**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

 

August 4, 2020

 
| THEODORE OESAU,

             Complainant,

 

 

              v.

 

 

ROGERS GROUP, INC.,

              Respondent.                                       |   |   | DISCRIMINATION PROCEEDING

 

Docket No. CENT 2019-0276-DM

Case No. SC-MD-2019-07

 

 

 

Mine: Greenbrier Quarry

Mine ID: 03-00855 |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION**

 

Appearances:              ChrisW. Burks, WH Law, PLLC, 1 Riverfront Place, Suite 745, North Little Rock, AR72114

                                    MargaretS. Lopez, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 1909 K. Street ,N.W., Suite 1000, Washington, D.C. 20006

 

J. Carin Burford, Ogletree, Deakins,Nash, Smoak, & Stewart, P.C., 420 20th Street North, Suite 1900,Birmingham, AL 35203

 

Before:                                    Judge Simonton

 

This case is before me upon a complaintof discrimination filed by Theodore Oesau against Rogers Group, Inc. (“RogersGroup” 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]Oesau contends that Rogers Group violated the Mine Act when it terminated hisemployment because he engaged in activity protected under section 105(c). RogersGroup maintains that Oesau was terminated for violating the company’s NoHarassment Policy by uttering racial slurs on numerous occasions and by tryingto get the mine’s plant manager fired because he is Black. 

 

A hearing was held on February 18–21,2020 in Little Rock, Arkansas. Based on my full consideration of the testimonyand exhibits presented at hearing, the stipulations of the parties, myobservations of the demeanor of the witnesses, and the parties’ post-hearingbriefs, I find that Rogers Group did not violate the Mine Act when itterminated Oesau.

 

**                                                                                           I.         ****STIPULATIONS**

 

In its February 7, 2020 prehearingsubmission, Respondent Rogers Group submitted the following joint stipulations[2]on behalf of the parties:

 
    - Respondent is and, at all times relevant to this     proceeding, was the operator of the Greenbrier Quarry, Mine ID number 03-00855.     

 
    - The Greenbrier Quarry is a mine as defined in Section 3(h)     of the Mine Act, 30 U.S.C. § 802(h).

 
    - At all times relevant to this proceeding, products of the     Greenbrier Quarry entered commerce, the operations of products thereof     affecting commerce within the meaning and scope of Section 4 of the Mine     Act, 30 U.S.C. § 803.

 
    - Rogers Group is an operator, as the term “operator” is     defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d). 

 
    - The Federal Mine Safety and Health Commission properly has     jurisdiction over this proceeding. 

 
    - Complainant Theodore Oesau (“Complainant” or “Oesau”) was     previously employed by Rogers Group.

 
    - Oesau is a miner, as defined in the Mine Act at 30 U.S.C.     § 802(g).

 
    - Rogers Group terminated Oesau’s employment, effective     March 14, 2019.

 
    - Oesau timely filed with MSHA a discrimination complaint     under Section 105(c) of the Federal Mine Safety and Health Act (“Mine     Act”), 30 U.S.C. § 815(c), after his employment was terminated.

 
    - MSHA conducted an investigation, pursuant to Section     105(c) and issued a determination letter to Oesau, dated May 23, 2019,     stating that “MSHA does not believe that there is sufficient evidence to     establish, by a preponderance of the evidence that a violation of Section     105(c) occurred.”

 
    - On June 14, 2019, Oesau timely filed a Complaint with the     Federal Mine Safety and Health Review Commission, under Section 105(c)(3).

 
    - After receiving an Order to Show Cause, Rogers Group filed     an Answer to the Complaint on October 30, 2019.

 
    - The presiding administrative law judge has authority to     hear this case and issue a decision regarding this case pursuant to     Section 105 of the Mine Act, 30 U.S.C. § 815.

 

**                                                                                  II.         ****FINDINGS OF FACT**

** **

**A.   ****Background**

** **

Respondent Rogers Group, Inc.operates the Greenbrier Quarry (“Greenbrier” or “mine”), a sandstone open-pitquarry in Greenbrier, Arkansas. Jt. Stip. 1; Tr. II.12–13. The mine has approximately9–10 employees. *See*Tr. I. 100, 190, 276. 

 

Complainant Oesau worked for RogersGroup from March 2012 until March 2019. Respondent’s Post–Hearing Br. at 4; Jt.Stip. 8. He was employed as a light duty mechanic, and was responsible for performingpreventative maintenance on equipment. Tr. I. 200–01, 278. Oesau is not acertified mechanic. Tr. I. 197. In addition to preventative maintenance, healso worked as a backup equipment operator and performed upkeep, housekeeping,and landscaping duties as needed. Tr. I. 201. Oesau worked at Greenbrier, butalso rotated to three other Rogers Group locations: El Paso, Cabot, and ConwayCounty. Tr. I. 129. Because he worked at numerous locations and was responsiblefor a variety of tasks, Oesau’s schedule varied each day, but he generallyworked at Greenbrier a couple of days per week. Tr. I. 134, 206–07.  

 

Prior to March 2018, Oesau’s directsupervisor was the former Greenbrier plant manager.[3]Tr. I. 208; Tr. II. 111. According to Rogers Group’s western division vice president,that former manager had poor attention to detail and poor safety results, andleft the company because he failed a drug screen. Tr. I. 111–12. Following theformer Greenbrier manager’s departure, the Cabot location’s plant managerbecame Oesau’s direct supervisor. Tr. I. 206, 208. 

 

Respondent promoted a managementtrainee from its El Paso location to fill the Greenbrier plant manager positionin March 2018. Tr. I. 273; Tr. II. 109. Relevant to this case, he is a Black personoriginally from Botswana. Oesau described his relationship with this plantmanager as “fine,” and said that the only issues the two of them ever hadconcerned safety. Tr. I. 135–36, 188. The plant manager said that Oesau came tohim with safety concerns “infrequently.” Tr. I. 317. This case largely centers onthe relationship between Oesau and the Greenbrier plant manager. 

 

At various times prior to histermination, Oesau submitted a number of safety complaints to Rogers Groupmanagement, both orally and in writing. *See* Tr. I. 140–41. At one point,he began collecting safety complaints from other miners. Tr. I. 140–41. At thattime, allegations surfaced that suggested Oesau had, on multiple occasions, usedracially derogatory, offensive language to refer to the Greenbrier plantmanager. Tr. III. 99–102.

 

As set forth in more detail below, RogersGroup investigated both Oesau’s safety concerns and the claim that he haduttered racial slurs in the workplace. Respondent determined that the employeesat Greenbrier did not have any outstanding or unaddressed safety concerns and confirmedthat multiple miners had heard Oesau use offensive, racist language and thatOesau was intent on getting the manager fired. Oesau was thereafter terminatedfor violating the company’s No Harassment Policy.

 

At the hearing, Oesau asserted hisbelief that he was in fact “terminated for filing safety issues against” theplant manager. Tr. I. 127. He claimed that he never made any sort of race-basedcomments about the plant manager or any other coworkers. Tr. I.185–87, 269.

** **

**B.   ****Oesau’sSafety Complaints**

** **

At hearing, Oesau testified about anumber of safety concerns he had regarding the Greenbrier Quarry. He claimedthat the plant manager was always in a hurry to get the operation moving fasterand was content with only partially fixing things so that equipment could keeprunning. *See, e.g.*Tr. 190. 

 

Oesau testified about specific events,practices, and pieces of equipment that he felt posed safety hazards atGreenbrier.[4]He first testified about a drop-axel water truck, which he and another mechanichad previously tagged out of operation because it was under construction andhad a suspension issue. Tr. I. 127–29, 215. He claimed that the miner he foundoperating the truck told him that the plant manager authorized the removal ofthe tags from the truck. Tr. I. 127. The plant manager denied directing anyoneto remove a tag. Tr. I. 303; Tr. III. 75, 81. On cross-examination, Oesauconfirmed that an outside mechanic had examined the truck with the otherGreenbrier mechanic while Oesau was off-site. Tr. I. 215–16. The truck operatorlater testified that it was the other Rogers Group mechanic who removed the tagfrom the water truck, and that his impression was that the other mechanictalked to Oesau on the phone before doing so. Tr. II. 253–54. 

 

The second issue Oesau discussed athearing concerned a “980H loader” that was “popping in and out of gear.” Tr.131. Another former Rogers Group employee who operated the loader prior to leavingthe company testified about this issue as well. Tr. I. 43–44. He said that theplant manager encouraged him to run the loader despite the issue, but then clarifiedon cross-examination that the plant manager did not “make” him run it. Tr. I.44. He also testified that the plant manager had an outside mechanic come outto Greenbrier to examine the shifting issue and fix it, but it would sometimesact up again after being fixed. Tr. I. 52. Oesau too acknowledged that theplant manager had a mechanic come and look at the problem, but said initially thatas far as he knew, nothing had been done to fix the problem. Tr. I. 132. Helater contradicted that position and confirmed that the outside mechanic would workon the issue, think it was solved and then it would come up again. Tr. I. 224. Theplant manager testified that they had difficulty replicating the problem whenoutside mechanics came to troubleshoot, but that he took the machine out ofservice when the issue persisted. Tr. I. 295; Tr. III. 92–93. 

 

 Oesau also testified about hisconcerns with the way in which material was dumped off the high wall and onto apile. Tr. 132–33. He suggested that dumping material off the side of a highwall that has never been driven on or packed posed a hazard because of itsinability to support the weight of the equipment being driven on it. *See*Tr. I. 133. He further implied that operators were dumping too close to thehigh wall. *See* Tr. I. 133–134. Oesau was not present at the mine whenthis occurred. Tr. I. 228. When asked about this issue, the Greenbrier plantmanager acknowledged that an operator had raised this practice as a concern andstated that they went to look at the area and came up with a solution to allowthe operator to safely approach it. Tr. I. 294–95.

 

Another safety issue Oesau raised wasan electrocution that occurred at Greenbrier. Two months after beingelectrocuted on the job, the affected miner mentioned the incident to Oesau. Tr.I. 138. Oesau then told his supervisor, the manager at the Cabot location, whohad not previously heard about the incident. Tr. I. 138–39. The Greenbrierplant manager asserted that though he did not communicate with the Cabotmanager about the incident, he did report it to upper management shortly afterit happened. Tr. I. 349, 353.

 

Oesau also testified about a haultruck at the mine that had a broken seat. Tr. I. 139–40. He said two miners atGreenbrier came to him with the problem, and the three of them went to theGreenbrier plant manager to discuss it. Tr. I. 139. According to Oesau, theplant manager said “it’ll be alright,” and one of the miners then went ondriving the truck despite the broken seat. Tr. I. 140. The plant manager testifiedthat the seat normally allows an operator to adjust how the seat “floats”depending on work conditions and other factors, and the issue was that the seathad not been adjusting properly. Tr. III. 90. He also said that he made surethe operator was comfortable driving the truck, and that he ordered areplacement seat. Tr. III. 90. Before the replacement seat arrived, theoperator came back to the plant manager and reported that he was no longercomfortable operating the truck. Tr. III. 90. The plant manager said thatanother miner then operated the truck until the new seat arrived since thefaulty seat still performed for that miner’s weight class. Tr. III. 90. 

 

At the hearing, Oesau furthertestified that he had concerns about flat struts in the 325 haul truck, thesame truck that had a broken seat. Tr. I. 147–48. Oesau reported that thecondition was the result of the truck being overloaded. Ex. 4, p. 1. However, theplant manager testified that this could not be the case, since a front strutwas at issue, which would indicate speeding around a curve rather than overloading.Tr. III. 146. Oesau called in an outside mechanic to fill up the struts, andthe plant manager did not interfere with getting that work done. Tr. I. 227–28.

 

Oesau complained about a parkingbrake issue in the haul truck, too. Tr. I. 225; Ex. 4, p. 3. The truck’s brakepads were replaced, but Oesau said the outside mechanic who replaced the padssaid that the rotor was warped and also needed to be replaced. Tr. I. 226–27;Ex. 4, p. 3. According to Oesau, the plant manager did not allow the mechanicto put in a new rotor. Tr. I. 226–27. The plant manager testified that the outsidemechanic came several times to work on the brakes. Tr. III. 85–86. Over thecourse of multiple visits, the brake pads were adjusted, the the lockingmechanism was replaced, and the brake pads were replaced. Tr. III. 86. Theplant manager stated that the mechanic recommended the rotors be replaced, too,since they were causing the brake pads to wear prematurely. Tr. III. 86. However,because the mechanic confirmed there were no safety implications, the plant managerdecided to wait to replace the rotors. Tr. III. 86. He confirmed that themechanic tested the brakes after each visit to ensure that they workedproperly. Tr. III. 86–87.

 

Next, Oesau testified that a sensorrepair completed on a W–600 loader’s joystick was insufficient to fix itsproblems and asserted that the joystick should have been fully replaced. Tr. I.229; Ex. 4, p. 4. The plant manager testified that he had called the mechanicin to look at the issue, but since it was a few days before they could get outthere, Oesau looked at the machine before the outside mechanic did. Tr. III.83. Oesau had ordered a new joystick assembly, but once the outside mechaniccame out and saw it, that mechanic did not think the entire thing had to bereplaced. Tr. III. 83–84. For that reason, the plant manager returned thejoystick Oesau had ordered. Tr. III. 84.

 

Finally, Oesau alleged that a minerhad not been properly task trained to operate a piece of equipment at the mine.Tr. I. 230. He did not ask the miner in question or the plant manager about thetraining, but said that the two people qualified to do so told Oesau that theyhad not task trained the miner yet. Tr. I. 230–31. Oesau believes the MineSafety and Health Administration (MSHA) cited Rogers Group for this. Tr. I.231. The plant manager testified that the miner was task trained on theequipment prior to Oesau’s complaint. Tr. III. 96–97. The miner’s trainingrecords support this assertion. Ex. R–JJ. 

 

After witnessing what he believedto be numerous safety issues at the mine and feeling that nothing was beingdone about them, Oesau went to his direct supervisor, the manager of the Cabotlocation, with his concerns. Tr. I. 140. Oesau testified that his supervisordirected him to compile a written list of his concerns and to get writtenstatements from other miners at Greenbrier to document their concerns about theissues. Tr. I. 141. Oesau did this, and assembled a list documenting the haultruck’s flat struts, broken seat, and faulty brakes, as well as the loader’sjoy stick issue. Ex. C–4, p. 1–4. His document included a statement from oneother miner, who complained about the loader’s joystick, overloaded haul trucks,and the plant manager’s insistence on continuing operations when lightning isstriking too close to the plant. *Id*., p. 5–9. 

 

Complainant’s counsel called fourother former Rogers Group employees to testify about safety issues. Tr. I. 41–123.One of these employees never worked at the Greenbrier location. Tr. I. 119. Allhad some friction in their relationships with the Greenbrier plant manager. Whilesome of these witnesses testified about safety concerns that Oesau also complainedof, it appeared that they were essentially called to imply a pattern that showsemployees who go over the plant manager’s head to report safety concerns end upgetting fired, just like Oesau. However, none of the four former employees everfiled discrimination complaints against the company. In large part, theytestified about issues at other mine locations or facts that are otherwiseunrelated to this matter. In the interest of clarity, I have elected not tosummarize their testimony here.

** **

**C.   ****Oesau’s HarassingRemarks**

** **

Respondent maintains that Oesau wasfired for racial harassment in violation of the company’s No Harassment Policy.In particular, Respondent asserts that he was fired for using racial slurs whenreferring to the Greenbrier plant manager—which clearly constitutes racialharassment under the policy. At hearing, Rogers Group called multiple witnessesto testify about the comments.

 

**1.    ****MinerA**

 

One miner (“Miner A”), who himselfis Black, credibly testified that he heard Oesau make racially offensivestatements on multiple occasions. The first time was in May 2018, when Miner Ahad only been at Greenbrier for a few weeks. Tr. II. 264. After a morning safetymeeting, Miner A recalls Oesau say, in reference to the plant manager, “Thatblack ass nigger monkey. I ain’t doing nothing he tell me to do. He don’t knownothing he talking about.”[5]Tr. II. 263–64. About two hours later, Oesau came up to him and apologized, andMiner A told Oesau to apologize to the plant manager, not him. Tr. II. 265.

 

A few weeks later, Miner A took atruck to Oesau to be fixed. Tr. II. 256, 266–68. Miner A testified that he toldOesau “[the plant manager] told me to bring the truck up here for you to fixthe door,” and that Oesau replied, “I’m not going to fix on that nigger’struck.” Tr. II. 257, 267. Feeling bad, Miner A left and fixed the door himself.Tr. II. 257–58.

 

The third time, Miner A againbrought a truck to Oesau, this time for an antifreeze leak. Tr. II. 268. Oesaufirst said he was busy, and Miner A “waited, and waited, and waited.” Tr. II.268. When Miner A then said that the plant manager had him come up there to fixthe issue, Oesau said, “I’m not fixing anything for that nigger,” and Miner A droveoff. Tr. II. 268.

 

Miner A did not report theharassment at first because he did not want Oesau to lose his job. Tr. II. 268.However, by the third instance, he realized that Oesau really meant what hesaid, and felt that Oesau was “too comfortable” using that offensive language—MinerA “just couldn’t take it” anymore. Tr. II. 263, 268, 272.

 

When Oesau attempted to collect awritten statement from him about the plant manager allegedly putting miners indanger, Miner A told Oesau that he did not want to be involved. Tr. II. 258–59.Because he felt as if Oesau and two other miners were blindsiding the plantmanager by trying to get him fired for things that were not true, Miner A went tothe plant manager to tell him about Oesau’s attempts to get miners to write up safetycomplaints. Tr. II. 260–61. At that time, he also told the plant manager aboutthe racial slurs Oesau had used when referring to him. Tr. II. 261.

**2.    ****MinerB**

 

            A second miner (“Miner B”) testified he heardOesau use racial slurs several times. The first instance was before a morningsafety meeting, when Oesau used the “n” word to refer to the plant manager. Tr.II. 318. Then, in the shop on another morning, Oesau used the slur again. Tr.II. 319. Miner B told Oesau that that was not “the best thing to be saying”since they had the plant manager and Miner A, who are both Black, working atthe mine, and added that it was disrespectful to say in front of anybody. Tr.II. 319. Miner B also testified that Oesau had said “monkey” on three or fourseparate occasions, and that he figured Oesau was referring to the plant managereach time he said it. Tr. II. 320–21. 

            Miner B did not report the comments right awaybecause he thought that Oesau might stop using that language. Tr. II. 319. However,after the second time he heard Oesau use the “n” word in the shop, Miner Bcalled the plant manager after work to tell him about the racial slurs as wellas Oesau’s attempts to collect safety violations against the plant manager. Tr.II. 326–28. Regarding the safety violations, Miner B said that another miner hadapproached him on behalf of Oesau and told him that Oesau wanted to “get a listof safety violations to try to go against [the plant manager], to try to gethim fired.” Tr. II. 328. Miner B told the other miner that he was not going todo that, and testified that he felt it was wrong because the plant manager had neverdone anything to put any of the miners at risk. Tr. II. 328–29. Miner B saidthe plant manager was “surprised that somebody was trying to go after him” andtold Miner B that he would take care of it. Tr. II. 329–30.

 

**3.    ****GreenbrierPlant Manager**

 

            The plant manager testified that four miners toldhim Oesau was going around collecting safety complaints in an attempt to gethim fired. Tr. I. 323–24. In addition to Miners A and B reporting to him about theslurs and collection of safety complaints, the plant manager said a third mineralso called him about the safety complaints. Tr. I. 324. The plant manager thencalled a fourth miner to see if he knew anything about it. Tr. I. 324. Afterhearing from the miners, the plant manager sent an email to his supervisors inupper management with an attached document detailing the issues. Tr. I. 328. Inpertinent part, the attachment reads as follows:

 

Information given below is as given tome by those who took the liberty to inform me in the spirit of confidence andwould like to maintain anonymity:

 

On Thursday, March 21st 2019[6],Ted Oesau came to Greenbrier quarry to perform some PMs on our equipment.During the course of the day he approached some of my employees individually tonotify them that [the Cabot manager] had instructed him to compile all eventsin which I asked/forced them (my employees) to work unsafely or put them inuncomfortable/hazardous situations. It was mentioned that Ted assured those hespoke to that he was going to take the information directly to [the divisionvice president] to purge me. When Ted approached some individuals they refusedto be a part of his agenda, however, [“Miner C”] continued to persuadeeverybody to join him and Ted on this mission. Everyone on the crew except for[“Miner D”] declined [Miner C]’s attempt. [Miner D] allegedly agreed to joinforces with Ted Oesau and [Miner C].

 

Friday morning, first employeeapproached me to warn me to the situation that was brewing. Throughout the dayon Friday and Saturday the rest of my team called me to warn me of this. . . . 

 

Two of my employees remarked that Tedhad used hateful words against me in the past, calling me a “black monkey” anda “nigger”. These words were said in front of other employees in my absence.

 

Ex. R–X, p. 3.

 

The plant manager also recalled aconversation he had with Oesau’s supervisor, the Cabot manager,[7]after Oesau was fired: “he told me that he personally has heard Ted call me anigger, previously, and he coached Ted to never use that language ever again duringhis employment with Rogers Group.” Tr. I. 334.  

** **

**D.   ****RogersGroup Investigations**

** **

Both before and after theGreenbrier plant manager sent the email about Oesau’s apparent attempt to gethim fired, Rogers Group upper management conducted investigations into Oesau’s varioussafety complaints. The western division vice president testified at hearingabout these investigations. After initially becoming aware of issues betweenOesau and the Greenbrier plant manager in December 2018, he held a meeting inhis office in January 2019.[8]Tr. II. 36, 114. In that meeting, the division vice president, the Arkansas productionmanager, the Greenbrier plant manager, and Oesau met to discuss safety concernsas well as communication issues between Oesau and the plant manager. Tr. II. 36–37.At hearing, the division vice president could not remember which safety issuesin particular were discussed at the January meeting. Tr. II. 38. 

 

A second meeting was held in thedivision vice president’s office in February 2019. Tr. II. 39. At that meeting,Oesau claimed that tags were being taken off of a water truck and it was beingoperated when it was tagged out. Tr. II. 119–20. After that meeting and afterreceiving Oesau’s list of complaints from the Cabot manager, the division vicepresident went to Greenbrier to look into the safety issues. Tr. II. 122–25. Hetalked through the complaints with the plant manager and went through andinvestigated each complaint himself. Tr. II. 125–26.

 

The division vice president believedthat the issues between Oesau and the plant manager had something to do withthe transition from the old Greenbrier plant manager to the new one—they haddifferent management styles. Tr. II. 114–15. He testified that, to him, itseemed that the main problem between them was communication, and that bothOesau and the plant manager seemed willing to work together going forward aftereach meeting in his office. Tr. II. 115–18.

 

Following the Greenbrier plantmanager’s February 25, 2019 email about Oesau’s offensive statements andattempts to collect safety complaints about the plant manager, the divisionvice president directed the Arkansas area manager[9]and general manager of central Arkansas operations to begin an investigation. Tr.II. 131; Ex.13, p. 1. The area manager did not testify, but he did author amemo which recounts the investigation and the events leading up to it. Ex. R–Y.It explains that, on March 11, 2019, he and the general manager:

 

Both traveled to Greenbrier tointerview all hourly employees on site. Each employee was brought into anindividual interview to determine if they had been required to work in anunsafe manner, to ask how they felt the safety culture was, determine if thecrew had received appropriate training, and to determine if they had been partof or witnessed anyone participating in derogatory conversation regardingsupervision or coworkers. After having detailed conversations with all personnelon site it was discovered that 3 employees had witnessed Mr. Oesau calling [theplant manager] racially slanderous names. It was also found that only [“MinerE”] felt that there could be a safety issue at Greenbrier, but duringconversation it was also discovered that he had never been asked to or forcedto work in an unsafe manner.

 

*Id*., p. 3. The general manager’s testimony at hearingwas consistent with this. He recounted that he and the area manager went toGreenbrier unannounced and interviewed employees one at a time. Tr. II. 175–76.They asked the miners whether they had any safety concerns and if they “hadheard any obscene, or vulgar, or derogatory, or racial type slurs in and aroundthe operations.” Tr. II. 176. The interviewers did not name Oesau in theirquestioning, but the notes they typed up later states that two of the threeminers who had heard racially charged language “offered up, without coercion,Mr. Oesau’s name.” Tr. II. 176, Ex. R–Z, p. 2.

 

Two of the witnesses at hearingwere miners that had been questioned in the March 11, 2019 interviews. Miner Arecalled being asked if he had heard anything inappropriate said around themine. Tr. II. 271. Without naming Oesau, Miner A told the investigators aboutthe three instances in which he had heard racially offensive language atGreenbrier. Tr. II. 271, 291. Miner B testified that when he met with theinvestigators, they asked him about the safety culture around the plant, and hetold them that they had no problems with safety. Tr. II. 331. When askedgenerally about racial harassment, Miner B told the investigators that Oesauhad been making racial comments. Tr. II. 331.

 

The investigators did not interviewthe plant manager as part of their investigation into Oesau’s offensiveremarks. Tr. I. 328–29. The two interviewers took handwritten notes and later typedthem into a document at the request of Rogers Group’s Health and Safety director.Tr. II. 176–78. 

** **

**E.   ****Oesau’sTermination**

** **

The division vice president reviewedthe results of the investigation with the area manager, and they agreed thatOesau should be terminated. Tr. II. 137–38. Neither the Greenbrier plantmanager nor the Cabot plant manager was involved in the decision to terminateOesau. Tr. II. 137–38, 139–40; Tr. III. 110. Oesau was called into the divisionvice president’s office and informed of his termination on March 19, 2019. Tr.I. 150; Jt. Stip. 8. Oesau estimated that his termination occurredapproximately three weeks after turning in his list of safety issues to hissupervisor. Tr. I. 150.

 

Oesau filed a 105(c) discriminationcomplaint with MSHA on March 26, 2019. Ex. C–1, p. 1. On May 23, 2019, MSHAnotified Oesau that the agency had investigated his complaint and determinedthat there was insufficient evidence to support his allegations. *Id*. p. 6–7.Oesau then initiated this case on June 14, 2019. Jt. Stip. 11. Testimony anddocumentary evidence was presented at a hearing held in Little Rock, Arkansason February 18–21, 2020, and the parties thereafter submitted briefs andreplies to the court. 

** **

**                                                                                         III.         ****DISPOSITION**

** **

Oesau’s termination is the subjectof this case. He claims that he was fired because he raised concerns aboutvarious safety issues. Rogers Group argues that his safety complaints are not protectedactivity because Oesau had no reasonable, good faith belief that his safetyallegations were true. Respondent maintains that it did not terminate Oesaubecause he engaged in protected activity, but rather because he violated thecompany’s No Harassment Policy by using offensive, racist language on multipleoccasions in front of other employees at work and because he attempted to lureother employees into a racially-motivated campaign to get the Greenbrier plant managerfired.

** **

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.

** **

**A.   ****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 Oesau has met this initial, low burden and establisheda prima facie case of discrimination. 

 

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

** **

Complainants bear the burden ofestablishing protected activity. *Pasula*, 2 FMSHRC at 2797–2800; *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). 

 

It is undisputed that Oesau raisednumerous safety concerns while employed at Rogers Group. Though Respondent doesnot dispute the existence of Oesau’s safety complaints, it has attempted toshow that Oesau’s complaints were made in bad faith and are thus unprotected bythe Mine Act. *See*Respondent’s Post-Hearing Brief (Resp. Br.) at 40–62. RogersGroup argues that Oesau “ignored open and obvious information readily availableto him showing that there was no hazard.” Resp. Br. at 41. Respondent has alsoendeavored to undermine Oesau’s safety concerns by highlighting that he is nota certified mechanic. *Id*. 

 

Unquestionably, raising safetyconcerns at work constitutes “protected activity” within the ambit of section105(c). *See, e.g.*,*Riordan*, 38 FMSHRC at 1922 (“Raising safety concerns is paradigmatic ‘protectedactivity’ within the meaning of section 105(c)(2).”). For the purpose ofthis decision, it is immaterial whether the safety hazards Oesau fearedactually existed. Oesau had no duty to avail himself of information that couldhave dispelled his concerns prior to submitting his complaints, and thus hisfailure to do so does not amount to bad faith. Oesau has provided sufficientevidence to show that he had legitimate concerns about various practices andequipment at Greenbrier and that he communicated these concerns to hissuperiors. Ex. C–4, p. 1–4; *see*Tr. I. 140–41, 145–49. Accordingly, I findthat Oesau engaged in protected activity and has satisfied the first 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). 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).

 

Oesau alleged in his initial MSHAcomplaint and briefly mentioned at hearing that he was denied a raise in earlyFebruary 2019. Ex. C–1, Tr. I. 268. This allegation was scarcely discussed at hearingand Oesau has failed to proffer any evidence that establishes he was everdenied a raise. There is no dispute, however, that Respondent discharged Oesau onMarch 14, 2019. Jt. Stip. 8. This indisputably constitutes adverse action, as “[d]ischargeis perhaps the clearest form of adverse action prohibited by the plain languageof the Mine Act.” *Driessen*, 20 FMSHRC at 329. Having established bothprotected activity and an adverse action, Oesau must demonstrate that there isevidence sufficient to support an inference of a causal nexus: that hisprotected activity motivated Rogers Group to terminate his employment. 

 

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.

** **
    Knowledge of Protected Activity

 

Rogers Group does not dispute thatOesau submitted safety complaints. Multiple miners, including Oesau, testifiedabout the way in which Oesau complained to his supervisor about various issueshe had with situations and equipment at the mine. As discussed above, I do not agreewith Respondent that Oesau’s allegations were all in bad faith and thus notprotected activity. I find that Respondent had knowledge of Oesau’s protectedactivity.

** **
    Animus or Hostility Toward the Protected Activity

 

Oesau argues that an email sent bythe Rogers Group Arkansas area manager to the division vice president definitivelyestablishes Respondent’s animus toward his complaints. Complainant’s Post-HearingBrief at 15–16. With regard to Oesau’s alleged racially charged derogatorycomments the email states that, 

 

[b]y itself this conduct could beforgivable, with a last chance, if there was acknowledgement from Ted andremorse regarding the conduct. The problem with the conduct is that it isaggravated by Ted’s concerted attempt to organize the labor force. Again, ifthis concerted activity was isolated and the only issue there could beconsideration given. Given the circumstance that both acts indeed occurred, thelikelihood of being able to salvage Ted’s job is slim to none.

 

Ex. C–13, p. 2. After considering all of the evidence andtestimony, I do not agree with Oesau’s assertion. However, for the purpose ofestablishing a prima facie case, I will accept that this email is at leastsufficient to support an inference that there was some animus towards Oesau’scollection of safety complaints from other miners, which is related to hisprotected activity.

** **
    Timing

** **

Oesau was terminated within amatter of weeks after he submitted a list of safety complaints to hissupervisor. *See*Tr. I. 150. 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 the protected activity and the adverse action, I findthat a coincidence in time exists in this case.

 
    Disparate Treatment

** **

Oesau has not provided any evidenceof 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. While the company has not experienced any other allegations ofracial harassment, it had previously dealt with a sexual harassment allegation.Tr. I. 141–42. In that instance, as in this one, Rogers Group conducted aninvestigation, confirmed the allegations were true, and terminated the employeefor violating the No Harassment Policy. Tr. I. 142. 

 

Because Oesau’s experience wasconsistent with that of the other employee who violated the policy, I find thathe was not subject to disparate treatment. 

 
    Conclusion

 

Bearing in mind that the primafacie burden is minimal, I find, in light of the above factors, that Oesau 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Rogers Group has successfully rebutted Oesau’s prima facie case.

 

 

 

**B.   ****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. *Turner*,33 FMSHRC at 1064. As discussed above, Rogers Group argues that no protectedactivity occurred because Oesau made his safety complaints in bad faith. BecauseI disagree, and find that protected activity has occurred, I turn toRespondent’s additional argument that Oesau’s termination was in no partmotivated by his protected activity.

 

Respondent asserts that “theevidence firmly establishes that Oesau used racist language at work, includinghighly offensive words and phrases that any person would recognize as bigoted, potentiallythreatening, and unacceptable in any context.” Resp. Br. at 65. I agree. Thelanguage Oesau used is a flagrant violation of Rogers Group’s No HarassmentPolicy, which explicitly lists “racial comments, slurs, [and] off-color jokes” asexamples of harassment. Ex. R–B, p. 1. The policy also states that, followingan investigation, “[i]f harassment is found, disciplinary action, up to andincluding termination, will be taken against the harassing employee.” *Id*.,p. 3.

 

Through the testimony of multiplewitnesses, Rogers Group established that Oesau made race-based, offensivecomments at Greenbrier when referring to the Black plant manager. The evidencealso shows that Oesau endeavored to get the plant manager fired by attemptingto collect safety complaints about the plant manager. Oesau’s counsel points tothe area manager’s email referencing “Ted’s concerted activity to organizer thelabor force” as “smoking gun” evidence of discrimination under the Mine Act. Tr.I. 19; Ex. 13, p. 2. However, I find that the email, especially when analyzedin light of the extensive testimony on this issue, actually just shows thatRogers Group management was concerned about both Oesau’s racist comments andhis racist motivation likely behind the attempt to get the plant manager fired.

 

The evidence is clear: Rogers Groupfired Complainant for racial harassment. Respondent’s decision to terminateOesau was not motivated by his protected activity, but rather by his violationof the No Harassment Policy and Rogers Group’s interest in enforcing thatpolicy and ensuring that employees have a workplace free of harassment. I findthat Rogers group has successfully rebutted Oesau’s prima facie case.

** **

**C.   ****AffirmativeDefense**

** **

If an employer cannot rebut theprima facie case, “it nevertheless may defend affirmatively by proving that isalso was motivated by the miner’s unprotected activity and would have taken theadverse action for the unprotected activity alone.” *Turner*, 33 FMSHRC at1064. In asserting this defense, “[i]t is not sufficient for the employer toshow that the miner deserved to have been fired for engaging in the unprotectedactivity . . . . The employer must show that [it] did in fact consider theemployee deserving of discipline for engaging in the unprotected activity aloneand that [it] *would* have disciplined him in any event.” *Pasula,* 2FMSHRC at 2800.

 

Ample evidence shows that RogersGroup was motivated to discipline Oesau for the harassing remarks he made atwork. The company’s harassment policy, its internal emails admitted intoevidence, its past discharge of a harassing employee, and testimony of itsmanagement officials make this clear. In fact, when asked by the court aboutwhy the company elected to “go straight to termination, as opposed to someother discipline,” Rogers Group’s director of human resources confirmed that itwas “the egregious nature of the comments that were made” that merited goingstraight to termination. Tr. III. 209.

 

As discussed above, I find thatRogers Group terminated Oesau based on unprotected activities alone. However, evenassuming that Oesau’s protected activity partially motivated Rogers Group’sdecision to terminate him, Respondent still did not violate section 105(c) ofthe Mine Act because it has proven that it would have terminated Oesau for hisharassing conduct alone. Rogers Group has thus proven its affirmative defense. 

** **

**                                                                                                  IV.         ****ORDER**

 

Accordingly, it is **ORDERED**thatthe complaint of discrimination brought by Theodore Oesau is hereby **DISMISSED**.

 

 

 

/s/David P. Simonton

                                                                        DavidP. Simonton

                                                                        AdministrativeLaw Judge

 

 

 

Distribution: (Email[10])

 

Chris W. Burks, WH Law, PLLC, chris@wh.law

 

Margaret S. Lopez, Ogletree, Deakins, Nash, Smoak, &Stewart, P.C., margaret.lopez@ogletree.com

 

J. Carin Burford, Ogletree, Deakins, Nash, Smoak, & Stewart,P.C., carin.burford@ogletree.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. References to thetranscript include numerals I, II, or III to denote the volume of thetranscript referenced, since each day’s transcript is independently paginated. 

[2] A fourteenth stipulation concerning the parties’agreement regarding admissibility of exhibits has been excluded due to adispute regarding the admissibility of Exhibits C–11 and C–13, which arose athearing.

[3] Other than Complainant Theodore Oesau, the names of individualswho testified at the hearing or were named in testimony, briefs, or exhibitsare not disclosed in this decision pursuant to an approved Protective Orderissued on January 30, 2020. Tr. II. 8.

[4] These safety issues are recounted here in the orderin which they arose in Oesau’s testimony. The exact dates of specific eventsare not all well–established by witness testimony. Such dates are not necessaryto determining the outcome of this case. 

[5] Reluctantly, I recount the racial slurs articulated atthe hearing in order to provide an accurate, uncensored account of thetestimony. 

[6] This date is incorrect. The document should sayFebruary 21, 2019. The email this attachment accompanied is dated February 25,2019, and the Thursday preceding the date of the email was February 21, 2019. Theplant manager also acknowledged the typo at hearing. *See* Tr. III. 109.

[7] Unfortunately, Oesau’s direct supervisor was notcalled to testify at the hearing.

[8] According to a timeline submitted by Complainant,this meeting occurred in either late November or early December, not in January.Ex. C–6, p. 2. Though the date of the meeting is not established, thisdiscrepancy does not impact the outcome of this case.

[9] This individual was also referred to at hearing asthe production manager for Arkansas. Tr. II. 172.

[10]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.