<DOC>
[DOCID: f:penn97157.wais]

 
READING ANTHRACITE COMPANY
June 15, 1999
PENN 97-157-D

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                          June 15, 1999

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
  on behalf of WILLIAM KACZMARCZYK :
                                   :
            v.                     : Docket No. PENN 97-157-D
                                   :
READING ANTHRACITE COMPANY         :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioners

                            DECISION

BY: Jordan, Chairman; Riley, Verheggen, and Beatty,
    Commissioners

     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 determined that Reading Anthracite 
Company ("Reading") did not violate section 105(c) of the Act,[1]
30 U.S.C.  815(c), when it rejected William Kaczmarczyk for the
position of temporary haul truck driver and delayed awarding him 
the position of water truck driver.  20 FMSHRC 397, 411 (Apr. 
1998) (ALJ). The Commission granted the petitions for 
discretionary review filed by Kaczmarczyk and the Secretary of 
Labor challenging the judge's decision.  For the reasons that 
follow, we affirm the judge's decision.

                               I.

                Factual and Procedural Background

     Kaczmarczyk began working for Reading in 1976 at its Maple
Hill/Ellangowan coal mine in Pennsylvania.  Tr. 12-13.  As a
result of injuring his back at work in 1989, he stopped working
and was placed on workers' compensation.  20 FMSHRC at 398; S.
Ex. 4 at 19, 37-44.  In January 1992, he presented Reading with a
report from Dr. Keith R. Kuhlengel, his personal physician and a
neurosurgery specialist, stating that he was able to return to
work on a trial basis.  20 FMSHRC at 398; S. Exs. 26 & 29.  At
Reading's request, a second physician, Dr. Robert Gunderson, also
examined Kaczmarczyk and determined he was able to work.  20
FMSHRC at 398; S. Ex. 30.  He returned to work in January 1992 as
an electrician on Reading's light duty program.[2]  20 FMSHRC at
398.

     From June to September 1995, Kaczmarczyk drove a haul truck
and a water truck on an irregular basis.  Id. at 399.  In July
and August 1995, he reported a number of health and safety
problems to Reading concerning the company's trucks and
pumphouse.  Id. at 406-07.  On September 13, 1995, Kaczmarczyk
was told by Frank Derrick, Reading's general manager, to pick up
garbage in an area that included an incline, but he refused
because he believed it was unsafe.  Id. at 407; Tr. 124-25, 218-
19.

     In late September 1995, Kaczmarczyk re-injured his back and
was again placed on workers' compensation.  20 FMSHRC at 405 n.3,
411.  On December 20, Dr. Kuhlengel issued a report that
Kaczmarczyk could return to work provided his job did not involve
bending, squatting, twisting, pushing, pulling, crawling,
climbing, kneeling, or overhead work.  Id. at 400.  He also
stated that Kaczmarczyk should not lift or carry over 10 pounds.
Id.  A copy of the report was given to Reading.  Tr. 165-66.  On
June 5, 1996, Dr. Kuhlengel evaluated Kaczmarczyk and determined
that he could return to work, but restricted him from lifting
more than 10 pounds, doing overhead work, and bending, pushing,
or pulling.  20 FMSHRC at 410-11; S. Ex. 12 at 2.  A copy of the
evaluation was sent to Reading.  20 FMSHRC at 410.

     On June 24, Reading posted a water truck driver position 
and Kaczmarczyk applied for it. S. Ex. 8; Tr. 351-53. Under the
Contract, such posted positions at Reading are awarded to the
most senior and qualified employee who applies.  20 FMSHRC at
400-01; Tr. 435-36; S. Ex. 4 at 85.  The position was awarded to
a more senior driver and Kaczmarczyk did not dispute the award.
Tr. 351-53.  On September 25, Dr. Kuhlengel sent Reading a letter
repeating the restrictions he recommended on June 5 but adding
that Kaczmarczyk was able to drive a truck with an air seat. 20
FMSHRC at 400; S. Ex. 13.

     On October 8, 1996, Reading posted an opening for a
temporary haul truck driver position and Kaczmarczyk applied for
it.  S. Ex. 25.  On October 16, Reading awarded the position to
another employee even though Kaczmarczyk was the most senior
applicant.  20 FMSHRC at 401; Tr. 16.  Later that day, pursuant
to the Contract, Kaczmarczyk had a Step 1 grievance meeting with
Reading to appeal its decision not to award him the haul truck
job.  Jt. Ex. 1; R. Ex. 3.

     At a Step 2 grievance meeting on November 6, Kaczmarczyk
told Reading that he had a doctor's authorization to work as a
truck driver.  20 FMSHRC at 402.  On November 11, Kaczmarczyk
filed a complaint with MSHA claiming that Reading discriminated
against him when it did not award him the haul truck position.
Compl. at 6.  On November 13, Dr. Kuhlengel issued a report
stating that "[a]s long as the [truck driver] position is within
the stated restrictions, [Kaczmarczyk] should be able to perform
that job.  His restrictions continue to be no overhead working as
well as a 10-pound lifting restriction.  He should not be
bending, squatting, twisting, pulling, crawling, or climbing."
S. Ex. 14 at 2.  At a Step 3 grievance meeting on November 14,
Kaczmarczyk and Jay Berger, a United Mine Workers of America
representative, informed Reading that Dr. Kuhlengel had released
Kaczmarczyk to drive a haul truck.  20 FMSHRC at 402.  At the
meeting, Kaczmarczyk asked Reading to prepare a job analysis of
the haul truck position.  Id. at 403.

     On December 27, Derrick sent a letter to Berger stating that
Kaczmarczyk was not awarded the position because of his medical
restrictions.  S. Ex. 21.  Following a request for clarification
from Kaczmarczyk (20 FMSHRC at 403), Dr. Kuhlengel sent a letter
to him on January 19, 1997, stating that "you are able to drive a
truck with an air seat.  You would not be able to load and unload
. . . a freight truck because that obviously would require
pushing, pulling, carrying, climbing and twisting, which will
aggravate your spinal condition."  S. Ex. 15.  Kaczmarczyk gave a
copy of the letter to Reading.  Tr. 376.

     At Berger's request, Dr. Kuhlengel sent Berger a letter on
February 10, stating that Kaczmarczyk's condition would not
prevent him from climbing several steps to a truck cab.  20
FMSHRC at 403; S. Ex. 7.  He added that Kaczmarczyk could check
the truck's fluid levels and that he should keep "bending, 
squatting, twisting, pushing, pulling, crawling, climbing and 
kneeling . . . to less than 15 minutes total in an 8-hour day."  
S. Ex. 7.

     At a Step 4 grievance meeting on February 11, Berger gave
Derrick a copy of Dr. Kuhlengel's February 10 letter.  20 FMSHRC
at 403; Tr. 392.  On February 24, Reading sent a job analysis of
the haul truck position (the "haul truck job analysis") to Dr.
Kuhlengel, who issued a report on March 7 indicating that
Kaczmarczyk's physical restrictions did not prevent him from
working as a haul truck driver.  20 FMSHRC at 404.  On that same
day, Reading informed Kaczmarczyk by letter that he should make
arrangements to return to work.  Id.; R. Ex. 4.

     On March 10, 1997, Reading called Kaczmarczyk to tell him to
report to work as a haul truck driver.  20 FMSHRC at 404; Tr.
207.  When he went to the mine a half hour after the call, he was
told that the haul truck driver position no longer existed
because of the completion of a new conveyor belt system on March
2.  20 FMSHRC at 404; Tr. 376.  Upon learning that the haul truck
driver position was not available, Kaczmarczyk requested a job
analysis of the position of water truck driver, apparently with a
view to bumping into that position.  Tr. 182, 276, 380-81.  On
March 13, Reading completed its job analysis of the water truck
position and sent it to CRA Managed Care, Inc. ("CRA"),[3] which
forwarded it to Dr. Kuhlengel on April 9.  20 FMSHRC at 401, 405.
The job analysis indicated that the water truck position involved
similar physical demands as the haul truck position but in
addition required climbing eight times a shift, standing for a
total of one hour, walking a total of one hour, and turning a
water valve.  Id. at 405; S. Ex. 20.  Dr. Kuhlengel issued a
report on May 16 stating that Kaczmarczyk was physically able to
drive a water truck.  20 FMSHRC at 405.  On May 19, Kaczmarczyk
returned to work at Reading as a water truck driver.  Id.

     Kaczmarczyk's discrimination complaint concerning the haul
truck position proceeded to hearing on November 18 and 19, 1997.
During the hearing, the judge amended the complaint, at the
Secretary's request and Reading's agreement, to include a second
adverse action covering Reading's alleged delay in awarding
Kaczmarczyk the position of water truck driver.  Tr. 32-39.

     The judge held that Reading did not discriminate against
Kaczmarczyk in violation of section 105(c) of the Mine Act, 30
U.S.C.  815(c).  20 FMSHRC at 411.  He found that Kaczmarczyk
engaged in protected activity when he reported health and safety
problems to Reading during July and August 1995, and that Reading
took adverse actions toward Kaczmarczyk when it rejected him for
the temporary haul truck job and delayed awarding him the water
truck job.  Id. at 406-07.  The judge found that the Secretary
established a prima facie case of discrimination by showing some
discriminatory intent by Reading when it took these adverse
actions against Kaczmarczyk.  Id. at 409-410.  However, based on
Kaczmarczyk's medical restrictions, the judge determined that
Reading would have rejected him for the haul truck position in
any event for the legitimate business reason that Kaczmarczyk
could not meet the physical requirements of the job.  Id. at 410-
11.  The judge also found that Reading had a legitimate business
reason for obtaining a job analysis of the water truck position
because the job was more physically demanding than the haul truck
driver position.  Id. at 411.  Accordingly, the judge determined
that Reading established its affirmative defense by proving it
would have taken the adverse actions solely for legitimate
business reasons related to Kaczmarczyk's inability to perform
the physical demands of the jobs.  Id.

                               II.

                           Disposition

     The Secretary argues that the judge erred in finding that
Reading did not violate section 105(c).  S. PDR at 1-2.[4]  She
asserts that he incorrectly applied a "not unreasonable" standard
when analyzing Reading's affirmative defense instead of
determining whether Reading proved it would have acted as it did
for nondiscriminatory reasons alone.  Id. at 8-12.  The Secretary
argues that the judge failed to place the burden of persuasion on
Reading to establish its affirmative defense.  Id. at 12 n.3.
She contends that the judge's conclusion that Reading established
its affirmative defense is not supported by substantial evidence.
Id. at 20-27.  She also argues that the judge failed to consider
relevant evidence concerning Reading's delay in completing the
haul truck job analysis and its failure to pursue alternatives,
such as contacting Kaczmarczyk's doctor to clarify his
restrictions.  Id. at 12-19.  The Secretary requests that the
Commission reverse the judge's decision and remand the case for
determination of damages and assessment of an appropriate civil
penalty.  Id. at 27.

     Reading responds that the judge applied the correct standard
to its affirmative defense by determining that it would have
carried out the adverse actions for nondiscriminatory reasons
alone.  R. Br. at 6-9.  It argues that the judge compared
Kaczmarczyk's restrictions with the physical requirements of the
haul truck job and concluded correctly that, at the time the job
was posted, Kaczmarczyk could not meet the physical demands of
the job.  Id. at 13-16.  Reading asserts that the judge correctly
found that it did not discriminate against Kaczmarczyk by
performing a job analysis of the water truck position because
Kaczmarczyk requested the job analysis.  Id. at 16-17.  In
addition, the operator contends that the judge considered all the
relevant evidence in the record.  Id. at 9-13.  Reading requests
that the Commission affirm the judge's determination.  Id. at 17.

     A.   Whether the Judge Applied the Correct Legal Standard

     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 Secretary 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); Secretary of Labor on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).  The operator may
rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in

no part motivated by protected activity.  See Robinette, 3 FMSHRC
at 818 n.20.  If the operator cannot rebut the prima facie case
in this manner, it nevertheless may defend affirmatively by
proving that it also was motivated by the miner's unprotected
activity and would have taken the adverse action for the
unprotected activity alone.  See id. at 817-18; Pasula, 2 FMSHRC
at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813
F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette
test).  On these issues, the operator bears the ultimate burden
of persuasion.  Pasula, 2 FMSHRC at 2800.

     Here, at issue is whether the judge, having found a prima
facie case of discrimination by Reading, used the correct legal
standard when examining Reading's affirmative defense.  We
conclude that he did.  Concerning the haul truck position, the
judge found that Reading had "a legitimate business concern . . .
that Kaczmarczyk be physically capable of operating a haul
truck."  20 FMSHRC at 410.  Similarly, with respect to the water
truck position, the judge found that Reading had a "legitimate
concern" whether Kaczmarczyk could perform the job.  Id. at 411.
The judge concluded that Reading would have taken the adverse
actions for legitimate nondiscriminatory business reasons alone.
Id.

     We do not agree with the Secretary's argument that the judge
erred by basing his analysis on whether Reading's adverse actions
were reasonable business decisions rather than on whether it
would have acted as it did for nondiscriminatory reasons alone.
Although the judge stated that Reading's business concerns were
"not unreasonable," his conclusion that it would have taken the
adverse actions solely for legitimate business reasons is
faithful to Pasula-Robinette.  Id. at 410-11.

     We also do not agree with the Secretary's argument that the
judge failed to shift the burden of persuasion to Reading in his
analysis of its affirmative defense.  S. PDR at 12 n.3.  The
judge's statements that "Reading has established its affirmative
defense" and "Reading has established that the adverse actions
complained of would have been taken . . . based solely upon"
nondiscriminatory grounds show that he properly placed the burden
of persuasion on Reading.  20 FMSHRC at 410-11.

     B.   Whether Substantial Evidence Supports the Judge's
          Finding that Reading Established an Affirmative Defense

          1.   Haul Truck Driver Position

     In determining whether substantial evidence[5] supports the
judge's finding that Reading established an affirmative defense
for failing to award Kaczmarczyk the haul truck job, we examine
two subsidiary issues:  first, whether the judge failed to
consider evidence that Reading delayed the haul truck job
analysis and failed to pursue other alternatives in order to
avoid awarding the job to Kaczmarczyk; and second, whether there
is sufficient evidence in the record to support the judge's
finding that Reading prevailed on its affirmative defense.
Contrary to the Secretary's assertions, the judge's decision
indicates that he did consider the Secretary's arguments.  He
stated that he took into account the Secretary's claim "that the
only motive was one of retaliation as set forth in pages 9-25 of
[her] brief," which included her assertion that Reading
purposefully delayed offering Kaczmarczyk the haul truck position
and failed to pursue alternatives such as contacting his doctor.
20 FMSHRC at 410; S. Post-hearing Br. at 9-25.  The judge noted
the Secretary's position that pretext was shown by evidence that
it took Reading four months to contact Dr. Kuhlengel following
Kaczmarczyk and Berger's request to do so.  20 FMSHRC at 410.
The delay in contacting Dr. Kuhlengel and the delay in creating a
job analysis are closely related because Reading had to contact
Dr. Kuhlengel in order to complete the job analysis.  Id. at 404;
Tr. 59-60.[6]  In terms of Reading's obligations to pursue
alternatives, the judge found that Reading was not obligated by
previous practice or the Contract to contact Kaczmarczyk's doctor
or make referrals to other doctors.[7]  20 FMSHRC at 402.
Moreover, the judge went on to state: "I have considered all of
these arguments, as well as the balance of the Secretary's
arguments as set forth in the post hearing brief.  For the
reasons that follows [sic], I conclude that Reading has
established its affirmative defense, and I reject the Secretary's
arguments."  20 FMSHRC at 410.

     Commission Procedural Rule 69(a) requires that a Commission
judge's decision "shall include all findings of fact and
conclusions of law, and the reasons or bases for them, on all the
material issues of fact, law or discretion presented by the
record."  29 C.F.R.  2700.69(a).  We thus have held that a judge
must analyze and weigh all probative record evidence, make
appropriate findings, and explain the reasons for his or her
decision.  Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222
(June 1994).  However, the Commission has also stated that "[i]t
is within a judge's discretion to sift through the testimony
presented and to base his decision on that which he deems to be
credible, relevant and dispositive of the issues before him."
Damron v. Reynolds Metal Co., 13 FMSHRC 535, 542 (Apr. 1991).
The judge explicitly, albeit summarily, considered the
Secretary's arguments and rejected them.  He then set forth his
rationale for holding that Reading established an affirmative
defense, relying on Kaczmarczyk's physical restrictions and the
physical requirements of the jobs.  20 FMSHRC at 410-11.  By
explaining in detail his analysis of other evidence that led him
to find that Reading established its affirmative defense, the
judge complied with Rule 69(a).

     Next, we turn to the Secretary's argument that substantial
evidence does not support the judge's conclusion that Reading
established its affirmative defense.  We find that substantial
evidence supports the judge's determination that Reading would
have rejected Kaczmarczyk for the haul truck position based
solely on the nondiscriminatory reason that he could not meet the
physical requirements of the job.[8]

     The judge correctly found that Kaczmarczyk was subject to
bending restrictions when he was rejected for the haul truck
position.  The judge noted that Dr. Kuhlengel's reports of
December 20, 1995, June 5, 1996, and September 25, 1996, stated
that Kaczmarczyk was restricted from bending.  20 FMSHRC at 410-
11.  He also noted that the haul truck job analysis included
bending and he accepted Derrick's testimony that the job required
it.  Id. at 401, 410-11.  The judge also found that "[a] miner
must bend to perform the preshift inspection and to check fluids
on the haul trucks."  Id. at 401.  He gave little weight to
Kaczmarczyk's testimony that fluid checks do not require bending,
as Kaczmarczyk had not performed such checks.  Id.  He also
discredited Kaczmarczyk's claim that only mechanics and not
drivers performed pre-inspections and fluid checks on the haul
trucks.[9]  Id.

     A judge's credibility determinations are entitled to great
weight and may not be overturned lightly.  Farmer v. Island Creek
Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal
Co., 3 FMSHRC 2767, 2770 (Dec. 1981).  The Commission has
recognized that, because the judge "has an opportunity to hear
the testimony and view the witnesses[,] he [or she] is ordinarily 
in the best position to make a credibility determination."  In 
re: Contests of Respirable Dust Sample Alteration Citations, 
17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 
729 F.2d 713, 719 (11th Cir. 1984)), aff'd sub nom. Secretary 
of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. 
Cir. 1998).  We find no basis for overturning the judge's 
refusal to grant much significance to Kaczmarczyk's testimony 
that the fluid checks did not require bending and that only 
mechanics performed the pre-inspections and fluid checks on
the haul trucks.  We find that Kaczmarczyk's bending restrictions
and the haul truck job's bending requirements support the judge's
finding that Reading would have rejected Kaczmarczyk for the
legitimate business reason that he could not meet the physical
requirements of the job.

     The judge's conclusion that Reading established its
affirmative defense is further supported by the record evidence
on overhead work and lifting.  The judge noted that the June 5,
1996 medical report stated that Kaczmarczyk was restricted from
doing overhead work and lifting and that the haul truck job
analysis indicated that the position required lifting above 
the shoulder level.[10]  20 FMSHRC at 410-11; S. Ex. 19 at 2.  
Based in part on the evidence concerning overhead work and 
lifting, the judge found that it was reasonable for Reading 
to conclude in October 1996 that Kaczmarczyk could not perform 
the duties of the haul truck job.  20 FMSHRC at 410-11.

     In addition, the judge found that the June 5 and September
25, 1996 medical reports about Kaczmarczyk listed pushing and
pulling restrictions.  Id. at 400, 410-11.  Although he failed to
note that the haul truck job analysis included pushing and
pulling requirements (see S. Ex. 19 at 1-3), those requirements
provide further support for the judge's finding that Reading
would have rejected Kaczmarczyk for the haul truck position for
the legitimate business reason that he could not meet the
physical requirements of the job.[11]

     In sum, we find that Kaczmarczyk's restrictions on bending,
overhead work, lifting, pushing, and pulling provide substantial
evidence to support the judge's finding that Reading
established its affirmative defense that it would have taken the
same action concerning the haul truck position based solely on
legitimate business reasons.

          2.   Water Truck Driver Position

     When Reading carried out a job analysis of the water truck
position in March 1997, Kaczmarczyk's latest medical report,
dated February 10, 1997, stated that he could drive a truck and
climb up to a truck cab, but that "bending, squatting, twisting,
pushing, pulling, crawling, climbing and kneeling should be
restricted to less than 15 minutes total in an 8-hour day."  S.
Ex. 7.  The water truck job involved greater physical demands
than the haul truck job, such as more climbing, walking, and
standing, and turning a water valve.  20 FMSHRC at 411; Tr. 273,
339-46.  Thus, we find that substantial evidence supports the
judge's conclusion that, given Kaczmarczyk's numerous medical
restrictions and the increased physical demands of the water
truck job, it was not unreasonable for Reading to carry out the
job analysis to determine if he could perform the water truck
job.  20 FMSHRC at 411.  Moreover, as Reading notes, Kaczmarczyk
himself requested the analysis.  R. Br. at 16.  We also find that
substantial evidence supports the judge's rejection of the
Secretary's argument that Reading discriminated against
Kaczmarczyk by delaying the job analysis.  20 FMSHRC at 411; S.
PDR at 25-27.  Reading completed the job analysis and sent it to
CRA on March 13, 1997, just a few days after Kaczmarczyk showed
an interest in the position.  20 FMSHRC at 405.  CRA then sent it
to Dr. Kuhlengel on April 9, 1997, who approved and returned it
to Reading on May 16, 1997.  Id.  Kaczmarczyk returned to work as
a water truck driver on May 19, 1997.  Id.  Thus, the record
evidence indicates that the two month delay in finalizing the job
analysis was due to delays by CRA and Dr. Kuhlengel, not Reading.
Accordingly, we affirm, on substantial evidence grounds, the
judge's decision that Reading established its affirmative defense
to the discrimination claim regarding the delay in awarding
Kaczmarczyk the water truck position.

**FOOTNOTES**

     [1]:  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] representative of miners . .
               . because of the exercise by such miner,
               [or] representative of miners . . . of
               any statutory right afforded by this
               Act.

     [2]:  According to the collective bargaining agreement 
covering Reading's      employees (the "Contract"), the light
duty program involves work "in which occupations [sic] hazards,
lifting of weight and exposure to extremes of temperature, 
dampness and dust are substantially less than those of the job
held by the Miner at the time of his disabling accident . . . ."
S. Ex. 4 at 37-38.

     [3]:  CRA is Reading's contracted managed care consultant 
with respect to workers' compensation claims.  Tr. 14.

     [4]:  Pursuant to Commission Procedural Rule 75(a), 29 C.F.R. 
 2700.75(a), the Secretary and Kaczmarczyk designated the
Secretary's petition as their opening brief.

     [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 Consolidated 
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In reviewing the 
whole record, an appellate tribunal must consider anything in 
the record that "fairly detracts" from the weight of the evidence 
that supports a challenged finding.  Midwest Material Co., 19 
FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. 
v. NLRB, 340 U.S. 474, 488 (1951)).

     [6]:  In the "Findings of Fact" section of his decision, 
the judge described the events and dates surrounding Reading's
rejection of Kaczmarczyk for the haul truck position, Kaczmarczyk's 
request to Reading for a job analysis of the position, and 
Reading's issuance of the job analysis. 20 FMSHRC at 400-04.

     [7]:  We disagree with our dissenting colleague's argument 
that Reading's affirmative defense should be rejected on the 
ground that, contrary to established practice, Reading did not
require Kaczmarczyk to obtain a second medical opinion regarding 
his ability to perform the haul truck driver duties. Slip op. 
at 15-16; Tr. 465.  The dissent claims that this treatment 
compares unfavorably to the "past procedure of having 
Kaczmarczyk independently evaluated." Slip op. at 16. In fact,
the record reveals only two other distinguishable instances 
when Kaczmarczyk provided medical releases, and does not 
establish the existence of any definitive procedure regarding 
the necessity for obtaining second opinions. One incident 
involved Kaczmarczyk's presentation of a medical release for 
an electrician's job in 1992, before he engaged in protected 
activities, but it is unclear whether the medical restrictions 
in that release were relevant to the job. S. Ex. 29. A second 
opinion was obtained.  S. Ex. 30. The other incident involved
Kaczmarczyk's request to perform overtime work in 1995, after 
he had engaged in protected activity, when he provided Reading 
with a doctor's report stating that he could work overtime.  
S. Ex. 26.  Reading then asked for a second medical opinion - 
to confirm that he could work overtime.  S. Ex. 10.  In
contrast, when he applied for the haul truck position in 1996, 
the first doctor's report did not state that he could perform 
that job - instead, it included relevant restrictions.
Consequently, there was nothing for a second doctor to confirm.  
Thus, Kaczmarczyk's situation in 1996 was simply not comparable 
to that of 1995.

     The dissent also contends that Reading's affirmative 
defense was suspect because, contrary to established practice,
Derrick did not consult with Rick Muntone, one of Reading's 
accountants (Tr. 260-61), and Dave Wolfe, Reading's safety 
director (Tr. 133-34), about Kaczmarczyk's application for 
the haul truck position.  Slip op. at 15-16. However, the 
record is not clear on this issue because Derrick testified 
that he did consult with Muntone and Wolfe, but Muntone 
testified that he was not consulted by Derrick. Tr. 150-51; 
263-64.  The judge made no finding as to whether or not 
Derrick did consult with co-workers regarding Kaczmarczyk's
application.

     [8]:  We disagree with our dissenting colleague's assertion
(slip op. at 13) that we have overlooked evidence of Kaczmarczyk's 
past safety activity and the fact that the Commission determined,
in a different case, that Reading discriminated against Kaczmarczyk 
in violation of section 105(c) because of his protected safety 
activity. See Secretary of Labor on behalf of Kaczmarczyk v. 
Reading Anthracite Co., 17 FMSHRC 784, 785 (May 1995) (ALJ). These 
matters were appropriately considered by the judge when he found 
a prima facie case of discrimination by Reading (20 FMSHRC at 
406-10), which Reading does not challenge on review. The issue 
on review, however, is whether substantial evidence supports the
judge's conclusion that Reading established an affirmative defense 
by showing that it would have acted as it did notwithstanding 
Kaczmarczyk's protected activities.

     [9]:  Derrick and Berger's testimony and the haul truck job 
analysis indicate that the position involved pre-shift inspections 
and fluid checks.  Tr. 120-21, 138-41; S. Ex. 19.

     [10]:  The haul truck job analysis rated the requirement to 
reach above the shoulder as 20% of the haul truck job. S. Ex. 19 
at 2.  The job analysis stated that the position required lifting 
a 15 pound bucket of antifreeze above the shoulders but that such 
lifting could be avoided by using a rope to pull the bucket onto 
the truck.  Id. at 2, 3.

     [11]:  The Secretary argues that the judge erred in finding 
that Kaczmarczyk was subject to climbing and squatting restrictions 
when he was rejected for the haul truck position. S. PDR at 20-22.  
The record evidence as a whole is not conclusive on this issue.  
When Kaczmarczyk was rejected for the haul truck position in 
October 1996, his two latest medical reports (the June 5 and
September 25, 1996 reports) did not mention climbing or squatting
restrictions.  S. Exs. 12, 13.  However, an earlier December 20, 
1995 report and two reports after his transfer (the November 13, 
1996 and January 19, 1997 reports) contained climbing and
squatting restrictions.  S. Exs. 11, 14, 15.  Even if the judge 
erred concerning Kaczmarczyk's climbing and squatting restrictions, 
these errors would be harmless because the record provides other 
evidence, i.e., Kaczmarczyk's bending, overhead work, lifting,
pushing, and pulling restrictions, that supports the judge's 
finding that Reading would have rejected Kaczmarczyk for the 
haul truck position for the legitimate business reason that he 
could not meet the physical requirements of the job.

                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's determination 
that Reading did not violate section 105(c).

                              Mary Lu Jordan, Chairman

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner

     Commissioner Marks, dissenting:

     This case turns upon the issue of whether Reading successfully 
established an affirmative defense to the judge's adjudication of 
a prima facie case of discrimination. Because I conclude that the 
record compels the conclusion that Reading did not establish such 
an affirmative defense, I dissent.

     The majority has overlooked a very significant fact in this
case, that is - the record establishes that, by the time William 
Kaczmarczyk tried to obtain the truck driver positions at issue, 
he had a history of safety activism which was met with antagonism 
by the management at the Reading mine.  In 1993, Kaczmarczyk was 
the treasurer of Local 7226 of the United Mine Workers of America
(UMWA).  Secretary of Labor on behalf of Kaczmarczyk v. Reading
Anthracite Co., 17 FMSHRC 784, 785 (May 1995) (ALJ, Amchan). He 
was also a mine committeeman and the safetyman for his local union,
which represented Reading's employees.  Id.  On May 24, 1995, a
Commission administrative law judge, in a different case not at
issue here, determined that Reading discriminated against 
Kaczmarczyk in violation of section 105(c) of the Mine Act because 
of his activities as a walkaround representative for an MSHA
inspection.  Id. at 784, 797.  The judge there permanently 
reinstated Kaczmarczyk (id. at 798) and Kaczmarczyk drove haul 
and water trucks for Reading on an irregular basis.  20 FMSHRC 
at 399. Just months after he was reinstated, between July and 
September 1995, Kaczmarczyk made a number of safety complaints, 
to which the parties stipulated and the judge in this case found 
were protected activities under the Mine Act. Id. at 406-07.  
Kaczmarczyk's extensive protected activity serves as an integral 
backdrop for his current discrimination complaint against
Reading.

     This case involves Kaczmarczyk's attempt to return to active
duty work at Reading in October of 1996, after he injured his back 
in September of 1995.  Id. at 400-01, 405 n.3.  Here, the judge
determined that the Secretary established a prima facie case of
discrimination when it awarded the haul truck driver position to 
a less senior miner than Kaczmarczyk. Id. at 409-10. In particular, 
the judge found that Reading had "animus toward the protected
activities" of Kaczmarczyk, as exhibited by the personal statements 
made by the General Manager of Reading, Frank Derrick, to 
Kaczmarczyk.  Id. at 409; Tr. 124-25.  Upon a finding of prima
facie case of discrimination, it became incumbent upon the 
operator to establish an affirmative defense. Secretary of Labor 
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 
817-18 (Apr. 1981); Secretary of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799-800 (Oct. 1980), 
rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981). In Secretary of Labor on behalf of
Price and Vacha v. Jim Walter Resources, Inc., 12 FMSHRC 1521
(Aug. 1990), the Commission explained:

     [A]n operator proves an affirmative defense pursuant to the
     Pasula-Robinette test if it shows that (1) it was also 
     motivated by the miner's unprotected activities, and (2) 
     would have taken the adverse action in any event for the
     unprotected activities alone. The operator must prove that 
     it would have disciplined the miner anyway for the unprotected
     activity alone. Ordinarily, an operator can attempt to
     demonstrate this by showing, for example, past discipline
     consistent with that meted out to the alleged discriminatee.
     . . .  As a corollary to these principles, it follows that 
     an operator does not establish a Pasula-Robinette affirmative
     defense if a work rule or policy that the miner is alleged 
     to have violated, was applied discriminatorily to the miner 
     or in a manner deliberately calculated to render his
     compliance difficult or impossible.  In such cases, the
     claimed "independent" basis for discipline is actually an
     extension of the operator's discriminatory conduct.
     Further, pretext may be found, for example, where the 
     asserted justification is weak, implausible, or out of 
     line with the operator's normal business practices.

     12 FMSHRC at 1534 (citations and internal quotations omitted).

     There is one disturbing and undisputed fact in this case
that sheds significant doubt on Reading's asserted justifications
for its delay in awarding a haul truck driver position to
Kaczmarczyk.  On March 10, 1997, approximately five months after
Kaczmarczyk bid on the truck job, Reading called Kaczmarczyk and
asked him to report to work.  20 FMSHRC at 404.  He arrived a 
half hour later and was told that there was no position available.
Id. Why would the company call him into work and then provide him 
with no position?  Neither the Judge nor the majority answers 
this compelling question or even discusses its relevance. Because
of this alarming fact, I am led to the conclusion that Reading's
asserted business justification was nothing more than a pretext
for discriminating against a miner with a history of safety 
activism at the mine.

     The Secretary asserts that Reading waited to resolve
Kaczmarczyk's dispute until the position was effectively
eliminated.  I cannot help but agree.  General Manager Derrick
testified that he was aware that the new conveyor system, that 
was to replace the haul truck drivers, would be operational by 
March of 1997.  Id.; Tr. 211.  Therefore, all Reading needed to 
do to keep Kaczmarczyk out of active duty was to delay the 
grievance procedure until after the position was no longer 
available.  From a review of the record, that is exactly what
happened.

     On September 25, 1996, Kaczmarczyk's doctor, Dr. Kuhlengel,
sent a letter to Reading permitting Kaczmarczyk to drive a truck 
with an air seat and repeating the restrictions he recommended 
in an earlier letter sent on June 5, 1996.[1]  20 FMSHRC at 400; 
S. Ex. 13.  Kaczmarczyk gave the letter to Reading.  20 FMSHRC 
at 400. On October 8, 1996, Reading posted an opening for a 
temporary haul truck driver position and Kaczmarczyk applied for 
it.  S. Ex. 25.  On October 16, Reading awarded the position to 
another employee even though Kaczmarczyk was the most senior 
applicant.  20 FMSHRC at 401; Tr, 16.  Under the Contract, such 
posted positions at Reading are awarded to the most senior and
qualified employee who applies. 20 FMSHRC at 400-01.

     After learning that he was not awarded the position, on
October 16, 1996, Kaczmarczyk had a Step 1 grievance meeting 
with Reading to appeal its decision not to award him the haul 
truck job. Jt. Ex. 1; R. Ex. 3.  Step 2 and Step 3 grievance 
meetings were held on November 6 and November 14, at which 
Kaczmarczyk claimed that he was permitted to drive a truck as
authorized by Dr. Kuhlengel.  20 FMSHRC at 402.  At the 
November 14 meeting, Kaczmarczyk and Jay Berger, a UMWA 
representative, asked Reading to prepare a job analysis of 
the haul truck position.  Id. at 402-03.  No response was 
forthcoming from the company and, on December 4, union
representative Berger sent a letter to Derrick, informing him 
that Kaczmarczyk had a release from his doctor and asking for 
the reasons why he had been denied the truck driver position.  
S. Ex. 5.  On December 27, six weeks after the Step 3 meeting, 
Derrick sent a letter in reply to Berger stating that 
Kaczmarczyk's medical restrictions were the reason for denying 
im the position.  S. Ex. 21.  At the Step 4 grievance meeting, 
on February 11, 1997, Berger gave Derrick a copy of Dr.
Kuhlengel's letter that clarified that he could perform other 
duties associated with truck driving, such as checking truck 
fluid levels and climbing several steps into the cab. 20 FMSHRC 
at 403; S. Ex. 7. A job analysis was finally ordered and it was 
confirmed on March 7 that Kaczmarczyk's physical restrictions 
did not prevent him from working as a haul truck driver.  
20 FMSHRC at 404.

     The problem is that by the time Kaczmarczyk was awarded the
position, there was no position to be had and the operator forced
Kaczmarczyk to start the process all over again resulting in
additional delay.  Incredibly the judge misses the obvious point -
that Reading's delay and offer of a non-existent job was motivated 
by its discriminatory intention to keep Kaczmarczyk, who Derrick
called the "downfall of Reading," (id. at 409), out of a job.  
When enacting the Mine Act, Congress explained that the anti-
discrimination provision was intended to protect miners "against
not only the common forms of discrimination, such as discharge,
suspension, demotion, reduction in benefits . . . , but also 
against the more subtle forms of interference."  S. Rep. No. 
95-181, at 36 (1977), reprinted in Senate Subcommittee on Labor, 
Committee on Human Resources, 95th Cong., Legislative History 
of the Federal Mine Safety and Health Act of 1977, at 624 ("Legis. 
Hist.") (emphasis added).  Extending a miner an offer of a 
non-existent job qualifies as the type of subtle discrimination
the Mine Act was intended to reach!

     In addition to this unexplained empty job offer on March 10,
Reading's affirmative defense is further undercut by the evidence
that Kaczmarczyk received disparate treatment when he was denied 
the truck driver position in October of 1996. Although the judge
determined that there was "no evidence that Reading was obligated
to contact . . . another physician," (20 FMSHRC at 402), the
judge seems to have overlooked that, when Kaczmarczyk attempted 
to re-enter the work force in the past and presented a doctor's 
release that also contained restrictions, Reading sent him for 
an independent evaluation from another physician. S. Exs. 26, 
27, 29 & 30.  However, in October 1996, the company did not 
follow its past procedure of having Kaczmarczyk independently
evaluated.[2]  Further disparate treatment was shown in the way
Reading handled the decision to deny Kaczmarczyk the truck 
driver position.  General Manager Derrick testified that normally 
he would confer with Rick Muntone, who worked with worker's 
compensation, and safety director Dave Wolfe when considering the 
bid of an employee with medical restrictions.  Tr. 133-34.  
However, the record revealed that no such conference occurred 
when it came to Kaczmarczyk's bid for truck driver. Tr. 150-51, 
263-64.  As the Commission has recognized, pretext may be found, 
for example where the asserted justification is weak, implausible, 
or out of line with the operator's normal business practices.[3]  
Price and Vacha, 12 FMSHRC at 1534.  Given that Kaczmarczyk's 
rejection was out of line with normal business practice, I am 
further led to the conclusion that Reading's asserted business
justifications were not the sole motivating factor in its 
decision not to award Kaczmarczyk the truck driver position.[4]

     Further, the medical restrictions on which the judge relied
are also suspect.  I agree with Secretary that the judge erred 
in finding that Kaczmarczyk was subject to climbing and squatting
restrictions when he was rejected for the haul truck position 
on October 16.  S. PDR at 20-22.  The judge incorrectly stated 
that Dr. Kuhlengel's September 25, 1996 report contained "the 
same restrictions as . . . his report of June 5, 1996, [including] 
. . . no bending, climbing, or squatting . . . ."  20 FMSHRC at 
411.  The June 5 and September 25 reports, which were the two 
most recent medical reports at the time of Kaczmarczyk's 
rejection for the position, contained no restrictions regarding 
climbing and squatting. S. Ex. 12, 13.  That leaves the
restrictions - no bending, no overhead work and no lifting of
over 10 pounds - upon which the judge relied.  However, as 
these were minor aspects of the jobs, the restrictions should 
not have justified outright refusal of the haul truck position.  
Instead, if Reading had doubts about Kaczmarczyk's capabilities 
to perform the job, the company should have ordered an immediate 
job analysis or had Kaczmarczyk independently evaluated as it 
had done in the past.

     As to bending in order to perform pre-shift evaluations, the
judge acknowledged "as a result of a grievance, mechanics still
service and start the haul trucks." 20 FMSHRC at 401.  What the 
judge failed to realize from this fact is that, even if drivers 
sometimes checked the fluids, as he found, it was a minor portion 
of the job. Derrick admitted that mechanics performed the truck 
servicing jobs, but added "but that doesn't mean that the workers 
can't do it."  Tr. 460-61; see also Tr. 120 (Berger testifying 
that bending to check fluids is an insignificant part of the job).  
Although the drivers may have sometimes performed the fluid
checks, it is hard to imagine that the company would have 
outright denied Kaczmarczyk the truck driving job because of 
is bending restriction when, practically speaking, it was an 
insignificant part of the job.  As to lifting and overhead work, 
the only item that required above the shoulder work was lifting 
a bucket of anti-freeze once daily.  S. Ex. 19 at 2.  Dr.
Kuhlengel's September 1996 release letter permitted Kaczmarczyk 
to lift 10 pounds.  Thus, as Derrick conceded, Kaczmarczyk could 
have managed lifting 20 pounds of antifreeze by simply making 
two trips of the bucket.  Tr. 145-46.  The job analysis also 
stated that above shoulder lifting was not necessary and could 
be avoided by using a rope to pull the bucket onto the truck.  
S. Ex. 19 at 2, 3.  Because bending and lifting were such small
parts of the job and Kaczmarczyk was not subject to climbing and
squatting restrictions,[5] I am led to the conclusion again that
Reading's asserted reliance on Kaczmarczyk's medical restrictions
was a mere pretext to keep him from returning to work, and was 
not the sole motivating factor in its denial of the haul truck
position.

     Given the unexplained March 10 "job" offer, the evidence 
of disparate treatment, and the weakness of the actual medical
restrictions, I am unable to conclude that substantial evidence
supports the judge's finding that Reading established an 
affirmative defense when it denied Kaczmarczyk the haul truck 
job.  Instead, the record compels the conclusion that Reading's 
asserted justifications were out of line with their business 
practices and nothing more than a pretext.  For this reason, 
I would reverse the judge's dismissal of the discrimination 
violation with respect to the haul truck position.

     Reading's discriminatory treatment of Kaczmarczyk carried
over to the water truck position. On March 7, 1997, Reading 
received the completed job analysis from Dr. Kuhlengel in which 
he stated that Kaczmarczyk's physical restrictions did not 
prevent him from working as a haul truck driver.  20 FMSHRC at
404; S. Ex. 19.  It was undisputed that the water truck was 
only a modified haul truck.  20 FMSHRC at 411; Tr. 188, 271 
(testimony of Derrick and Muntone). Furthermore, the reasons 
that Reading offered, and the judge relied on, to justify a 
further delay and a second job analysis do not withstand 
scrutiny when one examines the March 7 job analysis that 
Reading had in hand. The judge found that operation of the 
water truck, in contrast to the haul truck, "required climbing
eight times a shift, standing a total of [one] hour, and 
walking a total of an hour."  20 FMSHRC at 411.  The March 7 
job analysis permitted these activities.  S. Ex. 19. The March 
7 job analysis provided for climbing 20 percent of the time 
and standing and walking up to half an hour at any one time
without providing a total time restriction in a day.  Id. 
Dr. Kuhlengel approved Kaczmarczyk for all of these 
activities.  Id. Furthermore, Kaczmarczyk was not restricted 
from walking and standing in any of the doctor's letters or 
reports given to Reading in 1996 and 1997.  S. Exs. 7, 12,
13, 14, 15.  In addition, Dr. Kuhlengel had specifically
explained that climbing the steps into a truck cab was 
permissible in his February 10, 1997 letter.  S. Ex. 7.[6]  
Therefore, substantial evidence does not support the judge's 
finding that it was reasonable for Derrick to conclude that 
Kaczmarczyk's restrictions would have prevented him from
driving the water truck.

      Further, I reject the majority's reasoning that
Kaczmarczyk's request of the job analysis for the water truck 
job somehow legitimizes the company's decision to order a 
second job analysis.  Slip op. at 11.  On March 10, Reading 
pulled the rug from under Kaczmarczyk's feet by ordering him 
back to work and, on the very same day, informing him that no 
positions were available. As the Secretary asserts, Kaczmarczyk 
had no choice but to ask for a job analysis for any and all 
available positions, as that seemed the only way that Reading
was ever going to consider him for a job. S. Reply Br. at 3.  
Given the similarities of the two truck driver positions, I 
conclude that Reading should have arranged for Kaczmarczyk to
be a water truck driver in March, not in May after a second 
job analysis.

     Indeed, the record can only support the conclusion that
ordering the second job analysis on March 12, when Reading 
already had a March 7 analysis for basically the same position, 
was a pretext to further delay Kaczmarczyk's return to active 
duty.  Jt. Ex. 1.  I therefore conclude that Reading failed to 
establish an affirmative defense that it was solely motivated 
by its asserted medical reasons when it delayed awarding
Kaczmarczyk the water truck position.

     Congress, when enacting the Mine Act, was "cognizant that 
if miners are to be encouraged to be active in matters of safety 
and health, they must be protected against any possible 
discrimination which they might suffer as a result of their 
participation."  S. Rep. No. 95-181, at 35,  Legis. Hist. at
623.  Kaczmarczyk had a history of upholding safety rights under 
the Mine Act at Reading's mine. I conclude that Reading would 
not have refused Kaczmarczyk the haul truck job, stonewalled him 
through the grievance procedure, offered him a non-existent job 
and, to add insult to injury, further delayed in awarding him 
a water truck position, if not for Kaczmarczyk's safety history 
and protected activities.[7]

     Accordingly, I would reverse the judge's dismissal of the
discrimination complaint, and remand solely for consideration of
damages and penalty.

                              Marc Lincoln Marks, Commissioner

Distribution

Stephen D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Martin Cerullo, Esq.
Cerullo, Datte & Wallbillich, PC
450 West Market St.
P.O. Box 450
Pottsville, PA 17901

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

**FOOTNOTES**

     [1]:  On June 5, 1996, Kaczmarczyk's doctor, Dr. Kuhlengel
evaluated Kaczmarczyk and determined that he could return to
work, but restricted him from lifting more than 10 pounds, doing
overhead work, and bending, pushing, or pulling.  20 FMSHRC at
410.  A copy of the evaluation was sent to Reading.  Id.

     [2]:  The majority unsuccessfully attempts to distinguish
the company's practice of seeking a second opinion in two prior
instances on the grounds that Kaczmarczyk had received releases
in the past.  Slip op. at 7-8 n.7.  The majority overlooks that
Dr. Kuhlengel's September 25, 1996 letter stated: "he is able to
drive a truck with an air seat."  S. Ex. 13.  Thus, Kaczmarczyk
had a release from his doctor to drive the haul truck.

     [3]:  Even though this case turns on whether Reading proved
a successful affirmative defense, the judge failed to even
meaningfully address the evidence that Reading's rejection of
Kaczmarczyk's bid was out of line with its normal business
procedures.  The majority also recognizes this.  Slip op. at 8
n.7.  Indeed, the judge's opinion is so seriously deficient in
its evaluation of the affirmative defense that it should not be
permitted to stand.  See Mid-Continent Resources, Inc., 16 FMSHRC
1218, 1222-23 (June 1994) (vacating the judge's conclusion when
he failed to make appropriate findings and explain the reasons
for his decision).

     [4]:  In addition, the judge failed to consider other
evidence of disparate treatment, which is crucial in evaluating
an affirmative defense.  The Secretary attempted to put on
evidence that Reading performed a job analysis for a truck driver
position for a similarly situated Reading employee, at the same
time that Kaczmarczyk was trying to be truck driver.  However,
the judge incorrectly did not see any relevance to the exhibit
and refused its admittance.  Tr. 191-92.

     [5]:  In affirming the judge's decision that Reading had
legitimate business reasons for denying Kaczmarczyk the haul
truck driver position, the majority also relies on pushing and
pulling restrictions that were listed in Dr. Kuhlengel's 1996
letters.  Slip op. at 10.  However, the judge never found that
pushing or pulling were required components of the haul truck
job.  20 FMSHRC at 410.  Therefore, those two restrictions are
irrelevant to the inquiry of whether Reading had a legitimate
basis for denying Kaczmarczyk the truck driver job.

     [6]:  In concluding that the water truck job involved
allegedly greater physical demands, the majority relies on the
act of turning a water valve.  Slip op. at 11.  The judge however
ruled that, with the exception of climbing, standing and walking,
"[a]ll other physical demands of these job[s] were the same."  20
FMSHRC at 411.  Moreover, the March 7 job analysis covered simple
grasping to the right and left, which included the act of turning
the water valve.  S. Exs. 19, 20.  In that analysis,  Dr.
Kuhlengel approved Kaczmarczyk's continuous participation in
activities that required grasping to the right and left.  S. Ex.
19.

     [7]:  Unlike the majority's assertion (slip op. at 9 n.8),
the affirmative defense issue is very much tied to the
extensiveness of Kaczmarczyk's protected activities.  Much of the
evidence pertinent to the affirmative defense, e.g., the non-
existent job offer and Kaczmarczyk's disparate treatment, was
simply not evaluated by the judge.  After analyzing this
overlooked evidence, one cannot help but conclude that
Kaczmarczyk's treatment was inextricably linked to his
significant protected activities, and that Reading failed to show
that it would have taken the adverse action in any event for
unprotected reasons alone.