**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF THE CHIEF ADMINISTRATIVELAW JUDGE

721 19th ST.SUITE 443

DENVER, CO 80202-2500

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

 

December 13, 2023

** **

**ORDER GRANTINGTEMPORARY REINSTATEMENT OF JIMMY LEE HOOVER**

 

Before:             Judge Simonton 

 

**I. INTRODUCTION**

 

This case is before me on applicationfor temporary reinstatement filed by the Secretary of Labor, acting through theMine Safety and Health Administration (“MSHA”), against MoSeneca ManufacturerLLC doing business as American Tripoli, pursuant to section 105(c) (2) of theFederal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2) (“Act” or“Mine Act”). On November 21, 2023, pursuant to 29 C.F.R. § 2700.45(c),Respondent requested a hearing on these matters. A virtual hearing wasconducted on December 6, 2023, via the Zoom platform after the parties agreedto extend the required time period due to the Court’s hearing travel schedule.****[1]****

 

**II. ANALYSIS AND FINDINGS**

** **

 Background

 

The parties stipulated to the followingfacts:

            

MoSeneca Manufacturer LLC doingbusiness as American Tripoli (“Respondent”) is organized under the laws of thestate of Missouri. The Respondent is an “operator” as defined in Section 3(d)of the Mine Act. The Respondent's operations affect interstate commerce. At allrelevant times, the Complainant was employed by the Respondent. As such, theRespondent is subject to the jurisdiction of the Mine Act, and the presidingAdministrative Law Judge has the authority to hear and issue a decisionregarding this case.

 

Summary of Testimony

 

Each party offered two witnesses. A summary of each witness’stestimony follows.

 

**Jimmy Lee Hoover**

 

At hearing, Jimmy Lee Hoover (“Complainant”)testified that at the time he was terminated, he was employed by the Respondentas a mill operator/mill associate. Tr. 25. His job duties involved milloperations, including routine maintenance and loading trucks, and he worked fortyhours per week. Tr. 25-26. His rate of pay was twenty dollars an hour. Tr. 27.

 

On September 13, 2023, the Complainantwas beginning the process to start the mill when he discovered that machineryat the mill was not operating as it should. Tr. 27-29. He checked the breakerbox located on the wall and found that the circuit breaker had tripped. Tr. 29.Attempts to reset the breaker box by pressing the external reset button wereunsuccessful. *Id.*

 

This breaker box was known to previouslycause this issue. Tr. 30. On those instances, the Complainant would requestassistance from a maintenance worker to open the box to fix the issue becausehe was unqualified to do so. *Id.* On September 13, however, no maintenanceworkers were present at the site. Tr. 31. Instead, the Complainant notified hissupervisor, Don Hale, that the breaker box needed to be reset manually. Tr. 32.The Complainant and Hale then discussed the issue with Operations Manager JohnSpears, who supervised both Hale and the Complainant. Tr. 32-33. According tothe Complainant’s testimony, Spears allegedly responded to this information bysaying “We got to run, we got to make Russ money.” Tr. 33. While there were noexplicit instructions given to the Complainant to open the breaker box andinsert his hand, the Complainant interpreted Spears’ alleged statements asimplied instructions to do those activities because that was the only way toget the mill running. Tr. 57, 81, 104. The Complainant testified that he statedthat he did not want to open the breaker box or put his hand inside because he feltit was an unsafe act. Tr. 81, 91. 

 

After discussing the issue withSpears, the Complainant took a longer lunch break than usual, for approximatelyforty-five minutes. Tr. 33-34. During his lunch, the Complainant contacted aformer maintenance worker for guidance on how to fix the breaker box. Tr.34-35. When he returned from lunch, Spears asked the Complainant to show himthe breaker box. Tr. 35. The Complainant took Spears to the breaker box, whereSpears opened it and inserted his finger into the box. Tr. 36. The Complainant didnot remove the cover or put his hand in the box. Tr. 37, 55-56. The Complainantdid not believe Spears would be the person to fix the breaker box. Tr. 103. Hisunderstanding of Spear’s job at the mill was to direct maintenance, not thatSpears would be the employee to act as a maintenance person in the absence of adedicated maintenance worker. Tr. 95, 103.

 

The Complainant worked as normalfor the rest of the day. Tr. 37. He was never notified that there might be anydisciplinary issues regarding his conduct that day prior to his termination. *Id*.The next day, September 14, 2023, the Complainant received a termination letterwhich was given to him by Spears. Tr. 38. At the time of his termination, the Complainantdid not know exactly why he was being fired. Tr. 39, 77-78. Aside from the rationaleprovided in the letter, there was no further discussion surrounding the reasonsfor his termination and no one explained specifically why he was being terminated.Tr. 40, 78. The Complainant testified that it was his belief that his refusalto perform the maintenance tasks associated with resetting the breaker box ledto his termination. Tr. 40-41. 

 

**Michael Dillingham**

 

The special investigator whoconducted the investigation into the Complainant’s 105(c) discrimination complainttestified to his findings and conclusions. Through his investigation, Dillinghamdetermined that it was “the norm for maintenance or anyone that worked in the mill”to go inside the box and hold the reset button internally when the externalreset would not work. Tr. 124-26. As such, it was expected of the Complainantto stick his hand inside the breaker box because it was his job to get the millrunning. Tr. 155. Accordingly, he concluded that the Complainant’s refusal to puthis hand into the breaker box constituted a withdrawal from an unsafe act. *Id*.

 

Dillingham further testified that Spearsallegedly responded to the Complainant’s withdrawal by saying, “Is this how you’regoing to play it, really?” Tr. 121, 152. As part of the investigation, Dillinghamcontacted Respondent to conduct an interview regarding the events leading tothe Complainant’s termination, to which the Respondent submitted a positionstatement in lieu of an interview. Tr. 129. 

 

Based on the results of hisinvestigation, Dillingham found that there was a nexus between the protectedactivity, the Complainant’s withdrawal, and the adverse action, thetermination. Tr. 130-31, 149. He concluded that the discrimination complaintwas therefore legitimate, and that discrimination had occurred. *Id*.  

 

**Russell Tidaback**

 

Russell Tidaback, the mill’s owner,gave extensive testimony as to Complainant’s employment history, which documentedmultiple instances of poor attitude, issues with other employees, absenteeism,and safety concerns. Tr. 185-96; REX G. Throughout the Complainant’s employment,Tidaback spent significant time mentoring and counseling the Complainant to improveperformance. Tr. 166-168; REX G. He also testified to the mill’s termination policy,citing the employee handbook, which states that termination is a three-stepprocess involving: (1) a verbal warning; (2) a written warning letter; and (3)a termination letter. Tr. 174; REX E. While Tidaback stated that these stepsare not obligatory and serve more as a guide, this termination process wasfollowed during the Complainant’s termination and the Complainant had beenwarned numerous times regarding his performance, both verbal and written. Tr.215-16. 

 

Despite these numerous disciplinaryincidents, however, the Complainant was not fired until September 14, 2023, theday after the incident involving the faulty breaker box. Tr. 216-17. Tidaback testifiedthat he was unaware of the breaker box issue when he ultimately made thedecision to terminate the Complainant and the decision was motivated by theComplainant’s tardy return from lunch and poor attitude the previous day. Tr 171-72,217. While Tidaback is the final decision maker, other members of management,including supervisors, provide input and play a role in the decision toterminate an employee. Tr. 207-210. 

 

In the termination letter providedto the Complainant, which was written by Tidaback, there was no explicit referenceto a specific event triggering termination. Tr. 177; GEX 2. There was also no explicit statement containedwithin the letter that cited specific safety concerns or specific instances of absenteeismas reasons for termination. Tr 182; GEX2. Tidaback explained its implied because this was a termination letter,not an improvement counseling letter. *Id.* He acknowledged that the exactreasons for termination would not be entirely clear to an outside reader basedon the termination letter alone and additional information regarding theComplainant’s employment history is necessary to fully understand the terminationdecision. Tr. 181-83. 

 

**Don Hale**

 

During the time period at issue,Don Hale was employed as the assistant manager/mill lead and was Complainant’s immediatesupervisor. Tr. 226. On September 13, 2023, Hale was aware that the breaker boxwas not functioning properly, which had been a recurring problem at the mill.Tr. 220-21. The Complainant informed him that did not want to put his finger onthe box’s switch for fear of being shocked. *Id.* Hale and the Complainantthen went to speak with John Spears about the faulty switch, after which theswitch was eventually fixed. *Id.* Hale testified that Spears also knewthat the Complainant did not wish to stick his hand in the breaker box. Tr.230. 

 

Concerning general practices at themill, Hale stated that he would inform Spears about problems at the mill andthat Spears would then instruct him what to do, including recruiting otheremployees to assist him. Tr. 224. He also stated that Spears’s job dutiesincluded maintenance work, especially when there was not a designatedmaintenance person. Tr. 225. However, there was not always an expectation thatSpears would be the person to perform maintenance work in the absence of amaintenance person. Tr. 229. 

 

As part of his job duties, Hale wasresponsible for tracking employees’ comings and goings, including lunch breaks.Tr. 227, 235. He stated that the mill does not have a clock-in clock-out systemor other formal tracking system to monitor employees, and that he would makenote of when employees left for lunch. *Id.*On September 13, 2023, theComplainant took a lunch break that exceeded the typical half-hour that ispermitted. Tr. 219, 228, 235-36. Hale told Complainant he was gone for an hour.Tr. 219, 221, 235-36. Hale testified Complainant’s response was, “I don’t care,write me up.” *Id.*After the conclusion of the workday, Hale contactedthe mill’s owner regarding the Complainant’s conduct that day, including theComplainant’s late return from lunch and his attitude, and that the Complainantallegedly told Hale to write him up. Tr. 221; REX H. Hale had encounteredproblems with the Complainant on the job before, including getting “lippy” andoccasionally arriving late to work. Tr. 222-23*.* However,**he generallydid not have a problem with the Complainant despite these issues. Tr. 223.

** **

Standards Governing TemporaryReinstatement

 

Section 105(c)(1) of the Mine Act providesthat no person shall discharge or otherwise discriminate against a miner forexercising rights under the Act.

 

It states in pertinent part:

 

No person shall discharge or in any manner discriminateagainst ... or otherwise interfere with the exercise of the statutory rights ofany miner ... because such miner ... has filed or made a complaint under or relatedto this Act, including a complaint notifying the operator or the operator'sagent ... of an alleged danger or safety or health violation in a coal or othermine.

 

30 U.S.C. § 815(c)(1)(Emphasis provided by the *Commissionin Moses v. Whitley Development Corp.*, 4 FMSHRC 1475, 1478 (Aug. 1982)).

 

Pursuant to 105(c)(1), if the Secretary finds that [adiscrimination] complaint was not frivolously brought, the Commission, on anexpedited basis upon application of the Secretary, shall order thereinstatement of the miner pending final order on the complaint. 30 U.S.C. §815(c)(1). The Commission has noted that the parameters of a temporaryreinstatement hearing are narrow, being limited to a determination with respectto whether a miner's discrimination complaint has been frivolously brought*.See Sec'y of Labor o/b/o Price v. Jim Walter Res., Inc.*, 9 FMSHRC 1305,1306 (Aug. 1987), *aff'd.*, 920 F. 2d 738 (11th Cir. 1990). Accordingly,it is only necessary to determine whether the Applicants' complaints *appear*to have merit. (Emphasis added). *See* S. Rep. No. 181, at 36 (1977), *reprintedin* Senate Subcomm. on Labor, Comm. on Human Res., *Legislative History ofthe Federal Mine Safety and Health Act of 1977*, 94th Cong., 2dSess., at 624 (1978). In*Jim Walter Resources, Inc. v. FMSHRC*, theEleventh Circuit found the “not frivolously brought” standard comparable to a“reasonable cause to believe” standard. *Jim Walter Res., Inc. v. FMSHRC*,920 F.2d 738 (11th Cir. 1990). The Eleventh Circuit concluded that the lowburden imposed by the “not frivolously brought” standard reflects clearCongressional intent to make temporary reinstatement relatively easy to obtain.*Id*. at 748.

 

The Commission has consistently and historically found thatCongress intended section 105(c) to be broadly construed to afford maximumprotection for miners exercising their rights under the Act. *See Sec'y ofLabor o/b/o Charles H. Dixon et. al. v. Pontiki Coal Corp.*, 19 FMSHRC 1009,1017 (June 1997) *citing Swift v. Consolidation Coal Co.*, 16 FMSHRC 201,212 (Feb. 1994) (“the anti-discrimination section should be construed ‘expansivelyto assure that miners will not be inhibited *in any way* in exercising anyrights afforded by the legislation.”’)(quoting S. Rep. No. 181, at 36 (1977), *reprintedin* Senate Subcomm. on Labor, Comm. on Human Res., *Legislative History ofthe Federal Mine Safety and Health Act of 1977*, 94th Cong., 2dSess., at 624 (1978) (emphasis added).

 

Although the Secretary is not required to present a primafacie case in a temporary reinstatement proceeding the Commission hasdetermined it useful to review the elements of a discrimination claim in orderto assess whether the evidence at this stage of the proceedings meets thenon-frivolous test. *Sec'y of Labor o/b/o Williamson v. CAM Mining, LLC*,31 FMSHRC 1085 (Oct. 2009). In order to establish a prima facie case underSection 105(c), a miner must show: (1) that he engaged in a protected activity;and (2) that his termination was motivated, at least in part, by the protectedactivity*. See Pasula v. Consolidation Coal Co.*, 2 FMSHRC 2786, 2799(Oct. 1980).

 

The Commission has held that evidence of motivation may beshown by circumstantial evidence. *See, e.g., Chacon v. Phelps Dodge Corp.*,3 FMSHRC 2508, 2510-11 (Nov. 1981), rev'd on other grounds sub nom., *Donovanv. Phelps Dodge Corp.*, 709 F.2d 86 (D.C. Cir. 1983) (holding that illegalmotive may be established if the facts support a reasonable inference ofdiscriminatory intent); *Schulte v. Lizza Industries, Inc.*, 6 FMSHRC 8(Jan. 1984). Circumstantial indicia of discriminatory intent by a mine operatoragainst a complaining miner include: (1) knowledge by the operator of theprotected activity, (2) hostility toward the miner because of his protectedactivity, (3) coincidence in time between the protected activity and theadverse action, and (4) disparate treatment of the complaining miner. *Jungersv. Borax*, 15 FMSHRC 300, 308 (Feb. 1993).

** **

Disposition

 

The Secretary has sufficientlydemonstrated that the Application for Temporary Reinstatement was notfrivolously brought. As stated above, a miner must raise a nonfrivolous claimthat he engaged in a protected activity that has an arguable connection to an adverseemployment action. The facts presented by the Secretary in this matter aresufficient to establish that there was reasonable cause to believe that therewas such a causal nexus. 

 

I find that the Secretary hassufficiently demonstrated that the Complainant engaged in a protected activity.Even if there was no direct order from a supervisor to open the breaker box andinsert a finger inside, there is circumstantial evidence that it is management’sexpectation that a miner do whatever is necessary, when maintenance is notavailable, to get the mill up and running. Thus, the Complainant’s withdrawalfrom these actions constitutes a protected activity. 

 

I also find that the Secretary hassufficiently demonstrated that the Complainant suffered an adverse employmentaction when he was terminated. It is well established precedent thattermination is an adverse employment action. It is also undisputed that theComplainant was terminated the day after the protected activity occurred. Assuch, the Complainant has suffered an adverse employment action. 

 

Although Respondent claims he hadno knowledge of the protected activity when the decision to terminate was made,the Secretary does not need to prove that the operator has actual knowledge ofa complainant’s protected activity in a temporary reinstatement proceeding,only that there is a nonfrivolous issue as to knowledge. *Sec’y of Labor o/b/oAlbu**v. Chicopee Coal Co.*, 21 FMSHRC 717, 718 (July 1999). TheComplainant’s termination letter contains only a vague explanation as to why hewas discharged, citing his failure to “meet the standards and expectations setforth by the company” and concerns related to “conduct and performance” as reasoningfor the decision. GEX 2. The termination letter also lists actions such asleaving the workstation without authorization, leaving company property withoutnotice, and neglecting planned maintenance tasks. *Id.* Notably, it doesnot explicitly reference other specific disciplinary measures that were takenagainst the Complainant previously to support the termination. No otherjustifications were provided to the Complainant as to why he was beingterminated. The absence of specific events noted in the termination latterraise nonfrivolous issues regarding the Respondent’s knowledge of Complainant’sprotected activity and the potential that it played a role, at least in part, inComplainant’s termination.

 

“Hostility towards protectedactivity--sometimes referred to as ‘animus'--is another circumstantial factorpointing to discriminatory motivation. The more such animus is specificallydirected towards the alleged discriminatee's protected activity, the moreprobative weight it carries.” *Phelps Dodge Corporation*, 3 FMSHRC at 2511(citations omitted). In this matter, there was undisputed testimony that Spearsallegedly commented, “Is this how you want to play this, really?” in responseto the Complainant’s refusal to perform an activity that he viewed as unsafe. Tr.152. Although Tidaback, the person who made the ultimate decision to terminate,presented evidence that he was unaware of the protected activity, he testifiedthat he takes into consideration the opinions and observations of supervisorswhen making termination decisions. Because mine management, includingsupervisors such as Hale and Spears, are aware of their opportunity to provide inputin termination decisions, Complainant’s protected activity which they indisputablywere aware of, could have influenced their recommendations to terminate the Complainant.This is sufficient to establish a nonfrivolous issue with regard to Respondent’sknowledge of Complainant’s protected activity as well as potential animus inthis matter which may have influenced the input Tidaback received from his managementofficials, Hale and Spears on site. 

 

The temporal proximity between theprotected activity and the adverse employment action strongly supports thecausal nexus. The Complainant engaged in the protected activity on September13, 2023, and was then terminated on September 14, 2023. This is an extremelyshort period of time and easily meets the threshold to establish that thetiming is sufficient to support the nexus. 

 

A temporary reinstatement hearingmust be a full evidentiary process that permits all relevant evidence relatingto the adverse employment action. *Sec’y of Labor o/b/o Cook v. RockwellMining, LLC*, 43 FMSHRC 157 165-66 (Apr. 2021).**In response to theComplainant’s discrimination complaint, the Respondent claimed that theComplainant was terminated for reasons “strictly related to safety andoperational efficiency in the mine.” GEX 5. Accordingly, the Respondent waspermitted to present evidence and testimony throughout the hearing in supportof this position. “[R]esolving conflicts in the testimony, and ma[king]credibility determinations in evaluating the Secretary’s prima facie case” aresimply not appropriate “at this stage in the proceeding.” *CAM Mining, LLC*,31 FMSHRC at 1089 (citing *Chicopee Coal Co.*at 719). While theRespondent’s evidence may be relevant or dispositive in a later discriminationproceeding, the only purpose it serves in this proceeding is as an alternativetheory as to why the Respondent discharged the Complainant. *See Sec’y ofLabor o/b/o Billings v. Proppant Specialists, LLC*, 33 FMSHRC 2383, 2385(Oct. 2011). There is no obligation to adopt this theory at this stage in theproceeding, and it does not demonstrate that the Complainant brought forth afrivolous complaint. 

**III. DECISION AND ORDER**

 

For all of the reasons articulatedabove I find that the Complainant presented sufficient evidence at hearing torender his discrimination complaint non-frivolous. Accordingly, **IT ISORDERED** that Respondent Moseneca Manufacturer LLC d/b/a American Tripoli, immediatelyreinstate Complainant Jimmy Lee Hoover to the position he held immediatelyprior to the September 14, 2023 termination or to a similar position at thesame rate of pay and benefits and with the same or equivalent duties assigned. 

 

The Court retains jurisdiction over this temporaryreinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary shallprovide a report on the status of the underlying discrimination complaint assoon as possible.     

 

 

 

 

                                                                        /s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

Distribution: (Electronic and Certified mail) 

 

Quinlan Moll, U.S. Department of Labor, Office of theSolicitor, 2300 Main Street, Suite 10100, Kansas City, MO 64108, moll.quinlan.b@dol.gov

 

Russell Tidaback, Managing Member, American Tripoli, 222Oneida Street, Seneca, MO 64865, RTidaback@deedyco.com

 

Jimmy Lee Hoover, 1630 Cottage Lane, Seneca, MO 64865, hooverj9233@gmail.com

 

 

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1In this decisionthe transcript, Secretary’s (Government) exhibits and Respondent’s exhibits, areabbreviated as: “Tr.”, “GEX - #”, “REX - letters”, respectively.