.
COLORADO LAVA, INC.
WEST 2001-14-DM
March 21, 2003

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
              601 New Jersey Avenue, N.W. Suite 9500
                   Washington, DC 20001-2021

                         March 21, 2003

SECRETARY OF LABOR, MINE SAFETY   : DISCRIMINATION PROCEEDING
  AND HEALTH ADMINISTRATION,      :
  on behalf of ANDREW J. GARCIA,  : DOCKET NO. WEST 2001-14-DM
              Complainant         :            RM MD 00-12
                                  :
         v.                       :
                                  :       
COLORADO LAVA, INC.,              : Antonito Plant
              Respondent.         : Mine ID 05-04232

                       DECISION ON REMAND

Appearances: Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
             of Labor, Arlington, Virginia, for the Complainant; Mark Nelson, 
             Esq., Harris, Karstaedt, Jamison & Powers, Englewood, Colorado, 
             for the Respondent.

Before: Judge Weisberger
                                
                          INTRODUCTION

    This case is before me based upon a decision by the Commission, 24 FMSHRC 
350 (2002), vacating and remanding for further proceedings, my initial decision, 
which had granted Colorado Lava, Inc.'s motion to dismiss a discrimination
complaint filed by the Secretary of Labor on behalf of Andrew Garcia.

    I.   Factual and Procedural Background as Found by the Commission.

    The Commission, 24 FMSHRC supra, at 351 - 353, set forth its findings 
relating to the facts in this case as follows:

         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 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 manger 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 to 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. 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 testified that the was upset with Garcia for complaining
         to MSHA, acknowledged that he considered Garcia's complaint an
         example of his "trouble mak[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.  20 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, 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.  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 year 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.

    II.  The Commission's Decision

    The Commission found that substantial evidence supported the initial decision 
that Garcia had engaged in protected activity when he complained to McCarroll and 
MSHA that the parking brake on the front-end loader was operational, and also that
the operator, Colorado Lava, took adverse action against Garcia when it declined
to hire him.  Thus, the threshold issue before the Commission, and on remand, is 
whether the Secretary established its prima facie case that the adverse action 
taken by Colorado Lava was motivated in any part by Garcia's protected activity.  
The Commission noted that in a prior decision, Secretary on behalf of Chacon v. 
Phelps Dodge Corp., 3 FMSHRC 2508, 2510, (Nov 1981), rev'd on other grounds, 709 
F. 2nd 86 (D.C. Cir. 1983), supra, it had identified several indicia of 
discriminatory intent "... including: (1) knowledge of the protected activity; 
(2) hostility  or animus toward protected activity; (3) coincidence in time between
the protected activity and the adverse action; and (4) disparate treatment of the
complainant."  24 FMSHRC at 354.

    The Commission held that the record evidence of disparate treatment toward 
Garcia by Colorado Lava was not considered fully.  The Commission, id., restated 
the finding in Bradley v. Belva Coal Co. 4 FMSHRC 982, 992 (June. 1982), that 
circumstantial evidence of discriminatory motivation and reasonable inferences 
drawn therefrom may be used to sustain a prima facie case.  The Commission, 24 
FMSHRC, supra, at 354 -355, noted that the initial decision pointed to evidence 
of indicia of disparate treatment e.g.:  (1) Doran was chosen over Garcia for the 
loader operator position because Doran had more experience than Garcia, on the
other hand Vondrak who had less experience than Lucero was hired over Lucero as 
a mechanic; (2) that 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.  In addition, the 
Commission noted other evidence of record that "could" support a finding of 
disparate treatment (24 FMSHRC at 355).   The Commission referred to findings
in the initial decision 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.  It was 
found in the initial decision that Kissner stated that he looked at work
history and tenure when he decided to hire Doran other Garcia for the loader 
operator position but admitted that he did not review Garcia's personnel file,
letters of recommendation, safety record, orproduction level when considering 
whom to hire.

    In addition, the Commission found that the record indicates that on 
approximately June 7, 2000, after Colorado Lava assumed ownership of the subject 
operation, 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.  The Commission noted that Gallegos apparently had experience as a
bagger.  The Commission also noted that 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.  The Commission cited as fact that although Gallegos had experience 
as a bagger,  Garcia was also experienced as a bagger and more specifically 
with operations at the Antonito facility. The Commission concluded that "despite 
Garcia's availability when the bagger position was open, he was not considered 
for the position."  (23 FMSHRC at 355.)   Additionally, the Commission noted 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; that McCarroll testified that 
after June 5 a second employee of the Antonito facility worked at the rail site
with either Doran or himself, including George Ruybal, Brian Kent, and Joe
Padiolo, who were former MWCA employees rehired by Colorado Lava; that McCarroll 
testified that prior to June 5 Ruybal and Kent did not have experience operating 
the front-end loader and were being trained.  The Commission noted that Doran 
confirmed McCarroll's testimony that two employees continued to work at the rail
yard site after June 6.

    The Commission, 24 FMSHRC, supra, at 555 directed that, consistent with
Chacon, supra, ... "the Judge should consider all the evidence tending to show 
improper motivation, including that of disparate treatment of the miner."  In 
a footnote, 24 FMSHRC at 356, n. 6, the Commission indicated that the initial 
finding that Kissner lacked knowledge regarding Garcia's protected activity and 
animus towards him is not dispositive of the prima facie case issue.  The 
Commission also stated that "... 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 knowledge of and animus toward
Garcia's safety complaints to Bjustrom or Kissner."  Id.

    III. DISCUSSION

    The Commission, 24 FMSHRC supra, at 355, held that in the initial decision 
the analysis of motivation was incomplete under Chacon, supra, and that, "consistent 
with Chacon, supra, the Judge should consider all the evidence tending to show 
improper motivation, including that of disparate treatment of the miner".  In
compliance with this holding and directive, cognizance is taken of the
following indicia of discriminatory intent which had been initially listed in 
Chacon, supra, as follows: (1) knowledge of the protected activity; (2) hostility 
or animus toward protected activity; (3) coincidence in time between the protected 
activity and the adverse activity; and (4) disparate treatment of the
complainant.

         A.   Knowledge of the Protected Activity, and Hostility or Animus Toward
              Protected Activities

    Garcia engaged in the following protected activities while an employee of MWCA
prior to the  time it was purchased by Colorado Lava, a totally independent entity: 
(1) Garcia informed his  supervisor, Earl Gonzales, that a loader was tagged out 
because the brake did not work, and (2)  Garcia told McCarroll, another supervisor 
at MWCA, that the loader had been tagged out because of problems with the parking 
brake.  These two individuals were the only agents of MWCA who had actual knowledge
of Garcia's protected activities.  There is no direct evidence that any of Colorado
Lava's agents had actual knowledge of these specific activities.   The only 
individual who had expressed any animus towards Garcia was McCarroll.  These 
expressions of animus occurred while  both were employees of MWCA, prior to its 
purchase by Colorado Lava.  Bjustrom, who has an 80 percent ownership interest in 
Colorado Lava, had the ultimate authority to hire former employees from MWCA. However, 
he delegated that decision to Terry Kissner who subsequently interviewed employees 
of UMWA, and did not select Garcia.  I observed Bjustrom's demeanor while testifying
and found him to be a credible witness.  Accordingly, I accept his testimony that, 
prior to the time Colorado purchased MWCA, McCarroll had told him that Garcia was a
weak employee, not a good operator, and had filed grievances, but this information
did not have any bearing on the decision on June 5 regarding which employees of
MWCA would be hired by Colorado Lava.  Further, based on observations of Bjustrom's 
demeanor, I find his testimony credible that he not did take any part in the
hiring decision, and that it was Kissner who made the final decision in that regard, 
and that he had delegated this task to Kissner, as the latter had done the hiring 
for him (Bjustrom), for eight years.

    I also carefully observed the demeanor of Kissner, and found him to be a 
credible witness.  I  therefore accept his testimony that he did not have any 
knowledge of the applicants from MWCA before he interviewed them on June 5; and 
that the only time he had talked to McCarroll prior to June 5 had to do with 
ordering supplies.  I also accept his testimony that he did not consult with 
McCarroll before the interviews regarding the interviewees; did not consult with 
McCarroll after the interviews; and that McCarroll not provide him with any 
information regarding the interviewees.  I therefore find, that Kissner alone took 
the adverse action in not hiring Garcia on June 5, but that he did not have
knowledge of Garcia's prior protected activities.  Neither he nor Bjustrom 
manifested any animus toward Garcia prior to June 5.
  

         B.   Coincidence in Time Between the Protected Activity and the Adverse
              Action
    
    The protected activities engaged in by Garcia occurred in October 1999.  It 
was also on or about that time that McCarroll had expressed animus towards Garcia 
relating to these protected  activities.  McCarroll indicated that he continued to 
dislike Garcia.  However, it is significant to note that no adverse action was taken
by MWCA against Garcia.  Indeed, the adverse action that was taken subsequently by 
Colorado Lava on June 6 was more that seven months subsequent to the dates Garcia 
had engaged in the protected activities.  I thus find that the Secretary has not
established a sufficiently close coincidence in time between the protected activity 
and the adverse action to support an inference of improper motivation.

         C.   Disparate Treatment of the Complainant.
    
    As discussed above, based upon the findings of the Commission, which have become 
the law of the case, I am constrained to find that it may be inferred that Garcia 
was the subject of disparate treatment.

         D.   Conclusions

    The posture of this case before the Commission was whether Colorado Lava's motion 
to dismiss, made at the conclusion of Complainant's case-in-chief should have been 
granted.  The quantum of evidence sufficient to establish a prima facie case at this 
point in a trial, is "[e]vidence which, standing alone and unexplained, would maintain 
the proposition and warrant the conclusion to support which it is introduced.  An 
inference ... until proof can be obtained or produced to overcome the inference." 
Black's Law Dictionary, (6th ed., 1990), at 1190.  As set forth by the Sixth Circuit,
in order to establish a causal link, a plaintiff is required to proffer evidence 
sufficient to raise the inference that her protected activity was the likely reason 
for the adverse action.  EEOC v. Avery Dennison Corp. 104 F 3d 858, 861 (6th Cir.
1997), (quoting Zanders v. National R.R. Passenger Corp., 898 F 2d 1127, 1135 (6th 
Cir. 1990), (quoting Cohen v. Fred Meyer, Inc., 686 F. 2d 793, 796, (9th Cir. 1982)).

    However, in the case at bar, subsequent to the Commission's decision, Colorado 
Lava elected to rest on the basis of testimony elicited from the Secretary's witnesses, 
Bjustrom, Kissner, and McCarroll.  Accordingly, at this stage of the proceedings, 
since Respondent has adduced rebuttal evidence, in order to prevail the Secretary must 
"....overcome the additional obstacle of [Respondent's] rebuttal and convincingly 
demonstrate the existence of discrimination.  At that stage, he not only must
present facts and evidence allowing inferences to be drawn in his favor, but also 
must present a case that allows those inferences to be of significant force as to 
overcome the [Respondent's] rebuttal or prove the rebuttal pretext" Id.  In the same 
fashion, it is established Commission case law that the Secretary has the ultimate 
burden of proof of establishing discrimination under the Act.  Secretary of behalf 
of Robinette v. United Coal Co., 3 FMSHRC 803, 817 (1981), Secretary 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 (3rd Cir. 1981).  
Hence, in order to prevail herein, the Secretary must establish, by a preponderance 
of the evidence, that the adverse action was motivated in any part by the protected
activities.  Id.

    In analyzing the indicia of discriminatory intent as set forth in Chacon, supra, 
it might be inferred that Garcia did suffer some degree of disparate treatment. However,
I find that an inference of discriminatory intent, based on disparate treatment, to be 
diluted to a high degree by the lack of knowledge of the protected activities and lack 
of hostility or animus towards protected activity by Colorado Lava.  In reaching this 
conclusion I accord more weight to the direct testimony of Bjustrom and Kissner, having 
found their testimony credible based upon their demeanor, rather than inferences to
be drawn regarding disparate treatment.  I also note the lack of significant coincidence 
in time between the protected activities and the adverse action.  For these reasons I 
find that the Secretary has failed to establish, by a preponderance of the evidence 
(see Robinette, supra, Pasula, supra), that the adverse  taken by Colorado Lava was 
motivated in any part by Garcia's protected activities.

    For all the above reasons, I find that the Secretary has failed to establish 
that Garcia was discriminated against by Colorado Lava in violation of Section 105(c) 
of the Act, and that accordingly this case shall be DISMISSED.
 
    
                             Avram Weisberger
                             Administrative Law Judge

Distribution (Certified Mail)

Mark R. Malecki,  Esq., Office of the Solicitor, U.S. Department of Labor, 
1100 Wilson Blvd., 22nd  Floor, West, Arlington, VA 22209-2247

Mark W. Nelson, Esq., Harris, Karstaedt, Jamison & Powers, PC, 282 Inverness 
Drive South, Suite  400, Englewood, CO 80112-5816

/sc