FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202 434-9987 / FAX: 202 434-9949

 

December 1, 2022

DECISION AND ORDER AFTER HEARING

Appearances: Christopher M. Smith, Esq., Office of the Solicitor, U.S. Department of Labor,

Nashville, Tennessee, for the Petitioner

Elaine M. Youngblood, Esq., Ortale Kelley, 

Nashville, Tennessee, for the Complainant 

Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 

Washington, District of Columbia, for the Respondent

William K. Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 

Washington, District of Columbia, for the Respondent

Before: Judge Young

SUMMARY

Citation No. 9237452, 30 C.F.R. § 50.20(a): Failure to report an occupational injury

as defined in 30 C.F.R. § 50.2(e). The Secretary alleges that the operator failed to report an 

injury that rendered the miner unable to perform all job duties on any day after the injury. 

Fact of violation Affirmed p. 15 (Slip Op.)

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 and JASON HARGIS,

 Complainants, 

 v. 

VULCAN CONSTRUCTION

 MATERIALS, LLC,

 Respondent. 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner,

 v. 

VULCAN CONSTRUCTION

 MATERIALS, LLC,

 Respondent.

 DISCRIMINATION PROCEEDING

 Docket No. SE 2022-0001 

 MSHA No. BARB-CD-2021-02 

 Mine ID. 40-00131 

 Mine: Wilson County Quarry 

 CIVIL PENALTY PROCEEDING

 Docket No. SE 2022-0013 

 A.C. No. 40-00131-543032 

 Mine: Wilson County Quarry 
Negligence High p. 18 

Penalty $300.00 p. 18 

Complaint BARB-CD-2021-02, 30 U.S.C. § 815(c)(1): Discrimination against miner 

for exercise of rights protected under the Mine Safety and Health Act of 1977, as amended 

(“The Mine Act” or “The Act.”). The Secretary alleges that Complainant was terminated for 

requesting to see a physician for treatment of an occupational injury, in violation of the Act.

Fact of violation Dismissed p. 18 

INTRODUCTION

The above-captioned dockets were heard in Nashville, TN, April 12–14, 2022.1

 The 

Secretary alleges that the operator had failed to report an occupational injury, in violation of 

Section 50.20(a) of Title 30 of the Code of Federal Regulations, and that the operator had 

discriminated against miner Jason Hargis (“Complainant”) for reporting his injury and requesting 

treatment by a physician, in violation of Section 105(c)(1) of the Mine Act. As explained below, 

I affirm the citation for failing to report an injury as required, but I hold that the operator did not 

discriminate against the Complainant under Section 105(c) of the Act. 

I. STANDARDS

A. Burden of Proving Violation

The Secretary must prove the elements of an alleged violation by a preponderance of the 

evidence. See Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000).

B. Requirement to Report an “Occupational Injury”

The Secretary has defined an “occupational injury” as “any injury to a miner which 

occurs at a mine for which medical treatment is administered, or which results in death or loss of 

consciousness, inability to perform all job duties on any day after an injury, temporary 

reassignment to other duties, or transfer to another job.” 30 C.F.R. § 50.2(e) (2022). Operators 

“shall report each accident, occupational injury, or occupational illness at the mine.” 30 C.F.R. 

§ 50.20(a) (2022). 

C. Discrimination

To prove that an operator has discriminated against a miner in violation of the Act, the 

Commission has required the Secretary (or an individual miner or applicant, if proceeding under 

1 Mr. Hargis filed a timely complaint of discrimination on June 7, 2021. Compl. ¶ 8. The 

Secretary found that Mr. Hargis’ complaint for discrimination was not frivolously brought, and 

upon agreement of the parties, I entered an order temporarily economically reinstating him, 

effective July 27, 2021. Tr. 14:11–25.
3

section 105(c)(3)) to establish that the miner engaged in protected activity; that the miner 

suffered an adverse job action; and that the adverse action was motivated, in whole or in part, by 

the protected activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786, 2799–80 (Oct. 1980), rev’d on other grounds sub nom., Consolidation Coal Co. 

v. Marshall, 663 F.2d 1211 (3d Cir. 1981); see also Cumberland River Coal Co. v. FMSHRC, 

712 F.3d 311, 317–18 (6th Cir. 2013) (citing Pendley v. FMSHRC, 601 F.3d 417, 423 (6th Cir. 

2010) (applying Pasula-Robinette to cases within the Sixth Circuit).2

 If this prima facie case is 

established, the operator may affirmatively defend against the charge of discrimination by 

proving that it would have taken the adverse action regardless of the miner’s protected activity. 

Id. The miner may then rebut the defense by showing that it is pretextual. Id. The ultimate 

burden of proof does not shift under this analysis and remains with the Complainant. Turner v. 

Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1064–65 (May 2011).

II. FACTS

A. Background, Witnesses, and Evidence

Respondent, Vulcan Construction Materials (“VCM” or “Respondent”), operates 

numerous aggregate and construction material mining, quarrying, and processing facilities 

throughout the United States. The mine at issue here is the Wilson Quarry, an aggregate facility 

in Wilson County, TN. Respondent’s operations in the area including the Wilson Quarry include 

seven quarries and a truck shop. Tr. 502:1–4. Complainant had been employed as a miner at the 

Wilson Quarry.

The parties stipulated to all facts necessary to establish jurisdiction over this case and my 

authority to hear and decide it. S. Post Hr’g Br. at 3–4 (July 5, 2022). They also stipulated that 

Respondent discharged Complainant from employment on May 12, 2021. Id. at 4.

The Secretary called as witnesses Complainant, several of his co-workers at the mine,

and two employees of the U.S. Department of Labor’s Mine Safety and Health Administration 

(“MSHA,” “the Secretary” or “the Agency”). Complainant also called Respondent’s safety 

director, Brandon Clemmons. Respondent’s witnesses included Vulcan’s area operations 

manager for the area including the Wilson Quarry, Philip Ellis; Mr. Clemmons; the company’s 

human resources manager, Rex Lindsey; former plant manager, Anthony Humes; and current 

supervisor, Chris Williams.

2 The Ninth Circuit recently decided that Commission discrimination cases must apply the 

standard established by the U.S. Supreme Court in Gross v. FBL Financial Services, Inc., 557 

U.S. 167 (2009), and University of Texas Southwest Medical Center v. Nassar, 570 U.S. 338 

(2013). Thomas v. CalPortland Co., 993 F3d 1204, 1210–11 (9th Cir. 2021). It is unknown 

whether the Commission will apply the Gross-Nassar standard to all cases within its jurisdiction, 

or only to cases in mines within the Ninth Circuit.
4

In addition to the miner witnesses who testified at hearing, Complainant introduced two 

statements made to MSHA Special Investigator Kenneth McClung. The witnesses, former 

miners Kenny Hurst and Pat Woods, were subpoenaed by the Secretary. See Tr. 474:8–488:20.3

 

The Secretary appears to have properly issued and served subpoenas for these witnesses 

but did not inform the Court that they were unavailable until the Solicitor sought to introduce 

their written statements as exhibits. The Solicitor said that efforts to reach the witnesses had 

been unsuccessful. These hearsay statements were admitted over Respondent’s objections. 

However, I noted that the unavailability of the witnesses could affect the weight I would give to 

the statements. Tr. 480:17–22, 482:6–9.

I credit the statements only to the extent that they are corroborated by other evidence and 

are not cumulative. First, there is hearsay within hearsay in some of the material statements 

made by the declarants. Second, some of the persons quoted in those statements were witnesses 

at the hearing and available to be cross-examined, but neither the Solicitor nor the Complainant 

produced admissions from the operator witnesses, and even the use of leading questions did not 

produce full support for the Secretary’s theory from miner witnesses.

Third, the statements chosen by the Secretary for emphasis in his post-hearing brief were 

not the focus of the somewhat limited questioning of Special Investigator McClung. This 

prevented the operator from effectively cross-examining the witness who was present about the 

statements.

Finally, there was extensive discovery in this case. Uncorroborated statements 

purporting to show a general discouragement of reporting injuries or alleged targeting of

Complainant, based largely on the subjective “personal belief,” speculation, or sweeping 

generalizations of Mr. Hurst and Mr. Woods, is insufficient to counter the weight of the evidence 

that was gathered beforehand and presented by actual witnesses at the hearing.

Complainant was represented by an attorney from the Department of Labor’s Office of 

the Solicitor as well as his own attorney. The parties introduced numerous exhibits during the 

three-day hearing. I have carefully considered all the evidence admitted at the hearing in 

deciding the issues before me.

4

3 Mr. Hurst was personally served. Mr. Woods was served by certified mail. Id. at 487:11–

488:20. The return receipt was returned and included with the subpoena as an exhibit; however, 

the receipt was unsigned. Id.

4 Where necessary or appropriate, I have noted in my decision specific factors I considered in 

making credibility determinations or assigning weight to testimony or exhibits. The failure to do 

so for each witness or exhibit does not indicate that I did not fully weigh and evaluate all

evidence in the record.
5

B. Complainant’s Employment, Injury, Protected Activity, and Termination

1. Complainant’s Work and Disciplinary History

Complainant was employed by VCM at the Wilson County Quarry from August 2018, 

until he was discharged on May 12, 2021. Compl. ¶ 3 (Oct. 1, 2021); Tr. 11:3–12. He mainly 

worked as a plant operator during the time relevant to this proceeding. Tr. 305:24–25. As plant 

operator, he controlled the operation of the plant, the crushing machinery used to break and size 

rocks mined at the quarry. Id. at 306:3–25. He was also responsible for cleaning and maintaining

an area assigned to him under the company’s “zone” policy. Id. at 348:22–24. As part of his 

duties, he was responsible for lubricating, or “greasing” the bearings daily. Id. at 415:1–11.

At hearing, miner witnesses praised Complainant’s performance, testifying that he “did a 

good job” running the plant and that he was a highly efficient plant operator. Tr. 60:21. Mr. 

Ellis, VCM’s area manager, agreed that Complainant operated the plant during its most 

productive period. Id. at 599:4–12.

Witnesses also testified that Complainant had a pleasant personality. One witness called 

him “one of the nicest guys I’ve ever met.” Tr. 222:2–3. Another witness said he was a 

“normal, regular person,” who was “not threatening” and always pleasant. Id. at 144:13–17. A 

third witness described him as “a big teddy bear” and “a pretty cool guy.” Id. at 261:5–6. 

During his employment as plant operator, Complainant worked under two direct 

supervisors, Kyle “K.B.” Parr and Chris Williams, who worked as a fill-in supervisor following 

Mr. Parr’s resignation. As plant manager, Anthony Humes managed the plant supervisors and 

was himself supervised by Area Manager Philip Ellis. At hearing, Complainant testified that Mr. 

Parr was a poor supervisor and that the miners felt “targeted” by management 

(micromanagement and disagreement with miners’ complaints about it). Tr. 367:14–18.

Miners also generally agreed with Complainant’s assessment of Mr. Parr as someone 

who did not know what he was doing. They testified that Mr. Parr was constantly urging 

Complainant to “run the plant hard,” and noted that Complainant’s discipline from Mr. Parr for 

failure to clean was imposed while the plant was old and in poor condition, causing constant 

leakage (although repairs were made to improve this). See Tr. 243:6–22 (testimony of Mr.

Stultz).

Complainant acknowledged that greasing the equipment daily, which took about 35 

minutes, was his job and that it was necessary to prevent damage to the equipment. Tr. 415:1–

20. He said that he had been counseled about the need to clean more thoroughly, that he 

disagreed with Mr. Parr about this, and that he did not change what he was doing in response to 

Mr. Parr’s input. Id. at 408:18–409:17.
6

Complainant also testified about his employment record. He said that he had been given 

a pay raise in April of 2021, shortly before being terminated. Tr. 343:20–24.5 He also testified 

about a previous injury. Complainant said he had been hurt on the job while operating a skid 

steer. He testified that Mr. Ellis and Mr. Clemmons were both personally concerned,

investigated the incident, and put Complainant on light duty. Id. at 326:14–327:14.6 

Mr. Clemmons said this was done because the plant was down for maintenance and not 

because Complainant could not perform his duties. Tr. 466:25–467:4, 739:22–740:7. 

Complainant also said that Mr. Clemmons had asked him what they could do to keep him from 

going to the doctor after the skid steer injury. Id. at 324:25–325:8. Mr. Clemmons denies saying 

this. Id. at 740:8–10.

Before his discharge, Complainant had previously been disciplined under the company’s 

progressive discipline policy, under which employees were verbally warned, then given a written 

warning, followed by a second written warning and three-day suspension. Ex. GX-7, 8. The 

second written warning provides that the employee may be terminated for any subsequent 

violation of company policies. Ex. GX-8.

Complainant’s disciplinary issues were not related to his primary duties as plant operator. 

Rather, they stemmed generally from failures to completely clean and grease areas and 

equipment for which he was responsible before leaving work. 

Complainant received his first written warning by Mr. Parr on Dec. 4, 2020. Tr. 347:8. 

He wrote on the warning notice, “I do not agree,” and testified that he had told Mr. Parr it was 

not possible to clean his area “spotless” every day. Id. at 348:2–349:11. He said that sometimes 

the power would be shut down, and cleaning could not be accomplished. He also noted that 

some areas were rarely travelled. Id. at 349:12–25.

After he was cited by Mr. Parr, Complainant and others began taking photographs of their 

areas to document that they had been cleaned. Ex. GX-5; Tr. 207:11–25, 351:13–16. 

Complainant provided photographs at hearing. Ex. GX-5. He admitted, on cross-examination, 

that he did not take photographs of his area every day. Tr. 413:17–25.7 Complainant testified 

that it was “obvious that [Mr. Parr] used this to start a paper trail to terminate me.” Id. at 

355:15–17.

 Complainant received his second written warning on Feb. 8, 2021, for leaving work 

before the end of the shift without permission on Feb. 1. Complainant and other witnesses who 

were on the crew testified that on that day, Mr. Williams had stopped to talk to them and had told 

5 Complainant’s raise was $0.53/hour, from $19.10 to $19.63. Ex. GX-11. Mr. Ellis testified 

that comments made in the review process should have led to a reduced rating, and that the raise 

was made in error. Tr. 559:13–561:6. The recommendation and pay raise decision predated the 

injury and protected activity in this case and have no bearing on the outcome.

6 Complainant had not requested to see a doctor for this incident. Tr. 443:16–25.

7 None of the photographs were taken on any of the days for which Complainant had been 

disciplined for failing to clean his area.
7

them that they could leave once the graduation pad was cleaned. Id. at 365:15–23. Witnesses 

said that finishing the cleaning of the pad was a two-person job. Id. at 168:14. The truck used 

for this purpose employed a high-pressure water cannon, and miners in the area not handling the 

cannon or in the truck could be in danger of injury. Id. at 359:8–11.

Complainant and Mr. Evans left before the crew completed its work cleaning the pad, and 

all four miners left before 4:30 p.m. Tr. 247:15–16. The miners who remained said that they 

completed the cleaning job. Id. at 249:16–17. Complainant was nevertheless given his final 

written warning and a three-day suspension. Id. at 356:24–357:2; Ex. GX-8. Complainant 

testified that there was no known policy requiring miners to leave together prior to February 2. 

Tr. 365:5–8. He said that he waved to Mr. Humes, his second-level supervisor, as he left. Id. at 

361:1–9.8

Mr. Humes acknowledged seeing Complainant leave and waving to him, but he said he 

did not know what Mr. Williams had told the crew and would have stopped him if he had known. 

Tr. 621:13–622:12. Clint Evans was also on the crew and was threatened with a verbal warning 

but disputed it, and it was withdrawn after he argued to Mr. Williams that nobody had told the 

crew there was a set schedule. Id. at 169:5–16.9

Mr. Williams disputed the crew’s account of events and said they had not finished 

cleaning the area as he had instructed and that he had to clean it himself. Tr. 768:7-8, 769:4–

14.10 The next day, Mr. Williams told Mr. Humes that the miners had left early without cleaning 

8 Complainant testified that Mr. Humes was on the phone when he waved to him.

9 The evidence as to whether Mr. Evans was disciplined or merely counseled is ambiguous. Mr. 

Evans said Mr. Williams called him to the office and told him he was getting a verbal warning

for leaving work early. Mr. Williams’ testimony is unclear about whether Mr. Evans was 

disciplined, while Mr. Evans said that he argued that it was unfair to punish him. Tr. 170:16–25. 

He said that Mr. Williams relented, telling Mr. Evans not to worry about it, and that the 

discussion was “just us talking.” Id. at 189:1–4. Mr. Evans had no disciplinary history at the 

time. Id. at 185:7–10. I credit his account of the meeting, which is fairly detailed and consistent 

with his work history. I also infer from Mr. Evans’ account that Mr. Williams called him to the 

office with the intent to discipline him for leaving work early. Complainant had already been 

issued his second written warning and suspension when Mr. Evans met with Mr. Williams. Id. at

180:11–14.

10 It is difficult to assess Mr. Williams’ credibility as a witness. No witness had anything 

negative to say about his character, and in fact the miner and operator witnesses spoke very 

highly of his personal qualities and his ability as a supervisor. However, Mr. Williams was often 

a poor witness. His recall of events was uneven. His testimony contradicted itself at times. He 

was combative and argumentative over even minor points. His testimony disagreed with that of 

other witnesses who seemed credible and were generally disinterested. On the other hand, many 

of the important facts he testified to are either corroborated or unrebutted and consistent with 

other witnesses’ accounts. 

I note that counsel for Respondent told the Court Mr. Williams would be late for the 

hearing on the day of his testimony because he had been essentially trapped on his property by 
8

the area and that Complainant had left work early, and he testified that he communicated his 

“frustration” to Mr. Humes. Id. at 769:18–23. 

Mr. Humes said Mr. Williams told him the crew had been told not to leave until 4:30. Tr. 

621:25–622:2. He said Mr. Williams was “kind of adamant” about wanting Complainant and 

Mr. Evans to be disciplined. Id. at 624:1–6. He insisted on meeting with human resources, and 

after he and Mr. Humes met with HR, the notice of suspension was prepared and overnighted to 

Mr. Humes, who gave it to Complainant the next day. Id. at 624:8–14.

While Complainant disagreed with the disciplinary actions against him and his 

supervisors’ views on cleaning and greasing, Respondent produced evidence supporting its 

reasons for taking seriously the zone cleaning and greasing responsibilities assigned to 

Complainant. MSHA Special Investigator McClung acknowledged that a violation of the 

requirement to keep areas where miners work and travel clean and free from debris, codified as a 

mandatory safety and health standard, 30 C.F.R. § 56.20003 (2022),

11 could result in an S&S 

citation to the operator. Tr. 490:7–491:5.

Operator witnesses also testified about serious damage to the plant machinery caused by 

a failure to properly grease the equipment. There was a “catastrophic” failure of the rotor 

bearings in November 2020. Tr. 546:15–547:21. This required a “very costly” and extensive 

repair. Id. Inspection revealed that the bearings were “charred and smoked” due to a lack of 

grease. Id. at 547:17–21. Respondent attributed the failure to Complainant. Id. at 547:15–17,

615:1–14.

2. Management Issues at the Wilson Quarry

Mr. Parr was the plant supervisor until he resigned from VCM. Mr. Humes was the plant

manager during Complainant’s employment through his termination, until being terminated 

himself. Mr. Humes testified at the hearing, and Mr. Parr did not.

trees that had fallen in the previous evening’s severe thunderstorms. There were in fact 

numerous downed trees in the local area following the storm, which was prolonged and 

powerful. When he arrived at the hearing, Mr. Williams was flushed, and his clothes were dirty 

and torn. He appeared to be highly agitated. He testified that he was uncomfortable as a witness 

adverse to his brother-in-law. I do not find that he was an untruthful or generally unreliable 

witness, but in some instances, I have not credited his testimony where it disagrees with others.

11 The provisions of the standard relevant here require that:

At all mining operations—(a) Workplaces, passageways, storerooms and service rooms 

shall be kept clean and orderly; (b) The floor of every workplace shall be maintained in a 

clean, and so far as possible, dry condition. Where wet processes are used, drainage shall 

be maintained, and false floors, platforms, mats, or other dry standing places shall be 

provided where practicable . . . .

30 C.F.R. § 56.20003(a)–(b).
9

Complainant complained about management generally, saying that Mr. Parr had “no 

clue” about plant operations, and that the miners generally felt “targeted” by micromanagement 

and disagreement with miners’ complaints about it. Tr. 367:14–18. Complainant, like other 

miners, said that Mr. Parr had threatened to replace him and testified about Mr. Humes 

threatening to fire and replace the entire crew. Id. at 368:4–5.

The miner witnesses who testified also complained generally about Mr. Humes and Mr. 

Parr. Their testimony about Mr. Williams, who succeeded Mr. Parr at the Wilson Quarry after 

being temporarily reassigned there from another VCM operation, was generally positive.

Miners criticized Mr. Parr’s ability as a manager. Andrew Tucker said Mr. Parr didn’t 

know what he was doing. Tr. 59:2–11. Mr. Dycus characterized him as a “write-up happy

person” who would try to “write people up for anything and everything.” Id. at 207:3–8. Mr. 

Stultz said he was a “very bad man.” Id. at 241:23.12 Mr. Tucker said, “I think at one point in 

time, we all felt targeted” by Mr. Parr, id. at 65:14, and that he thought Mr. Parr was trying to 

create a “paper trail” against Complainant, id. at 64:24–25. He could not recall anything else 

that he would characterize as Respondent “targeting” Complainant. Id. at 65:16–19.

Mr. Dycus also testified that it “seemed” like Mr. Parr was targeting Complainant. Tr. 

242:18–20. But he also said, “I believe that during that time period, every person was targeted 

by Anthony Humes.” Id. at 256:13–15.

Mr. Tucker also testified that Mr. Parr had asked him to falsify a document, Tr. 61:3–

12,

13 and that he believed Mr. Parr falsified the document himself, and witnesses generally 

believed he had resigned after the company opened an investigation into the incident. Id. at

113:19–114:7. Mr. Tucker discussed the incident in detail with Mr. Ellis, who said Mr. Parr 

resigned, and that he assumed that Mr. Tucker’s complaint had been accurate. Id. at 570:17–

571:19.

After Mr. Parr resigned, Anthony Humes assumed his duties. Miners were unhappy with 

him as well. Mr. Tucker said he first reported Mr. Parr’s request to falsify the examination 

report to Mr. Clemmons because he said he did not trust Mr. Humes to act on them. Tr. 75:5–24. 

However, he also said his disagreements with Mr. Humes were never about safety, and that Mr. 

Humes never asked him to do anything unsafe. Id. at 101:8–13.

Mr. Tucker and several other miner witnesses cited an incident in which Mr. Humes told 

the workforce that he would “fire everybody and start over himself.” Tr. 64:1–21. He was 

characterized by Mr. Ellis and Mr. Lindsey as not being a good fit for the company. Mr. Ellis 

cited the company’s desire to move to more “positive, coaching style” of management, and that 

Mr. Humes’ focus on criticizing miners and style of communicating was “not appropriate.” Id.

at 566:1–14. He also cited input received directly from Mr. Stultz, in particular, about Mr. 

12 Mr. Stultz backtracked from this assessment, somewhat. Tr. 242:3–9.

13 Subsequent testimony made clear that he was referring to a safety examination report 

concerning some guards that had not been repaired. Tr. 72:16–73:14.
10

Humes’ management. Id. at 567:20–25. Mr Ellis also testified about an incident in which Mr. 

Humes had said something inappropriate over the company radio. Id. at 568:7–11.

Mr. Ellis also cited several calls from miners and from Mr. Lindsey after Mr. Humes 

threatened to fire the whole workforce. Tr. 569:1–570:15. Mr. Humes was counseled and 

apologized for those remarks. Id. at 570:10–15. After Mr. Ellis was told about the radio 

incident, Mr. Ellis consulted with Mr. Lindsey and others in the company and made the decision 

to terminate Mr. Humes in July of 2021. Id. at 565:1–22.

While miners criticized Mr. Humes, they did not all agree that he was “targeting 

Complainant.” See Tr. 85:24–86:5, 111:10–14 (testimony of Mr. Tucker); id. at 125:32–136:4 

(testimony of Caleb Walker that Mr. Humes was reportedly out to fire him and Mr. Tucker). But 

Mr. Dycus testified that Mr. Humes had told him, while Complainant was on medical leave, that 

he would be replacing Complainant as plant operator. Id. at 208:17–24.

Mr. Dycus said his experience with Mr. Humes was “horrible.” Tr. 219:15. Mr. Stultz

said of Mr. Humes, “To be quite frank, he was a jerk.” Id. at 257:22–25. He said he had felt 

personally targeted by Mr. Humes and had complained about him to senior management. Id. at

258:1–4.

Other miners were apparently comfortable complaining to management about their 

supervisors. Mr. Tucker said he contacted the company’s HR manager and Mr. Ellis after Mr. 

Humes threatened to fire everybody. Tr. 148:12–22. Mr. Tucker complained to Mr. Clemmons 

and Mr. Ellis about Mr. Parr’s pressuring him to falsify an examination report.

Mr. Williams was brought to the Wilson Quarry and assumed supervisory responsibility 

over the plant. Miners were “not happy” with the “zone” policy holding them accountable for a 

particular area, Tr. 102:25–103:13, but they generally respected and got along with him. See id.

at 103:5–7 (testimony of Mr. Tucker). Miners agreed that he was trying to improve 

housekeeping and plant maintenance. See id. at 104:11–105:24. Mr. Dycus said Mr. Williams 

was a “great supervisor.” Id. at 219:14–23. Mr. Stultz was also complimentary. Id. at 259:5–8.

Mr. Ellis also praised Mr. Williams. When asked what he thought about Mr. Williams as 

a supervisor, Mr. Ellis testified:

I think Chris Williams is a great person. He -- he cares about the people that work 

for him. He likes to help people out. His style is leading by example. He -- in some 

instances, he's probably too involved. He gets into every issue and -- but I think 

Chris to be in a lot of ways a manager like I am suggesting Vulcan wants to 

encourage.

Tr. 572:3–15.

While they were critical of their supervisors, the miner witnesses generally testified that 

Respondent was a safety-conscious operator. See Tr. 79:13–16 (testimony of Mr. Tucker saying 

the company’s “biggest goal is to work safe and stay safe,” and that the company did not have 
11

any major injuries during his seven years at the quarry). This included Complainant, who agreed 

that the “company, as a whole, if you brought up anything safety-wise that was dangerous, they 

would address them [sic] as quickly as they could.” Id. at 397:25–398:2.

No evidence was introduced from which one could infer that any miner had ever been 

disciplined by Respondent for anything related to safety. On the contrary, Mr. Dycus said that 

Mr. Parr and Mr. Humes spread rumors about him having called MSHA to “stir up trouble,” but 

that he was never disciplined for anything, although he did leave his job at the Wilson Quarry. 

Tr. 195:15–199:15.

Miner witnesses speculated that miners were put on light duty or sent to the break room 

to avoid reporting injuries. See Tr. 199:22–200:5 (testimony of Mr. Dycus); id. at 117:3–16 

(testimony of Mr. Tucker). But there was testimony that this was used to see if the injury would 

get better, and that it was assumed that a miner would see a doctor if it did not. See id. at

130:23–131:8 (testimony of Mr. Walker).

3. Complainant’s Injury, Request to See a Physician, and Discharge

Complainant testified that he was injured on Saturday, April 10, when passing liner plates 

to a co-worker, Andrew Tucker, who was working inside the crusher. Tr. 314:4–19. The plates 

weighed 35–50 pounds each, and Complainant had to reach, lean, and twist to pick up the plates 

and pass them into the crusher for installation. Id. at 315:3–16.

After completing his work with the crusher plates, Complainant said he mentioned to 

Chris Williams, his direct supervisor,14 and Mr. Tucker that “something really hurt” in his back, 

but he did not immediately report an injury. He said that the injury, when it occurred, was “not 

immediately debilitating,” and that he did not think it was serious at first. Tr. 314:14–316:6, 

425:6–9.

Complainant said that he reported to Mr. Williams on Monday, April 12, that his injury 

was more serious than he thought, and that it was not responding to heat and ice. Tr. 316:11–25. 

He said he told Mr. Williams at this time that he needed to see a doctor, and that Mr. Williams 

told Complainant he “would get it turned in” to upper management. Id. at 317:6–20. 

Complainant further testified that Mr. Williams instructed him to “run the plant and do nothing 

else” that afternoon. Id. at. 317:22–24.

On April 14, his last day of work before medical leave for his cardiac procedure, 

Complainant had a text message exchange with Mr. Clemmons. Mr. Clemmons asked about 

Complainant’s condition, and Complainant replied that his back still hurt, and that Mr. Williams 

had told him to only run the plant and to do nothing else. Ex. GX-9. Mr. Clemmons 

acknowledged Complainant’s response. Id. Complainant testified that his injury made running 

the plant uncomfortable and that other tasks, such as cleaning and greasing, were “very painful” 

to “unbearable.” Tr. 323:2–12.

14 Mr. Williams is also Complainant’s brother-in-law. He said their relationship is not strained 

but that they are not close. Tr. 431:7-13.
12

On direct examination, Complainant testified that the operator was striving for “zero 

[reportable] incidents,” and that there was a general sense that reporting injuries was 

discouraged. Tr. 328:4–14. He said that miners “were discouraged from reporting any type of 

injury” short of profuse bleeding or broken bones. Id. at 324:8–17.

In contrast, Mr. Clemmons testified about a number of documented cases in which a 

miner had been injured and had requested to see a doctor after that proved ineffective. See 

generally Tr. 732–737; Ex. R-P. The accidents were reported to MSHA. Id. None of the miners 

involved were disciplined for requesting to see a physician. Id.

While still feeling the effects of his injury, Complainant took medical leave for an 

unrelated cardiac catheterization procedure. Tr. 380:1–2. He was on leave for two weeks, 

beginning on April 15, before returning to work on May 4. Id. at 379:19–24. Complainant was 

thus only at work for two days before a two-week absence for his cardiac procedure and the 

recovery prescribed by his cardiologist.

While Complainant did not see a physician for his back injury, he did seek treatment 

while on medical leave from a chiropractor, who recommended he see a doctor. Tr. 385:7–17. 

Complainant said the chiropractor took x-rays and told him he had a muscular injury to his 

thoracic spine. Id.

After returning from medical leave on May 4, Complainant said he recalls reporting to 

Mr. Williams and Mr. Humes that the pain from his injury was still interfering with his job duties 

but does not recall talking with Mr. Ellis. Tr. 382:5–12. Complainant said the operator took no 

further action to address the effects of his workplace injury. Id. at 382:14–25.

He routinely saw Mr. Williams and Mr. Humes in the company’s morning meetings. Tr. 

331:1–19. As part of those meetings, employees were encouraged, but not required, to stretch 

their major muscle groups before working. Id. at 330:6–8. Complainant’s injuries prevented 

him from participating. Id. at 330:17–25.

Complainant testified that he told Mr. Williams, Mr. Humes, and his co-workers that he 

was still unable to fully perform all his duties without pain, and that Mr. Williams and Mr. 

Tucker helped the cleaning and lifting parts of his job. Tr. 382:8–383:9. However, in his 

Complaint to MSHA, Complainant said that he did not often ask for help because he could get 

most of the cleaning done with a water hose. Id. at 433:3–13; Ex. R-T.

He also testified that he told Mr. Clemmons, while the plant was shut down due to a 

vandalism incident on May 8, that his back was still hurting. Tr. 383:16–384:2. When Mr. 

Clemmons asked if it was from April, Complainant said that it was, and that he wanted to see a 

doctor, id. at 384:2–5; “[a]t which point, he did not respond to me at all. He just drove away.” 
13

Id. at 384:5–6.15 Mr. Clemmons denies that Complainant ever told him he needed to see a 

doctor. Id. at 748:9–21. 

 Mr. Williams and Mr. Humes testified that Complainant was not completing his 

assigned duties as required. Mr. Humes testified that Complainant and Mr. Walker were not 

cleaning their zones fully and were leaving hazards behind for the next morning. Tr. 612:15–

613:14. This was discussed in “toolbox talks” and then with the miners one-on-one. Id. 

Mr. Humes said Mr. Williams recommended Complainant be terminated for not cleaning 

his area and greasing the plant, and for leaving work without telling anyone these tasks had not 

been completed, on May 10 and 11. Mr. Humes said Mr. Williams reported the conditions to 

him on both days, that Mr. Williams cleaned the area and greased the plant on the morning of 

May 10, and that Mr. Humes personally went to the area to inspect on May 11, after Mr. 

Williams told him Complainant had again not cleaned the area. Id. at 630:17–631:3.

Mr. Humes called Mr. Ellis and explained the issue to him on the morning of May 11. 

He recommended Complainant be terminated because of failure to improve his cleaning and 

greasing performance. Tr. 631:9–14.

Complainant testified that he finally told Mr. Williams, after the morning meeting on 

May 12, “I’ve put up with this as long as I am going to. I need to see a doctor today.” Tr. 

332:1–3.16 He said Mr. Williams’ response was, “I will let them know.” Id. at 332:8–9. After 

the morning meeting, Mr. Williams called Mr. Humes and told him Complainant had requested 

to see a doctor, and Mr. Humes relayed this to Mr. Ellis. Id. at 632:23–633:5.

Respondent’s witnesses testified about its plans to terminate Complainant on May 12, 

based on Mr. Humes’ recommendation the previous day. Tr. 508:20–509:17. In anticipation of 

the meeting, Mr. Ellis prepared written notes, which he intended to use as a script for the 

termination meeting, and contacted Mr. Lindsey, who also prepared for the meeting. Id. at

520:7–21. They intended for Mr. Williams to bring Complainant to the office after the morning 

meeting so they could tell him he was being discharged.

However, when Complainant asked to see a physician, Mr. Williams instead allowed 

Complainant to go to the plant to begin his shift. He then contacted Mr. Ellis and told him 

15 Neither party questioned Complainant further on this exchange, and there was no testimony 

about any subsequent actions by the company or Complainant based on the alleged request.

16 There was some confusion about the nature of Complainant’s injury. Mr. Ellis said he thought

Complainant had injured his ribs. Tr. 512:13–21. Complainant said he never claims his ribs had 

been “broken,” and that the injury was the same back injury he had reported on April 12. Id. at

384:7–385:6. Mr. Williams’ testimony on this point was confusing and ambiguous. He testified 

that he thought Complainant’s ribs were injured, and his notes say that Complainant told him he 

had three broken ribs, but he acknowledged this was the same injury Complainant reported in 

April. I find that the injury reported on May 12 was the same muscular injury to Complainant’s 

thoracic spine which had been reported on April 12. This confusion is not material to the matters 

in dispute here.
14

Complainant had requested to see a doctor. Mr. Lindsey said that Mr. Williams had to “pivot” 

from the original plan, and that he and Mr. Ellis decided to discuss the situation with risk 

management, which handles workers’ compensation and liability issues for VCM. Tr. 671:13–

672:11.

Mr. Ellis and Mr. Lindsey discussed the situation and contacted Mr. Clemmons and Andi 

Romano, Respondent’s risk management officer. Tr. 682:22–683:14. After conferring, they 

decided to proceed with the termination, but to also provide Complainant with a list of 

physicians, as required by Tennessee workers’ compensation law. Id.17

Mr. Ellis said he did not know Complainant had requested to see a doctor for his injury 

until the morning he was to be terminated, after the decision had been made. Tr. 509:23–25. He 

assumed that the request was for a new injury. Id. at 512:24–513:2.

Mr. Ellis also said that Respondent requested law enforcement officers be present during 

the termination. He said this decision was made based on input from Mr. Williams and Mr. 

Humes about Complainant possibly having a history of violence and gun possession and his 

reaction to previous discipline. Tr. 526:5–527:13.18 Mr. Humes testified that Mr. Williams told 

him Complainant “normally had a gun on him.”

Complainant said that Mr. Humes called him later that morning and said the company 

was trying to get him a doctor in Lebanon. Tr. 333:15–20. He said that he also spoke with Mr. 

Williams, who told him he was bringing a replacement to operate the plant so Complainant could 

go to the doctor. Id. at 334:8–15. Instead, Complainant was taken to the area outside of the 

mine’s offices, where Mr. Ellis, Mr. Humes, and two Wilson County deputy sheriffs were 

waiting. Id. at 335:24–336:4. The group summoned him, and Complainant was informed that he 

was being terminated “due to a couple of previous write-ups and poor performance.” Id. at

336:12–15.

Rex Lindsey, the company’s area human resources director, was on the phone during the 

meeting. Tr. 337:9–14. He informed complainant of the “finer points” relating to his 

17 Tennessee’s workers’ compensation law requires the employer to provide the employee with a 

group of three or more independent reputable physicians, surgeons, chiropractors, or specialty 

practice groups in the injured employee’s community, or, if no such providers are available in 

the community, within a one hundred (100) mile radius of the employee’s community. Tr. 

716:11–14; see also TENN. CODE ANN. § 50-6-204 (2022). The exhibit introduced included three 

physician practice groups.

18 Mr. Williams testified he had seen Complainant carry a gun “at times,” but never at work. Tr. 

814:2–21. Neither Mr. Williams nor Mr. Humes said anything about Complainant having a 

history of violence. I note that such a characterization would be inconsistent with the testimony 

of Complainant’s co-workers and the demeanor I observed during the hearing. It is difficult to 

fault an employer for being concerned about a possible workplace violence issue, and it appears 

Mr. Ellis may have drawn an inference about Mr. Hargis from the way the information may have 

been reported to him, but the way the termination was carried out was unfortunately 

embarrassing and should not be taken as a reflection on Mr. Hargis’ character.
15

termination, including Complainant’s last-chance notice. Id. at 337:21–338:5. Mr. Ellis did give 

complainant a list of doctors that he could see for his injury. Id. at 338:19–25. The form, Ex. 

GX-6, indicated that complainant had suffered an occupational injury. Respondent did not report

the injury to MSHA until after it had been cited for failing to do so. See id. at 446:10–15,

468:24–469:1.

III. Disposition

A. Respondent Failed to Timely Report an “Occupational Injury” to MSHA.

1. Finding of Violation

Complainant was injured while performing maintenance on the operator’s crushing plant. 

I credit his testimony that he felt pain while handing 35–50-pound liner plates to Mr. Tucker, 

who was working to install the plates inside the machine. Tr. 314:4–19. While Mr. Tucker 

testified that he does not recall Complainant saying that day that he had injured himself, 

Complainant claims that he told Mr. Williams about the injury in passing that day and reported it 

to him again on Monday, April 12. Id. at 315:14–316:3.

The nature of the injury and the operating environment do not support a finding that 

Complainant clearly reported an injury on Saturday, April 10. However, I find that he did tell

Mr. Williams the following Monday, April 12, that his injury was worse than he had thought,

and that he wanted to see a doctor.

19

Complainant’s ongoing pain after April 12, and Respondent’s knowledge of and response 

to his complaints, show an awareness of an occupational injury at least as early as April 14, 

2021. On that date, Complainant had a text message exchange with Mr. Clemmons. Ex. GX-9.

In that exchange, Mr. Clemmons asked Complainant how his back was, and whether he was 

“still taking it easy?” Id. Complainant replied that he was, and that his supervisor, Mr. 

Williams, had told him to “run the plant and do nothing else.” Id. Mr. Clemmons acknowledged 

this message. Id.

First, I find that Complainant suffered an “occupational injury” as the agency has 

reasonably defined that term. He was injured while working in a mine. The Agency’s general 

definition of “occupational injury” has been affirmed by the Commission and the D.C. Circuit 

Court of Appeals. See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 464 (D.C. Cir. 1994) 

19 My finding that Complainant requested to see a doctor at this point is based largely on the fact 

that Mr. Williams did not clearly contradict him but only said he did not recall Complainant ever 

requesting to see a doctor until the day he was terminated. Tr. 774:18–20. However, as 

discussed below, I do find it unusual that there was no apparent effort to elevate this initial 

request. I also do not find this request, by itself, to have produced any negative response from 

any of Respondent’s agents, including Mr. Williams. None of the other witnesses acknowledged 

hearing about this initial request, and Mr. Williams placed Complainant on light duty and 

arranged for other miners to clean and grease Complainant’s zone after he reported the injury.
16

(noting approval of definition of “occupational injury” and affirming finding that accident was 

reportable even if injury occurred while miner was at mine but not working when injured).

The only possible issue is whether Complainant’s injury was serious enough to require 

reporting. The definition includes a requirement to report an injury that gives rise to an 

“inability to perform all job duties on any day after an injury.” 30 C.F.R. § 50.2(e) (emphasis 

added).

Respondent claims that it limited Complainant’s work out of “kindness,” Tr. 539:5–10,

but the record establishes that Complainant was in fact placed on light duty. The operator 

admitted as much in its answer. Ans. ¶ 5. Mr. Humes testified that Complainant had been 

placed on light duty. Tr. 628:5–14. This was a decision made by his supervisor, and VCM’s 

safety manager was aware of the decision. See Ex. GX-9.

It is well-established by the record that Complainant’s job duties included more than 

running the plant. Indeed, the record establishes that he was highly efficient as plant operator but 

was disciplined for his alleged failure to perform other duties adequately, including cleaning his 

area. Thus, an inability to clean his area supports a finding of occupational injury.

Complainant testified that his ability to perform several of his required tasks was 

impaired by his injury. Climbing stairs was “painful,” using a hose to clean his area was “very 

painful,” and “[s]hoveling was just basically unbearable.” Tr. 323:8–12. On at least three days, 

his supervisor, Chris Williams, did the cleaning for him. Id. at 323:20–22. As noted above, Mr. 

Williams told Complainant to “run the plant and do nothing else,” and Mr. Clemmons was aware 

of this directive. I therefore find that Complainant was unable to perform all of his required 

tasks due to his injury, and that his employer’s management was aware of this disability.

As safety director for Respondent, Mr. Clemmons was also aware of MSHA’s injury 

reporting requirements. See Tr. 732–40, Ex. R-P (discussing reports of occupational injury and 

illness and admitting exhibit containing those reports). I hold that he must have at least been 

constructively aware of the definition of “occupational injury” used by the agency to require 

reporting of such injuries.

The evidence shows that Respondent took pride in its safety record and spotlighted its 

favorable history of occupational injuries to shareholders. See Ex. GX-4. The evidence also 

shows that the operator knew of its duty to report occupational injuries and had a program for 

recording and reporting them. After Complainant contacted the MSHA District Office about his 

injury, the office apparently contacted someone at the plant, who admitted that Complainant had 

been injured on the job. Tr. 284:18–285:23. Yet it did not file an MSHA Form 7000-1. Id. at

284:23–24.20

20 The inspector testifying, Otis Carroll, did not speak to Complainant or anyone at the quarry but 

was advised by the District office to cite the operator for failing to report the injury. Although 

this was hearsay testimony, it is corroborated by other facts and was unrebutted by the operator.

I find Inspector Carroll’s testimony to be credible and that it is reasonable to believe that 
17

Finally, the evidence shows that the operator had a policy of seeking to treat minor 

ailments with the so-called “RICE” method—rest, ice, compression, and elevation. There is 

nothing wrong with this, in and of itself. But at least in this instance, it appears that an overreliance on the “RICE” concept seemed to have been used as an alternative and not an adjunct to 

the operator’s duty to investigate and report accidents and occupational injuries.21

While the incident resulting in Complainant’s injury does not meet the definition of 

“accident” for immediate reporting purposes under Section 50.2(h), the Mine Act uses a broader 

definition of the term “accident,” and the statutory definition includes an “injury to . . . any 

person.” 30 U.S.C. § 802(k) (2022). This is significant because the operator is required to 

investigate, record, and report all accidents. 30 U.S.C. § 813(d) (2022). Because Congress took 

care to define “accident” in the Act, I find the statutory definition controls this responsibility.

Respondent was obviously aware of this duty because Mr. Clemmons and Mr. Ellis had 

in fact conscientiously investigated a previous minor injury to Complainant, involving a skid 

steer he had been driving. Tr. 327:11–14. It is thus inconceivable that Mr. Clemmons would not 

have known of his duty to investigate, record, and report the accident and occupational injury to 

the Complainant in this case.

Yet Respondent did not report the occupational injury in this case within 10 days of April 

14—a date on which the evidence conclusively establishes Mr. Clemmons’ knowledge of the 

occupational injury that prevented Complainant from performing all his duties on that date. I 

impute that knowledge to Respondent.

Indeed, it does not appear that the operator ever reported the injury, even after it provided 

a physician referral to complainant on the day he was terminated. When the operator did finally 

report the injury to abate the citation, the report appears to be incomplete and inaccurate. See Ex. 

GX-3.

22 This is inexcusable. MSHA takes seriously the duty to report occupational injuries, as 

well as the potential that such injuries will be under-reported. That is why the agency audits 

someone in a management position at the quarry acknowledged Complainant had been injured 

on the job and admitted that no MSHA Form 7000-1 had been filed.

21 “RICE” was cited repeatedly by Mr. Clemmons in his testimony. However, there is no 

evidence that Complainant was provided with the means for compressing the site of his injury or 

that he was ever assisted in elevating the injury. Due to its location (the thoracic spine), 

elevation could either be considered to have occurred naturally while he was standing, or not to

have occurred because there is a therapeutic means for doing so that was not used. I thus 

conclude that the operator’s approach consisted at most of merely providing ice that the 

complainant could use himself and limiting his activities while he was recuperating. In other 

words, he was only provided with rest and ice, and reciting “RICE” as a mantra is singularly 

unpersuasive. At some point, when this approach proved ineffective, the operator was dutybound to treat Complainant as having suffered an occupational injury.

22 The MSHA Form 7000-1 report of accident does not reflect any attempt to investigate the 

accident and gives the return-to-work date as April 14, even though Complainant continued to 

complain about his injury after this date, and Mr. Clemmons was aware of the complaints of 

injury and that Complainant’s supervisor had placed him on limited duty.
18

operators to ensure their reports are accurate. See generally Big Ridge, Inc., 34 FMSHRC 1003, 

1011–22 (May 2012), aff’d, 715 F.3d 631 (7th Cir. 2013). However, the agency cannot audit 

every operator, and must generally rely on self-reporting of accidents, occupational injuries, and 

illnesses.

I do not find that the operator generally suppressed reporting of accidents and injuries, as 

suggested by the Complainant. Nor do I find sufficient evidence that the operator engaged in a 

pattern of under-reporting occupational injuries. But the evidence in this case does at least give 

rise to an inference that the operator may have diverted a miner to “RICE” to forestall medical 

treatment of a minor injury, and that in this case—at least—it did not fulfill its duty to report a 

relatively minor injury once it became aware that the injury affected the miner’s ability to 

perform all his duties.

23 Though the injury was minor, it could carry the same statistical weight 

in the operator’s record as a more serious lost-time injury.

2. Penalty

Several of the statutory penalty factors have been stipulated to, including the size of the 

operator, its record of previous violations, and the effect of the proposed penalty on the 

operator’s ability to remain in business. The gravity of this violation is not such that it would 

result in an injury to any miners. However, it is a serious violation. The Act requires mine 

operators to assume primary responsibility to prevent unsafe conditions and practices. 30 U.S.C. 

§ 801(e) (2022). Where the Secretary has expressly required the operator’s assistance in this 

effort, by requiring occupational injuries to be recorded and reported, the failure to do so affects 

the integrity of the enforcement program.

I agree with the inspector’s characterization of the negligence as “high.” Tr. 288:8–21.

However, I note that the operator was contacted by MSHA and admitted to not having filed the 

form prior to the citation being issued but did not file the form until after it received the citation. 

I therefore find that the operator should not be credited with rapid compliance after the fact for 

an affirmative duty it ignored until its failure had been cited. Instead, I find that the penalty 

proposed does not adequately reflect the aggravated lack of care in failing to report the injury 

when it knew of it, and I assess a penalty of $300.00.

B. Complainant Was Not Terminated Because of His Protected Activity.

Complainant’s discrimination complaint fails because the evidence at trial did not 

establish discrimination under the Pasula-Robinette or Gross-Nassar standards.

24 As noted 

23 I have considered Respondent’s difficulty in evaluating Complainant’s condition. He was on 

the job for only three days after his injury and was then absent for two weeks on medical leave 

for an unrelated condition. But before the medical leave, VCM was aware that Complainant’s 

supervisor had placed him on restricted duty due to his injury, giving rise to the duty to report it.

24 A Gross-Nassar analysis requires the movant to establish that the impermissible motivation 

was a “but for” cause of the adverse employment action, i.e., the action would not have been 

taken but for a complainant’s protected activity. Under Pasula-Robinette, the complainant must 

carry the burden of persuasion on the prima facie case of protected activity, discrimination, and a 
19

above, the Commission has thus far only required that Gross-Nassar be employed in mines 

within the Ninth Circuit, but the Commission or other circuit courts may determine that the test 

must be employed. In the interest of judicial economy, I have considered both standards in 

reaching my conclusion.

Under either standard, the Secretary and the Complainant must prove by a preponderance 

of the evidence that Complainant engaged in protected activity, that he suffered an adverse 

employment consequence, and that there was a causal connection between his exercise of 

protected activity and the adverse action.

As explained below, I find that Complainant failed to meet his burden of proving a 

violation under Pasula-Robinette. While I do find that the bare minimum standard for a prima 

facie case has been met, the inference drawn for causation cannot withstand Respondent’s wellsupported explanation for its decision to discharge Complainant, and Complainant failed to 

demonstrate that the operator’s cited performance issues were pretextual.

Considering the evidence under Gross-Nassar, I conclude Complainant was not 

terminated because of any consideration by the operator of any protected activity. I find that he 

did engage in protected activity, that the operator was aware of this activity, and that he was 

terminated from employment. However, there is no proof that would support a reasonable 

inference that his protected activity was a “but-for” cause of his termination.

As the Supreme Court has explained, “but-for” causation may be determined by isolating 

the possible rationales offered for an adverse employment action and determining how the 

outcome may be affected. See Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, 1739 (2020). (“[A]

but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we 

causal nexus between them. But then the burden of persuasion supposedly “shifts” to the 

operator, who may prove that it would have taken the adverse action for unprotected reasons 

alone.

While the Commission has continued to rely on Pasula, generally, citing the legislative 

history of the Act, see Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp., 38 

FMSHRC 1914 (Aug. 2016), Riordan also noted that the Judge’s correct application of Pasula

was effectively a “but for” test. 38 FMSHRC at 1921, n.10; see also Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211, 1222 (Sloviter, J., dissenting) (expressing opinion that Commission 

had effectively applied the “now accepted ‘but for’ rule in mixed-motivation cases.”).

There may not be much of a practical distinction between the supposed burden-shifting 

under Pasula and the natural effect of evidence introduced in the normal course of a hearing. 

The Commission noted that the result would have been the same under either standard in 

Riordan, and the ALJ on remand in Thomas v. CalPortland Co. rather easily harmonized

Commission precedent with the Ninth Circuit’s decision. 43 FMSHRC 531, 540–41 (Dec. 2021)

(ALJ) (citing Sec’y of Labor on behalf of Thomas Robinette, 3 FMSHRC 803, 818, n.20 (Apr. 

1981) (“The ‘ultimate burden of persuasion’ on the question of discrimination rests with the 

Complainant and never ‘shifts.’”)).
20

have found a but-for cause.”) In the present case, the possible reasons Complainant was 

separated from his employment include the disciplinary and performance issues cited by the 

operator, and Complainant’s request to see a physician, which he claims is an activity protected 

against discrimination under the Act.

There is no evidence that Complainant’s request for medical care played any role in a 

termination that was already underway when the persons making the termination decision 

learned about the request. There is thus no causal connection, and the analysis under the GrossNassar standard would produce the same result as under Pasula-Robinette.

1. Complainant’s request to see a doctor for an occupational injury is protected 

activity under the Act.25

The Act protects miners against discrimination or interference because of their exercise 

of their statutory rights, including those enumerated in Section 105(c)(1) as well as “any [other] 

statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1) (2022). Thus, whether the Act 

affords miners the right to request medical treatment for an occupational injury is a threshold 

question in this case.

The Commission has apparently not held that a request to see a physician, standing alone, 

qualifies as protected activity. However, it has found that the reporting of injuries is protected 

against discrimination, even if there is no safety complaint associated with the report. Swift v. 

Consolidation Coal Co., 16 FMSHRC 201, 205 (Feb. 1994).

I find that the Act does protect requests for medical care, even if the injury did not result 

from an unsafe condition or practice or was not made in conjunction with a miner’s report of an 

alleged danger or safety and health violation. In addition to the reasoning in Swift, I rely on the 

text, structure, and purpose of the Act’s anti-discrimination provisions.

As noted previously, Section 103(d) of the Act requires operators to investigate all

accidents. 30 U.S.C. § 813(d). If the report of an occupational injury is the event which gives 

rise to this duty, it would thwart the clear and express intent of the statute to permit mine 

operators to suppress the recording and avoid the investigation of accidents by discouraging or 

punishing the report of occupational injuries. 

25 The Complaint in this matter cites only the request to see a doctor as protected activity. See 

GX-1. A miner may introduce evidence of other protected activity outside the scope of his 

complaint only if the evidence was investigated by MSHA. Hatfield v. Colquest Energy, Inc., 13 

FMSHRC 544, 546 (Apr.1991); see also Thomas v. CalPortland Co., 42 FMSHRC 43, 51 (Jan. 

2020) (declining to modify Hatfield). Complainant did not produce other evidence of protected 

activity in this case. The scope of my decision is thus constrained by the report of protected 

activity cited in the Complaint—the request to see a physician—but I do consider each of 

Complainant’s alleged requests, and not merely the May 12 request on which the Complaint 

appears to rest, because such requests arising from the same injury at issue would naturally be 

within the scope of inquiry by a competent investigator.
21

Extending the Act’s protection to requests for medical care is consonant with the 

protection of other rights under the Act. When a miner requests to see a physician, the report 

may affect the operator’s safety record, either because the complainant will require and receive 

medical treatment (as opposed to evaluation) or because the treating physician may proscribe 

activities necessary for the miner’s job.

The Mine Act is a remedial statute, and its terms must be understood broadly to 

effectuate Congress’ purpose—to eliminate unsafe and unhealthful conditions and practices in 

mines, relying primarily on the active involvement of operators in the prevention of such 

conditions and practices. 30 U.S.C. § 801(d)–(e); see also Sec’y of Labor on behalf of Riordan v. 

Knox Creek Coal Corp., 38 FMSHRC 1914 (Aug. 2016). The Commission’s embrace of 

activities beyond those enumerated in the Act has been consistently and broadly inclusive. See 

Emery Mining Corp., 10 FMSHRC 276, 283, 293 (Mar. 1988) (permitting walkaround 

inspection participation under Section 103(f)); So. Ohio Coal Co., 5 FMSHRC 729, 759 (Apr. 

1983) (ALJ) (permitting post-inspection conference participation under Section 103(f)); Sec’y of 

Labor on behalf of Bennett v. Emery Mining Corp., 3 FMSHRC 2648, 2657 (Nov. 1981) (ALJ) 

(requiring operator-provided training under Section 115).

Further, the D.C. Circuit has consistently (and recently) relied on the intent to achieve the 

goals of the Mine Act in affirming miner’s rights. In Marshall County Coal Co. v. FMSHRC, the 

court recognized a miner’s Section 103(g) rights—enabling the raising of anonymous 

complaints—as a basis for a protected activity in an interference claim. 923 F.3d 192, 195, 201

(D.C. Cir. 2019). The operator activity complained of there was a requirement to report 

complaints to management. Id. at 197.

In Harrison County Coal Co. v. FMSHRC, the court denied the operator’s petition for 

review because there was substantial evidence of six protected activities—mostly regarding 

reporting health, safety, and discrimination complaints. 790 Fed. Appx. 210, 212, 213 (D.C. Cir. 

2019). The court reiterated that reporting is a right bolstered by its importance to achieving the 

Act’s purpose:

Since the participation of miners in reporting unsafe working conditions is essential 

to the effectiveness of the Mine Act, Congress explained miners “must be protected 

against any possible discrimination which they might suffer as a result of their 

participation.”

Id. at 212 (quoting S. Rep. No. 95-181, at 35, reprinted in Senate Subcomm. on Labor, 

Committee on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 626 (1978)). This is in line with the Commission’s reliance, in Swift, on 

the command of Section 2(e) that “the operators of such mines with the assistance of the miners 

have the primary responsibility to prevent the existence of such conditions and practices in such 

miners.” 30 U.S.C. § 801(e).

Consistent with Commission and court precedent and Congress’ clearly expressed intent, 

I find that a mine operator may not discourage, interfere with, or discriminate because of a 

miner’s request to see a doctor because he was injured at the mine.
22

2. The Operator was aware of Complainant’s protected activity.

I credit Complainant’s testimony that he twice communicated a request to see a doctor to 

his supervisor, Chris Williams. His testimony regarding his requests is discussed more 

thoroughly below, but he at least made the requests on April 12, the Monday after he was 

injured, and on May 12, the day he was terminated. Mr. Williams, an agent of Respondent, was 

aware of both requests. The managers who made the decision to terminate Complainant were 

aware of the request he made on May 12.

3. Complainant suffered an adverse employment consequence in this case.

Complainant’s employment was terminated. Discharge from employment is expressly 

prohibited by Section 105(c) of the Mine Act and is the classic example of an adverse 

employment action. 30 U.S.C. § 815(c)(1).

4. The evidence is insufficient to support an inference that Complainant was 

terminated because of his request to see a physician.

The burden of producing sufficient evidence to support a prima facie case of 

discrimination is not especially great in the abstract. A complainant may provide direct evidence 

that the adverse employment action was discriminatory. But if such evidence is unavailable, as 

is usually the case, the Complainant is only required to demonstrate that the available 

circumstantial evidence could support an inference of discriminatory treatment. Turner, 33 

FMSHRC at 1065–66.

I find that the Complaint for discrimination fails because there is no direct evidence of 

discriminatory intent and no reasonable basis for inferring that his discharge from employment

could have been causally related to Complainant’s protected activity. This is true under either 

legal standard the Commission might apply to his discrimination claim.

a. There is no direct evidence of discriminatory intent or motivation.

The operator has denied that Complainant was discharged because of his protected 

activity. The Secretary and the Complainant must show at the prima facie stage that the protected 

activity could have motivated his discharge, and then carry the burden of proving by a 

preponderance of the evidence that his discharge was so motivated. 

Complainant could not provide any direct evidence of discriminatory motive. However, 

the absence of direct evidence is not fatal to Complainant’s case. “‘[D]irect evidence of actual 

discriminatory motive is rare. Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent.’” Con-Ag, Inc. v. Sec’y of Labor, 

897 F.3d 693, 700 (6th Cir. 2018) (quoting Sec’y of Labor on behalf of Howard v. Cumberland 

River Coal Co., 34 FMSHRC 1396, 1397 (June 2012)).
23

Therefore, I must consider whether inferences reasonably drawn from the evidence in the 

case may be used to support Complainant’s contention that he was fired because he engaged in 

protected activity. Such inference may be supported by the following factors:

(1) [T]he operator’s knowledge of the protected activity; (2) the mine operator’s 

hostility or ‘animus’ towards the protected activity; (3) the timing of the adverse 

action in relation to the protected activity; and (4) the mine operator’s disparate 

treatment of the miner.

Id. (quoting Cumberland River Coal Co., 712 F.3d at 319; Sec’y of Labor on behalf of Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2510–12 (Nov. 1981), rev’d on other grounds, 709 F.2d 

86 (D.C. Cir. 1983)).

b. The record does not support an inference that Complainant was 

discriminated against because of his protected activity.

1. There is scant evidence of disparate treatment of the 

Complainant.

The record in this case is replete with complaints by miner witnesses of unfair, arbitrary, 

and harsh treatment by lower-level supervisors. However, this was a burden borne by the entire 

workforce. There is little evidence that Complainant was an especial target of abuse, and no 

evidence that any protected activity may have motivated Respondent’s agents.

On the contrary, miner witnesses testified that everyone in the workforce felt targeted by 

poor supervisors who did not know their jobs well. Some miners did testify that Complainant’s

supervisors had “targeted” him for termination, but the bases for their assertions are grounded in 

actions that predated any protected activity in this case.

When questioned about the operator’s management, the miner witnesses complained 

about generally arbitrary and unfair supervision of employees by Mr. Parr and Mr. Humes. In 

fact, Complainant and several other witnesses noted that at one point Mr. Humes threatened to 

fire and replace the entire workforce. 

It was clear that none of the miners felt genuinely intimidated by these threats. After Mr. 

Humes’ tirade, witnesses noted that “every employee called [human resources] that day;” Tr. 86,

and Mr. Ellis noted that he had discussed the situation with several miners and the company’s 

human resources department, and he required Mr. Humes to apologize.

There is some evidence that Complainant was treated less favorably than other miners. 

However, he himself testified this began under Mr. Parr—who was separated from his 

employment before claimant requested to see a physician. On cross-examination, Complainant

admitted that he had been verbally counseled by Mr. Parr for failing to thoroughly clean his area. 

Mr. Parr subsequently issued a written warning to Complainant for the same issue.
24

Complainant testified that he believed Mr. Parr was trying to make a “paper trail” to 

terminate him. Even if this were true, however, any motivation Mr. Parr might have had to 

harass or oppress Complainant could not have been related to protected activity that had yet to 

occur. It is thus not logically possible to infer that Mr. Parr targeted claimant because of his 

protected activity.

Complainant subsequently was formally disciplined again, by a different supervisor,

before his termination. However, the second written warning and suspension also took place 

before his injury and subsequent protected activity. When Complainant was injured, he was 

therefore already on a “last chance” letter, having been suspended by the operator and told, in 

writing, that any future violation of policies or failure on his part could lead to termination.

I have considered the possibility that Complainant was the only miner disciplined for 

leaving work early when he was suspended. At least one other miner, Mr. Evans, left at the same 

time as Complainant, and all four miners on Complainant’s crew left without completing the 

cleaning tasks assigned to them, according to Mr. Williams. But this suspension also occurred 

well before the injury upon which Complainant’s claim of protected activity rests, and 

Complainant’s discipline here was thus entirely unrelated to his request to see a doctor for an 

injury that had not yet occurred.

Furthermore, while Mr. Evans may not have been formally disciplined, it appears that 

Mr. Williams at least intended to do so. Mr. Evans was summoned to the office, where Mr. 

Williams told him that he was going to be issued a verbal warning. Because Mr. Evans had no 

prior disciplinary history, his treatment under the company’s progressive disciplinary policy was 

equivalent to Complainant’s. While he may have talked his way out of formal discipline, Mr. 

Williams did not ignore the actions of the other employee whose actions were the same as 

Complainant’s. 

Additionally, Complainant’s discipline does not appear to be inconsistent with that 

assessed to other miners for similar conduct. Mr. Walker had a similar disciplinary history and 

had also received a second written warning and three-day suspension for the same alleged 

failures that led to Complainant’s suspension. Tr. 548:24–549:10; Ex. R-L. There was no 

evidence that Mr. Walker had ever engaged in protected activity before his suspension. 

In summary, there is insufficient evidence to support the contention that Complainant

was treated more harshly than other miners, and no evidence at all for inferring that any actions 

of his supervisors had anything to do with mine safety or health. There is thus no basis for me to 

impute an improper motive for any of the predicate disciplinary actions on which Complainant’s

termination was grounded.

In fact, this hypothesis is refuted by Respondent’s treatment of Complainant before and 

after he engaged in protected activity—which might be a more appropriate consideration than 

alleged disparate treatment of Complainant and other similarly situated miners. See Riordan, 38 

FMSHRC at 1927 (finding of pretext upheld where written record of miner’s performance was 

inconsistent with reasons given for termination).
25

Before his protected activity, Complainant was formally disciplined three times, by or at 

the insistence of three different supervisors, for failure to complete cleaning and greasing tasks 

that Respondent had assigned to him as part of his job. After his injury and earliest request to 

see a physician, Complainant was discharged for the same conduct that he had been disciplined 

for at least three times prior to his injury and protected activity. 

The discharge was consistent with company policy, and Complainant had been warned 

when he was suspended that he could be discharged for any future failing or violation of 

company policy. He himself admitted that he had not fully cleaned his area or greased the plant 

on May 9 and 10, and he does not know whether anyone else did so. Tr. 422:13–22.

26

My decision is mindful of the Commission’s admonition that operator justifications in 

discrimination cases should not “be examined superficially or be approved automatically when 

offered,” but that my careful analysis may not “substitute [my] business judgment or sense of 

‘industrial justice’ for that of the operator.” Cumberland River Coal Co., 712 F.3d at 320 

(quoting Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982)).

In this case especially, I note the performance issues cited by the operator may be vital to 

its safe and efficient operation. Special Investigator McClung testified that a violation could be 

cited as an S&S violation of MSHA’s housekeeping standards. Tr. 490:7–491:5. It would be 

contrary to the Act’s purpose and text to punish an operator for holding miners accountable for 

compliance with a mandatory safety and health standard. And the operator provided credible 

testimony about the severe costs and inconvenience produced by a failure to grease the plant 

bearings and other equipment, which is a daily requirement.

His disciplinary history left Complainant in a precarious position, where any subsequent 

violation of company policies would result in his termination. As noted, acts predating the 

protected activity cited in this case could not have been motivated by that activity. Complainant 

nevertheless could have established a basis for inferring a nexus between his protected activity 

and his discharge but was unable to prove that the operator’s termination decision—which was 

consistent with its policies and Complainant’s work history—was ever treated differently 

because of activity protected under the Act.

26 Complainant also testified fellow employees, including Mr. Williams, helped him to clean his 

area after he returned to work on May 4. Even if true, this cannot be reasonably related in any 

way to a hostility toward his protected activity. Although one might question whether it would 

be fair in a general sense to discharge an employee who had been led to believe others would 

help him clean his area, Complainant did not report to his supervisor that he had been unable to 

clean or grease on May 9 or 10.
26

2. The record does not support an inference of animus toward the 

Complainant because of safety or health related issues or general 

animus toward safety and health concerns.

While the record does not support an inference that he was treated differently because of 

his protected activity, Complainant could have provided a reasonable basis for inferring his 

termination was motivated by improper animus against safety and health generally, or against 

him for his involvement in or advocacy on safety and health issues. There is not a basis in the 

record for this inference, either.

First, there is no evidence at all that Complainant ever engaged in any advocacy on safety 

and health issues.

27 Nor does he appear to have had any specific, material involvement in those 

issues during his employment.

There is also no evidence that Respondent harbored any animus against safety and health 

generally. On the contrary, witnesses almost without exception testified that the company tried 

to operate safely and to correct hazardous conditions that were brought to its attention. 

Complainant himself provided such testimony. See Tr. 397:25–398:2.

I also note the weight of circumstantial evidence undermining any inference of hostility 

to safety and health. Respondent held “morning stretch” sessions for employees, which 

testimony acknowledged as having a safety purpose. Tr. 147:3–5. Employees apparently felt 

comfortable calling human resources and senior managers to complain about their supervisors. 

When Mr. Humes supposedly posted a new policy requiring workers to leave the jobsite at the 

same time at the end of their shift, an employee removed the message so that he could bring it to 

the morning meeting for discussion.

Testimony by other miners also refutes any notion that Respondent was hostile to safety 

and health complaints. Mr. Dycus testified that it was generally known that he had made a 

complaint to MSHA, and yet was never disciplined by the company for anything. Even more 

telling is the incident where Mr. Parr allegedly tried to persuade Mr. Walker to falsify an 

examination report before an inspection, Mr. Walker’s refusal, and his reporting the incident to 

Respondent’s management. VCM opened an investigation. Mr. Parr then resigned. The 

inescapable inference is that miners believed they could report safety matters to management, 

and that when they did so, those matters would be properly addressed.

Nor is there any evidence that the Company showed any hostility toward Complainant 

because of his request to see a doctor. As noted, every prior disciplinary action occurred before 

his injury and protected activity. When Complainant requested to see a doctor, there was no 

adverse response to the request from anyone in mine management. 

27 While not advocacy per se, Complainant did testify about reporting safety issues to his 

supervisors and management. However, he acknowledged that Respondent’s agents were 

responsive to those reports, and there was no evidence of any hostility to them.
27

At worst, Complainant’s request for medical care was ignored. If Complainant’s 

previous requests had any effect, it was to have him placed on limited duty due to his injury. Mr. 

Williams and Mr. Clemmons both inquired about Complainant’s injury after that. There is no 

conduct from which I could infer any hostility arising from his injury. 

Complainant’s request for medical care on May 12 certainly had no effect on a 

termination decision that was well underway before the decisionmakers were aware of it. Mr. 

Ellis testified that he made the decision to terminate Complainant, with input from Mr. Humes 

and Mr. Lindsey. They had intended for Mr. Williams to bring Complainant to the office after 

the morning meeting so that they could communicate the decision to him. 

Mr. Ellis prepared notes in anticipation of that action. While Mr. Ellis testified that Mr. 

Williams was not involved in the termination decision, his notes suggest otherwise.28 His 

unrebutted testimony shows that he took those notes before he learned of the request to see a 

physician in preparation for the meeting at which Complainant was to be terminated, the next 

day. The context and the content of the notes together clearly support his testimony.

There is no evidence that Mr. Ellis was aware that Complainant requested to see a doctor 

before making the decision to terminate his employment, or that he discussed any previous 

requests with Mr. Humes, Mr. Williams, or Mr. Clemmons. Nor is there any evidence that any 

of the other individuals involved in the decision to discharge Complainant ever evinced anything 

worse than indifference in response to his request to see a doctor.

This evidence supports Respondent’s contention that it took seriously safety and health 

issues brought to its attention. I thus find that there is no evidence in the record from which one 

could reasonably infer any hostility to protected activity, including Complainant’s request to see 

a doctor.

3. Coincidence in time between Complainant’s request to see a 

doctor and his termination raises a superficial inference of 

potential discriminatory intent that does not survive evidence 

raised in response to his prima facie case.

Coincidence in time between protected activity and an adverse employment action justly 

creates suspicion that there may be a relationship between the two. A miner may establish a 

prima facie case where the adverse employment action is imposed soon after the exercise of 

protected activity. See Turner, 33 FMSHRC at 1066 (citing King v. Rumsfeld, 328 F.3d 145, 

150–51 (4th Cir. 2003) (reversing trial court’s conclusion that plaintiff failed to make out a prima 

28 The Secretary has suggested that this should detract from Mr. Ellis’ credibility. S. Post Hr’g 

Br. at 20. However, the wording of the question, the answer, and Mr. Ellis’ notes leaves open 

the possibility that Mr. Humes told Mr. Ellis he had discussed the issue with Mr. Williams. See 

Tr. at 517:17–22 (testimony of Mr. Ellis, stating that information was given to him “by Chris 

through Anthony”). Whether and to what extent Mr. Williams was involved in the decision is 

not material because there is no evidence suggesting that Mr. Williams, or any of Respondent’s 

other agents, may have been motivated by Complainant’s protected activity.
28

facie case of retaliatory discharge based on evidence proffered by the plaintiff that “his 

termination came so close upon his filing of [an EEOC] complaint giv[ing] rise to a sufficient 

inference of causation to satisfy the prima facie requirement”)).

The Commission has held that coincidence in time, combined with knowledge of a 

miner’s protected activity, may establish discriminatory motivation. Sec’y of Labor on behalf of 

Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833, 837 (May1997); Bradley v. Belva Coal 

Co., 4 FMSHRC 982 (June 1982). I credit Complainant’s testimony that he requested to see a 

physician on May 12, the morning he was terminated. It is undisputed that all of those involved 

in the decision to terminate Complainant were aware of the protected activity on May 12.

Mr. Williams, who provided input to Mr. Humes in support of the latter’s termination 

recommendation, testified about the request to see a physician. Mr. Humes, who made the 

recommendation to terminate Complainant, was also aware of the request before the termination 

was carried out. Mr. Ellis and Mr. Lindsey, who made the decision to terminate Complainant, 

also knew of the request because Mr. Williams reported it to them. 

Here, as in Knotts, the Complainant was terminated soon after his protected activity. 

Indeed, he was discharged almost immediately after requesting to see a physician on May 12. 

This close proximity in time is sufficient to establish a prima facie case of discrimination, 

because in the absence of other evidence, a causal relationship is strongly suggested by the 

timing of the two events. 

While Complainant has provided sufficient proof for a prima facie case, the analogy to 

Knotts cannot survive close scrutiny. In Knotts, the miner/complainant had an extensive 

conversation with a representative of the mine’s owner. 19 FMSHRC at 834. Subjects of the 

conversation included safety, equipment and production problems, morale, mine policy, and 

other subjects. Id. The mine’s vice president was working underground and listened to the 

conversation by phone. Id.

The next day, Mr. Knotts was discharged. 19 FMSHRC at 835. Knotts said the vice 

president told him that the company had suspected that Mr. Knotts had been talking to the mine 

owners for some time. Id. The vice president’s own testimony indicated he was upset that Mr. 

Knotts had criticized mine management in the conversation. Id. While the company argued that 

Mr. Knotts was fired for engaging in a lengthy conversation instead of doing his job, the ALJ 

found otherwise. Id.

In affirming the ALJ’s rejection of the operator’s affirmative defense, the Commission 

noted that there was no evidence of past discipline or performance issues in Mr. Knotts’ work 

record. 19 FMSHRC 838. In fact, the company admitted he was “one of the best employees.” 

Id.

That is practically the inverse of the situation in the present case. Here, Complainant’s 

disciplinary record placed him on a “last chance” agreement before he was injured or engaged in 

any protected activity. The disciplinary record was based on his alleged failure to clean and 
29

grease his zone and his alleged early departure from work on February 1, 2020, for which he was 

suspended.

Even if the previous disciplinary actions were questionable, there is no evidence that they 

were motivated in any part by any activity cognizable under the Act. To the extent safety was 

implicated at all, even MSHA’s investigator acknowledged that the failure to clean areas where 

miners work or travel could lead to S&S violations. 

Complainant nonetheless could have shown that the final action taken by the operator, 

ending his employment with Respondent, was motivated by his protected activity. However, the 

coincidence in time turns out to be just that—a coincidence—and is insufficient to overcome the 

operator’s explanation for Complainant’s discharge. It appears that the request to see a physician 

did not influence, but rather interrupted, the execution of the termination decision. 

4. Respondent acted consistent with its business practices, and the record 

does not support a finding that its explanation was pretextual.

The Commission has held that “pretext may be found . . . where the asserted justification 

is weak, implausible, or out of line with the operator's normal business practices.” Sec’y of 

Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990)

(citing Haro v. Magma Copper Co., 4 FMSHRC at 1937–38). In this case, Respondent’s 

evidence explains the coincidence in time, and the termination process was consistent with 

VCM’s progressive disciplinary policy and its maintenance and housekeeping policies.

The operator’s witnesses gave consistent, credible accounts of the termination and their 

consideration of Complainant’s request to see a physician. The plan to terminate Complainant 

was already in motion when the key management players learned of Complainant’s request to 

see a physician. Termination was the logical next step under Respondent’s progressive 

disciplinary policy. 

In accordance with its internal procedures, the operator had choreographed an elaborate, 

scripted plan for carrying out the termination. But when they heard that Complainant had 

requested to see a doctor, VCM’s management paused to consider its plan and decided to provide 

a list of physicians to the Complainant in addition to proceeding with the planned termination.

Respondent did not fire Complainant “because” he had asked to see a doctor. Rather, its 

management continued with an already-formulated plan to terminate him, but made a slight 

modification to that plan, providing him with a list of physicians he might see about his injury.

Thus, instead of summoning Complainant from the morning meeting, the operator made a 

“pivot” after Mr. Williams told them he had requested to see a doctor. This request on May 12 

could not have motivated a plan that was already under way, based on a decision that was made 

the previous day.

I have also considered that Complainant’s first request could have motivated a 

discriminatory response by Respondent. See Riordan, 38 FMSHRC at 1924 (citing Gorzynski v. 

JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010); Pero v. Cyprus Plateau Mining Corp., 
30

22 FMSHRC 1361, 1365 (Dec. 2000) (holding a gap of several months between protected 

activity and discharge to be probative of animus)). But nothing in the record suggests that it did.

The first request to see a doctor was made to Mr. Williams, who was an agent of 

Respondent. But there is no evidence that Mr. Williams told anybody else about that request, or 

that any of the persons involved in the termination decision—Mr. Ellis, Mr. Lindsey, or Mr. 

Humes—were otherwise aware of the request.29

Mr. Williams himself did not respond adversely to Complainant’s protected activity. 

After Complainant had requested to see a doctor, but before he was terminated, Mr. Williams 

asked about Complainant’s back nearly every day. Tr. 430:23–431:2.

This case is thus unlike Riordan. As the Commission noted, the complainant/miner in 

that case was disciplined immediately after his most recent protected activity, and then 

terminated months later. Riordan, 38 FMSHRC at 1927 (“Taken together, these two incidents 

raise an inference that Riordan’s termination was not coincidental.”) (emphasis added). There 

are no corroborating facts to support such an inference in this case.

Complainant testified that he made his request on two other occasions. While 

Complainant only cited as protected activity his May 12 request to see a physician, Ex. G-1; Tr. 

439:21–440:2, any previous requests would have been within the scope of MSHA’s 

investigation.

Furthermore, credible testimony about previous requests could be used to establish 

knowledge and might be a basis for finding that the operator’s business justification was 

pretextual. I have therefore considered Complainant’s testimony that he told Mr. Clemmons on 

May 8, and that he told Mr. Humes, on a day he could not recall, over the radio.30

Complainant’s recollection of these requests is oddly vague and does not reflect a 

progression or escalation of his concern with the company’s failure to refer him to a doctor for

an injury serious enough to affect his work. He also testified that his pain from the injury was so 

serious that he could not sleep and that it was “affecting everything about [his] daily life.” Tr. 

332:4–7. Yet he does not appear to have followed through or complained about the operator’s 

alleged inaction on his request until May 12.

I do not credit Complainant’s testimony that he told Mr. Clemmons he needed to see a 

doctor on May 8. Mr. Clemmons allegedly asked if this was due to his injury in April, and when 

29 Despite having the opportunity to depose witnesses in discovery and subpoena and question 

witnesses at the hearing, Complainant produced no evidence that Mr. Williams had ever 

discussed his initial request or any subsequent conversations about his need for medical attention 

with anybody else in the company.

30 Complainant also says that after he returned to work in early May, following his April 15 

cardiac procedure, he told Mr. Williams, Mr. Humes, and his co-workers in passing that his back 

was still hurt and that he could not complete all his tasks. Tr. 382:3–25.
31

Complainant said it was, Complainant said Mr. Clemmons drove away without responding. Tr. 

384:2–6.

This testimony is inconsistent with other facts in the record, as well as human nature and 

common sense. Complainant said that his injury was serious enough to have affected him 

profoundly for more than a month. He knew Mr. Clemmons was aware of the injury. Mr. 

Clemmons had previously investigated an incident in which Complainant was injured. Mr. 

Clemmons had also inquired about Complainant’s condition while he was recovering from the 

injury at issue in this case. Yet there was no follow-through with Mr. Clemmons, or anyone else, 

until the day he was discharged.

Perhaps realizing the weakness of his case, Complainant also claimed Mr. Clemmons had 

previously asked what could be done to keep him from going to the doctor after the skid steer 

injury. Mr. Clemmons denied this, and Complainant’s testimony is at odds with his own 

testimony about the investigation into the incident, which characterized the investigation as

careful and thorough.

Furthermore, the comment seems out of character with Mr. Clemmons’ text messages to 

Complainant, evincing what appeared to be genuine concern about his injury. In that context, I

credit Mr. Clemmons’ denial, in part because the record includes incidents where other miners 

had requested to see a doctor and had their requests granted. See Ex. R-P. Some of these 

requests were for relatively minor injuries, contrary to Complainant’s claim that the reporting of 

anything short of “profuse bleeding or broken bones” was discouraged.

Complainant also claims to have told Mr. Humes over the radio that he wanted to see a 

doctor. I am skeptical of this for several reasons.

First, Mr. Humes denied that Complainant ever told him he wanted to see a doctor. Tr. 

625:1–4. I found Mr. Humes to be a disinterested witness who was forthright and candid about 

his own shortcomings, and I credit his testimony here because it is more consistent and 

reasonable than Complainant’s version of events

Second, Complainant says he cannot remember how Mr. Humes responded to the 

request, and there is again no linkage made between this request and other requests that were 

allegedly made. He did not testify that he had told Mr. Humes about his earlier request to Mr. 

Williams, shortly after his injury. As with the requests allegedly made to Mr. Clemmons and 

Mr. Williams, the testimony relates a solitary statement that the operator’s management allegedly 

ignored, and Complainant did not testify about any effort to follow up on or escalate his requests.

Finally, the record establishes that comments made over the radio could be heard by other 

persons generally. Mr. Humes was discharged from employment in part because of something 

offensive he said over the radio that was heard by employees. Yet none of the other miner 

witnesses testified that Complainant ever made a request to see a physician over the radio.
32

There is also no testimony about or basis for inferring a correlation between the alleged 

previous requests and any consideration of them by Respondent’s management when it decided 

to discharge Complainant from employment. As the party with the burden of proof, it is 

incumbent on the Complainant to not only suggest an inference, but to support it with credible 

evidence. Even accepting that all his requests to see a doctor were made as stated, there is no 

evidence that anyone might have considered them when Respondent made the decision to 

terminate him.31

The operator relied on input from Mr. Williams and Mr. Humes in making that decision. 

I have credited Complainant’s testimony that he had previously told Mr. Williams on April 12 

that his injury was not improving and that he needed to see a doctor. But even Complainant did 

not testify that Mr. Williams reacted adversely to this request, or that he attempted to discourage 

or interfere with his pursuit of medical treatment.

Mr. Williams claims not to have made a recommendation to fire Complainant, and Mr. 

Humes claims responsibility for the recommendation. But the termination decision was the last 

in a chain of disciplinary actions, undertaken by or with input from three different supervisors. 

Each of the previous disciplinary actions preceded Complainant’s request to see a physician, and 

there was no protected activity or evidence of any other relevant health and safety activities or 

views that could have influenced those decisions.

It therefore appears that Complainant was discharged for the same type of performance 

issues that contributed to his adverse disciplinary record. He himself acknowledged that he 

failed to clean or grease the plant on May 9 or 10, as reported by Mr. Williams to Mr. Humes. 

He said that the company had obtained a new grease gun for him to use. Tr. 435:13–436:2.

Although Complainant said that grease gun had the “wrong” tip and could not be used, he 

acknowledged that other grease guns were available. Id.

Greasing the plant was part of Complainant’s job and was an important, daily 

responsibility. Mr. Williams notes—in a statement of some significance—that Complainant did 

not tell him that the plant had not been greased at the end of his shift, and that this is something 

that he believed Complainant should have told him, because it was vital that the plant be greased 

every day. Tr. 785:2–4.

Given the costs and inconvenience created by the catastrophic damage to the plant 

bearings after a previous such failure, I credit Respondent’s proffered justification for its 

decision to terminate Complainant as reasonable. Complainant produced no evidence that 

suggests the operator’s justification is pretextual. Instead, it appears that the suggested 

31 I also find it odd that Complainant was under the care of physicians for a cardiac procedure 

unrelated to his employment but testified he did not discuss his occupational injury with his 

treating physicians. While he was seen by a cardiologist for a specialized procedure, any person 

who has been provided with medical care is aware of the general requirement to provide a 

detailed medical history before receiving that care. It is not necessary to my decision that I take 

administrative notice of this common imposition, but this is another instance where the absence 

of evidence is not helpful to Complainant’s credibility.
33 

connection between the final request to see a physician and the discharge from employment is 

not a causal nexus but merely a post hoc, ergo propter hoc fallacy. 

CONCLUSION

The evidence in this case leaves open the possibility that Complainant may have been 

treated unfairly by his employer prior to his protected activity. Accepting as true his account of 

events, he received a written warning, which he disputed, from a supervisor who was widely 

disliked and who eventually resigned under unfavorable circumstances. Complainant was then 

suspended when other workers who engaged in similar conduct were not disciplined. He was 

fired for not performing some of his duties during a time when he was injured, and when there 

appeared to be at least some understanding that other people would assist him with those tasks 

while he recovered.

However, there is no evidence that improper discriminatory motivation played any role in 

any of these disciplinary actions. I therefore find that Respondent did not discriminate against 

the Complainant in violation of Section 105(c)(1) of the Act, and his complaint is DISMISSED.

The order of temporary reinstatement entered July 27, 2021, is hereby DISSOLVED.

Citation No. 9237452 is AFFIRMED. Respondent is ORDERED TO PAY the 

Secretary of Labor $300.00 within 30 days of the date of this decision.32

 

 Michael G. Young

 Administrative Law Judge

Distribution (First Class Mail and email):

Christopher M. Smith, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219, smith.christopher.m@dol.gov; nash.fedcourt@dol.gov 

Elaine M. Youngblood, Esq., Ortale Kelley, 330 Commerce Street, Suite 110, Nashville, TN 

37201, eyoungblood@ortalekelley.com 

Margaret S. Lopez, Esq., & William K. Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, 

PC, 1901 K Street NW, Suite 1000, Washington, DC 20006, margaret.lopez@ogletree.com

william.doran@ogletree.com

32 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check of money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box. 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers.