**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF CHIEF ADMINISTRATIVELAW JUDGE

7 PARKWAY CENTER, SUITE290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240/ FAX: 412-928-8689

 

 
| SECRETARY OF LABOR

 MINE SAFETY AND HEALTH        

 ADMINISTRATION (MSHA), 

 on behalf of BARBARA E. CASSIDY,

                           Complainant,

 

                        v.

 

CONSOL PENNSYLVANIA COAL

 COMPANY LLC,

                           Respondent                                                                                     |   |   | DISCRIMINATION PROCEEDING

 

Docket No. PENN 2020-0101

MSHA Case No.: PITT-CD-2020-02

 

 

 

 

Mine: Enlow Fork Mine

Mine ID: 36-07416 |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**DECISION & ORDER**

 

Appearances:              Brian P. Krier, Esq., Office of theSolicitor, U.S. Department of Labor, Arlington, VA, Representing the Secretaryof Labor

 

Nicholas J. Bell & ErinJ. McLaughlin, Buchanan Ingersoll Rooney, Pittsburgh, PA, Representing theRespondent

 

Before:                                    JudgeLewis                

 

            This case isbefore me upon a complaint of discrimination brought by the Secretary of Laboron behalf of Barbara E. Cassidy (“Complainant”), a miner, against ConsolPennsylvania Coal Company LLC (“Respondent”), pursuant to Section 105(c) of theFederal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c). 

 

            The Secretary ofLabor, on behalf of Barbara E. Cassidy, alleges that Cassidy was discriminatedagainst in violation of her statutory rights after engaging in protectedactivities. A hearing was held via Zoom Video Conferencing on February 03, 2021-February04, 2021, at which the parties presented testimony and documentary evidence.After the hearing, the parties submitted Post Hearing Briefs and Reply Briefs,which have been fully considered.[1]

** **

**STIPULATIONS**

 

            The partiessubmitted stipulations as a joint exhibit. The following joint stipulationsrepresent those where there is agreement:

1.     Respondent is an “operator” asdefined in Section 103(d) of the Federal Mine Health and Safety Act of 1977, asamended (hereinafter, “the Mine Act”), 30 U.S.C. § 802(d).
    - Respondent is a “person” subject to Section 105(c) of the Mine     Act, 30 U.S.C. § 815(c).
    - The operations of Respondent at the Enlow Fork Mine are subject     to the jurisdiction of the Mine Act.
    - This proceeding is subject to the jurisdiction of the Federal     Mine Safety and Health Review Commission and its designated Administrative     Law Judge pursuant to Sections 105 and 113 of the Mine Act, 30 U.S.C. §§     815 and 823.
    - At all relevant times, Complainant Barbara E. Cassidy was a     “miner” as defined in Section 3(g) of the Act, 30 U.S.C. § 802(g).
    - Complainant was employed as an Assistant Section Supervisor at     Respondent’s Enlow Fork Mine from June 18, 2007 to May 11, 2008, and a     Section Supervisor from May 12, 2008 to August 31, 2020.
    - On December 19, 2019, Respondent suspended Complainant for ten     (10) days without pay, effective January 2, 2020.
    - As a result of her ten-day suspension, Respondent reduced     Complainant’s pay by a total of $4,265.04.
    - Respondent paid Complainant a biweekly salary of $4,265.04     ($110,891.04 annually) at the time of her suspension.
    - Complainant Ms. Cassidy participated in the Company-sponsored     health and welfare benefit plans, including medical/prescription, dental     and vision, life insurance and disability. Other benefits included 401(k)     company match (up to 6%).
    - As a result of her ten-day suspension, Respondent reduced the     401(k) company match contribution to Complainant by $255.90.
    - Payment of the total proposed penalty of $15,000.00 in this     matter will not affect Respondent’s ability to continue in business.
    - MSHA's Data Retrieval System, publicly available at http://www.msha.gov/drs/drshome.htm,     accurately sets forth:
    the size of the Respondent in production tons or hours worked      per year;
the size, in production tons or hours worked per year, of the      mine;
the total number of assessed violations for the time period      listed; and
the total number of inspection days for the time period listed      therein.

14. MSHA’s PenaltyAssessment accurately sets forth:

a.    the size of theRespondent in production tons or hours worked per year;

b.    the size, inproduction tons or hours worked per year, of the mine;

c.    the totalnumber of assessed violations for the time period listed; and

d.    the total number ofinspection days for the time period listed therein.

Ex. J-1.

**FINDINGS OF FACT ANDCONCLUSIONS OF LAW**

** **

****Thefindings of fact are based on the record as a whole and my careful observationof the witnesses during their testimony. In resolving any conflicts in thetestimony, I have taken into consideration the interests of the witnesses, orlack thereof, and consistencies, or inconsistencies, in each witness’ testimonyand between the testimonies of the witnesses. In evaluating the testimony ofeach witness, I have also relied on his or her demeanor. Any failure to providedetail as to each witness’ testimony is not to be deemed a failure on my partto have fully considered it. The fact that some evidence is not discussed doesnot indicate that it was not considered. *See Craig v. Apfel,*212 F.3d433, 436 (8th Cir. 2000) (administrative law judge is not requiredto discuss all evidence and failure to cite specific evidence does not mean itwas not considered).

 

Background:

 

Barbara E. Cassidy worked for atotal of 27 years in the mining industry at Matthews Mine, the Mapel CreekMine, and with Consol Energy at the Enlow Fork Mine.[2]Tr. 19, 24-25. She worked at Enlow Fork for 13 years and 2 months as a sectionforeman, which is a salaried management position. Tr. 19. Her duties in thisposition varied from being assigned to a section to being assigned as beltforeman or in charge of transportation. Tr. 19-20. Cassidy’s duties with regardto transportation involved her going underground 30 minutes before the officialstart of the shift and organizing the rides in order to transport crew to theirrespective sections. Tr. 20. In performing these tasks, she communicated withthe shift foreman and assistant shift foreman from the previous shift. Tr. 20.It was her responsibility to ensure that new crews were at their areas beforerelieving the previous crews, as well as that the fire bosses and examinerswere at their examination areas. Tr. 20-21. 

 

 

As section foreman, Cassidy hadnumerous safety responsibilities, including answering safety questions from hercrew and conducting pre-shift examinations.[3] Tr. 27-28. During apre-shift examination, one examines the mine for gases, violations of mandatorysafety standards, and other dangers to ensure safety where miners work andtravel. Tr. 28. The pre-shift examiner then provides notice and warning to theupcoming shift of what they might encounter. Tr. 29. 

 

Cassidy often raised safetyconcerns with management, including to her immediate supervisor, which at thetime was Assistant Mine Foreman David Knipple, and the belt foreman.[4]Tr. 23, 29. There were certain issues that Knipple could not resolve forCassidy, so she would take the matter to one of three assistant mine foremen.Tr. 33. Usually, she would take matters to Assistant Mine Foreman Don Blumetti,because he was the most accessible. Tr. 33. If Cassidy needed to raise an issuewith the top person, she would bring the matter to Mine Foreman MichaelKoffler. Tr. 32, 33. Cassidy was not aware of any company rules concerning howto raise safety concerns or rules against the use of emails to report such. Tr.30.

 

Enlow Fork Mine, where Cassidyworked, is a very large mine, with six active sections, two longwalls, and twoportals. The mine measured a distance of almost 20 miles from the Archer Portalto the Oak Springs bottom, and almost 15 miles to Pleasant Grove Portal. Tr.25, 189-190. On average, it took the G2 crew one hour and 15 minutes to arriveto relieve the previous crew. Tr. 190. Until the fall of 2019, there wereapproximately 512 hourly employees and 275 salaried employees at the mine. Tr.209. Since that time, the numbers have fluctuated significantly. Tr. 209.Cassidy was the first female foreman that Consol ever hired and the only one towork for the company at the time of hearing. Tr. 26. When Cassidy startedworking for Consol, there were six female hourly employees. Tr. 26. 

 

The September 13, 2019 Email:

 

Cassidy was the only foreman incharge of transportation, and several fire bosses had come to her complainingthat there were transportation issues with getting their crews to theirsections. Tr. 34-35. Mine examiners and fire bosses reported to Cassidy that alack of rides impacted their ability to conduct exams and correct violationsobserved during their exams. Tr. 189. Cassidy had emailed Koffler seven monthsprior in February about the lack of rides, and Koffler responded that they werelooking into the matter. Tr. 50. However, after seven months, the problem hadnot been addressed. Tr. 195. 

 

Therefore, at approximately 9:15 amon August 28, 2019, Cassidy went from the Archer to the Pleasant Grove Portalto Koffler’s office to discuss the issue. Tr. 35. Koffler was not in hisoffice, so Cassidy left and returned the following day. Tr. 35. When he wasstill not in his office, she left a note on his desk indicating that she wantedto talk to him about the ride situation at the Archer Portal, and that due toher work schedule the best way to get ahold of her was via email.[5]Tr. 35-36. After a week passed with no response from Koffler, Cassidy triedstopping at his office again, but again he was not there. Tr. 36. Therefore,Cassidy tried to call him by going to the top of the hill where the guard shackwas located, because it was the only place where one could get cellularreception. Tr. 36. She could not reach him, so she left Koffler a voicemail.Tr. 36. In the voicemail, Cassidy stated that she was now on the afternoonshift and asked that he email her to tell her when they could meet to discussthe ride situation. Tr. 36. Another week passed and Koffler still had notresponded, so Cassidy decided to send him an email. Tr. 36-37. 

 

On September 13, 2019, Cassidy sentan email concerning the availability of rides to Koffler. Tr. 34. Cassidy spentthree days drafting the email, including getting input from another sectionforeman, Justin Elliot. Tr. 36-39. Cassidy did not receive a response fromKoffler, so after three days of waiting, she sent the email to Superintendent JoshKoontz[6] and AssistantSuperintendent Scott Watson. Tr. 37, 53. She did so because she felt it was “avery important issue, the emergency ride situation,” and she was concerned thatKoffler had not received the email. Tr. 53-54. Cassidy did not believe that itwas a violation of any rule or policy to send the email to any of theseindividuals. Tr. 54. 

 

In the email, Cassidy raisedseveral safety concerns. Tr. 40-45. She wrote, “I am trying to get through toanyone and everyone that our ride situation is a serious one. We cannot getcrews into their sections. We cannot get outby guys to their places of work.” Ex.R-I, Tr. 40-41. She explained in the letter, “Exams are not being done to thestandard that they should be done because of [the lack of rides]. Also,violations cannot be corrected because these guys spend most of their timebeing the uber for anyone who needs to get from point A to point B. (More thanever before, the violations are not being addressed until the fireboss has gonethrough.” Ex. R-I. Cassidy concluded the email by pleading, “WE NEED TO RECTIFYTHIS. WE NEED HELP!! HELP!! HELP!! PLEASE!!” Ex. R-I.

 

Cassidy testified that hercomplaint concerning fire boss rides was a safety concern because if the firebosses cannot get to a violation, then it cannot be corrected. Tr. 43. Sheprovided the example of fire bosses needing to note the existence of floatdust, which can easily ignite if there is not enough rock dust. Tr. 43. As aresult of the lack of rides, workers are correcting violations and fire bossescannot perform their duties. Tr. 44-45. Cassidy testified that fire bosses weretelling her, “I am not even looking. I am just running. I put the dates wherethey need to go and get the heck out of there because I know I only have a rideto get out.” Tr. 45.

 

In addition to the regular rides,there were supposed to be emergency rides—also called “e-rides”—at the end ofeach track. Tr. 42, 46. The purpose of an emergency ride was to get an injuredor sick individual out of the mine as quickly as possible. Tr. 47. Since therewere two crews that worked in Two South, company policy required that thereshould have been two emergency rides. Tr. 46-47. However, there was only oneemergency ride. Tr. 46. Cassidy testified that the emergency rides were notavailable on her shift or on other shifts. Tr. 42. 

 

Previously, Cassidy had contacted Blumettito ask for a second emergency ride, and the response was that they could dealwith only one for the time being, and that when the track extended further,they would consider supplying a second ride. Tr. 46. This concerned Cassidy,because it was not uncommon for multiple miners to be injured and need rideswithin an hour of one another. Tr. 47. Prior to the September 13 email beingwritten, they had proceeded five blocks—or approximately 1,500 feet—furtherinto the section, which meant that there would have been between 12-40 peopleworking in the area. Tr. 48. 

 

Cassidy testified that she sent theemail “to help rectify the emergency ride situation—actually, the mantripsituation all the way around.” Tr. 49, 184. It was not her intent to go overanyone’s head or embarrass anyone in sending the email. Tr. 49-50. Cassidy hademailed Koffler previously, in February of 2019, concerning the ride shortageand problems with using water instead of antifreeze, because water evaporatesmore quickly. Tr. 50. Koffler replied to her February email by stating that hehad placed Randy Powers in charge of the matter and that they would haveantifreeze. Tr. 50. Though Koffler had replied that he was looking into thematter, the situation had not improved by the time that Cassidy sent theSeptember 2019 email. Tr. 195. Cassidy felt that after seven months they shouldhave seen some improvement, but instead the situation became worse. Tr. 195.She had also emailed Koffler and spoken to him about other safety issues,including a bad route in Three North and issues with high voltage cables. Tr.178. The issues were never fixed, but Cassidy was not suspended or written upfor raising safety concerns. Tr. 178-179.

 

The email was addressed only to Koffler,but Koffler forwarded it to Enlow Fork Human Resources Supervisor Tina Hilk[7]and Watson. Tr. 304-305. There was no rule or policy prohibiting an employeefrom emailing a superior about anything, including safety concerns. Tr. 308. 

 

 

 

 

The September 17, 2019 Meeting:

 

On September 17, 2019, Cassidy wascalled into a meeting with Hilk,Watson,and Koffler. Tr. 56-59. Hilk acknowledged that Cassidy raised safety concernsin her email and said that “the whole thing is alarming.”[8]Tr. 59. Hilk called the meeting after the September email because sheconsidered the issue to be both a safety and a personnel matter. Tr. 306. Hilksaw her role in the meeting as counseling Cassidy. Tr. 307. Hilk also testifiedthat she wanted to make sure Cassidy understood Watson’s response to the issue,but admitted that it was outside the scope of her expertise andresponsibilities since she knew little of mining or mine safety. Tr. 303, 307.

 

Watson tried to explain away thesituation as the fire bosses all wanting their own rides, but Cassidy disagreedwith that interpretation. Tr. 59-60. Watson did most of the talking at the meetingand told Cassidy that she was undermining management. Tr. 60. Cassidy respondedby asking how she was undermining management when she was management. Tr. 60.Watson was concerned about how Cassidy was portraying the issue to the men. Tr.62. Watson asked Cassidy how she was communicating the issue to the otherminers, and she relayed the message that she was taking care of the problem.Tr. 61-62. He also told her that it was important that she provide assurancesto the miners beneath her that it was a safe mine. Tr. 288.

 

Cassidy testified that she sent theemail in order “to bring to the forefront the seriousness of the rides. We weregetting fewer and fewer rides...So, I was not undermining management at all.” Tr.64. Cassidy testified that she did not have any other recourse to address thissituation. Tr. 64. She could not write it in the examination book, because therides were required by company policy rather than by law.[9]Tr. 64, 171-172. Consol was not following its own policy concerning theemergency rides, and she was told to always abide by the most stringentrequirements, whether they were state law, federal law, or company policy. Tr.197.

 

In her email, Cassidy includedproposed solutions, such as using rides that were parked at 22 Headgate andTailgate. Tr. 65. Watson explained to Cassidy that there was a transmission andgear box issue, and that they were addressing it. Tr. 65. Cassidy’s email alsoasked if they could just use other rides from Bailey or Harvey Mine, and heresponded that it was something they were addressing. Tr. 65-66. At themeeting, Koffler said that he was aware of the situation and was working on it.Tr. 66. Cassidy was not convinced that Koffler understood the seriousness ofthe situation because he did not go underground often. Tr. 66-67. She wassurprised to learn they were aware of the situation, yet nothing had been donefor so long. Tr. 67. Cassidy also reminded Koffler that she had tried to callhim, leave him a voicemail, and come to his office, before sending the email.Tr. 67. 

 

Cassidy was told that the emailimplied that the mine was unsafe. Tr. 68-69. She was also told that severallines in her email were unprofessional, including the last line that pleadedfor help. Tr. 184-185; Ex. S-2. During the meeting, Hilk said that Cassidycould bring her concerns to management and that their doors are open. Tr. 69.Watson reiterated this statement at the end of the meeting. Tr. 69-70, 287. 

 

Hilk testified that there was norequired reporting structure at the mine, but there was a general hierarchyabove Cassidy. Tr. 279-280. She stated that Cassidy could have first reportedto the shift supervisor and then the assistant mine foreman, then the assistantsuperintendent, and then the superintendent. Tr. 280. Hilk testified that thischain of command was important in order to get immediate results or feedback.Tr. 280. 

 

Hilk felt that the email concerningthe rides was unprofessional because of the use of capital letters and therepeated use of the word “help.” Tr. 286. Hilk had never worked as a coal minerand had little knowledge of underground mine safety. Tr. 303. She had noresponsibility for mantrips or roof control issues. Tr. 303. Hilk testifiedthat the only way that she was able to determine that Cassidy’s September 13email raised safety concerns was due to the last sentence of the email. Tr.303-304. She testified that she could not tell if the email was safety relatedby its general contents because, “I’ve read the email, but to be honest, I hadno idea what requirements we had in place for rides.” Tr. 304. 

 

The Rib and Roof Bolting Concerns and the November 15,2019 Email:

 

Enlow Fork Mine has rib and roof controlissues. Tr. 72. In 2019, there had been several serious accidents in the mine,including a serious injury in May 2019 and a fatality on August 29, 2019. Tr.70. The fatality occurred when a foreman named Tanner McFarland was leaving thelongwall face at the end of his on-shift exam and an enormous piece of coalbroke loose and crushed him.[10] Tr. 70-72.

 

Cassidy was told there would be atraining session on bolting and was instructed to attend. Tr. 74-79. Knippletold Cassidy before the training, “This is serious. Make sure your guys take itserious and you, too.” Tr. 74. Section Coordinator Frank Panepinto similarlytold Cassidy, “this is a big deal. Make sure you take it seriously.” Tr. 75. However,the session was run by a sales representative who knew little about boltingissues. Tr. 74-79. Several of the miners on Cassidy’s crew asked therepresentative questions about which length of bolt was better, and questionsabout the glue they used, but the representative could not answer them. Tr.75-80. Cassidy wrote down the questions in detail; confirmed with several roofbolters and a maintenance foreman named Mac Meadows that the questions wereaccurate; and on November 19, 2019, she emailed the questions to Koffler,Watson, and Koontz. Tr. 80-81, 83-84, 86; Ex. S‐5. Cassidy CC’d the emailto the people who were with her, including the Section Coordinators Justin Drewand Panepinto, and Assistant Mine Foremen Steve Barr andBlumetti.[11] Tr. 85-86. Cassidy wrotein the first line of the email “I'm not sure who I address about thisinformation. That is why I am addressing all of you...” Tr. 86-87; Ex. S-5.

 

In the email, Cassidy relayed thequestion of why they were not using six-foot bolts, since they already hadthose bolts on the section for the center and rib bolters and they werestronger than five-foot bolts. Tr. 88; Ex. S-5. She raised issues of the60-second glue and the color-coding of stickers when many of the miners statedthat they could not recognize the differences in color. Tr. 88-89; Ex. S-5. Shealso raised issues regarding the bolt sled and how bolts were stored, as wellas the possible effectiveness of alternate bolting patterns. Tr. 90. Cassidybelieved that the email implicated mine safety because there was a recentfatality caused by being crushed by coal, and she was raising questionsconcerning more effective bolts and bolting. Tr. 92-93. Cassidy did not thinkthat this email would be a problem because at the September meeting, she wastold that she could email them anytime and their doors were always open. Tr.94. Cassidy never recorded the issue of five-foot bolts being used instead ofsix-foot bolts because she was not aware of it violating any laws. Tr. 173.Only safety violations that violated the law would be recorded in a pre-shiftbook.[12] Tr. 174. Questions abouta training at the mine would not be included in a pre-shift examination. Tr.188. A pre-shift examination record is not the appropriate place to ask questions.Tr. 188.

 

Barr and Blumetti were sitting atthe foreman’s table at approximately 6 pm on the day they received the email,when Barr talked to Cassidy, asking her why she didn’t talk to him or Blumettiabout the roof bolt matter.[13] Tr. 95, 97. Blumettirepeatedly questioned why she had email access underground. Tr. 95. Barraddressed the issue of the six-foot versus the five-foot bolts, explaining thatthey preferred the five-foot bolts because they were less likely to result in aspinner.[14] Tr. 95-96. Barr alsoemailed Cassidy a reply, where he acknowledged that the six-foot bolts werestronger, but addressed the issue of spinners with six-foot bolts. Tr. 98; Ex.S-6. No one said that anything in Cassidy’s email was inappropriate. Tr. 100. 

 

The November 18, 2019 Meeting:

 

Three days after Cassidy sent theemail, on November 18, 2019, Cassidy arrived to work and asked Knipple if shecould leave on time that day for an emergency root canal, and he repliedaffirmatively. Tr. 101. When she was leaving work at approximately 8 am, thecomputers were down and she could not enter the shift’s final numbers. Tr. 101.Cassidy tried six different computers before Assistant Shift Foreman AdamDeVault told her that none of them were working. Tr. 101. She wrote the numbersdown on paper and as she was handing them to DeVault, Watson approached her andsaid that he needed to see her before she left. Tr. 102. On her way up toWatson’s office, Cassidy passed Hilk’s office, and Hilk said that Watson neededto see her. Tr. 102. Cassidy asked Hilk if she could postpone her meeting withWatson because of her emergency dentist appointment, and Hilk left for 20minutes to inquire. Tr. 102-103. 

 

Cassidy was led to a largeconference room with Hilk and Watson. Tr. 104-105. Hilk sat across the table,and Watson sat very close to Cassidy. Tr. 105. Hilk was taking notes throughoutthe meeting and said little. Tr. 112. Watson had a thick file, with Cassidy’semail on top, which was highlighted and annotated. Tr. 106. He referred to thefile and when Cassidy tried to look at it, he said that she was not permittedto see it. Tr. 106. Cassidy described Watson’s demeaner as, “absolutelyirritated. He was beyond irritated. He was very, very upset. He was shaking.His voice was cracking. He was...loud.” Tr. 106. Cassidy described Watson as“demeaning...condescending...He seemed—he had had enough. He had way more thanenough.” Tr. 106. During the meeting, Watson was yelling at Cassidy.[15]Tr 107. Cassidy indicated that this was quite out of character for Watson. Tr.106. She felt that his sitting so close to her, his anger, and hiscondescension were intimidation tactics. Tr. 107.

 

Watson told Cassidy that she “did itagain,” in sending the email. Tr. 109. He asked Cassidy if she realized whatshe had done with her email, and stated that he was tired of cleaning up hermesses. Tr. 107. When she tried to answer him, Watson refused to let her talk.Tr. 107. Watson said that her email was on the G drive and that it was “verydamning to us.” Tr. 108. He said that the email went to the lawyers, the gasoperations, corporate, the engineers, and the surveyors.[16]Tr. 110. He asked her if she was an advocate for the production and maintenancemen and she felt that he needed her to respond that she wasn’t. Tr. 108. Watsonmentioned the fatality and asked her if she thought that they were doingsomething to prevent it from happening again. Tr. 108. Watson said that Cassidywas undermining management, and she replied she did not understand thataccusation since she was a member of management. Tr. 109. 

 

Hilk testified that she found the Novemberemail unprofessional because it was sent to numerous people and because of thetiming after the fatality. Tr. 289-290, 312-314, 318. She also felt that theemail was unprofessional because it did not include Knipple, even though Knippledid not have control over the roof control plan at Enlow Fork, and because itwas not a productive way to get an answer, even though Cassidy received aprompt answer from Barr and Blumetti. Tr. 311. Hilk also testified that Cassidywas not disciplined as a result of the email. Tr. 293. 

 

Cassidy estimated that the meetinglasted for approximately 30 minutes. Tr. 111. At the end of the meeting, Watsonsaid, “now you can talk.” Tr. 111. Cassidy explained that people had questionsand they did not know to whom they should ask these questions. Tr. 111. At theend of the meeting, Watson asked Cassidy, “you know what I want to hear,right?” Tr. 113. Cassidy responded that she would tell him what he wants tohear, that she would “never send an email to any of you as long as I live everagain.” Tr. 113. He responded that “that’s exactly what I want to hear.” Tr.113. After the meeting, Cassidy felt embarrassed because she did not feel thatshe had done anything wrong. Tr. 113. She also felt that she was notundermining management because she was management and was just askingquestions. Tr. 114. 

 

The December 12, 2019 Incident:

 

Knipple was Cassidy’s shiftforeman, which is usually her immediate supervisor. Tr. 115. He served in thiscapacity since March 2018. Tr. 115. She recalled that the first time she methim was during a typical Tuesday afternoon group meeting. Tr. 115. She noticedsomeone that she did not know among the 16-18 people gathered so she attemptedto introduce herself. Tr. 116. Knipple did not respond to Cassidy. Tr. 115-116.He got close to the table and leaned in more, so Cassidy tried again, saying,“Hello, who are you?” Tr. 116. Knipple again did not respond, so Cassy tried athird time, saying, “Hello, what is your name?” Tr. 116. At that point, Knipple“spun around to his right, which is where I was standing and he didn’t evenhave eye contact, and said, ‘I don’t talk to women,’ and went back.” Tr. 116.The room erupted in laughter at this response to her.[17]Tr. 116. Cassidy was the only woman in the room, which in her experience wasquite common. Tr. 117.

 

On the midnight shift on December12, 2019, Cassidy was sitting at the foreman’s table with six other foremenfilling out her examination paperwork when she saw Tim Domico go into the shiftforeman’s office. Tr. 118. When Knipple came out of the office, Cassidy askedhim where Domico was, and he responded that Domico was in his office. Tr. 119.Cassidy asked why he was there, and Knipple responded that Domico would beconstruction foreman. Tr. 119. Cassidy inquired why he was construction foremanand not her. Tr. 119. Knipple responded that she was going to G2 because shewas good on section. Tr. 119. Cassidy replied that she was good at everythingshe does, and Knipple responded that he needed her on section. Tr. 119. 

 

The construction foreman serves asthe second person in charge of the shift, and Cassidy felt she should have beenchosen based on her experience. Tr. 123. Domico had not been to the ArcherPortal for several months, and that portal had gone through a lot of construction,and Cassidy had more coal mining and foreman experience than Domico, so Cassidybelieved that she knew the job better than Domico. Tr. 123-124. Cassidytestified that it appeared that Knipple “went out of his way to pull Domicofrom Pleasant Grove Portal to bring him over to Archer when he already hadsomeone that could do that, and that definitely would have been me.” Tr. 124.Cassidy also had safety concerns about Domico being assigned to the Archer Portalbecause it had approximately 40 people spread out working on it, and Domico wasless experienced. Tr. 124-125. 

 

Cassidy asked for a furtherexplanation of why she was again not chosen to be construction foreman. Tr.119. Cassidy testified that Knipple never allowed her to be in a constructionor shift foreman position, even though other shift foremen assigned her tothose positions. Tr. 122. She had asked him seven previous times in privateabout this issue, and he never provided her a reason. Tr. 122. Cassidydescribed the conversation as loud, but testified that she did not use anyobscene language, call him any names, make any physical gestures at him, or slamher hand on the table. Tr. 120-121. At the time, she needed surgery on her leftshoulder and she was holding a pen in her right hand, so many of these thingswould have been impossible. Tr. 121. Cassidy remained seated throughout theentire conversation. Tr. 121. However, Cassidy admitted at hearing that heryelling at Knipple was unprofessional. Tr. 155. Following the conversation,Cassidy went to the G2 section on that shift, where she did the work that wasassigned to her. Tr. 127. 

 

Knipple testified that Cassidy hadscreamed at him concerning his selection of foremen, and that she would notcalm down. Tr. 355-356. He described the incident as “humiliating.” Tr. 356.Knipple testified that he had never been spoken to in that manner by any of hisforemen. Tr. 357-358. Knipple wrote up the incident to Koffler and Koffler tookit to Human Resources. Tr. 358. Knipple said that a year after the incident,miners beneath him are still making fun of him and making comments about it.Tr. 358. 

 

Cassidy described such altercationsat the mine as “a regular occurrence.” Tr. 127-128, 167. In her years ofexperience at Enlow Fork, other miners have had similar altercations withforemen and supervisors and she was not aware of any being suspended ordisciplined as a result. Tr. 128, 130. She described the mine as having a lotof “screaming and yelling.” Tr. 128. Cassidy testified that it was common frommanagement to let incidents like this go without further discipline. Tr. 129.She recalled an instance when she was at the Sparta Portal and Blumetti, whowas section coordinator, would “pounce on me on day shift when I came outside.”Tr. 129. She was not aware of Blumetti ever being disciplined for theseactions.[18] Tr. 129. In one of herfirst experiences at the mine, she heard a door slam down the hallway and adesk and chair going across the room. Tr. 130. She described the stresses ofproduction and constant demands leading to this environment. Tr. 131. Hilkdescribed the mine as a stressful environment because of the conditions, longhours, and safety concerns. Tr. 266.

 

Cassidy denied that she was tryingto embarrass Knipple in front of his peers. Tr. 168, 186. During the hearing,Respondent’s counsel repeatedly asked Cassidy if she had “emasculated” Knipple,which Cassidy denied. Tr. 198. Respondent’s counsel further suggested that“even though it is your perspective you didn’t do that, you would agree that ithad that effect on him in the mine, didn’t it?” Tr. 198.

 

The December 19, 2019 Meeting and Cassidy’s Suspension:

 

Koontz testified that he firstheard about the incident when a foreman named Bill Bentz[19]approached him and told him about it. Tr. 214-215, 233. Koontz testified thatBentz had described it as the worst that he had ever seen someone talk to asuperior at Consol, and relayed what he had witnessed to him. Tr. 214-216.Koontz asked Bentz to write down the details of the incident and he wouldaddress it. Tr. 216. Koontz then went to Hilk and said he wanted to start aninvestigation into the incident and wanted everything documented. Tr. 216-217.He told her to interview everyone who was present. Tr. 235.

 

Hilk testified that she first heardabout the incident between Cassidy and Knipple when Koontz told her about it.Tr. 295, 324. Shortly after, Bentz came and told Hilk about the incident. Tr.296. Bentz told her that Cassidy started screaming at Knipple about the factthat he had assigned another supervisor to a role for which she felt she wasmore qualified. Tr. 296. Hilk testified that Bentz told her that Cassidy wasyelling and pointing at Knipple. Tr. 296.

 

After Hilk recorded Bentz’saccount, she went to speak to Knipple. Tr. 297. Knipple said, “that’s Barbbeing Barb,” and Hilk told him that it was unacceptable. Tr. 297. Hilk askedKnipple for his firsthand account and he relayed it to her. Tr. 297. During thecourse of her investigation, Hilk only included one written statement in theinvestigative file, and it was from Knipple. Tr. 324. She also received averbal account from Bentz. Tr. 324. Hilk asked Bentz to provide her a record ofwhat occurred and he turned in a typed copy. Tr. 324. Hilk asked Bentz to handwrite the statement, and she does not recall ever receiving it back. Tr. 324.Knipple submitted a typed statement because he was concerned about hishandwriting. Tr. 324-325.

 

Koontz testified that he was notcertain how many statements were actually collected, because he never reviewedthem. Tr. 236. He testified that he “actually talked to some of the otherpeople that were in the room, that were down the hallway, and there were somehourly people that I remember that came to talk to me that asked me what wasgoing on that week.” Tr. 236. However, he did not document any of thoseconversations. Tr. 236-237. He was uncertain if there were any statementsbeyond Knipple’s. Tr. 237. Koontz never spoke to Cassidy about the incident.Tr. 238. He testified that he believed that Human Resources talked to Cassidy,but did not know if that was included in the file. Tr. 238. Hilk testified thatshe did not speak to Cassidy about the incident until the December 19thmeeting when they had the suspension letter in hand because Cassidy was onvacation. Tr. 297. Hilk contacted Cassidy twice during her vacation, but it wasin reference to signing an ethics form. Tr. 329. During those conversations,she did not mention the investigation. Tr. 330.

 

Koontz testified that he never readany statements, and relied only on his verbal conversation with Bentz anddiscussions with the Human Resources group. Tr. 239. Based on what Bentz andothers reported, there was no physical contact between Knipple and Cassidy. Tr.234. There were no allegations that Cassidy used profanities or called Knippleany names. Tr. 234.

 

A few days after the incident,Koontz went to talk with Knipple because “some of the guys underground weresaying that Dave got profanity slapped by Barb, like using that terminology.”[20]Tr. 218. Koontz had heard that Knipple was very embarrassed and was strugglingwith what had happened. Tr. 218.

 

There were four people involved inthe decision to suspend Cassidy: Superintendent Josh Koontz, Vice President of OperationsEric Schubel, Human Resources Supervisor Tina Hilk, and Director of HumanResources Erica Fisher. Tr. 221-222, 253. Koontz had a series of conversationswith Schubel, with Schubel telling Koontz to gather all the facts and detailsrelated to the Knipple incident. Tr. 254. Koontz in turn delegated thatresponsibility to Hilk. Tr. 254. Hilk sent to Schubel or Fisher all theinformation, but Koontz was not certain what was included. Tr. 255. Koontz couldn’trecall if anyone spoke to Cassidy, but said that “all stories aligned. It wasthe same story that I heard from that morning and, you know, that is thedirection we went.” Tr. 255. When Koontz first heard what happened, he wantedto terminate Cassidy, but since she had never been suspended before, it wasdecided instead that she would receive a 10-day suspension. Tr. 222.

 

After the incident with Knipple,Cassidy worked one more shift and then went on vacation for 19 days, untilJanuary 2, 2020. Tr. 133. In the days after the incident, no one frommanagement told Cassidy that there was an investigation. Tr. 131. Hilk calledCassidy at home the following Monday and told her to report to work for dayshift on January 2. Tr. 132. Cassidy was scheduled to go in at midnight thatnight and asked why she was being switched. Tr. 132. Hilk responded that therewould be a meeting about what happened with Knipple. Tr. 132. Cassidy asked ifshe would still be working the midnight shift that evening, and Hilk replied thatshe would and told her to be dressed and ready for work. Tr. 132. 

 

The following day, Hilk calledCassidy and told her that she had not filled out the code of ethics form thatis required by every foreman. Tr. 132. Cassidy explained that she had tried todo so on the computer, but no one had been able to download the document. Tr.132. Hilk told her that she needed her to come in to fill out a hard copy, andCassidy replied that she would be there on Thursday to pick up the Christmasham that Consol distributed to employees. Tr. 132. Hilk responded that thatwould be alright. Tr. 133. Hilk never stated that there would be anydiscipline. Tr. 134. 

 

Cassidy returned to the mine onDecember 20, 2019, to pick up her Christmas ham and fill out the ethics form.Tr. 135. Cassidy went to the warehouse, and Hilk told her to go upstairs tofill out the ethics form. Tr. 136. After Cassidy signed the form, Hilk left theroom and said that she would be right back with Koontz. Tr. 136. Cassidyreplied that she thought that meeting would not be happening until January 2,but Hilk insisted that they would be having the meeting at that moment. Tr.136. Cassidy stated that she was not prepared for the meeting and that she hadsomewhere else she had to be very soon. Tr. 136-137. 

 

Hilk returned with Koontz andWatson. Tr. 137. Koontz read Cassidy the suspension letter, which firstdiscussed the September email and subsequent meeting, then discussed theNovember email and subsequent meeting, and then the December incident withKnipple. Tr. 137, 145; Ex. S-9. When Cassidy arrived at the meeting on December19, 2019, the decision to suspend her had already been made. Tr. 330.

 

Cassidy described being in shockthat she was being suspended for the two emails and for yelling at Knipple. Tr.137; Ex. S-9. Koontz stated that he had things going on at home, things at themine, and the fatality to deal with, and that he did not have to deal withCassidy. Tr. 137-138. He also told Cassidy that he knew that she was callingthe state or MSHA about situations at the mine, and Cassidy replied that shehad never done that. Tr. 138. He replied that “I know it’s you, I just can’tprove it.”[21] Tr. 138. He said thathis boss wanted him to terminate Cassidy, but that he wanted to give her onemore chance. Tr. 138. 

 

The suspension letter stated infull:

 

Dear Mrs. Cassidy,

 

On September 27,2019, you met with Scott Watson, Assistant Superintendent, Mike Koffler,General Mine Foreman, and Tina Hilk, Human Resources Supervisor regarding an emailyou sent members on our management team regarding the ride situationsunderground. During that conversation you were told the appropriate means ofwhich to address any concerns and professionalism was discussed.

 

On November 18, 2019you again met with Scott Watson and Tina Hilk regarding another email you hadsent to various extended members of the management team. You were again told ofthe appropriate means of which to address any concerns and expectations wereclearly defined as to your role on the management team.

 

On December 12,2019, you behaved in a disrespectful and disruptive manner towards your shift foremanwhile he was attempting to explain to you your work assignment. Specifically,you slammed your hand on the table, pointed your finger and screamed at him. Hecautioned you to calm down, yet you continued to scream so loudly that it wasdisruptive to everyone in the area.

 

By this letter, Iwill also clarify my expectations of you. First, as a member of management, youare expected to abide by the same standards that we hold our hourly employees.Second, you must present any justified criticisms or comments in a sensitive,courteous and respectful manner. This means focusing on becoming a moreprofessional team player. Professionalism is an essential component of yourposition in all aspects of your work with others.

 

In summary, I alwaysexpect you to act professionally, to work well with your coworkers, yoursupervisor and myself and to appropriately represent mine management.

 

Your disrespectfuland disruptive conduct will not be tolerated. To impress on you the seriousnessof your misconduct, you are being placed on a ten (10) day unpaid suspension,effective January 2, 2020. You are to report back to work on January 16, 2020,for your regularly scheduled shift. Your pay will be reduced by $2132.52 onyour paychecks dated January 17, 2020 and January 31, 2020. Be advised that anyfurther misconduct will result in disciplinary action up to and includingdischarge.

 

Regards, 

Josh Koontz

GeneralSuperintendent

 

Ex. S-9. 

 

Though Koontz signed the suspensionletter, he did not write it. Rather, Hilk and the human resources team wroteit. Tr. 211-212, 241-242; Ex. S-9. Koontz testified that he suspended herbecause of the outburst she had with Knipple, including “the mannerisms andthings that happened that night.” Tr. 212. Koontz explained in testimony thather behavior was in violation of Employee Conduct Rule Number 4, which coversinsubordination.[22] Tr. 213; Ex. R‐H.However, nowhere in the suspension letter does it state that Cassidy violatedemployee conduct rule 4 or anything about insubordination. Tr. 250. Hilktestified that the reason for the suspension was not based on Cassidy allegedlyslamming her hand, but only the way she had spoken to her supervisor. Tr. 328-329.

 

Koontz testified he was aware ofthe bolt email, but not of the other one concerning rides. Tr. 242. However, inthe suspension letter that Koontz signed, read to Cassidy, and presented toher, it referred to this email. Tr. 243. When Koontz read Cassidy’s emailconcerning the ride situation, he did not think it was unprofessional. Tr. 247.Similarly, he did not believe that the roof bolt email was unprofessional. Tr.247. Koontz acknowledged that the suspension letter referenced the emails asunprofessional, but Koontz said that Human Resources decided to includereferences to the emails. Tr. 249. There is no rule preventing someone fromemailing a superior about these issues. Tr. 247. 

 

Koontz testified that the reasonfor the suspension was reflected in the contents of the letter, but insistedthat it was only because of what had transpired between Cassidy and Knipple.Tr. 219-220. He further testified that the two meetings referenced in theletter were in no way connected to the suspension. Tr. 220-221. Hilk alsotestified that Cassidy’s suspension was only because of the incident withKnipple, and not because of her September or November emails. Tr. 298-301. Shetestified that she included the references to the two meetings that Cassidy hadconcerning the emails because she felt that “it was important to show thatBarbara had had [sic] recently been counseled on unprofessionalism by sendingthe emails.” Tr. 301. 

 

Hilk testified that she based the10-day suspension on past discipline for an incident similar to Cassidy’s. Tr.302. Cassidy was originally going to receive a three-day suspension, but Hilktestified that she changed it based on a single disciplinary letter that shefound in another file. Tr. 338-339. Hilk wrote to Erica Fisher that shehappened to come across a 10-day suspension from 2014 for another employee inthe personnel files, and that Cassidy should receive a similar suspension. Tr.332-333; Ex. R-R. However, at hearing, Hilk stated that she did not find it bychance, but knew it existed and searched for it. Tr. 332-333. The 2014 incidentwas prior to Hilk working at Enlow Fork and she had no personal knowledge ofthe incident. Tr. 333-334. The 2014 letter states that the employee violated EmployeeConduct Rule Number 4. Tr. 334; Ex. R-R.

 

Koontz asked Cassidy if she hadanything to say, and Cassidy hung her head and shook it to indicate that shedid not. Tr. 138. Hilk encouraged Cassidy to respond, and Cassidy said, “youknow I am not a slug. You know I give you 150 percent every day. I am anemployee who cares.” Tr. 139. Koontz replied that no one was questioning herabilities, but how she went about her work. Tr. 139. Cassidy tried to explainwhy Domico should not have been in charge and the reasons that she yelled atKnipple, but Koontz responded, “there you go undermining management again.” Tr.140. After being told twice to “just sign” the letter, Cassidy signed it. Tr.139-140. 

 

After Koontz left the room, Cassidyattempted to correct some of the errors in the letter with Hilk. Tr. 139. Amongthe errors was an incorrect date of the September meeting, which stated thatthe email meeting took place on September 27, however it actually took place onSeptember 17. Tr. 143-144; Ex. S-9. Additionally, Cassidy stated that she didnot slam her hand or point her finger at Knipple. Tr. 139. Hilk responded that“we have witnesses.” Tr. 139. Cassidy replied again that she did not do thosethings, but she was not aware that she needed witnesses at that moment. Tr.139. Cassidy also testified that while she may have raised her voice so that itwas yelling, she was not screaming. Tr. 146. She also stated that there werefew people around and that her voice was not disruptive. Tr. 146-147. Theletter stated that Cassidy was not professional. Tr. 147.

 

Neither Koontz nor anyone else inthe investigation ever interviewed Cassidy about the incident, but testifiedthat Cassidy had an opportunity to present her side during the suspensionmeeting after the letter had been printed and read to her. Tr. 240-241, 325.Hilk told Cassidy that if she had anything to say, now was the time, buttestified that Cassidy did not defend herself. Tr. 325. However, Hilk’scontemporaneous notes of the meeting state that Cassidy “disputed the fact thatshe slammed her hand and pointed at him.” Tr. 325-327; Ex. R-X. Hilk testifiedthat she disregarded the statement because she had two eyewitnesses that saidCassidy did those things. Tr. 327.

 

After the meeting, Cassidy wasembarrassed and ashamed and described having suicidal thoughts. Tr. 150. Thesuspension was described as being for 10 days, but Cassidy said that it wasactually for 14 days. Tr. 151. When Cassidy told Hilk about this discrepancy,Hilk responded that the 10 days was not inclusive of weekends. Tr. 151. Cassidyreplied that she worked weekends, and that as a foreman she was only entitledto one weekend off per month. Tr. 151. Cassidy was not paid for the 14 daysthat she was suspended. Tr. 151-152. 

**CONTENTIONS OF THEPARTIES**

 

            Following the hearing, the Complainant andRespondent submitted briefs and reply briefs in support of their respectivepositions. The Secretary argues that Cassidy engaged in protected activity whenshe emailed safety concerns to upper management, and that Respondentdiscriminated against Cassidy when it counseled her after each of the emailsand then suspended her for ten days without pay. The Secretary argues that themeetings were not to address the concerns in the emails, but rather weredisciplinary counseling session, which is why the meetings were referenced inthe suspension letter. *Sec’y Brief*at 20. 

 

The Secretary further argues thatall the indicia of discriminatory motivation were present. Much of uppermanagement was aware of Cassidy’s emails either from when she sent the emailsto them or by reading the suspension letter. The Respondent showed animustoward the protected activity by referencing the emails in the suspensionletter, by counseling her after each email, by conducting a “sham investigationof the Knipple incident,” and by holding a surprise suspension meeting. *Id.*at 21-25. Respondent further showed animus when the mine superintendent accusedCassidy of contacting state or federal authorities about safety issues. *Sec’yReply Brief* at 7-8. The Secretary argues that there was a close proximityin time between Cassidy’s protected activities and the suspension, with theemails being sent in September and November, and the suspension in December.Cassidy further suffered disparate treatment since verbal altercations at themine were not uncommon and rarely led to disciplinary action. Lastly, Secretaryargues that the Respondent failed to rebut the *prima facie* case byproving that its adverse actions were in no way motivated by Cassidy’sprotected activity. 

 

As remedy, the Secretary arguesthat this Court should award back-pay wages for the ten-day suspension, plusinterest, as well as lost employer contributions to Cassidy’s 401(k) account.Furthermore, the Secretary has proposed a civil penalty of $15,000 for theviolations in this case.

 

The Respondent argues that Cassidydid not engage in any protected activity and suffered no discrimination. In itsbrief, it argues that Cassidy “screamed at and emasculated her supervisor infront of her co-workers,” which amounted to a “verbal assault,” and wassuspended as a result. *Resp. Brief* at 1-2. Respondent argues that theride and bolt issues that Cassidy included in her emails were not safety issuesbecause they were not violations of law. It described Cassidy’s request forhelp in her September email as her “frantically shouting,” and that she had an“unhinged tone” in the November email. *Resp. Reply Brief* at 1-2.Furthermore, issues that Cassidy raised only involved miner convenience, andnever implicated a safety concern. Respondent contends that it suspendedCassidy solely as the result of the incident with Assistant Mine Foreman Knipple.

 

**ANALYSIS**

 

Section105(c)(1) of the Mine Act provides that a miner cannot be discharged,discriminated against, or otherwise interfered with in the exercise of herstatutory rights because she “has filed or made a complaint under or related tothis Act, including a complaint notifying the operator or the operator’s agent,or the representative of the miners at the coal or other mine of an allegeddanger or safety or health violation in a coal or other mine,” or “because ofthe exercise by such miner...of any statutory right afforded by this Act.” 30U.S.C. 815(c)(1). 

 

In order toestablish a *prima facie* case of discrimination under Section 105(c)(1),the Secretary on behalf of a complaining miner must produce evidence sufficientto support a conclusion that the miner (1) engaged in protected activity, (2)suffered an adverse action, and (3) the adverse action was motivated at leastpartially by that activity. *See Turner v. Nat*7 *Cement Co. ofCalifornia, *33 FMSHRC 1059, 1064 (May 2011); *Sec'y of Labor onbehalf of Pasula v. Consol Coal Co.,* 2 FMSHRC 2786, 2799(Oct. 1980), *rev'd on other grounds* 663 F.2d 1211 (3d Cir.1981); *Sec'y of Labor on behalf of Robinette v. United CastleCoal Co.,* 3 FMSHRC 803, 817-18 (Apr. 1981). 

 

Theoperator may rebut the *prima facie* case by showing either that noprotected activity occurred or that the adverse action was in no part motivatedby the protected activity. *Driessen v. Nev. Goldfields, Inc.,*20 FMSHRC324, 328-29 (Apr. 1998); *Robinette,*3 FMSHRC at 818 n.20. The operatormay also defend affirmatively by proving that the adverse action was in partmotivated by unprotected activity of the miner, and that it would have takenthe adverse action based on the unprotected activity alone. *Driessen,*20FMSHRC at 328-29 (citing *Robinette,*3 FMSHRC at 817; *Pasula,*2 FMSHRCat 2799-2800). The operator bears the burden of proof for the affirmative defense.*Pasula,*2 FMSHRC at 2800.

** **

**I.         ****Protected Activity:**

 

The evidence presented in this caseshows that Barbara Cassidy engaged in multiple protected activities. As will bediscussed below, both of Cassidy’s emails constituted safety complaints, whichthe Commission has described as “paradigmatic ‘protected activity’ within themeaning of section 105(c)” *Sec’y of Labor obo JeremyJones v. Kingston Mining, Inc*., 37 FMSHRC 2519, n. 3 (Nov. 2015). Additionally,the accusations that Cassidy made reports to MSHA or the state—whether or not thosecomplaints were actually made—constitute protected activity. Lastly, theinteraction with Knipple, though loud and perhaps tinged with anger or hurt,involved safety concerns and therefore also constitutes a protected activity. 

 

On September 13, 2019, Cassidy sentan email concerning the availability of rides to Mine Foreman Michael Koffler.[23]Tr. 34. She sent the email after several fire bosses had come to her andcomplained that the lack of rides impacted their ability to conduct exams andcorrect violations observed during their exams. Tr. 189. Furthermore, the rideshortage meant that the Two South Section had only one emergency ride for twoseparate working crews, which would pose a significant problem if the needarose to quickly evacuate sick or injured miners in an emergency. Tr. 40-42,46-47. These shortages violated Consol’s internal policies. Tr. 64-65. In theemail, Cassidy referred to the ride shortage as a “serious” problem, andexplained that as a result, “exams are not being done to the standard that theyshould be done.” Ex. R-1. Cassidy believed the email raised safety concernsbecause if the fire bosses could not get to a violation, the violation couldnot be corrected. Tr. 43. Indeed, the final line of the email, which stated,“WE NEED TO RECTIFY THIS. WE NEED HELP!! HELP!! HELP!! PLEASE!!” was a plea forhelp due to an ongoing safety issue. Ex. R-1.

 

Others in management viewed theSeptember email as one that raised safety issues. Though Human Resources SupervisorTina Hilk testified that she felt the last line that plead for help was“unprofessional,” she also stated that due to her lack of knowledge of minesafety, the only reason she knew Cassidy’s email concerned safety was preciselybecause of the last line. Tr. 286, 303-304. In the meeting following the email,Hilk acknowledged the safety issues raised in the email and called thesituation “alarming.” Tr. 59. Assistant Superintendent Watson also viewedCassidy’s email as encompassing safety and said as much when he told Cassidythat he viewed her email as implying that the mine was unsafe. Tr. 69.

 

Consol repeatedly told Cassidy thatit had an “open door policy,” but this appeared to be little more than an emptyslogan. Tr. 69, 94, 230, 287. Cassidy tried multiple ways of relaying theproblems associated with the ride shortages. She had sent an email seven monthsearlier making the same safety complaint, but upper management did nothing exceptprovide Cassidy assurances that they were looking into the matter. Tr. 50, 195.After the problem persisted and Cassidy continued to receive safety complaintsfrom the fire bosses, she went to Koffler’s office to discuss the issue onAugust 28, 2019. Tr. 35. Koffler was not in his office, so Cassidy returned thefollowing day. Tr. 35. He was not there again, so she left a note stating thatshe wanted to talk to him about the ride situation and asked that he email her.Tr. 35-36. After a week of not receiving a response, Cassidy tried stopping byhis office again, but to no avail. Tr. 36. So, Cassidy went to the only spot atthe mine where she could get cell phone reception and called Koffler and lefthim a voicemail indicating that she needed to talk to him about the ridesituation. Tr. 36. After a week without response, Cassidy sent the email atissue to Koffler. Tr. 36-37. Then, after waiting three days without anyresponse, she forwarded the email to Superintendent Koontz and AssistantSuperintendent Watson. Tr. 37, 53. 

 

Respondent argues that the “availabilityof rides is a matter of convenience and was not a safety or legal issue.” *Resp.Brief* at 4. In support of this position, Respondent significantly misstatesthe record.[24] Respondent cites to page42 of the transcript in stating that it was simply a matter of convenience, butthis page states nothing of the sort. In fact, Cassidy’s testimony captured onpage 42 concerned the necessity for emergency rides, stating, “I asked themwhat about the guy that gets hurt, how do you get them out of there. That isalways a concern of mine because I’ve been in a lot of emergency situations.”Tr. 42. This testimony is a paradigmatic safety concern.[25]Similarly, Respondent misstates the meaning of Cassidy’s testimony on page 69,by saying she “admitted that she was not communicating that the mine was‘unsafe;’ rather, she used her email to get their attention.” *Resp. Brief*at 5. Cassidy’s testimony captured on page 69, as well as the pages thatpreceded it and the email itself, explicitly stated that she viewed the rideshortage as a safety concern. Tr. 34-35, 40-41, 44-48, 53-54, 189, 195; Ex. R-1.On page 69, Cassidy was simply stating that she denied Watson’s statement thatthe email implied that the mine was unsafe. There is a vast difference betweenstating that the email did not imply that the mine was unsafe and concludingthat there were no safety concerns raised. Furthermore, Cassidy did not testifythat “she used her email to get their attention,” *Resp. Brief* at 5, butrather to get their attention about “what is going on.” Tr. 69. Respondentselectively quotes Cassidy to portray her as an attention-seeker, when in factshe was trying to bring attention to a safety problem, which is in the natureof a safety complaint.

 

Respondent also attempts to arguethat Cassidy’s email was not professional because the final line pleading forhelp was in all capital letters, which Respondent characterizes as her“yell[ing] at the recipients,” *Resp. Brief* at 5, or that she “franticallyshouted.” *Resp. Reply Brief* at 2. However, capital letters do notconstitute a “yell” and this Court is not going to hold that a miner’s plea forhelp in addressing a serious safety problem is nullified because they used toomany capital letters.

 

Ultimately, Respondentmisunderstands the law governing miner health and safety when it repeatedlyargues that because the ride shortage did not violate the Mine Act orregulations, then it cannot constitute a safety complaint. *Resp. Brief*at 8. The law does not require that a health or safety complaint involve aviolation of a mandatory safety standard or other law, and the Commission hasnever required such a narrow reading.[26] The Commission has madeit clear that “the Mine Act grants miners the right to complain of a safety orhealth danger or violation.” *Bryce Dolan v.**F &**E ErectionCo.*, 22 FMSHRC 171, 177 (Feb. 2000). In discussing whether a work refusalbased upon a safety concern—a right not explicitly mentioned in Section 105—isprotected activity under the Mine Act, the Commission and Courts have explainedthat there must be a subjective good faith belief by the miner of a hazardouscondition. *See**Secretary of Labor on behalf of Robinette v. UnitedCastle Coal Co.,*3 FMSHRC 803, 812 (April 1981); *accord Gilbertv. FMSHRC*, 866 F.2d 1433, 1439 (D.C. Cir. 1989). It would be contrary tothe purpose of the Mine Act to circumscribe a miner’s right to make a safetycomplaint more than a miner’s right to engage in a work refusal. (*See e.g. MSHA obo Sean Miller v. Savage Services Corporation*, 37 FMSHRC 936, 946 (April 30, 2015). (The Court cited *Robinette*to find “that each of Miller's six safetycomplaints constituted protected activity because they were based on Miller's“good faith, reasonable belief in a hazardous condition.”) This isconsistent with Congress’ intent that the scope of protected activity bebroadly interpreted to “assure that miners will not be inhibited in any way inexercising any rights afforded by the legislation.” S. Rep. No. 181, 95thCong., 1st Sess. 35-36 (1977), *reprinted in*Senate Subcommittee onLabor, Committee on Human Resources, 95th Cong., 2d Sess., *LegislativeHistory of the Federal Mine Safety and Health Act of 1977*, at 623-24(1978). 

 

For similar reasons, Cassidy’s November15, 2019 email constituted protected activity. Enlow Fork Mine had rib and roofcontrol issues, which led to the death of a miner several months earlier whenan enormous piece of coal crushed miner Tanner McFarland. Tr. 70-72. Cassidy describedthe mood among miners as them feeling that such an accident “could happen—thatcould happen to anyone...All of us felt that. It could happen to anyone at anytime. And it was horrible. It was absolutely horrible.” Tr. 72. Multiplewitnesses testified that, even several months after the death, it was a verysensitive and “very difficult time for everybody.”[27]Tr. 224-225, 316, 318. It was in this context that the operator was preparing anumber of changes to its roof and rib control plan to allow it to resumemining. Tr. 72-73, 224. 

 

During this time, Cassidy and hercrew were instructed to attend a training by the mine’s roof and rib boltsupplier and Cassidy was told by numerous supervisors that she and her crewmust take the training seriously. Tr. 74-75. During the training, several ofthe miners on Cassidy’s crew asked questions about bolting, which the trainingrepresentative was unable to answer. Tr. 75-80. Cassidy hoped to get answers tothese questions concerning the safest type of bolts for the mine, but she didnot know to whom she should direct them. Tr. 80-86; Ex. S-5. Therefore, sheemailed them to several members of management. *Id.*

 

Cassidy’s November 15, 2019 emailclearly concerns safety issues. First, Cassidy references the training that sheand her crew attended, and stated clearly that there were some concerns andquestions that came up. Ex. S-5. These questions included asking why six-footbolts were not going to be used instead of five-foot bolts, remarking that thesix-foot bolts are stronger. Ex. S-5. Cassidy also mentioned that the new boltshave a different time requirement for setting in place, and that the stickerson the boxes distinguishing the different glues were too close in color andthat miners had trouble telling them apart. Ex. S-5. Cassidy also raisedquestions and concerns regarding how the bolts were stored and whether adifferent bolting pattern would be more effective. Ex. S-5. Cassidy testifiedthat she believed that the email concerned mine safety because a miner hadrecently died from being crushed by a chunk of coal and she was raising issuesconcerning stronger and more effective bolting. Tr. 92-93. This Court fullyagrees. 

 

Respondent’s Counsel’s argumentthat “Cassidy’s challenges to the use of five inch bolts as compared to sixinch bolts had nothing to do with safety and everything to do with conveniencefor her subordinate employees who wanted to avoid the hassle of using the fiveinch bolts” is not based in any evidence and shows a complete lack ofunderstanding for the work that miners perform.[28]*Resp. Brief* at 8. As discussed *supra*, Respondent’s counsel askedrepeatedly at hearing whether the issue was more a matter of convenience, andCassidy repeatedly explained the important safety reasons for which she hadraised the issue.

 

Respondent also raises, once again,the argument that Cassidy “never recorded a condition or violation related tothe use of six-foot bolts as compared to five-foot bolts as part of herpre-shift responsibilities, because she did not consider it to be and, in factit was not, a safety issue.” *Resp. Brief* at 9.This argument both misconstrues the legal requirements for protected activitiesand misunderstands what exam books are used for in the mine.[29]Questions about a training at the mine would not be included in a pre-shiftexamination because a pre-shift examination record is not the appropriate placeto ask questions. Tr. 188. The regulations have very specific requirements forwhat must be examined during a pre-shift exam and what must be recorded. *See*30 CFR 75.360. If a miner has safety questions, it would be whollyinappropriate to record those questions in the examination book.[30]

 

In addition to the two emails, Koontz’saccusations in the December 19, 2019 meeting that Cassidy had contacted thestate or MSHA constituted a protected activity. Tr. 138; Ex. R-X. Cassidydenied that she had contacted MSHA, but Koontz replied “I know it’s you, I justcan’t prove it.” Tr. 138. Whether Cassidy actually contacted MSHA isimmaterial; if management believed that she had done so, then it constitutesprotected activity under Section 105(c). *MSHA Ex Rel. Stephen Smith, DonaldHansen, Thomas Smith and Patricia Anderson v. Stafford Construction Co*., 5FMSHRC 618, 621 (April 1983) (“discrimination against a miner based on amistaken belief that he has engagedin protected activity also violates section 105(c)(1) of theAct.”); *Elias Moses v. Whitley Development Corporation*, 4 FMSHRC 1475,1480 (Aug. 1982) (“Miners would be less likely to exercise their rights if noremedy existed for discriminatory action based on anoperator's mistaken belief that a miner had exercised aprotected right. Indeed, the adverse effect of such action might be even moredebilitating than discrimination overactual protected activity.”); *MSHA obo Chad Alex Green &William Donnie Smith v. D & C Mining Corp*., 33 FMSHRC 243, 250 (Jan.20, 2011) (“Although the Complainants may not have engaged in protectedactivity, it cannot be denied that the Respondent believed they did so...”).

Lastly, Cassidy’s argument withKnipple concerning the choice of who would be the construction foreman on theshift included safety concerns and therefore was a protected activity. Cassidytestified that Tim Domico was less qualified to serve as construction foremanat the Archer Portal because he had less experience than her, and that therewas a lot of construction since the last time he was at the Archer Portal,which meant that he may not be as familiar with the area. Tr. 123-125. Cassidyhad more coal mining and foreman experience than Domico, and she believed hewas being chosen for illegitimate reasons. Tr. 123-124. Cassidy testified thatshe was concerned about Domico’s abilities supervising 40 miners at thatPortal. Tr. 124-125. The manner in which Cassidy raised these issues to Knippleis discussed below, but for purposes of this analysis, this Court finds thatasking one’s supervisor why a less experienced foreman is being chosenimplicates safety issues sufficiently to be considered protected activity underSection 105(c). 

 

**II.       ****Adverse Action:**

 

The Respondent does not contestthat Cassidy suffered an adverse employment action. Cassidy was suspendedwithout pay from January 02, 2020, until January 16, 2020. Ex. R-A. “Under theMine Act the Commission has defined ‘adverse action’ to constitute ‘anaction of commission or omission by the operator subjecting the affected minerto discipline or a detriment in his employment relationship.’” *MSHA oboLawrence L. Pendley v. Highland Mining Company*, 34 FMSHRC 1919, 1930 (Aug.2012).

 

The Secretary further argues thateach of the meetings following the emails also constituted adverse employmentactions. This Court agrees. Hilk described the meetings as disciplinarycounseling sessions that were part of progressive discipline. Tr. 301, 306-307,322; Ex. R-X. The meetings were then included in the suspension letter becauseHilk “thought it was important to show that [Cassidy] had been recentlycounseled on unprofessionalism by sending the emails.” Tr. 301, 322. 

 

**III.    ****DiscriminatoryMotive:**

 

The Commission has acknowledged that it is often difficult to establisha motivational nexus between protected activity and the adverse action that isthe subject of the complaint.*Sec’y of Labor on behalf of Baier v. DurangoGravel,*21 FMSHRC 953, 957 (Sept.1999). To establish the nexus, theCommission has identified the following indicia of discriminatory intent: (1) hostilityor animus toward the protected activity, (2) knowledge of the protectedactivity, and (3) coincidence in time between the protected activity andthe adverse action. *Sec’y of Labor on behalf of Lige Williamson v. CAMMining, LLC,* 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has furtherconsidered the disparate treatment of the miner in analyzing the nexusrequirement. *Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp.*, 3FMSHRC 2508, 2510 (Nov. 1981), *rev’d on other grounds*, 709 F.2d 86 (D.C.Cir. 1983). It is not necessary, however, to establish all four indications ofdiscriminatory intent. For example, where there is knowledge of the protectedactivity and coincidence in time between the protected activity and the adverseaction, a causal connection is supported. *Sec’y of Labor, on behalf of YeroPack v. Cimbar Performance Minerals*, 34 FMSHRC 3304 (Dec. 2012). 

 

Though the Commission has noted that “direct evidence ofactual discriminatory motive is rare,” this case constitutes one of those rarecases. *See United Mine Workers of America obo Mark A. Franks & Ronald M.Hoy v. Emerald Coal Resources, LP*, 36 FMSHRC 2088, 2096 (Aug. 2014). Directevidence of such discriminatory motive here is contained in several importantdocuments submitted into evidence. First, the suspension letter lists threeincidents—the September 27 email, the November 18 email, and the December 12argument—before imposing a suspension for lack of professionalism andmisconduct. Ex. S-9. Therefore, in the very document that providedjustification for the suspension, Respondent included and focused on Cassidy’ssafety emails. 

 

Superintendent Koontz testified that the reason for the suspensionwas contained in the contents of the letter, but insisted that the first halfof the letter should be ignored and that it was only because of the Knippleincident. Tr. 219-220. This Court found Koontz to be a less than crediblewitness, with much of his testimony being self-serving and contradictingRespondent’s own documents. Though Koontz did not author the suspension letter,he signed it and read it to Cassidy during the December 19, 2019 suspensionmeeting. Tr. 137, 145; Ex. S-9. In addition to discussing the two emails thatCassidy sent, Koontz also accused Cassidy of reporting safety issues to MSHA,stating, “I know it’s you, I just can’t prove it.” Tr. 138. This fact iscorroborated by Hilk’s contemporaneous notes, which state, “Josh [Koontz] saidshe has gone to the state.” Ex. R-X. Koontz was an experienced manager, havingworked as an assistant superintendent and general superintendent for over fouryears at the time of this meeting with Cassidy, and it defies logic and beliefthat he did not understand that the inclusion in the suspension letter of theseincidents indicates that they served as reasons for the suspension. Tr.207-208. 

 

Furthermore, Koontz had no first-hand knowledge of the Knippleincident and he neither conducted nor relied on anything that could beconsidered an investigation. Koontz described first hearing about the incidentwhen Bentz approached him and told him what he witnessed. Tr. 214-216, 233.Koontz then delegated to Hilk to conduct an investigation, interview everyonewho was present, and document everything. Tr. 216-217, 235. However, Koontztestified that he never reviewed any of the statements collected and that hejust talked with some of the people who witnessed the events, though he did notname any and documented nothing. Tr. 236-237, 239. Koontz never spoke toCassidy about the incident. Tr. 238.

 

Koontz testified that the suspension was due to Cassidy violatingEmployee Conduct Rule Number 4, which covers insubordination. Tr. 213. However,neither this rule nor the word “insubordination” appears anywhere in thesuspension letter. *See* Ex. S-9. Rule 4 defines “insubordination” as “refusalor failure to perform work assigned or to comply with supervisory direction,”however there was no allegation or evidence that Cassidy refused to performwork or comply with supervisory direction. In fact, following the argument withKnipple, Cassidy went to the G2 section as she was instructed to do andfollowed direction. Tr. 127. 

 

Though not under the definition of insubordination, Rule 4 alsolists other conduct that is prohibited, including “use of profane, obscene,abusive, or threatening language or conduct toward subordinates, fellowemployees, or officials of the company.” Ex. R-H. However, there were noallegations or evidence that Cassidy used any profanity or called Knipple anynames or engaged in any of the conduct listed in Rule 4. Tr. 234. The only useof profanity in this case involved Koontz hearing that some of the other men inthe mine were saying that Knipple “got profanity slapped by Barb.” Tr. 218.There is no evidence that any of these men were disciplined for engaging inprofanity in violation of Rule 4. 

 

Hilk authored the suspension letter and similarly testified thatthe reason for the suspension was only because of the incident with Knipple andnot the two emails she discussed in the letter. Tr. 273, 298-301. This Courtfound Hilk to be an evasive witness who repeatedly contradicted herself and theother evidence—much of which she authored—and used buzzwords like“professionalism” to distract from the explicit reasons she wrote for Cassidy’ssuspension. She knew little to nothing about mining or mine safety and, despitehaving substantive involvement in making decisions concerning the discipline ofminers, she seemed to be wholly ignorant of miners’ rights.

 

Hilk was present at both meetings following Cassidy’s sending ofthe safety emails, as well as the suspension meeting, and she tookcontemporaneous notes at each, which were admitted into evidence. Tr. 112, 326.Hilk testified that Cassidy was in no way disciplined for raising safetyconcerns in her November email. Tr. 293. Hilk stated that what occurred in thismeeting was Watson educating Cassidy about the bolts. Tr. 293. This testimonywas in direct contradiction to Hilk’s own contemporaneous notes. In her notes,Hilk wrote nothing about Watson educating Cassidy about the bolts. *See* Ex.R-X. Rather, she wrote, “The first meeting was a warning regarding theunprofessionalism. Scott [Watson] was very clear this was the last time wewould meet on this subject and that the next time would not have the sameoutcome.” Ex. R-X. Hilk was a supervisor in Human Resources and clearlydocumented that the September meeting was the first verbal warning, theNovember meeting was the second verbal warning, and that the next incidentwould result in adverse employment action. Hilk provided no alternative explanationfor these notes nor is it likely that one is possible. Indeed, the suspensionletter that Hilk authored clearly places these actions in the same disciplinarychain. Hilk testified that she only included discussions of the emails in thesuspension letter because she felt “it was important to show that Barbara hadhad [sic] recently been counseled on unprofessionalism by sending the emails.”Tr. 301. However, in her own notes, Hilk stated that those meetings weredisciplinary warnings, and the inclusion of them in the letter is clearlydescribing strikes one and two of a progressive discipline regime. 

 

Hilk was in charge of conducting an investigation and recommendingthe level of discipline, but this Court cannot find that either action wasperformed in good faith. In addition to Cassidy and Knipple, there were atleast six other people present for the December 12, 2019 incident. Tr. 118.Hilk only collected one written statement and one oral statement of theincident. Tr. 297, 324-325. Despite calling Cassidy twice at home duringCassidy’s vacation, Hilk never discussed the incident with Cassidy or asked herfor her explanation of events, and then testified that the reason she did notinterview Cassidy was due to her vacation. Tr. 297, 330. In determining thetype of discipline that Cassidy should receive, Hilk sent Fisher a previoussuspension of another employee and wrote, “In looking through a personnel file,I by chance came across the attached. In being consistent with past practicefor the same violation, we would like to make Barb Cassidy’s suspension 10days.” Ex. R-R. However, at hearing, Hilk testified that she did not find it“by chance,” but rather knew it existed and searched for it. Tr. 332-333. Theletter that Hilk sent was from before Hilk began working for Consol. Hilkfurther testified that at the December disciplinary meeting, Cassidy was givenan opportunity to defend herself, but chose not to do so. Tr. 325. Thistestimony is belied by Hilk’s contemporaneous notes, where she wrote thatCassidy did defend herself, when she wrote, “After Josh left, she disputed thefact that she slammed her hand and pointed at him.” Ex. R-X.  

Though there is ample direct evidence ofdiscriminatory motive, this Court will still examine the traditional motivationalnexus below. 

 

A.       Animus Towards Protected Activity

 

“Hostility towards protectedactivity—sometimes referred to as ‘animus’—is another circumstantial factorpointing to discriminatory motivation. The more such animus is specificallydirected towards the alleged discriminatee's protected activity, the more probativeweight it carries.” *Sec’y of Labor on behalf of Chacon v. Phelps DodgeCorporation*, 2 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). In theinstant case, there is abundant evidence of hostility or animus towards theprotected activity. 

 

Immediately following each ofCassidy’s emails where she raised safety issues, Cassidy was called intomeetings with upper management and a member of Human Resources. In theSeptember 17, 2019 meeting, Watson accused Cassidy of undermining management inraising safety issues and gave her a warning “regarding the unprofessionalism.”Tr. 60; Ex. R-X. In the November 18, 2019 meeting, Watson sat very close andyelled at Cassidy. Tr. 105-106. Watson told Cassidy that she “did it again,” insending the email, and that he was “tired of cleaning up [her] messes.” Tr.107-109. Watson warned Cassidy that this was her second warning and that nexttime she would face more severe consequences. Ex. R-X. At the end of the email,Watson required Cassidy to state affirmatively that she would “never send anemail to any of you as long as I live ever again.” Tr. 113. Respondent’sfurther inclusion of references to these emails in the suspension letter alsoconstituted animus towards Cassidy’s protected activities of raising safetycomplaints via email. Ex. S-1.

 

Following Cassidy’s protectedactivity of complaining of a less qualified construction foreman—albeit in aloud manner—Respondent engaged in a farce of an investigation. Respondent neverinterviewed most of the witnesses to the argument, including Cassidy. Respondentambushed Cassidy with a disciplinary meeting, without providing her any time orwarning to bring forward witnesses or present her side of the events. Tr. 135-137.This Court is not implying here that the Mine Act generally requires anemployer to afford due process prior to discipline, but only that the manner inwhich the investigation and meeting were conducted here is evidence of animustowards the protected activity.

 

B.       Knowledge

 

“Knowledge of protected activity isone of the most important factors in a circumstantial case for discrimination.”*KenAmerican Resources, Inc.*37 FMSHRC 2767, 2780 (Dec. 2015) (citing *SherwinAlumina, LLC,*36 FMSHRC 730, 736 (March 2014)). In the instant case, thereis no question that key decisionmakers knew of Cassidy’s protected activities,even if all of them may not have been fully aware of all the protectedactivities. 

 

According to testimony at hearing,there were four people involved in the decision to suspend Cassidy: JoshuaKoontz, Eric Schubel, Tina Hilk, and Erica Fisher. Tr. 221-222, 253. Hilk waspresent for each of the meetings; she recommended the 10-day unpaid suspension;and she drafted the suspension letter. Therefore, Hilk had knowledge of thefull extent of Cassidy’s protected activity. Koontz testified that he was notaware of the September email, but was sent the November email. Tr. 242; Ex. R-J.However, even if Koontz had not known about the September email at one point,he was certainly made aware of it when he signed the suspension letter, whichdiscusses that email in the first paragraph. Ex. S-1. Fisher and Schubel didnot testify at hearing, and it is not clear what knowledge they had. Koontz andHilk were responsible for the suspension letter and the suspension meeting, andtheir knowledge can by imputed to the other decisionmakers. *See**SeeNat’l Cement Co. of Cal.*, 33 FMSHRC 1059, 1068 (May 2011). 

 

C.       Coincidencein Time

 

With respectto coincidence in time between the protected activity and the adverse action,the Commission has noted, “[a] three week span can be sufficiently close intime,” especially when there is evidence of intervening hostility, animus ordisparate treatment. *CAM Mining, LLC,* 31 FMSHRC at 1090. Likewise, in *AllAmerican Asphalt*, a 16-month gap existed between the miners’ contact withMSHA and the operator’s failure to recall miners from a layoff; however, onlyone month separated MSHA’s issuance of a penalty resulting from the miners’notification of a violation and that recall failure. *Sec’y of Labor onbehalf of Hyles v. All American Asphalt*, 21 FMSHRC 34 (Jan. 1999).Similarly, in *Pamela Bridge Pero v. Cyprus Plateau Mining Corp.*, theCommission found a five-month gap to constitute close temporal proximitybetween the protected activity and the adverse employment action. 22 FMSHRC1361, 1365 (Dec. 2000). The Commission stated “We ‘appl[y] no hard and fastcriteria in determining coincidence in time between protected activity andsubsequent adverse action when assessing an illegal motive. Surrounding factorsand circumstances may influence the effect to be given to such coincidence intime.”’ *Sec’y of Labor on behalf of Hyles v. All American Asphalt*, 21FMSHRC at 47 (quoting *Hicks v. Cobra Mining, Inc.*, 13 FMSHRC 523, 531(Apr. 1991)).

 

The series of protected activitiesthat occurred in the instant case took place on September 13, November 15, and December12, 2019. The meetings and suspension then occurred on September 17, November18, and December 19, 2019. The time periods between each protected activity andthe Respondent’s reaction were always within a few days, and the timedifference from the first protected activity until the ultimate suspension wasapproximately three months. The “fact that the Company's adverse action against[a miner] so closely followed the protected activity is itself evidence of anillicit motive.” *Donovan v. Stafford Const. Co.*, 732 F.2d 954, 960 (D.C.Cir. 1984). I find that this proximity in time is strong evidence ofdiscriminatory motive behind Cassidy’s discipline.

 

D.       DisparateTreatment

 

Respondent argues that Cassidy wassuspended for her “unprofessional” behavior in violation of Employee ConductRule 4. *Resp. Reply Brief* at 6; Tr. 212-214, 221. This rule prohibitsinsubordination, or refusal to perform work, as well as the use “of profane,obscene, abusive, or threatening language or conduct toward subordinates,fellow employees, or officials of the company.” Ex. R-H. In the instant case,evidence was presented of miners yelling and screaming at each other, minersridiculing each other, and miners engaging in profanity, and yet most of theconduct was not by Cassidy and most resulted in no discipline. There is little evidencethat Rule 4 was taken seriously at the mine, except as an *ex post facto*excuse for justifying discipline. 

 

Though Cassidy readily conceded andthe evidence shows that she yelled at Knipple concerning the choice of aconstruction foreman, yelling between miners was common at the mine. Tr.127-128, 167. Section Coordinator Don Blumetti regularly yelled at Cassidy andsuffered no discipline as a result. Tr. 129-131. In the November meeting,Watson sat close to Cassidy and yelled at her to the point where his voice wascracking, and yet no discipline resulted from his treatment of her. Tr.104-106. Koontz testified that miners were ridiculing Knipple based on whatoccurred between him and Cassidy, with some even engaging in profanity, yetthere is no indication that any of them were disciplined. Tr. 218.

 

Respondent argued that the 10-daysuspension was consistent with other discipline meted out at Enlow Fork. Tosupport this position, Respondent introduced a short letter from over fiveyears earlier of a miner that was suspended for 10 days. Ex. R-R. This letterprovided few details that could lead this Court to conclude that there was anysimilarity in the conduct or the context between Cassidy’s case and the minerreferenced in the old letter. By all accounts, Enlow Fork was a stressful workenvironment, made more stressful due to a recent fatality, and yelling wascommon. The fact that the only disciplinary letter that Hilk was able to findwas from more than five years prior and involved a situation about which shehad no firsthand knowledge, shows just how rarely yelling between minersresults in discipline. 

 

**IV.     ****AffirmativeDefense**

 

Having found that the miner engagedin protected activities, suffered an adverse employment action, and that therewas a nexus between the two, the operator may still avoid liability if it canshow that it would have disciplined her for unprotected activity alone. *See MSHAobo Riordan v. Knox Creek Coal*, 38 FMSHRC 1914 (Aug. 2016). The Commissionhas explained:

 

that an operator'sbusiness justification defense should not be “examined superficially or beapproved automatically once offered.” *Haro v. Magma Copper Co.*, 4FMSHRC 1935, 1938 (Nov. 1982); *see Cumberland River Coal Co. v.FMSHRC,* 712 F.3d 311, 320 (6th Cir. 2013). In reviewing defenses, theJudge must “determine whether they are credible and, if so, whether they wouldhave motivated the particular operator as claimed.” *Bradley v. BelvaCoal Co.*, 4 FMSHRC 982, 993 (June 1982). 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*, 4 FMSHRC at 1937-38).

 

*Id.* at 1925.

 

In the instant case, the Respondentargues that even if this Court finds discrimination, it would have disciplinedCassidy based solely on her yelling at Knipple. *Resp. Brief* at 10. Asidefrom the letter concerning another miner from five years earlier discussed *supra*,Respondent offers little convincing support for this argument. In lieu of suchevidence-based support, Respondent’s counsel employs exaggerated descriptives,such as “verbal assault” to liken Cassidy’s action to criminal or tortiousconduct. *Resp. Brief* at 1, 7, 9, 10. This language is whollyinappropriate to describe what occurred.[31] The term “assault” is aterm of art, meaning, “The threat or use of force on another that causes thatperson to have a reasonable apprehension of imminent harmful or offensivecontact; the act of putting another person in reasonable fear or apprehensionof an immediate battery by means of an act amounting to an attempt or threat tocommit a battery.” *ASSAULT*, Black's Law Dictionary (11th ed. 2019).“Verbal assault[s],” as defined by various statutes and court decisions, are “designedto instill serious fear.” Frederick M. Lawrence, *The Collision ofRights in Violence-Conducive Speech*, 19 Cardozo L. Rev. 1333, 1348 (1998). Thereis no evidence that Knipple felt any of these things during the argument withCassidy.

 

In the instant case, Respondent hasprovided little credible evidence or arguments that it would have disciplinedCassidy regardless of her protected activity. 

 

**Remedies and Penalties**

 

A successful complainantis entitled to be made whole for the entire period of her unemployment, plusinterest. *See Local Union 2274, District 28, UMWA v. Clinchfield Coal Co.*,10 FMSHRC 1493 (Nov. 1988). The Commission has recognized that certain events, suchas a bona fide reduction in force, can toll a miner’s right to back pay, theburden to show that work is no longer available for the complainant liessquarely with the employer. *KenAmerican Resources, Inc*., 31 FMSHRC 1050,1054-55 (Oct. 2009) (citing *Kenta Energy, Inc*., 11 FMSHRC 1638 (Sept.1989)). The operator must make this showing by a preponderance of the evidence.*Id.*; *C.R. Meyer and Sons Co.*, 35 FMSHRC 1183, 1188 (2013). In theabsence of evidence identifying any basis for tolling or other restrictions onlost wages, Complainant is entitled to be made whole for the entire period of herunemployment, plus interest. *See Clinchfield Coal Co*., 10 FMSHRC 1493(Nov. 1988).

 

Havingfound that Respondent discriminated against Cassidy in violation of the MineAct, the next issues are the proper remedies and civil penalties.[32]With respect to remedies, the parties have stipulated that Cassidy’s lostearnings due to her unpaid suspension amounted to $4,265.04 in lost wages and$255.90 in lost employer contributions to Cassidy’s 401(k). Jt. Stip. 8, 11. ThisCourt finds it appropriate to award this full back pay and lost employercontribution, plus interest. *See GMS Mine Repair & Maintenance*, 38FMSHRC 2664, 2683 (Oct. 2016) (citing *Local 2274, District 28, UMWA*, 10FMSHRC 1493, 1505 (Nov. 1988)). In addition to backpay, the Secretary requeststhat the Respondent be ordered to expunge from Cassidy’s personnel file anydocumentation, records, or other references to her suspension. *Sec’y Brief*at 30. 

 

            The Secretary furtherproposes a civil penalty of $15,000. *Sec’y Brief* at 30. Theprinciples governing the authority of Commission Administrative Law Judges toassess civil penalties *de novo* for violations of the Mine Act are wellestablished. Section 110(i) of the Mine Act delegates to the Commission and itsjudges “authority to assess all civil penalties provided in [the] Act.” 30U.S.C. § 820(i). The duty of proposing penalties is delegated to the Secretary.30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary thatit intends to challenge a penalty, the Secretary petitions the Commission toassess the penalty. 29 C.F.R. § 2700.28. The Court’s assessment here is independent,and the Secretary’s proposal “is not a baseline or starting point,” that the Courthas used in its assessment. *Sec’y of Labor, MSHA v. The American Coal Co.*,38 FMSHRC 1987 (Aug. 2016). The Act requires that in assessing civil monetarypenalties, the judge must consider six statutory penalty criteria: theoperator’s history of violations, its size, whether the operator was negligent.the effect on the operator’s ability to continue in business, the gravity ofthe violation, and whether the violation was abated in good faith. 30 U.S.C. §820(i). In keeping with this statutory requirement, the Commission has heldthat judges must make findings of fact on the statutory penalty criteria. *SellersburgStone Co.*, 5 FMSHRC 287, 292 (Mar. 1983), *aff’d*, 736 F.2d 1147, 1152(7th Cir. 1984). Once these findings have been made, a judge’s penaltyassessment for a particular violation is an exercise of discretion “bounded byproper consideration of the statutory criteria and the deterrent purposesunderlying the Act’s penalty scheme.” *Id.* at 294; *see also CanteraGreen*, 22 FMSHRC 616, 620 (May 2000). 

 

The instantcase is an egregious case that warrants a civil penalty of $20,000. At the timeof the discrimination in this matter, the Mine had a history of five prior105(c) violations. *Discrimination Complaint*Ex-B.Furthermore, the mine was in the largest category of mines, and the controllingentity in the largest category under MSHA’s tables in Part 100.3. *Id.*The parties have stipulated that the Secretary’s proposed penalty of $15,000will not affect Respondent’s ability to continue in business, and there isnothing in evidence that suggests that an increased penalty of $20,000 wouldaffect Respondent’s ability to continue in business. Jt.Stip. 12*.*Respondent’s actions displayed a sustained series ofdiscriminatory conduct following multiple safety complaints, which exhibit ahigh degree of culpability. The gravity of the violation was significant inthat it caused Cassidy to lose 10 days of pay, silenced a safety advocate, andsent a message in the mine that safety complaints would lead to discipline.Such conduct has the effect of chilling the speech of miners. Lastly,Respondent made no good faith effort to rectify its repeated violations ofCassidy’s rights. A $20,000 civil penalty is appropriate to effectuate thepurposes of the Mine Act and its core anti-discrimination provisions.

 

**CONCLUSION AND ORDER**

 

Based onthe foregoing, I find that Respondent violated Section 105(c) of the Act bydiscriminating against Cassidy for engaging in protected activity.

 

Respondentis **ORDERED** to pay Cassidy $4,265.04 in lostwages and $255.90 in lost employer contributions to her 401(k), plus pre-judgmentinterest.[33] Further, Respondentshall expunge from Cassidy’s personnel file any documentation, records, orother references to her suspension. 

 

It is **ORDERED** that Respondentpost this decision at the Enlow Fork Mine in a conspicuous unobstructed placewhere notices to employees are customarily posted, for a period of 60 days. 

 

 

It is **FURTHER****ORDERED** that Respondent pay a civil penalty of $20,000.00 within 30 daysof this Decision to the Secretary of Labor.[34]

 

 

 

 

/s/John Kent Lewis

                                                                                    JohnKent Lewis

                                                                                    AdministrativeLaw Judge

 

Distribution (Via E-mail andFirst-Class Mail):

 

Brian P. Krier, U.S. Dept of Labor, Office of the RegionalSolicitor, 1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19103, krier.brian@dol.gov

 

Nicholas J. Bell, Esq. Buchanan Ingersoll & Rooney PC,Union Trust Bldg., 501 Grant St., Suite 200, Pittsburgh, PA 15219-1410, nicholas.bell@bipc.com

 

Erin J. McLaughlin, Esq., Buchanan Ingersoll & RooneyPC, Union Trust Bldg., 501 Grant St., Suite 200, Pittsburgh, PA 15219-1410, erin.mclaughlin@bipc.com

 

Barbara E. Cassidy, 20 Plum Run Lane, Scenery Hill, PA 15360,bepcassidy622@gmail.com

 

----

[1] In this decision, the joint stipulations, transcript,the Secretary’s exhibits, Respondent’s exhibits, and joint exhibits areabbreviated as “Jt. Stip.,” “Tr.,” “Ex. S-#,” “Ex. R-#,” and “Ex. J-#”respectively.

[2] At the time of hearing, Barbara E. Cassidy wasunemployed. Tr. 19.

[3] Cassidy has mine foreman papers,which qualifies her to be a section or shift foreman in the Commonwealth ofPennsylvania, as well as to sign books when necessary and to conduct pre-shiftand on-shift examinations. Tr. 21-22.

[4] At the time of hearing, Knipple had been the shiftforeman for Consol for two years. Tr. 354. In this capacity, he set up theshift and crews and assigned foremen to specific job responsibilities. Tr. 355.

[5] Cassidy had email accessunderground in the mine in the last six to eight months that she was at theArcher Portal. Tr. 31-32. 

[6] At the time of hearing, JoshKoontz had been the general superintendent at Enlow Fork Mine since August2018. Tr. 207. This is the chief health and safety official at the coal mine.Tr. 207. Prior to this position, he was the assistant superintendent at EnlowFork since 2017, and assistant superintendent at Consol’s Harvey Mine from2015-2017. Tr. 208. From 2000-2015, Koontz worked for Consol and then MurrayEnergy. Tr. 208. 

Koontz’s responsibilities as general superintendentincluded the safety of the coal mine for all the hourly and salaried employeesand contractors, as well as state and federal legal compliance. Tr. 208. He wasalso responsible for productivity and cost issues. Tr. 208-209.

[7] Tina Hilk was a human resources supervisor at EnlowFork Mine, where her responsibilities included hiring, training, and employeerelations. Tr. 265. Prior to working for Enlow Fork, Hilk was an educator. Tr.266.

[8] Hilk described safety asConsol’s “core value” and testified that miners were “empowered” to reportanything that is unsafe. Tr. 268-269. She testified that employees could reportsafety concerns without fear of reprisals. Tr. 269. Hilk testified that she wasnot a safety expert and was unable to distinguish between what was and what wasnot a safety violation. Tr. 285. 

[9] The legal requirementsfor a pre-shift examination are to examine the mine three hours before the nextcoal-producing shift for gases and other dangers, including MSHA and state mandatorysafety standards. Tr. 187, 190. There is no law that encompassed this sort ofride shortage, so it would not be something that would be included in thepre-shift report. Tr. 187-188. 

[10] The piece of coal was 20x7x4 feetlarge. Tr. 70-72.

[11]There were no hourly miners included in the email concerning bolts. Tr. 314. 

[12]Cassidy was never suspended for writing in the pre-shift books, but she wasdisciplined in other ways, including receiving, “a lot of flak, even harassmentfrom some of the other guys including, you know, Don Blumetti or Ron Houchins,who is the assistant mine foreman over at Pleasant Grove. They don’t like whatI put in the book.” Tr. 191-192. On one occasion, Cassidy wrote that the lightswere not working at a belt transfer, and Koffler questioned the shift foremanon the next shift if it was really a violation. Tr. 192. On other occasions,Cassidy wrote up wobbly steps, insufficient dust, stuck doors, and a cornerfalling on a belt line. Tr. 192-195. The harassment that Cassidy received as aresult of making entries in the pre-shift examiner reports sometimesdiscouraged her from making such entries. Tr. 203. Instead, she would sometimesjust fix the problems herself. Tr. 203-204. 

[13] The foreman’s table is wherepre-shift and on-shift books were kept, and where Cassidy would have to go atthe end of her shift. Tr. 97. She described it as “the obvious place that theywould wait for me, anyone would wait for me, if they want to see me at the endof a shift.” Tr. 97.

[14] A spinner is when the expander on the bolt doesn’t“catch,” or the glue didn’t do its job and the machine keeps spinning the bolt.Tr. 96. When that happens, an employee should put in another bolt right next toit, but not everyone does so. Tr. 96-97. 

[15]Hilk described Watson as raising his voice at Cassidy, but not yelling at her.Tr. 291. 

[16] Cassidy had not sent the email to any of thesepeople. Tr. 80-86.

[17] Knipple testified at hearing and this evidence wasunrebutted.

[18] Cassidy had heard from otherminers that Blumetti was told that if he yelled at a miner one more time, hewould be gone. Tr. 187. However, there were several instances of him yellingafter the supposed warning, and nothing ever happened. Tr. 187.

[19] The transcript alternates between the name Bill Bentzand Bill Binns. For consistency, the name Bill Bentz will be used throughout.

[20] In his testimony, Koontz inserted the word“profanity” in place of the profanity that miners were using to mock Knipple.

[21] Hilk’s contemporaneous notes of the meetingcorroborates that Koontz made this accusation, stating, “Josh said she has goneto the state...” Ex. R-X.

[22] Rule 4 states in full, “Insubordination (refusal orfailure to perform work assigned or to comply with supervisory direction) oruse of profane, obscene, abusive, or threatening language or conduct towardsubordinates, fellow employees, or officials of the company.” Ex. R-H.

[23] This Court found Cassidy to be an honest andforthright witness, even when admitting her own shortcomings. The testimony wasconsistent and credible.

[24] At hearing, Respondent’s counselrepeatedly questioned Cassidy about the shortage of rides and whether it was amatter of convenience, and in each answer she stated that it was not. Counselcannot cite to this page in the transcript for the affirmative proposition thatthe rides were a matter of convenience when the witness’ answers state theexact opposite.

Q. Okay. In fact, the availabilityof rides was a matter of convenience for you, correct? 

A. No, sir. 

Q. It was more convenient for youto do your job and for others to do their job in the mine if there were morerides available; isn't that right? 

A.It would be necessity when it takes three hours to walk to their job sitecarrying tools. That is not convenience. That is a necessity. 

Tr. 174.

Q. Having a ride just helps you todo your job more quickly, correct?

A. No, not necessarily.

Q. Well, it gives you theconvenience of getting a ride as opposed to walking a pre-shift exam? 

A. Is that a question? 

Q. That is a question. Isn't thatcorrect? It gives you the convenience of getting a ride as opposed to having towalk your entire pre-shift exam?

A. No, sir. Again, that's not true.

Q. Having more rides availableallows you to -- allows you additional time to be able to perform yourpre-shift exam, correct? 

A.No, sir. I wouldn't say that either. Most of what we do is walking. The beltlines, you can't do that with a ride. So, to be dropped off so you are therewhen your exam starts, yes. To have a ride for that, it doesn't -- a ridedoesn't help me. [It] hurts me. I don't need the ride.

Tr. 175. 

[25] This Court gives Respondent the benefit of the doubtthat it did not purposely misstate the record and instead took Cassidy’stestimony concerning the section of her email with proposed solutions out ofcontext. In this specific context, Cassidy stated, “I wasn’t looking for ananswer. I was just trying to spark some interest, maybe.” Tr. 41-42. 

[26] Commission ALJs routinely find safety complaintsconcerning issues that do not violate the Mine Act or regulations to constituteprotected activity. *See e.g. SOL obo George M Scoles v. Harrison County CoalCo.,*40 FMSHRC 1393 (Sept. 20, 2018);*aff’d Harrison County Coal Co. v.FMSHRC,*790 Fed. Appx. 210 (D.C. Cir. 2019) (miner’s complaint to supervisorabout harassment and complaint to management about assault constituted safetycomplaints.); 

*SOL obo Aaron Lee Anderson v. A&G Coal Corp. and ChestnutLand Holdings, LLC*, 39FMSHRC 165, 173 (Jan. 19, 2017) (truck driver’s comments over radio about dustin pit and request for water truck constituted protected activity.) *remandedon other grounds*, 39 FMSHRC 315 (Feb. 2017); *SOL obo Charles Riordan v.Knox Creek Coal Corp*., 38 FMSHRC 1914, 1922 (Aug. 2016) (Commissionrejected Respondent’s argument that miner’s ventilation concerns were notprotected because the “comments were nothing more than discussions between minemanagers trying to address problems and were motivated by a desire to improveproduction, not to ensure safe working conditions.”); *MSHA obo Richard B.Harrison v. Consolidation Coal Co.*, 37 FMSHRC 1497, 1506-1507 (July 2,2015) (miner’s complaint about bonus plan that he feared would diminish safetyat the mine found to constitute protected activity.); *Ronald E. Keim, III v. Cordero Mining LLC*, 36 FMSHRC 963, 971 (April 16, 2014) (complaint aboutco-worker creating a hostile work environmentthat made it difficult for miner’s crew to safely perform their jobs wasprotected activity.); *SOL obo Regald Robbins v. Alden Resources, LLC*, 36FMSHRC 1927 (July 29, 2014) (miner’s comments about the need for 5-foot roofbolts constituted protected activity).

[27] This Court found all parties to bequite sincere in expressing their sorrow over the loss of Tanner McFarland.Miners belong to an ancient brotherhood of grief, their history steeped indisability, death, and disaster. This Court well recognizes that the death of aminer anywhere affects miners everywhere.

However,the very circumstances of this real grief at Enlow Fork would have made and didmake Cassidy’s safety complaints all the more distressing and aggravating tothe operator’s management team.

 

[28] The Respondent’s counselincorrectly stated that the bolts in question were five inches long, ratherthan five feet long.

[29] With regard to Respondent’s narrowunderstanding of what constitutes safety complaints, see the discussion *supra*related to the September email. 

[30] This Court presumes that the Respondent’s counsel isnot purposefully misstating the record, but instead is simply not fullyknowledgeable about the nature of mining and mine safety, which leads it tostate in its brief that the proof that Cassidy did not consider her questionssafety-related was because she did not record them in the pre-shift examinationbook. *Resp. Brief* at 9.

[31] This Court found much of thelanguage employed by Respondent’s counsel inappropriate. Cassidy has worked fordecades in mines as one of only a handful of women. She described variousindignities and hurdles she had to face as a result, including when uponmeeting Knipple, when he refused to talk to her and embarrassed her in a roomfull of her colleagues by stating, “I don’t talk to women.” Tr. 116. Cassidyshould not have to face such gendered misrepresentations of her actions in acourt of law. 

Respondent’scounsel repeatedly used language that was misogynistic and ableist, whetherconsciously or subconsciously. This included their repeated attempts todescribe Cassidy’s argument with Knipple as a form of “emasculation” Tr. 198; *Resp.Brief* at 1. They even went so far as to ask Cassidy whether she wasresponsible for emasculating Knipple, even if it was not her intent. Tr. 198.Such questions imply that a woman who yells at a man is guilty of emasculatinghim no matter what the content of her speech or her intent. Respondent’scounsel further described Cassidy’s safety emails as “frantic,” *Resp. Brief*at 6, also stating that she “frantically shouted in her email,” and saying thatthey had an “unhinged tone.” *Resp. Reply Brief* at 2. These descriptionsare inaccurate, and this Court is troubled by Respondent’s counsel’s use ofthem.

 

[32] Respondent made no arguments concerning remedies orpenalties in its post-hearing briefs.

[33] The interest should be calculated using the *Arkansas-Carbona/ClinchfieldCoal Co.* method, which provides that the amount of interest equals thequarter's net back pay multiplied by the number of accrued days of interestmultiplied by the short-term federal underpayment rate. *Sec'y of Laboron behalf of Bailey v. Arkansas-Carbona Co.,* 5 FMSHRC 2042, 2052 (Dec.1983), *as modified by Clinchfield Coal Co.*, 10 FMSHRC 1493, 1505-06(Nov. 1988).

 

[34] Payment should be paid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 or 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.