**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

TELEPHONE:303-844-5266 / FAX: 303-844-5268

 

December 2, 2020

 
| PETE TARTAGLIA, JR.,

             Complainant,

 

 

             v.

 

 

FREEPORT-MCMORAN BAGDAD INC.,

              Respondent.                                      |   |   | DISCRIMINATION PROCEEDING

 

Docket No. WEST 2019-0382-DM

MSHA Case No. RM-DM-2019-08

 

 

 

Mine ID: 02-00137

Mine: Freeport-McMoRan Bagdad  Inc. |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION ANDORDER**

** **

Appearances:              PeteTartaglia, Jr., 8340 N. Thornydale Road #209, Suite 110, Tucson, AZ 85741

 

Laura E. Beverage, Jackson KellyPLLC, 1099 18th Street, Suite 2150, Denver, CO 80202

 

                                    KarlF. Kumli, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver,CO 80202

 

Before:                        Judge Simonton 

 

This case is before me upon acomplaint of discrimination filed by Pete Tartaglia, Jr. (“Tartaglia” or“Complainant”) against Freeport-McMoRan Bagdad Inc. (“FMBI” or “Respondent”),pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977(Mine Act), 30 U.S.C. § 815(c)(3).[1] Tartaglia complainsof numerous occurrences in which he believes FMBI has improperly discriminatedor retaliated against him. In particular, he asserts that FMBI violated asettlement agreement reached in WEST 2018-0362-DM, wrongfully took money fromhis paychecks, and disciplined him in April 2019 in response to his protectedactivity. FMBI denies these claims and asserts that it fulfilled itsobligations under the settlement agreement, properly recouped a double paymentmade to Mr. Tartaglia, and disciplined him in April 2019 solely because of hisrefusal to complete assigned work. 

 

A hearing was held on March 11,2020 in Phoenix, Arizona. Based on my full consideration of the testimony andexhibits presented at hearing, the stipulations of the parties, my observationsof the demeanors of the witnesses, and the parties’ post-hearing submissions, Ifind that neither party violated the settlement agreement reached inTartaglia’s prior section 105(c) case. Further, I find that FMBI did notviolate the Mine Act in recouping money erroneously paid twice to Tartaglia orin disciplining him on April 11, 2019. 

 

**                                                                                           I.         ****STIPULATIONS**

** **

At hearing, the parties agreed tothe following joint stipulations:

 
    - The Freeport-McMoRan Bagdad Inc. Mine, Mine I.D. No.     02-00137, is subject to the jurisdiction of the Federal Mine Safety and     Health Act of 1977, 30 U.S.C. §§ 801  et seq . (the “Mine Act”).

 
    - Freeport-McMoRan Bagdad Inc. is an operator within the     meaning of the Mine Act.

 
    - The Administrative Law Judge has jurisdiction of this     matter.

 
    - Tartaglia was employed by Freeport-McMoRan Bagdad Inc. and     was therefore a “miner” as defined by § 3(g) of the Act, at all times     relevant to this proceeding.

 
    - Tartaglia filed a complaint under § 815(c) on or about     March 20, 2019.

 
    - That complaint was investigated by MSHA and on or about     May 20, 2019, MSHA indicated to Tartaglia that it would not pursue the     claim. Tartaglia then initiated his Pro Se Discrimination Complaint on or     around June 19, 2019.

 
    - Tartaglia filed a hotline complaint with MSHA on November     20, 2018.

 

Tr. 11–16.

** **

**                                                                                                     II.         ****ISSUES**

** **

Tartaglia’s pleadings were unclearregarding the scope of the claims he would pursue at hearing. On December 30,2019, FMBI filed a motion in limine to limit the scope of issues before thecourt, requesting that the issues to be tried be limited to those Tartagliaarticulated in his March 20, 2019 complaint to the Mine Safety and HealthAdministration (MSHA) or that arose during the pendency of the investigation ofthat complaint. Following a conference call and a response submitted byTartaglia, I enumerated the issues that would be entertained at hearing in aFebruary 10, 2020 order. After further submissions and another conference callwith the parties, some additions were made to that list. As announced andagreed to by the parties at hearing, the five issues before the court are:

 
    - Whether either party violated the settlement agreement entered     into at hearing in WEST 2018-0362-DM.

 
    - Whether Tartaglia’s allegation regarding FMBI’s recovery     of bonus money erroneously paid twice is time-barred under section     105(c)(2) of the Mine Act. 

 
    - If not time-barred, whether the recovery of bonus money     erroneously paid twice to Tartaglia is an adverse action motivated by     protected activity.

 
    - Whether disciplinary action taken against Tartaglia on     April 11, 2019, was an adverse action motivated by protected activity. 

 
    - If a violation of section 105(c) is found, what remedies     are available to Tartaglia.

 

Tr. 22–23.

** **

**                                                                                III.         ****FINDINGS OF FACT**

** **

**A.   ****Tartaglia’sFirst MSHA Action and Settlement**

** **

The instant case is not Tartaglia’sfirst action before this court. Tartaglia’s prior section 105(c) case, assignedDocket No. WEST 2018-0362-DM, went to hearing before me on September 19–20, 2018.At that hearing, the parties reached a settlement and read the terms of theagreement into the record. The terms provided that (1) FMBI would make a cashpayment to Tartaglia for housing costs, (2) FMBI would provide a neutral referencefor Tartaglia from a Freeport-McMoRan employee outside of FMBI, (3) Tartagliawould maintain the confidentiality of the settlement terms, and (4) Tartagliawould release all pending and potential claims up to the time of hearing. Respondent’sPost-Hearing Brief (Resp. Br.) at 3.

 

Following that hearing, FMBIproduced a written version of the parties’ agreement. The court held numerousconference calls to address concerns Tartaglia had with the details andlanguage of the written version. After revisions were made, Tartagliaultimately signed the written agreement, but later determined that he did notwish to adhere to its terms. FMBI elected not to submit the written agreementfor review and approval. On January 14, 2019, I directed Tartaglia to eitherprovide proof that he complied with the settlement terms reached orally athearing or to notify the court that he wished to submit a post-hearing briefand pursue a decision on the merits. He failed to timely elect either option. 

 

On January 25, 2019, FMBI submitteda motion to enforce the settlement agreement as stated on the record and tofile that portion of the hearing transcript under seal. Tartaglia thensubmitted a brief response reiterating his intention not to comply with thesettlement terms. On February 11, 2019, I issued a Decision ApprovingSettlement Under Seal and Order Enforcing Settlement Agreement finding that theagreement entered into at the hearing on September 20, 2018 was valid andenforceable. Tartaglia had not put forth any evidence that FMBI misrepresentedor failed to comply with its responsibilities under the settlement agreement. Havingreceived no valid legal justification to set aside the agreement and no requestfrom Tartaglia stating he wished to pursue a decision on the merits, I grantedFreeport's motion to enforce the settlement agreed to on the record at hearing.

 

In the present matter, Tartaglia allegesthat FMBI violated the settlement agreement. Complainant’s Complaint Letter receivedJune 24, 2019. In particular, he asserts that FMBI stole money from hispaychecks and then paid that money out to him in his settlement check. *Id.*;Tr. 210, 223–24.

 

****FMBI proffered evidence of its attempt toprovide Tartaglia with the settlement money. Following my February 11, 2019decision upholding the settlement and dismissing the first action, FMBI sent acheck via certified mail on March 5, 2019 for the agreed-upon amount. Tr. 327–28;Ex. R-I. The check was accompanied by a letter signed by FMBI’s human resourcesmanager, Michelle Kessler, which referenced the docket number in that case andthe confidential agreement the parties had entered. Ex. R-I; Tr. 327–28. 

 

As he asserted at hearing in thiscase, Tartaglia had no interest in cashing the check because he believed themoney was wrongfully taken out of his pay. Tr. 233. However, as explored inmore detail below, the withdrawals made from his pay between November 11, 2018and December 28, 2018 were unrelated to the settlement check. They werenecessary due to an accounting error FMBI made when it economically reinstatedTartaglia pursuant to an arbitration decision issued in July 2018. The detailsof that error are discussed *infra*.

 

            Following the March 11, 2020 hearing in thiscase, Tartaglia asked FMBI to send him a another check to replace the original onewhich he had not posted. Resp. Br. at 7, Attach. A. The replacement check wassent on March 25, 2020. Resp. Br. at 7, Attach. B. On April 11, 2020, after thereplacement check had been sent but before Tartaglia had retrieved it,Tartaglia submitted a request to the court for a “Default Penalty Due to theFailure to Comply Accordingly.” In the request, he asserted that FMBI had notpaid him the settlement money. FMBI, through counsel, provided the court withthe tracking information showing that the check had arrived at the post officeon March 28, 2020. Having determined that Tartaglia’s check had been availableat the address he provided for over two weeks, I denied his request for adefault penalty. Tartaglia then posted the check on April 16, 2020. Resp. Br.at 7, Attach. F. 

** **

**B.   ****Recoveryof Tartaglia’s Duplicate Bonus Payment**

** **

Prior to the September 2018 hearing,Tartaglia participated in FMBI’s internal problem solving process which resultedin a July 6, 2018 arbitration decision. Resp. Br. at 2–3, 7. That decisionrequired FMBI to reinstate Tartaglia to his former position and pay him for alllost wages and benefits, less interim earnings. *Id.* at 2–3. Tartagliawas economically reinstated effective July 29, 2018, and he returned to work onor about August 20, 2018. *Id.* at 3. 

 

In economically reinstatingTartaglia, FMBI made a substantial error. Tartaglia was owed a $6,520.00 bonus,and the company mistakenly disbursed it to him twice. First, the bonus amountwas added to an initial gross back pay calculation. Delbert Tso, a humanresource specialist employed by Freeport-McMoRan in Phoenix, was responsiblefor calculating the back pay award owed to Tartaglia based on informationprovided to him “from various sources.” Tr. 106–07; Resp. Br. at 4. Tso createda spreadsheet which showed the back pay owed to Tartaglia from October 2017through his return to work in August 2018. Tr. 107–08; Ex. R-EE. Thespreadsheet lists the regular earnings, overtime earnings, and $6,520.00 bonusTartaglia was owed, as well as vacation and sick leave owed. Tr. 108; Ex. R-EE.Tso also incorporated into the spreadsheet a *deduction* of $6,240.00 forunemployment benefits Tartaglia received between his termination and hisreinstatement. Tr. 108–09; Ex. R.-EE. Deducting unemployment in this way is astandard practice. Tr. 109, 129.

 

Per Tso’s calculations as displayedon the spreadsheet, Tartaglia was owed $50,896.53. Ex. R-EE. After approvalfrom the mine site, benefits department, and legal department, Tso emailed the corporatepayroll office for payout of the back pay award. Tr. 111. Tso’s involvement inthe process ended once he sent that email. Tr. 111.

 

Payroll supervisor Christina Jordantestified about the payout from FMBI to Tartaglia. Tr. 167–70. She explainedthat the $50,896.53 amount arrived at in the spreadsheet was the gross back payaward and did not reflect taxes or other deductions. Tr. 168–69. After $18,935.91in taxes and $9,296.62 in other deductions, the $50,896.53 back pay award owedto Tartaglia totaled 22,663.80,[2] and thatamount was paid to him via direct deposit on August 30, 2018. Ex. R-FF.

 

Tartaglia was mistakenly paid the$6,520.00 bonus a second time the following week, on September 7, 2018. Tr. 170–71.That check was for $4,410.78, reflecting the bonus amount less taxes and otherdeductions. Ex. R-GG. In explaining the error, payroll supervisor Jordan statedthat her department’s standard practice is to issue reinstatement amountsseparately from bonus checks. Tr. 170. Of course, in this instance, the bonusamount had already been incorporated into the reinstatement amount. Humanresources manager Kessler informed Jordan of the error after it occurred. Tr.171.

 

Kessler did not discover the error,but testified that she was notified by her supervisor in Phoenix that the bonushad been paid twice. Tr. 340–42. Apparently, the mistake happened because the originalback pay spreadsheet included the bonus, and then the compensation departmentsent over a “separate ticket,” which initiated the mistaken second payment. Tr.343. After she was notified of the error, Kessler called Tartaglia to informhim of what had happened. Tr. 350. As Kessler recalls, Tartaglia hung up on herbefore she could explain everything, so she called back and left a voicemail. Tr.350.

 

Following the phone communication,Kessler sent Tartaglia a letter explaining the error and the recoupment options.Tr. 258, 342, 350–51; Ex. R-HH. Notably, this letter informing Tartaglia of thepayment error was sent on September 17, 2018, just a few days prior to the September19–20, 2018 hearing in WEST 2018-0362-DM. Tr. 258; Ex. R-HH. In the letter,Kessler presented Tartaglia with two options for correcting the error. Ex. R-HH.He could either provide payment for the net amount of $4,410.78 by September28, 2018 or the company could deduct the total net amount from four paychecksin approximately equal amounts. *Id.* The letter requested that Tartagliarespond by September 28, 2018 to inform Kessler if he disputed the overpayment,or, if not, to advise Kessler which option he wanted to elect for repayment ofthe extra bonus. *Id.*

 

Tartaglia failed to timely respondto Kessler’s letter. Tr. 354. Accordingly, as specified in the letter, Kesslerassumed that Tartaglia did not dispute the overpayment and that he would preferto have the $4,410.78 deducted from four paychecks. Tr. 354. The money was thendeducted from five of Tartaglia’s paychecks as follows:

 

 

 

 

 

 

| **Pay Date** | **Amount Withheld** |
|--------------|---------------------|
| 11/02/2018   | $1,304.00           |
| 11/16/2018   | $1,304.00           |
| 11/30/2018   | $1,304.00           |
| 12/14/2018   | $800.63             |
| 12/28/2018   | $1,807.37           |
| **TOTAL**    | **$6,520.00**       |

 

Ex. R-II; Tr. 173–74. The parties did not specifically addresswhy five withdrawals were made instead of four, but Jordan testified that thefourth was for only $800.63 because Tartaglia did not have enough wages in thatpay period to cover the full $1,304.00. Tr. 194–95. Jordan further testifiedthat the gross bonus amount, $6,520.00, was deducted rather than the net amountbecause taxes “self-adjust.” Tr. 174.

 

Prior to and at the hearing,Tartaglia disputed FMBI’s assertion that the deductions were proper,maintaining instead that FMBI stole this money from his checks in order to payhis settlement. *See, e.g.*, Tr. 201, 224; Complainant’s Post-HearingBrief (Comp. Br.) at 3, 4. At Tartaglia’s request, FMBI senior human resourcesgeneralist David Fendrich provided Tartaglia with requested copies of his checkstubs and reviewed the back pay spreadsheet with him. Tr. 427–28, 436. Tartagliaremains unconvinced that the overpayment actually occurred and, thus, that therecoupment was proper. Tr. 339, 344; Comp. Br. at 3, 4; *see also*Tr.261, 437. Tartaglia has put forth no evidence to support his assertion that hewas not paid twice for the same bonus or that recoupment was improper. In fact,he acknowledged at hearing that he did receive two direct deposits in his bankaccount, one for $22,663.80 and a second for $4,410.78. Tr. 257; Ex. R-JJ. Thoughthese numbers align with FMBI’s position, Tartaglia seems to believe that thefirst disbursement was for wages only and the second was for a bonus. *See*Tr. 257.

 

On November 14, 2019, the partiesreturned to the arbitrator who issued the July 2018 reinstatement award toresolve this double payment issue and address the misunderstanding between theparties about the implementation of the award. Tr. 437–39; Resp. Br. at 5. OnJanuary 16, 2020, the arbitrator issued a decision upholding FMBI’s calculatedremedy and finding that Tartaglia was double-paid his bonus. Ex. R-DD; Tr. 439;Resp. Br. at 5. 

** **

**C.   ****Tartaglia’sComplaints to MSHA**

** **

The parties agree that Tartagliafiled a discrimination complaint with MSHA on or about March 20, 2019. Jt.Stip. 5. The filing of that complaint marks the inception of this case. In thatdocument, Tartaglia alleged that he was being discriminated against by FMBIbecause the company was “still blaming” him for an incident that took place inOctober 2017, the payroll department was “wrongfully taking monies” from him, andcompany housing was “wrongfully taking monies” from his payroll. Ex. R-A. Thecomplaint also made generic references to “criminal activity” and “interferencein the work place.” *Id.*

 

The parties further stipulated athearing that Tartaglia called MSHA’s hotline on November 20, 2018, four monthsbefore he submitted the March 20, 2019 complaint. Jt. Stip. 7. Tartaglia producedthe MSHA Escalation Report documenting this hotline call in order to show that“the complaint was filed in a timely manner.” Tr. 497. The report states thatthe caller, Tartaglia, called to report retaliation for going to court regardingsafety issues he reported to MSHA. Ex. C-3. It notes that Tartaglia stated thatthe case was closed with a settlement and that FMBI was now taking money out ofhis paychecks and that he wanted an MSHA inspector to contact him. *Id.* Nofurther evidence relating to this hotline complaint was introduced, so itremains unclear whether MSHA took any steps to investigate as Tartagliarequested on the call. 

** **

**D.   ****April 11,2019 Disciplinary Action**

** **

At the time of his discharge byFMBI in October 2017, Tartaglia was classified as a Truck Driver I and had justsuccessfully bid for the position of Shovel Operator I, though he had not yetstarted training for the shovel operator position. Tr. 235–37, 276; Ex. R-Y. Tartagliawas then reinstated pursuant to the July 2018 arbitration decision, andphysically returned to work in August 2018. Tr. 410; Resp. Br. at 5.

 

Upon his return to work, Tartaglia resumedhis previous position. He was retrained on a piece of equipment called a rubbertire dozer (RTD), which is one skill required for the Shovel Operator Iposition. Tr. 276, 370. Usually, miners progress from haul trucks to RTDs toshovels. Tr. 93, 414. Crucially, however, RTD is not a standalone position: RTDssupport the shovel and are typically operated by haul truck drivers who havecompleted necessary RTD training. Tr. 92–93, 414–15; Ex. R-W. Tartaglia hadoperated an RTD prior to his termination, and completed task training inOctober 2018 to get requalified on it when he came back to work. Tr. 276. 

 

Because RTD is not a standaloneposition, and since Tartaglia had bid successfully for the shovel position, hewas then due to move on to shovel training after getting requalified on the RTD.Tr. 276, 373. He began Shovel Operator I training in December 2018, but quicklydiscontinued it because he felt there were too many ongoing issues with FMBI. Tr.238, 276, 418–19. He was uncomfortable with continuing the training at thattime. Tr. 203, 238. 

 

Human resources generalist Fendrich,mine supervisor Steve Rusinski, and senior supervisor Tommy O’Neill all askedTartaglia on various occasions whether he wanted to complete shovel operatortraining. Tr. 277, 417; Exs. R-K, R-L, R-M. Tartaglia testified that he wantedto continue operating a RTD, and he was surprised when the company told himthat RTD operator was not a standalone position. Tr. 203, *see*Tr. 291–96.FMBI had another shovel coming online in 2019, and thus had a business need formore shovel operators. Tr. 412; Exs. R-J, R-K, R-L; Resp. Br. at 5–6.

 

On February 6, 2019, Rusinski had aconversation with Tartaglia about the shovel training. Ex. R-J. He toldTartaglia that the company needed to train someone on the shovel, so Tartagliahad to either begin training or give the company the go-ahead to train someoneelse. Tr. 277; Ex. R-J. Tartaglia told Rusinski that the company could go aheadwith training someone else until he was done with his issues with FMBI. Tr.279. Rusinski collected a written statement from Tartaglia to this effect. Ex.R-LL. Rusinski also asked Tartaglia to let him know if he wanted to run an RTDor a haul truck, and, according to Rusinski, Tartaglia communicated that hewanted to do both. Ex. R-J; Tr. 279–80.

 

On February 22, 2019, Fendrich andO’Neill had a conversation with Tartaglia during which O’Neill informedTartaglia that the company needed a final answer from him regarding whether hewanted to move forward with his shovel operator bid or go back to his previous classificationas a truck driver. Tr. 418–19; Exs. R-K, R-L. During that conversation,Tartaglia was presented with the two unambiguous options, but seemed unwillingto definitively select one. *See*Ex. R-L. He told O’Neill, as he hadpreviously told Rusinski, that the company could train someone else on theshovel because he “didn’t have time for any training.” Tr. 419; Exs. R-J, R-L. Tartagliaseemed to think that someone could be trained on the shovel without Tartaglialosing his successful bid, but O’Neill informed him that that was not anoption. *See*Ex. R-K. O’Neill told Tartaglia that he would be requalifiedon a truck and classified as a Truck Driver I and that he could re-apply forfuture shovel positions. *Id.* Fendrich then stated his belief that thenext truck training class was scheduled to begin on April 1, 2019. Ex. R-L.

 

One month later, on March 22, 2019,Fendrich had another conversation with Tartaglia about truck training. Tr. 423.That day, Tartaglia was given a letter signed by O’Neill which memorialized theFebruary 22, 2019 conversation and again presented Tartaglia with the twooptions. Ex. R-M. It communicated that the company “needs all employees in theShovel Operator I position to complete their training promptly.” *Id.* Theletter clarified that it was Tartaglia’s “final opportunity” to elect one oftwo options:

 

(1) You will begin the shovel operatortraining no later than April 9, 2019 and complete such training within nineweeks. If you do not timely complete the training, you will receive a lateraltransfer back to the position of Truck Driver I (no reduction in pay) and berequired to take the next scheduled training necessary to requalify you on atruck and complete such training within six weeks of starting it.

 

(2) You will receive a lateral transferback to the position of Truck Driver I (with no reduction in pay) and berequired to complete any training necessary to be requalified on a truck withinsix weeks of such transfer. Of course, as we discussed (assuming you'requalified), you may apply for any shovel operator bids that arise in thefuture.

 

*Id.* The letter directed Tartaglia to provide an “*unqualified*decision . . . *in writing*” to O’Neill or Fendrich by 5:00 p.m. on March31, 2019. *Id.* It further notified Tartaglia that, if he failed to submita decision on time, the company would assume that he selected the second optionfor a lateral transfer back to Truck Driver I. *Id.*

 

            Tartaglia failed to submit a decision before the5:00 p.m. deadline on March 31, 2019. At 6:39 p.m., he emailed Fendrich to declarethat he was “not up for any training” and that he was “on the Rubber Tire Dozerand will stay there until everything is resolved . . . Final Response.” Ex. R-N.

 

According to a letter from O’Neill,Tartaglia was instructed at the end of his shift on March 31, 2019 to attendhaul truck training, and Tartaglia stated at the time that he would not attendthe training. Ex. R-T. On April 1, 2019, Tartaglia reported to work and wasagain notified that he was scheduled to begin haul truck training that day. Tr.280–81. Tartaglia then informed Rusinski that he was not going to attend thetraining because he had a lot going on with the company. Ex. R-Q. Rusinski understoodTartaglia’s response to be a refusal to attend the training, and accordingly collectedwritten statements from Tartaglia. Tr. 280; Exs. R-O, R-P. In one of thestatements, Tartaglia stated that he had “made it clear to David Fendrich” thathe was “not up for no training” because he had “hearing, deposition,investigations coming up.” Ex. R-O. In the other, Tartaglia claimed that theactions FMBI was taking were retaliatory and noted that “[t]his will be reportedas retaliation.” Ex. R-P. 

 

Based on his testimony at hearing,it appears that Tartaglia believes he did not need to attend the training becausehe had upcoming days off that had been approved by management. *See* Tr. 308–10.However, Tartaglia did not put forth any evidence to show that the trainingwould have prevented him from taking his scheduled time off.

 

Following Tartaglia’s refusal to goto the scheduled training, Rusinski placed Tartaglia on investigatory leavewith pay (IWP). Tr. 285; Ex. R–R. On the top of the IWP form, Tartaglia wrote“This is under protest” and “This is not a refusal as well they are aware.” Ex.R-R. Rusinski stated at hearing that Tartaglia “grabbed the paper and wrotethat on there and gave it back to me.” Tr. 285. Other than this statement, theevidence and testimony support that the haul truck training was a workassignment and that Tartaglia was unwilling to attend the training that day. *See*Tr. 280–82, 429; Exs. R-O, R-P, R-Q, R-T.

 

After an investigation, FMBI made adecision to issue a disciplinary action to Tartaglia. Tr. 432–33. On April 11,2019, Tartaglia was issued a “final written warning” for his refusal to attendthe April 1, 2019 training. Tr. 433; Ex. R-S. In both the written warning andin a letter issued by O’Neill the same day, the evolution of the problem wasrecounted. Exs. R-S, R-T. In the letter, O’Neill explained to Tartaglia that

 

the Company has a business need foryou, in your position of Truck Driver I, to complete your truck driver trainingand be certified to operate a Haul Truck. You will again be enrolled in thenext available Truck Driver training class, to begin no later than May 20,2019, and expected to attend this assigned work. Per the Company's GuidingPrinciples, for which you signed the most recent certification form on12/19/2018, “Refusal to do assigned work . . .” is an action considered seriousin nature and may result in discipline, up to and including termination.

 

Ex. R-T.  

**                                                                                         IV.         ****DISPOSITION**

** **

Tartaglia alleges that FMBIviolated the settlement agreement entered into in WEST 2018-0362-DM. He furtherasserts that FMBI violated the Mine Act when it recovered a duplicate bonuspayment and when it disciplined him on April 11, 2019. FMBI contends that itdid not violate the settlement agreement. Respondent also claims that the issueof whether the recovery of the duplicate bonus payment violated the Mine Act istime-barred. FMBI further maintains that neither the recovery of the duplicatepayment nor the April 11, 2019 discipline were adverse actions motivated byprotected activity under the Mine Act. 

 

Below, I address the five issuesenumerated and agreed to by the parties at hearing.

** **

**A.   ****Neitherparty violated the settlement agreement reached in WEST 2018-0362-DM.**

** **

FMBI did not allege at any point inthese proceedings that Tartaglia violated the settlement agreement. Accordingly,my analysis on this issue is limited to whether FMBI violated the agreement asalleged by Tartaglia in his filings and at hearing.

 

Tartaglia does not believe that FMBIerroneously disbursed the same bonus to him twice. Tr. 204, 225, 256, 257, 266.Rather, he believes that money was taken out of his paychecks in order to sourcethe money for the settlement check FMBI owed him. *See*Tr. 201, 224. Thisassertion is without support. FMBI has shown that it did in fact pay Tartaglia twicefor a bonus and that the amount withdrawn from Tartaglia’s pay was equal to theamount mistakenly paid. Moreover, FMBI sent the notice regarding the erroneousdouble payment and Tartaglia’s options for returning the excess money to him onSeptember 17, 2018, *before* the hearing in the first case and thus *before*the settlement was reached. Ex. R-HH; Tr. 258. Though the timing may besuspect to Tartaglia, the evidence makes clear that the recovery of theduplicate bonus is unrelated to the settlement. 

 

Per the terms of the settlementreached orally at hearing in Tartaglia’s prior case, FMBI was obligated to payTartaglia a cash payment for housing expenses and to provide a neutralreference from a Freeport-McMoRan employee outside of FMBI. As explained above,FMBI sent a settlement check to Tartaglia on March 5, 2019. Ex. R-I. Afterrefusing to cash that check for over a year, Tartaglia requested a replacementcheck following the hearing in this case. Resp. Br. at 7, Attach. A. One wasprovided to him, and he posted it on April 16, 2020. Resp. Br. at 7, Attach. B,Attach. F. Tartaglia made no allegations and put forth no evidence concerningFMBI’s other obligation under the settlement—to provide him a neutralreference. Human resources manager Kessler testified that to her knowledgeTartaglia has not requested a reference from the company. Tr. 329. 

 

FMBI has not claimed that Tartagliaviolated the settlement agreement, and Tartaglia has put forth no evidence tosuggest that FMBI failed to fulfill its obligations. Accordingly, based uponthe evidence and testimony presented at hearing, I find that neither partyviolated the settlement reached in WEST 2018-0362-DM. 

** **

**B.   ****The issueregarding recovery of bonus money erroneously paid twice to Tartaglia is nottime-barred.**

** **

Section 105(c)(2) of the Mine Actprovides an avenue through which miners who believe they have beendiscriminated against may file a complaint with the Secretary alleging suchdiscrimination. 30 U.S.C. § 815(c)(2). Complaints are to be filed “within 60days after such violation occurs.” *Id.* In this case, Tartaglia filed hissection 105(c) complaint with MSHA on March 20, 2019. Jt. Stip. 5. This was somesix months after FMBI’s September 17, 2018 notice informing him that he hadbeen erroneously paid twice for a bonus. Ex. R-HH. It was also more than 60days after December 28, 2018, which was the date FMBI completed its recoupmentof the erroneous payment. Ex. R-II. Thus, FMBI argues that the double bonus recoveryissue is time-barred under the Mine Act. Resp. Br. at 16–19.

 

The 60-day time limit is intendedto avoid stale claims, but the Commission has held that “a miner’s late filingmay be excused on the basis of ‘justifiable circumstances.’” *David Hollis v.Consolidation Coal Co.*, 6 FMSHRC 21, 24 (Jan. 1984) (citation omitted). Inurging the court to find that this claim is time-barred, Respondent drawscomparisons to the Commission’s decision in *Hollis v. Consolidation Coal Co.*Resp. Br. at 17–18. In that case, the complainant, Hollis, waited more thanfour months after his discharge to file a complaint with the Secretary. *Hollis*,6 FMSHRC at 24. The judge did not find Hollis’ claimed ignorance of his rightsto be credible, since Hollis was chairman of his union’s safety committee, hadfiled numerous safety complaints in the past, and had deliberately chosen toseek other avenues of relief during the 60-day period following his discharge. *Id.*

 

The upshot of *Hollis*is that“[t]imeliness questions must be resolved on a case-by-case basis, taking intoaccount the unique circumstances of each situation.” *Id.* While Tartagliahas previously filed a discrimination complaint under section 105(c), the factsof this case do not warrant a comparison to *Hollis*. Undoubtedly,Tartaglia missed the 60-day filing window by a substantial margin when consideringhe filed his complaint on March 20, 2019. However, Tartaglia made a call to theMSHA hotline on November 20, 2018, approximately 60 days after he was notifiedof the duplicate payment. Jt. Stip. 7; Ex. C-3. MSHA’s documentation of thatcall states that Tartaglia called to “report retaliation” and assert that “theMine is taking money out of his paychecks.” Ex. C-3. It also notes that Tartagliarequested that an inspector get in contact with him. *Id.*

 

At hearing, in response to thecourt’s admission of the MSHA hotline call, FMBI pointed to its Freedom ofInformation Act request response from MSHA, which indicates that Tartaglia’s complaintwas received by MSHA on March 27, 2019 and does not mention any investigationarising out of the November call. Tr. 496–97; Ex. R-KK. Respondent argues thatthe hotline call did not properly conform to the section 105(c) discriminationcomplaint process. *See*Resp. Br. at 16–19. I am unwilling to hold Tartagliato the strict standard Respondent seems to urge given the absence of evidenceregarding MSHA’s actions in processing the hotline complaint. While Tartagliahas some experience with filing section 105(c) complaints, his familiarity withthe process does not rise to the level shown in *Hollis*. FMBI has failedto establish that Tartaglia knew that a hotline call was an insufficient way tolodge a discrimination complaint with MSHA, and the court will not assume thisfact. This is especially true with regard to both the time requirements forperfecting his discrimination complaint and his misunderstanding that hishotline complaint met minimum filing requirements. 

 

Accordingly, I find the November20, 2018 MSHA hotline call to be a “justifiable circumstance” and excuseTartaglia’s late filing. The merits of the issue of the duplicate bonusrecovery are analyzed below. 

 

**C.   ****Therecovery of the duplicate bonus payment was not an adverse action motivated byprotected activity under the Mine Act.**

** **

Tartaglia asserts that FMBI did notpay him twice for the same bonus. Tr. 204, 225, 256, 257, 266. As discussedabove, he believes that the withdrawals made from his paychecks were utilizedto pay his settlement. *See*Tr. 201, 224. The evidence put forth by FMBIclearly shows that this is not the case, and that he was erroneously paid thesame bonus twice. Exs. R-EE, R-FF, R-GG, R-HH. 

 

Having established that theduplicate payment *occurred*, the issue here is whether FMBI violated theMine Act in *recovering* the erroneous payment. For the reasons set forthbelow, I find that FMBI did not violate the Mine Act in recovering the money. 

 

Section 105(c)(1) of the Mine Actprovides that a miner shall not be discharged or otherwise discriminatedagainst because they have made a complaint regarding an alleged safety orhealth violation. 30 U.S.C. § 815(c)(1). Under the traditional *Pasula-Robinette*framework, the Commission has held that a miner alleging discriminationestablishes a prima facie case of prohibited discrimination by presentingevidence sufficient to support a conclusion that (1) the complainant engaged inprotected activity, and (2) the adverse action complained of was motivated inany part by the protected activity. *Jayson Turner v. Nat'l Cement Co.*,33 FMSHRC 1059, 1064 (May 2011); *Driessen v. Nev. Goldfields, Inc.*,20 FMSHRC 324, 328 (Apr. 1998); *Sec'y of Labor on behalf of Pasula v.Consolidation Coal Co.*,**2 FMSHRC 2786, 2799 (Oct. 1980), *rev'don other grounds sub nom. Consolidation Coal Co. v. Marshall*, 663 F.2d1211 (3d Cir. 1981); *Sec'y of Labor on behalf of Robinette v. UnitedCastle Coal Co.*, 3 FMSHRC 805, 817–18 (Apr. 1981).

 

****If a miner establishes a prima faciecase, the operator may rebut that case “by showing either that no protectedactivity occurred or that the adverse action was in no part motivated by theprotected activity.” *Turner*, 33 FMSHRC at 1064. If the operator cannotrebut the prima facie case, it may nevertheless defend affirmatively by provingby a preponderance of the evidence that, although part of its motivation wasunlawful, the adverse action was also motivated by the miner’s unprotectedactivity *and* it would have taken the adverse action against the minerfor the unprotected activity alone. *Id.*; *Pasula*, 2 FMSHRC at2799–2800.

** **

**1.    ****ProtectedActivity**

** **

Complainants bear the burden ofestablishing protected activity. *Pasula*, 2 FMSHRC at 2799–2800; *Sec’yof Labor on behalf of Riordan v. Knox Creek Coal Corp.*, 38 FMSHRC 1914,1920–21 (2016). A miner has engaged in protected activity if they (1) have“filed or made a complaint under or related to this Act, including a complaint. . . of an alleged danger or safety or health violation;” (2) are “the subjectof medical evaluations and potential transfer under a standard publishedpursuant to section 101;” (3) have “instituted or caused to be instituted anyproceeding under or related to this Act or has testified or is about to testifyin any such proceeding;” or (4) have “exercised on behalf of himself or others. . .any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1).

 

Tartaglia has engaged in numerousinstances of protected activity. In WEST 2018-0362-DM, he filed a complaintwhich initiated proceedings under the Mine Act and culminated in a hearing onSeptember 19–20, 2018 with a settlement reached at that hearing. In furtherproceedings in that case, the matter was remanded back to me by the Commission.I issued a decision upholding the settlement on February 11, 2019. Tartaglia’s November20, 2018 hotline call and his March 20, 2019 MSHA complaint filed in thismatter also constitute protected activity. Accordingly, Tartaglia has satisfiedthis element of the prima facie case.

 

**2.    ****AdverseAction Motivated by Protected Activity**

** **

The Commission has defined “adverseaction” as “an action of commission or omission by the operator subjecting theaffected miner to discipline or a detriment in his employment relationship.” *Sec’yon behalf of Pendley v. Highland Mining Co.*, 34 FMSHRC 1919, 1930 (Aug.2012) (citations omitted). The question of whether an employer’s actionqualifies as “adverse” is thus decided on a case by case basis. *Sec’y ofLabor ex. rel. Jenkins v. Hecla-Day Mines Corp.*, 6 FMSHRC 1842, 1848 n.2(Aug. 1984).

 

Tartaglia has failed to show howthe recovery of a bonus payment FMBI erroneously disbursed to him twice is anadverse action motivated by his protected activity. He proffered no evidence suggestingthat the bonus payment subjected him to detriment in his employmentrelationship. For its part, FMBI has shown precisely how the error was made andhow it went about correcting the error.

 

Imprudent as it was, I find thatthe double payment was simply an accounting error, a mistake made by the peoplein charge of Tartaglia’s economic reinstatement. It does not rise to the levelof an adverse employment action motivated in any part by Tartaglia’s protectedactivity. Consequently, Tartaglia is unable to meet the elements of a primafacie claim of discrimination on the bonus recovery issue. 

** **

**D.   ****The April11, 2019 discipline was not an adverse action motivated by protected activityunder the Mine Act.**

** **

Tartaglia’s second claim ofdiscrimination involves the final written warning he was issued on April 11,2019 for his refusal to attend truck training on April 1, 2019. Though thiswarning was issued several weeks after Tartaglia submitted his March 20, 2019complaint to MSHA, it arose during the pendency of MSHA’s investigation and wasaccepted as an issue in these proceedings. For the reasons that follow, I findthat FMBI did not violate the Mine Act in issuing Tartaglia a final writtenwarning.

 

**1.    ****PrimaFacie Case**

** **

It bears repeating that to make outa prima facie case of discrimination, a complainant need only present “evidence*sufficient to support a conclusion* that the individual engaged inprotected activity and that the adverse action complained of was motivated inany part by that activity.” *Driessen*, 20 FMSHRC at 328 (emphasis added).“This burden is lower than the ultimate burden of persuasion, which thecomplainant must sustain as to the overall question of whether section105(c)(1) has been violated.” *Turner*, 33 FMSHRC at 1065. For the reasonsthat follow, I find that Tartaglia has met this initial, low burden andestablished a prima facie case of discrimination.

 

**a.    ****ProtectedActivity**

 

FMBI argues that this claim does notinvolve protected activity and insists that Tartaglia’s refusal to do thetraining is not protected under the Mine Act. Resp. Br. at 20. However, asnoted above, Tartaglia engaged in numerous instances of protected activitybetween September 2018 and March 2019, including a call and complaint to MSHAand the engagement in the 105(c) process before this court. He has satisfiedthe protected activity element of the prima facie discrimination case. 

 

**b.    ****AdverseAction Motivated by Protected Activity**

** **

Regarding this issue, Tartaglia hasalso shown that he was subject to an adverse action. The discipline he receivedon April 11, 2019 fits plainly within the Commission’s definition of adverseaction as “an action of commission or omission by the operator subjecting theaffected minor to discipline or a detriment in his employment relationship.” *Pendley*,34 FMSHRC at 1930 (citations omitted). 

** **

            In addition to protected activity and an adverseaction, the prima facie case requires the Complainant to demonstrate that thereis evidence sufficient to support an inference of a causal nexus—that is, that theprotected activity motivated Respondent to take the adverse action. 

 

A miner need not provide directevidence of an operator’s discriminatory motive, but may provide“circumstantial evidence . . . and reasonable inferences drawn therefrom may beused to sustain a prima facie case.” *Turner*,**33 FMSHRC at 1066–67(quoting *Bradley v. Belva Coal Co.*, 4 FMSHRC 982, 992 (June 1982)). Inevaluating whether a causal connection exists between the protected activityand the adverse action, the Commission looks to four factors: “(1) the mineoperator's knowledge of the protected activity; (2) the mine operator's hostilityor ‘animus’ toward the protected activity; (3) the timing of the adverse actionin relation to the protected activity; and (4) the mine operator's disparatetreatment of the miner.” *Cumberland River Coal Co.*, 712 F.3d at318; *see also Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp.*,3 FMSHRC 2508, 2510–12 (Nov. 1981), *rev'd on other grounds*, 709F.2d 86 (D.C. Cir. 1983). I will examine these factors in turn.

 

**                                         i.    ****Knowledgeof Protected Activity**

 

 Tartaglia’s engagement of the105(c) process in his prior case before this court, his call to MSHA inNovember 2018, and his March 2019 complaint are all sufficient to establishthat he engaged in protected activity. FMBI does not dispute these instances ofprotected activity. While I acknowledge that FMBI was unaware of the November2018 MSHA hotline call for some time, I find that, all told, Respondent hadknowledge of Tartaglia’s protected activity.

** **

**                                       ii.    ****Animusor Hostility Toward the Protected Activity**

 

Throughout the hearing, Tartagliasuggested that FMBI scheduled him for truck training in order to interfere withhis upcoming, approved days off which he was taking in order to engage indepositions and other protected activity related to his claims against FMBI. *See,e.g.* Tr. 465, 474. However, Tartaglia did not put forth any evidence todemonstrate that the training schedule would interfere with his plannedactivities outside of work. Tartaglia’s wholly unsupported allegations areinsufficient to support an inference that FMBI had any animus or hostilitytoward his protected activity as it relates to his scheduled truck drivertraining.

** **

**                                      iii.    ****Timing**

** **

Tartaglia was disciplined on April11, 2019, just a few weeks after he submitted his March 20, 2019 complaint to MSHA.Ex. R-S; Jt. Stip. 5. The Commission does not apply “hard and fast criteria indetermining coincidence in time between protected activity and subsequentadverse action when assessing an illegal motive.” *Hicks v. Cobra Mining,Inc.*, 13 FMSHRC 523, 531 (Apr. 1991). Given the objectively short amount oftime between this instance of protected activity and the adverse action, I findthat a coincidence in time exists in Tartaglia’s case.

 

**                                      iv.    ****DisparateTreatment**

** **

Tartaglia has not shown that he wassubject to disparate treatment. “Typical forms of disparate treatment areencountered where employees guilty of the same, or more serious, offenses thanthe alleged discriminatee escape the disciplinary fate which befalls thelatter.” *Chacon*, 3 FMSHRC at 2512. It is unclear whether any otherminers employed by FMBI have failed to attend training like Tartaglia. However,the evidence overwhelmingly shows that Tartaglia was given numerousopportunities to not only complete his required training but to choose whichposition he desired to hold and be trained for. Tr. 277, 417–19, 423; Exs. R-J,R-K, R-L, R-M, R-LL. Tartaglia’s refusal to attend assigned trainingconstitutes a “refusal to do assigned work,” which under Freeport-McMoRan’s“Guiding Principles” is a serious action which “may result in immediatedischarge.” Ex. R-Z, p. 23–24; Tr. 39, 408–09. The final written warning wasless severe than the termination expressly permitted by the Guiding Principlesfor this type of infraction. I find that Tartaglia was not subject to disparatetreatment.

 

**                                       v.    ****Conclusion**

 

Because the facts and evidence putforth in this case satisfy the knowledge and timing factors, and bearing inmind that the prima facie burden is minimal, I find that Tartaglia has putforth evidence that “*could*support an inference” that the adverse actionwas motivated, at least in part, by his protected activity. *Turner*, 33FMSHRC at 1066 (citation omitted). As discussed below, however, I find that FMBIhas successfully rebutted Tartaglia’s prima facie case.

 

**2.    ****Rebuttal**

** **

The operator may rebut the miner's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. *Id.*at 1064. Having already rejected FMBI’s argument that no protected activityoccurred, I turn to its motivation behind the adverse action. 

 

The evidence in this case is clear.FMBI had a legitimate business need for a shovel operator, Tartaglia had anoutstanding bid for that position, and Tartaglia was notified numerous times ofthe company’s need for him to be trained on the equipment. Tr. 418, 236–37;Exs. R-M, R-T. Tartaglia started shovel training, discontinued it, and wasasked several times whether he would be availing himself of his bid. Tr. 238, Exs.R-L, R-K, R-M. Tartaglia wished to continue operating the RTD, and wassurprised to learn it was not a standalone position. *See* Tr. 203, 292. Tartagliawas then given a choice between Truck Driver I and Shovel Operator I. Ex. R-M. Bothpositions required Tartaglia to attend training and both paid the same amount. *Id.*

 

FMBI went to great lengths to allowTartaglia the choice of which position he wanted to hold at the mine, andeventually presented the ultimatum with a deadline. *Id.* Tartaglia wasinformed that failure to make a timely decision would result in FMBI proceedingunder the assumption that he wished to give up his bid and return to the truckdriver position he had previously held. *Id.* He failed to make aselection by the deadline, and thus it should have been no surprise toTartaglia that FMBI enrolled him in the next scheduled truck driver training. 

 

Though he has shown coincidence intime between the protected activity and adverse action and FMBI’s knowledge ofhis protected activity, Tartaglia has failed to sustain the ultimate burden ofpersuasion as to whether section 105(c) has been violated. FMBI has thoroughlyestablished that Tartaglia’s discipline was issued because of his refusal to doassigned work. The final warning was issued after Tartaglia was instructednumerous times over several months that he needed to attend training, eitherfor the shovel operator position or for his return to a truck driver role. BecauseTartaglia failed to proffer any evidence that the decision to discipline him wasmotivated by his protected activity, I find that FMBI has successfully rebuttedTartaglia’s prima facie case. 

 

 

** **

**E.   ****FMBI hasnot violated section 105(c), so no remedies are available to Tartaglia.**

** **

The final issue enumerated fordecision in this case is what remedies are available to Tartaglia if aviolation of section 105(c) were found. Because Tartaglia has failed toestablish that FMBI either breached the settlement agreement or improperlydiscriminated against him, I need not reach the remedy issue.

 

**                                                                                                     V.         ****ORDER**

 

Accordingly, it is **ORDERED**thatthe complaint of discrimination brought by Peter Tartaglia, Jr. is hereby **DISMISSED**.

 

 

 

/s/ David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

 

Distribution: (Email[3]) 

 

Pete Tartaglia, Jr., petetartagliajr.88@gmail.com

 

Laura E. Beverage, Jackson Kelly PLLC, lbeverage@jacksonkelly.com

 

Karl F. Kumli, Jackson Kelly PLLC, karl.kumli@jacksonkelly.com

----

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

[2]The courtrecognizes that $50,896.53 minus $18,935.91 minus $9,296.62 equals $22,664.00,not $22,663.80. However, in the check stub testified to by Jordan, Ex. R-FF, itappears that the starting number was $50,896.33, $0.20 less than the numberarrived at in Tso’s spreadsheet, Ex. R-EE. This minor $0.20 discrepancy wasneither explained by FMBI nor challenged by Tartaglia, so I accept that $22,663.80is the correct amount owed to Tartaglia after taxes and other deductions. 

[3]For theforeseeable future, Federal Mine Safety and Health Review Commission (FMSHRC)notices, decisions, and orders will be sent only through electronic mail.Because FMSHRC will not be monitoring incoming physical mail or faxes, partiesare encouraged to submit all filings through the agency’s electronic filingsystem. If you are not able to file through our electronic filing system,please send an email copy and we will file it for you.