**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

 

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

December1, 2022
| SECRETARY OF  LABOR

 MINE SAFETY AND  HEALTH      

 ADMINISTRATION  (MSHA),

 and JASON  HARGIS,

              Complainants,

 

                        v.

 

VULCAN  CONSTRUCTION

  MATERIALS, LLC,

               Respondent.

 

SECRETARY OF  LABOR

 MINE SAFETY AND  HEALTH      

 ADMINISTRATION  (MSHA),

               Petitioner,

 

             v.

 

VULCAN  CONSTRUCTION

  MATERIALS,  LLC,

               Respondent.                                                                                                              |   |   | DISCRIMINATION  PROCEEDING

 

    Docket No.  SE 2022-0001

    MSHA No.  BARB-CD-2021-02

 

 

 

 

    Mine ID.  40-00131

    Mine: Wilson  County Quarry    

 

 

    CIVIL  PENALTY PROCEEDING

 

Docket No. SE  2022-0013

    A.C. No.  40-00131-543032

 

 

 

    Mine: Wilson  County Quarry                         |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISIONAND ORDER AFTER HEARING**

** **

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

                                    Nashville,Tennessee, for the Petitioner

 

                                    ElaineM. Youngblood, Esq., Ortale Kelley,

                                    Nashville,Tennessee, for the Complainant

 

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

                                    Washington,District of Columbia, for the Respondent

 

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

                                    Washington,District of Columbia, for the Respondent

 

Before:  Judge Young

** **

**SUMMARY**

** **

**Citation No.9237452, 30 C.F.R. § 50.20(a): Failure to report an occupational injury asdefined in 30 C.F.R. § 50.2(e).** The Secretary alleges that the operatorfailed to report an injury that rendered the miner unable to perform all jobduties on any day after the injury.

 

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

Negligence                  High                                                    p.18

Penalty                                    $300.00                                               p.18

 

**ComplaintBARB-CD-2021-02,****30U.S.C. § 815(c)(1): Discrimination against miner for exercise of rightsprotected under the Mine Safety and Health Act of 1977, as amended (“The MineAct” or “The Act.”).**The Secretary alleges that Complainant was terminated for requesting to see aphysician for treatment of an occupational injury, in violation of the Act.

 

Fact of violation          Dismissed                                            p.18

 

**INTRODUCTION**

 

Theabove-captioned dockets were heard in Nashville, TN, April 12–14, 2022.[1] The Secretaryalleges that the operator had failed to report an occupational injury, inviolation of Section 50.20(a) of Title 30 of the Code of Federal Regulations, andthat the operator had discriminated against miner Jason Hargis (“Complainant”) forreporting his injury and requesting treatment by a physician, in violation ofSection 105(c)(1) of the Mine Act. As explained below, I affirm the citationfor failing to report an injury as required, but I hold that the operator didnot discriminate against the Complainant under Section 105(c) of the Act.

 

**I.          STANDARDS**

** **

**A.        Burdenof Proving Violation**

 

            TheSecretary must prove the elements of an alleged violation by a preponderance ofthe evidence. *See Jim Walter Res., Inc.*, 28 FMSHRC 983, 992 (Dec. 2006);*RAG Cumberland Res. Corp.*, 22 FMSHRC 1066, 1070 (Sept. 2000).

 

**B.        Requirementto Report an “Occupational Injury”**

 

            TheSecretary has defined an “occupational injury” as “any injury to a miner whichoccurs at a mine for which medical treatment is administered, or which resultsin death or loss of consciousness, inability to perform all job duties on anyday after an injury, temporary reassignment to other duties, or transfer toanother job.” 30 C.F.R. § 50.2(e) (2022). Operators “shall report eachaccident, occupational injury, or occupational illness at the mine.” 30 C.F.R.§ 50.20(a) (2022).

 

**C.        Discrimination**

 

            Toprove that an operator has discriminated against a miner in violation of theAct, the Commission has required the Secretary (or an individual miner orapplicant, if proceeding under section 105(c)(3)) to establish that the minerengaged in protected activity; that the miner suffered an adverse job action;and that the adverse action was motivated, in whole or in part, by theprotected activity. *Sec’y of Labor on behalf ofPasula v. Consolidation Coal Co.,* 2 FMSHRC2786, 2799–80 (Oct. 1980), *rev’d on other grounds sub nom.*, *Consolidation Coal Co. v. Marshall*, 663 F.2d 1211 (3d Cir. 1981); *see alsoCumberland River Coal Co. v. FMSHRC*, 712 F.3d 311, 317–18 (6th Cir. 2013)(citing *Pendley v. FMSHRC*, 601 F.3d 417, 423 (6th Cir. 2010) (applying *Pasula-Robinette*to cases within the Sixth Circuit).[2]If this prima facie case is established, theoperator may affirmatively defend against the charge of discrimination byproving that it would have taken the adverse action regardless of the miner’sprotected activity. *Id.*The miner may then rebut the defense by showingthat it is pretextual. *Id.* The ultimate burden of proof does not shiftunder this analysis and remains with the Complainant. *Turner v. Nat’l CementCo. of Cal.*, 33 FMSHRC 1059, 1064–65 (May 2011).

 

**II.        FACTS**

 

**A.               ****Background,Witnesses, and Evidence**

 

Respondent, VulcanConstruction Materials (“VCM” or “Respondent”), operates numerous aggregate andconstruction material mining, quarrying, and processing facilities throughoutthe United States. The mine at issue here is the Wilson Quarry, an aggregatefacility in Wilson County, TN. Respondent’s operations in the area includingthe Wilson Quarry include seven quarries and a truck shop. Tr. 502:1–4. Complainanthad been employed as a miner at the Wilson Quarry.

 

The partiesstipulated to all facts necessary to establish jurisdiction over this case andmy authority to hear and decide it. S. Post Hr’g Br. at 3–4 (July 5, 2022). Theyalso stipulated that Respondent discharged Complainant from employment on May12, 2021. *Id.* at 4.

 

            TheSecretary called as witnesses Complainant, several of his co-workers at themine, and two employees of the U.S. Department of Labor’s Mine Safety andHealth Administration (“MSHA,” “the Secretary” or “the Agency”). Complainantalso called Respondent’s safety director, Brandon Clemmons. Respondent’switnesses included Vulcan’s area operations manager for the area including theWilson Quarry, Philip Ellis; Mr. Clemmons; the company’s human resourcesmanager, Rex Lindsey; former plant manager, Anthony Humes; and currentsupervisor, Chris Williams.

 

In addition to theminer witnesses who testified at hearing, Complainant introduced two statementsmade to MSHA Special Investigator Kenneth McClung. The witnesses, former minersKenny Hurst and Pat Woods, were subpoenaed by the Secretary. *See*Tr.474:8–488:20.[3]

 

The Secretaryappears to have properly issued and served subpoenas for these witnesses butdid not inform the Court that they were unavailable until the Solicitor soughtto introduce their written statements as exhibits. The Solicitor said thatefforts to reach the witnesses had been unsuccessful. These hearsay statementswere admitted over Respondent’s objections. However, I noted that theunavailability of the witnesses could affect the weight I would give to thestatements. Tr. 480:17–22, 482:6–9.

 

I credit thestatements only to the extent that they are corroborated by other evidence andare not cumulative. First, there is hearsay within hearsay in some of thematerial statements made by the declarants. Second, some of the persons quotedin those statements were witnesses at the hearing and available to becross-examined, but neither the Solicitor nor the Complainant producedadmissions from the operator witnesses, and even the use of leading questionsdid not produce full support for the Secretary’s theory from miner witnesses.

 

Third, thestatements chosen by the Secretary for emphasis in his post-hearing brief werenot the focus of the somewhat limited questioning of Special InvestigatorMcClung. This prevented the operator from effectively cross-examining thewitness who was present about the statements.

 

Finally, there wasextensive discovery in this case. Uncorroborated statements purporting to showa general discouragement of reporting injuries or alleged targeting of Complainant,based largely on the subjective “personal belief,” speculation, or sweepinggeneralizations of Mr. Hurst and Mr. Woods, is insufficient to counter theweight of the evidence that was gathered beforehand and presented by actualwitnesses at the hearing.

 

Complainant wasrepresented by an attorney from the Department of Labor’s Office of theSolicitor as well as his own attorney. The parties introduced numerous exhibitsduring the three-day hearing. I have carefully considered all the evidenceadmitted at the hearing in deciding the issues before me.[4]

 

 

 

 

 

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

 

**1.     ****Complainant’sWork and Disciplinary History**

 

Complainant wasemployed by VCM at the Wilson County Quarry from August 2018, until he wasdischarged on May 12, 2021. Compl. ¶ 3 (Oct. 1, 2021); Tr. 11:3–12.  He mainlyworked as a plant operator during the time relevant to this proceeding. Tr.305:24–25. As plant operator, he controlled the operation of the plant, thecrushing machinery used to break and size rocks mined at the quarry. *Id.*at 306:3–25. He was also responsible for cleaning and maintaining an areaassigned to him under the company’s “zone” policy. *Id.* at 348:22–24. Aspart of his duties, he was responsible for lubricating, or “greasing” thebearings daily. *Id.* at 415:1–11.

 

At hearing, minerwitnesses praised Complainant’s performance, testifying that he “did a goodjob” running the plant and that he was a highly efficient plant operator. Tr.60:21. Mr. Ellis, VCM’s area manager, agreed that Complainant operated theplant during its most productive period. *Id.* at 599:4–12.

 

Witnesses alsotestified that Complainant had a pleasant personality. One witness called him“one of the nicest guys I’ve ever met.” Tr. 222:2–3. Another witness said hewas a “normal, regular person,” who was “not threatening” and always pleasant. *Id.*at 144:13–17. A third witness described him as “a big teddy bear” and “a prettycool guy.” *Id.* at 261:5–6. 

 

During hisemployment as plant operator, Complainant worked under two direct supervisors, Kyle“K.B.” Parr and Chris Williams, who worked as a fill-in supervisor following Mr.Parr’s resignation. As plant manager, Anthony Humes managed the plantsupervisors and was himself supervised by Area Manager Philip Ellis. Athearing, Complainant testified that Mr. Parr was a poor supervisor and that theminers felt “targeted” by management (micromanagement and disagreement withminers’ complaints about it). Tr. 367:14–18.

 

Miners alsogenerally agreed with Complainant’s assessment of Mr. Parr as someone who didnot know what he was doing. They testified that Mr. Parr was constantly urging Complainantto “run the plant hard,” and noted that Complainant’s discipline from Mr. Parrfor failure to clean was imposed while the plant was old and in poor condition,causing constant leakage (although repairs were made to improve this). *See*Tr. 243:6–22 (testimony of Mr. Stultz).

 

Complainantacknowledged that greasing the equipment daily, which took about 35 minutes,was his job and that it was necessary to prevent damage to the equipment. Tr. 415:1–20.He said that he had been counseled about the need to clean more thoroughly,that he disagreed with Mr. Parr about this, and that he did not change what hewas doing in response to Mr. Parr’s input. *Id.* at 408:18–409:17.

 

Complainant alsotestified about his employment record. He said that he had been given a payraise in April of 2021, shortly before being terminated. Tr. 343:20–24.[5] He alsotestified about a previous injury. Complainant said he had been hurt on the jobwhile operating a skid steer. He testified that Mr. Ellis and Mr. Clemmons wereboth personally concerned, investigated the incident, and put Complainant onlight duty. *Id.* at 326:14–327:14.[6]

 

Mr. Clemmons saidthis was done because the plant was down for maintenance and not because Complainantcould not perform his duties. Tr. 466:25–467:4, 739:22–740:7. Complainant alsosaid that Mr. Clemmons had asked him what they could do to keep him from goingto the doctor after the skid steer injury. *Id.* at 324:25–325:8. Mr.Clemmons denies saying this. *Id.* at 740:8–10.

 

Before hisdischarge, Complainant had previously been disciplined under the company’sprogressive discipline policy, under which employees were verbally warned, thengiven a written warning, followed by a second written warning and three-daysuspension. Ex. GX-7, 8. The second written warning provides that the employeemay be terminated for any subsequent violation of company policies. Ex. GX-8.

 

Complainant’sdisciplinary issues were not related to his primary duties as plant operator. Rather,they stemmed generally from failures to completely clean and grease areas andequipment for which he was responsible before leaving work. 

 

Complainantreceived his first written warning by Mr. Parr on Dec. 4, 2020. Tr. 347:8. Hewrote on the warning notice, “I do not agree,” and testified that he had toldMr. Parr it was not possible to clean his area “spotless” every day. *Id.*at 348:2–349:11. He said that sometimes the power would be shut down, andcleaning could not be accomplished. He also noted that some areas were rarelytravelled. *Id.* at 349:12–25.

 

            Afterhe was cited by Mr. Parr, Complainant and others began taking photographs oftheir areas to document that they had been cleaned. Ex. GX-5; Tr. 207:11–25,351:13–16. Complainant provided photographs at hearing. Ex. GX-5. He admitted,on cross-examination, that he did not take photographs of his area every day. Tr.413:17–25.[7]Complainant testified that it was “obvious that [Mr. Parr] used this to start apaper trail to terminate me.” *Id.* at 355:15–17.

 

             Complainantreceived his second written warning on Feb. 8, 2021, for leaving work beforethe end of the shift without permission on Feb. 1. Complainant and otherwitnesses who were on the crew testified that on that day, Mr. Williams hadstopped to talk to them and had told them that they could leave once thegraduation pad was cleaned. *Id.* at 365:15–23. Witnesses said thatfinishing the cleaning of the pad was a two-person job. *Id.* at 168:14. Thetruck used for this purpose employed a high-pressure water cannon, and minersin the area not handling the cannon or in the truck could be in danger ofinjury. *Id.* at 359:8–11.

 

Complainant andMr. Evans left before the crew completed its work cleaning the pad, and allfour miners left before 4:30 p.m. Tr. 247:15–16. The miners who remained saidthat they completed the cleaning job. *Id.* at 249:16–17. Complainant wasnevertheless given his final written warning and a three-day suspension. *Id.*at 356:24–357:2; Ex. GX-8. Complainant testified that there was no known policyrequiring miners to leave together prior to February 2. Tr. 365:5–8. He saidthat he waved to Mr. Humes, his second-level supervisor, as he left. *Id.*at 361:1–9.[8]

 

Mr. Humes acknowledgedseeing Complainant leave and waving to him, but he said he did not know whatMr. Williams had told the crew and would have stopped him if he had known. Tr.621:13–622:12. Clint Evans was also on the crew and was threatened with averbal warning but disputed it, and it was withdrawn after he argued to Mr.Williams that nobody had told the crew there was a set schedule. *Id.* at169:5–16.[9]

 

            Mr.Williams disputed the crew’s account of events and said they had not finishedcleaning the area as he had instructed and that he had to clean it himself. Tr.768:7-8, 769:4–14.[10]The next day, Mr. Williams told Mr. Humes that the miners had left earlywithout cleaning the area and that Complainant had left work early, and hetestified that he communicated his “frustration” to Mr. Humes. *Id.* at769:18–23. 

 

Mr. Humes said Mr.Williams told him the crew had been told not to leave until 4:30. Tr.621:25–622:2. He said Mr. Williams was “kind of adamant” about wantingComplainant and Mr. Evans to be disciplined. *Id.* at 624:1–6. He insistedon meeting with human resources, and after he and Mr. Humes met with HR, thenotice of suspension was prepared and overnighted to Mr. Humes, who gave it toComplainant the next day. *Id.* at 624:8–14.

 

While Complainantdisagreed with the disciplinary actions against him and his supervisors’ viewson cleaning and greasing, Respondent produced evidence supporting its reasonsfor taking seriously the zone cleaning and greasing responsibilities assigned toComplainant. MSHA Special Investigator McClung acknowledged that a violation ofthe requirement to keep areas where miners work and travel clean and free fromdebris, codified as a mandatory safety and health standard, 30 C.F.R. § 56.20003(2022),[11]could result in an S&S citation to the operator. Tr. 490:7–491:5.

 

Operator witnessesalso testified about serious damage to the plant machinery caused by a failureto properly grease the equipment. There was a “catastrophic” failure of therotor bearings in November 2020. Tr. 546:15–547:21. This required a “verycostly” and extensive repair. *Id.*Inspection revealed that the bearingswere “charred and smoked” due to a lack of grease. *Id.* at 547:17–21. Respondentattributed the failure to Complainant. *Id.* at 547:15–17, 615:1–14.

 

**2.     ****ManagementIssues at the Wilson Quarry**

 

Mr. Parr was theplant supervisor until he resigned from VCM. Mr. Humes was the plant manager duringComplainant’s employment through his termination, until being terminatedhimself. Mr. Humes testified at the hearing, and Mr. Parr did not.

 

Complainantcomplained about management generally, saying that Mr. Parr had “no clue” aboutplant operations, and that the miners generally felt “targeted” bymicromanagement and disagreement with miners’ complaints about it. Tr. 367:14–18.Complainant, like other miners, said that Mr. Parr had threatened to replacehim and testified about Mr. Humes threatening to fire and replace the entirecrew. *Id.* at 368:4–5.

 

The minerwitnesses who testified also complained generally about Mr. Humes and Mr. Parr.Their testimony about Mr. Williams, who succeeded Mr. Parr at the Wilson Quarryafter being temporarily reassigned there from another VCM operation, wasgenerally positive.

 

Miners criticizedMr. Parr’s ability as a manager. Andrew Tucker said Mr. Parr didn’t know whathe was doing. Tr. 59:2–11. Mr. Dycus characterized him as a “write-up happyperson” who would try to “write people up for anything and everything.” *Id.*at 207:3–8. Mr. Stultz said he was a “very bad man.” *Id.* at 241:23.[12] Mr. Tucker said,“I think at one point in time, we all felt targeted” by Mr. Parr, *id.* at65:14, and that he thought Mr. Parr was trying to create a “paper trail”against Complainant, *id.* at 64:24–25. He could not recall anything elsethat he would characterize as Respondent “targeting” Complainant. *Id.* at65:16–19.

 

Mr. Dycus also testifiedthat it “seemed” like Mr. Parr was targeting Complainant. Tr. 242:18–20. But healso said, “I believe that during that time period, every person was targetedby Anthony Humes.” *Id.* at 256:13–15.

 

Mr. Tucker also testifiedthat Mr. Parr had asked him to falsify a document, Tr. 61:3–12,[13] and that hebelieved Mr. Parr falsified the document himself, and witnesses generallybelieved he had resigned after the company opened an investigation into theincident. *Id.* at 113:19–114:7. Mr. Tucker discussed the incident indetail with Mr. Ellis, who said Mr. Parr resigned, and that he assumed that Mr.Tucker’s complaint had been accurate. *Id.* at 570:17–571:19.

 

After Mr. Parrresigned, Anthony Humes assumed his duties. Miners were unhappy with him aswell. Mr. Tucker said he first reported Mr. Parr’s request to falsify theexamination report to Mr. Clemmons because he said he did not trust Mr. Humesto act on them. Tr. 75:5–24. However, he also said his disagreements with Mr.Humes were never about safety, and that Mr. Humes never asked him to doanything unsafe. *Id.* at 101:8–13.

 

Mr. Tucker and severalother miner witnesses cited an incident in which Mr. Humes told the workforcethat he would “fire everybody and start over himself.” Tr. 64:1–21. He wascharacterized by Mr. Ellis and Mr. Lindsey as not being a good fit for thecompany. Mr. Ellis cited the company’s desire to move to more “positive,coaching style” of management, and that Mr. Humes’ focus on criticizing miners andstyle of communicating was “not appropriate.” *Id.* at 566:1–14. He alsocited input received directly from Mr. Stultz, in particular, about Mr. Humes’management. *Id.* at 567:20–25. Mr Ellis also testified about an incidentin which Mr. Humes had said something inappropriate over the company radio. *Id.*at 568:7–11.

 

Mr. Ellis alsocited several calls from miners and from Mr. Lindsey after Mr. Humes threatenedto fire the whole workforce. Tr. 569:1–570:15. Mr. Humes was counseled andapologized for those remarks. *Id.* at 570:10–15. After Mr. Ellis was toldabout the radio incident, Mr. Ellis consulted with Mr. Lindsey and others inthe company and made the decision to terminate Mr. Humes in July of 2021. *Id.*at 565:1–22.

 

While minerscriticized Mr. Humes, they did not all agree that he was “targeting Complainant.”*See* Tr. 85:24–86:5, 111:10–14 (testimony of Mr. Tucker); *id.* at 125:32–136:4(testimony of Caleb Walker that Mr. Humes was reportedly out to fire him andMr. Tucker). But Mr. Dycus testified that Mr. Humes had told him, while Complainantwas on medical leave, that he would be replacing Complainant as plant operator.*Id.* at 208:17–24.

 

Mr. Dycus said hisexperience with Mr. Humes was “horrible.” Tr. 219:15. Mr. Stultz said of Mr.Humes, “To be quite frank, he was a jerk.” *Id.* at 257:22–25. He said hehad felt personally targeted by Mr. Humes and had complained about him tosenior management. *Id.* at 258:1–4.

 

Other miners wereapparently comfortable complaining to management about their supervisors. Mr.Tucker said he contacted the company’s HR manager and Mr. Ellis after Mr. Humesthreatened to fire everybody. Tr. 148:12–22. Mr. Tucker complained to Mr.Clemmons and Mr. Ellis about Mr. Parr’s pressuring him to falsify anexamination report.

 

Mr. Williams wasbrought to the Wilson Quarry and assumed supervisory responsibility over theplant. Miners were “not happy” with the “zone” policy holding them accountablefor a particular area, Tr. 102:25–103:13, but they generally respected and gotalong with him. *See id.* at 103:5–7 (testimony of Mr. Tucker). Minersagreed that he was trying to improve housekeeping and plant maintenance. *Seeid.* at 104:11–105:24. Mr. Dycus said Mr. Williams was a “great supervisor.”*Id.* at 219:14–23. Mr. Stultz was also complimentary. *Id.* at 259:5–8.

 

Mr. Ellis also praisedMr. Williams. When asked what he thought about Mr. Williams as a supervisor,Mr. Ellis testified:

 

I think Chris Williams is a greatperson. He -- he cares about the people that work for him. He likes to helppeople out. His style is leading by example. He -- in some instances, he'sprobably too involved. He gets into every issue and -- but I think Chris to bein a lot of ways a manager like I am suggesting Vulcan wants to encourage.

 

Tr. 572:3–15.

 

While they werecritical of their supervisors, the miner witnesses generally testified thatRespondent was a safety-conscious operator. *See*Tr. 79:13–16 (testimonyof Mr. Tucker saying the company’s “biggest goal is to work safe and staysafe,” and that the company did not have any major injuries during his sevenyears at the quarry). This included Complainant, who agreed that the “company,as a whole, if you brought up anything safety-wise that was dangerous, theywould address them [sic] as quickly as they could.” *Id.* at 397:25–398:2.

 

No evidence wasintroduced from which one could infer that any miner had ever been disciplinedby Respondent for anything related to safety. On the contrary, Mr. Dycus saidthat Mr. Parr and Mr. Humes spread rumors about him having called MSHA to “stirup trouble,” but that he was never disciplined for anything, although he didleave his job at the Wilson Quarry. Tr. 195:15–199:15.

 

Miner witnesses speculatedthat miners were put on light duty or sent to the break room to avoid reportinginjuries. *See* Tr. 199:22–200:5 (testimony of Mr. Dycus); *id.* at 117:3–16(testimony of Mr. Tucker). But there was testimony that this was used to see ifthe injury would get better, and that it was assumed that a miner would see adoctor if it did not. *See id.* at 130:23–131:8 (testimony of Mr. Walker).

 

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

 

Complainanttestified that he was injured on Saturday, April 10, when passing liner platesto a co-worker, Andrew Tucker, who was working inside the crusher. Tr. 314:4–19.The plates weighed 35–50 pounds each, and Complainant had to reach, lean, andtwist to pick up the plates and pass them into the crusher for installation. *Id.*at 315:3–16.

 

After completinghis work with the crusher plates, Complainant said he mentioned to ChrisWilliams, his direct supervisor,[14]and Mr. Tucker that “something really hurt” in his back, but he did notimmediately report an injury. He said that the injury, when it occurred, was“not immediately debilitating,” and that he did not think it was serious atfirst. Tr. 314:14–316:6, 425:6–9.

 

            Complainantsaid that he reported to Mr. Williams on Monday, April 12, that his injury wasmore serious than he thought, and that it was not responding to heat and ice. Tr.316:11–25. He said he told Mr. Williams at this time that he needed to see adoctor, and that Mr. Williams told Complainant he “would get it turned in” toupper management. *Id.* at 317:6–20. Complainant further testified thatMr. Williams instructed him to “run the plant and do nothing else” thatafternoon. *Id.* at. 317:22–24.

 

On April 14, hislast day of work before medical leave for his cardiac procedure, Complainanthad a text message exchange with Mr. Clemmons. Mr. Clemmons asked about Complainant’scondition, and Complainant replied that his back still hurt, and that Mr.Williams had told him to only run the plant and to do nothing else. Ex. GX-9. Mr.Clemmons acknowledged Complainant’s response. *Id.* Complainant testifiedthat his injury made running the plant uncomfortable and that other tasks, suchas cleaning and greasing, were “very painful” to “unbearable.” Tr. 323:2–12.

 

            Ondirect examination, Complainant testified that the operator was striving for“zero [reportable] incidents,” and that there was a general sense thatreporting injuries was discouraged. Tr. 328:4–14. He said that miners “werediscouraged from reporting any type of injury” short of profuse bleeding orbroken bones. *Id.* at 324:8–17.

 

            Incontrast, Mr. Clemmons testified about a number of documented cases in which aminer had been injured and had requested to see a doctor after that provedineffective. *See generally*Tr. 732–737; Ex. R-P. The accidents werereported to MSHA. *Id.* None of the miners involved were disciplined forrequesting to see a physician. *Id.*

 

            Whilestill feeling the effects of his injury, Complainant took medical leave for anunrelated cardiac catheterization procedure. Tr. 380:1–2. He was on leave fortwo weeks, beginning on April 15, before returning to work on May 4. *Id.*at 379:19–24. Complainant was thus only at work for two days before a two-weekabsence for his cardiac procedure and the recovery prescribed by hiscardiologist.

 

            While Complainantdid not see a physician for his back injury, he did seek treatment while onmedical leave from a chiropractor, who recommended he see a doctor. Tr. 385:7–17.Complainant said the chiropractor took x-rays and told him he had a muscularinjury to his thoracic spine. *Id.*

 

After returningfrom medical leave on May 4, Complainant said he recalls reporting to Mr.Williams and Mr. Humes that the pain from his injury was still interfering withhis job duties but does not recall talking with Mr. Ellis. Tr. 382:5–12. Complainantsaid the operator took no further action to address the effects of hisworkplace injury. *Id.* at 382:14–25.

 

He routinely sawMr. Williams and Mr. Humes in the company’s morning meetings. Tr. 331:1–19. Aspart of those meetings, employees were encouraged, but not required, to stretchtheir major muscle groups before working. *Id.* at 330:6–8. Complainant’sinjuries prevented him from participating. *Id.* at 330:17–25.

 

Complainanttestified that he told Mr. Williams, Mr. Humes, and his co-workers that he wasstill unable to fully perform all his duties without pain, and that Mr.Williams and Mr. Tucker helped the cleaning and lifting parts of his job. Tr.382:8–383:9. However, in his Complaint to MSHA, Complainant said that he didnot often ask for help because he could get most of the cleaning done with awater hose. *Id.* at 433:3–13; Ex. R-T.

 

            Healso testified that he told Mr. Clemmons, while the plant was shut down due toa vandalism incident on May 8, that his back was still hurting. Tr. 383:16–384:2.When Mr. Clemmons asked if it was from April, Complainant said that it was, andthat he wanted to see a doctor, *id.* at 384:2–5; “[a]t which point, hedid not respond to me at all. He just drove away.” *Id.* at 384:5–6.[15] Mr. Clemmonsdenies that Complainant ever told him he needed to see a doctor. *Id.* at748:9–21. 

 

 Mr. Williams andMr. Humes testified that Complainant was not completing his assigned duties asrequired. Mr. Humes testified that Complainant and Mr. Walker were not cleaningtheir zones fully and were leaving hazards behind for the next morning. Tr.612:15–613:14. This was discussed in “toolbox talks” and then with the minersone-on-one. *Id.*

* *

Mr. Humes said Mr.Williams recommended Complainant be terminated for not cleaning his area andgreasing the plant, and for leaving work without telling anyone these tasks hadnot been completed, on May 10 and 11. Mr. Humes said Mr. Williams reported theconditions to him on both days, that Mr. Williams cleaned the area and greasedthe plant on the morning of May 10, and that Mr. Humes personally went to thearea to inspect on May 11, after Mr. Williams told him Complainant had againnot cleaned the area. *Id.* at 630:17–631:3.

 

Mr. Humes calledMr. Ellis and explained the issue to him on the morning of May 11. He recommendedComplainant be terminated because of failure to improve his cleaning andgreasing performance. Tr. 631:9–14.

 

Complainanttestified that he finally told Mr. Williams, after the morning meeting on May12, “I’ve put up with this as long as I am going to.Ineed to see a doctor today.” Tr. 332:1–3.[16]He said Mr. Williams’ response was, “I will let them know.” *Id.* at 332:8–9.After the morning meeting, Mr. Williams called Mr. Humes and told himComplainant had requested to see a doctor, and Mr. Humes relayed this to Mr.Ellis. *Id.* at 632:23–633:5.

 

Respondent’switnesses testified about its plans to terminate Complainant on May 12, basedon Mr. Humes’ recommendation the previous day. Tr. 508:20–509:17. Inanticipation of the meeting, Mr. Ellis prepared written notes, which heintended to use as a script for the termination meeting, and contacted Mr.Lindsey, who also prepared for the meeting. *Id.* at 520:7–21. Theyintended for Mr. Williams to bring Complainant to the office after the morningmeeting so they could tell him he was being discharged.

 

However, whenComplainant asked to see a physician, Mr. Williams instead allowed Complainantto go to the plant to begin his shift. He then contacted Mr. Ellis and told himComplainant had requested to see a doctor. Mr. Lindsey said that Mr. Williamshad to “pivot” from the original plan, and that he and Mr. Ellis decided todiscuss the situation with risk management, which handles workers’ compensationand liability issues for VCM. Tr. 671:13–672:11.

 

Mr. Ellis and Mr.Lindsey discussed the situation and contacted Mr. Clemmons and Andi Romano,Respondent’s risk management officer. Tr. 682:22–683:14. After conferring, theydecided to proceed with the termination, but to also provide Complainant with alist of physicians, as required by Tennessee workers’ compensation law. *Id.*[17]

 

Mr. Ellis said he didnot know Complainant had requested to see a doctor for his injury until themorning he was to be terminated, after the decision had been made. Tr. 509:23–25.He assumed that the request was for a new injury. *Id.* at 512:24–513:2.

 

            Mr.Ellis also said that Respondent requested law enforcement officers be presentduring the termination. He said this decision was made based on input from Mr.Williams and Mr. Humes about Complainant possibly having a history of violenceand gun possession and his reaction to previous discipline. Tr. 526:5–527:13.[18] Mr. Humestestified that Mr. Williams told him Complainant “normally had a gun on him.”

 

Complainant saidthat Mr. Humes called him later that morning and said the company was trying toget him a doctor in Lebanon. Tr. 333:15–20. He said that he also spoke with Mr.Williams, who told him he was bringing a replacement to operate the plant so Complainantcould go to the doctor. *Id.* at 334:8–15. Instead, Complainant was takento the area outside of the mine’s offices, where Mr. Ellis, Mr. Humes, and twoWilson County deputy sheriffs were waiting. *Id.* at 335:24–336:4. Thegroup summoned him, and Complainant was informed that he was being terminated“due to a couple of previous write-ups andpoor performance.” *Id.* at 336:12–15.

 

            RexLindsey, the company’s area human resources director, was on the phone duringthe meeting. Tr. 337:9–14. He informed complainant of the “finer points” relatingto his termination, including Complainant’s last-chance notice. *Id.* at337:21–338:5. Mr. Ellis did give complainant a list of doctors that he couldsee for his injury. *Id.* at 338:19–25. The form, Ex. GX-6, indicated thatcomplainant had suffered an occupational injury. Respondent did not report theinjury to MSHA until after it had been cited for failing to do so. *See id.*at 446:10–15, 468:24–469:1.

 

**III.       Disposition**

** **

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

 

**1.     ****Findingof Violation**

 

Complainant wasinjured while performing maintenance on the operator’s crushing plant. I credithis testimony that he felt pain while handing 35–50-pound liner plates to Mr.Tucker, who was working to install the plates inside the machine. Tr. 314:4–19.While Mr. Tucker testified that he does not recall Complainant saying that daythat he had injured himself, Complainant claims that he told Mr. Williams aboutthe injury in passing that day and reported it to him again on Monday, April 12.*Id.* at 315:14–316:3.

 

The nature of theinjury and the operating environment do not support a finding that Complainantclearly reported an injury on Saturday, April 10. However, I find that he did tellMr. Williams the following Monday, April 12, that his injury was worse than hehad thought, and that he wanted to see a doctor.[19]

 

Complainant’songoing pain after April 12, and Respondent’s knowledge of and response to hiscomplaints, show an awareness of an occupational injury at least as early asApril 14, 2021. On that date, Complainant had a text message exchange with Mr. Clemmons.Ex. GX-9. In that exchange, Mr. Clemmons asked Complainant how his back was,and whether he was “still taking it easy?” *Id.*Complainant replied thathe was, and that his supervisor, Mr. Williams, had told him to “run the plantand do nothing else.” *Id.* Mr. Clemmons acknowledged this message. *Id.*

 

First, I find thatComplainant suffered an “occupational injury” as the agency has reasonablydefined that term. He was injured while working in a mine. The Agency’s generaldefinition of “occupational injury” has been affirmed by the Commission and theD.C. Circuit Court of Appeals. *See Energy West Mining Co. v. FMSHRC*, 40F.3d 457, 464 (D.C. Cir. 1994) (noting approval of definition of “occupationalinjury” and affirming finding that accident was reportable even if injuryoccurred while miner was at mine but not working when injured).

 

The only possibleissue is whether Complainant’s injury was serious enough to require reporting. Thedefinition includes a requirement to report an injury that gives rise to an“inability to perform *all* job duties on any day after an injury.” 30C.F.R. § 50.2(e) (emphasis added).

 

Respondent claimsthat it limited Complainant’s work out of “kindness,” Tr. 539:5–10, but therecord establishes that Complainant was in fact placed on light duty. Theoperator admitted as much in its answer. Ans. ¶ 5. Mr. Humes testified that Complainanthad been placed on light duty. Tr. 628:5–14. This was a decision made by hissupervisor, and VCM’s safety manager was aware of the decision. *See* Ex. GX-9.

 

It iswell-established by the record that Complainant’s job duties included more thanrunning the plant. Indeed, the record establishes that he was highly efficientas plant operator but was disciplined for his alleged failure to perform otherduties adequately, including cleaning his area. Thus, an inability to clean hisarea supports a finding of occupational injury.

 

Complainanttestified that his ability to perform several of his required tasks wasimpaired by his injury. Climbing stairs was “painful,” using a hose to cleanhis area was “very painful,” and “[s]hoveling was just basically unbearable.” Tr.323:8–12. On at least three days, his supervisor, Chris Williams, did thecleaning for him. *Id.* at 323:20–22. As noted above, Mr. Williams toldComplainant to “run the plant and do nothing else,” and Mr. Clemmons was awareof this directive. I therefore find that Complainant was unable to perform allof his required tasks due to his injury, and that his employer’s management wasaware of this disability.

 

As safety directorfor Respondent, Mr. Clemmons was also aware of MSHA’s injury reportingrequirements. *See*Tr. 732–40, Ex. R-P (discussing reports ofoccupational injury and illness and admitting exhibit containing thosereports). I hold that he must have at least been constructively aware of thedefinition of “occupational injury” used by the agency to require reporting ofsuch injuries.

 

The evidence showsthat Respondent took pride in its safety record and spotlighted its favorable historyof occupational injuries to shareholders. *See* Ex. GX-4. The evidencealso shows that the operator knew of its duty to report occupational injuriesand had a program for recording and reporting them. After Complainant contactedthe MSHA District Office about his injury, the office apparently contactedsomeone at the plant, who admitted that Complainant had been injured on thejob. Tr. 284:18–285:23. Yet it did not file an MSHA Form 7000-1. *Id.* at284:23–24.[20]

Finally, theevidence shows that the operator had a policy of seeking to treat minorailments with the so-called “RICE” method—rest, ice, compression, andelevation. There is nothing wrong with this, in and of itself. But at least inthis instance, it appears that an over-reliance on the “RICE” concept seemed tohave been used as an alternative and not an adjunct to the operator’s duty to investigateand report accidents and occupational injuries.[21]

 

While the incidentresulting in Complainant’s injury does not meet the definition of “accident” forimmediate reporting purposes under Section 50.2(h), the Mine Act uses a broaderdefinition of the term “accident,” and the statutory definition includes an“injury to . . . any person.” 30 U.S.C. § 802(k) (2022). This is significantbecause the operator is required to investigate, record, and report *all*accidents. 30 U.S.C. § 813(d) (2022). Because Congress took care to define“accident” in the Act, I find the statutory definition controls thisresponsibility.

 

Respondent wasobviously aware of this duty because Mr. Clemmons and Mr. Ellis had in factconscientiously investigated a previous minor injury to Complainant, involvinga skid steer he had been driving. Tr. 327:11–14. It is thus inconceivable thatMr. Clemmons would not have known of his duty to investigate, record, andreport the accident and occupational injury to the Complainant in this case.

 

Yet Respondent didnot report the occupational injury in this case within 10 days of April 14—adate on which the evidence conclusively establishes Mr. Clemmons’ knowledge ofthe occupational injury that prevented Complainant from performing all hisduties on that date. I impute that knowledge to Respondent.

 

Indeed, it doesnot appear that the operator ever reported the injury, even after it provided aphysician referral to complainant on the day he was terminated. When theoperator did finally report the injury to abate the citation, the reportappears to be incomplete and inaccurate. *See*Ex. GX-3.[22] This isinexcusable. MSHA takes seriously the duty to report occupational injuries, aswell as the potential that such injuries will be under-reported. That is whythe agency audits operators to ensure their reports are accurate. *Seegenerally**Big Ridge, Inc.*, 34 FMSHRC 1003, 1011–22 (May2012), *aff’d*, 715 F.3d 631 (7th Cir. 2013). However, the agency cannotaudit every operator, and must generally rely on self-reporting of accidents,occupational injuries, and illnesses.

 

I do not find thatthe operator generally suppressed reporting of accidents and injuries, assuggested by the Complainant. Nor do I find sufficient evidence that the operatorengaged in a pattern of under-reporting occupational injuries. But the evidencein this case does at least give rise to an inference that the operator may havediverted a miner to “RICE” to forestall medical treatment of a minor injury,and that in this case—at least—it did not fulfill its duty to report arelatively minor injury once it became aware that the injury affected theminer’s ability to perform all his duties.[23]Though the injury was minor, it could carry the same statistical weight in theoperator’s record as a more serious lost-time injury.

 

**2.     ****Penalty**

 

Several of thestatutory penalty factors have been stipulated to, including the size of theoperator, its record of previous violations, and the effect of the proposedpenalty on the operator’s ability to remain in business. The gravity of thisviolation is not such that it would result in an injury to any miners. However,it is a serious violation. The Act requires mine operators to assume primaryresponsibility to prevent unsafe conditions and practices. 30 U.S.C. § 801(e)(2022). Where the Secretary has expressly required the operator’s assistance inthis effort, by requiring occupational injuries to be recorded and reported,the failure to do so affects the integrity of the enforcement program.

 

I agree with the inspector’scharacterization of the negligence as “high.” Tr. 288:8–21. However, I notethat the operator was contacted by MSHA and admitted to not having filed theform prior to the citation being issued but did not file the form until afterit received the citation. I therefore find that the operator should not becredited with rapid compliance after the fact for an affirmative duty itignored until its failure had been cited. Instead, I find that the penaltyproposed does not adequately reflect the aggravated lack of care in failing toreport the injury when it knew of it, and I assess a penalty of $300.00.

 

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

 

Complainant’s discriminationcomplaint fails because the evidence at trial did not establish discriminationunder the *Pasula-Robinette* or*Gross-Nassar*standards.[24] As noted above,the Commission has thus far only required that *Gross-Nassar* be employedin mines within the Ninth Circuit, but the Commission or other circuit courtsmay determine that the test must be employed. In the interest of judicialeconomy, I have considered both standards in reaching my conclusion.

 

Under eitherstandard, the Secretary and the Complainant must prove by a preponderance ofthe evidence that Complainant engaged in protected activity, that he sufferedan adverse employment consequence, and that there was a causal connectionbetween his exercise of protected activity and the adverse action.

 

As explainedbelow, I find that Complainant failed to meet his burden of proving a violationunder *Pasula-Robinette*. While I do find that the bare minimum standardfor a prima facie case has been met, the inference drawn for causation cannot withstandRespondent’s well-supported explanation for its decision to dischargeComplainant, and Complainant failed to demonstrate that the operator’s citedperformance issues were pretextual.

 

Considering theevidence under *Gross-Nassar*, I conclude Complainant was not terminated becauseof any consideration by the operator of any protected activity. I find that hedid engage in protected activity, that the operator was aware of this activity,and that he was terminated from employment. However, there is no proof thatwould support a reasonable inference that his protected activity was a “but-for”cause of his termination.

 

Asthe Supreme Court has explained, “but-for” causation may be determined byisolating the possible rationales offered for an adverse employment action anddetermining how the outcome may be affected. *See Bostock v. Clayton Cty.,Ga.*, 140 S. Ct. 1731, 1739 (2020). (“[A] but-for test directs us to changeone thing at a time and see if the outcome changes. If it does, we have found abut-for cause.”) In the present case, the possible reasons Complainant wasseparated from his employment include the disciplinary and performance issuescited by the operator, and Complainant’s request to see a physician, which heclaims is an activity protected against discrimination under the Act.

 

Thereis no evidence that Complainant’s request for medical care played any role in atermination that was already underway when the persons making the terminationdecision learned about the request. There is thus no causal connection, and theanalysis under the *Gross-Nassar*standard would produce the same resultas under *Pasula-Robinette*.

 

**1.         Complainant’s request tosee a doctor for an occupational injury is protected activity under the Act.**[25]****

 

The Act protectsminers against discrimination or interference because of their exercise oftheir *statutory* rights, including those enumerated in Section 105(c)(1)as well as “any [other] statutory right afforded by this Act.” 30 U.S.C. §815(c)(1) (2022). Thus, whether the Act affords miners the right to requestmedical treatment for an occupational injury is a threshold question in thiscase.

 

The Commission hasapparently not held that a request to see a physician, standing alone,qualifies as protected activity. However, it has found that the reporting ofinjuries is protected against discrimination, even if there is no safetycomplaint associated with the report. *Swift v. Consolidation Coal Co.*,16 FMSHRC 201, 205 (Feb. 1994).

 

I find that theAct does protect requests for medical care, even if the injury did not resultfrom an unsafe condition or practice or was not made in conjunction with aminer’s report of an alleged danger or safety and health violation. In additionto the reasoning in *Swift,*I rely on the text, structure, and purpose ofthe Act’s anti-discrimination provisions.

 

As notedpreviously, Section 103(d) of the Act requires operators to investigate *all*accidents. 30 U.S.C. § 813(d). If the report of an occupational injury is theevent which gives rise to this duty, it would thwart the clear and express intentof the statute to permit mine operators to suppress the recording and avoid theinvestigation of accidents by discouraging or punishing the report ofoccupational injuries. 

 

Extending theAct’s protection to requests for medical care is consonant with the protectionof other rights under the Act. When a miner requests to see a physician, thereport may affect the operator’s safety record, either because the complainantwill require and receive medical treatment (as opposed to evaluation) orbecause the treating physician may proscribe activities necessary for theminer’s job.

 

The Mine Act is aremedial statute, and its terms must be understood broadly to effectuateCongress’ purpose—to eliminate unsafe and unhealthful conditions and practices inmines, relying primarily on the active involvement of operators in theprevention of such conditions and practices. 30 U.S.C. § 801(d)–(e); *see alsoSec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp.*, 38 FMSHRC1914 (Aug. 2016). The Commission’s embrace of activities beyond thoseenumerated in the Act has been consistently and broadly inclusive. *See EmeryMining Corp.*, 10 FMSHRC 276, 283, 293 (Mar. 1988) (permitting walkaroundinspection participation under Section 103(f)); *So. Ohio Coal Co.*, 5FMSHRC 729, 759 (Apr. 1983) (ALJ) (permitting post-inspection conferenceparticipation under Section 103(f)); *Sec’y of Labor on behalf of Bennett v.Emery Mining Corp.*, 3 FMSHRC 2648, 2657 (Nov. 1981) (ALJ) (requiringoperator-provided training under Section 115).

 

Further, the D.C.Circuit has consistently (and recently) relied on the intent to achieve thegoals of the Mine Act in affirming miner’s rights. In *Marshall County CoalCo. v. FMSHRC*, the court recognized a miner’s Section 103(g) rights—enablingthe raising of anonymous complaints—as a basis for a protected activity in aninterference claim. 923 F.3d 192, 195, 201 (D.C. Cir. 2019). The operatoractivity complained of there was a requirement to report complaints tomanagement. *Id.* at 197.

 

In *HarrisonCounty Coal Co. v. FMSHRC*, the court denied the operator’s petition forreview because there was substantial evidence of six protectedactivities—mostly regarding reporting health, safety, and discriminationcomplaints. 790 Fed. Appx. 210, 212, 213 (D.C. Cir. 2019). The court reiteratedthat reporting is a right bolstered by its importance to achieving the Act’spurpose:

 

Since the participation of minersin reporting unsafe working conditions is essential to the effectiveness of theMine Act, Congress explained miners “must be protected against any possiblediscrimination which they might suffer as a result of their participation.”

 

*Id.* at 212 (quotingS. Rep. No. 95-181, at 35, *reprinted in* Senate Subcomm. on Labor,Committee on Human Res., 95th Cong., *Legislative History of the Federal MineSafety and Health Act of 1977*, at 626 (1978)). This is in line with theCommission’s reliance, in *Swift,*on the command of Section 2(e) that“the operators of such mines with the assistance of the miners have the primaryresponsibility to prevent the existence of such conditions and practices insuch miners.” 30 U.S.C. § 801(e).

 

Consistent with Commissionand court precedent and Congress’ clearly expressed intent, I find that a mineoperator may not discourage, interfere with, or discriminate because of aminer’s request to see a doctor because he was injured at the mine.

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

** **

I creditComplainant’s testimony that he twice communicated a request to see a doctor tohis supervisor, Chris Williams. His testimony regarding his requests isdiscussed more thoroughly below, but he at least made the requests on April 12,the Monday after he was injured, and on May 12, the day he was terminated. Mr.Williams, an agent of Respondent, was aware of both requests. The managers whomade the decision to terminate Complainant were aware of the request he made onMay 12.

 

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

 

Complainant’semployment was terminated. Discharge from employment is expressly prohibited bySection 105(c) of the Mine Act and is the classic example of an adverseemployment action. 30 U.S.C. § 815(c)(1).

 

**4.         Theevidence is insufficient to support an inference that Complainant was terminatedbecause of his request to see a physician.**

 

The burden ofproducing sufficient evidence to support a prima facie case of discrimination isnot especially great in the abstract. A complainant may provide direct evidencethat the adverse employment action was discriminatory. But if such evidence isunavailable, as is usually the case, the Complainant is only required todemonstrate that the available circumstantial evidence *could* support aninference of discriminatory treatment. *Turner,*33 FMSHRC at 1065–66.

 

I find that theComplaint for discrimination fails because there is no direct evidence of discriminatoryintent and no reasonable basis for inferring that his discharge from employmentcould have been causally related to Complainant’s protected activity. This istrue under either legal standard the Commission might apply to hisdiscrimination claim.

 

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

 

The operator hasdenied that Complainant was discharged because of his protected activity. TheSecretary and the Complainant must show at the prima facie**stage thatthe protected activity could have motivated his discharge, and then carry the burdenof proving by a preponderance of the evidence that his discharge was somotivated. 

 

Complainant couldnot provide any direct evidence of discriminatory motive. However, the absenceof direct evidence is not fatal to Complainant’s case.“‘[D]irect evidence of actualdiscriminatory motive is rare. Short of such evidence, illegal motive may beestablished if the facts support a reasonable inference of discriminatoryintent.’” *Con-Ag, Inc. v. Sec’y of Labor*, 897 F.3d 693, 700 (6th Cir.2018) (quoting *Sec’y of Labor on behalf of Howard v. Cumberland River CoalCo.,* 34 FMSHRC 1396, 1397 (June 2012)).

 

            Therefore,I must consider whether inferences reasonably drawn from the evidence in thecase may be used to support Complainant’s contention that he was fired becausehe engaged in protected activity. Such inference may be supported by thefollowing factors:

 

(1) [T]he operator’s knowledge ofthe protected activity; (2) the mine operator’s hostility or ‘animus’ towardsthe protected activity; (3) the timing of the adverse action in relation to theprotected activity; and (4) the mine operator’s disparate treatment of theminer.

 

*Id.* (quoting *CumberlandRiver Coal Co.*, 712 F.3d at 319; *Sec’y of Labor on behalf of Chacon v.Phelps Dodge Corp.*, 3 FMSHRC 2508, 2510–12 (Nov. 1981), *rev’d on othergrounds*, 709 F.2d 86 (D.C. Cir. 1983)).

 

**b.         The recorddoes not support an inference that Complainant was discriminated against becauseof his protected activity.**

** **

***1.         Thereis scant evidence of disparate treatment of the Complainant.***

 

The record in thiscase is replete with complaints by miner witnesses of unfair, arbitrary, andharsh treatment by lower-level supervisors. However, this was a burden borne bythe entire workforce. There is little evidence that Complainant was an especialtarget of abuse, and no evidence that any protected activity may have motivatedRespondent’s agents.

 

On the contrary,miner witnesses testified that everyone in the workforce felt targeted by poor supervisorswho did not know their jobs well. Some miners did testify that Complainant’ssupervisors had “targeted” him for termination, but the bases for their assertionsare grounded in actions that predated any protected activity in this case.

 

When questionedabout the operator’s management, the miner witnesses complained about generallyarbitrary and unfair supervision of employees by Mr. Parr and Mr. Humes. Infact, Complainant and several other witnesses noted that at one point Mr. Humesthreatened to fire and replace the *entire* workforce. 

 

It was clear thatnone of the miners felt genuinely intimidated by these threats. After Mr.Humes’ tirade, witnesses noted that “every employee called [human resources]that day;” Tr. 86, and Mr. Ellis noted that he had discussed the situation withseveral miners and the company’s human resources department, and he requiredMr. Humes to apologize.

 

There is someevidence that Complainant was treated less favorably than other miners. However,he himself testified this began under Mr. Parr—who was separated from hisemployment before claimant requested to see a physician. On cross-examination, Complainantadmitted that he had been verbally counseled by Mr. Parr for failing tothoroughly clean his area. Mr. Parr subsequently issued a written warning toComplainant for the same issue.

 

Complainanttestified that he believed Mr. Parr was trying to make a “paper trail” to terminatehim. Even if this were true, however, any motivation Mr. Parr might have had toharass or oppress Complainant could not have been related to protected activitythat had yet to occur. It is thus not logically possible to infer that Mr. Parrtargeted claimant because of his protected activity.

 

Complainant subsequentlywas formally disciplined again, by a different supervisor, before histermination. However, the second written warning and suspension also took placebefore his injury and subsequent protected activity. When Complainant wasinjured, he was therefore already on a “last chance” letter, having beensuspended by the operator and told, in writing, that *any* futureviolation of policies or failure on his part could lead to termination.

 

I have considered thepossibility that Complainant was the only miner disciplined for leaving workearly when he was suspended. At least one other miner, Mr. Evans, left at thesame time as Complainant, and all four miners on Complainant’s crew leftwithout completing the cleaning tasks assigned to them, according to Mr.Williams. But this suspension also occurred well before the injury upon which Complainant’sclaim of protected activity rests, and Complainant’s discipline here was thus entirelyunrelated to his request to see a doctor for an injury that had not yetoccurred.

 

Furthermore, whileMr. Evans may not have been formally disciplined, it appears that Mr. Williamsat least intended to do so. Mr. Evans was summoned to the office, where Mr.Williams told him that he was going to be issued a verbal warning. Because Mr.Evans had no prior disciplinary history, his treatment under the company’sprogressive disciplinary policy was equivalent to Complainant’s. While he mayhave talked his way out of formal discipline, Mr. Williams did not ignore theactions of the other employee whose actions were the same as Complainant’s. 

 

Additionally, Complainant’sdiscipline does not appear to be inconsistent with that assessed to otherminers for similar conduct. Mr. Walker had a similar disciplinary history andhad also received a second written warning and three-day suspension for thesame alleged failures that led to Complainant’s suspension. Tr. 548:24–549:10; Ex.R-L. There was no evidence that Mr. Walker had ever engaged in protectedactivity before his suspension. 

 

In summary, there isinsufficient evidence to support the contention that Complainant was treatedmore harshly than other miners, and no evidence at all for inferring that anyactions of his supervisors had anything to do with mine safety or health. Thereis thus no basis for me to impute an improper motive for any of the predicatedisciplinary actions on which Complainant’s termination was grounded.

 

In fact, thishypothesis is refuted by Respondent’s treatment of Complainant before and afterhe engaged in protected activity—which might be a more appropriateconsideration than alleged disparate treatment of Complainant and othersimilarly situated miners. *See Riordan*, 38 FMSHRC at 1927 (finding ofpretext upheld where written record of miner’s performance was inconsistentwith reasons given for termination).

 

Before hisprotected activity, Complainant was formally disciplined three times, by or atthe insistence of three different supervisors, for failure to complete cleaningand greasing tasks that Respondent had assigned to him as part of his job. Afterhis injury and earliest request to see a physician, Complainant was dischargedfor the same conduct that he had been disciplined for at least three times priorto his injury and protected activity. 

 

The discharge wasconsistent with company policy, and Complainant had been warned when he wassuspended that he could be discharged for any future failing or violation ofcompany policy. He himself admitted that he had not fully cleaned his area orgreased the plant on May 9 and 10, and he does not know whether anyone else didso. Tr. 422:13–22.[26]

 

My decision ismindful of the Commission’s admonition that operatorjustifications in discrimination cases should not “be examined superficially orbe approved automatically when offered,” but that my careful analysis may not“substitute [my] business judgment or sense of ‘industrial justice’ for that ofthe operator.” *Cumberland River Coal Co.*, 712 F.3d at 320 (quoting *Harov. Magma Copper Co.*, 4 FMSHRC 1935, 1938 (Nov. 1982)).

 

In this caseespecially, I note the performance issues cited by the operator may be vital toits safe and efficient operation. Special Investigator McClung testified that aviolation could be cited as an S&S violation of MSHA’s housekeeping standards.Tr. 490:7–491:5. It would be contrary to the Act’s purpose and text to punishan operator for holding miners accountable for compliance with a mandatorysafety and health standard. And the operator provided credible testimony aboutthe severe costs and inconvenience produced by a failure to grease the plantbearings and other equipment, which is a daily requirement.

 

His disciplinary historyleft Complainant in a precarious position, where any subsequent violation of companypolicies would result in his termination. As noted, acts predating theprotected activity cited in this case could not have been motivated by thatactivity. Complainant nevertheless could have established a basis for inferringa nexus between his protected activity and his discharge but was unable toprove that the operator’s termination decision—which was consistent with itspolicies and Complainant’s work history—was ever treated differently because ofactivity protected under the Act.

 

 

 

 

 

***2.         Therecord does not support an inference of animus toward the Complainant becauseof safety or health related issues or general animus toward safety and healthconcerns.***

 

While the recorddoes not support an inference that he was treated differently because of hisprotected activity, Complainant could have provided a reasonable basis forinferring his termination was motivated by improper animus against safety andhealth generally, or against him for his involvement in or advocacy on safetyand health issues. There is not a basis in the record for this inference,either.

 

First, there is noevidence at all that Complainant ever engaged in any advocacy on safety andhealth issues.[27]Nor does he appear to have had any specific, material involvement in thoseissues during his employment.

 

There is also noevidence that Respondent harbored any animus against safety and healthgenerally. On the contrary, witnesses almost without exception testified thatthe company tried to operate safely and to correct hazardous conditions thatwere brought to its attention. Complainant himself provided such testimony. *See*Tr. 397:25–398:2.

 

I also note theweight of circumstantial evidence undermining any inference of hostility tosafety and health. Respondent held “morning stretch” sessions for employees,which testimony acknowledged as having a safety purpose. Tr. 147:3–5. Employeesapparently felt comfortable calling human resources and senior managers tocomplain about their supervisors. When Mr. Humes supposedly posted a new policyrequiring workers to leave the jobsite at the same time at the end of theirshift, an employee removed the message so that he could bring it to the morningmeeting for discussion.

 

Testimony by otherminers also refutes any notion that Respondent was hostile to safety and healthcomplaints. Mr. Dycus testified that it was generally known that he had made acomplaint to MSHA, and yet was never disciplined by the company for anything. Evenmore telling is the incident where Mr. Parr allegedly tried to persuade Mr.Walker to falsify an examination report before an inspection, Mr. Walker’srefusal, and his reporting the incident to Respondent’s management. VCM openedan investigation. Mr. Parr then resigned. The inescapable inference is thatminers believed they could report safety matters to management, and that whenthey did so, those matters would be properly addressed.

 

Nor is there anyevidence that the Company showed any hostility toward Complainant because ofhis request to see a doctor. As noted, every prior disciplinary action occurredbefore his injury and protected activity. When Complainant requested to see adoctor, there was no adverse response to the request from anyone in minemanagement. 

 

At worst, Complainant’srequest for medical care was ignored. If Complainant’s previous requests hadany effect, it was to have him placed on limited duty due to his injury. Mr.Williams and Mr. Clemmons both inquired about Complainant’s injury after that. Thereis no conduct from which I could infer any hostility arising from his injury. 

 

Complainant’srequest for medical care on May 12 certainly had no effect on a terminationdecision that was well underway before the decisionmakers were aware of it. Mr.Ellis testified that he made the decision to terminate Complainant, with inputfrom Mr. Humes and Mr. Lindsey. They had intended for Mr. Williams to bring Complainantto the office after the morning meeting so that they could communicate thedecision to him. 

 

Mr. Ellis preparednotes in anticipation of that action. While Mr. Ellis testified that Mr.Williams was not involved in the termination decision, his notes suggestotherwise.[28]His unrebutted testimony shows that he took those notes before he learned ofthe request to see a physician in preparation for the meeting at which Complainantwas to be terminated, the next day. The context and the content of the notestogether clearly support his testimony.

 

There is noevidence that Mr. Ellis was aware that Complainant requested to see a doctorbefore making the decision to terminate his employment, or that he discussedany previous requests with Mr. Humes, Mr. Williams, or Mr. Clemmons. Nor isthere any evidence that any of the other individuals involved in the decisionto discharge Complainant ever evinced anything worse than indifference inresponse to his request to see a doctor.

 

This evidencesupports Respondent’s contention that it took seriously safety and healthissues brought to its attention. I thus find that there is no evidence in therecord from which one could reasonably infer any hostility to protectedactivity, including Complainant’s request to see a doctor.

 

***3.         Coincidencein time between Complainant’s request to see a doctor and his termination raisesa superficial inference of potential discriminatory intent that does not surviveevidence raised in response to his prima facie******case.***

 

Coincidence intime between protected activity and an adverse employment action justly createssuspicion that there may be a relationship between the two. A miner mayestablish a prima facie**case where the adverse employment action isimposed soon after the exercise of protected activity.  *See Turner,*33FMSHRC at 1066 (citing *King v. Rumsfeld*, 328 F.3d 145, 150–51 (4th Cir.2003) (reversing trial court’s conclusion that plaintiff failed to make out aprima facie case of retaliatory discharge based on evidence proffered by theplaintiff that “his termination came so close upon his filing of [an EEOC]complaint giv[ing] rise to a sufficient inference of causation to satisfy theprima facie requirement”)).

 

The Commission hasheld that coincidence in time, combined with knowledge of a miner’s protectedactivity, may establish discriminatory motivation. *Sec’y of Labor on behalfof Knotts v. Tanglewood Energy, Inc.*, 19 FMSHRC 833, 837 (May1997); *Bradleyv. Belva Coal Co.*, 4 FMSHRC 982 (June 1982). I credit Complainant’stestimony that he requested to see a physician on May 12, the morning he wasterminated. It is undisputed that all of those involved in the decision toterminate Complainant were aware of the protected activity on May 12.

 

Mr. Williams, whoprovided input to Mr. Humes in support of the latter’s terminationrecommendation, testified about the request to see a physician. Mr. Humes, whomade the recommendation to terminate Complainant, was also aware of the requestbefore the termination was carried out. Mr. Ellis and Mr. Lindsey, who made thedecision to terminate Complainant, also knew of the request because Mr.Williams reported it to them.  

 

Here, as in *Knotts*,the Complainant was terminated soon after his protected activity. Indeed, hewas discharged almost immediately after requesting to see a physician on May 12.This close proximity in time is sufficient to establish a prima facie**caseof discrimination, because in the absence of other evidence, a causalrelationship is strongly suggested by the timing of the two events. 

 

While Complainanthas provided sufficient proof for a prima facie case, the analogy to *Knotts*cannotsurvive close scrutiny. In *Knotts,* the miner/complainant had anextensive conversation with a representative of the mine’s owner. 19 FMSHRC at834. Subjects of the conversation included safety, equipment and productionproblems, morale, mine policy, and other subjects. *Id.* The mine’s vicepresident was working underground and listened to the conversation by phone. *Id.*

 

The next day, Mr.Knotts was discharged. 19 FMSHRC at 835. Knotts said the vice president toldhim that the company had suspected that Mr. Knotts had been talking to the mineowners for some time. *Id.* The vice president’s own testimony indicatedhe was upset that Mr. Knotts had criticized mine management in the conversation.*Id.* While the company argued that Mr. Knotts was fired for engaging in alengthy conversation instead of doing his job, the ALJ found otherwise. *Id.*

 

In affirming theALJ’s rejection of the operator’s affirmative defense, the Commission notedthat there was no evidence of past discipline or performance issues in Mr.Knotts’ work record. 19 FMSHRC 838. In fact, the company admitted he was “oneof the best employees.” *Id.*

 

That ispractically the inverse of the situation in the present case. Here,Complainant’s disciplinary record placed him on a “last chance” agreementbefore he was injured or engaged in any protected activity. The disciplinaryrecord was based on his alleged failure to clean and grease his zone and hisalleged early departure from work on February 1, 2020, for which he wassuspended.

 

Even if theprevious disciplinary actions were questionable, there is no evidence that theywere motivated in any part by any activity cognizable under the Act. To theextent safety was implicated at all, even MSHA’s investigator acknowledged thatthe failure to clean areas where miners work or travel could lead to S&Sviolations. 

 

Complainantnonetheless could have shown that the final action taken by the operator,ending his employment with Respondent, was motivated by his protected activity.However, the coincidence in time turns out to be just that—a coincidence—and isinsufficient to overcome the operator’s explanation for Complainant’sdischarge. It appears that the request to see a physician did not influence,but rather interrupted, the execution of the termination decision.  

 

***4.         Respondent acted consistentwith its business practices, and the record does not support a finding that itsexplanation was pretextual.***

 

The Commission hasheld that “pretext may be found . . . where the asserted justification is weak,**implausible, or out of line with the operator's normal business practices.”*Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc.*, 12 FMSHRC1521, 1534 (Aug. 1990)**(citing *Haro v. Magma Copper Co.*, 4FMSHRC at 1937–38). In this case, Respondent’s evidence explains thecoincidence in time, and the termination process was consistent with VCM’sprogressive disciplinary policy and its maintenance and housekeeping policies.

 

The operator’switnesses gave consistent, credible accounts of the termination and theirconsideration of Complainant’s request to see a physician. The plan toterminate Complainant was already in motion when the key management playerslearned of Complainant’s request to see a physician. Termination was thelogical next step under Respondent’s progressive disciplinary policy. 

 

In accordance withits internal procedures, the operator had choreographed an elaborate, scriptedplan for carrying out the termination. But when they heard that Complainant hadrequested to see a doctor, VCM’s management paused to consider its plan anddecided to provide a list of physicians to the Complainant in addition toproceeding with the planned termination.

 

Respondent did notfire Complainant “because” he had asked to see a doctor. Rather, its managementcontinued with an already-formulated plan to terminate him, but made a slightmodification to that plan, providing him with a list of physicians he might seeabout his injury.

 

Thus, instead ofsummoning Complainant from the morning meeting, the operator made a “pivot”after Mr. Williams told them he had requested to see a doctor. This request onMay 12 could not have motivated a plan that was already under way, based on adecision that was made the previous day.

 

Ihave also considered that Complainant’s first request could have motivated adiscriminatory response by Respondent. *See Riordan,*38 FMSHRC at 1924 (citing*Gorzynski v. JetBlue Airways Corp*., 596 F.3d 93, 110 (2d Cir. 2010); *Perov. Cyprus Plateau Mining Corp*., 22 FMSHRC 1361, 1365 (Dec. 2000) (holding agap of several months between protected activity and discharge to be probativeof animus)).**Butnothing in the record suggests that it did.

 

The first requestto see a doctor was made to Mr. Williams, who was an agent of Respondent. Butthere is no evidence that Mr. Williams told anybody else about that request, orthat any of the persons involved in the termination decision—Mr. Ellis, Mr.Lindsey, or Mr. Humes—were otherwise aware of the request.[29]

 

Mr. Williamshimself did not respond adversely to Complainant’s protected activity. AfterComplainant had requested to see a doctor, but before he was terminated, Mr.Williams asked about Complainant’s back nearly every day. Tr. 430:23–431:2.

 

Thiscase is thus unlike *Riordan*. As the Commission noted, the complainant/minerin that case was disciplined immediately after his most recent protectedactivity, and then terminated months later.*Riordan*, 38 FMSHRC at 1927(“*Taken together,*these two incidents raise an inference that Riordan’stermination was not coincidental.”) (emphasis added). There are nocorroborating facts to support such an inference in this case.

Complainanttestified that he made his request on two other occasions. While Complainantonly cited as protected activity his May 12 request to see a physician, Ex. G-1;Tr. 439:21–440:2, any previous requests would have been within the scope ofMSHA’s investigation.

 

Furthermore,credible testimony about previous requests could be used to establish knowledgeand might be a basis for finding that the operator’s business justification waspretextual. I have therefore considered Complainant’s testimony that he told Mr.Clemmons on May 8, and that he told Mr. Humes, on a day he could not recall,over the radio.[30]

Complainant’srecollection of these requests is oddly vague and does not reflect aprogression or escalation of his concern with the company’s failure to refer himto a doctor for an injury serious enough to affect his work. He also testifiedthat his pain from the injury was so serious that he could not sleep and thatit was “affecting everything about [his] daily life.” Tr. 332:4–7. Yet he doesnot appear to have followed through or complained about the operator’s allegedinaction on his request until May 12.

 

I do not credit Complainant’stestimony that he told Mr. Clemmons he needed to see a doctor on May 8. Mr. Clemmonsallegedly asked if this was due to his injury in April, and when Complainantsaid it was, Complainant said Mr. Clemmons drove away without responding. Tr.384:2–6.

 

Thistestimony is inconsistent with other facts in the record, as well as humannature and common sense. Complainant said that his injury was serious enough tohave affected him profoundly for more than a month. He knew Mr. Clemmons wasaware of the injury. Mr. Clemmons had previously investigated an incident inwhich Complainant was injured. Mr. Clemmons had also inquired about Complainant’scondition while he was recovering from the injury at issue in this case. Yetthere was no follow-through with Mr. Clemmons, or anyone else, until the day hewas discharged.

 

Perhaps realizingthe weakness of his case, Complainant also claimed Mr. Clemmons had previouslyasked what could be done to keep him from going to the doctor after the skid steerinjury. Mr. Clemmons denied this, and Complainant’s testimony is at odds with hisown testimony about the investigation into the incident, which characterizedthe investigation as careful and thorough.

 

Furthermore, thecomment seems out of character with Mr. Clemmons’ text messages to Complainant,evincing what appeared to be genuine concern about his injury. In that context,I credit Mr. Clemmons’ denial, in part because the record includes incidentswhere other miners had requested to see a doctor and had their requestsgranted. *See*Ex. R-P. Some of these requests were for relatively minorinjuries, contrary to Complainant’s claim that the reporting of anything shortof “profuse bleeding or broken bones” was discouraged.

 

Complainant alsoclaims to have told Mr. Humes over the radio that he wanted to see a doctor. Iam skeptical of this for several reasons.

 

First, Mr. Humesdenied that Complainant ever told him he wanted to see a doctor. Tr. 625:1–4. Ifound Mr. Humes to be a disinterested witness who was forthright and candidabout his own shortcomings, and I credit his testimony here because it is moreconsistent and reasonable than Complainant’s version of events

 

Second, Complainantsays he cannot remember how Mr. Humes responded to the request, and there isagain no linkage made between this request and other requests that were allegedlymade. He did not testify that he had told Mr. Humes about his earlier requestto Mr. Williams, shortly after his injury. As with the requests allegedly madeto Mr. Clemmons and Mr. Williams, the testimony relates a solitary statementthat the operator’s management allegedly ignored, and Complainant did nottestify about any effort to follow up on or escalate his requests.

 

Finally, therecord establishes that comments made over the radio could be heard by otherpersons generally. Mr. Humes was discharged from employment in part because ofsomething offensive he said over the radio that was heard by employees. Yet noneof the other miner witnesses testified that Complainant ever made a request tosee a physician over the radio.

 

There is also no testimonyabout or basis for inferring a correlation between the alleged previous requestsand any consideration of them by Respondent’s management when it decided to dischargeComplainant from employment. As the party with the burden of proof, it isincumbent on the Complainant to not only suggest an inference, but to supportit with credible evidence. Even accepting that all his requests to see a doctorwere made as stated, there is no evidence that anyone might have considered themwhen Respondent made the decision to terminate him.[31]

 

The operatorrelied on input from Mr. Williams and Mr. Humes in making that decision. I havecredited Complainant’s testimony that he had previously told Mr. Williams onApril 12 that his injury was not improving and that he needed to see a doctor. Buteven Complainant did not testify that Mr. Williams reacted adversely to thisrequest, or that he attempted to discourage or interfere with his pursuit ofmedical treatment.

 

Mr. Williamsclaims not to have made a recommendation to fire Complainant, and Mr. Humes claimsresponsibility for the recommendation. But the termination decision was thelast in a chain of disciplinary actions, undertaken by or with input from threedifferent supervisors. Each of the previous disciplinary actions preceded Complainant’srequest to see a physician, and there was no protected activity or evidence ofany other relevant health and safety activities or views that could haveinfluenced those decisions.

 

It thereforeappears that Complainant was discharged for the same type of performance issuesthat contributed to his adverse disciplinary record. He himself acknowledgedthat he failed to clean or grease the plant on May 9 or 10, as reported by Mr.Williams to Mr. Humes. He said that the company had obtained a new grease gunfor him to use. Tr. 435:13–436:2. Although Complainant said that grease gun hadthe “wrong” tip and could not be used, he acknowledged that other grease gunswere available. *Id.*

 

Greasing the plantwas part of Complainant’s job and was an important, daily responsibility. Mr.Williams notes—in a statement of some significance—that Complainant did nottell him that the plant had not been greased at the end of his shift, and thatthis is something that he believed Complainant should have told him, because itwas vital that the plant be greased every day. Tr. 785:2–4.

 

Given the costsand inconvenience created by the catastrophic damage to the plant bearings aftera previous such failure, I credit Respondent’s proffered justification for itsdecision to terminate Complainant as reasonable. Complainant produced noevidence that suggests the operator’s justification is pretextual. Instead, itappears that the suggested connection between the final request to see aphysician and the discharge from employment is not a causal nexus but merely a *posthoc, ergo propter hoc* fallacy.  

**CONCLUSION**

 

The evidence inthis case leaves open the possibility that Complainant may have been treatedunfairly by his employer prior to his protected activity. Accepting as true hisaccount of events, he received a written warning, which he disputed, from asupervisor who was widely disliked and who eventually resigned underunfavorable circumstances. Complainant was then suspended when other workers whoengaged in similar conduct were not disciplined. He was fired for notperforming some of his duties during a time when he was injured, and when thereappeared to be at least some understanding that other people would assist himwith those tasks while he recovered.

 

However, there isno evidence that improper discriminatory motivation played any role in any ofthese disciplinary actions. I therefore find that Respondent did notdiscriminate against the Complainant in violation of Section 105(c)(1) of theAct, and his complaint is **DISMISSED.**

 

The order oftemporary reinstatement entered July 27, 2021, is hereby**DISSOLVED.**

 

Citation No.9237452 is **AFFIRMED**. Respondent is **ORDERED TO PAY** the Secretaryof Labor $300.00 within 30 days of the date of this decision.[32]

 

 

 

 

 

 

/s/Michael G. Young

                                                                        MichaelG. Young

                                                                        AdministrativeLaw Judge

 

 

 

 

Distribution(First Class Mail and email):

 

Christopher M.Smith, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 618 Church Street,Suite 230, Nashville, TN 37219, smith.christopher.m@dol.gov; nash.fedcourt@dol.gov

 

Elaine M.Youngblood, Esq., Ortale Kelley, 330 Commerce Street, Suite 110, Nashville, TN37201, eyoungblood@ortalekelley.com

 

Margaret S. Lopez,Esq., &William K. Doran, Esq.,Ogletree,Deakins, Nash, Smoak & Stewart, PC, 1901 K Street NW, Suite 1000,Washington, DC 20006, margaret.lopez@ogletree.comwilliam.doran@ogletree.com

----

[1] Mr. Hargis fileda timely complaint of discrimination on June 7, 2021. Compl. ¶ 8. The Secretaryfound that Mr. Hargis’ complaint for discrimination was not frivolouslybrought, and upon agreement of the parties, I entered an order temporarilyeconomically reinstating him, effective July 27, 2021. Tr. 14:11–25.

[2] The Ninth Circuitrecently decided that Commission discrimination cases must apply the standardestablished by the U.S. Supreme Court in *Gross v. FBL Financial Services, Inc.*, 557 U.S. 167 (2009),**and *University of Texas Southwest Medical Center v. Nassar*, 570 U.S. 338 (2013)*.**Thomas v.CalPortland Co.*,993 F3d 1204, 1210–11 (9th Cir. 2021). It is unknown whether the Commissionwill apply the *Gross-Nassar*standard to all cases within itsjurisdiction, or only to cases in mines within the Ninth Circuit.

[3] Mr. Hurst waspersonally served. Mr. Woods was served by certified mail. *Id.* at487:11–488:20. The return receipt was returned and included with the subpoenaas an exhibit; however, the receipt was unsigned. *Id.*

[4] Where necessaryor appropriate, I have noted in my decision specific factors I considered inmaking credibility determinations or assigning weight to testimony or exhibits.The failure to do so for each witness or exhibit does not indicate that I didnot fully weigh and evaluate all evidence in the record.

[5] Complainant’sraise was $0.53/hour, from $19.10 to $19.63. Ex. GX-11. Mr. Ellis testifiedthat comments made in the review process should have led to a reduced rating,and that the raise was made in error. Tr. 559:13–561:6. The recommendation and payraise decision predated the injury and protected activity in this case and haveno bearing on the outcome.

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

[7] None of thephotographs were taken on any of the days for which Complainant had beendisciplined for failing to clean his area.

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

[9] The evidence asto whether Mr. Evans was disciplined or merely counseled is ambiguous. Mr.Evans said Mr. Williams called him to the office and told him he was getting averbal warning for leaving work early. Mr. Williams’ testimony is unclear aboutwhether Mr. Evans was disciplined, while Mr. Evans said that he argued that itwas unfair to punish him. Tr. 170:16–25. He said that Mr. Williams relented,telling Mr. Evans not to worry about it, and that the discussion was “just ustalking.” *Id.* at 189:1–4. Mr. Evans had no disciplinary history at thetime. *Id.* at 185:7–10. I credit his account of the meeting, which isfairly detailed and consistent with his work history. I also infer from Mr.Evans’ account that Mr. Williams called him to the office with the intent todiscipline him for leaving work early. Complainant had already been issued hissecond written warning and suspension when Mr. Evans met with Mr. Williams. *Id.*at 180:11–14.

[10] It is difficultto assess Mr. Williams’ credibility as a witness. No witness had anythingnegative to say about his character, and in fact the miner and operatorwitnesses spoke very highly of his personal qualities and his ability as asupervisor. However, Mr. Williams was often a poor witness. His recall ofevents was uneven. His testimony contradicted itself at times. He was combativeand argumentative over even minor points. His testimony disagreed with that ofother witnesses who seemed credible and were generally disinterested. On theother hand, many of the important facts he testified to are either corroboratedor unrebutted and consistent with other witnesses’ accounts. 

 

I note thatcounsel for Respondent told the Court Mr. Williams would be late for thehearing on the day of his testimony because he had been essentially trapped onhis property by trees that had fallen in the previous evening’s severethunderstorms. There were in fact numerous downed trees in the local areafollowing the storm, which was prolonged and powerful. When he arrived at thehearing, Mr. Williams was flushed, and his clothes were dirty and torn. Heappeared to be highly agitated. He testified that he was uncomfortable as awitness adverse to his brother-in-law. I do not find that he was an untruthfulor generally unreliable witness, but in some instances, I have not credited histestimony where it disagrees with others.

[11] The provisions ofthe standard relevant here require that:

 

At all miningoperations—(a) Workplaces, passageways, storerooms and service rooms shall bekept clean and orderly; (b) The floor of every workplace shall be maintained ina clean, and so far as possible, dry condition. Where wet processes are used,drainage shall be maintained, and false floors, platforms, mats, or other drystanding places shall be provided where practicable . . . . 

 

30C.F.R. § 56.20003(a)–(b).

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

[13] Subsequenttestimony made clear that he was referring to a safety examination reportconcerning some guards that had not been repaired. Tr. 72:16–73:14.

[14] Mr. Williams isalso Complainant’s brother-in-law. He said their relationship is not strainedbut that they are not close. Tr. 431:7-13.

[15] Neither partyquestioned Complainant further on this exchange, and there was no testimonyabout any subsequent actions by the company or Complainant based on the allegedrequest.

[16] There was someconfusion about the nature of Complainant’s injury. Mr. Ellis said he thoughtComplainant had injured his ribs. Tr. 512:13–21. Complainant said he neverclaims his ribs had been “broken,” and that the injury was the same back injuryhe had reported on April 12. *Id.* at 384:7–385:6. Mr. Williams’ testimonyon this point was confusing and ambiguous. He testified that he thoughtComplainant’s ribs were injured, and his notes say that Complainant told him hehad three broken ribs, but he acknowledged this was the same injury Complainantreported in April. I find that the injury reported on May 12 was the samemuscular injury to Complainant’s thoracic spine which had been reported onApril 12. This confusion is not material to the matters in dispute here.

[17] Tennessee’sworkers’ compensation law requires the employer to provide the employee with agroup of three or more independent reputable physicians, surgeons,chiropractors, or specialty practice groups in the injured employee’scommunity, or, if no such providers are available in the community, withina one hundred (100) mile radius of the employee’s community. Tr. 716:11–14; *seealso*Tenn. Code Ann. §50-6-204 (2022). The exhibit introduced included three physician practicegroups.

[18] Mr. Williams testifiedhe had seen Complainant carry a gun “at times,” but never at work. Tr. 814:2–21.Neither Mr. Williams nor Mr. Humes said anything about Complainant having ahistory of violence. I note that such a characterization would be inconsistentwith the testimony of Complainant’s co-workers and the demeanor I observedduring the hearing. It is difficult to fault an employer for being concernedabout a possible workplace violence issue, and it appears Mr. Ellis may have drawnan inference about Mr. Hargis from the way the information may have beenreported to him, but the way the termination was carried out was unfortunately embarrassingand should not be taken as a reflection on Mr. Hargis’ character.

[19] My finding thatComplainant requested to see a doctor at this point is based largely on thefact that Mr. Williams did not clearly contradict him but only said he did notrecall Complainant ever requesting to see a doctor until the day he wasterminated. Tr. 774:18–20. However, as discussed below, I do find it unusualthat there was no apparent effort to elevate this initial request. I also donot find this request, by itself, to have produced any negative response fromany of Respondent’s agents, including Mr. Williams. None of the other witnessesacknowledged hearing about this initial request, and Mr. Williams placedComplainant on light duty and arranged for other miners to clean and grease Complainant’szone after he reported the injury. 

[20] The inspectortestifying, Otis Carroll, did not speak to Complainant or anyone at the quarry butwas advised by the District office to cite the operator for failing to reportthe injury. Although this was hearsay testimony, it is corroborated by otherfacts and was unrebutted by the operator. I find Inspector Carroll’s testimonyto be credible and that it is reasonable to believe that someone in amanagement position at the quarry acknowledged Complainant had been injured onthe job and admitted that no MSHA Form 7000-1 had been filed.

[21]“RICE”was cited repeatedly by Mr. Clemmons in his testimony. However, there is noevidence that Complainant was provided with the means for compressing the siteof his injury or that he was ever assisted in elevating the injury. Due to itslocation (the thoracic spine), elevation could either be considered to haveoccurred naturally while he was standing, or not to have occurred because thereis a therapeutic means for doing so that was not used. I thus conclude that theoperator’s approach consisted at most of merely providing ice that thecomplainant could use himself and limiting his activities while he wasrecuperating. In other words, he was only provided with rest and ice, andreciting “RICE” as a mantra is singularly unpersuasive. At some point, whenthis approach proved ineffective, the operator was duty-bound to treat Complainantas having suffered an occupational injury.

[22] The MSHA Form7000-1 report of accident does not reflect any attempt to investigate theaccident and gives the return-to-work date as April 14, even though Complainantcontinued to complain about his injury after this date, and Mr. Clemmons wasaware of the complaints of injury and that Complainant’s supervisor had placedhim on limited duty.

[23] I have consideredRespondent’s difficulty in evaluating Complainant’s condition. He was on thejob for only three days after his injury and was then absent for two weeks onmedical leave for an unrelated condition. But before the medical leave, VCM wasaware that Complainant’s supervisor had placed him on restricted duty due to hisinjury, giving rise to the duty to report it.

[24] A *Gross-Nassar*analysis requires the movant to establish that the impermissible motivation wasa “but for” cause of the adverse employment action, i.e., the action would nothave been taken but for a complainant’s protected activity. Under *Pasula-Robinette*,the complainant must carry the burden of persuasion on the prima facie case ofprotected activity, discrimination, and a causal nexus between them. But thenthe burden of persuasion supposedly “shifts” to the operator, who may prove thatit would have taken the adverse action for unprotected reasons alone.

 

While the Commission has continued to relyon *Pasula*, generally, citing the legislative history of the Act, *see**Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp.*, 38 FMSHRC1914 (Aug. 2016), *Riordan* also noted that the Judge’s correctapplication of *Pasula* was effectively a “but for” test. 38 FMSHRC at 1921,n.10; *see also Consolidation Coal Co. v. Marshall*, 663 F.2d 1211,1222 (Sloviter, J., dissenting) (expressing opinion that Commission hadeffectively applied the “now accepted ‘but for’ rule in mixed-motivationcases.”).

 

There may not be much of a practicaldistinction between the supposed burden-shifting under *Pasula* and thenatural effect of evidence introduced in the normal course of a hearing. TheCommission noted that the result would have been the same under either standardin *Riordan*, and the ALJ on remand in *Thomas v. CalPortland Co.*rathereasily harmonized Commission precedent with the Ninth Circuit’s decision. 43FMSHRC 531, 540–41 (Dec. 2021) (ALJ) (citing *Sec’y of Labor on behalf ofThomas Robinette*, 3 FMSHRC 803, 818, n.20 (Apr. 1981) (“The ‘ultimateburden of persuasion’ on the question of discrimination rests with theComplainant and never ‘shifts.’”)).

[25] The Complaint inthis matter cites only the request to see a doctor as protected activity. *See*GX-1. A miner may introduce evidence of other protected activity outsidethe scope of his complaint only if the evidence was investigated by MSHA. *Hatfieldv. Colquest Energy, Inc*., 13 FMSHRC 544, 546 (Apr.1991); *see also Thomasv. CalPortland Co.,* 42 FMSHRC 43, 51 (Jan. 2020) (declining to modify *Hatfield*).Complainant did not produce other evidence of protected activity in this case. Thescope of my decision is thus constrained by the report of protected activitycited in the Complaint—the request to see a physician—but I do consider each ofComplainant’s alleged requests, and not merely the May 12 request on which theComplaint appears to rest, because such requests arising from the same injuryat issue would naturally be within the scope of inquiry by a competentinvestigator.

[26] Complainant alsotestified fellow employees, including Mr. Williams, helped him to clean hisarea after he returned to work on May 4. Even if true, this cannot bereasonably related in any way to a hostility toward his protected activity. Althoughone might question whether it would be fair in a general sense to discharge anemployee who had been led to believe others would help him clean his area, Complainantdid not report to his supervisor that he had been unable to clean or grease onMay 9 or 10.

[27] While notadvocacy per se, Complainant did testify about reporting safety issues to hissupervisors and management. However, he acknowledged that Respondent’s agentswere responsive to those reports, and there was no evidence of any hostility tothem.

[28] The Secretary hassuggested that this should detract from Mr. Ellis’ credibility. S. Post Hr’gBr. at 20. However, the wording of the question, the answer, and Mr. Ellis’notes leaves open the possibility that Mr. Humes told Mr. Ellis he haddiscussed the issue with Mr. Williams. *See*Tr. at 517:17–22 (testimonyof Mr. Ellis, stating that information was given to him “by Chris throughAnthony”). Whether and to what extent Mr. Williams was involved in the decisionis not material because there is no evidence suggesting that Mr. Williams, orany of Respondent’s other agents, may have been motivated by Complainant’sprotected activity.

[29] Despite havingthe opportunity to depose witnesses in discovery and subpoena and questionwitnesses at the hearing, Complainant produced no evidence that Mr. Williamshad ever discussed his initial request or any subsequent conversations abouthis need for medical attention with anybody else in the company.

[30] Complainant alsosays that after he returned to work in early May, following his April 15cardiac procedure, he told Mr. Williams, Mr. Humes, and his co-workers inpassing that his back was still hurt and that he could not complete all histasks. Tr. 382:3–25.

[31] I also find itodd that Complainant was under the care of physicians for a cardiac procedureunrelated to his employment but testified he did not discuss his occupationalinjury with his treating physicians. While he was seen by a cardiologist for aspecialized procedure, any person who has been provided with medical care isaware of the general requirement to provide a detailed medical history beforereceiving that care.  It is not necessary to my decision that I takeadministrative notice of this common imposition, but this is another instancewhere the absence of evidence is not helpful to Complainant’s credibility.

[32] Please paypenalties electronically at Pay.Gov, aservice of the U.S. Department of the Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively,send payment (check of money order) to: U.S. Department of Treasury, MineSafety and Health Administration, P.O. Box. 790390, St. Louis, MO 63179-0390.Please include Docket and A.C. Numbers.