.
OXBOW MINING, LLC
WEST 2002-561-D
March 18, 2003

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                          March 18, 2003

CASEY J. MAYBERRY,              : DISCRIMINATION PROCEEDING 
               Complainant      :
                                : Docket No. WEST 2002-561-D
                                : DENV CD 2002-14
                                :
          v.                    : Mine I.D. 05-04452
                                : Sanborn Creek Mine
OXBOW MINING, LLC,              :
               Respondent       :

                             DECISION

Appearances: Casey J. Mayberry, Hotchkiss, Colorado, pro se;
             James T. Cooper, Oxbow Mining, LLC, Somerset, Colorado, 
             for Respondent.

Before:             Judge Manning

     This case is before me on a complaint of discrimination brought by 
Casey J. Mayberry against Oxbow Mining, LLC, ("Oxbow") under section 
105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 
815(c)(3) (the "Mine Act").  Mr. Mayberry alleges that he was fired by 
Oxbow after he called the Department of Labor's Mine Safety and Health 
Administration ("MSHA") to complain about ventilation at the mine.  An 
evidentiary hearing was held in Delta, Colorado.  For the reasons set 
forth below, I find that Mr. Mayberry did not establish that Oxbow 
discriminated against him in violation of section 105(c) of the Mine Act. 

            I.  BACKGROUND AND SUMMARY OF THE EVIDENCE

     Oxbow operates the Sanborn Creek Mine, an underground coal mine, in 
Delta County, Colorado.  Although Oxbow employs miners, it also obtains 
miners through a temporary employment agency called Rocky Mountain Miners 
("Rocky Mountain") when it needs additional miners on a temporary basis.  
Mr. Mayberry started working at the mine in August 2001 as an employee of
Rocky Mountain.  Mayberry was not on Oxbow's payroll but was a temporary 
contract miner who was paid on an hourly basis by Rocky Mountain. He worked 
on the graveyard shift, a non-production shift, rock dusting and cleaning 
up around conveyor belts.  (Tr. 8).  

     Mayberry testified that in mid-October 2001, he called MSHA to complain
about ventilation in the longwall section.  (Tr. 9).  This safety complaint 
to MSHA is not mentioned in the written discrimination complaint that he 
filed with MSHA on June 4, 2002.  Indeed, I first learned about this
allegation at the hearing because there is no mention of a safety complaint 
in the official Commission file. He testified that he discussed this October 
safety complaint with the MSHA investigator during her investigation of his
discrimination complaint.  Mayberry testified that he called MSHA in October 
to complain about the ventilation curtains in the longwall section. He stated 
that an MSHA inspector came to the mine to investigate his safety complaint 
and he believes that MSHA issued a citation.  Id.  He  testified that the
MSHA inspector did not talk to him when he came to the mine to inspect the
ventilation in the longwall section. 

     On or about October 26, 2001, Mayberry talked to Brad Hanson and Lou 
Graco at Bowie Resources Limited, another coal mine operator in Delta County, 
to see if he could get a job there as a permanent employee.  Mayberry was 
offered a position at Bowie Resources and he accepted the job. (Tr. 16).  A
few days later, Mayberry told James Cooper, Oxbow's vice president of operations, 
that he had taken a position with Bowie Resources and he gave Cooper notice 
that he would no longer be working at the Sanborn Creek Mine for Rocky Mountain. 
He was scheduled to start working for Bowie Resources on November 15, 2001. 

     At about 2:00 am on November 8, 2001, Mr. Mayberry was injured at the 
Sanborn Creek Mine when a rock fell from the roof and hit his left foot.  (Tr.
12, 25-26).  Mayberry was rolling up dust hose at the time.  He estimated that
the rock weighed between 45 and 65 pounds and measured about 1 feet by 2 feet.
Cameron Rountree, another miner on the crew, attempted to help Mayberry and
was struck on the hand by falling rock.  (Tr. 26).  After Mayberry was removed
from the mine, an air cast was put on his leg and he was taken to Delta County 
Memorial Hospital.  The extent of his injuries was not immediately known because 
his foot was swollen.  On November 11, 2001, local physicians could not determine
if he was seriously injured. (Tr. 16). He subsequently saw a specialist in Grand
Junction, Colorado.  Mayberry was eventually diagnosed with "peripheral nerve 
damage, either severed or beyond repair." (Tr. 14, 20). It was later determined
that he "sustained a twelve percent (12%) scheduled impairment to lower left
extremity."  ("Full and Final Settlement Agreement and  Motion for Approval" 
filed with the Colorado Division of Worker's Compensation; Tr. 14).  Mayberry
was on crutches for several months as a result of his injury and did not work 
for Rocky Mountain at the Sanborn Creek Mine after November 8.

     At about 7:30 am on November 8, 2001, Mayberry returned to the bath house 
at the mine to retrieve his belongings and his truck.  Mayberry testified that 
Fred English, the assistant safety director at the mine, approached him. 
Mayberry testified that English said that he knew that Mayberry made the safety
complaint to MSHA and that "Oxbow does not appreciate complaints to MSHA."  
(Tr. 14, 21-22).  Mayberry said that English continued by saying that if "I
have a problem with the way they do things, I should take it up with management
or seek employment elsewhere." (Tr. 14). 

     At some point after November 11, 2001, Mayberry called Brad Hanson at
Bowie Resources to tell him that he could not start working on November 15 
because he was injured and asked if he could start working at a later date.  
(Tr. 17).  Mr. Hanson advised him that Bowie Resources could not hold the 
position open for more than two weeks, so the offer of employment was withdrawn. 
Mayberry testified that he then went to see Cooper to tell him "to pull that 
two-week notice."  (Tr. 18). Mayberry believed that the "two-week notice was 
revoked automatically once he was injured."  Id. Cooper told him that, although
he was sorry, Oxbow could not offer him a position.  (Tr. 19).  Cooper advised 
Mayberry that he had only been a contractor at Sanborn Creek and "part of being 
a contractor is running that risk."  Id.   Mayberry called Cooper several times 
after that to try to get his old job back without success.  Mayberry maintains 
that he engaged in protected activity when he called MSHA to complain about
ventilation in the longwall section.  (Tr. 21).  He believes that the adverse 
action was the failure of Oxbow to rehire him after he had revoked his two-weeks 
notice and the intimidation he received from English on the morning of November 8. 
(Tr. 21, 71-73).

     Mayberry received a medical release to return to work in late March or early
April 2002.  (Tr. 20).  Soon thereafter he started working for Rundle Construction
Company, another contractor, which "does earth moving for Oxbow."  Id.  He worked 
for Rundle Construction at the Sanborn Creek Mine from April 2002 through October 
2002 when he was laid off.  (Tr. 23-24).  On June 4, 2002, Mayberry filed his 
discrimination complaint against Oxbow with MSHA.  By letter dated August 20,
2002, MSHA advised Mayberry that it determined that Oxbow had not discriminated 
against him. Mayberry filed this case with the Commission on September 20, 2002.

     Cameron Rountree testified for Mayberry.  Rountree was in the bath house on 
the morning of November 8, 2001.  Rountree testified that English approached them 
to find out what happened that shift.  (Tr. 27).  He took a quick statement from
both of them about the accident.  Rountree testified that English then looked at 
Mayberry and said, "this is a small coal mining community . . . and we don't
appreciate you calling MSHA."  (Tr. 27-28).  Rountree said that English told
Mayberry that "you  should talk to your foreman or upper management before you
take that action."  (Tr. 28).  Rountree stated that English's tone of voice was 
firm and he seemed agitated.  

     Mr. English testified that, although he took a statement from Mayberry about
the accident, he did not discuss an MSHA complaint with Mayberry.  (Tr. 32). 
English stated that a number of MSHA  complaints have been made at the mine and he 
does not know who made these complaints.  Id. English testified that he was not 
aware that Mayberry phoned in a complaint to MSHA.  (Tr. 33). English was adamant 
that on November 8, 2001, he did not know that Mayberry had complained to MSHA 
about safety conditions at the mine and that he did not have any discussion with 
Mayberry  about safety complaints to MSHA.  (Tr. 38-41, 75).  In addition, English
testified that, during mine  safety and health training, company representatives 
tell miners that the company has an open door policy to bring safety complaints 
and that if a miner is not satisfied with management's response "then  by all
means contact the Mine Safety and Health Administration."  (Tr. 40).  English 
further stated that "we do not have a problem with those calls [to MSHA]." Id.  
MSHA inspectors are instructors at the  training.

     James Cooper testified that he had only two face-to-face contacts with 
Mayberry.  The first meeting was when Mayberry came into his office in late 
October 2001 to tell him that he would only be  working for Rocky Mountain for 
two more weeks because he was going to work at the Bowie Mine. (Tr. 44).  Cooper
wished him good luck and called Randy Litwiller, Oxbow's production  superintendent, 
to tell him that Mayberry was leaving.  Oxbow was hiring a few permanent full time
employees at that time and so Cooper asked Litwiller if he would be interested in 
hiring Mayberry as an Oxbow employee.  (Tr. 45).  A few days later, Litwiller told
him that he had talked to a few people who had worked with Mayberry and that he 
was not interested in hiring him.  (Tr. 45; 58-59).

     Cooper testified that the second meeting he had with Mayberry occurred the 
day before his accident.  (Answer to Discrimination Complaint; Tr. 45, 73).  At 
that time, Mayberry asked Cooper if he could stay on at the Sanborn Creek Mine as
an Oxbow employee because he would "just as soon  stay at Oxbow."  (Tr. 45). Cooper
replied that he did not have a job for him.  When Mayberry talked to him, Cooper
understood that Mayberry wanted to stay on as a full-time Oxbow employee, not as a
Rocky Mountain employee.  (Tr. 55-56).  Mayberry seemed interested in the benefits 
that Oxbow offered.  (Tr. 58).  After Mayberry's accident on November 8, 2001, 
Cooper said that he received a voice mail message on his phone from Mayberry that 
was "very belligerent and loud and rude."  (Tr. 53).  Cooper testified that he was 
not aware of Mayberry's safety complaint to MSHA until he met with him to discuss 
settling this case in response to the prehearing order.  (Tr. 47, 73-74).  

     Mr. Litwiller testified that he did not know that Mayberry had filed a safety
complaint with MSHA when he discussed with Cooper whether he would be interested
in hiring Mayberry as a  permanent, full-time employee.  (Tr. 60).  Litwiller 
testified that when a Rocky Mountain employee  gives notice that he is leaving, 
Litwiller talks to his supervisor to find out if he is a "real good hand."  (Tr.
62).  If the supervisor replies that Oxbow will not be "losing anything" by 
letting him go, then no job  offer is made.  Id.  Litwiller has no specific 
recollection of his discussions about Mayberry.  (Tr. 63). Litwiller also stated
that in November 2001 the total workforce at the mine was about 230 people (Tr. 61).  

              II.  DISCUSSION WITH FINDINGS OF FACT 
                      AND CONCLUSIONS OF LAW

     Section 105(c) of the Mine Act prohibits discrimination against miners for 
exercising any protected right under the Mine Act.  The purpose of the protection 
is to encourage miners "to play an active part in the enforcement of the [Mine] 
Act" recognizing 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. 181, 95th Cong.,
1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety 
and Health Act of 1977 at 623 (1978).  "Whenever protected activity is in any 
manner a contributing factor to the retaliatory conduct, a finding of 
discrimination should be made."  Id. at 624.

     A miner alleging discrimination under the Mine Act establishes a prima facie 
case of prohibited discrimination by presenting evidence sufficient to support a 
conclusion that he engaged in protected activity and suffered adverse action
motivated in any part by that activity.  Secretary of Labor on behalf of Pasula v. 
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev'd on other
grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on behalf of Robinette v. 
United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v. Nevada 
Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998).  The mine 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 the protected activity.  Pasula, 2 FMSHRC 
at 2799-800.  If the mine operator cannot rebut the prima facie case in this manner,
it nevertheless may defend by proving that it was also motivated by the miner's
unprotected activity and would have taken the adverse action for the unprotected 
activity alone. Pasula  at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

     There can be no question that calling MSHA to complain about safety and health
conditions at a mine is an activity protected under the Mine Act.  In addition, if 
a mine operator takes any adverse action against a miner for making such a complaint,
a violation of section 105(c) has been established. In this case, however, I find
that Mr. Mayberry did not establish that he was discriminated against in violation
of the Mine Act, as discussed below.

     The discrimination complaint filed by Mayberry does not mention that he made 
a safety or health complaint to MSHA.  The discrimination complaint also does not 
state that he was denied the opportunity to continue working for Rocky Mountain or 
Oxbow because he made a safety complaint. Mayberry's discrimination complaint first 
describes his accident and the fact that he had given Oxbow  notice that he was 
leaving because he obtained a job at Bowie Resources.  The complaint then states
that Bowie Resources told him that it could not hold the job open for him.  The
remainder of the discrimination complaint states:

          I spoke to Jim Cooper again to revoke my 2 week notice and he told
          me I was fired.  He said that Randy Litwiller told him that I had given
          my notice and that it was too bad.  Neither one of them seemed to care
          that I was hurt and now unemployed with a family to take care of.

Mr. Cooper testified that Mayberry did not mention that he had called MSHA to 
complain about safety or health conditions until the end of their settlement 
discussions prior to the hearing in this case.  As stated above, none of the 
pleadings or documents filed with the Commission mention prior safety or health 
complaints.  At the hearing, I asked Mayberry to describe what conditions he 
had complained  about in October 2001 and his answer was vague and somewhat 
inconsistent.  First, he testified that he complained because the ventilation 
curtains "were hung in front of the gob along the longwall" and that they were 
blocking the methane detectors. (Tr. 10).  Then he stated that the curtains "were 
keeping the gob air in that specific area."  (Tr. 10).  Finally, he testified that 
"they weren't ventilating anything down there . . . ."  Id.  Mayberry testified 
that he discussed his prior safety complaint with the MSHA investigator who 
investigated his discrimination complaint.  (Tr. 90).  The fact that Mayberry 
did not refer to a prior safety complaint to MSHA until late in this proceeding
raises questions in my mind. Nevertheless, for purposes of this decision, I will 
assume that in mid-October 2001 Mayberry called MSHA to complain about safety 
conditions in the mine.  Consequently, I find that Mayberry engaged in protected 
activity.

     I find, however, that Mayberry did not establish that Oxbow's decision not 
to hire him was  motivated in any part by his protected activity.  First, it must be 
noted that section 105(c) protects applicants for employment as well as miners.  An 
applicant for employment establishes a violation of section 105(c) if he proves that
a mine operator did not hire him because he had complained to MSHA  about safety 
conditions while employed at another mine.  I find that Mayberry was not "fired" 
from his temporary job at the mine with Rocky Mountain because he gave notice to
Cooper that he was leaving for another job.  He voluntarily quit his job with Rocky 
Mountain.  The issue is whether Oxbow's decision not to consider him for a permanent 
full-time job with the company was motivated in any part by the fact the he called 
MSHA to complain about ventilation in October 2001.

     Mayberry testified that English confronted him about his call to MSHA on the 
morning of November 8, 2001 and that he felt intimidated by English.  Mr. Rountree 
also testified that English told Mayberry that Oxbow did not appreciate his call to
MSHA.  English, on the other hand, denied making such statements and denied that he
even knew that Mayberry had made a safety complaint.  I credit the testimony of 
Mr. English for a number of reasons.  As noted above, Mayberry did not include this
allegation or any assertion that he had made a safety complaint to MSHA in his 
discrimination complaint that he filed with MSHA on June 4, 2002.  Although Mayberry
testified that he raised this issue with the MSHA investigator, neither Cooper nor
English knew anything about it.  Indeed, Cooper credibly  testified that he did not
become aware that Mayberry was predicating this discrimination case on a prior
safety complaint to MSHA until he discussed settlement with Mayberry after he 
received the prehearing order issued in this proceeding.  I did not become aware 
of this claim until the hearing because it was not included in any of Mayberry's
filings.

     English testified that he has worked for Oxbow for eleven years.  He denied
that he had ever discussed an MSHA safety complaint with Mayberry.  It is highly 
unlikely that English would have approached Mayberry about an MSHA safety complaint 
the morning of November 8 because Mayberry was leaving the mine as a result of an 
injury.  Mayberry was a contract employee from Rocky Mountain, not a permanent Oxbow 
employee, who would not be working at the Sanborn Creek Mine for at least a few weeks,
if ever again, because he had been injured.  Mayberry was on crutches for a 
considerable length of time and was paid for hours that he actually worked.  There 
would have been no reason for English to raise this issue at that time. I observed 
Mr. English's demeanor at the hearing and he impressed me as someone who chooses his
words quite carefully.  In addition, as the assistant safety manager, he knew that 
such statements would set the company up for a discrimination suit if any adverse 
action were taken against Mayberry.  English's testimony at the hearing, including 
his description of MSHA-required safety training, demonstrates that he has a rather
sophisticated understanding of the requirements of the Mine Act including the 
anti-discrimination provisions of section 105(c).  I find that English did not 
confront Mayberry on the morning of November 8 about Mayberry's call to MSHA.  
I also credit English's testimony that he did not know about Mayberry's  call to
MSHA.

     I credit the testimony of Cooper that he did not know that Mayberry had called
MSHA in October 2001 until Mayberry told him about it after their settlement efforts
failed a few months prior to  the hearing.  Finally, I credit the testimony of 
Litwiller that he did not know about Mayberry's safety complaint when he discussed 
Mayberry's employment status with Cooper.

     In determining whether a mine operator's adverse action is motivated by the 
miner's protected activity, the judge must bear in mind that "direct evidence of 
motivation is rarely encountered; more typically, the only available evidence is 
indirect."  Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 
2508, 2510 (November 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir 1983).  
"Intent is subjective and in many cases the discrimination can be proven only by 
the use of circumstantial evidence."  Id. (citation omitted). In Chacon, the 
Commission listed some of the more common circumstantial indicia of discriminatory
intent:  (1) knowledge of the protected activity; (2) hostility or animus toward 
the protected activity; (3) coincidence in time between the protected activity
and the adverse action; and (4) disparate treatment of the complainant. See also 
Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530 (April 1991).  

     The alleged adverse action in this case is Oxbow's failure to hire him as a 
permanent Oxbow  employee in November 2001.  I find that Mayberry did not establish
that Oxbow's failure to take him back was motivated in any part by protected activity, 
taking into consideration circumstantial evidence  of discriminatory intent. 
Considering the factors set forth in Chacon, for example, I find that Oxbow
management did not have knowledge of the protected activity and did not display 
any hostility or  animus toward the protected activity.  Mayberry worked at the 
Sanborn Creek Mine for Rundle Construction from April 2002 through October 2002.  
In addition, there has been no showing that Mayberry was treated differently from 
other Rocky Mountain employees who gave notice that they were leaving.  I find that 
Oxbow's failure to "revoke" Mayberry's notice that he was leaving his job with
Rocky Mountain and its failure to hire Mayberry as a permanent employee were not
motivated in any part by Mayberry's protected activity.

                           III.  ORDER

     For the reasons set forth above, the discrimination complaint filed by 
Casey J. Mayberry against Oxbow Mining, LLC, under section 105(c) of the Mine Act 
is DISMISSED.

                              Richard W. Manning    
                              Administrative Law Judge

Distribution:

Mr. Casey J. Mayberry, P.O. Box 863, Hotchkiss, CO 81419-0863 (Certified Mail)

James T. Cooper, Vice President, Oxbow Mining, P.O. Box 535, Somerset, 
CO 81434-0535  (Certified Mail)

RWM