v. NLRB, 692 F.2d 169, 171 (1st 
Cir. 1982) (declining to "launder" regional sales manager's 
knowledge and animus through a neutral superior where superior 
had no knowledge of employee's protected activity, but "acted 
in direct response" to regional sales manager's recommendation 
to dismiss employee); Grand Rapids Die Casting Corp. v. NLRB,
831 F.2d 112, 114 (6th Cir. 1987) (imputing plant manager's 
knowledge of and animus against employee's protected activity
based on his "involve[ment]" in decision to terminate employee
by recommending employee's termination to company's industrial
relations manager, who had no knowledge of employee's protected
activity and relied on plant manager's recommendation) (internal 
quotations and citations omitted); JMC Transp., Inc. v. NLRB, 
776 F.2d 612, 619 (6th Cir. 1985) (imputing operations manager's 
unlawful animus to company because his corroboration of a 
fabricated story about employee was "a significant factor" in 
the president's and general manager's decision to terminate 
employee, despite the decision-makers' lack of knowledge 
regarding employee's protected activity).

     The courts have used this same approach in cases arising
under federal anti-discrimination statutes.  For instance, in
Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990), the
Seventh Circuit, applying agency principles in an ADEA suit,
found that if the employer's career path committee, which
ultimately made the decision to discharge the employee, acted 
as the "conduit" of the supervisor's prejudice - "his cat's 
paw" - the innocence of the committee's members would not spare 
the employer from liability.  The court held that if the 
supervisory employee procured the employee's discharge by 
evaluating the employee and making recommendations to the 
committee on an unlawful basis, then the supervisory employee's 
unlawful actions would be imputed to the employer.  Id.; see
also Bergene v. Salt River Project Agricultural Improvement 
and Power District, 272 F.3d 1136 (9th Cir. 2001) (even if a 
manager was not the ultimate decision maker, that manager's 
retaliatory motive may be imputed to the company if the 
manager was involved in the hiring decision).[4]

     Admittedly, in Metric, there was no dispute that the
supervisor with knowledge caused the project superintendent to
fire the miners. Here, on the other hand, the parties disagree
as to whether McCarroll's comments played any role in the
decision not to hire Garcia. The operator denies that
McCarroll's comments were a factor in its decision not to 
retain Garcia.  C. Br. at 9 - 14.  Indeed, mine owner Bjustrom 
claims that the hiring was done by Kissner, an individual 
Bjustrom retained to interview the miners and who denies any 
knowledge of McCarroll's comments.  23  FMSHRC at 215-16. 
Furthermore, although Bjustrom eliminated one  railroad loader 
position, in accordance with McCarroll's advice, id at 215, he
claims that the decision to choose another miner over Garcia 
for the remaining loader position was based solely on the 
other miner's greater length of service.  Id. at 218-219.

     Of course, a judge might ultimately decide that McCarroll's
knowledge of and animus towards Garcia's safety complaint should
not be imputed to either Bjustrom or Kissner, or that even after
imputing that knowledge, Colorado Lava nevertheless demonstrated
that Garcia would not have been hired on the basis of a valid
neutral criteria. Nonetheless, dismissal for failure to make out
a prima facie case is not warranted.  The appropriate questions
to ask for determining whether the Secretary made out a prima
facie case is, could the evidence support an inference that
McCarroll's comments were infected by retaliatory animus, and
could one infer that those comments in turn influenced Colorado
Lava's decision not to hire Garcia?

     Clearly, the answer to those questions is yes. The record
indicates that Bjustrom sought McCarroll's advice about jobs 
that could be eliminated and the performance of the employees 
under McCarroll's supervision.  Id. at 215, 220.  The judge 
found that McCarroll harbored animus towards Garcia because of
Garcia's complaint to MSHA. Id. at 219. It would be reasonable
to infer that McCarroll's thoroughly negative evaluation of 
Garcia, as well as his suggestion as to which jobs to 
eliminate, were tainted by this retaliatory animus.[5] Could 
one reasonably infer that McCarroll's remarks influenced the 
decision not to hire Garcia?  I believe the evidence could 
support such inference.

     Although Bjustrom claimed that Kissner decided who would 
be hired, a factfinder could reasonably conclude that it was
Bjustrom who was the actual decision maker. Indeed as the judge
pointed out, it was Bjustrom who retained the ultimate hiring
authority, and it was Bjustrom who provided Kissner with 
explicit instructions on how to conduct the interviews, 
including what questions to ask, and which positions to 
eliminate. 23 FMSHRC at 215-216.  As to whether Bjustrom was 
influenced by McCarroll's remarks, there is no dispute that 
Bjustrom followed McCarroll's recommendations regarding which 
jobs to eliminate, id. at 215-216, an action which in itself 
dramatically decreased Garcia's chances of being rehired.  
Furthermore, although Bjustrom claimed McCarroll's remarks 
played no role in the decision not to rehire Garcia, a 
factfinder could reasonably conclude that it strained
credulity for a mine owner to claim that a thoroughly negative
evaluation from an employee's former supervisor played no part 
in the decision not to hire that employee.  Indeed, the
factfinder could find this claim particularly difficult to 
accept since the mine owner had solicited the supervisor's 
views on employee performance. Moreover, since the record shows
that Colorado Lava had already decided to retain McCarroll as 
supervisor by the time it interviewed the other employees, Tr. 
215, a factfinder might find this assertion completely 
implausible.  In light of McCarroll's remarks, Bjustrom would 
have realized that retaining Garcia would be tantamount to 
placing a permanent thorn in McCarroll's side.  A factfinder
might find it unlikely that Bjustrom would not have been 
influenced by that realization.[6]

     Even if Colorado Lava could persuade a factfinder that
McCarroll's remarks had no bearing on its decision of June 6 
as to which MWCA employees would be retained, that factfinder
could nevertheless conclude that Colorado Lava's failure to
subsequently hire Garcia for the bagger position (a job filled 
on June 7), resulted at least in part from McCarroll's 
retaliatory animus.  Garcia contends that he was receiving 
training for this position and had filled in for a bagger 
before he was let go. 23 FMSHRC at 214; Tr. 47.  Clearly,
Colorado Lava cannot claim that McCarroll did not influence 
the decision to hire someone other than Garcia for the 
position.  Indeed the record indicates that it was McCarroll 
himself who filled the job, after consulting with Bjustrom.  
Tr. 120-23, 241-42, 270-71.

     The majority vacates the decision below primarily on the
basis of the judge's failure to examine evidence of disparate
treatment.  Slip op. at 5-7.  My colleagues also "expect" the
judge to consider the Secretary's imputation arguments before
making his ultimate determination on the merits of the case, 
slip op. at 7 n.6., implicitly vacating his finding that 
Colorado Lava had no knowledge of Garcia's protected activity.
The majority rightly insists that the judge consider all of 
the evidence regarding the operator's motivation for not hiring
Garcia, but paradoxically deems the judge's finding pertaining 
to whether the operator even knew about Garcia's protected 
activity as "not dispositive of the prima facie case," and 
consequently declines to address the evidence supporting it.  
Id.[7]  I fear this ruling leaves the judge and parties in a 
legal limbo.

**FOOTNOTES**

     [1]: Section 110(c) of the Mine Act provides that whenever
a  corporate operator violates a mandatory  health  or  safety
standard, a director, officer,  or agent of such operator who
knowingly authorized, ordered, or carried out the violation 
shall be subject to an individual civil penalty.  30 U.S.C. 
 820(c).

     [2]: Garcia was the only employee about whom McCarroll 
made only negative comments. 23 FMSHRC at  220.  McCarroll 
identified four other employees as weak but they were  all 
hired by Colorado Lava.  Id. at 215, 216 n.2.

     [3]: Ernie Lucero was initially not rehired; however, 
he was subsequently  offered a job at another location with a
cut in pay. 23 FMSHRC at 216 n.2.

     [4]: See also Gusman v. Unisys Corp., 986 F.2d 1146, 1147
(7th  Cir. 1993) (holding  employer liable  under ADEA where
employer relied upon supervisory employee's recommendation to
discharge employee, and supervisory employee, possessing 
unlawful animus, lied  about  employee's  ability  to  work  
to ensure his discharge);  Long v. Eastfield College, 88 F.3d 
300, 306-08  (5th Cir. 1996) (in Title VII case, remanding 
to district court to apply principles enunciated in Shager 
and  determine  whether president who made ultimate decision  
to terminate employees made independent investigation severing 
causal connection  or whether he  "rubber-stamped"  the  
supervisory employees' recommendations based on unlawful 
motive); Dey  v.  Colt  Constr.  & Dev. Co., 28 F.3d   1446,  
1459-60 (7th Cir. 1994) (rejecting  president's allegation  
that he based decision to terminate employee on independent  
assessment of employee's performance, because he solicited  
vice-president's opinion, who had  knowledge of and animus 
against  employee  and  recommended  his  discharge,  and
holding employer liable under Title VII even though president 
did not know about employee's protected activity).

     [5]:  At the time McCarroll spoke to Bjustrom about 
Garcia's performance, the section 110(c) investigation against
McCarroll was still pending. S. Br. at 3.

     [6]:  Even if Kissner was found to be the decisionmaker,
the evidence would still support the inferences necessary to 
make out a  prima  facie  case.   Although  Kissner  denied  
receiving any information about Garcia or the animosity 
between McCarroll and Garcia, a factfinder  could  reject  
this  claim as incredible in light of the evidence that 
Kissner "may have talked to McCarroll as few as three times,"
Tr. 159, including a conversation  on the very  day  he  
conducted his interviews with the employees. 23 FMSHRC at 216.

     [7]:  Unlike my colleagues  in  the majority, I believe 
that evidence  pertaining  to  the operator's  lack  of 
knowledge  of protected activity is relevant  and in fact may 
be dispositive of whether the Secretary has made out a prima 
facie case. See Sec'y of  Labor on behalf of Chacon v. Phelps  
Dodge  Corp.,  3  FMSHRC 2508,  2510-11  (Nov.  1981), rev'd 
on other grounds, 709 F.2d 86 (D.C. Cir. 1983) (evidence  of  
knowledge  used  to  make a prima facie  case);  Sec'y of 
Labor on behalf of Clay Baier v.  Durango Gravel, 21 FMSHRC  
953, 957-58, (Sept. 1999) (in discussing prima facie  case,  
Commission  determines that substantial  evidence supported 
judge's  finding that operator had knowledge of miner's
protected activity).

     In sum, the Secretary has presented sufficient
circumstantial evidence to support an inference that McCarroll
influenced Colorado Lava's decision not to employ Garcia, and
that McCarroll's knowledge and animus should be imputed to 
that operator.  Accordingly, she succeeded in establishing her 
prima facie case. Thus, I would remand this matter to the judge
solely to permit the operator to adduce additional evidence 
in support of its rebuttal, to provide the Secretary an 
opportunity to introduce additional evidence in support of 
her pretext argument, and for the judge to rule on the 
ultimate issue of whether discrimination occurred in violation 
of section 105(c).

                              Mary Lu Jordan, Commissioner

Distribution

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Mark M. Nelson, Esq.
Harris, Karstaedt, Jamison & Powers, P.C.
383 Inverness Drive, South, Suite 400
Inglewood, CO 80112

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041